INTERNATIONACOURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETJilOPIA v. SOUTH AFRICA;
LIBERIv.SOUTH AFRICA)
VOLUME XI
1966
COUR INTERNATIONADE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTIIlOPIE c. AFRIQUE DU SUD;
LIBÉRIA AFRIQUE DU SUD)
VOLUME XIAU rights reserved by the
International Court of Justice
Tous droits réservés par la
Cour internationale de Justice Abbreviated reference:
I.C.J. Pleadings, South West A/rica,
Vol. XI
Référenceabrégée:
C.I.J. Mémoires,Sud-Ouest africain,
vol. XI
Sales01UJJ.ber
N° de ventez 331 SOUTH WEST AFRICA CASES
(ETHIOPIA v.SOUTH AFRICA;
LIBERIA v.SOUTH AFR.ICA)
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUE DU SUD) INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIA1SOUTH AFRICA;
LIBERIAv. SOUTH AFRICA)
VOLUME XI
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIE c. AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUE DU SUD)
VOLUME XIPRINTED IX THE KETHERLANDS The present volume contains the continuation of the oral arguments
on the merits and the evidence of witnesses and experts in the South
West A/rica cases and covers the period 20 September to I9 October I965.
The beginning of the oral arguments on the merits {I5 March to IS June
I965) is published in Volume VIII, pages I05-712, Volume IX, pages
1-658, and Volume X, pages 1-558. The proceedings in these cases, which
were entered on the Court's General List on 4 November 1960 under
numbers 46 and 47, were joined by an Order of the Court of :zoMay 1961
(South West Africa, Order of 20 May I96r, I.C.J. Reports I96I, p. 13).
Two Judgments were given, the first on 2I December I962 (South West
Africa, P,·eliminary Objections, Judgment, 1.C.]. Reports, r962, p. 319),
and the second on 18 July 1966 (South West A/rica, Second Phase,
Judgment, J.C.]. Reports r966, p. 6).
Cross references correspond to the pagination of the present edition,
the volume being indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume contient la suite des plaidoiries sur le fond et les
dépositions des témoins et experts dans les affaires du Sud-Ouest a/ricain;
il porte sur la période allant du 20 septembre au 19 octobre 1965. La
dremière partie des plaidoiries sur le fond (15 mars-15 juin 1965) est
publiéedans le volume VIII, pages 105 à 712, le volume IX, pages r à 658
et le volume X, pages I-558. Ces affaires ont étéinscrites au rôle général
de la Cour sous les n°" 46 et47 le4 novembre 1960 et les deux instances
ont étéjointes par ordonnance de la Cour le 20 mai 1961 (Sud-Ouest
africain, ordonnance du 20 mai r961, C.I.]. Recueil I96r, p. 13). Elles
ont fait l'objet de deux arrêts rendus le 21 décembre 1962 (Sud-Ouest
africain, exceptions préliminaires, arrêt,C.I.]. Recueil r962, p. 319) et
le 18 juillet 1966 (Sud-Ouest africain, deuxième phase, arrêtC, .I.]. Recueil
r966, p. 6).
Les renvois tiennent compte de la pagination de la présente édition,
un chiffre romain gras indiquant le numéro du volume auquel il est
renvoyé.
La Haye, I966. CONTENTS-TABLE DES MATIÈRES
PART II. ORAL ARGUMENTS (continued)
DEUXIÈME PARTIE. PLAIDOIRIES (suite)
ANNEXES TO THE MINUTES ( continued)
A:-INEXES AUX PROCÈS-VERBAUX (suite)
Page
24. Hearings of the witnesses and experts (cont.) (20 IX-19 X 65). 3
Evidence of the Rev. Gericke (witness and expert) . . 3
Examination by Mr. Rabie. . . . . . . . . . . . 4
Cross-examination by Mr. Gross . . . . . . . . . 12
Witness questioned by Judge Sir Gerald Fitzmaurice 62
Witness questioned by Judge Jessup . . . . . 63
Witness questioned by Judge Sir Louis Mbanefo 64
Witness questioned by the President . . . 64
Evidence of Prof. Krogh (witness and expert). 67
Examination by Mr. Ilfoller . . . . . . . 67
Cross-examination by Mr. Gross . . . . . 86
Witness questioned by Judge Forster . . . . . zoo
Witness questioned by Judge Sir Louis Mbanefo 203
Evidence of Mr. Pepler (witness and expert) 206
Examination bv Mr. Muller . . . . . . 207
Cross-examinat"ion by Mr. Gross . . . . zr9
Witness questioned by Judge Jessup . . 248
Explanation by Mr. Pepler. . . . . . . 25r
Evidence of Dr. van Zyl (witness and expert). 251
Examination by Mr. Rabie. . . . . . . . 252
Cro3s-examination by Mr. Gross . . . . . . . 268
Witness qucstioned by Judge Sir Louis l\1banefo 315
Evidence of Professor Rautenbach (witness and expert) 326
Examination by Mr. Grosskopf. . . . . . . . . . 326
Cross-examination by Mr. Gross . . . . . . . . . 345
Witness questioned by Judge Sir Gerald Fitzmaurice 443
Witness questioned by Judge Sir Louis Mbanefo 448
\Vitness questionedby the President . . . . . 450
Further questions by Judge Sir Louis Mbanefo . 451
Re-examination by Mr. Grosskopf . . . . . 452
Evidence of Mr. Dahlmann (witness and expert) 455
Examination by Mr. l'lfoller . . . . . . . . 456
Cross-examination by Mr. Gross . . . . . . 480
Re-examina.tion by Mr. Muller . . . . . . . 570
Evidence of General Marshall (witness and expert) 574
Examination by Mr. Muller . . . . . . . . . 574
Cross-examination by Mr. Gross . . . . . . . 587
Evidence of Professor Manning (witness and expert). 599
Examination by Mr. Rabie. . . . . . . . . . . 600
Cross-examination by Mr. Gross . . . . . . . . 619
Evidence of Professor Possony (witness and expert) . 643
Examination by Mr. Muller . . . . . . . . . . 647 PART II (continued)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held /rom I5 March to r4]tdy, 20September to
r5 November and 29 November r965, 2I Marchand
on r8July z966, the President, Sir Percy Spender, presiding
(continued)
PARTIE II (suite)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenues du I5 mars au I4 fuiUet, d20 septembre
au r5 novembre, le 29 novembre z965, l2Imars
etle zB juillet I966, sous la présidencede
sir Percy Spender, Président
(suite) ANNEX TO THE MINUTES ( continued)
ANNEXE AUX PROCÈS-VERBAUX (suite}
24. HEARINGS OF THE WITNESSES AND EXPERTS
(continued)
AT THE PUBLIC HEARING OF 20 SEPTEMBER 1965
Mr. MULLER:Mr. President, the next witness, as indicated to the
Applicants, will be the Reverend Mr. Gericke. I ask the leave of the Court
for Dr. Rabieto introduce the witness, to explain how his testimonywill be
relevant and to put, with the permission of the Court, certain questions
to the witness.
The PRESIDENT:Mr. Muller, is the Agent for the Respondent not
present?
Mr. MULLER:Mr. President, yes, but I have been asked merely to
indicate to the Court who the next witness will be, with the authority
of the Agent.
The PRESIDENT:Mr. Muller, will you proceed?
Mr. MULLER:Yes, Mr. President. I shall ask Dr. Rabie to introduce
the witness, the Reverend Mr. Gericke, and toindicate to the Court the
relevance of his evidence.
Mr. RABIE: May it please you, Mr. President, honourable Members of
the Court, the evidence of the Reverend Jacobus Stephanus Gericke will
relate to issues raised under the Applicants' Submissions Nos. 3 and 4.
It will be directedtothe following points, as set out in a letter addressed
by the Respondent's Agent to the Deputy-Registrar of this honourable
Court on 30 July, a copy of which was transmitted to the Applicants'
Agents. The same information was repeated in a letter sent to the
Applicants' Agents on the 18th instant. I quote, Mr. President:
"Considerations underlying the development in the Dutch Re
formed Church of a system of separate churches for Coloured and
Bantu rnernbers. The advantages of such dcvelopment for Coloured
and Ban tu members and the communities to which they belong. The
significance of the Church's experience of different population groups
for the State in its administration of a heterogeneous population.
[And !inally] The Church's concern with the social, political and
economic life and circumstances of the varions population groups
and their members, and with the formation and implementation of
State policy in these fields."
Mr. President, may I also say, before the witness is introduced, that
the Reverend Mr. Gericke is Afrikaans-speaking and that he is not very
confident of expressing his thoughts properly in English at all timcs?
Because of practical difficulties connected with translation he has, how
ever, agreed and decided to give his evidence in English. May I now ask
the witness to take the stand and, Mr. President, may I ask that the
witness be called upon to make both the declarations provided for in the
Rules-that is, as witness and expert?
The PRESIDENT:The witness will make both declarations. SOUTH WEST AFRICA
4
Mr. GERICKE:In my capacity as a witness I solemnly declare, upon my
honour and conscience, that I will speak the truth,the whole truth, and
nothing but the truth. ln my capacity as an expert I solemnly declare,
upon my honour and conscience, that my statement will be in accordance
with mv sincere belief.
Mr. RABIE: Mr. Gericke, your full names are Jacobus Stephanus
Gericke?
Mr. GERICKE:That is so, Mr. President.
Mr. RAmE: You are by occupation a minister of the Dutch Reformed
Church of South Africa, and you have your congregation at Stellenbosch
in the Cape Province of South Africa?
Mr. GERICKE:Yes, Mr. President.
1'ifr. RABIE: You have been a Minister of that Church for 27 years,
19 of which have been spent at Stellenbosch-is that correct?
Mr. GERICKE:Yes, Mr. President.
Mr. RABIE: You are also Chairman of the Council of the University of
Stellenbosch?
The PRESIDENT:Is that correct, witncss?
Mr. GERICKE:That is correct, l\Ir. President.
Mr. RABIE: You are furthermore Vice-Chainnan of the Dutch Re
formed Church Synod in South Africa, the Cape division thereof?
Mr. GERICKE:That is correct, Mr. President.
Mr. RABIE: And you are at present Vice-Chairman and have for 20
vears been a member of the General :Missions Commission of that
Church-is that right?
Mr. GERICKE:That is correct, 1'11rP.resident.
Mr. RAsIE: You are a member of the Federal Council of the Dutch
Reformed Churches of South Africa, which is a body composed of repre
sentatives of the European, Coloured and Bantu Dutch Reformed
Churches in South Africa?
Mr. GERICKE:That is so, Mr. President.
Mr. RABIE: You were for some time Chairman of the Studen ts'
Christian Association of South Africa, a body composed of students of
ail sections of the country's population-is that right?
Mr. GERICKE:That is correct, Mr. President.
Mr. RABIE: In 1958 you paid a visit to the United States of America at
the invitation of the United States/South Africa Leaders Exchange Pro
gramme; you spentsome threemonths in the UnitedStates-isthat right?
Mr. GERICKE:That is so, Mr. President.
~Ir. RABIE: And, during that time, you gave special attention to
university administration and race relations-is that right?
l\fr. GERICKE:Yes, l\frPresident.
Mr. RABIE: You are also a member of the South African Bureau of
Racial Relations, a body which studies racial relations in the country
is that correct?
Mr. GERICKE:That is correct, l\Ir. President.
Mr. RABIE: Mr. Gericke, vour office as Vice-Chairman of the General
Missions Commission and as a membcr of the Federal Council of Dutch
Reformed Churches to which you have referred brings you into frequent
contact with Bantu and Coloured Ministers and other leaders of the
Coloured and Bantu population groups in South Africa-is that right?
Mr. GERICKE:That is so, Mr. President.
Mr. RABIE: Now, Mr. Gericke, before proceeding to put my next WITNESSES AND EXPERTS 5
question to you, will you kindly tell the Court what your academic
qualifications are;I believe you have a B.A. Degree-is that right?
Mr. GERICKE:That is correct, Mr. President.
Mr. RABIE: And then you have also obtained a degree in theology at
the Theological Seminary at Stellenbosch?
Mr. GERICKE:That is so. Mr. President.
Mr. RABIE: Before putting my next and succeeding questions, Iwould
likcto put the following points to you. We have had evidence hcre about
the diversity of the population groups in South Africa and South West
Africa. The Applicants sa;v that they are particularly concemed with
what they call 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 nonn and
suggested standards which appear to emanate from a certain premise,
and this premise is apparently that the allotment of rights and obliga
tions,burdens and privileges, on the basis of membcrship in a race, class
or group must necessarily be detrimental to the moral well-being and the
social progress of some of the inhabitants. In particular, the notion seems
to be that the provision of separate institutions and facilities for the
different population groups must inevitably be detrimental to such moral
well-being and social progress.
Thosc are the points I wish to putto you and now cornes my question.
Ras the Church of which you are a member to your knowledge gained
experience in Southern Africa which has a bearing on the matters I put
to you, that is, separate institutions and facilities and, in connection
therewith, moral and social well-being? What do you say, :Mr.Gericke?
Mr. GERICKE:l\Ir. President, yes. The Church is not concerned only
with what I may call the care of the soul. The Church is also deeply
concerned with the moral well-being and social progress of people and has
gained extensive experience which, as Isee it, is relevant to this matter
which has been referred to.
Mr. RABIE: Beforc developing your answer, will you please indicate
to the Court what the fields of activity are and more particularly those
in which that experience was gained.
Mr. GERICKE:Mr. President, first of all there is the missionary activity
of the Dutch Refonncd Church. The Dutch Reformed Church's activities
cover allparts of South Africa and a part of South West Africa and extend
beyond the boundaries of our country to Bechuanaland, Malawi, Rho
desia, Zambia and Nigeria. I have had the privilcge to visit all these
mission fields on several occasions, with the exception of Nigeria. Now
according to the latest information available, the annual expenditure of
the Dutch Reformed Church on missionary work has reached the figure
of 6 million rand. As the result of this work, 12 independcnt daughter
Churches have been established in 14 different territories serving 17
different language groups.
Mr. RABIE: Mr. Gericke, your attention has been drawn to a summary
of the missionary activities of your Church in the Respondent's Rejoin
der, V, at pages 342 to 344- Have you seen that summary?
Mr. GEJtrCKE: Il'frPresident, yes I have seen the particulars and I
think they give a brief and true indication of the nature and extent of the
Dutch Reformed Church's activities.
M r. RABIE: You have referred ta missionarv activities?
Mr. GERICKE:Yes, I am rcferring to rnissionary activitics.6 SOUTH WEST AFRICA
Mr. RABrE: In addition to those, can you refer to other activities of
your Church?
Mr. GERICKE:Mr. President, the Dutch Reformed Church has always
given very special attention to medical care, to hospitalization, andalso
to educat10n.
With reference to the medical work, the Dutch Reformed Church has
been able to greatly extend its hospitalization programme, partly due to
an increase of contributions from the White congregations but also
because of a State policy to subsidize such church enterprises. As an
example I may say that in the course of 6 years the Dutch Reformed
Church erected 16 new hospitals in the Transkei alone, as well as several
matemity hospitals, clinics, etc., all over the country. Severa! of these
hospitals provide for tuberculosis and Ieper patients.
\Vith referencetothe educational programme, the Church has provided
hundreds of schools (I am referring to the Dutch Reformed Church) for
primary and secondary education, as well as colleges for the training of
teachers, several theological seminaries for the training of Bantu and
Coloured l\linisters, also schools for the deaf and the mute, and schools
for the blind. Also, several youth organizations have been established
and in the largest cities, like Johannesburg, crèches and kindergartens
care for the children of working mothers.
The Church has also been active in the field of social welfare, for
example, in organizing social clubs, special classes, evening classes, and
in providing means of entertainment. ln addition, the Church has
interested itself in the teaching of illiterate adults and in providing
literature for the non-White conununity. At the present moment a special
fund for 6 million rand is being raised by the Dutch Reformed Church
for providing literature forthe Bantu people.
Mr. RABIE: Mr. Gericke, will you indicate briefly to the Court the
nature of the interna! organization of the Church as far as Coloured and
Bantu members are concemed.
Mr. GERICKE: Mr. President, the name Dutch Reformed Church
actually indicates a family of churches equal in status. Usually we refer
to the Church for the White people as the mother Church. The Churches
for the non-White people, which resulted from the missionary enterprises
of the Dutch Reformed Church, are referred to as daughter Churches.
These daughter Churches are independent and the government of these
Churches rests with their respective synods, and the office bearers of
these synods are elected by ballot. Of course, the daughter Churches still
need the support of the mother Church in the form of financial aid and
also personnel.
The personnel supplied include ministers, doctors, nurses, teachers,
instructors and administrators. The training of the ministers for the
daughter Churches is at present still undertaken by the mother Church,
but the aim and policy of the Dutch Reformed Church is that each
population group should have its own self-goveming Church, wherein
each group can be served inits own language and by its own leaders.
The PRESIDENT:Do I understand you, Mr. Gericke, to say that in the
daughter Church the synods are elected independently by the members
of the daughter Church?
Mr. GERICKE:That is so, Mr. President.
The PRESIDENT:And who are the people who participate in the
election? WlTNESSES ANDEXPERTS
7
Mr. GERICKE:The synod comprises a M.inisterand an Elder from each
congregation or parish of this particular daughter church.
The PRESIDENT:Who participate in the election? Who are the electors
of the synod?
Mr. GERlCKE:The local church councils.
The PRESIDENT:Do they comprise the members of the congregation
or are there White members who participate?
Mr. GERICKE:No, they comprise the members of the congregation. In
some of the congregations there is still a White missionary, who acts as
Minister of the congregation.
The PRESIDENT:Thank you.
11IrRABlE: But apart from the White missionary, the other members
who elect a Minister and an Elder are the respective Coloured and Bantu
community?
M.r.GERICKE:Yes, that is so, Mr. President.
Mr. RABIE: Mr. Gericke, will you indicate whether this situation of
having separate churches in the Dutch Reformed Church existed from
the very beginning, or whether it is a more recent development?
Mr. GERICKE:Mr. President, this pattern of church life is the outcome
of historical development. In the course of history several changes of
policy took place. In the main it may be said that at first the Dutch
Reformed Church adhered to the policy of integration, but since the
beginning of the nineteenth century changed over to a policy of separate
churches or separate development in the Church. In the beginning the
church services were multi-racial, attended by White people, the slaves
at that time, and very few Aborigines. The first school was integrated as
but this soon proved to be impractical and it was consequently
well
decreed that the children should be taught in separate schools.
Mr. RABIE:Can you say until when the Church maintained its practice
of having integrated or multi-racial services?
Mr. GERICKE:This was the case up till the nineteen th century, Mr.
President. By this time it was clear that the results wcre very unsatis
factory. Very few non-White people became Christians. Furthermore,
those who joined the Church had a very inadequate opportunity for full
religions experience. They were a mere appendix to the White con
gregation. They were seated in a separate part of the church and received
very little benefit from a service which was attuned to the needs and the
background of the White people.
Mr. RABIE: How did this change in church policy corne about? Could
you indicate that very briefly?
Mr. GERICKE:Mr. President, the early nineteenth century brought a
new awakening of missionary zeal all over the western world. It was at
tlus time that the great missionary societies were established, for exam
ple, the London Missionary Society and also the British and Foreign
Bible Society for the propagation of the gospel, and all this had a very
great influence on the missionary zeal in South Africa and also in our
Church, with the consequence that very special efforts were made to
reach as many non-White people in the Cape as possible. Itwas at this
time that special and separate services were held for the Coloured
community and also separate churches were built to provide for the
spiritual need of an increasing number of non-White people who started
joining the Church.
Mr. RABIE: To what did that lead?8 SOUTH WEST AFRICA
Mr. GERICKE:This led to a resolution by our synod, a resolution in
the late 1850s, officially permitting separate services for the Coloured
community, and eventually, about a quarter of a century later, to the
establishment of a separate, independent and self-goveming Church for
the Coloured people of the Cape.
Mr. RABIE:Mr. Gericke, from your study and knowledge of the matter
what would you say were the main considerations in this regard, that is
about having separate churches for the different groups?
Mr. GERICKE:Mr. President, as appears from history, it became quite
clear that the difference in culture, language, level of intellectual devel
opment and racial background, demandeda different methodof approach,
even an adapted form of preaching; also, new hymns to serve as a means
of expression of religious experience.
In addition, there was no real communion, spiritual communion,
between the White and non-White members of the congregations, chiefly
due to the absence of social intercourse in ordinary life. Friction occurred
on occasion between groups as a result of a feeling of frustration on the
part of the Coloured people who found themselves in a minor position in
the Church. At that time there was a growing desire for separate services
and separate churches on the part of leading members of both groups.
Mr. RABIE: What was the significance of the establishment of that
first separate church for Coloureds?
Mr. GERICKE: Mr. President, this marked the beginning of a new
pattern in our church life, namely the establishment of separate churches
for the Bantu people as well. In the course of time, as I have said before,
12 such daughter churches were established in the Republic and beyond.
Mr. RABIE: Could you say very briefly, you have already referred to
this, how the churches are governed and how they function on the local
parish level.
Mr. GERICKE:Mr. President, as I said before, these daughter churches
are completely independent, the highest authority being the different
synods, and these synods comprise Ministers and Eiders from the different
congregations. On the local or parish level the Minister and the Church
Council regulate the matters pertaining to the spiritual welfare of the
congrega tion.
l\Ir. RADIE: Now, does the independence of the daughter churches
imply that there is no further relationship with the mother church?
Mr. GERICKE:.Mr.President, apart from the financial and other aid to
which I have referred, I wish to point out that there are various channels
of communication, for example, the Federal Council of the Dutch
Reformed Churches. At this top level, the Federal Council provides the
opportunity for discussion of matters of policy for the whole Church.
Representatives from all the churches have equal authority and privilege
on this Council.The Federal Council also serves as a means of expressing
the unity of the Dutch Reformed Churches.
Mr. RABIE:Now, how is membership in the various churches regulated,
that is, the mother church and the daughter churches?
Mr. GERICKE:Membership is regulated by the local church councils.
However, it is an implied understanding among the different Dutch
Reformed Churches that each admits to membership those belonging to
the ethnie group concerned.
Mr. RABIE: Now, how does that principle work out in practice? Could
you say it briefly? WITNESSES AND EXPERTS
9
i\Ir. GERICKE:l\fr. President, expericnce has shown that members of a
group join their own church, the only exception being White missionaries
who bccome members of the congregation they serve. Otherwise, I know
of no case of a Ban tu or Coloured person who has become or even wanted
to become a rnember of the \Vhite Church.
Mr. RABIE: Now, Mr. Gericke, would you describe what you consider
to be the fruits of this system of having separate churches for the
different groups?
i\:l.GERICIŒ: }Ir. President, before dealing specifically with this
question, I wish to point out that there has been in recent years a very
substantia[ increase of membership in the Dutch Reformed daughter
churches. During the past 15 years the membership bas been doubled,
which would seem to indicate that this system has some appeal for the
people.
Now, coming to the advantages, the experience of the Dutch Reformed
Church has shown that the adherents desired no change in this arrange
ment and that this system is beneficial to the adherents of the Church.
First of all, this system provides full opportunity for self-development
for the members of the daughter churches. Ali offices arc open to them.
A new stimulus is provided for development of their own leaders and the
management of their own affairs. This has brought about a more positive
attitude and a new sense of enterprise and responsibility on the part of
the members of the daughter churches. Furthermore, this system bas
stimulated co-operation and removed possible occasions of friction.
The separated churches realize and appreciate the fact that they are
not merely an appendix of the White Church but churchcs equal in status.
This has really engendered a spirit of co-operation, of mutual respect
and of neighbourliness. They can now meet their White brothers in the
church as equals. The present rclationship between the mother and the
daughter churches is one of mutual respect and readincss to co-operate.
!lfr. Rrnrn: Now, could you give us an exarnple of this spirit of co
operation?
Mr. GERICKE: Mr. President, first of all I may say that there is an
increasing interest in the welfare of the daughtcr churches, a fact which
is reflected in a substantial increase of contributions, financial and other
wise. Let me illustrate with one example.
\Vhen I becamc a :Minister of the Church of Stellenbosch about 19
years ago the annual contribution of that particular congregation for
missionary work was round about f2 ,ooo.In 1964 the annual contribution
was f15,000. In this same period the numbcr of students of the University
of Stellenbosch, the local university, who volunteered for missionary
work during their weekends increased from roo to 800 young people who
go out on Saturdays and Sundays to do this work.
Mr. R-\BIE: Now, i\fr.Gericke, you have mentioned some advantages
of the system. Are there any othcrs to which you wish to refer?
)lr. GEmCKE: Mr. President, perhaps the most important fact is that
the daughtcr churches have become Jess and less dependent on the
mother church, even financially. This autonomy or independence is
reflected, among others, by the fact that these daughter churches are
now launcbing their own campaigns of evangelization beyond the
boundaries of their own congregations and their own countries.
AH these factors must have contributed to giving the members a new
sense of self-respectand independcnce.IO SOUTH WESTAFRICA
But, Mr. President, tome a point of supreme importance is this, that
in this set-up the feeling of human dignity must corne into its own.
Where you have independent self-governing churches and communities,
the requirement that one must love one's neighbour as oneself becomes
easier of fulfilmentthan might otherwise be the case.
Mr. RABIE: Now, what, in your opinion, would be the results if there
were to be no separation in the church?
Mr. GERICKE:Mr. President, it would cause a disruption of the orderly
situation which now exists in the Dutch Reformed Churches, and order
liness is of supreme importance to the Church. You cannot preach the
Gospel in a disordered Society where there is tension and friction. It
would also lead to an unfair competition in the church organization which
would exclude many non-\Vhite members from leadership and con
sequently cause friction, frustration and even bitterness. In short, it
would nullify the advantages which resulted from this particular system
in our Church.
Mr. RABIE: Now, does your Church apply the same principle of
separation in its missionary work in South West Africa?
Mr. GERICKE:Mr. President, yes it does, but I must add that the
Dutch Reformed Church has only recently commenced missionary
work in South West Africa. However, the first independent Dutch Re
formed Church was established in 1962 and this church is growing very
rapidly.
The PRESIDENT:Where was it established?
l\Ir. GERICKE:Windhoek, Mr. President.
Mr. RABIE: Mr. Gericke, do you know whcther the churches of longer
standing in South West Africa also apply this principle of having separa
tion in their churches?
l\fr. GERICKE:Mr. President, I am not in the position to give precise
details oftheir organization at top level but Iknow that on the local or
parish level the groups are served separately. The Evangelical Lutheran
Church, for example, has developed a separate church for the non
Whites parallel to that of the \Vhites. In this non-White church each
group is served in its own language, necessitating up to three successive
services in one church in Windhoek on a Sunday. The Hereros have
broken away from the other Christian churches of the Terri tory and have
formed their own so-called Uruwana Church, a church which contains
certain elements of ancestor worship, etc. The Finnish Lutheran Church
operates among a homogeneous people. The Ovambo people have formed
the Ovambo-kavango Church; this church is wholly indigenous, it has an
Ovambo Bishop at the head, 69 Ovambo Ministers, 150 Evangelists and
round about 150,000 adherents. The Roman Catholic Church follows the
principle of serving its adherents in their own language.
l\:fr. RABIE: Now, Mr. Gericke, in your opinion, have the experience
and the practice of the church had an influence on the currents of thought
in South Africa with regard to the racial situation?
Mr. GERICKE:Mr. President, over a period of several decades the Dutch
Reformed Churches in South Africa have been very deeply involved in
race relations and as the result of this involvement numerous conferences
have been organized on a nation-wide basis, dozens of books dealing with
this subject have been written by churchmen and pronouncements by
numerous church leaders, Roman Catholic and Protestant, English and
Afrikaans, have been published. WITNESSES ANDEXPERTS II
The Dutch Reformed Church has, furthermore, drawn its best theolo
gians into commissions, which, without intermissioI).during the past three
decades, had to carry out the specific charge to study the racial question
in the light of the Scriptures and Christian practice and to advise the
church thereon. Every synod during the past 25 years has given earnest
thought to this matter and to the responsibility and duty of the mother
church towards the non-White churches in the country. .
The church has, furthermore, co-operated very closely. and remained
in touch with scientific and other bodies which have made it their abject to
study the racial problem. AU these efforts by the church must have had
a very substantial influence on the currents of thought in South Africa.
Mr. RABIE: Now, can you say, has the church, in the light of its
experience ..actively sought to influence the State, in the formulation of
policy?
Mr. GERICKE:Mr. President, yes; to put it briefly, the church has, on
many occasions, urged the Government to follow a policy of separate
development. I am speaking of the Dutch Reformed Churches. When I
speak of the Government, I refer not only to the present Nationalist
Govemment but also to its predecessors.
Mr. RABIE: Mr. Gericke, your attention has been drawn to recent
resolutions adopted by the church in this regard and which are set out
in the Respondent's Rejoinder, V, pages 344-346. Have you seen those
passages? Do they correctly reflect what happened in that regard?
Mr. GERICKE:Yes, they do.
Mr. RABIE: Is there anything more you can say or wish to say in that
regard?
Mr. GERICKE:Mr. President, perhaps I may refer to just one resolution
quoted by the Respondent. At the 1950 Convention at Bloemfontein, the
Government was urged to appoint a special commission of experts to
investigate this whole problem. Itis well known that as a result of the
Recommendations of this Commission-the so-called Tomlinson Com
mission-certain progressive steps were taken in the Transkei and also
in other connections.
Mr. RABIE: Now, why, would you say, are the churches, including the
Dutch Reformed Church, so intensely interested in the political problem,
and, can you say whether this interest is compatible with the spiritual
nature and the prophetic charge of the Christian church?
Mr. GERICKE:Mr. President, first of all, I must draw attention to a
fact which is accepted by all Christian churches: namely that it is the
duty and the responsibility of the church to do everything in its power to
improve human relations and to promote Iaw and order, justice and
equity. When the Dutch Reformed Church, in this broad context, takes
an interest: in matters of a political nature, she is acting in accordance
with the faith and the practice of ail Christian churches.
Furthennore, the church's duty is emphasized in a country where race
relations arean issue. Now, from the point of view of the Dutch Reformed
Church, the following must be taken into account. In a country where
tension and friction are allowed to develop, the church can never escape
the consequences. It is very difficult, if not impossible, to preach the
Gospel in a disordered society. Therefore, for practical reasons, Mr.
President, the church must encourage a policy or policies, which, ac
cording to the viewpoint of the church, tend to bring about a just and
peaceful Co-existence of the groups and the races..I2 SOUTHWESTAFRICA
Now, as I pointed out before, the Dutch Reformed Church believes that
the policy of separate development offers the best solution.
Mr. RABIE: Mr. Gericke, your attention has been drawn to pages in
the pleadings, amongst others, the Respondent's Rejoinder, V, at pages
346 and following, which show that churchmen have expressed con
flicting viewsin regard to the policy of separate development. You have
seen those pages, have you not?
Mr. GERICKE:That is correct.
Mr. RABIE: And do they reflect some of the views that have been
expressed on this whole problem?
Mr. GERICKE:Yes, that is so.
Mr. RABIE: Now, my final question is this. Is the attitude of your
Church, as cxp,ressed by churchmen, based on any peculiar theological
outlook or any scriptural interpretation put in issue by other churchmen?
Mr. GERICKE:Mr. President, no; it is basically a matter of proper
appreciation or understanding of the facts of the total situation. Once it
is appreciated and accepted, as we firmly believe, that a policy of
integration will lead to--and I am speaking figuratively now---either
suicide or homicide of certain groups and to a fatal set-back in the ad
vancement 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 all costs. I think that it is largely becausc of a different under
standing of the situation that churchmen have been led to express
divergent views on this particular policy and not becausc of a difference
of opinion on moral concepts and Christian ethics.
Mr. RABIE: Thank you. Mr. President, that concludes the questions
I wish to putto this witness.
The PRESIDENT:Very well Mr. Rabie . .!\Ir.Gross?
Mr. GROSS: ;\fr.President, if the Court please, the Applicants would
appreciate the opportunity to cross-examine the witness. \Vould it be
convenient, to the Court. Illr. President, to allow me to gather my notes
together during a brief recess in order to address questions in orderly
and organized form to the witness, or does the President wish me to
continue now, which I would be glad to do?
The PRESIDENT:Mr. Gross, the Court is always willing to meet the
position of counsel as muchas is possible. If the Court adjoumed now for
20 minutes and took the usual break during that period of time then,
when the Court resumed, it would expect the cross-examination to be
carried to a conclusion. If that is convenient the Court will now adjourn
for 20 minutes.
Mr. GROSS:Thank you, Mr. President.
The PRESIDENT:The hearing is resumed. Will the witness corne to the
podium? Mr. Gross?
Mr. GROSS:Dominic Gericke, I shall ask questions. with the Court's
permission, which under the circumstances will, in some cases, reflect my
scribbled notes during the course of your testimony. If I misquote you,
or attribute to you comments or views which you have not intended to
express and which I have misunderstood, then I would ask you please to
correct me. Itwill be inadvertent in any such case, as I do not have to
assure you.
If I understood. Dominic Gericke, in response to one of the final
questions addressed to you by learned counsel you referred to differences
of opinion which have arisen in, and I suppose among, the churches and WITNESSES A:-.DEXPERTS 13
church leadership. Vou have attributed such differences which con
ceivably exist to appreciations of fact rathcr than to differenccs of view
concerning moral or religious tcnets or beliefs. Did I understand you
corrcctly in that respect, Sir?
Mr. GERICKE:Yes, Mr. Gross.
M.r.GROSS:In order that the Court may have the benefit of the record
and the attitudes of leaders in this very important field, which, as a
layman, I hesitate very much to engage in anything that would resemble
a colloquy, I should rcally likc to address questions to you for the benefit
of the Court's understanding of the matter. I should like to place before
you a number of comments and policy statements on matters which are
covered within the scope of your testimony, with the request that you
would be good enough to expia.in whether you agrce or disagree, and
elaborate where you wish, subiect to the Court's permission, in order that
the Court may fully understand the purport of your testimony and the
facts which I shall attempt to clicit with regard thereto. In the first place,
may I ask you, Sir, whether you can advise the Court concerning the
approximate number of non-Whites who are members of, or profess
adhercnce to, the Dutch Reformed Church on the one hand, and other
Christian churches on the othcr-the principal churches I am referring
to in the latter connection? Could you explain the relative number of
adherents in those cases?
Mr. GERICKE: Mr. President, the total number of adherents of the
Dutch Reformed Churches-that is in the Republic and outside the
Republic-is about a million and a quarter.
Mr. GRoss: Did I hear you say a million and a quarter?
Mr. GERICKE: Yes, in and outside the Republic, that is the total
number of adherants.
Mr. GRoss: Perhaps for the sake of clarity, could I, with the Court's
permission, read to you these figures, which are from the 195r census,
which set forth the number o( non-White (under the classification here
of "Bantu"} adherents to certain churches in the Republic? The citation,
r1IrPresident, is from Union Statistics for 50 years (that is 19rn to 1960),
published in the Union of South Africa by the Bureau of Census and
Statistics at Pretoria, and the reference is to page A.29 of that volume,
and the figures which I shall mention are as follows: with respect to the
Nederduits GereformeerdeKerk (that is, the Dutch Reformed Church), in
1951, in round numbers, 300,000 {the number here is 297,000 plus); the
Anglican Church, in round numbers, 580,000; the M.ethodist Church, in
round numbers, 1million; the Roman Catholic Church, in round numbers,
460,000. On the basis of such information as you may have, do you have
any comment with respect to the extent. if any, to which these figures or
the ratios have changed sincc 1951?
l\lr. GEHICKE::llfr. President, are those figures for Bantu people or the
Coloured people?
Mr. GROSS:Yes, Sir.
l\Ir. GERICKE:For the Colourcd people?
Mr. GROSS:These are Bantu.
Mr. GERICKE:Bccause the adherants of the Dutch Reformed Church
among the Coloured people alone is 336,000 and 1 was giving the total
figures of Coloureds and Bantus.
Mr. GROSS:I am sorry if I misled you. Thcsc figures which I have read
from this page of the report arc under the heading "Religion-Bantu". SOUTH WEST AFRICA
These are Bantu· figures, as the classification is in the census. Do you have
any comment with respect to these figures? Do they, so far as you are
aware at the present time, correspond to the ratio of Bantu and non
White African membership in these various churches?
Mr. GERICKE:Mr. President, I have information that during the past
15years the adherants of theDutch Reformed Church amongst the Bantu
people doubled itself; especially during the past 5 to 7 years there was a
substantial increase of the adherants of the Dutch Reformed Church.
Mr. GROSS:So that that would be roughly now, instead of 300,000 ...
Mr. GERICKE:It would be more.
Mr. GRoss: Roughly 600,000?
Mr. GERICKE:Yes.
Mr. GRoss: Do you happen to know, Sir, whether there has been a
similar increase of membership on the part of Bantu in the other churches
I have mentioned-the Anglican, the Methodist or the Catholic?
Mr. GERICKE:Mr. President, I have not got any figures on the Roman
Catholic Church, but I know that there was a very slight increase, I
believe, ofr or 2 per cent. in the Methodist Church. There was a slight
decrease in the Presbyterian Church. The only Church that doubled its
numbers was the Dutch Reformed Church.
Mr. GROSS:Now, roughly, then, if I may simply deal with approxima
tions here, we start with an estimated, let us say, 600,000 Bantu adhe
rants to the N.G.K., that is the Dutch Reformed Church; approximately,
say, 600,000 or similar number in the Anglican Church; approximately
r million in the Methodist Church and approximately half-a-million in
the Roman Catholic Church. Now would you explain to the Court. if it is
within your knowledge, Dominie Gericke, what the policy and practice
of the Roman Catholic Church is with respect tothe separation on racial
grounds in services?
Mr. GERICKE:I am not well acquainted with the Roman Catholic
Church in South Africa. I had discussions with a Roman Catholic priest
and I know that in South \Vest Africa the Roman Catholic Church serves
the clifferent racial groups accorcling to language. They have different
services for people of different language groups.
Mr. GROSS:That is a matter of servicing those who speak one language
and not another. In respect of the racial rather than linguistic distinc
tions, do you know whether it is correct or not that the Roman Catholic
Church in South Africa has not established separate churches on a racial
basis? Is that correct?
Mr.GERICKE:No, it is against the nature of the Roman Catholic Church,
as you know. Itis one church all over the world.
Mr. GROSS:And with respect to the Anglican Church in South Africa
and in South West Africa, if you are familiar with that as well, can you
tell the Court whether or not the Anglican Church has established
indigenous churches?
Mr. GERICKE:No, they have not, Mr. President.
Mr. GROSS:Can you tell the Court what the practice or policy of the
Anglican Church is-if it has a policy in this respect-with regard to the
members of different races attending the same services?
Mr. GERICKE:Mr. President, in a few places (and I am referring now to
Cape Town and to one Anglican Church in Johannesburg) they have
multi-racial services,but in many places they have separate services for
the separate communities. WITNESSES ANDEXPERTS rs
Mr. GRoss: So far as you are acquainted with the official church policy
of the Anglican Church, are the policies the same as or similar to those
which govem the Dutch Reformed Church with respect ta separate
churches based upon racial distinction?
Mr. GERICKE:No, Mr. President. The proclaimed policy is not the
same. The proclaimed policy of the Anglican Church is that of a multi
racial church.
The PRESIDENT:How do they carry it into dfect?
Mr. GERICKE:i\Ir. President, it all depends. There are places-1 am
referring now to places like Port Elizabeth, East London, Durban,
Bloemfontein-where they have separate services for the non-White
members of their church.
Mr. GRoss: Would you say, Dominie Gericke, that that is a matter of
principle or policy of the church, or is that a matter of practical ex-
perience, as the case may be? ·
Mr. GERICKE:Mr. President, it is not a principle of policy of the
church, it is a matter of practical experience, aIsee it.
Mr. GRoss: The testimony which you gave in Court related, if I
understood it correctly, Sir, to the frictions and tensions which might
arise, could arise, or perhaps have arisen, as a result of multi-racial
participation in services or inhe same church. Is that a correct version
of your testimony, Sir?
Mr. GERICKE: Mr. President, could that question be repeated?
M.r.GRoss: I would certainly be delighted to repeat it, Mr. President,
with your permission. The question was whether I correctly paraphrase
your testimony when I say that I understood you ta state that tension
and friction have arisen or could arise by reason of participation by
different races, in the same services or membership in the same church.
Is that correct?
M.r.GERICKE:That is correct, Mr. President.
M.r.GRoss: And that I further understood you to testify that it is part
of the fonction and a necessity for the church to prcach the gospel in an
atmosphere free of tension and frustration-that was your testimony was
it, Sir? Could you explain for the benefit of the Court and to clarify this
very important question, what the churches, the Roman Catholic Church
and also the Anglican Church, what thcir reaction faor attitude toward
arguments of this sort with respect to establishing separate services or
separate churches in their own communions-do you understand my
question, Sir?
;\fr. GERIGKE:What their arguments are ...
ML GROSS:What are their reactions to the contention that frustration
and tension arise through multi-racial services or churches which impede
the mission of the church?
Mr. GERIGKE:There is a wide division of opinion in the Anglican
Church.
l\Ir. GROSS:There is a wide division within the Anglican Church?
Mr. GERIGKE:Oh yes, within the church .
.Mr.GRoss: Is that division based upon or does it rcflect any moral or
ethical considerations?
Mr. GERICKE:I am afraid I am not in a position to answer that
question.
Mr. GRoss: I will corne back if Imay to this same question in respect
of the Dutch Refonned Church, of which, of course, you are a distin-16 SOUTH WEST AFRICA
guished leader and I would however, first, if I may, ask with respect to
another aspect of your testimony-the reference was made by counsel
in his questioning to you as to whether or not the Dutch Refonned
Church has sought to influence the State to follow the policy of separate
development or otherwise influence the State in its policy in racial mat
ters; I believe that your answer was that it is, indeed, the duty of the
church to influence the State and you referred, if Iunderstood you
correctly, to the question of separate development and the surport of
the Dutch Reformed Church, of separate developmcnt as a policy and
the influence brought to bear by the Church, or sought to be brought to
bear by the Church on the State to further the policy of separate develop
ment. Is this a correct version of your testimony?
Mr. GERICKE:Yes.
Mr. GRoss: In connection with this question of the policy of the
Church and State regarding separate developmcnt, I refer to the Re
joinder, V, page 344, which is a page in the Rejoinder to which counsel
for Respondent has drawn your attention and with which you said, I
believe, that you were familiar. I call attention particularly to the April
1950 confercncc which is referred to on that page of the Rejoinder, in
which a statement is made by an author reporting on the conference,
Dr. Visser 't Hooft of the World Council of Churches, with regard to the
view of the Federal Mission Council in April 1950 at the Bloemfontein
conference, to which you have referred in your testimony-the following
statement, which I shall read from that page of the Rejoinder:
"It was emphasized that the rights of every man were to be
respected and that permanent subordination of one group to another
should not exist in any realm of life. The only way in which these
aims could ultimately be realized was by total separation, which
would mean the conversion of the native areas into true homelands
ofthe Bantu with full opportunity for development and self-govern
ment and the replacing of the Bantu in the present economic
structure, which would entai! great sacrifice on the part of the
European." (V, p. 344,)
I should like to ask you, Sir, whether the doctrine or policy of scparate
development which you have testified the Dutch Reformed Church
supports and seeks to influence the Government to dcvelop, to promote,
envisages, as this resolution implies, total geographical separation and
the removal at great sacrifice of the non-Whites from the White areas
and the establishment of separate political and economic entities. Is this
the doctrine of separate development which the Dutch Reformed Church
espouses-total separation of the races, as reflected in this statement
from the Rejoinder which Ihave read?
Mr. GERICKE:Mr. President, that particular conference was a confer
ence of the Dutch Reformed Churches and different other organizations
the 1950 conference, is that correct?
l\Ir. GRoss: Yes, Sir.
l\lr. GERJCKE:The Dutch Refonned Church has never to my knowledge
made a proclamation about total separation. Thcre is no such doctrine
in the Dutch Reformed Church as far as I know. I have been testifying
about separate churches and the influence of the church on the Govern
ment for separation but there is no doctrine or proclamation of or by the
Dutch Reformed Church for total scparation and I am not a political
expert to know whether this is viable or not. WITNESSES AND EXPERTS 17
:Mr.GRoss: Weil, I think the Court will appreciate, Sir, that you are
not here as a political or economic expert-the question is to establish to
the best of our ability for the benefit of the Court, the notion, the concept
of the doctrine of separate development which your Church is espousing
and seeking to influence the Governmcnt on--in that context and for
that purpose, not as an economist or as a politician , ..
?.Ir. GERICKE:I am sorry.
Nl.r.GROSS:If total separation is not envisaged, what is the policy of
separate development-how would it be definecl by the Church in respect
of the question we have discussed?
i\lr. GERICKE:Mr. President, the Church has had a certain experience
in its own work and the Church's experience is that if vou establish a
church say for the Coloured people, or for the Bantu· people in the
Transkei or for the i\Ialavis in l\falavi-iyou do that and you give these
people the opportunity to run their own church, this engenders a spirit
of self-respect and it takes away occasions of friction and you get order
liness in the church. Now the Church has passed this principle on, if I
may put it that way, to the State in advocating this policy. How this is
to be worked out is very difficult for me to say, as I said I am not a
politician.
l\1rGROSS:To avoid misunderstanding is your answer intended to
say that the only respect in which the Church seeks to influence State
support or promotion of separate development is in the religious life of
the nation-did Iunderstand you correctly?
l\Ir. GERICKE:No, also in the political life.
Mr. GROSS:Therefore this is the aspect of the matter on which I would
seek elucidation for the benefit of the Court-in what respect does the
Church, the Dutch Reformed Church, seek to influence the Govemment
with respect to political or cconomic separate dcvelopment, if the Church
has that intention at ail. Do you understand my question, Sir? Would
you cxplain what the vicwpoint of the Dutch Reformed Church is with
respect to separate development in the political field, let us say, by way
of taking an example, the promotion of a franchise for the non-\Vhites
-if you wish to take that example-take any other example you wish, if
you do not wish to take that one at the moment.
11IrGERICKE: Mr. President, I am afraid 1 do not understand this
question-what exactly does counsel want me ...
The PRESIDENT: 1 can understand that you cannot answer the ques
tion, it is a little long, but Mr. Gross, is not the question you are seeking
to have answered: what policy views have been conveyed by the Dutch
Reformed Church to the parties in power in South Africa?
Mr. GROSS:Yes, Sir, with respect to political aspects.
Mr. GERICKE:Thank you, Mr. President. At that particular conference
the Dutch Reformed Church in conjunction with other bodies, F.A.K.
and S.A.B.R.A. and other organizations, said in effect to the Govemment
that the confcrcncc belicves that a policy of separate <levelopment is the
only just solution to this particular problem. This particular conference
also said that integration was no solution and just passc<l this on to the
Government that, it was the opinion, the conviction of this conference,
that in a policy of separate devclopment then! would be ample oppor
tunity for ail sections to develop to the utmost, politically, economically,
etc.
1IL GRoss: Now, the question that I asked which I shall state briefly-I8 SOUTH WEST AFRICA
with regard to the political aspects of separate development, has the
Dutch Reformed Church endorsed or promoted any policy or point of
view?
Mr. GERICKE:The Dutch Reformed Church has passed on a principle
to the Govemment but not any particulars.
Mr. GRoss: Now therefore, if I understand you correctly, the Dutch
Reformed Church as such has not taken a public position with regard to
such matters as participation by individuals, non-Vlhite as well as White,
in the franchise, in the voting rights of the country-has the Church
taken a position publicly with respect to that question?
Mr. GERICKE:The Church has said, I think it was at that same confer
ence or I think it was the 1945 conference or 1956, I am not sure now, to
the Government, that no people or race which is worth its keep can be
satisfi.edithout any political rights, therefore the Government must see
to it that al] these races get a part of the country, that is separate
development, so that they can develop to the full, also politically.
Mr. GROSS:Now with respect to the parts of the country in which the
\Vhites and non-Whites both live and work in the same economy-let us
say the urban problem as it is sometimes called-has the Dutch Reformed
Church taken a position with respect to whether or not the non-Whites
in the urban areas should have a vote or direct voice in the Government?
Mr. GERICKE: In the Government, no.
Mr. GROSS:It has not taken a position with respect to that. With
res'pect to the economic aspects of separate development, has the Dutch
Reformed Church taken a position with regard to, let us say specifi.cally,
the Job Reservation Acts-it has, you say?
Mr. GERICKE:The Dutch Reformed Church-there was a declaration
by a number of leaders-al! the Moderators and Secretaries and Assessors
of the different synods-a declaration in 1961, I believe-and these
leaders referred to job reservation, as far aI can remember, and told the
Government that this should be carried out with the least possible-!
am looking for the word, Mr. President-injustice is not the right word
infringement on the rights of people; I think I am ...
1\ir. GRoss: Paraphrasing, perhaps?
Mr. GERICKE:Yes, paraphrasing.
Mr. GRoss: But the sense of it was that the Job Reservation Act
legislation should be applied, but with justice?
Mr. GERICKE:Yes.
Mr. GRoss: There was no position taken, was there, or was there a
position taken, not necessarily at that conference but at any time in
recent history or currently against the principle of job reservation?
Mr. GERICKE:Against it, no.
Mr. GROSS: Is there a difference of view among Church leaders in the
Dutch Reformed Church regarding job reservation as to a position which
the Church should take; is there a difference of view; are some in favour
of it, some opposed to it, among the Church leadership?
Mr. GERICKE:About taking up a position?
Mr. GRoss: Yes.
1\Ir. GERICKE:Yes, I would imagine there are some of the ministers
who think that the Church should take up a position; I do not want to
name these people, but I know them.
Mr. GROSS:\Vell, I will perhaps name one or two in due course, but
I was anxious to obtain your view, if you care to express it, for the WITNESSES ANDEXPERTS I9
benefit of the Court with respect to this matter-yourown persona! view.
Mr. GERICKE:My persona! view?
Mr. GRoss: Yes, Sir.
Mr. GERICKE: Mr. President, I am not in a position to judge all
particulars; as I said before, I am nota political expert, but what I know
is this: that rights of people must be protected; the rights of people, say,
in Ovamboland, in the Transkei, must be protected; the same applies to,
say, Johannesburg or Cape Town-that is one point. For example, I
know that many of the White traders, people who are doing certain jobs
in the Transkei--cannot go on with that now, because those jobs are
reserved for the people in the Transkei. I think the same principle
applies also, say, in Johannesburg or Cape Town, the mines or in factories;
it is a question of certain privileges and rights that should be protected
on both sides.
Mr. GROSS:Do you mean, Sir-there has been some testimony on the
part of earlier witnesses to the effect that the protection of, let us say,
the Whites in the White economy, so-called, in the South West Africa
Police Zone justifies, or indeed perhaps requires, restrictions upon the
freedom or promotion of non-Whites, and that-I think the word
"reciprocity" was used to describe it in the course of questions-by
reciprocity \Vhite persans will be deprived of freedoms or subject to
certain restrictions in the non-White areas. This is the doctrine to which
you refer, Sir-the policy?
Mr. GEitICKE:That is right, Mr. President.
Mr. GRoss: Now, with respect to those non-\Vhites who are essential
to the economy and remain in the multiracial area, do you apply the
same doctrine of reciprocity, and if so, on what basis?
Mr. GER!CKE:Are you referring now to the ... ?
Mr. GROSS:I am referring to the non-Whites who spend their lives in
the so'-called White economy, and who live there and work there, are
born and die there.
Mr. GERICKE:Now Mr. President, one must look at the whole picture,
the total picture; the idea is to eventually develop all the Native areas
so that there will be ample opportunity for the Bantu in the Bantu areas,
ample opportunity-that is the goal that we have in view, and when that
building is completed it stands to reason that there will be protection of
the Bantu people in those areas, the same as there is protection in the
White areas.
Mr. GROSS:That, if I understand you, assumes total separation of
White and non-White; that assumes ultimate total separation of White
and non-White-is my understanding correct of your answer?
Mr. GERICKE:Not necessarily.
Mr. GRoss: It has been testified, and I do not mean, Mr. President,
to draw the witness into the area of economic life, but I am anxious to
establish the bounds of the Church doctrine to which the witness has
testified in clarifying this issue of what is meant by separate develop
ment ...
The PRESIDENT:Are you asking the Church doctrine, not the witness's
personal views, then?
Mr. GRoss: The Church doctrine at this point, Sir; I had asked the
witness's persona! view; I am now addressing myself, if I may, Sir, to
the Church doctrine with respect to the question of total separatio~,
which you testified was not the objective, as I understood it, and th1s20 SOUTH WEST AFRlCA
position of the Church's with regard to the non-Whites who are not
during their lifetime to be expected to return to or go to a homeland;
what, if anything, has the Church to say about the subjection of that
individual or those individuals to the restrictions upon the freedoms,
specifically the Job Reservation Act?
Mr. GERICKE: What has the Church got to sayon that?
Mr. GRoss: Yes, Sir-if anything.
Mr. GEIUCKE: No, I do not know of any resolution by the Church on
that.
Mr. GROSS: The Church has not, so far as you are aware, Sir, advertcd
to or taken a position with respect to this matter-that is correct?
Mr. GERICKE: Not as far as I am aware.
i\lrGROSS: \Vith respect to your persona! opinion on the matter, what
is your view, if you wish to expound it to the Court, with regard to this
matter-are you clear, Sir, what I am referring to?
Mr. GERICKE: What my view is on the Ban tu people in the cities ... ?
l\frGROSS: Being subject to job reservation or other restrictions upon
their ability to rise above a certain imposed ceiling.
Mr. GERICKE: Let me put it this way. Ilfr. President, as I see it, if this
policy of separate development is taken to the final goal-what the final
goal might be I do not know, but if it is taken to the final goal, then it
means that in a certain or certain parts of South Africa full rights and
privileges will be granted, say, to the Bantu people, and of course those
privileges will be protected in those parts, and in those parts which belong
to the White people certain privileges will be protected for the White
people; that is as I see it.
Mr. GRoss: So that, if I may, with the President's permission, press
you just one more notch, with respect to the inclividual who by the
hypothesis of my question lives, works and dies in the so-called White
economy and is subject throughout his life to the restrictions which we
have mentioned, do you, or do you not, have a persona! view with respect
to that situation?
i\lrGERICKE: I\Ir. President, all depends-does this question mean ad
infinitum?
Mr. GROSS: During his lifetime, yes.
Mr. GERICKE: For the future as far as we can see, if you mean that?
Mr. GRoss: Yes, Sir.
Mr. GERICKE: As I said, I am not a statesman, but I am going to try
to answer this question, Mr. President.
Mr. GROSS: Thank you, Sir.
l\frGERICKE: Once the Ban tu or Bantustans have bcen developed to
the full and there is a homeland for the Bantu people, the different Bantu
peoples of South Africa, and things are settled, and there is this mutual
understanding, I think it will be much easier to make some of these
regulations less offensive, ifthat is the word. You see, we are busy erecting
a building, and when you erect a building you have got to have scaffolding
to finish this building, but when this building is completed the scaffolding
will be removed, and I think much of the scaffolding will be removed in
the near future.
Mr. GROSS: CouId you explain the necessity for these restrictions during
what we may for the sake of this colloquy between us call an indefinite
transitional periocl, if you will accept that phrase; can you explain, Sir,
or how do you explain in terms of your answer the necessity for these WITNESSESANDEXPERTS 2I
restrictions upon the advancement of the non-White in the area of the
White economy?
Mr. GERICKE: Itis very difficult to say; I do not know, but I can think
of one reason. You know we have about a million immigrants, many of
them illicit, from territories all around South Africa swarming to the
cities. Now, you can just imagine, if there is no protection, you will get a
situation of strife and tension which would make it impossible for any
government to keep order in the country.
M:r.GROSS:These immigrants arc White immigrants?
Mr. GEJUCKE:No.
Mr. GRoss: They are non-White immigrants?
Mr. GEJUCKE:They are non-White immigrants.
Mr. GRoss: Could you explain, Sir, in what respect it would be difficult
to keep order if these immigrants or other non- White persans who had
livcd there a long time, let us say, were frce to rise on the economic
ladder according to their innatc capacity?
Mr. GERICKE:Can I, Mr. President, if the Court will allow me, ask,
can you imagine a position, say in Belgium or Switzerland, a million
immigrants from any other country who are shoved on the labour market
in, say, Switzerland, people who corne from other countries and who
perhaps are willing to do certain jobs, and would have a free choice-say,
for example, in the factories-and people are driven out of their jobs 111
that particular city or in that particular country as a result of this influx
of say a million labourers from other places, can you imagine what would
happen? \Vell, I cannot; I am sorry.
l\Ir. GROSS:l\lay I invite you now to transpose the question to South
West Africa, which of course as you know is the subject of these pro
ceedings. ln South West Africa, it has becn testified and it is undenied in
the record, that Job Reservation Acts and policies prevail as in the
Republic. Are you familiar enough with the situation in South West
Africa to comment, from your persona! point of view and analysis as a
leading churchman, theologian, on the restrictions which are imposed
upon the freedom of economic advancement in South West Africa,
imposed, that is to say, upon the inhabitants of the Territory, non-White
inhabitants?
Mr. GERICKE:I do not know any particulars about South West Africa
as far as the economy is concerned.
Mr. GRoss: Does the Dutch Reformed Church, so far as you are aware,
Sir, have any policy with respect to the scparate development in South
West Africa?
Mr. GERICKE:Pronounce any policy?
l\lr. GROSS:Yes, with respect to the policy of separate development in
South West Africa, has the Dutch Reformed Church issued any pro
nouncements on that subject, or taken a position on it?
Mr. GERICKE:No, as I have said before, the Dutch Reformed Church
has passed on a general principlc, nothing more, not mentioning South
West Africa, or South Africa, or Transvaal, or Natal for that matter.
Mr. GROSS:I should like, if I may, now to turn to a statement with
regard to this matter by Dr. Ben Marais. Are you familiar with the career
and works of Dr. Ben Marais, Dominic Gericke?
Mr. GERICKE:He is a persona! friend of mine.
Mr. GROSS:I will refcr to his work, well known I believe it is, The Two
Faces of Africa, published in Pietermaritzburg in 1964, and read, with22 SOUTH WEST AFRICA
the Courl's permission, the following from page 66 of Dr. Marais' book:
"In conclusion, I wish to stress to what degree the possibility of
making separate development a workable hypothesis poses a very
real moral problem. [And then Dr. Marais goes on to say] Today
we in South Africa are wont to justify all forms of discrimination
against certain groups, like job reservation, etc., onhe ground that
it is not unfair because the Coloured groups will ultimately enjoy all
these privileges and rights in their own areas as temporary sojour
ners in our midst they are not really part of White South Africa
and cannot claim these rights. They are not citizens but are only
allowed in to sell their labour outside the homelands but, and this
has become a serious matter of conscience to many in South Africa,
if we are convinced that millions of Africans, for instance, are among
us to stay, and many were bom here, the question arises, may we
still condone blatant discriminatory measures like job reservation on
the strength of a political philosophy that, in terms of actual trends,
shows no possibility of being realized?"
I should liketo ask you, if you wish, Sir, to comment on that statement.
Mr. GERICKE: I think I have commented on that a little while ago
when I said that adjustments will have to be made in the future. What
those adjustments will be I am not in a position to say. Adjustments will
have to be made in the future but I can see reasons for the present
system, protection, etc., as I have said before.
Mr. GROSS: You have, I think, Sir, used the term "offensive", in
quotation marks. \Vould you agree with Dr. Marais in the description of
job reservation as discriminatory, blatant?
Mr. GERICKE: No, I will not agree with him.
Mr. GROSS: Would you regard it as discriminatory?
Mr. GERICKE: It all depends on what you mean by "discriminatory".
Mr. GROSS: Would you care to define the term yourself, Sir?
Mr. GERICKE: Must I define it? ·
Mr. GROSS: Not if you do not wish to.
Mr. GERICKE: Well, I have got to discriminate in my own house, in
my own home, between the younger and older children. In that sense,
job reservation and many of these regulations, are discriminatory.
Mr. GROSS: Does the fact that it is imposed have any bearing in your
judgrnent on whether it is blatant or not, or unfair or not? The fact that
it is imposed by one group upon another, does that have any relevance
to the question in your mind?
Mr. GERICKE: But is there any way to work out a system or a pattern
of life other than imposing it?
Mr. GROSS: In that context there have been discussions, if I am not
mistaken, and I am sure that you will be quick to correct me if I am
wrong, as to the necessity perceived by some of the church leaders for
consultation between the groups in the determination of the common
destinies. Is that correct, Sir?
Mr. GERICKE: Yes.
Mr. GROSS: Ras the Dutch Reformed Church taken a position with
respect to such inter-group consultation on a political, economic or other
level?
Mr. GERICKE: Ras the Dutch Reformed Church taken part in it ail?
Mr. GROSS: Taken a position with respect to the desirability or other- WITNESSES AND EXPERTS
23
wise of such consultations among various population groups, with respect
to working out the economic and political and social pattern of the
country of South Africa: has the Dutch Refonm:d Church taken a position
on that?
Mr. GERICKE: The Dutch Reformed Church knows that there is
consultation.
Mr. GROSS:What form does such consultation take at the present time?
Could you give the Court an example or two, Sir?
Mr. GERICKE:Well, there are the Bantu authorities, Bantu Councils,
in the urban areas, and I know of many occasions where the .Minister
had consultations with these people, with these Councils. It has been
reported in our papers week after week.
Mr. GRoss: May I, in this connection, read to you, with the Court's
permission, an excerpt from the book by Dr. B. B. Keet, who I assume
is well known to you, Sir.
Mr. GERICKE:He was my professor, Mr. President.
Mr. GROSS:Professor Keet's book is entitled Whither South Africa?,
published in Stellenbosch in I956, by the University Publishers and
Booksellers Limited. Irefer in this connection to the following comment
by Dr. Keet on page 95 of his book and would invite your comment if
you wish to give itfor the Court's benefit. He says:
"All parties must have a share in these talks [and he is referring
to talks about the general development of the economic and political
social system and life of the Republic], not only the White political
parties but as broad a representation of non-\Vhites as possible. To
draft a plan that will meet with the approval of the majority of the
population there must be co-operation from those who are without
doubt most closely concerned. Without their co-operation there can
be no lasting racial peace."
Do you agree with Professor Keet that there should be consultations
among White and non-\Vhite political parties, looking towards the social
and economic lifer
Mr. GERICKE:Yes, Iagree ,vith the principle of consultation.
The PRESIDENT:Did Professer Keet say in that quotation that there
should be consultation between the White political parties and political
parties which were non-White? ·
Mr. GRoss: Yes, if Imay read the sentence again, Mr. President, for
clarification-do you wish me ta, Sir?
The PRESIDENT:Yes please.
Mr. GROSS:"AU parties must have a share in these talks, not only the
White political parties but as broad a representation of non-Whites as
possible."
The PRESIDENT:It does not say "non-White political parties" does it?
Mr, GRoss: No, Sir, this does not specify. May I ask, Mr. Gericke,
would you distinguish between non-White political parties and other
representatives of non-Whites for the purpose of the consultations for
which you have expressed a sympathy?
Mr. GERICKE:Must I distinguish between?
Mr. GROSS:Would you distinguish between non~\Vhite political parties
and non-White groups or individuals? Would you distinguish between
political parties and other forms of non-White representation in the
consultations for which you have expressed sympathy? SOUTH WEST AFRICA
24
Mr. GERICKE:Yes. I am in sympathy with the principle of consultation.
How it is to be carried out I do not know. If it can be political parties,
why not?
Mr. GROss: There is no reason to distinguish between the two so far
as you can see, Sir?
l\Ir. GERICKE:No, no reason for distinguishing.
î\lr. GROSS:Thank you. I would like to invite your attention now to
another problem which has emerged from the record and has been the
subject of testimony, and that is the question of migratory labour. Are
you familiar at ail, Sir, with the problem of migratory labour in South
West Africa as well as in South Africa?
Mr. GERICKE:More in South Africa.
Mr. GRoss: Do you know, Sir, whether the Dutch Reformed Church
has taken a public position with respect to the social and other problems
which arise from migratory labour?
Mr. GERICKE:The Dutch Reformed Church has brought it to the
attention of the Government that the migratory labour causes disruption
of family life.
Mr. GROSS:They have merely brought that to the attention of the
Govemment, you say, Sir?
Mr. G1mrcKE: Yes, we have.
Mr. GRoss: Has there been any comment for or against that?
î\frGERICKE:Yes, there has.
Mr. GROSS: And is it negative or affirmative, the attitude of the
Church?
Mr. GERICKE:Do you want me to go into the problem as a whole, Mr.
President? Then I can give the arguments for and against.
Mr. GRoss: May I focus this point because naturally we want to con
serve your energies and the Court's time.
The PRESIDENT:But the witness is entitled to answer the question,
Mr. Gross.
i\Ir. GRoss: I thought he had asked one.
The PRESIDENT:I don't think he did. Your question on the Church's
attitude was "Is it negative or affirmative?" And he seeks then to give
a rcsponse to that. If hc desires so to do let him do so.
Mr. GROSS:As the President correctly admonishes me, would you
please answer the question if that is your desire, Sir?
M.r.GERICKE:Weil, Mr. President, first of all, let us move out of South
Africa for a while. If a man bas to corne from Italy to, say, Amsterdam,
to work in Amsterdam, as many Italians are doing at the present mo
ment, and he has to leave his wife in Italy, naturally the Church is
worried about that situation. Now the same thing is happening in South
Africa; many people corne from the territories, but not only from the
territories within the boundaries of South Africa but also from Basuto
land, Swaziland, Bechuanaland, and also from the Rhodesias, many of
them corne to the cities to find work. Naturally the Church is worricd
about the position of these people who corne from the territories outside
South Africa and in South Africa when they have to leave their families
behind. But this is not only a South African problem, it is a problem in
many countries today. It is a choice between two evils. Either you have
to tell these people that you are not going to give them work in the cities
or you will have to find the housing for these people who corne to the
cities for work. You cannot subject the people to shanty towns and WITNESSES AND EXPERTS
25
everything that flows from that way of life, so you will have to build the
houses.
During the past ro years, the Government has been erecting houses
for Bantu people in the cities for more than 400 million rand, at the
rate of50 houses per day: it is very difficult to cope with the position.
More and more of these people are allowed to bring their families with
them if they get the houses. But this is the dilemma: it is South Africa's
dilemma at the present moment; it is also the dilemma of other countries,
as you know.
Mr. GRoss: ln respect of the migrant labour problem and policy in
both South Africa and South West Africa, I should like again, if I may
with the Court's permission, to read a brief extract from Dr. Keet's work
which I have quoted, this from pages 68-69, in which, on the subject of
migrant labour, Dr. Keet says as follows:
"One of the greatest evils in the broad context of our society
arisingout of our policy of apartheid is the system of migrant labour.
Under the pressure of economic factors, large numbers of non
Whites are forced to go into the service of the Whites and, in this
way, they have become an essential part of our economy in industry,
mining and agriculture. Employed originally by the gold mines,
migrant labour has corne to be regarded as an essential part of the
future development of industry within the general pattern of
apartheid. Since no non-White may have rights or privileges in
\Vhite areas, he has no chance of acquiring a permanent home and
he can be regarded only as a temporary migrant labourer who must,
in due course, return to his own territory, whether the reserves or
elsewhere. [And, then, I conclude the quote]In this way, the millions
who are already working among the Whitcs are being turned into a
non-White proletariat living under most unnatural conditions with
out the privileges of home or married life."
The testimony with regard to South West Africa is that, on the average,
approximately 30,000 migrant labourers are at present in South West
Africa. That is undenied in the record and appears in the Odendaal
Commission report at pages 39 and 41.
With respect to Dr. Keet's comments as to what he describes as "the
evil of migrant labour as a result of apartheid",to refer to his language,
do you care to comment either with respect to the position of the Dutch
Reformed Church or as to your own personal views, or both?
Mr. GERICKE:Mr. President, I do not agree with Professor Keet that
migrant labour is part and parcel of the policy of apartheid.
Mr. GROSS:You disagree with this premisc?
Mr. GERICKE:Yes. It is not part and parce! of apartheid.
Mr. GROSS:Would you care to address yourself to that portion of his
comment which relates to the two factors: (r) that the migratory labourer
may not and does not bring his family with him, and (2)that he is de
prived of rights and privileges in the area whose economy he serves.
Would you comment on either, or both, of those aspects of the migrant
labour system and its workings?
Mr. GERICKE:May I comment on themone at a time, Mr. President?
The PRÉSIDENT:One at a time.
Mr. GERICKE:Would you please repeat the first?
Mr. GRoss: The first question is with respect to the consequences,26 SOUTH WEST AFRICA
social, political, and, above all, moral in the context of the church or your
personal view, with respect to the enforced separation of the farnily
during the period while the migrant labourer is serving, in this case of
South West Africa, in the Police Zone.
Mr. GERICKE:Now, is the separation of the family, Mr. President (if
I may ask the question because I do not know about South West Africa-
1 know the position in South Africa), forced upon these labourers?
Mr. GRoss: \Vell, I do not want to get into an argument with the
witness. The undisputed facts on record (I think, Mr. President, there
can be no question about this)-on the record and in the testimony-are
that the migrant labourer from the north entering the Police Zone or
southern sector, as it is called, may not bring his family with him.
The PRESIDENT:Mr. Rabie, do you desire to address the Court?
Mr. R,rnrn: Mr. President, I regret that I feel that I must object to
this line of cross-examination. The witness bas said repeatedly that he
isnot au fait with conditions in South West Africa. He is now being cross
examined on economic conditions in South West Africa. I would suggest
to my learned friend that he puts his questions to somebody who pro
fesses to know something about the economy of South West Africa and
I feel that I must point out that my Iearned friend is putting those
questions when the witness has already told him that the system can be
regarded, or may be regarded, as an evil. He said that it was a question
of choosing the lesser of two evils. Mr. President, in my submission, this
can really lead nowhere. What can be the value of examining a persan
on an economic question when he starts off by saying that he knows
nothing of the economy of the country?
The PRESIDENT:Mr. Gross. The witness is qualified as an expert in
relation to the attitude of the Dutch Reformed Church in respect of
certain aspects of separate development or apartheid. He does not know
anything of the facts which you are putting to him regarding South West
Africa. Your questions do not appear to be directed to him in his capacity
as an expert. They are directed to him in his capacity as an individual
witness. Either he gives his evidence as an expert or he gives it as an
individual witness in relation to facts that he knows. ln what respect is
his testimony, either as a witness of factor as a expert witness, involved
in the questions which you are putting to him?
Mr. GRoss: I, Mr. President, would not wish to pursue this line of
enquiry. I had not realized as fully that the witness knew so little about
the policies with respect to South West Africa. I withdraw the question
I asked and I should like to pursue now a line of enquiry with regard to
more churchly matters, if I may put it that way, Mr. President?
The PRESIDENT:Weil, that may be better, I think.
Mr. GRoss: I may say, however, with the President's permission, that
in response to the comments of my learned friend the witness himself
testified conceming the church's support of the policy of separate devel
opment and I had endeavoured, Sir, to reduce it from an abstraction to
a concrete and clear programme so that we could examine the form of
support and the object of support of the church to which the witness had
testified. I should, however, like with the Court's permission, to pursue
the question on a broader basis and that is with respect to the policy of
separate development within the church and the views of the church as
expressed by certain churches and by the World Council of Churches.
In the first place, I should like to refer to the work of Dr. Visser WITNESSES AND EXPERTS 27
't Hooft, to which reference has been made both in the Reply and in the
Rejoinder, entitled The Ecumenical Movement and the Racial Problem by
W. A. Visser 't Hooft, which was published for and by Unesco, the
United Nations Educational, Scientific and Cultural Organization in 1954
in Paris. Dr. Visser 't Hooft expresses certain conclusions with respect
to what he describes as the (in his own terms, I read from p. 65, with the
Court's permission):
"... main points, on which there is a very wide, though not univer
sal, agreement, are the following: [And these are his conclusions,
and, with the Court's permission, I should like to read each of these
six conclusions and ask the witness to comment with respect to the
matter ifhe wishesJ...".
The PRESIDENT: Could I ask you again, Mr. Gross? You are asking
him to comment. Either he comments in a personal capacity or in relation
to his own knowledge of facts, or he comments in his capacity as an
expert. In what capacity are you asking him to comment?
Mr. GROSS: I would appreciate, Mr. President, by your leave, to ask
him to comment on either, or bath, and I will attempt, first to ask in
terms of the doctrine or pronouncement of the Dutch Reformed Church,
if any, and then with respect to his personal views as an expert in this
field if the witness wishes to respond.
The first is from page 65 of the work I have cited:
"The existence of separate ethnie churches cannot be defended
on the grounds of theological principle. Their existence can, under
certain circumstances, be justified for practical, pastoral reasons."
Would you, Sir, reflect or advise the Court what, if any, position the
Dutch Reformed Church has taken with regard to the question of the
defence of the existence of separate ethnie churches on grounds of
theological principle?
Mr. GERICKE: Theological and/or practical principles?
Mr. GROSS: Yes, Sir. If I may quote again "practical, pa!'!ctorarleasons"
is the expression.
Mr. GEmCKE: Mr. President, I can take you back to many missionary
conferences but I want to refer to one, the one at Tambaram in 1938
which saicl exactly the opposite of what Dr. Visser 't Hooft is saying in
that particular passage. There is a difference of opinion about this matter
in the churches of the world today, whether it can be theologically
justified or practically justified. Now, it is very difficult to distinguish
between a theological and a practical reason. If it is necessary to follow
a certain road for the benefit of the church, practically, then it would be
wrong to say it is theologically wrong to follow that road except if there
are definite principles of the Bible, Scriptural principles at stake.
Mr. GROSS: May I ask, Sir, by way of elucidation, if non-Whites are
excluded from participation in White services. Are they excluded?
Mr. GERICKE: From participation in White services?
Mr. GRoss: Yes, Sir.
Mr. GERICKE: ln the Dutch Reformed Church?
Mr. GROSS: Yes, Sir.
Mr. GEmCKE: They are not excluded. Three weeks ago I had between
three and four hundred non-White people in my Church at Stellenbosch
and the two speakers for the night were a Coloured persan and a Bantu
Minister. They were not excluded. SOUTHWESTAFRlCA
Mr. GROSS:Was this, may I ask, as part of or in the course of religious
services?
Mr. GERICKE:Yes, it was a missionary week and it was part of a
religious service-they were not excluded.
Mr. GROSS:May I refer to it, Sir, as a multi-racial service-is that
term acceptable to you?
Mr. GERICKE:Yes, for that ...
Mr. GRoss: Now, are multi-racial services permitted on certain stated
occasions or in connection with certain events?
Mr. GERICKE:Yes, they are permitted.
Mr. GRoss: Are they otherwise prohibited?
Mr. GERICKE:There is no church law prohibiting corporate worship
in our church.
Mr. GROSS:\Vould you say, Sir, that the admission of a non-White
person at his own request or volition to a multi-racial service is consistent
with the objective of avoiding strife, disorder, tension which you have
posed before as a reason for the establishment of separate churches?
Mr. GERICKE:Whether this would cause strife and tension-is that
the question?
Mr. GROSS:Ycs, Sir.
Mr. GERICKE:It did not cause it at Stellenbosch-1 do not know what
might happen say in a congregation in Johannesburg-it all depends on
local conditions.
Mr. GROSS:Thus, the emphasis would be, would it, if I understand
you correctly, on the practical pastoral reasons to which Dr. Visser
't Hooft refers. Would you say, Sir, now as an individual, as a church
leader and expert that there is a theological principle which favours multi
racial services or joint taking of communion, let us say-would you say
that as an individual, expert, theologian?
l\frGERICKE:It is difficult to precisely understand what you mean by
theological reasons-if you, the counsel, ask me, Mr. President, whether
there are scriptural reasons or scriptural principles, then I can answer
the question but it is difficult to precisely understand what you mean by
theological reasons.
Mr. GROSS:Weil Sir, I was referring to ...
Mr. GERICKE:... scriptural principles?
Mr. GROSS:No, Sir. I was referring to the phrase used by Dr. Visser
't Hooft which I have quoted-the phrase being "theological principle"
in a sentence which I may repeat with the Court's permission-"the
existence of separate ethnie churches cannot be defended on grounds of
theological principle"-this is the phrase, which I now address in the
question to you as an expert-does theological principle favour partici
pation of different races in common services?
Mr. GERICKE:Mr. President, that is the problem with this question;
there are people who give theological reasons for multi-racial churches;
there are people who give theological reasons for separate churches. If I
am an American citizen, most probably say in the north, I will find many
ministers who will give theological reasons for multi-racial churches and
ifI go to the south there might be people who tell me there are theological
reasons for separate churches but when you corne to scriptural principles
then I can answer the question.
Mr. GROSS:\Vell, Sir, I am at the moment ...
Mr. GERICKE:You sec my problem? WITNESSES AND EXPERTS 29
Mr. GRoss: Yes, Sir, of course, and I hope you see mine.
Mr. GERICKE: Yes, Sir.
Mr. GROSS: I would with the President's permission continue with
this line of questions addressed to the summation of Dr. Visser 't Hooft.
The second quotation which is under the heading, as I would remind you
Sir: the main points on which there is very wide if not universal agree
ment are the following-
"The formation of special ethnie churches must never be con
sidered as more than a very provisional solution of the problem of
nation and race in the christian church-the clear purpose must
always be to arrive as soon as possible at the creation of supra ethnie,
supra racial churches. In this matter, the sociological pattern of the
environment is in no sense a decisive argument against advance
along this line for the mission of the church is to point the way
towards unrestricted fellowship between men and women of all
nations and races."
Would you comment on that first, if you please, with respect to whether
or not the Dutch Reformed Church would have a policy compatible or
incompatible with that statement and secondly, your own persona! view
as an expert if you wish to express it to the Court.
Mr. GERICKE: I do not agree with a supra-ethnical church-I think
that is the view of my Church as well. The unity of the church is not to
be found in one organization or unity of organizations because then it
would be very difficult to have unity in Christ with people in another
country.
Mr. GRoss: So that if I understand you correctly, Sir, you disagree
with the basis of this point?
Mr. GERICKE: Yes.
Mr. GRoss: I should like to tum to the third of the points or may I
ask, by the way, could you advise the Court as an expert whether or
not the point just read with which you disagree both as an individual
expert and a member of the Dutch Reformed Church-whether or not
this doctrine as announced here or summarized by Dr. Visser 't Hooft
would be acceptable or more consistent with the viewpoint of the
Anglican and Roman Catholic Churches in the Republic of South Africa.
Mr. GERICKE: There will be difference of opinion in both the Roman
Catholic and the Anglican Church. .
Mr. GRoss: Have either or both of those churches, however, made
official pronouncements bearing upon the subject of a supra-national or
supra-racial church as the objective of the church's mission?
Mr. GERICKE: I do not know about any pronouncements but I know it
is a genera.l trend in that church to have a supra-ethnie church but there
are people who differ with that principle, in both churches.
Mr. GRoss: Do they, Sir, on theological or scriptural grounds?
l\fr. GERICKE: I am not in a position to say.
Mr. GRoss: I understand. The third point is "enforced segregation, the
refusal to admit persans into a Christian Church merely on the grounds
of race cannot be justified in any way"-would the Dutch Reformed
Church and would you as an individual expert agree ,v:iththat summation
that I have just read?
Mr. GERICKE: Enforced segration cannot be ...
Mr. GRoss: I will read it again-''enforced segration, the refusai to30 SOUTH WEST AFRICA
admit persons into a Christian Church merely on the grounds of race,
cannot be justified in any way".
Mr. GERICKE:Now, admit to a service in the church or admit to
membership because that makes a difference?
Mr. GRoss: Would you answer it, with the Court's permission, in both
contexts and explain the difference, Sir?
Mr. GERICKE:Mr. President, I have already said that on occasions
non-White people corne to rny Church and they are very welcorne there
-it happened a few weeks agQ-------,--itatmission to the Church service.
When it cornes to admission to rnembership then there is one point that
must be remernbered-supposing, if I may take the example, a number of
people, say ten Bantu people, were to corne to me in Stellenbosch from
the local Bantu congregation and want to become members of the Church,
then it is quite a different position. First of aIdo not want to rob the
local Bantu church of ten members; if ten members of the Anglican
Church were to corne to me-then I want to know the reasons why
they want to corne to the Dutch Reformed Church-the same would
apply here. But the Dutch Reformed Church in Stellenbosch, Bantu
section, need these people, they need them as leaders andI would consider
it a "stab of Brutus" if I accept those Bantus as members of the Dutch
Reformed White Church in Stellenbosch while they have their own
church. I must help the Bantu church to get on with the job and therefore
I am not in a position to rob them of ten or five mernbers.
Mr. GRoss: Excuse me, Sir, were you finished? The problem in that
respect then arises, if I understand you correctly, by reason of the
existence of this ...
Mr. GERICKE:Yes.
Mr. GROSS:... this young and perhaps struggling church. But for
the existence of that church would there be any other reasons or problems
that would arise, if let us say, a person, non-White, came to your Church
-a person who was nota member or affiliated with a Bantu church, who
does not for persona! reasons wish to be-would you have other reasons
for excluding him?
Mr. GERICKE:I have already given the information in my testimony
on that point.
Mr. GROSS:Which you do not care to elaborate ... I will look at the
record on that. The next point of Dr. Visser 't Hooft is as follows
"Where separate ethnie racial churches exist, there rests with these
churches a special responsibility to demonstrate in various ways that
they are in a real sense members of one and the same body."
Would you agree with that and would the Church agree with that?
.Mr.GERICKE: Iagree with that.
Mr. GRoss: The next point-
"This concern for the expression of supra-racial Christian unity
must find expression, not only at the level of national Synods or
Councils but must be particularly made manifest in regular contacts
between different local congregations and their members."
Would you comment on that both from the standpoint of the Dutch
Reformed Church policy and your own views as an expert?
Mr. GERICKE:Yes, there must be local contact and as a matter of
fact we have the local contact.
Mr. GROSS:There are also regular contacts between different local WITNESSES AND EXPERTS
31
congregations and their members-could you explain to the Court what
the nature of those regular local contacts is bctween the different con
gregations, White and non-White?
Mr. GERICKE: Mr. President, first of all, I am referring now to my own
congregation. \Ve have a missionary week every year-to these services
we extend a special invitation to all our local non-White congregations,
coloured and Bantu. Tuen, we have a committee consisting of members
of the church council of the coloured community and members of the
church council of the mother church community, which meet at intervals
to discuss problems of common interest.
Mr. GROSS: This would be at the local congrcgation levels?
Mr. GERICKE: Yes.
Mr. GROSS: Therefore, you agree with this principle.
Mr. GERICKE: At the top level I believe I said before, Mr. President,
that we have a Federal Council.
Mr. GROSS: And finally, this series of statements-"the final purpose
must remain to create churches and local congregations which manifest
the unity of men of all races and peoples in their common relation to one
and the same Lord"-that would be consistent, no doubt, with the
views both of the Dutch Reformed Church and your own view. The
question would arise I take it, would it not, Sir, as to the method by
which that principle or mission is carried out?
Mr. GERICKE: That is correct.
Mr. GROSS: The testimony which you have given according to my
notes, and I turn now to a somewhat different line of questions, with the
Court's permission, relates to the degree of autonomy or independence of
the daughter churches, as you referred to the non-White churches in the
Dutch Reformed Church. I should like to ask several questions about that
if I may. One of the questions I should like to elucidate, which I do not
believe you have covered, is whether in all of the non-White Dutch
Reformed Churches there exists full autonomy, in the sense that they
have ecclesiastical jurisdiction over White ministers serving within them.
Mr. GERICKE: That is so, Mr. President. The local church council has
the same authority in the daughter church as the local church council
bas in the White church.
l\frGROSS: The same degree of ecclesiastical jurisdiction over the
White ministers is exercised by the synods and councils of the non-White
church; do I understand you correctly, Sir?
Mr. GERICKE: Yes. Only one anachronism in this situation remains,
i.e.,that when a \Vhite minister or a White missionary has to be censured
-is that the word you use?- ...
Mr. GROSS: I would think so, Sir.
Mr. GERICKE: ... this bas to be done by the White church, which has
a special commission for that.
Mr. GRoss: Does that power extend ... or is it Iimited only to censure?
Does it involve, for example, removal or re-assignment?
Mr. GERICKE: No. It does not involve re-assignment.
Mr. GROSS: In other words, the White ministers serving in a non
White church could be re-assigned by the non-White church council?
Mr. GERICKE: In our Church we have a system where you are called to
another congregation by the church council of that particular congrega
tion, and you can accept it or reject it. That is also the position in the
Coloured and Bantu churches.32 SOUTHWESTAFRICA
l\fr.GROSS:With respect to White ministers as well as to non-White
ministers?
Mr. GERICKE:Non-White and White ministers.
l\fr.GRoss: Is that true also with respect to removal of White min-
isters?
Mr. GERICKE:Removal?
Mr. GROSS: In terms of discipline or expulsion from the church.
Mr. GERICKE:No. As I said before, we still have the anachronism that
the removal, in the sense of expulsion, rests with the committee.
Mr. GROSS: Are the original assignments made by the non-White
church authorities ... councils ... the original assignment of a \Vhite
minister to a non-White church, is that made by the non-White church?
Mr. GERICKE:The non-White local church council.
.M.r.GRoss: Finally, along this line, do the non-White churches have
non-White moderators and are all their highest office bearers non-White?
]\frGERICKE:Yes. They have non-White moderators.
J'llr.GRoss: And are their highest office bearers al! non-White?
Mr. GERICKE:Yes, with the exception of a few. I think there is a
secretary in Malawi, who is a White missionary and I think there is a
secretary in the Bantu church who is a White missionary .
.M.r.GRoss: These would be exceptions in your personal knowledge?
Mr. GERICKE:That is the present position.
Mr. GROSS:I should like now also to turn, with the President's per
mission, to your testimony with regard to the development-and I shall
be brief about this, l\Ir. President, with your indulgence-! should like
to refer to your testimony, which, according to my notes, indicated that
the development of separate churches was the result of the missionary
zeal of the nineteenth century and the wishes of the non-\Vhites. Am I
correctly paraphrasing your testimony?
l\lr. GERICKE:Yes. That is correct. This development came as the
result of a new effort by the White church to reach as many non-White
people at the Cape as possible.
Mr. GRoss: Now, is it correct, Dominic Gericke, that when these
questions were first raised in the middle of the nineteenth centurv there
was reluctance on the part of the churches to agree to the separation of
the churches?
Mr. GERICKE·Y . es, especb.lly on the part of the White church.
Mr. GRoss: Especially on the part of the White church?
l\frGERICKE:The \Vhite ministers of the church.
Mr. GROSS:This was what I was referring to-reluctance on the part
of the White ministers. And is it correct that, in the earlier attempts to
have separate services for the different races, the White church frowned
on the requests that were made by the \Vhite congregation for separate
services and separate churches? Is that correct?
Mr. GERICKE:I think there was a little frowning on that. That was at
the beginning of the nineteenth century.
Mr. GROSS: It was. According to my notes, Sir, this is from the report
of the ad hoc Commission for Race Relations, appointed by the Federal
Council of Dutch Reformed Churches in South Africa, and it has been
referred to, I believe, in the pleadings, but in any event, you are familiar
with that report, Sir. On page 6 of that report, the statement is made
that in 1855, 45 White members asked the church council of Stocken
stroem to serve them Roly Communion "on a separate Sunday" from WITNESSES AND EXPERTS 33
that on which non-Whites received the sacrament. Tuen the report
says-
"The church council refused their request on the grounds that it
conflicted with the formulary for the Communion service, the
Articles of faith and many passages of scripture."
Do you agree with the ruling of the church council I referred to?
Mr. GERICKE: Was it the White church council refusing admission to
45 non-White applicants?
Mr. GROSS: Yes, Sir, that appears on page 6 of the report of the
ad hoc commission~the words I have just read and quoted are from
page 6 of the report. Are you familiar w1th that section of the report?
Mr. GERICKE: Yes.
:11f.ROSS: This is what is reported. I cannot vouch for its accuracy.
Do you wish to comment as to whether you agree or disagree with the
ruling of the church council as reflected in this report?
Mr. GERICKE: Mr. President, it is very difficult to go back more than
a hundred years and know what were the reasons why this was refused.
It is very difficult. I do not think there is any report in history about the
reasons.
Mr. GROSS: I cannot say if there is or is not, Sir. I referred to it as an
excerpt from the report of the ad hoc commission. I take it that you
would not then care to comment one way or the other about that?
Mr. GERICKE: No, not for the moment.
Mr. GROSS: Further, may I ask you this as well? It would appear from
this report that the initiative was taken by the White members, or a
certain number of White members, of the church, who requested the
church council along these Iines. Now, would you care to comment, as an
expert, concerning the extent to which the separate services and the
separate churches arose as a resuit of initiatives taken by Whites, such
as is reflected in the excerpt of the report I have just read?
Mr. GERlCKE: At that time, Mr. President, as I have said before, very
few non-Whites joined the church. They were a small minority. Any new
idea or movement in the church came from the White people, but it is
historie fact that at that time there were Coloured people who had a
feeling of frustration because, as I said befon!, they were a minority
group; they had separate seats in the church, etc.; but the move came
from White people.
Mr. GROSS: The report, at the same page, at the same paragraph of the
ad hoc commission goes on to say that:
"Soon afterwards [that is soon after this incident to which I have
just referred] the European members asked that the Communion be
served to them on the same Sunday, but after the usual service, in
their cups and by their own clcacons."
This request was referred to the Presbyte!')' and the Presbytery of
Albany decided unanimously:
"that, as a concession to prejudice and weakness, it be recommended
to the church council of Stockenstroem to serve one or more tables
to the new or European members of the Communion after the
Communion had been served to the older members of the parish,
namely the non-Whites."34 SOUTI{ WEST AFRICA
The concession to prejudice and weakness-is that, Dominie Gericke,
a fair summation or description of any aspect of the creation of indigenous
churches in the Republic or of the holding of separate services today?
Mr. GERICKE: ls the question: whether this played a part when
separate services first came into existence, or separate churches?
Mr. GRoss: My question, Sir, is whether the view of the presbytery to
which I have referred, that the request of the White members of the
church would be granted as a "concession to prejudice and weakness"
whether that enters, in your judgment as an expert faced with the
problem, into the situation today both in respect to the separate church
and the separate service?
Mr. GERICKE:Mr. President, as I believe, if prejudice enters into this
matter, it is sinful and I cannot agree with it.
The PRESIDENT:Well, the question is-in your opinion, does prejudice
enter into the present separation of the churches into the mother church
and the daughter churches?
Mr. GERICKE:Mr. President, my opinion is that we have passed that
stage of prejudice in our church. lt must have existed, I think it did
exista century ago, but we have passed that stage. We believe in separate
churches for other reasons than prejudice.
The PRESIDENT:Would you say if the establishment of the church
was based in any sense upon prejudice, in your opinion, and ifso, when
did its foundation rest upon some other basis?
Mr. GERICKE: It is my opinion that it was not a decisive factor. It
could have been present, but it was not a decisive factor. The decisive
factor was that for two hundred years the Dutch Reformed Church tried
integration in the church, and, as I have said before, very few non-White
people joined the church, and when this awakening came and special
services were held for these people, then many of them joined the church
and in 1881 a separate church for Coloured people was established. Itis
always difficult to say what were the hidden motives of people in those
days but I know that there was very little success on the pattern of
integration and there was more success on the pattern of separate
churches. Itis from that date that our churches increased in numbers.
The PRESIDENT:Have you in recent years been made conscious of any
prejudice inside your own Church on the part of White people in relation
to Coloured and other non-White people?
Mr. GERICKE:Mr. President, I am so grateful that the one thing
happening in South Africa is that prejudice is dying out. In my own
Church, and I know that the same thing is happening in other churches,
we are preaching against prejudice and I think we have made a lot of
headway. I will not say that there is no prejudice in South Africa, as a
matter of fact, I do not think there is a country where you do not find
prejudice, but ifI had to answer the question, what is the main thing
that happened during the past ro, 15, 20 and more years in South Africa,
I would say, it is the dying out of prejudice in that country. That is my
impression.
Mr. GROSS:Mr. President, Ihave several more questions. \Vould it be
the pleasure of the President to allow me to continue tomorrow?
The PRESIDENT:Certainly, it can be continued tomorrow, Mr. Gross.
Mr. GROSS;Thank you, Sir. WITNESSES ANDEXPERTS
35
[Public hearing of2I September r965]
Mr. GROSS:Dominie Gericke, since the adjoumment of the session
yesterday I have had the opportunity to read the verbatim of 20 Sep
tember I965 and there are one or two points which I should like to
endeavour to clear up, with the President's permission, by reference to
the verbatim, in particular one point which I shall read. I refer to an
apparent confusion that arose between us-1 am sure it was my fault
on pages 32 and 33, supra, of the verbatim. I had asked you, if you
recall, for opinion regarding a ruling in I855 by the Albany Council of
the D.R.C. in connection with a request that had been made by certain
White members to the church council to serve them Roly Communion
"on a separate Sunday" from that on which non-Whites received the
sacrament, and then I quoted from page 6 of the report which I identified
as the report of the ad hoc Commission for Race Relations appointed by
the Federal Council of Dutch Reformed Churches in South Afr1ca. Page 6
of that report from which I quoted stated that:
"The church council refused their request on the grounds that it
conflicted with the formulary for the Communion Service, the
Articles of Faith and many passages of Scripture."
And I asked whether you agreed with the ruling of the church council
what your opinion was in regard to that ruling. Then you asked me, as
reflected in the verbatim at the top of page 33, supra, "was it the White
church conncil refusing admission to 45 non-White applicants?" I mis
understood yon, I am afraid, Sir, and said "yes, Sir" and then I referred
again to the quotation. Then ensued a short colloquy in which you said,
in response to my question, that you "would not care to comment one
way or the other aboutit for the moment"-I quote from page 33.
Now, I am anxious to clear this up in fairness to you and to the Court
because I am not certain whether you understood my question and the
request which I addressed to you for an expression of your opinion,
theological or scriptural, or both, particularly with respect to the reason
assigned by the church council which, if I may refresh your recollection
agam, "refused the reqnest on the grounds that it conflicted with the
formnlary for the Communion Service, the Articles of Faith and many
passages of Scripture". Subject to that clarification of the exchange
between us, would you now care to comment---express your views with
regard to the Council's decision and the basis for the refusa! as reflected
in the report?
Mr. GERICKE:Mr. President, at that time it was one church. As you
will recollect, it was before the Coloured church was established in the
Cape. I do not think it can be justified, when it was one church, to refuse
people the church building or the Communion Service.
Mr. GROSS:In other words, Sir, if I have understood you correctly, the
explanation, in your opinion, would be that the existence of only one
church would alter the scriptural basis of the decision?
Mr. GERICKE:The scriptural basis?
Mr. GRoss: Yes, Sir, may I remind you that the quotation in the
report states, if I may, Mr. President, read it just once more in that
relevant portion?
The PRESIDENT:It is at the top of page 33, supra.
Mr. GROSS:On page 33-yes, Sir. SOUTHWESTAFRICA
'The church council refused their request on the grounds that it
conflicted with the formulary for the Communion Service, the
Articles of Faith and many passages of Scripture."
I wondered whether you could shed light upon the rcasons which, from
the church point of view-theologically or scripturally-would have been
involved in such a decision.
Mr. GERICKE:Mr. President, it is very difficult to say because I know
of no text pertaining to the position when this particular church council
decided to refuse, or rather to have two separate services at that time.
I know of no scriptural passage pertaining to this particular position.
Ilfr. GROSS:Then, I think, if I understand your answer correctly, that
you have no basis for an opinion concerning ...
Mr. Gim1cKE: It is such a pity that when a church council makes such
a decision they do not sayon which particular scriptural basis. They did
not say and soit is very difficult for me to say what was the text if any
to which they referred.
Mr. GRoss: Thank you. Just in order to complete the record of the
history on this matter, in so far as it may be of interest to a full under
standing on the part of the Court with regard to the testimony regarding
the history of the separate churches, in the same report by the ad hoc
Commission on page 6 the report states:
"The Synod [and I will inject parenthetically that the decision of
the council to which I have just referred, quoted on p. 33,supra, of
the verbatim was appealed to the synod, which I presume is the
higher authority, and the report on page 6 states as follows:J con
sidersit desirable and scriptural that our members from the heathen
be received in and absorbed in to our existing congregations wherever
possible, but where this measure, as a result of the weakness of
some, impedes the furtherance of the cause of Christ among the
heathens, the congregation from the heathen already founded or still
to be founded shall enjoy its Christian privileges in a separate
building or institution."
Could you, Dominie Gericke, shed any light upon the reference in that
decision by the synod-the reference to the result of the "weakness of
some"? Would you have any elucidation of that for the Court?
:Mr. GERICKE:Mr. President, in my testimony yesterday I tried to
explain that it became clear to the Dutch Reformed Church that an
adapted form of preaching was necessary, even new hymns were neces
sary, on account of the difference of level of intellectual development, etc.,
-I refer to my testimony.
This "weakness of some", as far as I know, refers to that weakness.
Therefore, it was allowed, or permitted, by the synod to have a separate
service.
The PRESIDENT:Is this your interpretation?
Mr. GERICKE:That is my interpretation.
The PRESIDENT:Have you any factual basis upon which you base that
interpretation?
Mr. GERICKE:I think it would be very difficult to fi.nd any factual
basis. I have not, at any rate.
Mr. GRoss: I would like to point out to the honourable Court that the
report to which reference is made and which bas been the subject of
quotation, was a report of the ad hoc Commission for Race Relations WITNESSES ANDEXPERTS
37
appointed by the Federal Council. Could I ask you, Dominie Gericke,
did you participate in the work of the Council at that time, or in the work
of the Commission at that time?
Mr. GERICKE:Not at that time, Mr. President.
Mr. GRoss: I shall proceed, if I may, with the permission of the Presi
dent, to refer to the subsequent section of the report (andI refer now to
p. ro), in which the Commission sets forth what it calls a critical review
of the history, and Iquote in relevant part:
"From the above historical survey, it appears that the founding
of separate churches sprang from [then Iomit a paragraph]
(b) the fact that some European members preferred to attend
separate Communion Services, and to worship separately from the
non-Whites. Undoubtedly the motives here were grounded on social
and hygienic considerations and on the racial attitudes of the nine
teenth century."
Does this critical review of the Commission, in your expert opinion,
reflect a correct analysis ofhe reason (among others) for the establish
ment of separate churches?
Mr. GERICKE: No, it is not a complete analysis according to my
opinion.
Mr. GROSS:I have not represented it to be a complete analysis. I want
again, if I may, Sir, to point out that I am not reading the entire section.
I am concentrating, however, on this section that I have just read and
would appreciate it if you would wish to explain to the Court whether,
in your expert view, th1s reason, among others, is a true and valid critical
analysis or history of the foundation of separate churches?
Mr. GERICKE:Mr. President, could the reasons be repeated, please?
The PRESIDENT:The question could be less involved, Mr. Gross. Why
do you not ask him the question: was it, in his opinion, a factor that
operated to the establishment of separate churches?
Mr. GROSS:Did you understand the question, Sir?
Mr. GEitICKE:Was it a factor?
Mr. GRoss: Was it a factor? Yes.
Mr. GERICKE:I think it could have been a factor in those days.
Mr. GROSS:Do you have a view as to whether or not it continues to be
a factor toda y?
Mr. GERICKE:No. Hygienic considerations?
Mr. GRoss: The fact ... I will read it to you, if I may, again:
"The founding of separate churches sprang from, and among, the
factors 'the fact that some European members preferred to attend
separate Communion services and to worship separately from the
non-Whites. Undoubtedly, the motives here were grounded on
social and hygienic considerations and on the racial attitudes of the
nineteenth century'.''
I had asked you before, with the elucidation by the honourable
President, for your comment with regard to this factor and I am now
asking you whether you regard it as a pertinent factor to explain the
continued existence of separate churches, today?
Mr. GERICKE:I do not think there are any hygienic reasons at the
present time.
Mr. GROSS: Are there social considerations or racial attitudes which
enter into the continuation of the separate churches? SOUTHWESTAFRICA
Mr. GERICKE:At the present moment?
Mr. GROSS:At the present time, yes, Sir.
Mr. GERICKE:This must have entered into the debate in the course of
time. I do not agree with those arguments. I think there arc other argu
ments, as I stated in my testimony before, which are valid to me, but I
do not agree with those.
Mr. GRoss: You do not agree, Sir, with ...
Mr. GERICKE:With that statement.
Mr. GRoss: With this as a statement concerning the reason for the
original establishment of separate churches?
Mr. GERICKE:For the fact of separate churches as they are today.
Mr. GRoss: You believe that this was not one of the reasons for the
establishment of separate churches?
Mr. GERICKE:Mr. President, as Ihave said before, it could have been
a reason in those days.
Mr. GROSS:We have been discussing the contemporary situation and
I just wanted to be certain that we understood each other.
Mr. GERICKE:To be quite clear on this point-if the question was
asked, Mr. President, and I had to reply to that question-are you in
favour of separate churches because of hygienic reasons, social reasons
or reasons of ...
Mr. GROSS:Racial attitudes.
Mr. GERICKE:... racial attitudes? Then my answer would be: no, not
on those counts. There are other and better reasons which I gave in my
testimony yesterday.
The PRESIDENT:The question was really not that precisely. The
question first was whether it was a factor in the original establishment
of the separate daughter churches? To that you have given an answer.
Mr. GERICKE:I think so.
The PRESIDENT:The other question is, however it is put-is it a factor
today for the continued maintenance of separate churches?
Mr. GERICKE:It is nota valid factor.
The PRESIDENT:It is a factor in the minds of the White congregation?
Mr. GERICKE:I think you will find very few White people in our
Church who would consider that a factor.
M.r. GRoss: Shall I continue, Sir? The remaining single question I
should like to address to you on the basis of the report is again under the
heading of "Critical Review of History", in which the report states as
foUows, at page II:
"that the decision of 1857 and the founding of indigenous churches,
as well as the origin of the custom at that time that members from
a specific race could only join their own church, was a matter of
practical policyand not of principle is proved by the following ... "
and then set forth certain reasons, which unless you or the Court wishes
me to, I shall omit because the purpose of my question, if it is clear
enough, is---do you wish to express a view concerning the conclusion
reflected here that the founding of the indigenous churches, as well as the
origin of the custom at that time that members of a specific race could
only join their own church, was a matter of practical policy and not of
principle? .
Mr. GERICKE:Mr. President, I would be so grateful if Mr. Gross would
read the rest of that particular paragraph, where it is stated that this is WlTNESSES AND EXPERTS 39
in accordance with the church's view of the nature of the Church of
Christ on earth.
Mr. GRoss: I wocld be glad to ifthe President will pennit. To continue
the quote:
"is proved by the following:
(a) the families of European m1ss10narics and other Europe ans
often worship in the mission churches;
(b) the inclusion of two non-White congregations, St. Stephen's and
Stockenstroem, in the mother, European, church, and the
presence of their delegated elders at presbyterial and synodical
gatherings;
(c) the special services at some places which are attended by be
lievers from ail racial groups,
It is worth noticing that not one of the federated Dutch Reformed
Churches has ever legally, or in any other way, forbidden the Com
munion of believers from the various racial groups."
That is the end of the quote of the reasons and may I remind you,
Sir-it may be difficult to follow this lengthy quote-that these are
assigned as reasons which prove, in the words of the report, that the
founding of the indigenous churches was a matter of practical policy and
not of principle?
l\frGERICKE:Mr. President, in that same report-! wocld like to see
that report, I haven't got it here-it is stated by the ad hoc commission
tha t the founding ofsepara te churches was in accordance with the church's
view of the nature of the Church of Christ on earth-its diversity, etc.
The PRESIDENT:I am sure Mr. Gross will show you the document so
you can identify what he says.
Mr. GRoss: Yon say you do not have it with you?
Mr. GERICKE:Yon will have to give me timc for that of course. Can
we leave that for a while?
Mr. GROSS:With the President's permission, I would be very glad to
continue with another line to give the witness an opportunity to study
and fmd the portion to which he refers. .
Itum now, Dominie Gericke, to the testimony of yesterday, again in
the same verbatim and I refer particularly to your reply, which I will
quote in part, to a question addressed to you by learned counsel, in
which you state as follows; on page 9, supra, of this verbatim, in which
you are describing the respects in which the system is benefi.cial to the
adherents of the church, that is, to have the separate churches, you say:
"First of all, this system provides full opportunity for self-develop
ment for the members of the daughter churches. All officesare open
to them. [And then in the next paragraph-I skip several sen
tences-you say :]
The separated churches realize and appreciate the fact that they
are not merely an appendix of the WhiteChurch but churches equal
in status. This has really engendered a spirit of co-operation, of
mutual respect and of neighbourliness. They can now meet their
White brothers in the church as equals. [And then you concluded
that answer by saying:] The present relationship between the
mother and the daughter churches is one of mutual respect and
readiness to co-operate."40 SOUTHWESTAFRICA
Now, I would like particularly to emphasize, for the purpose of my
question to you, the two sentences, respectively: "All offices are open to
them" and, secondly: "They can now meet their White brothers in the
church as equals." Would you care to elaborate, before I proceed, what
you had in mind when referring to the fact that all offices are open to
them. To whom were you referring, Sir?
Mr. GERICKE:To the members of the non-White congregation.
Mr. GROSS:You meant, Sir, that all officesin the church were open to
them, as non-White members of the congregation?
Mr. GERICKE:Yes.
Mr. GRoss: Does this mean, Sir, that offices are not open to non
White members of the church in the White section, or White churches,
of the Dutch Reformed Church?
.Mr.GERICKE:Before the separation, Mr. President?
l\Ir. GRoss: I am talking about the present tirne, if that is what you
were referring to, Sir.
Mr. GERICKE:The meaning of that passage is as follows, Mr. President.
When we had a multi-racial church, that was before 1881, when there
were non-White members in the congregation. I know of no case where
a non-White was chosen as an elder or a deacon. They were a minority
group. They found themselves in a minor position in the church. The
office-bearers were White people. When the new church came into being,
it stands to reason that there was more opportunity and this opportunity
was utilized; cldcrs and deacons were chosen and eventually they had
their own ministcrs. That is all I have to say.
Mr. GROSS:If I understand you correctly, Sir, you were not referring
to the present time?
Mr. GERICKE:No.
Mr. GROSS:Then we have said that all offices are open to them?
.Mr.GERICKE:No. \Vell, it applies to the present time, all offices are
open to them now, in the non-White church.
Mr. GROSS:i\Iy question, Sir, is, or was intended to be, whether at the
present time officesare open to non-Whites in the "WhiteDutch Reformed
Church? Are any offices open to non-Whites in the White Dutch Re
formed Church?
Mr.GERICKE:No, they are not members of the White Dutch Reformed
Church.
Mr. GROSS:Now, may I ask, if this is not a hypothetical question,
whether any non-Whites are members of the White church-are there
any members of the White Church who are non-White?
Mr. GERICKE:No, as I said, Mr. President, I know of no case where a
non-White became a member of the White church.
Mr. GROSS:The fact that all offices in their own church are open to
them would follow from the fact that there are separate non-White
churches?
Mr. GERICKE:Yes.
Mr. GROSS:Is it the point, Sir, that you were implying here thatitis a
reason for separate non-White churches that if they were multi-racial
churches, they would not be eligible for office?
Mr. GERICKE:Oh, they would be eligible but it would not be easy.
Mr. GRoss: Why would it not be easy, Sir?
Mr. GERICKE:l\Ir. President, I think I explained this point: the non
White people (and I was referring to history), were in the minor position WITNESSES ANDEXPERTS
in the White church. \Vhen this new church was formed, which is a very
strong church today, these offices were open to the non-White people and
to them alone.
Mr. GRoss: Yes, Sir. Now would you bring that down to the present
time-contemporary life of the church-would you comment on whether
or not-1 am referring to your testimony, Sir, and attempting to elucidate
it for the Court-whether or not it is implied in your statement that ail
officesare open to them as a reason for having separate churches and if
you did not have a separate church, but have multi-racial churches, the
non-Whites would not be either eligible for office or would not receive
office-is that the implication?
Mr. GERICKE: It is a hypothetical question-! do not know what
would happen if the Dutch Reformed White Church and the Dutch
Reformed Coloured Church became one church tomorrow or the day
after. Mr. President, it is very difficult to foretell the future buI see
itthe level of intellectual development, even at the present moment is
such that very few of the non-White people would become leaders in a
multi-racial church. We hope that in the future this difference in level of
intellectual development will disappear-in the near future.
Mr. GRoss: Then your testimony is that one of the reasons, perhaps a
principal reason for this advantage that you see in the separation is that
the non-\.Vhites generally have not achieved a level of accomplishment or
ability which enables them to compete on equal basis with Whites-is
that what you are . . . ·
Mr. GERICKE:Yes, the competition.
Mr. GRoss: And it is in that respect that you feel the existence of
separate churches will offer more opportunities of advancement so to
speak-is that correct?
Mr. GERICKE:That is the reason, Mr. President.
Mr. GROSS:Now is it not true, Sir, that the English-speaking churches
which, if I am not mistaken-correct me on this, claim substantially more
non-White adherents than the Dutch Reformed Church-is that not
correct, Sir?
Mr. GERICKE:Yes.
Mr. GRoss: That the English-speaking churches, as I understand it,
believe that while it may be practically expedient for Whites and non
Whites to worship separately, they are all members of the same commu
nity and should share in the government of the Church. Is that a correct
version or analysis of the attitude and policy of the English-speaking
church?
Mr. GEHICKE: Y es.
Mr. GROSS:And is it correct that in the great majority of the con
gregations of these churches, although they do worship in separate
buildings, White and non-White ministers and laymen deliberate and
vote together in synodical meetings-is that correct so far as you are
aware?
Mr. GERICKE:Yes, that is correct but, Mr. President, I must point
out-I am very reluctant to talk about sister churches in South Africa
as you can appreciate, but I must point out that in the English churches
very few non-White members become leaders.
Mr. GROSS:Among those few, as I understand it, Dominie Gericke (I
will not press you for comment or analysis of the church in which you
are not ordained, and in which you do not profess expertise, and if you42 SOUTH WEST AFRICA
do not know as a matter of fact whether what I ask you is correct or not
of course I shall not press the point) but is it true to your knowledge that
the Methodist Church of South Africa has had an African or Bantu
President who is the executive or administrative head~the Reverend
Seth Mokitimi during the current year-do you know whether that is
correct?
Mr. GERICKE:Yes, I know the man.
Mr. GRoss: And do you know if office bearers in that Church are
elected by non-racial annual conference-do you know whether that is
correct, Sir?
Mr. GERICKE:That is correct.
Mr. GROSS:And is it correct, if you know, whether the Anglican
Church has had an African or Bantu Suffragan Bishop-the Right
Reverend A. Zulu since I960-is that correct, Sir? You do not know, Sir?
Mr. GERICKE:No.
Mr. GRoss: That is according to the information I have; in any event,
it would appear would it not, Sir, that there are possibilities for advance
ment to high church positions as well as multi-racial or non-racial
synodical or other ecclesiastical sessions in which the other churches do
participate and is part of their policy-isthat not correct, Sir?
Mr. GERICKE:That is correct. Mr. President, with reference to the
Reverend Mokatimi who became Moderator-if that did happen, without
theelection being agesture, I will be in favour of it but there must beno
gestures, no paternalizing in the church-1 am against that-I am
reluctant to make any further comment.
Mr. GROss: Do you have any comments, Sir, with respect to the policy
of multi-racial meetings for synodical purposes in the English-speaking
churches-would you care to comment on that as a policy?
Mr. GERICKE:No, I do not think so.
Mr. GROSS:You, I think, testified, if I am not mistaken, Dominie
Gericke, that one of the reasons why the Dutch Reformed Church sup
ported separate ethnie churches was in order to avoid friction and
tension-is that not correct?
Mr. GERICKE:That is correct.
Mr. GROSS:We are dealing here with one society. Is that, in your
expert view, a source of tension and friction unique to the membership
of the Dutch Reformed Church or is it something that you feel would be
of general applicability?
Mr.GERICKE:Mr. President, if this would be an answer to the question,
I can just say that I know that there is friction and tension in some of
the English churches as a result of this particular matter.
Mr. GROSS : There is throug hout?
Mr. GERICKE:There is friction.
Mr. GROSS:I shall, with the Court's permission, go into that very
shortly, but before we reach that I would like, if I may, to go back to the
other excerpt I quoted from your testimony on page 9, supra, of the
verbatim record of yesterday in which you said as folJows; "They can
now meet their \Vhite brothers in the church as equals"-I wonder
whether you would be good enough to elucidate in what sense you used
the term "equals" in that answer.
Mr. GERICKE:Mr. President, when we meet in, say, our Federal Coun
cil, we meet as ministers of the different churches, elders of the different
churches, deacons of the different churches, leaders of the different WITNESSES ANDEXPERTS
43
churches. Before we had separate churches there were no coloured leaders,
they did not have the opportunity to develop into leaders. But when they
had to shoulder the burden and take the responsibility of their own
church, then these leaders developed and now the leaders can meet you
as equals-that is ail I meant by that particular phrase.
Mr. GROSS: "Equals" in tenns of church relationship is all you meant?
Mr. GERICKE:Yes.
Mr. GRoss: There again would you care to express an opinion, without
pressing you to do so, with regard as to whether or not in the other
Protestant and indeed the Catholic Church, the White and non-White
meet as equals although in the same church.
Mr. GERICKE:Whether they meet as equals?
Mr. GRoss: Yes, in the sense in which you used the term.
Mr. GERICKE:Yes, I would imagine they meet as equals.
i\lr. GRoss: You would imagine that ...
Mr. GERICKE:Yes-1 do not know.
Mr. GRoss: Now I should like, if I may, Mr. President, to go to the
source, and present to the witness the report of a Commission appointed
by the Christian Council of South Africain 1952 entitled "Race-What
does the Bible say ?"-are you familiar with that report, Dominie
Gericke?
Mr. GERICKE'Y . es, I have read it but it was about ten years ago.
Mr. GRoss: I wi.11not tax your memory with it-1 would, wi.th the
President's permission, like to read from it. Is not, as I believe Sir, the
Christian Council of South Africa the Council of all Protestant churches
in South Africa other than the Dutch Reformed Church, which I under
stand is nota member of the Christian Council, as are ail other Protestant
churches?
Mr. GERICKE:The Dutch Reformed Church was a member.
Mr. GROSS: Itwas a member-when did it leave?
Mr. GERICKE:I am not sure-it must have been in the late 1940s but
I am not sure.
:il-fr.GROSS:I should like to read brief excerpts which you may com
ment on in your capacity as an expert or otherwise if you wish. First
may I read from the foreword by the Archbishop of Cape Town as follows:
"At the present time, the Black population is very much larger
than the White but practically all political power is in the bands of
the White man and the White man's relation to the Black man is
complicated by fear. He needs the Black man's labour; the econom
ics of the country are based upon cheap Black labour and the Black
man desires employment in industry. It does not seem possible that
the races can be kept apart but the White man is most reluctant to
admit the Black man to any kind of equal partnership---he keeps
political power in his own hands; he keeps the more skilled forms of
labour in his own hands; he desires to avoid so far as rnay be social
contacts with the Black man and his motive is not merely greed
he is anxious to safeguard what he calls 'western civilization' and he
dreads race and mixture. These arc the conditions under which the
Christian bodies in South Africa have to work and in the face of the
problems produced by these conditions, Christian opinion is not
united."
Would you care to comment, assuming that you would agree readily SOUTHWESTAFRICA
44
that Christian opinion is not united-you do, I suppose, agree to that?
Mr. GERICKE:Yes.
Mr. GRoss: Would you care to comment with respect to the Arch
bishop's analysis of the conditions under which the Christian bodies in
South Africa have to work and the role of the Church in dealing with
those conditions? Do you accept what I have read as substantially a fair
and correct analysis of the situation?
The PRESIDENT:Mr. Gross, this cross-examination seems tome to be
not leading us anywhere at all. I drew attention yesterday~the witness
is a witness either as to the factor as to the doctrine and the practice of
his Church. You are now reading to him a large amount of observations
made by some distinguished representative of another church.
Mr. GRoss: Yes, Sir.
The PRESIDENT:What is the fact that you are seeking to ask the
witness; in what respect is the evidence you are seeking to elucidate by
your questions a matter within his competence as an expert, and if it is
within one or the other, it seems to me you are not entitled to read a
large slab from somebody else's observations which are for the most part
political in content and ask him to comment-that is not cross-exami
nation.
l\lr. GROSS:Yes, Sir. May I attcmpt to respond to the President?
The PRESIDENT:Yes, certainly.
Mr. GRoss: The witness yesterday, in response to a question by leamed
counsel, stated as one of the fonctions and missions of the Dutch Re
formed Church the support of the doctrine, the policy, of separate
development. The witness has been asked and, with the Court's permis
sion, I intend to pursue the line of enquiry based upon the testimony
which he gave concerning his Church's support for the policy of scparate
develoJ?ment; and, with respect, Sir, my line of questioning and the
quotatJon from which I have just rcad by the Archbishop attempting to
define problems of a fellow Christian church as he saw them, as a respon
sible leader, was, it seemed tome, with respect, relevant to elicitingfrom
the witness what is meant by separate development in his terms, and
what the fonction of the Dutch Reformed Church is in espousing it and
influencing the Govemment to further it. I, with respect, would feel that
this is a matter which is relevant to his testimony and elucidates the
meaning attached by the Church for which he speaks and his own expert
view conceming separate development. This, of course, is an over
elaborate answer, but I felt obliged to explain what my effort was, Sir.
The PRESIDENT:l\fr. Gross, the Court will not stop you from asking
questions, but it does not appear tome that you can quote a large extract
from anybody's observations or anybody's work, and then ask a witness
to comment; how is that putting a question to a witness? Surely the
question must be put to him: does he agree with this statement and
with that statement, and if he does not, express why he does not, but to
ask him to comment upon a whole number of allegations it seems to me
is not cross-examination, and I do not see it is going to assist the Court.
Mr. GRoss: I will, if I may, then, tum to the body of the statement, of
the report of the Commission to which I am referring, and ask you, ifyou
will, Sir, to state your opinion regarding the following comment in the
report; it is on page 25:
"But, as has already been said, spiritual unity in the Church
cannot remain merely spiritual, it must show itself at least within WITNESSES AND EXPERTS
45
the Church in outward fellowship between Christians of different
races, social status or sex; and if Christians of different races meet in
fellowship within the Church, can they refuse to mix when they
meet each other outside the Church in the affairs of the world?
Unity in Christian fellowship must inevitably spread into fellowship
in secular activity. "
Do you wish to comment on that, and express your opinion with regard
to that?
Mr. GERICKE:Yes. Mr. President, if Mr. Gross would be so kind-there
are different aspects of that problem, there are several statements made
on that particular page-1 will be willingto answer them one by one.
Mr. GRoss: Certainly, Sir, with the President's permission. May I put
the central question this way:
"... if Christians of different races meet in fellowship within the
Church, can they refuse to mix when they meet each other outside
the Church in the affairs of the world? Unity in Christian fellowship
must inevitably spread into fellowship in secular activity."
That is the heart of the statement?
Mr. GERICKE:That is true, Mr. President.
Mr. GRoss: This you do agree with, Sir? And finally, in the conclusions
of the report under the heading of "Conclusion and Application", the last
conclusion of all on page 28:
"The problem of the person is more ?-CUtelyencountered in race
relations. When the Negro or the Asiatic is treated simply as an
instance of a racial type, he is merely representative, not unique as
an individual. His personal identity is lost in his racial status, and
his freedom is restricted by the generalizations about his race."
I will pause there, if I may, Sir. Do you understand this conclusion which
I have just read in part and will complete, if I may, to reflect the view
held by Protestant Churches, perhaps including yours, that the treat
ment of a groupas such tends to submerge the identity of the individual,
and that, in the words of this statement, his ])ersonality becomes sub
merged and he is not respected as a person?
Mr. GERICKE:Mr. President, that is always a danger, when you are
treating a group, to submerge the individual, and that is a problem of
race relations ail over the world.
Mr. GROSS:Would you state it, Sir, as one of the objectives and policies
perhaps of the Dutch Reformed Church to encourage in the social life of
the Republic the regarding and treatment of individuals regardless of
race as individuals rather than as members of groups?
Mr. GERICKE:Mr. President, it is very diffi.cultto answer that question
because a man is a member of a group, and you cannot easily dissociate
yourself frornthe group you belong to. There is a danger in the world-in
South Africa, everywhere in the world-that in emphasizing the group
you forget about the individual; that is always a danger-right through
history this was the case, but there is also the opposite possibility, Mr.
President; by emphasizing the individual you may neglect the group. It
is a question of proper balance.
Mr. GROSS:Do you find it considered as a matter of Church doctrine
or policy to give a higher priority to the group or the individual as a
principle of religion or morality? SOUTH WEST AFRICA
l\lrGERICKE: Yes, Mr. President. The group is important, and more
important.
Mr. GRoss: The group is more important than the individual?
Mr. GERICKE: Yes. If I have to make sacrifices as an individual, I have
to make those sacrifices in favour of the group. Is that what you mean?
Mr. GROSS: Weil, I would invite your own views, Sir. Of course the
question arises, then, perhaps you would comment on whether or not it
is relevant who determines what sacrifices shall be made?
l\Ir.GERICKE: Mr. President, perhaps I can refer to a statement by
Dr. Snetlage, who said: "lt is not what is desired by the individual, but
what is desirable for the community as a whole that should be the guiding
rule in politics",and I agree with that statement.
Mr. GROSS: Does the doctrine require, or if you wish to state it in terms
of policy of the Church or your own expert view, whichever you care to
employ, or both, that, with reference to the individual who is a member
of a group, and whose innate qualities and capacities bring him above
the group level, that it be a social objective to further the interest of the
individual and to allow him to accomplish his lifc in accordance with his
capabilities?
Mr. GERICKE: Mr. President, I am sorry, the question is not clear.
Mr. GROSS: The question is not clear-may I repeat it? Would it be
a matter of Church policy, if you care to express it in those terms, or
your own view whether an individual whose innate capacities are higher
than the level of his group, whether it is the objective of the Church and
of the social order to permit him to accomplish his life in accordance
with his innate capacity and ability? Do you understand my question,
Sir?
Mr. GERICKE: Whether I agree with the statement that he should be
enablcd ...
Mr. GROSS: To fulfil his capacity.
Mr. GERICKE: Yes, I agree with that.
Mr. GRoss: He should not be called upon to make a sacrifice merely
because he is a member of a group---would you agree to that?
Mr. GERICKE: No,I cannot agreewith that,Mr. President-! am sorry.
Every individual has to make sacrifices because he is a member of a
group.
Mr. GRoss: At what point does, if it is possible to answer this in the
terms in which we are discussing it in this colloquy, an individual who is,
let us say, qualified to reach the top of his profession-atwhat point is it
appropriate from the ethical and moral point of view to impose a ceiling
upon his accomplishment?
Mr. GERICKE: No, that is not right, I do not agree with that-that is
not ethical.
Mr. GROSS: You disagree with that as a policy?
Mr. GERICKE: Yes.
Mr. GRoss: This is an aspect, is it not, of the job reservation laws?
Mr. GERICKE: Mr. President, as I explained before, if a man has a
ceiling in Johannesburg, and that man has no ceiling in Umtata, then it
is not an infringement on his rights.
Mr. GRoss: Are you through, Sir?
Mr. GERICKE: Yes.
Mr. GROSS: Is it not correct, Sir, that approxima tely two-thirds of the
Bantu or African population live in rural and urban "White areas"- WITNESSES AND EXPERTS
47
many of them for generations-and that many of them are detribalized?
Is that a correct statement, Sir?
Mr. GERICKE: Mr. Chairman, as I explained before, this is the aim and
goal of the policy of separate development, to make it possible for a man
to attain the highest rung on the ladder in his own country, his own
homeland.
Mr. GRoss: Yes, I think, with allrespect, and I believe it must fairly
be said, that you made it clear that that was the objective of separate
development. However, I would invite your attention to my question
which I should Iike to attempt to clarify. I am speaking now about the
individuals, of whom, I believe, there are some 8 million, if I understand
correctly, who live and work in so-called "White" urban and rural areas
-many of them have, for generations, and many are de-tribalized and
have no homeland and they have been born where they live. Now I am
referring to those persons and Iam asking you, Sir, to express the view
of the Church, or your own view, or both, with respect to the ethical and
moral considerations pertaining to the imposition of ceilings upon the
accomplishment of such individuals, who spend their lives in the area
we are discussing.
Mr. GERICKE: Mr. President, as I explained yesterday, there are certain
hardships which have to be endured en route to the goal. I want to quote
Dr. Snetlage again, a well-known writer on the subject of ethics: "Hard
ships are justified when avoiding a greater hardship, and when there are
no other viable ways to avoid that greater hardship."
Now, as I pointed out before, Mr. President, we are erecting abuilding.
The scaffolding which is necessary for that building, will disappear in
time. To complete the picture there are hardships to be endured on the
way.
Mr. GROSS: Would it not be then the essence of your analysis and of
your justification of the hardship, as you say, that the objective, the end
goal, is atotal separation of the races in separate areas?
Mr. GERICKE: That the end is a total separation? I answered that
question before-I said, not necessarily.
Mr. GROSS: If the goal is not the total separation of races, then, by
necessary logic (I assume you will agree), there will always be non-Whites
working and living in the so-called "White areas", serving a "White
economy". Is that not correct, Sir?
Mr. GERICKE: That is correct.
l\fr.GRoss: Now with respect to those individuals-if we may refer
to those and concentrate on them-what relevance is there to their lives
and fortunes in the fact that, in homelands, something or other is
happening, that Whites are being frustrated or any other conditions
exist? \Vhat is the ethical or moral explanation, or justification, for im
posing ceilings upon these persons to whom we are referring?
Mr. GERICKE: Now are you referring to de-tribalized ... ?
Mr. GRoss: Yes, Sir.
l\frGERICKE: \Vho have not any homeland?
Mr. GRoss: Yes, Sir.
Mr. GERICKE: Now, Mr. President, I think I said before that when this
building-if you would allow me to call it a building-is completed, we
all hope and pray that it will be easier to make concessfons. As a matter
of fact, that is what the Prime Minister said in 1961, in a speech in
Parliament, that certain regulations will fall away on the way. I do not SOUTH WEST AFRICA
know, }Ir. President, which regulations will fall away-I am not the
political prophet-but I hope that in the process of completing the
building certain regulations will become unnecessary and will full away.
;\lr. GROSS:Dominie Gericke, in 1952 the Federal i\lission Council of
the N.G.K. (the Dutch Reformed Church) stated that its ideal-I am
quoting from the record which appears in the "Racial Issue in South
Africa", published by the Dutch Reformed Mission Press in 1953 (what
I am rcferring to appears on pp. 4-8, but I will just givc a very brief
sentence): "... presupposes a long-term policy of 50, or even IOO years,
and ... by no means excludes the employment of Native labour for the
economic machine of the Europeans for many years to corne." \Vould
you share that analysis of the Federal Mission Council of the N.G.K. in
the respect which I have just quoted?
Mr. GERICKE:That I share the opinion, Mr. President, that it will
take 50 or roo years?
Mr. GROSS:It may take 50 to roo years.
Mr. GERICKE: Itis very diffi.cultto say, Mr. President. I only hope that
it will not take as long as that. That is all I can say.
Mr. GRoss: If there is a reasonable possibility that it might take as
muchas a generation or two, or three, would that affect your view or the
view of the Church with respect to the lifting of ceilings upon the accom
plishment of the non-White because of his race?
Mr. GERICKE:Mr. President, if this would take 50 or roo years, adjust
ments will have to be made. That is my opinion.
Mr. GROSS:Has the Dutch Reformed Church taken a public decision
with respect to the time dimension of this problem in supporting the
policy of separate development?
:llfr.GERICKE:Mr. President, the Dutch Reformed Church bas urged
the Government that the development of territories (I am referring to
the Bantu homelands) must be speeded up. At the 1956 Conference at
Bloemfontein it was one of the resolutions to request the Govcrnment to
speed up the process.
Mr. GRoss: May I ask you whether you had a reply from the Govern
ment?
Mr. GERICKE:There is always a reply when you write a letter to the
Government. I have not seen the letter, but I have seen the speeding up
of the process. That is ail I know.
Mr. GRoss: Could I press you again, Dominic Gerickc, for your view,
asan individual expert and churchman-would your view with respect
to the moral or ethical implications of the Job Reservation Acts be
affected by your perception of how much time it will take to accomplish
the end result? If you felt that it would take 50 years, would you have a
different viewabout the matter than you do now?
Mr. GERICKE:If it would take 50 years, I am convinced in the course
of time that the Church will ask for certain concessions .
.Mr. GROSS:Would you care to advise the Court what public state
ments, if any, the Church has made with respect to the matter of the
time element in accomplishment, specifically, if any?
Mr. GERICKE:No. The Church did not mention a deadline to the State
-the Church only asked the State to speed up the process, that is ail.
il!r. GROSS:With respect to the views of the Dutch Reformed Church
regarding the matter of job reservation, still spcaking about that, I
should like if Imay to refer now to the Cottesloe consultation, and, Mr. WITNESSES AND EXPERTS
49
President, if I may identify that for the record, from 7 to I4 December
1960 a consultation was held by representatives of the World Council of
Churches and the eight churches in South Africa that were members of
the World Council at that time; and is it not correct, Sir, that the latter
included then the Dutch Reformed Churches of the Cape and the Trans
vaal and the Nederduits Hervormde Kerk? This consultation was held at
Cottesloe in Johannesburg at that time, was it, Sir?
Mr. GERICKE: That is correct, Mr. President.
Mr. GROSS: Were you present at that conference?
Mr. GERICKE: No, I was not present.
Mr. GRoss: Is it correct, so far as you know, that these three Dutch
Reformed Churches were fully represented at that conference?
Mr. GERICKE: They were represented in this sense, that a number of
leaders from all these Churches were invited to the conference.
)Ir. GRoss: And they attended, did they, Sir?
Mr. GERICKE: They attended the conference.
Mr. GROSS: Certain resolutions were adopted by the conference with a
minimum of 80 percent. of those present voting in favour. Do you know
whether that is correct, Sir?
i\[rGERICKE: That is correct.
!llrGROSS: I should like to read to you the resolution with regard to
certain economic aspects of the policy of scparate development or apart
heid, and request your opinion with respect to them. I first will read
resolution No. 13, which appears at page 75 of the report of the con
sultation, which reads as follows: "The present system of job reservation
must give way to a more equitable system of labour which safeguards the
interest of ail concerned."
Would you say that that is an objective which the Dutch Reformed
Church agrees with?
Mr. GERICKE: ;\fr. President1 have already given my opinion on this.
When looking at the total picture, one must judge this system in the light
of the possible alternatives. If a better and a reliable alternative could
be found every South African would rejoice, I am sure of that. The
Cottesloe consultation did not suggest such an alternative.
Mr. GROSS: Is it known to you to be a fact whether the World Council
of Churches bas made other pronouncements on this subject, or perhaps
it would be fairer to ask whether you are familiar with the report of the
Second Assernbly of the World Council of Churches of August 1954?
Mr. GERICKE: I have read it-a long time ago.
Mr. GROSS: I think, Mr. President, 1 will not press the witness with
respect to this resolution. 1 would, however, like to revert at this time to
the Cottesloe consultation, since there are one or two other matters there
which I should like to have in the record at this point.
In addition to the resolution No. 13, which I have read, with regard to
job reservation, the Cottcsloe consultation adopted the following resolu
tion, No. 15:
"It is our conviction that the right to own land, wherever he is
domiciled, and to participate in the government of his country is
part of the dignity of the adult man, and for this reason a policy
which perrnanently denies to non-White people the right of collab
oration in the government of the country of which they are citizens
cannot be justified."50 SOUTHWESTAFRICA
\Vould you, Sir, comment with respect to this resolution. Before you do
so, however, may I. for the sake of completeness and to remind you, Sir,
refer to the fact that in approving this resolution No. 15, which I have
just read, a special statement was made by the representatives of the
N.G.K. as follows:
"We do not consider the resolutions adopted by the consultation
as in principle incompatible with the above statement [which I shall
read].In voting on resolution 15, the delegations of the two Churches
[that is, the Cape and Transvaal] recorded their views as follows:
'The undersigned voted in favour of point 15, provided it be
clearly understood that the participation in the government of
this country refers in the case of White areas to the Bantu, who
are domiciled in the declared White areas, in the sense that they
had no other homeland.' "
This was signed by the delegations of the N.G.K. of Cape Province and
Transvaal, and I should like to ask whether this reflects the viev.rpoint,
the policy, of the Dutch Reformed Church, or whether you, as an individ
ual or an expert, wish to express an opinion thereon.
Mr. GERICKE: Mr. President, there are two points. First of ail, that
the right to own land is part of the dignity of an adult man. I have to
comment on that point first. Mr. President, ifthis is truc it may seem to
indicate that this statement implies that human dignity becomes im
possible where you have nationalization of land, or communal land
ownership. I am not prcpared to subscribe to such a statement or such an
inference. That is the first point.
Mr. GROSS: Do you wish to continue or may I ask you a question
about that? Whichever you prefer, Sir.
Mr. GERICKE:Yes, please do.
Mr. GROSS:Apropos of the testimony which you have just given, if I
understood you correctly you referred to nationalization of land or
communal ownership. What opinion would you express with respect
to land which is neither nationalized nor communally owned but
the ownership of which is Jimited by law, or reserved by law, to \Vhites
only?
Mr. GERICKE:Mr. President, do you refer to the Ban tu people of South
Africa? Because that is the point here. Through all the years they have
been used to communal land ownership, as you know. I do not know
what the position will eventually be in the non-White territorics of South
Africa. This is for the Bantu people to decide. But supposing the position
was open, say, in the Orange Free State, for Bantus to buy land, it -.vould
be only just that the position would be open for White people to buy land
in the Transkei. That would be just, not so? I am asking this question. If
that is taken as a just arrangement then the following must happen.
White people with capital will go to the Transkei, which is a very beauti
ful country, as you know, and will buy up the land. You cannot allow
that. But if you do allow the Bantu people to buy land in the Orange
Free State then you have to allow White people to buy land in the
Transkei.
Mr. GROSS:How many White people live in the Transkei?
Mr. GERICKE:There must be about six, seven or eight thousand.
Mr. GROSS:What is the total population, do you know offhand, Sir?
Mr. GERICKE:About two million. WITNESSES AND EXPERTS
SI
Mr. GRoss: And in the urban areas, what is the ratio of the non-White
to the White? Can you tell the Court?
Mr. GERICKE:No, I am sorry, I have not seen the exact figures.
.Mr. GROSS:The figure which I suggested to you earlier, which is the
figure which Ibelieve is reflected in the record, is the ratio of something
Iike two-thirds of the Black population of South Africa live in the urban
areas, approximately eight million persans according to my information.
It may not be correct, Sir. If the figure is wrong, I cannot vouch for it,
if you do not know it, I will not press the question.
Thcre is, however, no doubt, is there, that a substantial majority of
the population of the urban areas is non-White? Do you have that
knowledge?
Mr. GERICKE:Yes, that is so.
J\lr. GRoss: Now, in connection with the balance of justice-and we
are talking now, I think, are we not, Sir, about the morality and equities
in justice, of your view on this matter and of the Church-is it then
entirely a question, in your view, of reciprocity which accounts for the
fact that no non-White in this majority, in the urban areas, is permitted
to own land or acquire the fee to real estate?
Mr. GERICKE:Yes, Mr. President, it is a question of reciprocity.
l\fr. GROSS:And is it then possible that the Church would have a
different view ifthe relative numbers were before it, with respect to the
numbcr of Whites in the Black areas who would be affected and the
number of Blacks in the White areas who would be affected? Would that
make a difference with respect to your view or the view of the Church?
Mr. GERICKE:l\lr. President, I am sorry but I am not clear on this
question.
Mr. GROSS:The numbers involved are quite disparate, are they not,
Sir? There are some millions of non-Whites in the White areas, so-called,
many of them permanently resident there. There are some thousands of
Whites in the Transkei. This is correct, is it not, Sir? I sav does the
disparity of numbers have any bearing upon the question ot"the justice
or morality of this reciprocity upon which you rely to justify the policy
in question?
l\Tr.GERICKE:I do not see how it has any bearing.
Mr. GROSS:Mr. President, I gather that, with your permission, Sir,
the witness would like to rèfcr to the report which you now have had a
chance to study. ls that correct, Dominic Gericke?
Mr. GERICKE: Yes, Sir.
Mr. GROSS:With the President's permission, would you have any
comments which you wish to make with respect to the matter we dis
cussed?
The PRESIDENT:He would like to identifv some passage he was
previously referring to? -
;\fr.GROSS:Yes. l\fr. President.
Mr. GERICKE:On page 14 of this sam~ report-
"That the founding and development of independent indigenous
churches for the purpose of evangelizing the native races of South
Africa was bath necessary [and this is important] and in accordance
with our understanding of the nature of the Church of the Lord
Jesus on earth and has been richly blessed in the many years that
have passed."52 SOUTH WEST AFRICA
Mr. GROSS:Thank you. I am certain that the Court will appreciate
the elucidation. Is there any further reference you wish to make to the
report, because I do not intend to refer toit again?
Mr. GERICKE:No, Mr. President.
Mr.GROSS:As we draw towards the close of this examination, Dominic
Gericke, there are several points which pcrhaps should be or might well
be clarified with respect, first, to certain testimony you gave yesterday
in the verbatim, on page 34, supra, in response to a question addressed
to the witness by the honourable President, which I take the liberty of
quoting: ''Weil,the question is-in your opinion, does prejudice enter into
the present separation of the churches into the mother church and the
daughter churches?" And the witness's answer is as follows:
"Mr. President, my opinion is that we have passed that stage of
prejudice in our church. It must have existed, I think it did exista
century ago, but we have passed that stage. \Ve believe in scparate
churches for other reasons than prejudice."
And, then, in order just to complete your recollection. Dominic Gcricke,
on the samc page of this transcript, in response to another question by the
honourable President, you stated:
"Mr. President, I am so grateful that the one thing happening in
South Africa is that prejudice is dying out. In my own Church, and
I know that the same thing is happening in other churches, we are
prcaching against prejudice, and I think we have made a lot of
headway. [And then you went on to say, if you recall, Sir:] I will
not say that there is no prejudicc in South Africa, as a matter of
fact, I do not think there is a country where you do not find preju
dice, but if I had to answer the question, what is the main thing that
happened during the past IO, 15, 20and more years in South Africa,
I would say, it is the dying out of prejudice in that country. That is
my impression."
I wanted, with the Court's permission, to be certain that you had that
response clcarly and fully in mind.
Would you agree, Dominic Gericke, that the analysis upon which that
testimony is reflected would enter rather substantially in the determina
tion as to whether or not the policy of apartheid is moral or conducive
to the social progress of the inhabitants?Do you understand my question,
Sir?
l\frGERICKE:Yes, Sir.
Mr. GRoss: Would you express your opinion concerning the validity,
from a moral, ethical point of view, and the point of view of social
progress, of the policy of apartheid if this assumption, which you have
testified to, were incorrect? Would you care to answer that?
I\fr. GERICKE:If the assumption?
Mr. GROSS:That prejudice is dying out and is not, as I unrlerstood
your testimony, a major element in the situation in South Africa at the
present time?
Mr. GEHICKE:Would that have . , . I am sorry.
l\fr. GROSS:It is quite all right. I will try to state it briefItseems to
me, with ail respect, that the point is crucial and vitaJ. The church has
supported the policy of separate development or apartheid-is that
correct? WITNESSES AND EXPERTS
53
Mr. GERlCKE: That is correct.
Mr. GROSS: Is the support of that policy by the church-does that
support reHect the analys1s or premise that prejudice does not exist or is
dying out and that apartheid does not reflect prejudice, or is not mo
tivated by prejudice? ls this a correct statement? .
Mr. GERICKE: Yes, that is a correct statement.
Mr. GROSS: Of your point of vicw, Sir?
Mr. GER!CKE: Yes.
Mr. GROSS: The question I addressed to you was whcther the policy of
apartheid, from a moral point of vicw and from the point of view of the
promotion of the social, moral welfare of the inhabitants, would be af
fected for good orillon the basis of the opinion concerning the existence
of prejudice in the Republic?
Mr. GERlCKE: Prcjudice can affect any policy, Mr. President, and can
spoil any system.
:Mr. GROSS: To the extcnt that I woulcl not want to go too far in a.
hypothetical direction, I think however that it is fair, perhaps, if the
President agrees, to ask you whether the premise, from which you
proceed-that prejudice is dying out-is what plays a part in the support
of the policy of apartheid or separate development-that premise, does
that play a part in the support for that policy?
The PRESIDENT: Do you understand the question?
Mr. GERICKE: Mr. President, I am so sorry. I understand the words
but it is not clear tome.
Mr. GROSS: Perhaps we may approach it from an entirely different
point of view. I am sorry, Sir. Mr. President, I apologize for my obtuse
form of questioning.
I woulcl ask you, Dominie Gericke, to express your opinion concerning
the following statement by Dr. B. B. Keet in his work which I citecl
yesterday Whither South Africa?, as follows, on page 13. Dr. Keet says:
"It is indeed tragic to see how on ail sicles colour has become the
dominating factor in our assessment of human relationships. It is
hardly an exaggcration to say that aman's worth is often measured,
not by his innate qualities, but by the colour of his skin. That this is
really our attitude needs no prooL Everyone who lives in South
Africa is aware of it and yet there arc good Christian Africaners who
choose to speak of a 'wholesome' colour ccmsciousness that would
enable all, even the colourecl races, to be proud of their colour. Such
people live in a dream world of wishful thinking."
Would you express your opinion conceming the validity or otherwise
of the role which Dr. Keet ascribes to the "consciousness" of colour, as
he calls it, in the assessment of human relationships in South Africa?
Mr. GERICKE: Mr. President, I do not agree with Dr. Keet that colour
has becomc a dominating factor in the arrangement of affairs in South
Africa. It is Jess of a dominating factor.It was a vcry dominating factor
in days gone by.
Mr. GROSS: At the present time, would you express your view con~
cerning the extent to which, let us say, the Jobs Reservation Acts
lcgislation rcflects a fcar or a concern or prejudicc or any of thesc with
respect to the compctition of the non-White?
Mr. GERICKE: !\fr. President, I have given my opinion on the Jobs
Reservation. I want to stand bv that opinion. I have no other opinion on
the Jobs Reservation Act. • SOUTHWESTAFRICA
54
Mr. GRoss: You feel that you have responded to the question I have
just asked in other terms.
Mr. GERICKE:Yes.
Mr. GROSS:\Vell, could I ask you, Sir, whether the problem of the
political rights of the non-Whites is based upon, or does it reflect in any
way, in your view, an attitude of White towards non-White based upon
colour distinctions?
Mr. GERICKE:Mr. President, I must stress this point.
As I have said before, one must look at the whole picture. South
Africa is trying to supply homelands for the different groups because
South Africa believes that this is the best arrangement. Now, ifyou want
to make this arrangement, namely to supply homelands for the different
groups, it stands to reason that in the meantime you cannot open all the
gates. Supposing we were to open the gates in South West Africa-for
example, so that the Ovambo would be allowed tobuy land in Windhoek,
or to vote in Windhoek-then you would have to allow V/bite people
to buy land in Ovamboland and to vote in Ovamboland. This must be
seen also as an historical development. The territories set aside for the
Bantu people at the present moment were the same territories occupied
by these people 50 years ago. Then came the industrialization of the
country and the Bantu people came to the cities. They came from all
parts of Southern Africa and from beyond our boundaries.
Now, if you had to open the gates and give political rights, therîitwill
never be possible to work out this policy of separate development.
Mr. GROSS:Would you apply what you have just testified to, or does
it apply in terms of your testimony, to the millions of non-Whites who
reside permanently in the so-called White area?
Mr. GERICKE:Mr. President, yes, on condition that you qualify the
word "permanent".
Mr. GRoss: Let us say, fm life, if you wish to.
Mr. GERICKE:Yes. I have grown up in South Africa and I frequently
go to all the territories and to our mission churches in the cities and I
meet many Bantu people. Mr. President, I must testify that I have never
met a de-tribalized Bantu in South Africa. They all belong to a tribe.
Mr. GROSS:Do you regard, Sir, that the Dutch Reformed Church, in
its support of the policy of separate development and its influence upon
the Govemment to further that programme, regards the non-White who
resides or is domiciled in the \Vhite area-urban or rural-as a citizen
of the Republic?
Mr. GERICKE:As a citizen of the particular group?
Mr. GRoss: Of the Republic?
i\IrGERICKE:No.
Mr. GRoss: You cannot answer? I am sorry.
Mr. GERrCKE:Mr. President, may I give an example? During the recent
elections in the Basutoland there were thousands of Basutos in Johannes
burg in the Free State working on farms but when this election took place
in Basutoland-which, as you know, was a British Protectorate-these
Basutos ail voted in this particuJar election in Basutoland. They main
tained their unity with Basutoland as Basutos. Now, the same happened
at the election as far as the Transkei is concerned.
Mr. GROSS:Sir, I am not certain that we understand each other in
terms of my intended question. I am referring, if you will please bear
with me, to an individual non-White who, let us say, has been born in the WITNESSES AND EXPERTS
55
outskirts of Johannesburg, just to take the place arbitrarily, has been
brought up there, has never been to a so-caHed "homeland", and now
works there and presumably will die there-taking such an individual
they exist, do they, Sir?
Mr. GERICKE:Yes.
Mr. GROSS:Taking such an individual, non-White, in that circum
stance-does the Dutch Reformed Church in its support of the doctrine of
separate development regard that individual non-White, as a citizen of
the Republic of South Africa?
Mr. GERICKE:Mr. President (if you will permit me), if you do not look
at this picturc as a whole it is impossible to find a solution. What would
happen if you had free franchise in Johannesburg, allow the Bantus who
livein Johannesburg to have a vote there and you were to give the same
rightto the Whites in the Bantu homelands, then to me it is clear that
it would be impossible to carry out this policy of separate development
and give each race his own homeland. Itwould mean an integrated White
section of the country and an integrated Black section of the country.
Mr. GRoss: .Sir, I now, still within the area and directed to the point
of your testimony yesterday that the Dutch Reformed Church supports
the policy of separate devclopment and urges the Govemment to ad
vance and promote it-in that context, I now ask the view of the Church
and, if you care to express it, your view as an expert concerning the
following quotation by Dr. Keet in the same book on page 47, the volume
Whither SouthAfrfra?, and I will read it with the President's permission
slo wly:
"The core of the political problem is the question of the vote, the
declared policy of our country expressed by the (dominant) White
vote is that of apartheid. Itdoes grant the non-Whites some say in
the Government of the Country but in such a way that for the
purpose of exercising their rights, they are treated as a group while
the Whites are treated as individuals and on a geographical basis."
I will pause there and ask whether you agree with that statement by
Dr. Keet which I have just read.
Mr. GERICKE:No, I do not agree with that, Mr. President. When
Dr. Keet differentiates in that way, namely that in the case of the Whites
they are treated as individuals and in the case of the non-White people
they are treated as a group, I cannot agree with him.
Mr. GRoss: You would not express it that way, Sir? Would you express
your view with respect to the extent to which a non-White is regarded as
an individual from the standpoint of franchise voting rights?
Mr. GERICKE:Mr. President, I am sorry I ...
Mr. GROSS:Does an individual ... I gather you were going to ask me
to clarify the question, Sir, I did not want to interrupt you. If an individ
ual non-White has achieved a degree of education and capacity, let us
say to practise law, or to preach the gospel, or teach, and is therefore
qualified as an individual by normal standards to exercise the right of
citizenship, includingthe right to vote, does the Dutch Reformed Church
have a policy with respect to supporting his right to vote as a citizen of
the Republic given his individual qualification?
Mr. GERICKE:The Dutch Reformed Church is in favour of the principle
ot separate development. Now, the Dutch Reformed Church has not
given any view in this particular instance of a man who has become a SOUTH WEST AFRICA
minister and here I can only give my opinion. Mr. President, if the policy
of separate development is to be carried out and you have open franchise
in the White sector of South Africa, then the homelands will have to be
open too and then the ultimate picture will be impossible. Supposing
there were political rights of the kind you were referring to in the Free
State and a Bantu could vote and buy land there, etc., then it stands to
reason that in the Transkei voting must be open to White people, and
the acquiring of land must be open to White people, and naturally they
are going to take full advantage of that-the people who have the capital
to do so. Let us move away from South Africa just for a moment; in
South West Africa there is no law prohibiting a coloured man or Ovambo
to buy land in the rural areas at the present moment-no law prohibiting
that-but as far as I understand hardly any Ovambo or coloured man or
Herero is making use of the privilege of buying land, say, in Keetmans
hoop district.
Mr. GROSS: Sir, we have had testimony and evidence with respect to
the rights and limitations of the sort you mention and I would like if I
may, with the President's permission, to corne back to the question I had
intended to pursue with you. I am referring again to the policy and the
basis of the policy of separate development as it applies to an individual
non-White who spends his entire life in the so-called White area. One of
the difliculties I have in explaining myself, I fear, is that when we try to
focus on that individual as such, we hear usually about reciprocity or
homelands but the individual to which I refer and which I request, if
you will be good enough, to express the view of the Church and your
view as to his moral welfare and his social progress is an individual person
who spends his entire life living, working and bringing up a family in the
so-called White area-what of that individual? This is the person I am
talking about-how is he affected by homelands or reciprocity or
whether a vote is denied some place else?
Mr. GERICKE: Mr. President, in answering this question I must raise
a point. If the policy of separate development is to be carried out, you
have to take groups into consideration-individuals living, say, in
Johannesburg, are connected to their group in the homeland and the idea
of this policy isto supply all the privileges in a Bantu homeland.
Mr. GRoss: Whether or not he in fact ever returns; if he does not return
or has no prospect of returning or even going to perhaps the homeland
he has never seen, how does that affect his life-----that there are rights
granted or withheld in some distant place in which he does not live and
does not work-do I make my question clear?
Mr. GEmCKE: Mr. President, you see what my problem is-suppose
he should get political rights; suppose the one-and-a-half million Bantus
in Johannesburg should get full political rights in Johannesburg-could
this policy of separate development be carried out? .
Mr. GROSS: Are you referring, Sir, to separate development w1th
respect to the individuals living in Johannesburg?
Mr. GERICKE: Yes.
.M.r.GROSS: With respect to separate development, is the concept
applied to Whites and non-Whites living and working side by side in the
same economy; does the doctrine of separate development also apply to
that situation?
Mr. GERICKE: Yes, it does.
Mr. G Ross: And now, if we refer to that aspect of the policy of separate WITNESSES ANDEXPERTS 57
development in that particular context-would you be good enough to
explain what the major incidents or consequences are where the Wlüte
and the non-\Vhite, living side by side and working in the same economy,
are granted dissimilar privileges on the basis of race. \Vhat is there in
respect of the Church support of separate development in that context
which in your view justifies the deprivation of the right and the limitation
of the freeclom?
Mr. GERICKE:Mr. President, if separate development could not give
any promise for the eventual self-realization, also politically, for every
persan in South Africa-if it could not give any promise for the realiza
tion of self-development and self-realization, also politically, then
separate development is unacceptable. It must Jead to that situation of
equality.
Mr. GROSS:If self-development and self-realization of every individual
isthe objective then, in the context of your reply, would it not presuppose
total separation of the races geographically?
Mr. GERICKE:Mr. President, my answer to that one was-not neces
sarily. May I explain-1 think I did explain it partly yesterday-when
this building is completed, when we have the homelands for every tribe
and every race and when these homelands are developed and as you know
they are being developecl at high speed now-when these homelands are
enlarged, and they are being enlarged considerably at the present mo
ment, when this picture is completcd and there still remain people, say in
Johannesburg, concessions, as I have said before, will have to be made
for those people politically and otherwise-I can give no other answer
to that question.
Mr. GRoss: \Vell, I will not press you, Sir. I think that perhaps we
have covered that as adequately as seems possible under the circumstan
ces. I should like to move on to a conclusion, Mr. President. The refer
ences I shall make are two-one to the World Council of Churches and
to the British Council of Churches and ask in each case your opinion with
respect to whether the Dutch Reformed Church agrees or disagrees with
the pronouncements of these Protestant Chmches and if you wish your
own persona! view with respect thereto. The first is a resolution adopted
by the second assembly of the World Council of Churches which met in
Evanston, Illinois, in the United States in August 1954, and the first
resolution reads as follows:
"The second assembly of the World Council of Churches declares
its conviction that any form of segregation based on race, colour or
ethnie origin is contrary to the Gospel, and is incompatible with the
Christian doctrine of Man and with the nature of the Church of
Christ. The Assembly urges the Churches within its membership to
renounce all forms of segregation or discrimination, and to work for
their abolition within their own life and within society."
I pause there, and ask you, if you will, Sir, to indicate to the Court the
extent to which, ifany, this reflects the doctrine or approach of the
Dutch Reformed Church and your own view if you care to express it.
Mr. GERICKE:Mr. President, the D.R.C. does not agree with that
statement.
Mr. GRoss: For reasons which you consider that you have already
explained in this testimony?
Mr. GERICKE:Yes. SOUTHWESTAFRICA
Mr. GROSS:Or do you wish to elaborate with specifi.creference to this
resolution, or have you said ail you wish to sayon the matter, Sir?
Mr. GERICKE:No, I think I have said what I want to say.
Mr. GRoss: That is only a portion of that resolution; I shall not read
the rest; I do not think it affects the significance of the fi.rst part with
which you have expressed disagreement in any event.
The second resolution reads as follows, and I should like similarly to
ask your view concerning the D.R.C. attitude toward the policy and
your own, if you wish to express it:
"This Second Assembly of the World Council of Churches re
cognizes that one of the major problems of social justice in situations
involving racial and ethnie tensions is that of securing for all the
opportunities for the free exercise of responsible citizenship, and for
effective participationby way of franchise in both local and central
government activity. It commends this matter to the attention of
all Chrjstian people for such action as, under God, they may be led
to take in order to secure the solution of this problem."
That is the end of the resolution. Would you comment on that, Sir, if
you will?
Mr. GERICKE: Mr. President, would Mr. Gross just read the first
sentence again?
Mr. GROSS:Of course, ifthe President permits:
"This Second Assembly of the World Council of Churches re
cognizes that one of the major problems of social justice in situations
involving racial and ethnie tensions is that of securing for all the
opportunities for the free exercise of responsible citizenship, anfor
effective participation by way of franchise in both local and central
government activity."
Mr. GERICKE:If that was the truth, and the whole truth, and nothing
but the truth, the unqualifi.ed truth, then it would be very difficult to
understand the position in the United States of America. There you have
free franchise, but you still have tensions, you still have your problems
in Los Angeles. If free franchise was the cure-all for tensions, then one
should not have tensions in the United States of America.
Mr. GRoss: Sir, do you wish to comment any further on this?
Mr. GERICKE:No thank you, Mr. President.
Mr. GROSS:With respect to the situation in South Africa, would you
care to elaborate on what you have previously had to sayon the subject
of voting rights or citizenship rights in the context of this resolution?
Mr. GERICKE:No elaboration, Mr. President.
Mr. GROSS:Is it correct that the Dutch Reformed Churches of the
Cape and of Transvaal terminated their membership in the World
Council of Churches in 1961?
Mr. GERICKE:That is correct, Mr. President.
Mr. GROSS:Do you think, as an expert and Churchman, that a reason,
or perhaps the chief reason, which caused these Dutch Reformed Churches
to disaffiliate from the World Council-was their disagreement with the
World Council on the racial question?
Mr. GERICKE:Mr. President, there were two main reasons for this. At
that time in 1961 the Church was nearing the end of a long road, the
Dutch Reformed Churches in South Africa-the long road of union. We
had :fivedifferent White Dutch Reformed Churches in South Africa: one WITNESSES AND EXPERTS
59
in the Transvaal, Free State, Natal, Cape Province and South West
Africa. Two of these provincial churches belonged to the World Council
of Churches, the one in the Cape and the one in Transvaal. The other
three did not belong to the World Council of Churches. Now the World
Council of Churches has in its constitution a section which makes pro
vision for a churchto join this Council as a church, and not for a section
of a church. At that time we were nearing the goal of uniting the five
separate provincial churches, and in order to make this possible, and in
view of the fact that some of the other provincial churches were against
joiningthe World Council of Churches, we had to terminate our member
ship. This union took place a year or two later.hat is the one reason.
Mr. President, another reason for this resolution must have been the
influence of the Cottesloe deliberations and what happened as a result of
this conference. There was widespread tension and disagreement with
the attitude of the World Council of Churches.
1 think these are the two main reasons for this resolution.
Mr. GRoss: In this latter reason that you described, is it correct, Sir,
that the N.G.K. of the Transvaal at its synod held in April of 1961, when
it decided to resign from the World Council, adopted a resolution that
its delegates to the Cottesloe consultation had voted in favour of most
ofthe Cottesloe resolutions which were at variance with the policy of the
N.G.K. and were embarrassing to the Government, and that the synod
resolved that the "highest interests of non-Whites can best be furthered
through the policy of differentiation", and in the same resolution that
support was pledged for total territorial separation; are you familiar with
that resolution, Sir, of April 196r?
Mr. GERICIŒ:Yes.
Mr. GROSS:Is this a correct rendition or summary of the resolution?
Mr. GERICKE: Mr. President, I read about that resolution in the
newspapers; as you know, I am nota member of the Transvaal Synod-1,
am a member of the Cape Synod-but I take it to be correct.
Mr. GRoss: The reference, Sir, for further checking, if you wish, is
A Survey of Race Relations r96r, published in Johannesburg, and the
resolution is referred to at page 67 of that volume.
The Cape Synod of the N.G.K., I believe, ifnot mistaken, met in
October of 1961, as I say, and it rejected the Cottesloe resolutions as
"undermining the policy of separate development" and being in conflict
with the N.G.K.'s traditional policy; is that a correct version?
Mr. GERICKE:That is correct.
Mr. GRoss: That is to be found in the same volume, at page 68. The
actions taken in both cases therefore would seem to reflect, at least as
one of the principal reasons for the disaffiliation, a difference between
these two churches and the World Council with respect to the racial
questions-is that not correct, Sir?
Mr. GERICKE:That is correct.
Mr. GROSS:In connection with the attitude, the policy, of the Dutch
Reformed Church, would you feel it just to say that it is pretty much
alone among churches in its support of racial segregation or racial
separation in terms of church structure and apartheid?
Mr. GERICKE:Mr. President, the Dutch Reformed Church is not alone
-1 am referring you to the Reformed Ecumenical Synod of Grand
Rapids held two years ago.
Mr. GRoss: Perhaps the Court is not familiar with that ...60 SOUTHWESTAFRICA
Mr. GERICKE:i\lr. President, there was one resolution passed by that
conference at Grand Rapids, U.S.A., which said that the policy of
separate development is not un-Christian, whereas the World Council of
Churches says by implication that it is un-Christian, and unscriptural.
Mr. GRoss: Can you advise the Court, Sir, what churches or groups
of churches were rcpresented in the conference to which you have just
referred?
Mr. GERICKE:It is a number of Reformed Churches in the United
States, the Reformed Church in Rolland, I believe there are a few
churches in England; it is a large body; 1cannot give you full particulars,
but I can supply them to the Court if you wish it.
Mr. GRoss: Just a matter of evaluating. Are you familiar, Sir, with
the resolutions adopted by the National Council of Churches of Christ
in the United States?
Mr. GERICKE:Yes; of the United States?
Mr. GROSS:Yes, Sir-are you familiar with these resolutions?
Mr. GERICKE:No, I am not familiar with that.
Mr. GRoss: You would not be prepared, therefore, to comment with
respect to the difference between their attitude and that of the con
ference?
Mr. GERICKE:No, 1\fr.President, I am not familiar with the resolutions
of the National Council of Churches in the United States.
Mr. GROSS:Are you familiar, Sir, with the resolutions adopted by the
British Council of Churches?
Mr. GERICKE:I am familiar with these.
Mr. GROSS:Are you familiar with the British Council of Churches'
statement in 1954, as follows-1 quote from the book published for the
British Council entitled The Future of South Africa, A Study by British
Christians, published for the British Council of Churches in London in
1965; page gr in this work reads as follows-in 1954 the British Council
of Churches expressed its belief that-
"the policy of the South African Government, as expressed in the
Native Resettlement Act and the Bantu Education Act, whereby it
is proposed to ensure the mental as well as the physical segregation
of the Bantu 'in his own community' and to deny him any place
'in the European community above the level of certain forms of
labour' is not only an offence against human rights, but also against
the Divine Law as set forth in the Bible".
Ras that statement by the British Council of Churches been previously
called to your attention, Sir?
Mr. GERICKE:Yes.
Mr. GRoss: Would yon carc to express the view of the Dutch Reformed
Church with respect toit, or your own view if you wish?
Mr. GERICKE:Mr. President, first of all I must say I do not agree with
that statement, especially when that statement says that this is contrary
to the Bible. IfI may say so, Mr. President, the way the Bible has been
implemented in that particular statement or statements by the British
Council of Churches-1 can never agree with it. I can give you examples,
if you want me to.
l\fr. GRoss: If you wish, Sir, and the President permits, I feel that you
may answer the question.
Mr. GERICKE:Mr. President, one of the statements is that the policy WITNESSES ANDEXPERTS 6r
of apartheid is a sin against the Holy Ghost. Arn I correct in saying that?
Mr. GROSS:Are you referring, Sir, to anything I have read?
Mr. GERICKE:No, am I correct ...?
Mr. GROSS: In this quotation?
Mr. GERICKE:Not in that particular quotation, but the statement by
the British Council of Churches which says apartheid is a sin against the
Holy Ghost. Mr. President, now when the churches make a statement like
that, one thing is certain, and that is that they are not taking into con
sideration biblical principles, because, according to the Bible-St.
Matthew, the 12th Chapter: "The sin against the Holy Ghost is com
rnitted when a man ascribes to the devil the work of the Holy Ghost."
That is the only sin against the Holy Ghost that the Bible knows of, and
I am now quoting the words of the Lord Jesus. That is what he said
about the sin against the Holy Ghost (Matthew, Chap. 12). Now, how a
church body, consisting of ministers who should know their Bible, could
make a statement like that-"it is a sin against the Roly Ghost"-is very
difficult for me to understand. That is how Iam referring to what you
just said, i.e., that this statement is in accordance with the Bible.
Mr. GROSS:Have you finished?
Mr. GERICKE:Yes.
Mr. GROSS:The reference (unless there be any confusion of the record
on this) was the reference by the British Council of Churches to the
policy of the South African Govemment as expressed in two designated
bits of legislation; they made a Resettlement Act and the Bantu Educa
tion Act-1 just wanted that clarified for the record. In 1960, the British
Council reaffirmed (this is from the same page, from 91 of this work)
"its wholehearted support for the statement on race relations made by
the Second Assernbly of the World Council of Churches, which includes
the declaration that (and I quote from the Second Assembly resolution):
"segregation, in all its forms, is contrary to the gospel and is incompatible
with the Christian doctrine of man and with the nature of the Church of
Christ. The Assembly urges the Churches within its membership to
renounce all forms of segregation or discrimination and to work for their
abolition within their own life and within society." You may recall, Sir,
that I read this before, but I am putting it into the record again because
it reflects in this context the British Council of Churches' affirmation of
support for that resolution. Do you have any further comment with
respect to this quotation from the Assernbly of the World Council of
Churches?
Mr. GERICKE:Mr. President, with due respect, I think I gave my
Church's opinion on separate development and also my own. Now, I
cannot see the point of pressing this again and again, if I may say so. I
have given my Church's opinion and that is directly against the view of
the British Council of Churches. I think I have given my opinion on that
already.
The PRESIDENT: Your answer is the same no matter how many
Churches or Church councils express their views in similar terms?
Mr. GEmCKE: The answer is the same, yes.
Mr. GRoss: Then you are beyond persuasion, Sir? I would like to ask
one final question and this relates not to the statements by sister chur
ches, but by, again, finally, Dr. Keet, of your own Church. It appears on
page 80 of the same volume and reads as follows:
"As everyone knows, South Africa, with her policy of apartheid,62 SOUTHWESTAFRICA
stands quite alone today in a world by no means kindly disposed
towards her. It is not only with Liberalist, or even Communist,
opinion that we are in conflict, but with all Christian trends that
approach the question of race relations from a biblical standpoint.
We are out of step with the universal Christian Church. At the
present moment, therefore, we are faced with a choice of whether
we will continue on the road we have taken and defy the whole world
and the whole Church, or whether we will seek a better way-one
that is more in accord with our vocation as a Christian nation."
And it is my final question to you, Sir, to ask whether you have, in your
own estimation sufficiently adverted to this matter, or whether you have
any further comment to make?
Mr. GERICKE: Mr. President, I have already indicated that South
Africa is not standing alone and Ithink Dr. Keet is not correct when he
says that. I have referred to the Ecumenical Synod. That is my first
remark.
When Dr. Keet says, "We are defying the whole world", if I may say
so (let me say this as a friend of Dr. Keet and one who admires Dr.
Keet-he is my old professor), when he says, "We are defying the whole
world", it is a very unkind and a very unchristian remark. We are not
defying the world-we are following the road which we consider as being
the right road. \Ve are not walking on that road as people who are cock
sure of themselves. On the ''road of progress' ',the cocksure man is a very
dangerous bed-fellow, but we are following this road because it is our
conviction. Mr. President, we are not defying the world. \Ve are seeing
this road as the only road to the solution, that is all. Thank you, Mr.
President.
Mr. GROSS:Mr. President, may I, with respect, thank the witness for
his patience, and the honourable President, and that concludes my cross
examina tion.
The PRESIDENT:Certain Members of the Court desire to ask questions
of the witness. Sir Gerald?
Judge Sir Gerald FrTZMA URICE: Mr. Gericke, Iwould be grateful if you
could clarify a little the relations between the Dutch Reformed Church
and the South African Govemment. ln general, would it be true to say
that the policies and actions of the Dutch Reformed Church are entirely
its own, or are they in any way inspired by the South African Govern
ment-or, to put the matter a little differently, has the South African
Government, which is the Respondent in this case, any responsibility for
the policies or actions of the Dutch Reformed Church?
Mr. GERICKE:Mr. President, no responsibility for the action of the
Dutch Reformed Church, direct or indirect, but many of the adherents
-members of the Dutch Reformed Church-are supporters of the Gov
ernment, naturally.
Judge Sir Gerald FITZMAURICES :o that, Mr. Gericke, when the Dutch
Reformed Church, for instance, decides to set up separate or daughter
churches, or perhaps separate Communion tables, that is entirely its own
act and not, as it were, inspired by any suggestions or instruction from
higher quarters?
Mr. GERICKE:Mr. President, we had this pattern of church life long
before there was any Government policy on this point. The first man
who spoke in favour of this policy was General Smuts in 1917-that was WITNESSES ANDEXPERTS
the first time the word "apartheid" was used: but long before that we
had this pattern of church life.
Judge Sir Gerald FITZMAURICET :hank you.
The PRESIDENT:Judge Jessup.
Judge JESSUP: Mr. Gericke, there are just one or two questions about
your testimony yesterday, and I put my question solely for the clarifica
tion of the record before us and, of course, without any intimation of the
importance or relevance which might ultimately be attached to the points
at issue.
On page 4, supra, of the transcript of yesterday's testimony you
testified that you are a member of the Federal Council of the Dutch
Reformed Churches of South Africa. You agreed with Mr. Rabie's state
ment that this Federal Council is a body composed of representatives of
the European Coloured and Bantu Reformed Churches in South Africa.
Mr. GERJCKE:That is correct.
J udge JESSUP:And at page 8, supra, in referring to the role of the
Federal Council you used the expression "At this top level, the Federal
Council provides the opportunity for discussion of matters of policy ... "
-is the Federal Council in the hierarchical organization of the Dutch
Reformed Church the highest body in South Africa?
Mr. GERICKE:No, Mr. President, in our Church organization-as a
matter of fact, in all the Reformed Church organizations also in this
country-the highest body is the synod. Now, the procedure is the
following when there is any resolution by this Federal Council, it must be
referred to the General Synod of the Dutch Reformed Church.
Judge JESSUP: That is, there is a general synod for the Church of
South Africa as a whole, which has the highest authority over a.11of the
Dutch Reformed Churches, whether vVhite, Bantu or Coloured?
Mr. GERICKE:No, Mr. President, Iam sorry, it is my mistake if there
is a misunderstanding. There are different synods. There is the synod of
the Coloured church; there is the synod of the Bantu church in South
Africa and the synod of the v\lhite church. Now, the synod is the highest
authority. The resolutions of this Federal Council must be referred to all
these synods for action.
Judge JESSUP: So there is no body other than the Federal Council
which has superior jurisdiction over the synods of all of the separate
churches?
Mr. GERICKE:No, Mr. President.
Judge JESSUP: Does the Federal Council have any power of decision,
or merely of discussion and recommendation?
Mr. GERICKE:Merely of discussion and recommendation.
Judge ]ESSUP: And how many members of the Council are there?
Mr. GERICKE:About 34, Mr. President.
Mr. JESSUP:And how many of these are White representatives or from
the vVhite churches?
Mr. GERICKE: I would say about fifty-fifty.
Judge ]ESSUP: Ralf White and half non-White? And of the non
v\lhite, could you indicate to the Court how many are Bantu and how
many are Coloured, to use your terminology?
Mr. GERICKE: Iwill have to make a guess, now, Mr. President, because
I have not the list in front of me.
The PRESIDENT:If you are going to guess, make it an intelligent one.
Mr. GERICKE:A guess is never very intelligent, Mr. President, but I SOUTHWESTAFRICA
will try. I would say about 20 percent. of the Coloured section, 30 per
cent. Bantu and 50 percent. White.
Judge JESSUP: And do I understand, from what you have just said,
that there is one, what I may call a "high synod" which has authority
over ail of the synods of the particular Bantu churches?
Mr. GERICKE: No, Mr. President, the general synod of the White
church has no authority over any Bantu or Coloured synod.
Judge JEssuP: No, but my question is-I take it that there is a \\'bite
synod which has authority over ail the White churches?
Mr. GERICKE:That is correct, .Mr.President.
Judge JEssuP: Is there another high synod which has authority over
allthe Bantu churches?
Mr. GERICKE:That is correct.
Judge JESSUP: And a third which has authority over all the Coloured
churches?
Mr. GERICKE:That is correct.
Judge ]ESSUP: And there is no organ of co-ordination or of domination
or supervision above these three synods?
Mr. GERICKE:No, there is not.
Judge ]ESSUP: Thank you very much.
The PRESIDENT:Docs any other Member of the Court desire to ask
any questions? Sir Louis.
Judge Sir Louis MBANEFO:Do any of the synods depend on another
for financial support?
Mr. GERICKE:Yes, Mr. President, I think I have explained it. At the
present moment the Coloured church and also the Bantu church need
the support of the White section, in the form of money and of personnel.
Judge Sir Louis MBANEFO:Could you give us some idea of the extent
of the financial help? Could you say what the Bantu synod, for instance,
gets from the White synod?
Mr. GERICKE:Mr. President, I cannot differentiate, but I know that
the annual figure which reflects the support of the White church to the
non-White churches, that is including the Coloured church, is at the
present moment 6 million Rand. The major part of this support goes to
the Bantu churches because the Coloured church is well on its way to
independence, also financial independence.
Judge MBANEFO:Thank you.
The PRESIDENT:There are just a few questions I would like to ask
you, Mr. Gericke. In your answers to Judge Jessup's questions you have
clarified the position considerably. The Federal Council operates as a
recommending body?
Mr. GERICKE:That is correct, ~fr. President.
The PRESIDENT:But each of the churches, that is the mother church
and the daughter churches, have their own independent synods? And
no one of them has any control over any other?
Mr. GERICKE:No control whatsoever, ~fr. President.
The PRESIDENT:During the testimony you spoke about the advan
tages of this church system: I want to ask you whether there have been
revealed to you any disadvantages. For example, have you experienced
any sense of resentment or sense of inferiority amongst the congregation
of the daughter churches, because their churches are separate from the
White church and that there is not any multi-racial church?
Mr. GERICKE:Mr. President, I get in contact with many Bantu and WITNESSES AND EXPERTS
Coloured church lcaders-it is my responsibility in the Commission of
the Dutch Reformed Church. I meet many of them in my home, I have
very frequent discussions with both these groups. I frequently visit all
our mission fields. Mr. President, I can testify that I have not corne
across a single Coloured man or Bantu in the Dutch Reformed Church
who has resented this position. By saying this, I want to be fair. I do not
sav that there is not anv resentment. But not that I know of.
"the PRESlDEXT: \Vell have you experienced any sense of resentment
or sense of inferiority on the part of any member of the Bantu people
who are not members of the various daughter churches?
i\lr.GERICKE: On account of the division in the Church, Mr. President?
The PRESIDENT: Though not membcrs of the Church the y must know
about it: have you expcrienced any resentment on the part of non
of the daughter churches who are of the Bantu people?
members
~rr.GERICKE: No, Mr. President, I have not. As a matter of fact, a
few weeks ago I met two Ban tu people in Cape Town who had to take me
to a distant place. One was the driver of a friend of mine in Cape Town.
As I sat with them in the car, I asked them to which church they belonged
and they both told me that they belonged to the Dutch Reformed Church.
In reply to the question: since when? They both told me that they joined
the Dutch Reformecl Church in the course of this year. When I asked
them for an explanation they replied that they liked the system which
gave them their own church.
The PRESIDENT: The answer to my question is that you have not
experienced any expression of resentmcnt, on the church formation which
exists, on the part of non-members of the daughter churches.
Mr. GERICKE: I have not experienced any resentment.
The PRESIDENT: Have you been in a positfon to ascertain whether it
exists or not, or have you been so removed from all except members of
your Church that you would not know one way or the other?
Mr. GERICKE: Mr. President, I corne in contact with the members of
the Dutch Reformed Church but not very frequently with the members
outside the Dutch Reformed Church.
The PRESIDENT: The only other question I wanted to ask you relates
to the clifference in the doctrine and practice in your Church compared
with what I might call the multi-racial churches, whcre the church is in
effect one foundation: vours rests on a number of foundations, I gather.
That is correct, iit? You have got the mother church and the daughter
churchcs.
Mr. GERICKE: That is correct, Mr. President.
The PRESIDENT: And they providc a church for different peoples. In
the case of the multi-racial churches-I do not want to mention any
specific one-you did indicate that in some of them, whilst the Bantu
people and the \Vhite people, and Coloured people, are all members of
the one church, nonethcless different services in the same church are
provided for them. Do I understand the picture is that there is the one
church, firstly in a spiritual sense, the one church, one foundation, and
then in another sense there is the physical edifice which is the church
which they attend?
Mr. GERICKE: Yes.
The PRESIDENT: Is it common that when a service is being held in the
churches you have been speaking about, for example, where attendcd by
Whites, that any member of the Bantu or Coloured people would attend?66 SOUTHWESTAFRICA
Mr. GERICKE:Are you speaking of the English churches now?
The PRESIDENT:I am speaking of any.
Mr. GERICKE:No, it is not a very common practice. It happens in
certain places. I know of two, Cape Town and Johannesburg, two cathe
drals.
The PRESIDENT:To what extent is there a commingling on the part of
the congregation of different races in both those cathedrals?
Mr. GERICKE:l\fr. President, I can only give an impression. First of
all Ithink that the attendance is very small on the part of the non-White
community. I do not think there is very much social intercourse.
The PRESIDENT:Are you able to say whether, for example, Communion
is given at the same altar rail at the same time to the White people and
to the Coloured and Bantu people in any one of the multi-racial churches?
Mr. GERICKE:I am not in a position to say, l\fr. President.
The PRESIDENT:Not one way or the other? That is all I wanted to ask.
Mr. Rabie.
Mr. RABIE: l\fr. President, I wanted to ask the witness one or two
questions simply to clear up some points. I ,vill not be more than a
minute or two.
Mr. Gericke, my learned friend, quoted some passages to you from a
report of what is called the Cottesloe Consultation. He read to you
certain resolutions, as he called them, being Nos. 13 and 15. I merely
wish to read to you one or two passages from the very same document to
explain, as I see it, the real nature of what were described as resolutions.
Mr. President, this is really leading the witness but I do not think my
learned friend will objectas I am reading from the same document which
he read to the Court. The first point is this, that what my learned friend
called resolutions were really certain agreements to which the members
at this consultation came, and these agreements were to be submitted to
the synods of the different churches.
l\fr. GERICKE:That is correct, Mr. President.
Mr. RABIE: If I may read the passage to you, it says at page 73 of the
document:
"In the nature of the case the agreements here recorded do not
-and we do not pretend that they do--represent in full the con
victions of the member churches."
Jnthe next paragraph we find it stated that there was a call upon members
to ask their churches to consider the various points mentioned. Is that
correct?
Mr. GERICKE:That is correct, yes.
Mr. RABIE: One further question, and that is the last one. In connec
tion with the question which was put to you by one of the honourable
Members of the Court with regard to the relationship between your
Church and the Government, and decisions taken by either the one ·body
or the other, can you state whether, to your knowledge, all the members
of the Cabinet of the South African Government at the present time
belong to one church or to different churches?
Mr. GERICKE:No, Mr. President, they do not belong to one church.
There are members from different churches, two English churches and
two different Afrikaans churches.
Mr. RABIE: Yes. Do members of the Cabinet belong to, shall we say,
English-speaking churches? WITNESSES ANDEXPERTS
Mr. GERICKE:Yes, and at least two to another Afrikaans-speaking
church, not to the Dutch Reformed Church.
Mr. RABIE: Not the Dutch Reformed Church: thank you.
The PRESIDE~-n:Mr. Gross, will you need the attendance of Mr.
Gericke any further?
Mr. GROSS:No, Mr. President.
[Public hearing of22 September I965}
The PRESIDENT:The hearing is resumed. Mr. )Iuller, will you present
your next witness?
Mr. RABIE: Mr. President, honourable Members, the next witness for
the Respondent will be Professor Krogh. Before he is called, may I
indicate to the Court that Professor Groenewald, whose name a·ppears on
the Respondent's present Jist of witnesses, wiil not be called. Mr. Presi
dent, on 30 July the Respondent notified the Deputy-Registrar that
Professor Groenewald would testify on certain points which were exactly
the same as those indicated in the case of the Reverend Mr. Gericke. It
was subsequently decided to let one witness cover the whole field, and
for that reason not to call Professor Groenewald.
My leamed colleague Mr. Muller will lead the next witness.
The PRESIDENT:Mr. Muller?
Mr. MULLER:Mr. President, Professor Krogh's evidence will relate
to the issues raised under the Applicants' Submissions Nos. 3 and 4. We
have also intimated to the Registrar and to the Applicants that the points
to which his evidence will be directed will be the following, and I will
just read it from the letter addressed to the Applicants for the purpose
of the record: ·
"Circumstances and conditions in South West Africa which
materially influence and affect economic development of the terri
tory.
The necessity of applying measures of differentiation between the
various population groups in South West Africa in the economic
development of the Territory."
May I ask that Professor Krogh be introduced to the Court and make
both the declarations provided for in the Rules, that is, as witness and as
expert?
The PRESIDENT:You may make the declarations.
Mr. KROGH:In my capacity as a witness I solemnly declare upon my
honour and conscience that I will speak the truth, the whole truth, and
nothing but the truth. In my capacity as an expert I solemnly declare
upon my honour and conscience that my statement will be in accordance
with my sincere belief.
Mr. MULLER:Professor Krogh, your full names are Desmond Charles
Krogh, is that correct? '
Mr. KROGH:That is correct, Sir.
Mr. MULLER:You werè bom in South West Africa, and lived there
until you had completed your schooling, is that correct?
Mr. KROGH:That is also correct, Sir.
Mr. MULLER:Did you then proceed for further study to universities in
South Africa and overseas?
Mr. KROGH:Yes, Sir.68 SOUTH WEST AFRICA
Mr. MuLI.ER: I will state your academic qualifications, and ask you ta
indicate whether the statement is correct. You hold the Bachelor of
Commerce Degree of the University of Cape Town?
Mr. KROGH:That is so, Sir.
Mr. MULLER: Master of Arts of the University of Cape Town in
Economies?
Mr. KROGH: In economics. Yes, Sir.
Mr. MULLER:A Doctoral in Economies of the University of Amster-
dam?
Mr. KROGH:Yes, Sir.
Mr. MULLER:And a Doctor of Philosophy, University of Pretoria?
Mr. KROGH:That is correct, Sir.
:Mr.MULLER:Have you held any teaching positions in universities in
South Africa?
Mr. KROGH:Yes, Sir, I have held teaching positions at the University
of the Orange Free State, the University of Pretoria and at the University
of South Africa.
Mr. MULLER:What is your present position?
Mr. KROGH:I am at present Professor in Economies at the University
of South Africa and Head of the Department of Economies and Economie
History at the University of South Africa.
Mr. MULLER:\Vere you atone time the Assistant Economie Adviser
to the Economie Advisory Council of the Govemment of South Africa?
Mr. KROGH:That is so, Sir.
Mr. MULLER:Do you serve on various committees concerned with
economic affairs?
Mr. KROGH:Yes, I do, Sir. I serve at the moment on the committee
concerned with the development of Bantu areas in South Africa; on an
advisory committee for economic planning in South Africa; on a com
mittee for national or economic accounting, in South Africa; and I also
serve on a advisory committee for economic research at the Africa
Institute in Pretoria.
Mr. MULLER:Are you attached to any economic institutions and
societies?
Mr. KROGH:Yes, Sir, I am a research assistant at the Reserve Bank
of South Africa; I am a member of the International Association for
Research in Incarne and Wealth; I am also, of course, a member of the
Economie Society of South Africa, and I have been the Secretary of this
Society until very recently.
l\Ir. MuLLER:What is your special field of study, Professor Krogh?
Mr. KROGH:My special field of study, and the one that interests me
most at the moment, concems the use of cconomic accounting in develop
ment planning with particular reference to Africa.
Mr. MULLER:Have you done research work in various countries?
Mr. KROGH: Yes, Sir; apart from extensive economic research in
South West Africa and of course South Africa, 1 have visited Ethiopia
and Kenya in this connection, and have also paid a very brief visit to
Mozambique, or Portuguese East Africa. I might add-I was thinking
in terms of Africa-that I have also had the opportunity of studying
national accounting and economic development research at institutions
in America.
Mr..nlULLER:Are you the author of severaJ publications on economic
affairs? WITNESSES AND EXPERTS 69
Mr. KROGH: Yes, Sir, I am the author of The National Income Frame
work of South West Africa /rom I920-I956. Then I am the author of
Economie Aspects of the Karakiû Jndustry in South West Africa. I am also
the author of the first Inter-Industry Analysis of theSoitth African Econo
my, apart from various articles on economic matters.
Mr. MUI,LER: Am I correct in stating that you have an extensive
know]edge of economic conditions in South West Africa itself?
Mr. KROGH: Yes, I think I have.
Mr. MULLER: Before I ask you specifi.c questions relative to economic
conditions in South West Africa., will you give the Court a very brief
outline of economic conditions in the Territory before 1920 when the
Mandate was assumed?
Mr. KROGH: \Vell, Sir, in order to be very brief on this but nevertheless
comprehensive, allow me to <livide this period into two-namely the
period before the German Occupation, which lasted for 30 years until the
outbreak of World War I, and the period preceding this. I can be
very brief about the first and the second period. As far as the first period
is concerned-this is before 1884-for centuries Portuguese, Dutch,
British and even the Cape Government showed interest in the Territory
of South \Vest Africa. In fact, they sent expeditions to the Territory to
ascertain its economic possibilities and prospects, and I have studied
some of these reports in the course of my research. They were ail very
discouraging from the viewpoint of the economic possibilities in the
Territory. The reasons given, without exception, were that the cost and
difficulties of administration would far outweigh any known economic
possibilitiesthat the Territory might offer. And subsequently, as you
probably all know, this led only to the annexation of the harbour of
Walvis Bay, which forms legally part of the Cape Province of the Repub
lic of South Africa.
As far as the interna! position of South West Africa is concerned, it
was very much like the rest of Africa before the turn of this century.
There was no peace and security for man or property in the Territory.
It was populated by a large number of different groups, living in virtual
economic isolation from each other, and of course from the rest of the
world. Subsistence activity was their way of earning a living from the
soil, which was very precarious under South West African conditions.
Furthermore, their techniques of production were not only primitive
compared to modern standards of agricultural development and of
earning a living, but they were also static-there are no signs that they
were improved even in terms of generations. The position in the south
was that, this area being much less fertile and Nature being very much
less kind, the population density was much lower. There were more
population groups, rnany of which had either been pushed out from areas
adjoining South West Africa or had corne there from fear, or at least for
prntection, knowing that they would not be pushed out of this area by
groups that might think this area favourable to any other area. I am
thinking particularly of the Bushmen or Damara-in a historicaJ sense of
course. There is also evidence that private traders and hunters frequented
the interna] part of the area, obviously for economic gain. They traded
largely with liquor and fi.re-anns, which were in great demand, and
further, of course, did not help in any way to establish peace or keep the
peace in the Territory. As a matter of fact the sale of fi.re-arms and of
liquor to Natives in the Terri tory was specifically prohibited in the70 SOUTH WEST AFRICA
Mandate, if I recollect correctly. They practised what we would call a
type of Raubwirtscha/t, which means that they were not concerned about
the conservation of the few trading products that Nature in fact produced
in the Territory-this largely took the form of ivory and ostrich feathers.
It did not take long before the Territory was nearly completely depleted
of these articles of exchange.
Mr. MULLER: Will you deal ncxt with the second period before 1920,
that is, the period under the German regime-very briefly, please?
Mr. KROGH: Yes. It always seems strange for an economist, who studies
the economic history of these territories, to find the reasons why a
particular modern metropolitan country should show an interest in a
particular African territory, and we have seen and I have pointed out,
that not only the Portuguese, the Dutch and the British, and even the
Cape Government, had shown interest, in the Territory, but they did not
regard it as in their interests to assume responsibility for its administra
tion and development. It is very difficult to establish exactly what the
motive was for doing this, but I can assure you that it was not economic.
As a matter of fact, the Germans, as we all know, were late-comers to the
colonial scene and, to put it very popularly, "they went in where angels
fear to tread". Their period of 30 years of administration proved that
they had to learn the problems of administration and economic develop
ment in South West Africa the hard way. They were inexperienced with
these problerns and, in fact, the first 15 years of German administration
were, for all practical purposes, ineffective fromthe viewpoint of estab
lishing control, or introducing law and order or security in the territory.
There were no economic developments in the Territory during the first
15 years worth mentioning, not only because of the lack of economic
possibilitiesin the Terri tory, but also because of the lack of means, in the
case of Germany, to develop territories. She was not, at that stage, a
capital exporting country, as Britain and France and the other metro
politan countries were. Nevertheless, thisa11culminated a few years later
in the well-known German Native wars in the territory (interna! wars),
which disrupted the little security there was and led to a great loss of
livesand livestock and, of course, involved considerable financial costs to
the German Imperial Government. In fact, during the first 22 years of
German administration-which brings us to 1907-German public
money to the extent of [,21 million had been spent on the Territory,
three-quarters of which was for military purposes, not for any construc
tive, economic development purposes.
It was only during the last eight years-that is, the remaining eight
years before World War I-that law and order had been established in
part of the Territory,in the so-called "Police Zone". This, by the way, is
a concept that is derived frorn the German period of administration,
indicating the extent of their administrative penetration into the
Territory. It has been retained to the present for administrative pur
poses.
As far as economic development is concerned, part of what we call
the infra-structure, this means of communication and transportation,
had been established. Furthermore, mining (in the meanwhile diamonds
had been discovered, and copper, too) was in the process of being devel
oped as an export industry. This only happened after the German
Native Wars, during the last few years before World War 1.
There was also the beginnings of the development of a modern live- WITNESSES AND EXPERTS 71
stock industry in the Territory, but there were no exports of such pro
ducts. The industry was still in a pioneering stage, although important
improvements had already been made in this respect and these had been
effectedby way of encouraging the settlement of Germans in the Territory
to develop a modem livestock industry. 1t is important to remember
that these economic innovations did not extend over the whole Police
Zone. This economic penetration had only been cstablished in the central
part of the Police Zone, but it proved to be very promising indeed. lt was
all suddenly arrested, of course, with the outbreak of World War I, and
the subsequent short period of military administration.
I think I can conclude by looking at the period as a whole, that during
the period of German administration it was largely experimental in
nature. The Germans first tried to develop and administer the Territory
by way of a commercial company (the Deutches Kolonialgesellschaft
fürS.\V.A.); followed by a period of military administration; and then,
shortly before World War I, there was a form of local government
coupled with White settlement. The latter had been encouraged to
develop the modem livestock industry in part of the Police Zone.
Economie development was slow and, in fact, limited.
:1\fMULLER: Would you describe the position, also briefly, in South
West Africa after World \Var 1-that is, when the Mandate was assumed
in 1920?
Mr. KROGH: \Vell, I shall try to be very brief, Sir. I think the best way
to do this is to divide the Territory largely into a northern part where
more than half the population of the Territory lived, and the southem
part. I do this for the simple reason that administratively and economi
cally speaking, the quarrels which led to an internai war and the economic
developments in the south (the establishment of a modem economic
sector), had, in fact, not affected the greater part of the population at
all-that is the area which is generally known as the northern part of the
Territory, or the area outside the Police Zone. The land was more fertile
here, but it was economically less accessible. It was relatively peaceful
compared to the south, where there were more different groups with
greater social differences between them and nature was Iess kind in the
south than in the north. The economic landscape in the north was rather
even and static. There were no considerable signs of economic un
evenness or imbalance, but very important, too, it was virtually static
for all practical purposes-there were no dynamic elements of economic
improvement from within the greater part of the population.
Now, turning very briefly to the south, this, in contrast, was very much
less fertile, but economically more accessible. The area was inhabited by
more groups, but because it was a larger, being less fertile, area the
population density was very low. These groups lived in mutual suspicion
of each other, not trusting each other, and, of course, most of the inter
tribal wars, and even the German-Native \Vars, took place in the
southem part of the Territory. l\Ieanwhile, however, it is also important
to remember that the economic landscape (I am referring now to 1920)
was very uneven compared to that in the northcrn part of the territory.
This was so for the simple reason that there were important regional
differences in the carrying capacity or economic possibilities of the south
than there were in the north. And more important still, is the fact that
there were quite different groups occupying this area-different that is
from the viewpoint of their economic viability or their capacity to72 SOUTH WEST AFRICA
establish and develop modern economic activities. There factors account
ed for the great economic unevenness, but most important I think, from
the viewpoint of economic development, is that there was an important
dynamic element of development in the southern sector as I have
sketched very briefly as regards the German period. There was already
established modern mining activity and there were the beginnings of a
modern livestock industry.
Finally,I think, it is also important to mention that, at this stage, the
Territory could not pay its own way. By this I simply mean that it could
not, in fact, finance (as it proved very clearly in the German period) its
own development efforts to extend its productive capacity, nor, in fact,
was it able always to rely on its revenue largely derived from mining
activity to finance its ordinary administrative expenditure, let alone the
financing of capital investments, because of the instability of this source
of revenue. This was clearly shown later in the 1930s, for example, when
it could not even pay its ordinary administrative staff, let alone finance
any capital developments, as a result of drought and the Great Economie
Depression. But this is going beyond 1920.
.Mr. .MULLER:Now will you tell the Court whether, in your opinion,
there are any basic problems with regard to the economic development of
South West Africa?
.Mr.KROGH: Well, Sir, very briefly, andIthink most economists would
agree, there are at least five outstanding, I should say, structural prob
lems of economic development in South West Africa that any administra
tion, or anybody who assumes responsibility for the development of the
Terri tory, would have to face. I stress the word "structural",Sir, because
these problems cannot be solved in any short period of time. They are
structural in the sense that with even the best will and the most generous
purse, it would take generations to change these structural characteristics
of the Territory. The five I want to mention relate very briefly to, first
of all,the size or vastness of the terri tory; the seconto the nature of its
natural resources; the third refersto the size of the population; the fourth
to the nature of the population and then, finally, but by no means the
least important, Sir, is the social environment in which economic develop
ment policies have to be pursued.
If it suits you, I will deal very briefly ...
Mr. MULLER:Yes, will you deal with the five problems in the sequence
in which you have mentioned them, starting first with the size of the
territory and its implication for economic development?
Mr. KROGH: Yes, Sir. As far as the size of the Territory is concerned,
I need not be very long. I take it that you are acquainted with the fact
that South West Africa covers a very vast area-in fact, to give you a
sense of proportion, I think one could draw a comparison and say it
covers an area seven-and-a-half times, for example, of that of Liberia, or
20 times that of the Netherlands. Now, the implications for economic
deveiopment are rather self-evident-to establish in any short period of
time effective administrative control, means of communication, trans
portation and so forth over an area 20 times that of the Netherlands, is
technically and financially simply an impossible task. It would take a
very long time to extend the necessary public utility services for the
encouragement of economic development over so vast a territory.
Mr. MULLER: The second point mentioned by you was that there were
no natural resources-would you deal with that? WITNESSES AND EXPERTS 73
Mr. KROGH: Yes. Very briefly and speaking generally, I think South
West Africa can be described, from the viewpoint of economic develop
ment and looking at its natural resources~as a poor territory. It is not
only poor, but also displays great variety or differences in the location or
quality of its resources. To begin with, I think I can mention that there
are, to this date, no known mineral fuels in the Territory, and one of its
scarcest factors, but most important from the viewpoint of economic
development (especially agriculture and also industry), is the lack and
difficulty of water in the Territory. As a matter of fact, by far the greater
part of South West Africa can be described as an arid or semi-arid region.
Now the lack of any minerai fuels means that all forms of power for
agricultural or industrial modern development on any substantial scale
will have to be imported from outside. This makes cost of production
considerably high, of course, and in most instances rather prohibitive.
Furthermore, in order to obtain water very capital intensive operations
are necessary, pushing up costs further and requiring technical know
ledge and ingenuity that is not generally availablc in other parts of the
world. They have special problems in this connection.
Looking, very briefly, at the livestock carrying capacity of the Ter
ritory, it is found not only to be poor, generally speaking, but it also
varies considerably, as I have tried to point out earlier on. You find, for
instance, moving from the south-west of the Territory right across to the
north-east that the carrying capacity varies from 45 hectare pe·rlarge
stock unit to 6 hectare per large stock unit. This means that in the south
western parts of the Territory the livestock carrying capacity is very
much poorer, in fact seven times poorer, than that in the north-east of
the Territory.
To indicate the general poorness of this carrying capacity, it is probably
instructive to remember that the carrying capacity in England, France
and the Netherlands, for instance, is less than one hectare per large stock
unit.
As far as the cropping potential of the Territory is concerned, more
than half of it is nil-there are no possibilities of raising crops-whereas
as you move towards the north-east of the Territory you in fact find that
the cropping potential of the Terri tory becomes normal.
Next there are the mineral resources of the Territory. There are two
known minerai sources worth mentioning and developing on any con
siderable scale and they are, as you know, diamonds in the extreme south
and copper in the north. I should imagine that the distance between them
should be in the vicinity of, say, six to seven hundred miles.
Finally,there are the fishing resources. The sea fishing resources of the
Territory were not in fact known until quite recently. It was only dis
covered and became properly assessed after World War Il. It only
became developed since the early r95os.
That briefly, Sir, I think indicates the scope and nature of the known
natural resources of the Territory, showing great diversity and variety
over so vast an area as I have sketched.
Mr. MuLLER: You mentioned as the third problem the human re
sources. Could you deal with that?
ilfrKROGH: Yes. First of all, very briefly, there is the size of the
population. ln 1920, as you know, the size of the population was a quarter
of a million: today it counts half a million. It has more or less doubled
itself in40 years. The importance of the size of the population is that74 SOUTH WEST AFRICA
such a small population scattered over so wide an area obviously does not
offer any considerable internai market, either for industrialization or for
encouraging modern economic activity. Surplus products cannot be
d.isposed of in so small a market. In other words, all modern forms of
economic activity, virtually without exception, will have to be directed
towards foreign markets, rather sophisticated export markets.
But this is not the only important implication deriving from the size
of the population from the viewpoint of economic development. If we
bring the size of the population in relation to the vastness of the area,
and remember that the population is not concentrated at one point but
spread over the larger part of the area, then we find that South \Vest
Africa has, in fact, the second lowest population density in the whole of
Africa-its neighbour Bechuanaland having the lowest. And, also to be
remembered here is the fact that Africa as a whole has the lowest popu
lation density of all continents in the world. So South West Africa is in
fact an exception in Africa, which again is an exception in the world.
Low population densities, apart from indicating the necessity for
exporting because of a limited local market, also add weight to the
difficulties already mentioned with regard to the vastness of the Terri tory
in supplying modern means of communication and administration. They
increase the cost thereof, often making it quite prohibitive with regard
to the output or the revenue to be obtained from undertaking any
economic activities on a purely economic basis.
An important last point remains with regard to the population density.
It also means, of course, that the land labour ratio is very favourable in
the case of South West Africa. There is probably much more land per
head of the population than in most other African territories or in most
other parts of the world. This indicates, from an economic viewpoint,
that agriculture, rather than industry, enjoys a comparative advantage
in the case of South West Africa. Its economic future lies, I think, more
in its agricultural development than in its industrial development.
Mr. MULLER: Will you next deal with the nature of the population,
which was the fourth problem which you mentioned.
Mr. KROGH: Yes. I shall try to be brief about this. The most distin
guishing feature from the viewpoint of the nature of the population,
irrespective of its size, is the dearth or the lack of entrepreneurial or
enterprising elements in the Terri tory. Now this is not unusual. You find
this to be characteristic of most types of societies that we and the
sociologists have lately corne to refer to as "tradition-bound" societies.
They do not display internai enterprising elements that strike out and
supply the necessary dynamic momentum, from the economic viewpoint,
to the society as a whole. They cannot overcome these major economic
problems that I have mentioned. They cannot establish and create
modern economic opportunities and activities. This is the one character
istic.
The second characteristic of the population is, of course, that you had
in South West Africa this White section of the community that did not
beJong totfos type of Society. You need not research to establish this-.it
is quite obvious that they belong to a quite different type of society,
from the economic development viewpoint. They are members of what
we would call a modern, economic dynamic society. They are persons
who spontaneously or automatically discover, undertake, and organize
modern economic activity in those parts of the Territory which they WITNESSES AND EXPERTS 75
inhabiL Thus, there is not only a general lack o[ enterprising qualities in
the Territory, to undertake modern economic activity, to establish it, to
maintain it, to organize it, to expand it, but there is also this great
difference in the economic qualities, the economic performance, the
economic aptitudes and attitudes of these two sections of the community.
Mr. MULLER: You mention social environment as being the fifth
problem in the list of five that you indicated to the Court.
Mr. KROGH:Yes. As if South West Africa does not suffer from enough
economic problems of development, it moreover does not share an eco
nomic advantage often enjoyed by small populations in other parts of
the world, namely the presence of a homogeneous social environment.
The latter is characteristic usually of smail populations, and in this
respect they usually enjoy an economic advantage over large populations
that, generally speaking, are inclined to be more heterogeneous. Social
mobility, or the social environment, is an important aspect of economic
development. This is increasingly being discovered and is increasingly
being studied and stressed. Itis a great mistake, and quite misleading,
and, I think, can be disastrous, to equate the social atmosphere or
environment of a relatively homogeneous European or other country's
population with that found in a territory such as South West Africa. It is
important because social mobility pennits and allows certain members
of the community to make sacrifices for the benefit of the rest and the
whole community. On the other hand where you have a plural type of
population, this sacrifice in having to adapt yourself, or in having to
move from one place to another because of economic considerations, is
not seen to be in the interests of the community, but of a homogeneous
community as a whole as part of the family, in fact as a sacrifice of one
group to the advantage of another group.
This advantage and disadvantage approach does not really occur or it
is not viewed that way; itis in fact tolerated in a relatively homogeneous
society, but this unfortunately is not the case in a plural population.
Here their loyalty is first and foremost to, and their interests are seen to
be those of their particular group rather than that of the population
considered as a whole. I make this point, Sir, because it is very difficult,
under such a set of circumstances, to devise a policy of admmistration
and developmcnt that could in fact satisfy every group, and every mem
ber of every group, all the time everywhere in the Territory. To deny
that this exists is, without doubt, inviting disaster and strife in the
Terri tory.
Mr. MULLER:Mr. Krogh, how would you describe the type of economy
which has such large regional as well as population differences as you
have indicated to the Court?
l\Ir. KROGH:\Vell, Sir, these wide regional and group differences from
the viewpoint of economic performance, and from the viewpoint of
economic absorptive capacity, are not peculiar to South West Africa.
It is receiving more and more attention in the literature on the
subject of the economic development of underdeveloped countries. As a
matter of fact some very eminent economists Tt!cognizethis as a special
feature of underdeveloped countries.
I do notwant to linger on this point. I just want to mention that these
diversitiesvary of course in intensity. In any case it leadstothe fact you
do not have a single economy, but special problems affecting special
areas. or groups in a terri tory. This leads to a division of the economy SOUTH WEST AFRICA
into, not different compartments, but in fact, different economies. Hence,
the concept of economic dualism that has corne to receive general
recognition in the literature on this particular field.
With the permission of the Court, Sir, I would very briefly like to
quote a passage from an eminent economist, Professor Albert Hirschman,
who was until recently Professor in International Economie Relations at
Colombia University and, I believe, at present, Professor in Economies
at Harvard University. I will be quoting from his very well-known book
The Strategy of Economie Development. I believe that this dualistic ap
proach with regard to underdeveloped countries was inspired by French
literature on the subject. I quote from page 184 to illustrate the point
that economic dualism is quite often found to be the case in the under
developed world and, that these diversities vary in intensity and hence
also the type of development problem and the extent to which this has
to be specially recognized and respected, with regard to economic devel
opment policy:
"The ability and tendency of growth [this is economic growth]
to round itself out for a long time within some sub-group [and sub
group refers here to human group], region or country while back
wardness retains its hold elsewhere has often been noted. If the
tendency manifests itself along clearly marked geographic lines, the
result is the division of the world into developed and underdeveloped
countries and the split of a country into progressive and backward
regfons. On the other band, progress and tradition may dwell in
close spatial proximity by simply fastening on different human
groups and economic activities that exist sicle by sicle. This state of
affairs, often encountered in developing countries, has been aptly
termed 'dualism' ... "
I want to mention in this regard that, you fi.nd, of course, different
types of dualism. lt is most striking in the case of South West Africa,
both with respect to regional differences-the variety and diversity in
the economic capacity of the Territory-and also with regard to the
different population groups in the Territory. Because the latter is, in
fact, so striking from the viewpoint of econornic development in the
Territory, I should think it would be a better description to refer to the
economy of South West Africa as a type of socio-econornic dualism,
stressing not only that this dualism exists as a result of purely technical
and economic reasons, but also because of major differences in the social
structure and atmosphere in the whole Territory. I might just mention
for the sake of interest that "socio-economic dualism" is a concept that
was first coined by Professer Bocke from the Netherlands. It is only
during the last fiveto seven years that this subject, after having been
neglected, is again receiving special attention.
Mr. MULLER: Professor Krogh, before we proceed, do you know
whether the publication to which you have just referred is in the
library of the Court?
Mr. KROGH:Yes, I have established that this is available, not in the
library of the Court, but I have been assured that it has been quoted in
the documents that have been submitted to this Court.
Mr. MULLER:In the written pleadings?
Mr. KROGH:Yes, Sir. I have been assured of that.
Mr. MULLER:Now, to proceed. What contribution could and did the WIDIESSES AND EXPERTS 77
European population group in South West Africa make in econom1c
development of the Territory?
Mr. KROGH: Weil, Sir, without repeating myself, I think it could be
said that there was no population group in the Territory other than the
White group that could be e.xpected to discover the possibilitics to
introduce or undertake modern economic development in the Territory.
There were no s1gns of this. In fact, there were more warring groups, the
one taking away openly by way of warfare from the other whenever there
was drought and thcy had to live or die; that was the only choice open to
them, and I personally think this was the main reason for these very
many inter-tribal warfares. It is simply that very often in this particular
terri tory they had no choice-they had either to take from the other one
or die through lack of the basic means of subsistence during periods of
prolonged drought which we ail know were very frequent in the Terri tory.
But this is from the viewpoint of an economist. There might be other
rcasons for this, too.
The point is that the White population group and its individual
members sought out-they automatically do so, it is inhercnt and this is
characteristic of them from an economic development viewpoint-the
modern economic possibilities, the investment of funds, the experimen
tation with different techniques that are most appropriate or suitable to
the particular area which they develop and, in fact, by doing this, they
not only demonstrate, they also develop and organize modern economic
development in the Territory, thereby creating the necessary knowledge
for the dcvclopment of the other parts of the Territory which are tradi
tionally and othcrwise occupied by other sections of the community. 1t is
impossible to think that this could simply be imported from outside
because the development problems of most countries cannot just simply
take over the techniques of production developed in other societies. A
particular regional, marketing and natural resource base rcquires different
application so that this necessitates the adaptation of techniques of
production that already exist to the particular economic possibilitics of
the area. But this is not the only factor. The point is also that-and most
important I think-undertaking this, establishing these modern eco
nomic developments in the Territory, in fact crcates economic oppor
tunities that allow and, in fact, are takcn up by the members of other
sections of the population in the form of labour employment. This is the
only by-the-way product that they could contributc at this stage of their
economic development to the development of the Territory-this is their,
in fact, comparative advantage (these other sections of the community)
whereas the White sector, or the \Vhitc communities, in fact, invest
capital, introduce modern techniques of production, modern methods of
farming and lead to initiation, establishment and extension for expansion
of modern cconomic activitv.
l\lr.MULLER: On the other hand, again, just to complete the picture,
were the Native groups on the whole able to make any contribution to
the modern economy of the Tcrritory? You have mentioned that they
could provide labour. In addition to that, do you think that they could
have been entrepreneurs or in any other way assisted in the economic
development of the Territory?
Mr. KROGH: \Vell, generally speaking, I think not. They could not,
in fact,contribute to any important or considerable extent to the intro
duction, organization, maintenance and development of modern economic78 SOUTH WEST AFR!CA
activity until quite recently. You now find clear signs that these people,
in areas specially set aside for them and protected from competition,
can, in fact, make this contribution,but this, as it were, in economically
protected areas and avenues for them. For the rest, and seen from their
viewpoint, they are, in fact, linked up with and related to the modern
economic sector, and in this sense contribute to the modern economic
activity in the Tcrritory, largely as unskilled and also to a considerable
extent as migrant workers. This is of course not peculiar to South West
Africa. It is a quite common phenomenon in the rcst of Africa, especially
in Southern Africa, where the modei:n sector of the economy is far more
advanced than in other African territories. Jt is true that traditional
subsistence activities have bcen commercialized in other territories but
this is just one little step further in the stage of economic development
from the traditional which uses primitive means of production and non
capital intensive production methods. Commercialization is a transitional
stage from a traditional subsistence to a modem type of economy that
uses highly scientific means of production, capital intensive forms of
production requiring highly skilled labour.
Therefore, when I speak about the modern economy I do not mean to
refer to a stage immediately following the traditional subsistence type of
economy. There is a transitional stage of commercializing traditional
economic activity and this is still a very far way off from undertaking,
managing, organizing and financing modern economic activity as we
know it, for instance, in the Netherlands, or in the most highlydeveloped
countries of the world. This is also increasingly being recognized and, in
fact, made explicit in studies on the economic development of under
developed countries.
Mr. 1iuLLER: In regard to the conditions described by you in South
West Africa, would it have been advisable to have introduced an inte
grated economic policy-a policy of economic integration in the Terri
tory?
l\fr. KROGH;No, Sir, and I feel and think this is quite obvious to an
economist. By integrated-different social sciences mean different things
by the word "integrated"-the economist would understand, if I under
stand your question, free competition-by that I mean "the best man
wins". Then, I would sa.y "no" under the circumsta.nces in South West
Africa because I think it would be grossly unfair to the economically
weaker groups to compete on a free basis with the traditionally stronger
economic groups. I think this would be unfair to the economically
,veaker population groups, and I am now referring to the private sector.
Turning to the public sector I would say that in the interest of economic
development there is no doubt that it would be wasteful to extend
uniform standards of public administration and services, such as trans
portation, communication, telephone services, forms of law and order
and other public facilities that would normally be taken to facilitate
private economic activity to every part of the Territory, or to every
group irrespective of its economic absorptive capacity. Now by this
concept I simply mean irrespective of the extent to which they could in
fact make productive use of these resources.
Mr. MULLER:What in your opinion would be a more advisable ap
proach?
Mr. KROGH:Sir, I think you must bear in mind your ultimate aim.
Your ultimate aim, I think, from the viewpoint of economic development WITNESSES AND EXPERTS
79
is to obtain a more productive use of avilable resources. In the case of
South West Africa this tome, and I think to any other economist, would
be to introduce and develop-modem economic activity-to bring
modern techniques of production and outside capital to bear on the
economic problems of development in the territory-its natural sources
and its population. Next, to develop this modern sector of economic
activity and to use the revenue and the surplus value (if I may use that
concept in the economic development sense and not in the sense of some
other economic ideology), to develop the other areas and economically
less developed population groups-to extend as it were the modern
sector of economic development once it has been introduced, firmly
establishecl and consolidated, to other parts of the Territory that had
previously been economically less accessible either because of the distance
factor or because of the poor economic viability of the people who
occupied these areas. Meanwhile, of course, they would not in any way
be excluded, but in fact share in the advantages of the development of
this modern sector or modern economy. They would enjoy the advantages
and have the benefit of living at higher standards of living by virtue of
being employed in the modern sector as wage earners, and furthermore to
acquire experience and skills, thereby making them economically Yiable.
It is clear to me that in the case of South West Africa, the problem of
establishing and developing a modern economy is largely an economic
and technical problem, whereas the expansion and extension of modern
economic activities to those underdeveloped areas of the Territory that
are inhabited by what we technically call economically static and
tradition-bound societies would necessarily be quite a different problem.
It would be a problem of human development rather than a purely
technical economic development problem. .
I would a1solike to say, with particular reference to South West Afnca,
that it is ,ùl good and well to say that you have got to make the most
productive use of available resources, but it is not to be forgotten that
you have to achieve this in a social atmosphere that is distinctly different
from that which is normally encountered and experienced in relative~y
highly developed industrial societies in Europe, for instance, or m
America for that matter. You will have to recognize the diverse and
heterogeneous nature of the population that is organized in different
groups, primarily seeing their economic interests from the group rather
than the national viewpoint. You will have to remember this all the time
in order to ensure social pcace and their co·operation-if you do not get
their co-operation you will not have modern economic development and
if you do not have social peace you will not have modern econom~c
development or reform anyway. So, it is all good and well to state th1s
objective but you must take into consideration the particular social and
regional problems in the Territory. You will have to pursue a policy of
economic development in a social and administrative framework that
would ensure social peace and the co-operation of the different groups in
the difficult task of development. I would say this is a pre1equisite for
modern economic development in the particular circumstances as pre
sented in South West Africa, Sir.
Mr. MULLER: Does the approach just described by you imply differen
tial trea tmen tas between the different population groups in the Territory?
)fr. KROGH: I am afraid, Sir, that I might repeat myself but I shall be
very brief about this. In view first of all of the fact that the problems ofSo SOUTH WEST AFRICA
economic development in South \Vest Africa are not the same every
where in the region-there are great regional diversities-hence, even if
you had a very socially homogeneous population you woulcl still have to
haYe a differential policy with regard to the striking differences in the
natural climatic nature of the Territory. This woulcl naturally mean a
decentralized form of government in any case, because the south is quite
differcnt from the north or centre from the purely natural resource view
point of development. But apart from this, the most important difference
isthat the problem of economic development as I have pointed out in my
previous reply, Sir, is quite different in the case of the White population
group comparcd to that, as we economists would say, of the most back
ward or primitive economic groups, such as, for instance, the Bushmen.
Therc arc also other population groups that differ considerably from each
other in respect of economic viability, but I am mentioning these two
simply because it is more obvious and evidcnt that the economic ab
sorptive capacity of the White group on the one sicle is definitely, as far
as 1 am concerned-and I am sure that every economist would agree with
this-generations removed from that of the traditionally subsistence
organized type of societies and their economies. In the one case, it is a
human problcm; in the other itis a purely economic-technical problem.
Hence, because your problems are differcnt you will have to have
different approaches and you will have to use different measures. You
will have to have different policies with regard to the economic develop
ment of these particular groups and the areas which they occupy, Sir.
Mr. MULLER:\Vould you in the circumstanccs say that it is necessary
to have different promotional measures, for example?
Mr. KROGH: Yes, Sir. I think we can illustrate this with regard for
instance to the acquisition of land and the improvement of land, and
then we can also try and take another example. But let us first concen
trate on the acquisition of land. In view of the high agricultural potential
or productivity displayed by the members of the White group, they are
in a position to acquire land as a means of living or to effect economic
activity by purchasing it. They can recoup the cost or rcpay it from the
proceeds that will be derived from the productive effort that will go into
the development of this land and the productive use that will be made
thcreof. In other words, there is no need to give them land as they can
acquire this by way of individual purchase with a view to the prospect
of the high productive use to which they will put this land.
ln contrast to this, you will find that in the case of the non-\Vhite
groups, the individual who wants to acquire land will not be in a position
to acquire this by paying for it in the same market. This to me clearly
reflectsthe differences in the productive use to which the two members
of these different types of societies makeof land, that is the diffcrence in
their productive capacities. In fact, if you do not give this land to non
\Vhite groups gratuitously I cannot see how else they will acquire it if
they have to compete in the same market for the land with members of
the White community.
I can very briefly illustrate this point further.et us take it that they
do acquire land one way or another, say through differential measures
in which case it is givento the one and the other has to purchase it in
order to hold it for his economic benefit; improvements to that land will
be affected automatically or spontaneously, as it were, by the initiative
and again by the finance of the individual White farmer. You can in fact WlTNESSES AND EXPERTS 81
rely on the vVhite former to bring this about. He just operates this way
traditionally and, of course, with the aid of knowledge that he has ac
quired ovcr many gcnerations. The initiative he displays in this respect
his economic enterprise to bring about these improvements, to organize
them and finance them privately are traditional. Now, I am afraid that if
you rely on the private individual in the case of the members of the other
groups to bring about automatically or spontaneously, as it were im
provements to the land, given to them gratuitously, remember, no such
improvements will be forthcoming without outside encouragement and
outside demonstration by way of example, without outsi<le organization
and by way of outside finance. He is just not at an economically produc
tive levelthat would justify him fi.nancing this privately with the pros
pect of paying for this out of the productive use he would make of the
improved land. This does not refer only to agricultural development, I
can also very easily illustrate this with regard to the development of
non-agricultural activities, but I think another very good example which
is very much relevant to the case of South West Africa is that of drought
relief. This can be regarded as a form of "promotion" rather than reha
bilitation in a type of country where droughts are normal, such as in
South West Africa. Here you find that in the case of the White farmer,
for instance, you can rehabilitate him by advancing repayable loans to
him with the kno\',rledge again that he will within a relatively short
period be able to repay these due to his higher level of productivity and
the productive use he makes of his land. But in the case of the non-\Vhite
farmer the amount will necessarily be smaller because he has no large
productive debt to begin with. Secondly, it will largely take the form of
relief and consist of basic foodstuffs and animal feed to keep man and
beast alive. It cannot possibly be expected of the member of the second
type of society ta repay this in view of the low productive use to which
he puts the land. I think this illustrates the point clearly that you have
to use differential measures in order to be fair and productive at the
same time. You have to recognize the different stages of economic
development, and hence the different problems which to my mind
necessaril y calls for differential economic policy measures of development.
Mr. l\1uLLER: The position that you just described-does that apply
in respect of all the members of the different populations or have you
already in South West Africa attainecl a position where certain of the
non-\Vhite people have progressed towards the modern economy?
Mr. KROGH: Sir, bearing in mind that I make a technical distinction
between a modern, a commercialized and a traditionally subsistence
economy, I have no doubt that since 1920 most of the members of the
tradition-bound subsistence economies have in fact advanced to the
stage where their ways of earning a living are commercialized, bath in
the sphere of agriculture and in the sphere of wage-earning, generally
speaking. I cannot take every group individually now. They are no doubt
advancing towards a type of economy that I have described as modern,
using modern techniques, modern forms of organization, modern invest
ment and finance, but I cannot see this happening in terms of years or
even decades for that matter. This is a slow process of graduai develop
ment. It would be completely wrong I think, and misleading, to imagine
that this can corne about overnight or in the period of a five-year devel
opment plan. This is absolutely false from the viewpoint of economic
development.82 SOUTHWEST AFRICA
Mr. MULLER:Professor Krogh, _before we recessed we were dealing
with differential measures of promotion. Would you tell the Court
whether the measures mentioned by you, or any other measures, are in
the nature of protective measures, that is, protective in the interests of
different population groups?
Mr. KROGH:Yes, Sir. If we could take two examples ta Hlustrate this
it might become clearer. With regard to land ownership, it follows from
what I have said previously in reply to other questions that it would be
necessary to protect the economically weaker or less productive or less
viable groups against the economically stronger and more resourceful
with regard to land ownership. Thus, for example, it would be necessary
to ensure that the economically more resourceful and stronger group
would not transgress onto the land owned by the economically weaker
and less productive, for if this protection was not given I have no doubt
that in a relatively short period of time the economically weaker groups
holding land would not have an opportunity to earn a living on the land;
they would, in fact, become a landless people if no protection was
afforded in this respect.
Similarly, Sir, I can also,ith reference to the whole plural nature of
the population of South West Africa-by "plural" I of course mean
different social groups living in the Territory-very well understand and
appreciate the need for protection or restrictions on the ownership of
land by one mcmber of one group in the area traditionally set aside, or
since set aside, or occupied by the members of another group for the
sake of social peace. There may be the fear of land alienation-that the
opportunity to earn a living on the land will be taken away, and might
only after many generations again become available for the members of
that particular population group. First, then-1 shall put it very briefly
to protect the economically weaker against the economically stronger and
more resourceful, and also for the sake of social peace. I could very well
imagine that even in the case where population groups are at the same
level of economic development, it could very well lead ta social strife and
upset the delicate social balance in the Territory if members of one group
insisted on obtaining, or in fact obtained land occupied by another group,
if this other group felt that this would lead to the alienation of their
land. This does not only, Sir, apply to land owned by Whites on the one
hand and the different non-White population groups on the other. It
also refers, Sir, to the occupation of land by members of one non-White
population group that may be at the same level of economic developrnent
as another group. This is a fact that you cannot ignore, and you will
ignore it at the expense of social peace and therefore, indirectly, at the
expense of economic co-operation and development in the Territory.
I can also illustrate the need for protective rneasures, Sir, with regard
ta employment opportunities. It may be lamentable from the viewpoint
of economic development, but it is no use lamenting it or ignoring it; you
have ta tackle these difficult problems, and devise policies designed to
ensure the co-operation of the different groups and ta ensure social peace
before you can think in terms of economic developrnent. The point here
is that I can very well understand that the members of one population
group would give preference to job opportunities created by them or, in
fact, created in their area or available in their area. They may prefer that
these jobs should be occupied by members of their group, and this is a
very obvions phenomenon, internationally and even in the admission of WITNESSES AND EXPERTS
migrant labourers from the Mediterranean countries to the more econom
ically developed countries here, in the rest of Europe. The job oppor
tunities created, and those that do in fact exist, are occupied largely by
the members of a particular group in an area in which they occupy and
live: if they are economically weaker to occupy those jobs, then you will
have to protect them against these jobs in fact being occupied by the
economically more skilful or stronger. This may not be in the economic
interest of the Territory viewed as a whole, but you cannot, under the
particular set of circumstances such as in South West Africa, always
regard the Territory as a whole as your socio-economic unit. You have
to recognize, in addition, just as you would in the international world,
different population groups, and that these population groups in fact
constitute the socio-economic units of development for policy purposes.
I can also very well understand that in the interest of the economic
security of members of certain groups, if their job opportunities that are
occupied by them are in fact threatened, if their employment conditions
and their prospects for employment are threatened, they would in fact
insist upon protection against the alienation, as it were, of these job
opportunities by members of another group. Therefore I think there is
room for protective measures with regard to the protection of the
economically weaker against the economically stronger, and purely with
regard tosocial considerations of security and for the sake of social peace.
I cannot over-emphasize the need and the difficult task of ensuring social
peace under the circumstances of South West Africa. It is a Territory
where wars and mutual suspicions have characterized its long history
before 1920, and I feel that there is room for these protective measures
in the interest of economic welfare, as seen from the standpoint of the
different population groups, as the social units, and not purely as seen
from the standpoint of the Territory viewed as a whole.
Mr. MULLER:The measures which you have mentioned~do they
impose restrictions on individuals, members of different population
groups, and if so, do you think that is justified?
Mr. KROGH:Well, Sir, I am not aware of all the restrictive measures
and regulations operative in the case of South West Africa, nor am I
fully acquainted with all the considerations that underlie the imposition
of these restrictive measures, but I do know of restrictive measures
operating in South West Africa with regard to land ownership for exam
ple. I know that a number of other non-White population groups and,
for that matter, the members of the White group, are not in fact per
mitted or allowed to own land set aside for the exclusive ownership of
the members of some non-White population groups. I can explain this,
for instance, with regard to Ovamboland, or the Okavango, or Kaoko
veld, any of these places, where membcrs of the White group are not
allowed to own land. Neither are members of other non-White groups
-for example, from the south-allowed to own land in, for instance,
Ovamboland. Now, I can understand the White group being excluded
from owning land there from the viewpoint of protecting the economically
weaker against the economically more resourceful and stronger. I can
also understand that there would be social strife and upheaval if the
Herero, for instance, were to corne into Ovamboland and be permitted
to occupy large parts of the land set aside for the Ovambo.
Ican very well understand that the authorities_ would be approached
to prevent and protect the land from being alienated from the Ovambo SOUTH WEST AFRICA
to, for instance, other population groups; or, the Ovambo entering again
an area set aside for the Bushmen, for instance. I can very well under
stand all this and that it may be necessary, for the sake of social peace
and the wishes of these different population groups, that there should be
protective measures in this regard.
I also know of protective measures operating in the \Vhite area. I
know that non-White members coming to the modern economy in the
White areas, seeking employment and being in fact employed there on
a large scale as wage-earners, are not prohibited from occupying land,
for instance, in the urban areas, for residential or business purposes.
This is land which is set aside for them and they are allowed to occupy
it but they are, however, not allowed to own this land. This is a condition,
as it were, set by the White population group, that they are allowed to
reside there, to have the benefit of occupation of land for business and
economic purposes. They can, in fact, improve and put up businesses
there and use the economic benefit derived from the occupation of the
land. This does not prohibit them, or this does not in fact stop them from
d0ing this.
I have seen this very often myself. I was there very recently again.
They put up businesses, they enter into business, they improve their
assets on this land occupied by them, not feeling that these assets would
ever be taken away from them, or that they would be confiscated-ncver.
They would be compensated for this, I can assure you, if they were not
tolerated by members of the White group, but to my knowledge they are
not allowed to own land there.
I also know that there arc no restrictive measures operating on the
ownership of land in what I call the "White rural areas", except, I
think, with regard to certain probational settlement schemes, but on
the whole there are no restrictions placed, for example, on the ownership
of land in the rural White areas with regard to non-Whitcs. ln fact,as
far as I know, there are no Natives owning land in the White rural arcas
and this, to my mind, illustrates that they are either not able to afford
this land-because the market value is determined by the productive
use made thereof by \Vhite farmers and they cannot afford this and
cannot use that land productively-or even if they can afford it, that
they probably will not wish to stay there among these White far
mers.
I also know that there are restrictive measures with regard to prospec
tingand mining rights. I know that Whites are prohibited from prospecting
or acquiring mining rights in the areas set aside for the non-White
population groups. I also know of similar measures operating in the White
sector-that non-\Vhites are, in fact, excluded from prospecting or
obtaining mining rights in the White area. Why does this operate, this
last restriction? This is not on the grounds of protecting the economically
weaker against the economically stronger. It makes no sense. But I can
very well appreciate that this is for the sake of social peace and in the
interests of the \Vhite population group laying down these particular
restrictive measures, through feeling that the members of the othcr
population groups have equal opportunities for owning, of prospecting
and of obtaining mining rights in their areas. This is a restrictive measure,
I think, that might be justified under the circumstances by the authorities
in view simply of the need for social peace, without which there cannot
be any considerable modern economic development in the Territory. WITNESSES AND EXPERTS 85
I also know of restrictive measures with regard to the holding of jobs.
As I have illustrated, I know that administratively-1 do not know all
the regulations and laws, I do not know ail the details~there is prefer
ence given to the employment of Ovambos in, for instance, jobs available
and created in Ovamboland. I have in fact been thcre quite recently and
I have seen that in the field of public administration, jobs are being held
and preference is being given to the Ovambo to the extent that these
people are available. They are encouraged to hold jobs in the field of
public administration. I have also seenthem doing skilled jobs connected
with development projects that are in progress there on a large scale. I
have seen Ovambo contractors making bricks, driving tractors and
employed in all sorts of other occupations. I saw a factory there quite
recently, at Oshikati, not far from Ondangua, where on the factory floor
there were Ovambo skilled and unskilled workers. I cannot quite recollect
the number but I should put it, very roughly, at let us say something
like 25 or 30 of them working there, and there were only at that time two
Whites serving there to demonstrate to them and to manage this par
ticular factory, but on the express understanding by the authorities that
as soon as a qualified membcr of the Ovambo group was able to do this
job this would be given tohim, even if he were, cconomically speaking,
less qualifiedthan the White manager to do this. This is, I believe, also
the wish of the Ovambo. I can quote other examples but I do not think
that will be needed now.
I also know that such restrictions on job opportunities, or what is
generally referred to as the reservation of jobs, exist in certain posts in
the mining industry in the White sector. I am aware of these restrictions.
I am also awarc that in the supply of public transportation services in
the White sector there are restrictions on certain employmcnt oppor
tunities giving prcference to members of the White group. I can vcry
well understand that for the sake of cconomic security and for the sakc
of avoiding any social strife, these reservations operate with regard to
certain posts to ensnre the employment conditions and prospects for
members of the White group if they were in fact threatened. I know of
this and I can understand why these restrictions operate, but at the same
time it is very important to remember that a much wider range of restric
tions operates with regard to job opportunities in the non-White areas
compared with these few posts in the mining industry and in the supply
of public transport.
I know in fact that preference is given to the employment of non-White
transportation personnel for the operation of road motor services in non
White areas. I can understand the reason for these restrictions-yes.
They are in the interests of protecting those who would otherwise have to
face unfair competition from the economically stronger. I can also under
stand that where this is not the case, even if they were at the same Jevel
of economic development, that it is simply a matter of the group insisting
upon and wanting these job opportunities not to be occupied by
members of the other group-that is wanting preference to be given to
the members of its particular group. Such restrictions are therefore for
the sake of social peace without which, I cannot over-emphasizc, there is
little prospect of cconomic development in the Territory anyway.
Mr. MULLER: Mr. Krogh, I have one final question. I want you to
express your opinion on what the effect would be if these differential
measures of promotion and protection which you have mentioned were86 SOUTHWESTAFRICA
to be done away with by reason of applying a nonn, or a rule, or a
standard which prohibits differentiation on the basis of membership in
a group, or race, or tribe.
Mr. KROGH:Well, Sir, under the circumstances I have sketched to
you, and bearing in mind these diverse social and economic conditions
in South West Africa, I have little doubt in saying that it would lead to
the rapid deterioration of the material and economic welfare of the
majority of the population, and by this I particularly refer to the non
White population groups. I can also see that they would not tolerate this
and that this might very well lead to social strife, that would in fact
arrest the economic development of South West Africa. The economic
development of this Territory is exceptional in Africa, even having
grown from a lower base than that of the Republic of South Africa, it
has advanced at a rate faster than that of the Republic of South Africa
during the last 40 years during which the latter experienced a pheno
menal industrial revolution. Confidence would be lost, economic develop
ment and bctterment would be arrested as a result of encouraging, as it
were, social strife in the Territory. And, I cannot see how the Iong-term
basic problems of economic development in South West Africa would
thereby be made any easier. ln fact, I believe that more problems would
be added toits economic development.
Mr. MULLER:Thank you, Mr. President. I have no further questions.
The PRESIDENT:Mr. Gross.
Mr. GROSS:I have questions, Mr. President.
Dr. Krogh, before asking you certain questions arising out of the
testimony which you have just given to the honourable Court, may I
enquire, Sir, where you were born?
Mr. KROGH:As I have said in my testimony, I was born in Windhoek.
Mr. GRoss: In Windhoek: I am sorry I did not hcar that, Sir. And how
long have you lived in South West Africa?
Mr. KROGH:I lived in South West Africa until my seventeenth year
when I left the Terri tory to study further in South Africa, and thereafter
overseas. I have lived in South Africa ever since, where I work, and I
have never held any jobs or positions in South West Africa.
?ifr. GRoss: Could you indicate to the Court, let us say to take an
arbitrary period, during the past five years, how much time, ifany, you
have spent in South West Africa?
Mr. KROGH:Sir, the nature of my research that I have mentioned is
such that it is most time-consuming, particularly the calculation of the
national expenditurc and income series for South West Africa covering
the period 1920 to 1956, which was one of my important publications.
In the course of this work it was necessary for me to visit the Territory
quite frequently.
Ihave also visited the Territory occasionally, that means not regularly,
for the purposes of vacation, but I have not stayed there, in the sense of
living there, sincemy seventeenth year.
~Ir. GRoss: You have travelled throughout South West Africa exten
sivelv, have vou?
l\IrKROGH:Yes, I have travelled in the course of my research, of
course, and during vacations. I like the Territory very much-most
people cannot quite understand that, but I think that you have to be
born there in order to appreciate it. I have travelled in the Territory but
because of the vastness of the Territory I have not, of course, been to WITNESSES AND EXPERTS
every corner of it, or to every part of it; neither was this required for the
purpose of my research.
Mr. GROSS:Was most of your research carried out in Windhoek? Or
did you visit the northern areas for any extended periods as well?
Mr. KaoGH: I must put it to you this way. There are two publications
of mine on the economic aspects of South West Africa: the one is the
national income series. For this I did in fact spend most of my time
in Windhoek as you can appreciate. This is the administrative capital
and this means that most of the material is available there. But Ihave
also had the opportunity and in fact visited Ovamboland in order to
assess the economic possibilities there, and in order to ascertain, cal
culate and estimate the production, the output, of this particular area.
I also visit:ed some of the non-White Reserves in the southern sector of
the economy but, as you can know, I think there are quite a number
something like 17 or so-and it was not necessary in the course of my
research to visit every one of these non-White territories.
l\Ir. GROSS:With respect to Ovamboland, Dr. Krogh, would you
indicate to the Court approximately how much time you have spent in
Ovamboland?
Mr. KROGH:Yes. This was in connection with my research, because I
did not go there for any vacation purposes. I can remember very clearly
that I have been to Ovamboland for a period of three days. It was not
necessary, for my particular research purposes, to go for any longer
period than that or to travel to every part of Ovamboland.
l\Ir. GROSS:Altogether you have been in Ovamboland three days, or
were these three-day trips? Idid not quite ...
Mr. KROGH:No. I have been there for three full days.
Mr. GRoss: I see. Altogether.
Mr. KROGH:Yes.
Mr. GRoss: Did you, while you were there, have occasion to discuss
matters with the inhabitants of the Territorv-economic matters or
other matters pertaining to their life or livelihood?
Mr. KROGH:I have not discussed this in any detail with individual
Ovambos. It is for me, as somebody who has had experience in this kind
of research, to determine their main economic activities, to assess the
value of these and to look at the different economic opportunities open
to them. As a matter of fact, I recall now that I visited quite a number
of the individual businessmen who operate their businesses in Ovambo
land, which was a very encouraging sign. I discussed their problems with
them; asked them where they purchased their wares and what problems
they experienced with regard to the expansion of their businesses. I did
not discuss in detail the agricultural problems of development with the
people of the Territory, but I did, however, obviously discuss this with
the agricultural offi.cers who are acquainted with these problems and,
who are in fact, doing everything in their power to improve the agricul
tural potential of these territories, and also the plans they envisage in
this regard.
Mr. GRoss: \Vere they Ovambos that you were referring to just now?
Mr. KROGH:Yes.
Mr. GRoss: ln what language did you speak with them?
Mr. KROGH:The traders were, in fact, Ovambo (it was very interesting
in this regard) who had been to the southem sector of South \Vest Africa
as migrant workers and had since returned to establish and undertake88 SOUTH WEST AFRlCA
these businesses in Ovamboland, and they could speak Afrikaans tome.
This is a language I am very well acquainted with. They must have
acquired the languagc either in schools or in the course of their work in
the southern part of the Territory.
l\frGROSS: Did you encounter other Ovambos cngaged in other
pursuits or occupations who also can speak Afrikaans or English?
Mr. KROGH: Yes. The Ovambos who are working in the administrative
offices can, of course, speak Afrikaans fluently, usually having been to
school for a long period. I think this is a qualification they have to have
in the public administration services. Yes, I could communicate with
them in Afrikaans.
111r.GRoss: As an economist, Sir, would you say that the knowlcdge
or the capacity to speak Afrikaans would be an important factor in their
economic life and activity?
Mr. KROGH: Sir, most of the communication with the outside world
which they have to have in order to pursue any modern economic
relations in South West Africa-and this is true of the Territory as a
whole ta get outside and is also true with regard to groups having
economic relations with the modem economic activity-their orders,
their communications for business purposes in fact-it is usual in your
business interest to leam the language of your customer or of your source
of supply. This isthe case ail over the world and, in fact, I should think
that they would regard this as in their business interest either to acquire
German, English or Afrikaans to establish and maintain economic and
business relations with other sections of the community.
Mr. GRoss: Are you familiar, Sir, with the approximate number of
Ovambos who annually corne to the southern sector for employment
purposes?
Mr. KROGH: Yes. I know these figures and their proportions.
Mr. GRoss: Would you mind explaining to the Court how many are 0
on the average, each year, from Ovamboland?
111r.KROGH: Yes. I would not be able to give you this figure with
regard to Ovamboland alone, but if you will permit me to give you
an approximate figure in respect of the area lying to the north of the
Police Zone, this would include then Okavango and the Caprivi, but I
know the number from Okavango and Caprivi is relatively small in
relation to the total number. In the I960 census this was determined to
be virtually 28,000-it is 27,000-odd. I just want to point out in this
connection that this figure refcrs to the Police Zone-that is it refers to
the number at a particular hour or evening of the census.
l\1r. GRoss: lncidentally, for the sake of the Court's convenience,
perhaps it might be as well to point out that the figure just cited by
the witness corresponds to that which appears from the tables in the
Odendaal Commission report which is beforc the Court in these
proceedings. The tables r8 and I9, which may be found at pages 39 and
41 of the report, do indeed confirm the figures you have just stated, Sir.
With respect for a moment again to this language question that I was
pursuing, do you regard, as an economist, that the knowledge of Afri
kaans, or any other lingua franca would be important to their pursuit of
their livelihood, or their economic advantage?-1 am referring to the
Ovambos or other migrant labourers.
l\Ir.KROGH: Sir, when you have economic (you want to use purely an
economic sense) relations, the two parties involved-and it is in the WITNESSES AND EXPERTS 89
interest of these two parties to have these economic relations, otherwise
they would not have them, and it is in the interest of both parties to try
and understand each other better. Therefore you will fmd (I know for a
fact)that many White farmers, for instance, and urban White dwellers
in South West Africa do speak some of these Native languages, that they
have in fact acquired, and they have found it in their interests to acquire
this knowledge in order to address, to inform and instruct these wage
earners as to what exactly is required of them in the course of their work.
So it is in their economic interest to communicate with these people
better. Similarly, I would say that it would be in the interest of the party
coming from Ovamboland and working, for instance, in the White sector,
to acquire, at least the most important single keywords or means of
instruction that are relevant to the nature of his employment. This
would satisfy his employer, just as the employer would think that to
learn the language of the other group would satisfy the employee, and it
would be in the economic interests of both these people, to the extent
that they communicate with each other, to try and acquirc a better
understanding of the language of the other if they have different lan
guages.
Mr. GROSS:How many vernaculars or tribal languages are roughly
spoken in the Territory?
Mr. KROGH:Sir, I could not possibly give you an answer. I know that
there are a great number, but I would not be able to give you that off
hand.
Mr. GROSS:So that with reference to my question concerning the
desirability of a lingua franca from the economist's point of view, would
your answer be that it is of importance to the development of the
economy of the Territory, and of the individual, in pursuing his live
lihood?
Mr. KROGH:To the extent that they have economic relations with each
other, I think that any means of better communication or understanding
among the parties would be in the interest of both parties.
Mr. GRoss: I assume, Dr. Krogh, that the Court is to understand
that your reference to economic relations refers to potential as well as
present economic relationships?
M.r.KROGH:Yes, I would imagine so.
Mr. GROSS:In that case, just to clarify the point one step farther,
would the development of a lingua franca in the Territory, to the extent
feasible, facilita te increased economic relationships?
Mr. KROGH:I would answer that question with regard to South \Vest
Africa, I think, in this way, by saying that obviously it would improve
economic relations between them, but of course, if this has to be at the
expense of a particular group's language there will be difficulty. I can
very well understand that, and we have this problem even in the White
economy in South Africa. We have the two official languages, as you
probably know-English and Afrikaans-but you find that the Afrikaans
group has a long history of having fought, politically speaking and
socially speaking, for the right of their language to become an economic
language. As you probably appreciate, the two languages-English and
French-are virtually the international commercial languages of the
world. But if this has to be at the expense of the development of other
languages--1 can very well understand that they would insist upon this
not happening or, in fact, coming about at the expense of this particulargo SOUTH WEST AFRICA
language. I can imagine this could very well be the case, but I must say,
and this is definitely true, that if you can improve understanding between
parties participating in economic relations, that this would be to their
individual benefit unless any one of the parties would object to this on
other than economic grounds. It is very important, I think, to remember
that economists should constantly bear in mind that economic con
siderations are not always and everywhere the prime and overriding
consideration.
Mr. GROSS: But to the extent that we are speaking here, and you are
speaking as a distinguished economist, you have, I think, fairly testified
that there is a relationship between the establishment of a communication
by common language, whatever it may be, and economic development.
Would that be a fair version of your testimony?
Mr. KROGH: Yes, I could say this, but may I just add that it is be
coming increasingly appreciated among economists that the subject of
economic development is far too difficult and important a problem to be
left to economists alone. They are inclined to think that economic
development is the only and prime consideration and this is not always
the case and they are increasingly appreciating this.
Mr. GROSS: Thank you, Sir. I think that, at this point, it may perhaps
be well to set a focus for subscquent questions that I intend to put to
you and where you speak as an economist you will undoubtedly, in the
light of what you have just said, also consider pertinent sociological, or
human, or other points of view that are within your sphere of experience.
I should like to read an excerpt from Article 22 of the Covenant of
the League of Nations which defines the sense and purport of the man
dates system, and have it in the record at this point so that it may be in
your mind, Sir, as we discuss ma tters from here on.
I have no doubt you are familiar with Article 22, paragraph 1, of the
Covenant, which I should like to place on the record at this point.
"To those colonies and territories which, as a consequence of the
late war, have ceased to be under the sovereignty of the States which
formerly governed them, and which are inhabited by peoples not yet
able to stand by themselves under the strenuous conditions of the
modern world, there should be applied the principle that the well
being and development of such peoples form a sacred trust of
civilizationand that securities for the performance of this trust
should be embodied in this Covenant."
I emphasize for this purpose-the purpose of my questions to you,
Dr. Krogh-the concept of territories "inhabited by peoples not yet
able to stand by themselves under the strenuous conditions of the
modern world".
And, then, one more brief reference to what is undoubtedly well known
to you from the second Article of the Mandate itself:
"The Mandatory shall promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the
Territory, subject to the present Mandate."
In the discussion of the development-the history of the develop
ment-which you traced at the outset of your testimony-the economic
development of the Territory-would you say, Sir, as an economist, that,
in any scientific sense of the word or technical sense of the term, the
inhabitants of the Territory at the present time, in the words of the WITNESSES AND EXPERTS 91
Covenant, are now "able to stand by themselves under the strenuous
conditions of the modern world"?
Mr. KROGH: Sir, I would say that, economically speaking, they are
well on their way to arriving at positions where they could be expected
in due course to become economically viable. Yes, I would say that they
are definitely far more advanced than they were in 1920 and that the
prospects of them acquiring and in fact fulfilling the desire and ideal
expressed by you, as in the documents, are well advanced. This whole
situation is dynamic. It shows a process whereby new opportunities are
continually being created for them. It is only during the post-war period
that they have, in fact, begun to display enterprising qualities of under
taking businesses on their own in their particular areas. And this is a
most encouraging sign. I believe this to be the result of the security they
have in this regard-the establishment of law and order, good forms of
public administration-and then there is also the market that has been
growing in South West Africa giving them increasing incentives. They
are not engaged in any export activity at this stage but they are, in fact,
exploiting economically the growing market possibilities that are spread
ing all over the Territory in view of modern economic developments.
I would iiay, furthermore, that it would be very unfair and; in fact,
misleading to expect these people to become economically developed in
the modern sense of the word in terms of two generations. 1 think it
would be very unwise to expect that to corne about.
Mr. GROSS: Would you say, Sir, that the development of accomplish
ment to which you have referred could be interpreted as a response to
the economic and educational opportunities which have been offered to,
or created for, the inhabitants?
Mr. KROGH: Yes, I would say that the incentives for economic develop
ment-the opportunities, and the qualities of the people have improved.
Definitely, yes, I think they have improved considerably. As a matter
of fact, I think it is a record to be proud of.
Mr. GROSS: Would you say, Sir, as an economist and as a persan who,
as you have testified, has an extensive knowledge of economic conditions
in South \Vest Africa ... ?
Mr. KROGH: Yes, Sir, I would say fairly extensive, as I have indicated
just now, the nature of my interest ...
Mr. GROSS: I had not quite finished my question. I was not questioning
you-1 was referring toit in that setting. Would you tell the Court what
your appreciation or understanding is of the "lack of enterprise", which
was the phrase you used, with respect to the non-White groups? I believe
I fairly reflect your testimony. Will you explain to the Court what you
meant by reference to "lack of enterprise", to what you attribute your
judgment in that regard?
Mr. KROGH: Well, Sir, the enterprising qualities of a people are not
determined purely by technical aspects nor simply by education. This
is an illusion that is increasingly being realized and appreciated with
regard to the development problems of underdeveloped peoples. In fact
it is recognized,if you study the economic plans of development in the
rest of Africa, that in view of the lack of indigenous enterprising individ
ual qualities, that major emphasis is placed on these enterprising fonc
tions being undertaken by the State, that is by the public authorities
now especially, after they have become independent. I have this on
record ifyou would like it. I have quite a few authoritative studies that,92 SOUTHWESTAFRICA
in fact, substantiate this. I can think of a particular one by the Economie
Commission for Africa. If you like I could supply that for you. It is not
just simply a matter of the lack of economic opportunity or of a market,
this is something that goes much further tban the economist can explain.
It is a socio-cultural factor that goes further back, and on which I am
not an expert, although I have some knowledge of it in view of the
nature of the problem, but I have not studied the socio-cultural origins
of these varying enterprising qualities and aptitudes displayed by
members of different groups. But this is quite well known internationally
and, it is recognized as the main source of sustained economic deve1op
ment-a source of development that can be relied upon in certain types
of societies but not in others, and in the case of the latter this has to be
supplemented or taken over by public initiative, organization and finance,
at least at a particular stage of development, Sir.
Mr. GROSS:Without pursuing this matter too much further but for
the sake of understanding, you have testified, I think, that in South West
Africa the advancement, you say if I recall your words, is rather grati
fying or remarkable or words to that effect. Would you elaborate again,
if you will please Sir,whether the "enterprise"-in the sense in which
you use the term~which is reflected in this advancement is the result of
opportunity, education and economic opportunity which has been
available to the indigenous inhabitants during the past years?
Mr. KROGH:Yes, it is the essence of development, to create economic
opportunities, to extend the market and, in fact, to improve the qualities
of the population, to perceive, and to exploit these economic oppor
tunities.
Mr. GRoss: Would it not follow, Sir, then, that enterprise is a conse
quence of opportunity?
Mr. KROGH:Not necessarily, no. In fact it is quite common in South
Africa, where you have ...
Mr. GROSS:May I address myself to South West Africa, if you do not
mind?
Mr. KROGH:Yes, I just thought I might take a good example from
South Africa.
The PRESIDENT:The witness may give his answer in relation to any
country if you ask that general question, Mr. Gross.
Mr. GROSS:Mr. President, with respect, I thought it might aid the
witness if I clarified and limited my question but of course he can answer
it in any way.
The PRESIDENT:But you putto him a general question and he may
give a general answer.
Mr. GROSS:Yes, Sir, of course. Will you please answer it in whatever
way you wish.
Mr. KROGH: I can also answer this with reference to South West
Africa. You find in the Native reserved areas purchasing power or a
market, brought about by the people bringing in funds or their income as
migrant workers returning home-this is the one main source of income.
The other source of income is through the commercialized sale of their
livestock, for instance, and this gives them large amounts of money.
Now, this market-this purchasing power-is available there but you
would often encounter nobody in fact exploiting this particular market.
You find that these people would travel long distances and also, in fact,
return as migrant workers bringing with them goods from other areas. WITNESSES AND EXPERTS 93
This illustrates that there is a market available there but that the
economic opportunities are, in fact, not perceived nor are they exploited
by members of this group. This, to my mind, clearly indicates that there
is not a lack of economic opportunity to exploit. However, these oppor
tunities must of course be there to encourage or to make this possible
eventually. I can name you quite a few examples where such oppor
tunities were permitted to be exploited by members of the White group
who were allowed under special permit to have trading stores or business
premises in these areas. I witnessed just about a month and a half ago
a case in the Ovitoto Reserve where a non-White business man was being
assisted to take over the business premises of a White trader. The
particular Herero, in fact, came from Katutura to take over this business,
and it is of course the policy of the administration that the Herero should
have preference in his area.
There had not previously been a Hercro that would, or could, exploit
these trading possibilities. Nevertheless there are definite signs-very
encouraging signs-that this type of business people are emerging, as it
were, at this stage. But these opportunities had already existed previously
as was witnessed by the fact that it was exploited by a member of
another group.
Mr. GRoss: Would you say, Sir, that there were factors that might be
called innate, or are there factors to which you refer as cultural or
traditional which inhibit enterprise where opportunity is presented?
l\IrKROGH: Sir, as an cconomist, I would say that cultures are differ
ent. Certain cultures emphasize certain human qualities or values in
contrast to others. Furthermore, cultures are never static, they change
over time. Economie history shows that private enterprise is not re
stricted to a particular culture.
At one time it was believed that private enterprise only emerges from
a particular religion or a particular culture, but this is not generally
acŒpted today. lt eau be shown that in cultures which had previously
not delivered or in fact brought forth enterprising units, such people
would in fact corne to the fore after the social structure had changed or
the culture had incorporated certain other elements.
The important point is, however, that cultures differ. It may take a
very long time for one culture to produce this type of enterprising units
for economic development units. Jt may first have to change in order
to bring them forward, or even have encouragement and incentive to
do so. Other cultures again deliver the people spontaneously, as it were.
Over the centuries, they have already adapted themselves. As a mattcr
of fact, it is quite interesting to mention, Sir-1 do not like to use the
terminology here, because it is restricted to a tcchnical field and has
particular meanings there and may be misconstrued here, but I may
mention the work of the eminent economist Professor \V. W. Rostow in
this respect. In his The Stages of Economie Growth, which is widely quoted
and widely used he makes the distinction between what he calls "tradition
bound" and "free-born societies". Now these tenns are used in the
economic scnsc, it is not to be construed in any wrong or bad sense.
They just mean in the case of the latter that there are no cultural con
straints on people to pursue individual economic opportunities-it seems
to corne automatically as it were in that type of culture. In "free-born"
societiesthe individual is not culturally bound in the economic sense.
On the other hand, there is a type of society which is usually found in the94 SOUTH WEST AFRICA
under-developed world-economically known as a "tradition-bound"
society. This simply means that the problem of economic development
lies in gradual cultural change, and is not simply a matter of supplying
foreign aid and technical assistance to them. It is not a pure economic
technical problem, it is basically a social cultural problem that it takes
a long time to produce these enterprising people. Nevertheless, the fact
isthat they are in due course produced-there is no doubt about this-it
does not mean that it is a particular race or peculiar culture, it just takes
time tochange cultures.
The two concepts mentioned make it quite clear to me that as far as
the cultural factor is concerned, one type of culture or way of life will
produce enterprising and dynamic economic units (units refer to people)
much quicker, easier, automatically and spontaneously than another.
This is generally recognized in the literature on problems of economic
development with regard to the cultural aspect, but there is no question
of the one being superior or inferior to the other. This is purely an
economic issue and a culture, as you no doubt very well appredate,
consists of very much more than economic values, Sir.
Mr. GRoss: Sir, if it is accepted, as you testified, that there are factors
other than opportunity which condition development or enterprise,
would it be equally fair to say that from an economist's point of view
there is a correlation between the degree of opportunity and the degree
of development or enterprise, everything else being equal?
Mr. KROGH: I would appreciate if you ...
Mr. GRoss: Is there a correlation between the degree of opportunity
available and the degree of development accomplished-is there a
correlation between those two factors from the economist's point of
view, everything else being equal?
Mr. KROGH: Sir, I would say that if you have an economically viable
people and there are not opportunities to develop, they would create
them. This is the characteristic feature of economic development. It is
not just a matter of giving people an opportunity to develop-if they
cannot develop due to the lack of opportunity they create these oppor
tunities by undertaking and improving and automatically negotiating
and trading ,vith outside people and in fact creating economic oppor
tunities. This is the main characteristic of economic development.
Mr. GROSS: By "they" in the context of your reply to my question do
you mean the people themselves-are you referring to those people?
· Mr. KROGH: Yes. I think I see what you are getting at now, Sir,
namely whether you can facilitate this process. Yes, that is possible.
You can make it easier for them, after all that is the purpose of aid to
the economically less-developed countries of the world, namely to
facilitate the process. But you cannot "push a rope"-this simply means
that you cannot make them develop with the best will and the most
generous purse if, in fact, they cannot make use of these opportunities.
This is generally acknowledged, Sir.
Mr. GROSS: Thank you. I was intending to refer, Sir, to the mandate
undertaking to which I referred and without engaging you in what
would properly be regarded no doubt as a legal interpretation, which I
do not intend to. \Vould you understand, Sir, that from the economic
point of view that the promotion to the utmost of welfare and progress
as a mandate duty would involve pains, assistance and expense from
outside the group itself in order to bring them along to the utmost as WITNESSES AND EXPERTS 95
rapidly as possible? Would this affect in any way your earlier response
to the effort implied by the word "they" as you used it? Do I make my
question clear, Sir?
Mr. KROGH: Am I interpreting you correctly when I say that I must
try and give my opinion on what is understood to be "to the utmost"?
Mr. GRoss: In the context of South West Africa and as an economist
interpreting, if you will, the trust obligation, the mandate obligation, I
am asking you, Sir, to evaluate as an expert the importance of the factor
of external assistance to the development of enterprise and opportunity
in the Territory-is that an important factor, can you answer that yes
or no?
Mr. KROGH: Yes, Sir.I think assistance would be important, of course,
and depending where this assistance cornes from. If you take South
Africa, for instance-it was understood to be the Mandatory I take it
it was itself at an early stage of economic development. It is only since
the beginning of World \Var II that is has really become industrialized,
and has only now arrived at a stage where it can be regarded as a capital
exporting country. Itwas a capital importing country itself, being highly
dependent on foreign sources of savings, and supply of skill and enter
prise, for that matter, to develop it. So I think it would be misleading to
compare the situation of South Africa today with that before World
\Var II. It could then not possibly have assisted the Territory's economic
development to the extent that Great Britain or France or Bclgium could
have assisted the development of their African territories. I think this
would be an unfair comparison and I do not think that this could have
been expected under the circumstances. I think that clears up the point
with regard to external help and assistance.
The approach to South West Africa was to create modern economic
activity in the Territory itself that would in due course supply the
necessary public revenue and experience, extend the market and at the
same time offer employment opportunities. The latter expressed as a
ratio to the population of South West Africa is several times higher than
that in any other country in Africa, with the exception of the Republic
and partly also Southern Rhodesia.
Mr. GROSS: I should like, with the Court's permission, to revert to
that question subsequently. Iwould like to revert now, however, to the
question arising from your testimony with respect to the development of
enterprise and the, shall we call it, modernization of the individual
would that be an acceptable phrase incidentally, Dr. Krogh?
Mr. KROGH: This is an Arnerican phrase. I abject to the use of the
term because I feel that it is not a technical phrase. It is a popuiar
phrase conveying the idea that you can just take people and modernize
them ovemight, as itwere. I abject to that concept.
l\lr.GROSS: I will cheerfully withdraw the expression. Shall we say, in
the case of South West Africa, the change from a traditional subsistence
economy to a modern economy in the language of the economists?
l\IrKROGH: Yes, Sir.
Mr. GROSS: So what, Sir, would you say, is the effect upon such a
transition, such a change of a long continued association in the economy
of White and non-\Vhite in the same area in South West Africa?
l\IrKROGH: Sir, I woulcl say it is gencrally recognized-and I am not
quoting economists now, I am quoting reports from the International
Labour Office who have studied the problem of economic development SOUTHWESTAFRICA
96
and commercialization in Africa and I rely not only on them but I rely on
the expert views also of the Economie Commission for Africa which, in
fact, has stressed it-thatthe most important way and the most effective
way of changing a type of subsistence economy into a commercialized
and modern economy is in fact by way of wage earning. In other words,
more so than through the commercialization of subsistence cropping.
The PRESIDENT:I did not catch precisely what you said about "wage
earning''.
Mr. KROGH:Development through wage earning rather than through
crop raising, because it involves a complete social change, much more so
than in the case of crop raising. ln the case of the latter, primitive tech
niques of production become commercialized and it is only a slight step
further or beyond that which had traditionally been undertaken in the
subsistence type of economy. In the wage economy, on the other hand,
which is completely foreign, it is a major break-away, as it were, from the
traditional type of subsistencc economy, and this is probably the most
important way of bridging this gap and in speeding this transition from a
subsistence type of economy to a modem economy. In fact, Sir, this is
the main economic objective of development in African States today.
They want industrialization to create wage-earning opportunities rather
than concentrate on the very graduai process of agricultural development
by way of commercialization. This is stated in virtually more than half,
I should say, of their development plans. The point ... I am probably
not answering your question, I have forgotten the second part of it I am
afraid ...
The PRESIDENT:Perhaps you might have a look at it between now
and tomorrow moming. Mr. Gross, if it is convenient we will adjoum
now.
[Public hearing of 23 September I965]
The PRESIDENT:The hearing is resumed. Doctor, will you go to the
podium, please. Mr. Gross.
Mr. GRoss: Dr. Krogh, it may be convenient to yourself and to the
Court if we were to place into the record at this point-and it will be
relevant to certain questions which I propose to address to you-the
general picture of the population of the southern sector, or Police Zone,
in the Territory of South West Africa. With the President's permission,
I should like to refer to the tables 18 and 19 at pages 39 and 41 of the
Odendaal Commission report, which is in the documentation of these
proceedings.
The PRESIDENT:This document you are referring to, Mr. Gross, is
already in evidence?
Mr. GROSS:Yes, Sir. Dr. Krogh, are you familiar with the Odendaal
Commission report?
Mr. KROGH:Sir, as you will appreciate, it is a very voluminous report
and I have not studied the whole report, only those sections which in
terest me for my particular field of study. I am therefore aware of the
tables to which you are referring, and also know more or less the propor
tions involved in the population distribution.
Mr. GROSS:Now referring specifically to the portions of the report WITNESSES ANDEXPERTS
97
which relate toeconomic or demographic factors, were you, if I may ask
Sir, consulted by the members of the Odendaal Commission or staff with
respect to the report itself in any aspect?
Mr. KROGH:Sir, I appeared as a witness before the Odendaal Com
mission, yes.
Mr. GRoss: It is correct, is it, Sir, that your works are cited in various
portions of the report?
Mr. KROGH:Yes, Sir, they refer to me in that connection.
Mr. GROSS: I did not quite understand the answer to my question.
You say you appeared as a witness before the Commission? Did I under
stand you correctly, Sir?
Mr. KROGH:Yes, I appeared as a witness before the Commission.
Mr. GRoss: On economic factors pertaining to the Territory?
Mr. KROGH:Yes, Sir.
Mr. GROSS:Did you prepare or draft any sections of the report?
Mr. KROGH:No, Sir.
Mr. GRoss: The tables which Ihave in mind, which, with the Court's
permission, I should like to insert here in round numbers, include the
following and relate to, first, the southern sector, or Police Zone, as a
whole, and then certain areas thereof.
The total population, as I understand it, 240,000, in round numbers,
including migrant labour, approximately 27,000, on the average, a total
of 267,000.
The total White population, those classified as White in the census
category, is about 73,000. The total non-White population is approxi
mately 166,000, and including migrant labour, present temporarily at
any one tirne, 194,000.
Now, secondly, with reference to the total non-Whites outside the
Reserves, they are 128,000, and including migrant labour, 155,000. In
the urban areas the figures are for non-Whites as follows: those classified
or referred to as Natives, 49,000, and those classified or referred to as
Basters or Colourcds, ro,ooo.
Now coming to the non-Whites in the rural areas, those classified as
Natives, 64,000, and those classified as Basters and Coloureds, 4,000:
total of non-Whites in the rural areas, 68,000.
Then, coming to the Reserves in the southern sector, those classified
as Natives, 29,000, Basters and Coloureds, 10,000: a total of 39,000 non
\Vhites in fhe Reserves.
Then, just to complete the picture, Whites in the urban areas, 54,000:
\Vhites in the rural areas, 20,000.
The PRESIDENT:Mr. Gross, could you give the Court the pagination
of the Commission's report, from which these figures are taken?
Mr. GRoss: Yes, Sir, I was just about to do that. These figures are
derived entirely by computations made from tables 18 and 19, at pages
39 and 41, respectively, of the report of the Odendaal Commission, tech
nically known and published as the Report of the Commission of Inquiry
into South West Africa A!Jairs, I962-I963, published in South Africa as
document RP No. 12/1964.
The PRESIDENT:If you are going to cross-examine the witness on
these figures I think perhaps it would be convenient if the witness had
a copy of the Odendaal report before him.
Mr. GRoss: Yes, Sir, that would perhaps be convenient to the witness.
I had, Mr. President, advised the witness, just prior to the commence- SOUTH WEST AFR[CA
98
ment of the proceedings, that I would ask certain questions with respect
to the Odendaal Commission report.
The PRESrDENT: Pages 39 and 41-the tables.
Mr. GROSS:Yes, pages 39 and 41-the tables. However, I do not
propose, Dr. Krogh, to case your mind on this, to cross-examine you with
respect to the accuracy or otherwise of these figures, which are accepted,
but to focus on certain questions on the situation from an economic point
of view with respect to the economy in the areas of the southern sector,
outside the Reserves particularly. I will remind you from time to time,
if it is helpful, that we are dealing primarily with that area and the
numbers, therefore, to fix them in your mind again, Sir, outside the
Reserves-total non-Whitcs, including migrants, 155,000. That is broken
down (non-Whites). in urban areas, 59,000, in rural areas, 68,000.
Now, Sir, do you have any question about those figures, incidentally?
Mr. KROGH:I think that they are quite clear. I cannot check them just
at the moment, I will have to look for them but I know what you have
in mind.
Mr. GROSS:I would like first to refer to another section of the Odendaal
Commission report, which has been the subject of previous testimony, to
which I shall refer briefly,and in particular tum your attention to page
31 of the report, paragraph II3, at the bottom of the page, and I should
like, if Imay, to read it. This refers to the Damara tribe and is part of
the study on population, which is the heading of Chapter 2on the previous
page.
"With the arrivai of the Whites, resulting in increased personal
safety and greater development, the Damara were able to evolve a
totally new way of life. Large numbers were absorbed in the economy
of the southern part of the country and displayed exceptional
aptitude as employees."
May I pause there to ask you, let us say as an expert, what meaning
you would attribute to the phrase "absorb in the economy"? What
significance would you attribute to that phrase?
Mr. KROGH:Sir, as an economist and as somebody who knows and
has some knowledge of conditions in South West Africa, I would say
that it is an unfortunate choice of terminology because it is misleading.
It gives the wrong impression. lt reflects the idea that these people are
a homogeneous section of the \Vhite economy in the sense that as any
other factor of production they enjoy complete freedom of movement, of
location, and, in fact, participate in this economy, irrespective of their
membership of a group. This is not true. They do not, in fact, form a
homogeneous unit of the economy as any other factor of production
would in a homogeneous society.
Hcnce, I think the word "absorbed", if it conveys the idea that these
people are so intima te a part and parcel of the economy that you cannot
distinguish between them as economic units, and, for instance, the White
members of the White group, as economic units, then I think it is mis
leading. I would prefer-and I think it would be a better reflection and
a truc description-ta say that these members (the Damara wc are rc
ferring to at the moment) are economically inter-related with the modem
\Vhite economy-the economy of South West Africa-is it not homoge
neous in the sense that these people participate in it as a member would
of a homogeneous society. To the extent that the word "absorbed" gives WITNESSES AND EXPERTS 99
the idea that they form a homogeneous part of the White economy, I
think the term is misleading. It is an unfortunate choice of terminology.
A much better description of the economy would have been given if it
was said that these people, became, in fact, inter-related with, or, took
up employment in this economy.
Mr. GROSS: Do you distinguish then, Sir, as an economist, between
employment, on the one hand, and entreprenemial participation in the
economy, on the other? What is the distinction which you would draw
in technical or economic terms between absorption and employment in
the sense in which you distinguish them?
Mr. KROGH: You see, Sir, an economist would say you have a homo
geneous economy if the factors of production (that would be, very briefly,
labour, capital, entrepreneurship and ownership of land) were, in fact,
freely used, without any limitations or restrictions, by ail the members
of this particular community. If there was complete freedom of com
petition, and freedom of movement, applying to all the members of that
particular society, then you would refer toit as a homogeneous economy.
You find this, I think, well illustrated on the international level. You
have an inter-related world economy composed of different national
economies. The factors of production move freely and compete freely in
the national sphere of the economy but not in the international sphere
of the world economy. Therefore, to refer to, for instance, Britain as
forming an integrated part of the world economy is not, technically
speaking, a true and correct description. The point is that England is
inter-relatecl withthe world economy. Itis a ratht!r important distinction
because terminology such as "absorbed" or integrated sometimes used
loosely in journalism, wrongly conveys the idea that there are no restric
tions or limitations on the movement of, for instance, labour into Britain
from the outside world, or of the outflow of capital, or on the ownership
of the production factor-land, for instance-relative to the outside
world. I think this example illustrates what I have in mind. If you use
the word "absorbed" you would mean there would be no limitations
whatsoever on the movement of the production factors between ~ifferent
economies and I, therefore, think it is an unfortunate choice of termi
nology.
Technically speaking, an economist would say that an economy is
homogeneous if there are no customary, adminisi.rative and other forms
of restrictions on the movement of production factors, or the ownership
of these production factors, within the national boundaries of a country.
This is the point I tried to make with regard to the dual economy
earlier yesterday. ln this case there is usually no freedom of movement of
labour or even in the ownership of land. There are, in fact, two different
economies. There is this difference, yes, Sir. I would not say that this is an
integrated economy, but a dual economy. I also want to stress the point
that these differences compare with those that exist between national
economies in the world economy.
Mr. GROSS: \Vould you say, Dr. Krogh, that the economy in the
southern sector of the country could purportedly be called "diversified"?
Mr. KROGH:Sir, to speak about a diversified economy is to indicate
differenttypes of economic activity. If you only had agricultural activity,
then you would say this is a monoculture or a non-diversified economy.
If you have considerable manufacturing industry, and service industries
as well, and so forth, you would say it is a diversified economy-it has100 SOUTHWEST AFRICA
more than one type of economic activity-but this does not refer to the
production factors that I referred to just now. "Diversity" refers only
to the industrial structure of the economy. If it did not have diffcrent
avenues or types of economic activity, then it is a non-diversified eco
nomy. If it is highly industrialized, and has agriculture, mining and
fishing activity developed, then we refer to it as a diversified economy.
Very briefly,if you want to industrialize, for instance, and you have
an agricultural economy, you would say that the objective is to diversify
the economy. It is to develop other new avenues of economic activity,
apart from agriculture, Sir.
Mr. GROSS:On the basis of this analysis, then, if I may revert to my
question to you, would you characterize the southern sector of the
Territory as a diversified economy? Could that be answered "yes" or
"no"?
Mr. KROGH:lt is difficult to answer "yes" or "no". It depends on
whether you are comparing the southern sector of South West Africa
the economy of the southem sector of South West Africa-with, for
instance, the Republic of South Africa, or the United States, or Ghana.
IfI must say "yes" or "no" I have to know what you have in mind
because this is a comparative concept. ltdepends on what your basis of
comparison is. I would say that, relative to tropical Africa, it could be
described as diversified, but as compared, for instance, to the Republic
of South Africa, it is definitely not diversified.
Mr. GROSS:What I had in mind, Sir, was with refercncc to paragraph
127 on page 33 of the Odendaal Commission report, from which I read
the following:
"Approximately half of the Herero are absorbed in a diversified
economy of the Southern Sector of the country, while the other half
are herdsmen in the home areas."
You have already indicated, if I understood correctly, a difference of
opinion or question about the use in the Commission report of the word
"absorbed". Do you wish to elaborate your response with respect to the
use of the phrase "diversified economy of the Southern Sector", as used
in the Commission report?
Mr. KROGH:\Vell, Sir, as I explained to you, it depends on what the
Commission compared it with. The Commission probably compared this
with the northern sector of South West Africa. I think they had that in
mind and, therefore, I think the southern sector could be described as
diversified compared with the economy of the northern sector of South
West Africa, but it would not and could not be <lescribcd as a diversified
economy compared, for instance, with that of the Republic of South
Africa, Great Britain, Europe or the United States of America. I do not
think it is a fair description at all, as far as that is concerned.
Mr. GROSS:You thin k tha t the Odendaal Commission description is
nota fair description? Did I understand you correctly, Sir?
Mr. KRoGH:Sir, it depends on what you have in mind and I think the
Commission must have had in mind contrasting here the southern
economic structure with that of the north of the Police Zone. I would
imagine that is what they had in mind and, used in that context, I think
the south could be described as having an industrialized, diversified eco
nomy, comparatively speaking, if this is what they had in mind and I
think, indeed, they had that in mind, Sir. WITNESSES AND EXPERTS IOI
l\frGRoss: Dr. Krogh, in your testimony before the Commission, were
you questioned by the Commission or did you advert to the character of
the economy in the southern sector?
Mr. KROGH:Sir, I can remember quite well that when I appeared as
a witness before the Commission they did not conslÙt me on technical
matters of terminology-no, they did not consult me on that.
Mr. GRoss: Would you regard the description of the economy as a
technical matter? If so, I would like to rephrase my question? Did you
in your testimony before the Commission testify, or were you asked for
your views, as an expert, concerning the nature of the economy in the
southern sector in economic terms?
:Mr. KROGH: Yes, Sir. They asked me about the possibilities of in
dustrializationin the southern sector and what I would regard as the
basic problems of economic development in South West Africa, at its
present stage of development. They did ask me about the nature-yes.
Mr. GRoss: Of the economy?
Mr. KROGH:The prospects and possibilities and the extent to which
progress had been made, and so forth-they asked me such questions,
yes. I cannot quite recollect exactly what they asked me but I know it
was concerned with these matters.
Mr. GRoss: Now, would the explanations you have given to the Court
with respect to these terms, and your appreciation of them as an expert,
also apply to the finding in section 133 of the report on page 35, from
which I read the last sentence as follows:
"The economy of their area [parenthetically, this refers to Ovam
boland] is stimulated by the apprŒdmately 27,000 workers em
ployed at any given time in the diversified economy of the Soutbern
Sector of the country for periods varying from one to two years, in
the case of married persons, and one to two and a half years, in the
case of single persons."
Do you wish to elaborate, or amend in any way, the testimony you have
given with respect to the use of these phrases in other contexts of the
report I have read?
Mr. KROGH:Sir, I do not think it is necessary to elaborate on that. It
is quite clear tome, and I think it is completely correct with regard to
the stimulation of the private economy in the northern sector. I know
that the purchasing power in the private sector largely derives from the
southern sector as income that is brought back by these migrant workers
and, as I illustrated to you yesterday, the individual business men and
traders, who are, in fact emerging and establishing themselves in Ovam
boland, had without exception, been migrant workers in the South. So,
I would say that the stimulus for the economic development of the priva te
sector in the northern territories originates, and its momentum is derived
from the contact that migrant workers have with the southern sector.
The PRESIDENT:This question is directed, is it not, to the word
"diversified", ilfrGross?
Mr. GRoss: Yes.
Mr. KRüGH: The word "diversified"~yes, this confirms what I
suspected just now, namely that the comparison is between the southern
sector and the northern sector.
The PRESIDENT: In other words, the word "diversifi.ed" has no absolute
meaning, it has a relative meaning.I02 SOUTH WEST AFRICA
Mr. KROGH:It is a relative term and it has become more so with the
increasing number of studies that are being made of underdeveloped
countries, and of their comparisons. It was previously used to contrast
underdeveloped with developed countries but with the increasing number
of comparative studies of underdeveloped countries, it has become a
completely relative term. It must be read and understood in its particular
context.
Mr. GRoss: Now just one more reference-this will be the last along
this line-would your appreciation of the matter be affected by the
following statement in the report at paragraph 137 of page 35? I quote
the sentence beginning at the bottomof page 35 and it refers to Okavango:
"Approxima tely IOI9 or 4 % of the people of this group are
absorbed in the diversified economy of the southem sector of the
territory, while employees are also recruited among the Mbkushu
forthe mining industry in the Republic of South Africa."
Here again, would you regard the reference to the diversified economy
and the absorption of non-Whites referred to in that diversified economy
as in any way to be distinguished from employment in, let us say, the
mining area or the rural area in the southern sector?
Mr. KROGH:Sir, as I have explained previously, I think it is an
unfortunate choice of terminology that conveys a wrong description of
the extent to which these people proceeding to work in the more di
versified southern sector are in fact integrated in that economy. I think
it îs misleading to that extent.
Mr. GRoss: Now, Sir, in your testimony a few moments ago, if I
understood you correctly, you referred to "freedom of movement" as one
of the factors by which the nature of the economy is described-is that
correct?
Mr. KROGH:\Vell, it gives you an indication of the extent to which
the factors of production in the southem economy are homogeneous with
regard to the freedom of their application, use and movement. I use those
examples to indicate that they are not, in fact, an integrated or homoge
neous part of the economy, and I think it would be misleading to describe
them as such.
Mr. GRoss: Now could you explain to the Court, what the phrase from
the economic point of view, "freedom of movement" means--does that
refer to movement from place to place or does that refer to movement
within the levels of employment and management or bath?
Mr. KROGH:Sir, it refers to bath.
Mr. GROSS:It refers to bath?
Mr. KROGH:Yes, Sir.
Mr. GROSS:Now, would it be a factor, in appraising this relative term
"diversified economy", whether the freedom of movement was inhibited
by law or regulation as distinguished, let us say, frorn natural economic
forces-would that rnake a difference in your econornic analysis of the
use of the phrase or its significance?
Mr. KROGH:Sir, these restrictions that operate are, to my mind and
knowledge, largely of a social and customary nature. It is true that they
are embraced here and there with regulations and laws but the limitations
that operate are of a social and customary nature, as you would find in
many other parts of Africa. As a matter of fact, the lack of social mobility
and of economic freedom in the rest of Africa, where you also have dif- WITNESSES AND EXPERTS 103
ferent social groups-non-Whlte population groups-is characteristic of
these economies. They are generally and technically described as heter
ogeneous economies indicating that there is not complete and free move
ment of production factors either in the ownership of land or the move
ment of labour such as you would expect in a typical highly developed
Western type of economy. This is characteristic of these types of econo
mies. If you would permit me to indicate to you, very briefly, what
exactly is meant by this, I would like to refer here to the Economie
Bulletin for Africa, Volume II, No. 2,of June 1962, that contains an
article written by the staff of the Economie Commission for Africa
which, as you know, is an agency of the United Nations. Now, they
make this point very clearly, not with particular regard to South West
Africa, but to Africa generally. They say in this respect, if you will allow
me to quote very briefly from page 9:
"It is commonplace among students of African conditions to say
that it is impossible to make generalizations. This is unfortunately
no less true for individual countries than for the Continent as a
whole: wide and profound regional variations in characteristics
exist in almost every respect within national boundaries as much as
among different countries ..Most of the countries under discussion
[and they refer to tropical Africa] have not as yet achieved the state
of a single integrated economy,r even nation, the typical feature being
that of weakly linked and more or less self-sufficient local economic
units. Pockets of development exist alongside areas living in different
degrees of isolation. Consequently, in the case of all country averages
shown in the study, the uneven distribution of economic activity
should be kept in mind." (Italics added.)
This I think makes the point clear that you cannot use words like
"absorb" in the sense that you would in an economy such as Great
Britain, the United States, or in Europe where it would make sense.
They do not, in fact, have an integrated economy. They are composed
of different social economic units operating within the domestic bound
aries of these areas. That is what I was trying to say when I explained
that the concepts "integrated" and "absorbed" are an unfortunate choice
of terminology and that the restrictions are not in all respects legal. I am
sure that most restrictions that operate in this regard are of a sociological
and of a customary nature, embraced here and there by regulations
administra tive or legal. That is the point I was trying to make, Sir.
Mr. GRoss: Thank you. Now, Dr. Krogh, without in any way wishing
to impede or impair the fullness of your answers, I would like to invite
you, if Imay, to direct your attention specifically to the extent possible
to the sector we are discussing, and if you would please revert to my
question to you, which was intended ta ask and on which I. would
appreciate elaboration from you-is the "freedom of movement", to
which you referas an economist, an element in determining whether or
not you would properly refer to an economy as "diversified"-could you
answer that yes or no, Sir? '
Mr. KROGH:No, Sir. The concept of diversification is not used tech
nically with regard to the movement of production factors at all. It
describes the industrial structure of an economy, Sir.
Mr. GROSS:Are you finished, Sir?
Mr. KROGH:Yes, Sir.104 SOUTH WEST AFRICA
Mr. GROSS:Perhaps we could approach the matter from a different
point of view. There are, in the sector to which we are referring, some
thousands of persons classified as non-White, whom the Odendaal
Commission rightly or wrongly described as being absorbed into a
diversified economy. I will not ask you, unless you wish to, to elaborate
further on the use of terminology. I am referring however, to those
persans in that economic context. Now adverting to those persons in that
context, I should like to ask you whether the freedom of movement of
those individuals, either with respect to advancement or with respect to
physical relocation or in any other sense, affect their relationship to the
economy and if so, what is the impact upon them of such restrictions?
Mr. KROGH: I take it, Sir, that thquestion refers to two aspects. The
fi.rst, if It your question correctly, is that you want to know what
extent the movement of these people in the White sector of the economy
reflectsthe extent to which thcy form a so-called integrated part of the
economy?
Mr. GROSS:Yes, Sir, the first part. Please continue, Sir.
Mr. KROGH: I would say that it is a fact that they do not move and
own production factors to the same extent as the White members of the
economy owing to custom and administrative regulations and otherwise.
They are not absorbed by the White economy but related to it, just as
migrant workers coming, for instance, from the Mediterranean countries
to Germany, Rolland or Switzerland would first have to apply for work
permits to enter the territory, and such work pennits are issued on con
dition that these people do not endanger or displacc a national of the
receiving State. Hence, such workers occupy jobs conditionally-they
are not free in the same sense as the nationals of the receiving State are.
Therefore, I would regard this as a distinguishing feature and say
technically speaking that such a worker is not absorbed in the economy
as is the case with the members of the national group.
Now man y of these restrictions operate customarily, as I also explained
to you earlier on yesterday, I think, with regard to land ownership, for
instance, in the rural White areas. With the insignificant exception
relating to certain probational land scttlement schemes there is no
regulation, as far as I know, that prohibits any membcr of any other
group from owning land in the White rural scctor of the economy. Never
theless, apart from one or two exceptions-! am not quite sure-for all
practical purposes there are no members of other groups that own land
there, without there in fact being any legal restriction on this. This to
me again reflects that the members of these other social units or groups
are not, in the technical sense of the word, absorbed in the economy. If
there are any restrictions that operate with regard to their owning land
in this area it is customarily. It might in fact be quite mutual as far as
the members of these different groups are concerned. That is the first
part of the question, I think, Sir.
Mr. GROSS:May I pursue your response to the first part before coming
to the second?
Mr. KROGH: Yes, Sir.
Mr. GRoss: Is the imposition, by custom or law or otherwise, of
restrictions upon movement or advancement, a basis for your distin
guishing between the relative position of the White and the non-White
in respect of the economy in which thcy are bath serving-is that the
principal basis of your distinction of their relationship to the economy? WITNESSES AND EXPERTS
105
i\lr. KROGH:Yes, Sir, as an objective observer I take into consideration
all limitations-;ustomary, legal or social-on the movement of pro
duction factors within the national boundaries of a territory, and with
the aid of that I say whether this constitutes a heterogeneous or non
homogeneous economy or not.
Mr. GRoss: Sir, I am trying to get, for the benefit of the Court, an
elucidation of the actual effects upon individual persons in this sector
we are talking about of the difference between the White and the non
White, and the effect of that distinction, however drawn and why drawn,
upon their economic role and relationship to the economy of the terri tory.
With that introductory explanation, would you then go back, if you will,
to my question, which was intended to ask you whether the different role
and rclationship of White and non-White to the mixed economy which
you describe reflects and is caused by the restrictions upon the non
White group, however or why ever thosc restrictions are imposed; is this
the central point of distinction in defining the relationship of the White
and the non-White group towards this economy?
i'.\lr.KROGH:This is one of the major criteria I would take into con
sideration. Others would be the extent to which the members of these
particular groups other than the non-White groups are entrepreneurs
relatively to the rest of their population; the extent to which they use
advanced techniques of production; the extent to which they make use
of advanced forms of organization, and of financing their economic
activity. Therefore it is not only a matter of movement, there are also
other features that I mentioned yesterday in reply to other questions that
would suggest to any economist that these people are, economically
speaking, of a different viable nature.
i'.\lr.GRoss: Of a different what, Sir?
Mr. KROGH:Economically viable nature.
l\lr. GRoss: In order to clarify that last description, would it be in
any way reflected in the comparative viability, as you describe it, of a
White employee, let us say, on the railroad as distinguished from a
non-White employee on the railroad, as between those two individuals,
the distinction being one of colour or race-does your answer with
respect to viability or otherwise have any relevance to their relationship
to each other or to the economy as a whole?
)lr. KROGH:Sir, I am afraid I will have to go into the use of concepts
again, and I do not really want to do this, but the concept of viability
does not usually refer to the individual, it referstoa group of individuals
or to an economy viewed as a whole. But I think it can very clearly be
said that the attitudes, the aptitudes and the willingness to undertake
economic activities would convey to you the extent of economic viability
of a community-that is, these qualities, would reflect their economic
viability. Sir, with all respect, I think that the impression has been
created here that these people ...
i'.\Ir.GROSS:Are you referring to non-Whites, Sir, by "the se people",
if I may interject?
Mr. KROGH:I think that is what you had in mind.
l\lr.GROSS: I just wanted to understand vou, Sir.
i'.\lr.KROGH:That they are being held back like race horses waiting at
the gates-that it only requires to take the gates away then they would
run all the way. :Nowthis to my mind, is complet ely false, Sir-this is not
the case. To the extent that restrictions operate against their occupyingI06 SOUTH WEST AFRICA
certain positions, or their displaying the economic viability they have,
they are to my mind of a marginal nature in the case of South West
Africa. There are, as I pointed out yesterday, economic opportunities
that are in fact exclusively reserved and put aside for these people against
the economically stronger Whites. All these are not in fact exploited or
occupied, or maybe even perceived, by the members of these groups.
This to me reflects that it is not principally a matter of there being
restrictions on these people to either develop, or display their economic
viability. I will go further, and say that the situation is not static in
South West Africa. It is dynamic in the sense that increasing oppor
tunities and possibilities to apply their economic aptitudes and qualities
are in fact being created at a rate for them that I think compares very
favourably with anything elsewhere in the underdeveloped world, and
particularly in tropical Africa. So it is not a matter of restricting these
people-these restrictions operate, I must admit, but from an economic
viewpoint they are in fact marginal, they are not of any major economic
significance. An economist must appreciate that in order to make more
productive use of available production factors under such a set of hetero
geneous social conditions, restrictive measures may very well be required
in the interest of social peace. As I pointed out yesterday and triect·to
emphasize, social peace has in fact been maintained in order to get on
with the more important job of economic development creating more
economic opportunities. ·
I think, Sir, that the answer to the question is given in the same
document that I quoted just now, namely the Economie Bulletin for
Africa, if you would allow me, very briefly, to quote from it again. It
puts this very clearly that it is not a matter of legal restrictions operating
against these people from developing economically. The restrictions are
of a human and cultural nature that are in fact changing in the case of
South West Africa. Very briefly, on page 7 of the same Economie Bulletin
for Africa-they put it much better than I can and while I am having
diffi.culty in explaining this, I would be glad if you would allow me to
quote from it-1 have it herc:
"The take-off stage is from the standpoint of the less developed
countries the critical phase in the growth process, and has con
sequently operational significance as an objective of Policy. It is
important to know how the development path from the traditional
society towards take-off can be described and how the factors
favourable to growth should be arranged so as to result in the most
efficient allocation of resources during this stage.t is obvious that
it is not justified to assume that the latter process [this refers to the
most efficient allocation of resources] follows an optimum path
automatically or even that growth itself cornes about on its own
accord [in these types of traditional societies], especially in the
countries at the bottom of the development ladder ... It is well
known that traditional societies have found it diffi.cult to foster
integrating growth forces from within strong enough to overcome
the resistances mentioned above. [These resistances mentioned
above are not legal resistances.] Normally exogenous impulses are
required. The levels of living attained and the existence of modern
knowledge and technology in developed countries and the possibility
ofthe latter's transfer to the less developed areas represent such an
exogenous impulse." WITNESSES AND EXPERTS
107
This clearly indicates that the members of one society are economically
more viable than those of the other. Itwould be false to compare and to
create the impression that these differences are due to legal restrictions
or the withholding of the members of one group-to, in fact, better their
economic positions.
Mr. GROSS:Sir, I have noticed, as I am sure the Court has, your
repeated references to analogies in the form of relationship between the
members of one society or another and your re!erence, also by analogy,
to the situation of emigration of one nationality to another nationality.
Does this analogy, or this form of analysis intend to describe the relation
ship between the non-Whites and the \Vhites in the sector to which we
are referring-to which I would like your continuing attention? Does it
infer the relationship between the Whites and the non-Whites on the
basis of ethnie or colour differences or alien or different societies, in the
sense in which you use the term?
:t,.KROGH: Sir, I think it would be a better description for the simple
reason that most of the members of one group would view the members
of another group as foreigners very often even more than you would find
between, for instance, Great Britain and America, or between the
Netherlands and, say, Belgium. I think it would be more appropriate to
describe these differences in that way than to regard them as a homoge
neous people, with the same degree of economic viability and qualities
and attitudes.
I think these examples would give a more instructive impression of
the relationship between them, and it does not 1)nlyoperate between the
members of the non-White population groups on the one hand and the
members of the White population groups on the other. This is more
conspicuous because the differences are so much the greater in levels of
economic and general development but it also operates, and in fact oper
ates quite effectively, with regard to members of different non-White
groups, just as it does in most of the other parts of Africa.
l\fr.GROSS: Sir, when you referred earlier, ifIunderstood you correctly,
to two of the factors which added to the consequences or the reasons for
differential treatment between White and non-White you mentioned, I
believe, that a major factor to explain the different refationship of both
gronps to the economy was the restrictions, however or why ever imposed,
on freedom of movement. I believe that is correct, Sir, is it not as a
major factor? Js that what you described? Secondly, you referred, if I
understood you correctly, to another factor, which was what you referred
to as the entrepreneurial aspect of one group, by which I assume you
meant the White group. Is that correct, Sir?
' l\lr.KROGH: Yes.
1\Ir. GROSS:Now, in respect of the question I asked you some time
ago-how that analysis relates in economic and social terms to the
extent that the two are necessarily related, to a White individual, who is,
let us say, working as a fireman on a railroad, and a non-\Vhite individual
who would be clearly qualified to do that same work, hypothetically
does the factor of White entrepreneurial skill or tradition in any way
enter into that situation as between those two persons?
l\lr.KROGH:No, Sir. It does not, in that particular example; no.
l\Ir. GRoss: Would you say that therefore, to the extent that the
restrictions and reservations, job reservation policies and legal restric
tions, to which I shall avert more specifically shortly, in principle-I108 SOUTH WEST AFRICA
think that is what we are talking about now--economic principle-1
would like to corne back and ask you whether you could clarify as
sharply as possible whether or not the relationship between the White
and the non-White to the economy, which we shall not call diversified
although the Odendaal Commission does, is fundamentally affected and
conditioncd bv the freedoms of movement and advancement which are
imposed on the one group and not on the other?
l\frKROGH:Sir, I do not think it is fundamentally affected by it. I
think it is marginally affected by it.
Mr. GRoss: Now, in addition to the entrepreneurial distinction which
referred, Ithink you said, to the groupas a whole, but not necessarily to
ail individuals within the White group, are there any other factors which
perhaps you have not mentioned, or which have not been understood by
me, which bear upon the question we are discussing in terms of the
different relationship between White and non-White to this "diversified
economy", in Odendaal terms? Are there any other factors which you
consider relevant, as an economic expert?
Mr. KRoG H : Yes, I think economists also look at the use made of
technical means of production and modern farming methods and forms
of economic organization and of finance. These are criteria which are, in
fact, employed by economists to distinguish one stage of economic
development from another, looking at the type of economy. For instance,
you would look at thesc factors when studying the economic history of
the developmcnt of Great Britain and you would say that the use of
technical means of production, of economic organization and of finance
were at a relatively primitive stage a century ago compared to what thcy
are today. These are criteria that they would use to say that Britain was
at a much lower level, or stage, of economic development then. These are
some of the criteria that economists look at, reflecting the extent to
which modern techniques of production and modem forms of economic
organization are being employed and used in the economic process.
Mr. GRoss: Let us take as another example, if I may, Sir, with the
President's permission, the restriction in the mines-the European
owned mines, and I believe that there are no other mines in theTerritorv
-placed by administrative fiat, rather than by custom, or in additioii
to custom if you wish, with regard to the promotion or advancement of
non-Whitcs on the basis of race to-I quote from the Rejoindcr, VI, at
page 231:
"The posts which Natives may not be appointed to in such enter
prises [that is European-owned enterprises] are the following:
Manager: Assistant, sectional, or underground manager; l\1ine
overseer; Shift boss; Ganger; Engineer; Person in charge of boilers,
engines and machinery; Surveyor; Winding engine driver; Banks
man or onsetter."
Now, Sir, would you advert to this illustration of restrictions, which
are legal restrictions? Would you be good enough, Sir, to explain to the
Court whether anything you have said or analysed by way of difference
of relationship between White and non-White to the economy explains
or clarifies from an economic point of view these restrictions which I have
just enumerated?
Mr. KROGH:Sir, as I tried to point out in my evidence yesterday,
these restrictions operate with regard to mining being carried on in WITNESSES AND EXPERTS
109
White areas. Similar restrictions would, in fact, operate in the non
White areas where mining operations exist or will in due course be
developed. I also want to point out in this connection, Sir, a second point,
namely that these posts enumerated there sound as if they cover a large
number of the employment opportunities open in the mining industry.
This is, in fact, not the case. I am sure, although I cannot quote the
figures offhand, but I have the sense of proportion to tell you that those
restrictions are relatively insignificant to the number of posts that are,
in fact, occupiecl by members of the non-White groups in the mining
industry in the White group. And a third point that I would like to
make, and I made this point yesterday, too, and that is, that I, as an
economist, have to take into account and recognize that such restrictions
are a cost-are, in tact, necessary under the particular set of socially
diverse circumstances in a territory such as South West Africa. Seen
from the vicwpoint of the economy as a whole, this might and in fact
could lead to a non-economic application of production factors. Only if
it can be shown that these jobs can in fact be occupied by people who
can do them bctter than those who are occupying them at the moment,
can it be said that there is an uneconomic allocation of resources in the
Territory secn as a homogeneous or integrated i~conomy, but I think it
is false to regard the economy of South West Africa as being composed
of a homogeneous people, and that there is complete freedom in the
movement of production factors there as you would expect in a homoge
neous economy. I can very well see that such restrictions may have to
be applied for the sake of social peace, which is an important considera
tion in the interest of getting on with the important job of economic
development, Sir. .
Mr. GROSS: Now spcaking still as an expert, witness and economist,
would you say to the Court that the restrictions which are opposed by
the mining regulations, to which I have refened, have any economic
justification?
Mr. KROGH: Sir, I would like to ask you what exactly do you mean by
cconomic justification?
Mr. GROSS: Are they justified by any economic factor peculiar to the
mining industry, or peculiar to any of the economic aspects of marketing
the products of mines, or any other economic factor related to the in
dustry in which the restrictions apply?
IlfrKROGH: They have, of course, absolutely nothing to do with the
marketing of the product of the mining industry, as you will appreciate,
but l think they are important from the viewpoint of economic develop
ment in so far as they may be required to ensure social peace, which is a
si11equa non for economic development in the Tcrritory.
Mr. GROSS: Sir, are you there making a social value judgment with
respect to the attitude of Whites versus non-\Vhites? Will you clarify
vour answer to the Court?
• Mr. KROGH: Sir, if you look at the economic history of territories or
countrics that have a similar population structure, such as, for instance,
South Africa (and this, I think, is relevant, because the policy applied
here is, no doubt, affected by experience there), you had a civil war in
1922 in the mining industry, leading to the destruction of property, Joss
of lives and so forth, being a reaction of White miners to the suggestion
or, as the circumstances were, the attempt to employ members of non
White groups to do certain jobs that were, in fact, being occupied byIIO SOUTH WEST AFRICA
Whites. This led to open rebellion. As a matter of fact, I was informed
just yesterday that under a nearly similar situation a large-scale strike
has started in South Africa upon this very issue, despite the fact that the
Government have tried to convince the White workers that this change
would be in their ultimate interest and in the interest of the economy as
a whole. Apparently, however, the members of this group were not
prepared to sacrifice their group interests in the intercst of the national
economy, and this is not abnormal. This may happen quite frequently
and, in fact, constitutes a problem that you have to take into considera
tion. This, of course, also applies the other way. lt is not a one-way
relationship. These groups see their economic positions-their welfare
positions, their income levcls and so on from the viewpoint of their social
unit or group rather than from the national economy. This complicates
the matter terribly. It is a difficult problem and difficult to deal with, but
to ignore it is to invite economic disaster. I do not have the answers to
all the ways and means of dealing with it.
l\lr. GROSS:Would you say that there is any question that the restric
tions to which I have referred impose upon the non-Whites a barrier to
any economic advancement, development of skills and, of course, greater
livelihood? Is there any room for doubt upon the impact on these indi
viduals who are subject to the regulations?
Mr. KROGH:Yes, Sir, I think there would be an effect on them but I
think this effect would be marginal.
l\Ir.GROSS: If a non-White individual working in a mine has
the capacity or the potential to fill one of the Iisted higher posts
in the mining industry, ignoring him as an individual, can there be any
question about the impact upon his economic welfare? Is that marginal,
Sir?
i\lr. KROGH:lt is marginal viewed from the economy as a whole or
from the group from which that member derives. It may affect his
position at this stage of the development of economic opportunities in
the Territory, but it is definitcly marginal. I think it would be unwise,
Sir, of any rcsponsible authority under such a set of conditions to try
and salve the problems of individuals and thereby create much larger
social problems. You must view this thing in its total social situation. I
must admit however, that, for that particular individual, it may affect
his living standard at that stage of development of the Territory where
not sufficient conditions and mining opportunities exist in other arcas.
I can appreciate that point and I admit that that is so. Yes, Sir. But I
think that it is marginal from the viewpoint of the economic advancement
of that particular group and I think it is cven Jessimportant viewed from
the national economy as a whole. I think it is marginal. Just to concen
trate on and solve the problem of a particular individual, would, to my
mind, from a responsible authority, be shortsighted, narrow-minded and,
in fact, irresponsible, Sir.
:Mr. GRoss: Dr. Krogh, in respect of the questions and your response
thereto concerning the regulations on the mines, works and minerals
(ûrdinance, as it is called), I should like to refer to your comment-if I
understood you correctly, Sir, according to my notes but correct me ifI
am wrong-that the Natives, so-called, occupy many posts in the mining
industry. Did I understand you substantially to say something like that,
Sir?
Mr. KROGH:Yes, Sir, I said "employment opportunities". They are, WiTNESSES A:-IDEXPERTS III
in fad, the majority, as far as the labour force is concerned in the mining
industry in the White sector of the economy.
Mr. GRoss: If you did use the word "posts", were you or wei:e you not
referring to manageriai or supervisory positions in the mines?
Mr. KRoGH: No, Sir, I was not refcrring to those positions in the mines
in the White areas.
Mr. GRo5S: That was just to clear up any possible misunderstanding,
on my part. Now, Sir, with respect to the distribution of minerai re
sources in the Territory, are there any mines or mineral deposits in
operation, being expioited, in the northern areas of the Territory?
i\1.r.KRoGH: As far as I know, there is, I think, a sait mine operating
in the northern part of the Territory. Yes, I think so, Sir.
i\Ir. GRoss: Are there any other mines, metal or other minerai deposits,
which exist and are being exploited in the northern territory?
The PRESIDENT:They might exist without being known, Mr. Gross:
any other minerai activities?
.Mr.GRoss: Thank you, Mr. President. My stress is on the words "being
exploited", which of course presumes their existence; yes, Sir.
Mr. KROGH:Not as far as I know, Sir. But the mineral resources of
the Territory are, of course, those of which knowledge exists today. That
is clearly understood.
Mr. GROSS: My question is intended to be directed toward the current
condition, the current situation, and that which has prevailed in the
last years. Your answer is directed toward that time span, is it, Sir?
Mr. KROGH:Yes, Sir.
Mr. GROSS: Would you say, then, that it would follow necessarily and
logically that the ernployment opportunities for mine workers, outsicle
the sait mines, to which you refer, are non-existent in the northern
territory at the present time?
l\frKROGH:At the present tirne, yes, Sir, but this does not, of course,
exclude the discovery of new minerai resourccs or of known mineral
resources being exploited, becoming cconomically feasible to exploit in
due course. We have many examples of this. Take Libya, for instance.
For years it was regarded as a textbook example on the subject of
economic development, of a territory that should be left alone and not
developed becausc it had no naturai resources. \Ve know from fact,
however, that during the last few years large and very valuable oil rc
sources have been discovered and are now being developed in Libya.
This sort of thing happens all the time. It does not mean that mining is
exc1uded from future development. It is only the position at this stage of
development.
Mr. GROSS: At this stage of economic development there are no minerai
or other deposits being exploited in northem territories other than sait
mines; that is your testimony, is it not, Sir?
Mr. KRoGH: That is correct, Sir.
Mr. GRoss: As an economist and an expert I address this question to
you: if the fortunate developmcnt which takes place, which ail would
hope for, that minerai deposits are discovered for exploitation in northern
areas, would there be, on the basis of your economic analysis of the
population in the Territory, persans, non~\Vhites, who would be readily
available for managerial and supervisory posts in such enterprises?
Mr. KRoGH:Sir, they would not be readily a\'ailable in the sense that
they could be employed immediatcly. They could, however, be trained112 SOUTHWEST AFRICA
in a relatively short period of time to occupy many of these posts. As a
matter of fact, now I come to think of it, there is an important tin mine,
for instance, in the new and large proposed Damara land, that is in
operation and in fact is being exploited, and I take it that this would
give an opportunity to train these people, if thesc minerai resources
should become economically feasible to develop in the northern territories.
Then I take it that there would be people qualified and experienced to
undertake these developments, and to the extent that they are not
available they will in fact, I am sure, be assisted and guided by White
managers and skilled people to develop these mines and be trained to
occupy these posts.
Mr. GROSS:The White persons to whom you have referred would,
under those circumstances, be residing and working in the northern
territories, would they, Sir?
Mr. KROGH:On a temporary basis with the very clear understanding
that they could not daim job security. They would be there on a tem
porary basis until and when these posts could in fact be taken OVlètby
members of the group in whose area the mine was being operatcd.
Mr. GRoss: They would be contributing to the development of the
economy, I take it. That would be the case, would it not, Sir?
Mr. KROGH:Yes, Sir, otherwise there would be no development.
Mr. GRoss: And while they were making that contribution to the
economic development, would they be subject to restrictions upon their
promotion or the jobs which they would be entitled to hold in the
Territory?
The PRESIDENT:That is something in the future, is it not? Would they
be in the future subject to restrictions?
Mr. GROSS:Under the conditions envisaged by this witness as an
expert, Sir, in the development of the mines we are projecting, if I may
pursue tha t.
Mr. KROGH:I think it would be made very dear to them, as a condi
tion,that they could not have any basis for a daim, or if there was a
daim for job security, or for the advancement of employment prospects
in this mine, this daim would not receive priority compared with that
of the members of the local grou~that is the latter would, in fact,
receive preference in this respect. I can alsoery well imagine that they
would be protected against anv such daims emanating from the members
of the White group. "
Mr. GRoss: I think, Mr. President, that I am leading the witness into
a hypothetical future contingency and I will not pursue that line any
more, Sir.
However, I should like now to turn to another form of imposed limita
tion upon economic advancement or position. I refer to the pleadings,
Reply, IV, at page 419, from which it appears (and this, I believe, is
undisputed in the record) that the Apprenticeship Ordinance of 1938 and
Government Notices supplementing it provide that only European minors
may execute contracts of apprenticeship in various industries and one
of them is the furniture industry. Are you familiar, Sir, with that Ap
prenticeship Ordinance or the regulations pertaining to that matter?
Mr. KROGH:Sir, I do not know the exact content or legal provisions
of these regulations-no, I do not. I am, however, aware of the fact that
this Ordinance, as you call it (I take it, that is the technical term for it),
was introduced just before World War II (I am not quite sure about the WITNESSES AKD EXPERTS II3
date but it was shortly before World \Var II), but that it was not, in
fact, applied rmtil quite late in the 1950s. That would be some 20 years
later. Then I am also aware that, in order to have it applied, certain
trades have to be proclaimed, and I think you are correct in saying that
one of the few trades that have been proclaimed in this connection is the
furniture business. As I tried to explain to you yesterday in my testimony,
a furniture factory is, in fact, operating in Ovamboland where these
people are being trained as skilled persans to operate the factory in this
particular example you have mentioned.
This illustrates to me, again, then, how this proclamation may very
well have prohibited the training of skilled furniture operators after
1957-1958 (1 think it was 1957-1958 that it was brought into operation
-it is only quite recently-a few years ago). Ncvertheless, they are now
being employed, protected and trained in a furniture factory operating
in the northern territories, which clearly illustrates that this proclamation
does not apply to employment conditions in the northern territories, Sir.
Mr. GROSS: \Ve are referring, Sir, to the southern sector, and the
Apprenticeship Ordinance of 1938 and supplementary regulations, or
Notices, to which I referred, do not, as far as I am aware, apply to the
northern territories.
Now, within the southern sector, the same Ordinances and the Ordi
nance and Notices provide that only European minors may execute
con tracts of appreticeship in the following industries: I have mentioned
furniture. In addition, building, clothing, carriage-building, clectrical and
mechanical engineering, baking, butchery, leather, mining, motor
industry, printing and painting and decorating-would you comment,
Sir, with respect, as an economic expert, or witness, or bath, to the
economic reason or justification for such a restriction in the economic
sector of the southern area?
Mr. MULLER:The conditions of apprenticeship, referred to by my
learncd friend, have not been applied in al! the tractes mentioned by him.
I would, in that respect, refer to the Rejoinder, VI, at page 281, wherc
the following is stated:
"As regards the industries mentioned by the Applicants, it should
be observed t.hat conditions of apprenticeship have not, as yet, been
prescribed in respect of certain designatcd trades, viz., the boot
making, clothing, carriage-building, food (baking and butchery)
and leather trades, which means that the Ordinance is not yet in
effective operation in the case of these trades."
ilfr. GROSS:I thank the learned counsel for the clarification, which I
was aware of, and was going to refer to. I am now referring to the
Ordinance of 1938 and Notices which I have read, the existence, Mr.
President, of which is not denied in the pleadings.
The PRESIDENT:Ras the Ordinance been applied?
Mr. GROSS:The Ordinance has not been applied, has not been made
effective, as yet, according to the Respondent's pleading, to which
counsel has referred in certain designated ...
The PRESIDENT: Itsimply means that this power is taken but that this
power bas not been exercised.
i\lr. GRoss: That is right, Sir, and I was, with respect, coming to that
point, Sir, but I am leading to it by reference to the statutory scheme
-the policy implicit in it as a scheme-and I was coming to the im
plementation of it.II4 SOUTH WEST AFRICA
With respect, Sir, to the existence of the Ordinance and the policy
which the adoption of the Ordinance implies, would you comment, as an
expert, with respect to economic rationale or justification for such a
policy of restriction in principle?
Mr. KROGH: Sir, I would say that if you ignore completely the social
structure of the particular territory-which operates not only between
the White and non-White population groups, but also with regard to the
different non-White population groups-I think you must, as an econo
mist, say that these regulations would be designed to limit the number
of skilled people in the territory, viewed as a homogeneous whole, to
qualify for particular trades. But such restrictions, of course, as we ail
very well know, operatc even in professions and in other skills and trade
avenues in a highly industrialized economy-the number is obviously
restricted, economically speaking, to protect those that are already in
that trade, for if these numbers were increased without control, this
would increase the supply of these qualified people, thereby endangering
the living standards and employment opportunities of those existing
members in the particular trade.
Yes, I think such restrictions, in the case of South West Africa, and
the economic effects thereof that it may have to the detriment of the
development of the Territory, are, in fact, compensated for, and, in fact,
circumvented by a policy which creates opportunities for training of the
skilled people in a different organization.
As a matter of fact, if I am allowed to put it to you that we may look
at the Republic of South Africa as an example of things to corne, then it
is very clear to me that no restrictions would be placed on the training
of these people. As we al! know, it is in fact a positive and concrete
development policy in South Africa to train these people, but not as
minor apprentices working alongsidc White workers, as I would imagine
this would be a provision reflecting again, or being an economic cost due
to the complex and delicate social situation in such a particular set of
circumstances.
The PRESIDENT: Doctor, could I interrupt for a moment?
Mr. KROGH: Yes, Sir.
The PRESIDENT: You spoke about "in other countries"-there are a
number of countries throughout the world in which the Court would
know, in general, limitations have been placed upon the number of
apprentices that can be taken into a trade, and in those countries is it not
quite clear that it is for the purpose of protecting the working rights of
those already in the trade?
Mr. KROGH: That is correct, Sir.
The PRESIDENT: And is there any reason to suppose that in the case
of this ordinance its purpose was precisely the same?
Mr. KROGH: This would be the motive behind it, Sir.
Mr. GRoss: Sir, could you refer the Court to any such procedures or
regulations which are based upon the exclusion of one group or another
on the ground of colour or race?
·Mr. KROGH: Sir, I cannot think of one off-hand at the moment, but
I can understand that it so happens that most of the people under these
particular circumstances who might be excluded in the \Vhite sector from
acquiring skillsmay be people of a different colour. Yes, I can very much
see this, but this makes my point, and that is that these people distinguish
themselves on the ground of colour. Therefore, apart from the point, WITNESSES AND EXPERTS IIS
Mr. President, that was made quite clear just now with regard to restric
tions existing even in homogeneous societies, that is where there are no
differences in colour, these restrictions are not always interpreted as
restrictions for the benefit of those already in the trade but are often
viewed as racial restrictions which may in fact incite social strife, and in
order to circumvent these, separate opportunities are created, not to
prevent these people from acquiring these skills but in fact to avoid
social friction.In this particular case the race factor opera tes between the
races to the advantage of each group and all concerned in this particular
Territory, Sir. .
î\fr. GRoss: When you say, Sir, that certain opportunities are created
-the phrase you use-would you be, for the benefit of the Court, more
specific as to where such opportunities are created, and what sort of
opportunities they are, in the terrns which you have used?
Mr. KROGH: Sir, I have explained to you previously that opportunities
for employment are being created-at a rate that I think is impressive
for people that might aspire to occupy positions that are at the moment
being occupied by members of another group-in the urban areas which
they occupy in the White area, in the field of public administration and
of private enterprise and agriculture in the so-called non-White areas,
where there are of course not as ni.any opportunities at the moment as
there are in the economically much more viable White economy. And, if
we look at the recommendations of the Odendaal Commission, which I
take it you are acquainted with, then you will see that there are prospects
of even more being created-by the word "create" I mean assist with
all the means possible, even subsidizing these opportunities for a long
period of time, which can now in fact be afforded by having first devel
oped a modern economy. This could not, for instance, have been afforded
or done, let us say 30 or 40 years ago, because at that stage you were still
in the process of establishing a modern economic growth-point in the
Territory. I think that at the moment the current situation is that these
opportunities are in fact being created at a rate that I, as an economist,
would often say is outright subsidization, that they would not be com
pletely justified under purely economic conditions if you had a completely
homogeneous population, but by that I would be denying the social
problem in this connection. Furthermore I feel that there are very good
prospects that more and more of these opportunities will in fact become
available. I must point out to you, Sir, that this is an economic cost if it
reflects as an uneconomic measure viewed from an approach that would
deny these differences in these problems: this is an economic cost that
has to be paid by a society composed of different groups that are in fact
heterogeneous. Sir, this is an economic disadvantage which I tried to
point out in my evidence yesterday-the social atmosphere in which
economic development has to be effected. Plans and policies have to be
devised that would seem quite peculiar and strange to an economist
having in mind a society that is completely homogeneous with respect
to the welfare of the population as a whole. This is an economic cost, just
as you suffer under other disadvantages such as the lack of natural
resources, or the lack of transport facilities, canals, lack of rainfall or
things like that. This is an economic disadvantage that a territory such
as South West Africa has compared with other countries, as if it bas not
got enough problems to face with regard to its economic development.
This particularone isalso present in the Terri tory of South West Africa,Sir.n6 SOUTH \VEST AFRICA
Mr. GROSS: Now, Sir, may I corne back to my question, as related to
the southern sector of the economy of the Territory? I referred to the
section in the Odendaal Commission report which is headed "Economy of
South West Africa" and begins at page 315 of the report. I should like,
ifthe President permits, to read just two sentences. In paragraph 1284:
"The economy of South West Africa may be described as a dual
economy, consisting of a predominantly modern money or exchange
sector and a traditional subsistence sector. To a great extent, how
ever, the modern cxchange economy has already strongly influenced
the subsistence economy of a large part of the population."
Do you agree or disagree with that characterization of the economy of
South West Africa, Sir?
Mr. KROGH: Yes, Sir, I think I could agree with that, although I am
not quite happy about the terminology used. But I do not think that
would makc any significant difference to the impression that is being
created there. Sir, witha few qualifications, asI tried to explain yesterday
with regard to the use of the terms such as "subsistence"-this could
very well assume a commercialized form-it does not mean that if you
commercialize or trade in certain products you are in fact a modern
economy. This is generally being appreciated in the literature on econo
mic development, that there is a three-stage distinction.
The PRESIDEN"T: You made these points yesterday.
Mr. KROGH: Yes, I think that was made clear yesterday, Sir.
i\frGROSS: Do you agree or disagree specifically with the description
of the "predominantly modern money or exchange sector"-do you find
difficulty with that language of description?
Mr. KROGH'. No, with those qualifications that I have stated.
Mr. GROSS: \Ve are now discussing in terms of my proposed question
the "modern money or exchange sector'', in the terms of the Odendaal
Commission report which I take it, does it not, Sir, refers to that portion
of the Territory which has been described as the southern sector outside
the Reserves-is that correct?
Mr. KROGH: Sir, yes, if you have to delineate this on a regional basis,
I think the White economy would for ail practical purposes cover that
area in the southern sector to which the White members of the group
are in fact restricted in the occupation of land or the holding of jobs
yes, Sir.
Mr. GROSS: My question was whether the modern cxchange sector is
or is not coterminous with the southern sector or Police Zone outside
the Reserves-is the answer ves or no?
Mr. KROGH: Yes, Sir, thaÙs so.
Mr. GROSS: That is what I wanted to clarify. Is it, then, in that arca in
which the population as reflected in the tables of the Odendaal report
at pages 39 and 41, with which we started our discussion this morning,
is as follows: non-Whites in urban areas, Natives, 49,000; non-\Vhites in
rural areas, 64,000; those are the figures of non-\Vhites in the area of the
southern sector outside the Reserves which is the modern exchange
sector-is that correct, Sir, according to your understanding? I believe
we have already been over this; I just wanted to clarify it at this point.
!\fr.KROGH: Yes, Sir.
i\fr.GROSS: In respect of restrictions on job opportunities, is it or is
it not correct to say that the heaviest impact upon the non-White falls WITNESSES AND EXPERTS IIJ
precisely in this sector to which we are referring-is this not where the
restrictions apply, when they do apply?
M.r.KROGH: Sir, you are referring to I5 per cent. of the total Native
population in the Territory-that is the first point.
Mr. GROSS:I am not referring to a percentage, I am referring to a
group of individuals, if that is relevant to your answer.
Mr. KROGH: Yes, I am trying first of all to give youa sense of propor
tion of the importance of this particular concentration of non-Whites in
the urban areas, Sir. Secondly, there is only one urban area in which
there is an important mine, and this is a copper mine in Tsumeb. In other
words, the mining posts referred to just now as falling under legal restric
tions placcd on the advancement of members of the non-White group in
the White sector do not in fact operate in the case of the majority of these
people to whom we have been referrîng here. There are no mines in
other urban areas, where these people reside, apart from this particular
one in Tsumeb.
The other legal restrictions refer, Sir, to the supply of public trans
portation services. These are, of course, spread over the Territory, but I
think that the number of people employed in the South African Railways
and Harbours Administration, which is a public organization supplying
public utilities, such as transport, harbour, air and motor transport
services in the Terri tory (I am not quite sure about the percentage em
ployed thcre), is somewhere less than II per cent. of the number of non
Whites employed in the southern modern economy, Sir. I do not know
of other legal restrictions, but I am very well aware, as I have said before,
that there may be, and in fact are, customary and social restrictions
voluntarily, as it were, operating without being embraced by legal
regulations or restrictions in this sector.
Mr. GRoss: \Vas the answer to my question yes or no, Sir? Do the
restrictions that are imposed bear principally upon the non-Whites who
live and work in the modern exchange sector?
Mr. KROGH: Yes, Sir.
Mr. GROSS:That was my question, Sir. Now with respect to the
Apprenticeship Ordinance of 1938 and the Government notices supple
menting it, the industries in which it has been made effective includc
the following: electrical and mechanical engineering. Could you advise
the Court what job opportunities exist for mechanical and engineering
skills inthe northern areas at the present time, if any?
Mr. KROGH: Not in the electrical field of engineering, but, as you very
well know, one of the greatest development projects envisaged (I want
to make this point because you must not think of this being a static
situation, or a permanently constant situation) is the development of
hydro-electricity in the northern part of the Ti~rritory, and it would be
express policy to train electricians for this particular area in order to
operate, to maintain and to manage thcse very large hydro-electric
schemes. The output would be marketed in the \Vhite area because there
is no demand for clectricity in Ovamboland at the present stage of its
development. Nevertheless, the fact that it would supply its output to
the modern White economy has nothing to do with the fact that such
jobs wou1d be given to, or rescrved for, as it were, members of a non
White group. The natural resource potential that is about to be tapped
and developed falls within a northern Native Territory, and prefercnce
would be given to the training of non-\Vhites in this particular a.rea, Sir.n8 SOUTH WEST AFRICA
.:i.1r.GRoss: Dr. Krogh, if my questions are not clear to you, I would
appreciate it ifyou would indicate that. I would be glad to clarify them.
I was referring, I thought, to the present available job opportunities in
the northern areas for electrical and mechanical engineers. Was your
answer that such opportunities now exist, or not?
Mr. KROGH:They do not exist at the moment, Sir.
. Mr. GRoss: We have already covered the mining restrictions, both
with respect to the job reservation and with respect to the Apprenticeship
Ordinance. You have testified, have you not, Sir, just to complete the
record at this point, that no mines other than a salt mine and a tin mine
exist outside the exchange sector-that is correct, Sir?
Mr. KROGH:Outside the modern sector, yes.
Mr. GRoss: And with respect to those mines, I would have liked to
have asked you before if you know what percentage of the minerai
production of the Territory as a whole is reflected in the output of those
mines?
Mr. KROGH:I can give you an approximation.
Mr. GRoss: Would you please give the Court the approximation?
)Ir. KROGH:I think the output would be definitely less than ro per
cent. of the total. The two mines-the diamond mines and the copper
mines-are, I think, responsible for round about go percent. of the total
value, but as you will appreciate, of course, this does not mean that they
are great employers-in fact, they are very poor employers of labour.
Mines are poor employers oflabour, relatively to, for instance, the fanning
industry or the service industries. It is not a matter of output value
because diamonds, for instance, is a small commodity with a great
value-the employment opportunities are not reflected in the value of
the product or of the total output of the mine.
Mr. GROSS:Sir, would it be relevant, from your point of view, relatively
speaking, that the Apprenticeship Ordinance and the Government
Notices had seen fit to prohibit non-Europeans from entering into such
contracts in the mining industry?
Mr. KROGH:In those particular posts in mining that you have men
tioned in the White sector of the economy, yes, Sir.
Mr. GRoss: From an economist's point of view, or from any point of
view, would there be any logical reason to have a restriction by law unless
there was an opportunity correlative to the restriction?
)Ir. KROGH:Sir, as I said before, any economist frowns upon restric
tions on the movement of labour because this immediately makes him
suspicious about the use of available productive resources, and such
restrictions are, of course, adistinguishin& characteristic of the under
developed world compared with conditions m the economically developed
world. That is why economists who corne and study conditions in the
underdeveloped countries usually frown upon such restrictions. Many
of the restrictions do not in fact operate legally but customarily and are
in this respect often far more effective. As I have already said that in
devising an effective policy of economic development, that is making
greater and more productive use of available resources, in the particular
set of circumstances in South \Vest Africa, I think you can only ignore
the social setting at the expense of your aim. It is therefore logical, Sir,
as well as responsible to take into consideration, the peculiar social
setting and atmosphere in which you have to devise your particular
policy of economic development. WITNESSES ANDEXPERTS n9
Mr. GRoss: And again, I would ask you, Sir, in your testimony just
given, does that reflect a social value judgment, on the basis of which
your economic analysis proceeds?
Mr. KROGH:Yes, Sir. lt is very important for an economist not to
ignore the social setting in which he recommends or, in fact, judges a
particular economic policy. This is definitely so, Sir. You cannot do this
irrespective of the type of society or economic problems you have to
face in a particular set of circumstances.
The PRESIDENT:Is there not a distinction between a case where, for
example, as a matter of custom, certain unions exclude certain people
from joining their union, and where this is done by legislation of the
State?
Mr. KROGH:Yes, Sir.
The PRESIDENT:To what extent is your analogy of the custom relevant
to the question which is putto you?
Mr. KROGH:I would say that the limitations that there exist on em
ployment, that is to occupy positions in the area of a particular group
would be affected, not because there are legal or Govemment restrictions
on their entry, but that even if these people were equally qualified and
skilled they would be jobless people because these social and customary
factors would leave them unemploycd. You would, in fact, have an
educated or skilled unemployed labour force.
The PRESIDENT:I see. What is the purpose then of a government
ordinance [fthe result would be the same whether there was or was not a
government ordinance?
Mr. KROGH:The purpose in this particular setting would be to indicate
very clearly to the people who have aspirations for these particular jobs
that are being created in a particular area by a particular economy, not
to aspire for these particular jobs, because this would frustrate them. In
fact, it would be like a signpost indicating before you enter the street
that this is a cul-de-sac, instead of arriving at the end and then discover
ing that you have not been warned or clearly indicated that there are
other ways of arriving at your particular destination.
Mr. GROSS:Would your response to the honourable President's ques
tion, so far as you know or care to testify, correspond to the following
quotation of a statement by Prime Minister Verwoerd, which is quoted
in the Respondent's Rejoinder, VI, at pages 41-42:
"The Bantu must be guided to serve his own community in all
respects. There is no place for him ine European community above
the Ievel of certain forms of labour. \iVithin his own community
however all doors are open. For that reason it is of no avail for him
to receive a training which has as its aim absorption in the European
community while he cannot and will not be absorbed there. Up till
now he has been subjected to a school system which drew him away
from his own community and practically misled him by showing
him the green pastures of the European but still did not allow him
to graze there."
That is from the Parliamentary Debates of the Union House of Assembly,
Volume 83, Column 3577, r953.
Do you, as an expert or as a witness, or both, care to comment with
respect to this statement as being relevant to your statement on intent
and social implications?I20 SOUTHWESTAFRICA
~:l.r.KROGH:Sir, those are the words of a Prime Minister who is partly,
no doubt primarily, a politician. l would not use the same language but
I can see that he is getting at the same thing. He is indicating a way for
solving 1:hisdifficult problem as well as the path along which this is to be
achieved, Sir.
Mr. GROSS:Now, would it follow, Sir, that so far as the 49,000 non
Whites, or Natives as they are classified, who live and work in the
modern sector, are concerned, that the policy and economic theory you
envisage would permanently exclude them from equal participation in
the economy in which they live and work?
Mr. KROGH:Sir, to the extent that they have a choice, yes. I would
say that to the extent that they prefer to be there for economic reasons
and the members of the White group in this area who prefer them to be
there, I think to that extent they will, in fact, be there, Sir.
Mr. GROSS:Are you finished, Sir?
Mr. KROGH:Yes, Sir.
Mr. GRoss: Would you say as an economist or as a witness or both
that a non-White who, let us say, has been born and lives and works in
the economic sector in the urban area has a practical option as to whether
to stay where he is or go to, let us say, Ovamboland or some other
northern terri tory to finish out his life-doeshe have a practical economic
option?
Mr. KROGH:Well, Sir, not at the same level of living-that is after all
why he is there and is working there because it is in his economic interest
to be there and it is in the economic interest of the White employers to
have him there. It is in the economic interest of both these parties
participating in an exchange relationship, Sir.
Mr. GROSS: I am talking now, Sir, about the one party for the moment,
if Imay, the non-White. He is there on my hypothesis because he is born
there and he remains there, I take it from what you have testified, be
cause this represents an economic opportunity to him-that is a correct
version of your testimony, is it not, Sir?
.Mr.KROGH: y es.
Mr. GRoss: Now then, is the Court to understand that when you
referred to his preference that you are speaking in terms of economic
reality? Does he have a prefcrence, a free choice to stay where he is under
restriction or to move to a territory he has never seen and knows very
little about? Strike out the last part of the qualification, if you will.
.M.r.KROGH:Yes please, because that is not of an economic nature.
)Ir. GRoss: Yes, Sir. I withdraw it with the President's permission.
i\fr. KROGH:\Vell, the fact that economic opportunities exist here in
this particular modern sector, that would not otherwise have existed, I
am sure, if the 'White community had not been there, the economically
viable modern economy and White population section had not been there,
he would have had no choice whatsoever, not even the one that he is,
in fact, enjoying and occupying at the moment, Sir. Definitely not to
the extent that a great number of these people are in fact being employed
in the sector, Sir.
Mr. GRoss: I am not sure that I understand the import of your answer
but rather than seeming to heckle you aboutit, perhaps Ican approach
it for clarification a different way.
In the Odendaal Commission report to which I have already referred
the specific passage-it is on page 31, paragraph II3, I have read it-is WITNESSES ANDEXPERTS
I2I
a sentence, but because of the connection with the preceding sentence,
I have to read both again I am afraid, if the President permits:
"With the arrival of the Whites, resulting in increased personal
safety and greater development, the Damara were able to evolve a
totally new way of life. Large numbers were absorbed in the economy
of the southern part of the country and displayed exceptional
aptitude as employees."
Now, ignoring if you will, Sir, the controversial implications of the
phrase "absorbed in the economy", with which you are unhappy, I take
it, what is the economic significance or implication in your expert opinion
of the reference to "exceptional aptitude as employees"-is that an
economic concept that a person may have a special aptitude as an
employee but not as a supervisor or would you care to comment on it in
any other term?
Mr. KROGH:Yes, Sir. I have little doubt that the words "displayed
exceptional aptitude as employees" there refor to a comparison with
regard to the members of the other non-\Vhite population groups that are
also described on the other pages. The rcason why I think this to be so
is that the Damaras never owned land traditionally or historically in
South West Africa, at least not before the White man arrived there. They
were enslaved and worked for the Herero and the Nama and being
people that could adjust themselves econornically easier, they proved to
be and were preferred by White ernployees above ...
Mr. GROSS:I think you mean White "employers", do you?
Mr. KROGH:I am terribly sorry ... White cmployers to, for instance,
Herero employees, who must have shown or displayed Iess exceptional
aptitude in this regard. I think that this comparison is with regard to
the members of the other non-White population groups who also offer
their labour and occupy employment opportunities in the modern White
sectors, Sir. .
The PRESIDENT: Is that a comparison for example between the
Damaras and the Hereros?
Mr. KROGH:Yes, Sir. I think that refers specifically to that.
Mr. GRoss: Is it your testimony, Sir, that the Hereros as a group are
in any sense inferior as employees or with less aptitude than the Damaras
as a group-is that the sense or purport of your testimony?
Mr. KROGH:Sir, if you look at the figures of urbanization of the
different groups, you will find that the Hcrero are much less urbanized
than the Damara. As a matter of fact, the Damara in the southern sector
isthe Native group that is the most urbanizcd because they occupy these
employee positions, whereas the Herero have exceptional qualities in a
different economic sense, that is in the sensc to which they have com
mercialized and, in fact, are farming on Reserves and selling livestock.
They are the more advanced in the southern sector with regard to cattle
raising and selling these products in organized markets, whereas the
Damara again are more specialized, in view of their traditional and
historical circumstances sketched just now, in being urbanized, in
offering their employment in urban areas. In other words, this can really
be seen as two different exceptional aptitudes being displayed in their
economic performance by two different non-\Vhite groups in the southern
sector, Sir.It is not a matter of inferiority or superiority at all.
Mr. GRoss: I would not think of suggesting that, Sir. I am referring,I22 SOUTHWESTAFRICA
however, now to the urban areas of the southern sector and I refer to
table 19 on page 41 from which it appears that in the urban areas of the
southern sector, there are listed 18,499 Damaras and 9,192 Hereros.
Now, you see those figures, Sir, in the report-you accept those figures?
Mr. KROGH:Yes, Sir.
Mr. GRoss: Now, with respect to these two, since you have mentioned
the Damaras and the Hereros in this relative context, what would be
your explanation as an economist, student of the South West African
economy in the modern sector and others-for the difference between
the aptitude, if any, of the Hereros in the urban section and the Damaras
in the same area?
The PRESIDENT:As employees or generally?
Mr. GROSS:As employees. Thank you, Mr. President. Let us refer
now, as I intended to, to the aptitude as employees to which reference is
made in paragraph n3, on page 31 of the Odendaal report.
Mr. KROGH:Sir, it is general knowledge in the case of South West
Africa that the Herero are a very proud people. Their historical back
ground and custom would not make them particularly prefer or like to
be employed by or work for White employers. This is generally known,
and it is not the result of discriminating among the different employees.
They would much prefer to be independent farmers-large hvestock
farmers.
Mr. GRoss: In the urban areas, Sir?
Mr. KROGH: No. I am so sorry. I was explaining what they would
prefer to do rather than be employees in the urban area. Hence, these
figures that you have herc reflect their particular wish or preferences not
to be there, Sir. Proportionally speaking (that is to their own total),
they are much less inclined as employees than is the case with the Damara.
At the same time the figures also show and the passage you quoted just
now substahtiates that employers prefer Damara to Herero workers be
cause the former are better workers. They show exceptional aptitude in
this regard, they probably show less absenteeism, are probably more
co-operative in getting down to and doing the job and probably much
more pleasant to work with generally-all factors that the employer no
doubt takes into consideration in saying that he prefers a Damara worker
as employee compared for instance, to an Herero, Sir.
Mr. GRoss: Would therefore you say that this characterization of
displaying exceptional aptitudism as employees does not, as you would
analyse the report as an expert, refer in whole or in part to aptitude in
the sense of skill, performance and understanding of the job to be done?
Mr. KROGH:Yes, I think they would be better suited to do particular
wage-earning jobs, and being suited means not only in respect of skill,
but includes your whole approach to work, your regularity of announcing
yourself for work and getting the job done in a shorter period, it is more
than just a matter of skill, and as to that you must remember that the
Damara was traditionally the one that had acquired skill with regard to
farming methods and so forth, when they were employed by the Herero
in the history preceding 1920, Sir. So, they have particular aptitudes and
they like to work-they show all these qualities apart from skill, that one
would associate with a better worker, Sir.
Mr. GROSS:\Vould you agree, Sir, that the catalogue of quaHties and
virtues which you have just enumerated would be among those qualities
which would be looked to, normally speaking, in an economic structure WITNESSES AND EXPERTS 123
to mark people for promotion to supervisory positions-would the
qualities that you have mentioned be relevant to such a normal promo
tion element?
Mr. KROGH: Yes, Sir.It is not only a matter of skill when you promote
people. It is a matter of whether he is devoted to his work; his whole
attitude to his work; whether he can a,ssume responsibility; whether he
can do the work better or to the greater satisfaction of the employer and
whether, in fact, the employer finds him co-operative.
There are many other factors, apart from having a certificate or having
attained a certain qualification, that are taken into account in promoting
people or preferring certain people as employees before other people.
Mr. GROSS: Are there in fact, as far as you are aware, Sir, any instances
in which a Damara of aptitude, as an employee, exercises a position as
foreman in a factory or indus trial enterprise in the modern economy?
:Mr. KROGH: No, Sir, not in the modern White economy as far as I
know.
Mr. GRoss: This fact, this phenomenon, has no economic justification,
or explanation: or does it, Sir?
Mr. KROGH: Unless you imply that a Damara could in fact do such a
job better than a White man can then it would have economic disadvan
tages for the Territory as a whole, because then you would have a mis
allocation of your resources. If it can be shown that he can do that
better, Sir, than a White manager, ifthat is the case, then I can say as
an economist that this, without taking any other factors into considera
tion, would be uneconomic. But I do not agree with your implied as
sumption that he could in fact do this job better than a White man, who
is at present occupying such jobs. Even ifyou were to replace that White
man he would be a loss to the economy because he can become a social
burden, so you will have to start creating jobs and opportunities for him.
As an economist I say this quite clearly and absolutely, Sir.
Mr. GROSS: I am not seeking to imply anything by my question. I have
not sought the Court to infer from anything I have said that there
should be any automatic replacement. My question was addressed to
you as an economist concerning the impact or effcct of the restrictions,
both social and legal, upon advancement, and il: I have understood you
correctly, Sir, you said that as an economist you felt that the failure to
utilize-1 am paraphrasing, and correct me if I am wrong-the skill,
which we are assuming for the sake of this discussion-is uneconomic (I
think that is the word you used): is that correct, Sir?
Mr. KROGH: If your assumption is correct that the Damara is in fact
more skilful and in a position to perform that job better-it all depends
on your assumption-and disregarding for the moment all other con
siderations, such as social friction or the nature of the particular popula
tion involved.
Mr. GROSS: I am addressing myself to you as an economist in this
context. ,
Mr. KROGH: Yes, as an economist I must answer that question by
saying that I must take into consideration the particular set of circum
stances, Sir, before I can make recommendations or express views.
Mr. GROSS: \Vell, Sir, perhaps we can turn to another industry in which
the ordinance prohibits the execution on the part of non-Vlhites of
apprenticeship contracts, I refer to the motor industry. Is there a motor
industry in the northern territory?124 SOUTHWESTAFRICA
The PRESIDENT:A motor industry in what sense?
Mr. GROSS:Is there first of all an automobile factory, or assembly
plant; and secondly, are there automobile accessory stations?
Mr. KROGH:There are no automobile factories ·or assembly plants in
the whole of South West Africa. lt would not be justified economically
to start anything like that. As a matter of fact, South Africa is just on
the verge of starting one now.
Mr. GROSS:Then let me turn, if I may, to the second part, in response
to the sugges6on for clarification of my question. What about motor
industry in the sense of service stations, or repair stations, or other
accessories to the motor age? Do you have any such aspects of the motor
industry at the prcsent time, in Ovamboland, for example?
Mr. KROGH:No, Sir, because I do not think that there are more than
150 motor cars in the whole of Ovamboland, but I know for a fact that
they are at the moment building (1 saw the very construction there) a
service station in the territory to encourage non-White garage operators
to operate themselves in the area, because the few cars, 150 is, relatively
speaking, very few, often have to go out of the territory to obtain their
petrol or to have repairs effected. I could not possibly imagine that a
repair station or a garage would ever have been justified, say, 10 years
ago in Ovamboland, because I take it there would only have been about
ro motor vehicles in the whole of the territory at. that stage.
Mr. GRoss: Sois it fair to say, Sir, that from the standpoint of the
non-\Vhites who live and work in the economic sector, there are no or
very few available employment opportunities in the northem territories
in this industry?
Mr. KROGH'A . t this particular stage, yes, Sir.
Mr. GRoss: Are you aware of any economic or other reasons for the
prohibition in the ordinance of the execution of apprenticeship contracts
by non-Whites in the motor industry in the economic sector?
Mr. KROGH:Sir, I think my answer here would be similar to that
which I gave with regard to a similar question which you put to me
previously on the other industry. lt is exactly the same situation, that if
this limitation in fact operates~and I do not know exactly in which
trades they are effective~then I would say that that would be because
those who are at present mechanics in the modern sector, qualified motor
mechanics as they call them there, might feel that their particular em
ployment position and prospects would in fact be threatened. But I can
also add, Sir, that there are service stations operating, for instance, in
urban areas such as Katutura, near Windhoek, where \Vhite employees
arenot allowed to compete with non-White employees in the supply of
garage services.
The PRESIDENT: Evidence has been given that in the urban areas, in
Katutura, is it, there are service stations which are wholly run by non
White people.
Mr. KROGH:That is correct, Sir.
The PRESIDENT:Do they engage in running repairs, or any repairs?
Do you know that?
Mr. KROGH:Well, Sir, I would not know that detail, but I take it that
they would stock certain accessories. Whether they would undertake
major repairs, motor car repairs, I would not be able to state straight
away. I would say that until quite recently they probably preferred to
have a White mechanic work on non-\Vhite cars. This could quite possibly WITNESSES AND EXPERTS 125
have happened, that you would market your work in Wlùte qualified
garages where White mechanics work.
The PRESIDENT: Could you give the Court a picture regarding the
urban areas where the non-Whites are housed, in Katutura, of the extent
to which there would be cars used by those who live in that area?
Mr. KROGH:Yes, Sir. Katutura is a completely modernly constructed
township outside Windhoek. It has asphalt streets leading up to the
township. Itis occupied by different population groups. A characteristic
of thisarea is that certain blocks of these houses, of modern construction,
are used by different groups.
The PRESIDENT: Yes, we heard that, Dr. Krogh; it is only a question
of the cars.
Mr. KROGH:I am sorry, Sir. There are cars, and I think even a bus
service operating between Windhoek, where you have the urban Euro
pean residents and where most of these employment opportunities are,
and Katutura. I think-1 might be wrong on this, but I think I have been
told-that the owner of this bus service is also a member of the non
White population group and there are service stations in Katutura,
serving the cars owned by non-Whites. I have seen many taxis, for
instance, operating betwecn Katutura and conveying non-White pas
sengers, driven by non-White taxi drivers. But to the extent that there
are motor mechanic and garage repair works I cannot say offhand, Sir.
The PRESIDENT: I just wanted to get the general picture, :Mr.Gross,
that is ail.
Mr. GRoss: Yes, Sir.
[Public hearing of 24 September I965]
The PRESIDENT: The hearing is resumed.
Mr. GROSS: Thank you, Sir. Dr. Krogh, I should like to clear up one
or two points which werecovered in previoustestimonygiven byyourself,
Sir. First, I should like to address your attention to your comments in
the verbatim record of 23 September, at page II4, supra, where you
referred, among other things, to the following. Quoting it, I believe, in
context correctly you said:
"I think you must, as an economist, say that these regulations
would be designed to limit the number of skilled people in the
territory, viewed as a homogeneous whole, to qualify for particular
trades."
And, then further, talking about restrictions, you said as follows on the
same page:
"Yes, I think such restrictions, in the case of South West Africa,
and the economic effects thereof that it may have to the detriment
of the development of the Territory, are, in fact, compensated for,
and, in fact, circumvented by a policy which creates opportunities
for training ofthe skilled people in a different organization."
I should like to ask you, first, if you would, please, elucidate the
reference to "a different organization". \Vould you explain to the Court
what you had in mind in that phrase?
Mr. KROGH:Sir, I am glad you refer to that part of my testimony
because I might have created the impression that no avenues are, in tact, SOUTH WEST AFRICA
126
available for these people to acquire skills. This is not the case. They
have, in fact, an institution which gives them both the theory and
practical side of becoming skilled or qualifi.ed in certain trades. I am
thinking in particular of the Augustineum at Okahandja where these
people are trained and are examined, in fact, to obtain certificates of
qualification with regard to the specific trade in which they are interested
to qualify themselves.
Apart from this, there is nothing that prohibits a member of a non
White group from acquiring the necessary skill, experience and know
ledge, Sir, outside the apprenticeship contractual provision. There is
nothing that prevents them from becoming skilled and occupying posts
after they have acquired these skills in the whole Territory. There are
no legal restrictions placed on them, except for those cases that I have
mentioned earlier on in my testimony-namely there are certain posts
in the mining industry in the White area and in the supply of public
transportation services in the southern White economy of the Terri
tory.
Sir, in order to give you a true perspective or sense of proportion in this
regard, because I think I might have created the impression that there are
no skilled non-White workers in the Territory, or semi-skilled for that
matter, I have here figures which I took from the 1960 census giving you
the occupational distribution of Natives working in thêso-called Police
Zone. Now, I will not bore you with any figures, but I only want to give
you a sense of proportion in this regard. In this census of 1960 indicating
occupational distribution of Natives engaged in economic activity in the
southern sector there was, in fact, a total classified as skilled and semi
skilled workers-a total of 21,230. Let us say approximately 20,000-
against what has been classified in the census as labourers-that is
workers who would not, according to the industrial census classifications,
be regarded either as skilled or unskilled-numbering ro5,6I7 (or ap
proximately roo,ooo). ln other words, the ratio of what we can regard as
skilled and semi-skilled on the one hand, to the number that we can
regard as labourers (that would be non-skilled in any sense of the word)
on the other would be I to 5. This, I think, clearly gives a better sense of
proportion or perspective in respect of the issue of limiting, through the
Apprenticeship Act, them from acquiring skills or qualifying for the
different trades. Apart from having these qualifications they are also in
fact engaged in these economic activities. In other words they are not
being prevented from earning a living and practising their skills in the
economy of the southern sector, Sir. That is exactly what I tried to say,
and I just wanted to correct any misunderstanding. With regard to your
specific question, I tried to answer that very specifically there, Sir.
Mr. GRoss: Would it be fairto say, Sir, that in response to my question
the phrase "different organization" referred to the Augustineum school
to which you referred? Are there any other organizations? This was my
question, please, Sir.
Mr. KROGH: Sir, there is this one specifically organized for the non
\Vhite population groups at the Augustineum. There are at the moment,
no such other institutions-as far as I know, not even for the \Vhite
section of the community. There are no technical colleges, as far as I
know.
There is just this one in the southern sector and I know for a fact that
plans are un~er way for establishing such institutions and training schools WITNESSES AND EXPERTS 127
in Ovamboland, for instance, to supply the necessary qualified people to
undertake and play a much greater part in the construction works and
new developments envisaged by the Odendaal Commission, Sir.
Mr. GROSS:Are there any organizations or institutions, other than the
one you have mentioned, in which Natives have an opportunity for being
trained?
Mr. KROGH: No, Sir, not in South West Africa, but there is, apart
from this opportunity, also the opportunity (just as for White people in
the Territory) for people who would like to qualify themselves to do this
through institutions that are open to them in the Republic of South
Africa. This, after all, is one way of economizing as a result of being
economically attached to South Africa, because, as you appreciate, these
institutions are expensive and not always economically justified with
regard to the number that would, in fact, make tise of such opportunities
in a small population-smaller, in fact, Sir, than that of The Hague,
living in an area 20 times that of the Netherlands, Sir. Itwould not be an
economic proposition to start such large-scale institutions which would
have to be subsidized organizations.
The PRESIDENT: How do the Bantu people and the Coloured people
avail themselves of the opportunity of going to South Africa for in
struction?
l\lr. KROGH:Sir, I have not got the exact figures but I imagine that it
would not be very impressive if I could give you the particular figures
for the simple reason, Sir, that even in the case of the Augustineum in
Okahandja-where these people receive completely free residence, are
encouraged to go there and even receive pocket-money white they are
there-they need not keep themsclves-the numbers have been very
disappointing. I think the number is not more than 50, for examplc. I
cannot give you the numbers straight away with regard to those that
proceed to make use of facilities available and open to them in the
Republic-specially set aside for them there. I could not give you this
figure but I would imagine it could not be veryimpressive. It would imply
travelling to the Republic which can be an inconvenience, whereas the
opportunities available at the Augustineum, for instance, are not even
fully made use of, Sir.
Mr. GRoss: Could you tell the Court, please, Sir, whether there are any
opportunities for the acquiring of skills in employment, for example, in
the furniture industry, or the cernent industry? Taking thcse as examples,
what opportunities are available to the employees-doing labour to
obtain skills in those industries? . .
Mr. KROGH:Sir, to begin with, there is no cernent industry in South
West Africa.
Mr. GROSS:Name any industry you please, Sir. I am trying to save
time by suggesting some. ls there a furniture industry in South West
Africa?
Mr. KROGH: Sir, there is only one furniture factory in the whole of
South ·west Africa and that is the one that has been established in
Ovamboland, Sir.
Mr. GRoss: Are there any industries in South West Africa, Sir?
Mr. KROGH:Yes, Sir, there are some industries.
Mr. GRoss: Would you state to the Court, if you ·please, in what in-
dustries Natives are given the opportunity to acquire skills? .
]\fr.KROGH: Sir, I have just explained that there is no restriction128 SOUTH WEST AFRICA
whatsoever legally upon non-White labourers acquiring skill and being
taught the necessary theory and being given the necessary encourage
ment, other than the one I have mentioned with regard to the Apprentice
ship Act, but this has been circumvented, as it were. This does not mean
either that they do not get the opportunity or that they are not encour
aged to do so, as these figures have proved to you just now, Sir.
I cannot go through every particular industry. South West Africa is
not an industrialized country, by no means. There are certain individual
trades that might resemble something which is called, in Western econo
mic jargon, an industry, but in fact they would be one-man organizations,
one-man enterprises or small companies. The only particular industries
that are worth mentioning in the Western sense of the word, that is
having large capital investment and a hierarchy of management that
could represent a type of industry such as you fmd in a developed
country, are the beer brewing industry in South West Africa and the
fishing industry which is in Walvis Bay. As I pointed out the other day,
the latter has only been developed on a large scale during the last decade
or 12 years-so there are in fact two industries. For the rest there are
small trades rather than industries in any proper sense of the word, Sir.
Mr. GROSS: Can you indicate to the Court to what the skills, to which
you refer, would relate? If you wish to take any industry or any minera!
exploitation or mine, what type of skills would in fact be made available
to the non-White employee?
Mr. KROGH: \Vell, Sir, I think we can answer that question very
clearly if you will permit me to give you a breakdown of the figures
which I have here and which show what kind of occupations the non
White workers, who are classified as skilled and semi-skilled in the
industrial census, in fact occupy. I think this would give you a very good
idea of what they do. There are professional and technical people in
cluding teachers in the medical service-this is administrative obviously,
being professional-then there are clerical, sales and related workers;
there are also craftsmen and production workers numbering ro7 in the
textile and leather trades; metal workers, 98; carpenters and joiners,
124; painters, r2r; bricklayers and plasterers, 698; potters, brick and
clay workers (these are also all classified under skilled and semi-skilled),
r43; food workers, 156-this would include skilled and semi-skilled
workers in the fishing industry, because this would be a major food
industry. Then there are workers with stationary engines and other
equipment operators, ships' crews, drivers of motor vehicles and so forth.
I can go on further, Sir, but that gives you an impression of the number
of skilled and semi-skilled non-White people and their different occupa
tions. I cannot tell you exactly in which industry they are working.
Mr. GROSS: Thank you, Sir. With respect to these enumerations which
you have made in the various industries, do these jobs to which you refer,
to which the skills apply, do any of them involve supervisory or manage
rial fonctions?
Mr. KROGH: Yes, some of them do, Sir, and I have the figure here for
managers, under administrative and managerial. They have a subheading
here, managers, 42.
Mr. GRoss: And where are they employed, Sir?
Mr. KROGH: In the southem sector. The figures refer to the Occupa
tional Distribution of Natives in South \Vest Africa, 1960 census, in
the southern sector. WITNESSES AND EXPERTS 129
;\fr.GROSS: 42 non-Whites in managerial capacities in the southern
sector, is that the purport of your testimony?
M.r. KROGH: This is according to the industri:il census figures, Sir.
M.r. GROSS: We do understand you, Sir, that in the Southern sector
there are only 42 non-Whites who are in managerial capacity in any
industry or mineral exploitation? ·
Mr. KROGH: According to the census, Sir, yes.
Mr. GROSS: With respect again to the skifü to which I referred, I
believe you referred yesterday to the purport, in fact I have read your
testimony, with respect to the restrictions which are designed to limit
the number of skilled people in the territory; the figures you have cited
of skilled non-Whites in the several industries you have mentioned have
been developed (those skills have been developed, have they) in industries
to which these regulations do not apply?
Mr. KROGH: Sir, these skills have been acquin:d in South West Africa,
in the southern modernized economy, outside the apprenticeship law
regulation that we discussed yesterday. This cl1oarlyindicates that this
restriction does not prevent people from acquiring skills, in the Terri tory.
Mr. GROSS; Do those figures, Sir, I neglected to make a note as you
were reading them, in the several industries you referred to, do they
include mining? Skilled non-Whites in mining?
Mr. KROGH: Yes, the industrial census, as far as my knowledge goes,
would regard mining operations, which are highly technical, as industrial,
and I would say that mining would be the main industrial, and the most
highly industrialized, activity in the territory. So the figures would in
clude mining too. Unfortunately, I have not got the figures to break this
down for you for every industry-how many are in mining and how
man y in the fishing industry and so forth. I cannot quite see, do you want
to have ...
;\frGROSS: ... I would be glad to, with the President's permission.
The question, to clarify it for you, Sir-but I think you have answered
it, actually-is whether you have information, and if so please give it
to the Court, concerning the number of skilled non-Whites listed in the
mining industry. I think you have answered that.
Mr. KROGH: I have not got the figures for the mining industry as such
here, Sir, but I could supply them for you.
Mr. GROSS: You have no appreciation of the numbers, apart from the
statistics, you have no idea as a student of the ;1rea?
Mr. KROGU: \Vell, I cannot give you the number that-are in fact
employed in the mining industry in the White modernized part of the
southern sector of the economy of South West Africa; but I can tell you
that a very smalt percentage, I think it is not more than II percent., of
the total economically active non-Whites in the southern sector is, in
fact, employed in the ·mining industry-not more than II percent. And
I can tell you, furthermore, that by far the larger part of these emanate
as migrant workers from the northern territory, because in the mining
industry they can work in teams, whereas they would otherwise be
spread all over the country. Their particular labour conditions, housing,
feeding, transportation, and so on, can be much better organized, seen to
and inspected when they are concentrated in the two main mining areas.
This is one of the reasons why a large number of these workers are migrant
workers. There are other very good economic re:isons, which are in both
their interest and the interest of the mining industry.130 SOUTH WEST AFRICA
But the number in question is definitely a small percentage. It is part
of II percent. of the total but I cannot say what part of the II percent.
are in fact skilled or semi-skilled. I have not got the figures with me here.
The PRESIDENT:Is it II per cent. of the total labour force or total
population?
Mr. KROGH:Sir, this is of the total economically active, that means of
the labour force. The latter times four will give you the approximate
total population.
Mr. GROSS:With respect, I take it that the short answer to the question
isthat you do not know the number of skilled non-Whites, if any, in the
mining industry? That is, I take it, the answer?
Mr. KROGH:Yes, Sir.
Mr. GRoss: \Vith respect to the opportunities for ttaining, you have
testified, you have expressed your opinion, with respect to the restrictions
on apprenticeship contracts. Is it nota fact that in the mining industry,
among others, there are restrictions on employment opportunities and
promotions to enumerated jobs-is that not correct, Sir?
.li.KROGH: Sir, I think I have explained this before, namely that there
are certain posts that are reserved for skilled Whites and managerial
White workers in the mining industry in the White sector of South West
Africa. But similar restrictions operate, with regard to mining activity,
in the non-White or Native areas where the members of these groups have
preference in these particular posts.
Mr. GRoss: Do the restrictions in the listed posts, which are in the
record and enumerated, not deprive the non-\Vhites of opportunities for
training and acquiring skills in those forbidden or restdcted jobs?
Mr. KROGH:Sir, to that extent, yes ...
Mr. GRoss: Could you answer that question, yes or no.
Mr. KROGH: It is difficult, Sir, for me to answer yes or no. One cannot
be dogmatic about these things. You have to take the alternatives into
consideration. This is the basic approach of any economist, to consider
alternatives and not to be dogmatic with regard to particular ...
Mr. GRoss: Mr. President, may I rephrase my question, which appears
to have been misunderstood. Does the denial of opportunity to the non
Whites working in these mines curtail or deprive them of the opportunity
to acquire skills requisite to those positions?
Mr. KROGH:To the extent that they are people who are interested in
occupying these jobs, that are in fact already occupied, then I should
say yes, Sir.
Mr. GROSS:Could it possibly be answered in any other way, Sir, or is
there some method by which, to use your phraseology in your testimony,
the effect of the deprivation of these training opportunities is, as you
said, circumvented by a policy creating opportunities for training else
where? If so, and specifically in the case of mines, will you indicate how
that limitation is circurnvented.
Mr. KROGH:That limitation, Sir, is circumvented by encouraging and
training people in the mines, especially the tin mine that is in the Damara
homelands.
Mr. GRoss: Are you aware, Sir, that the law which restricts oppor
tunity for promotion applies to all mines owned by Europeans, as the
phrase goes in the legislation?
Mr. KROGH:Yes, Sir, but Europeans may only own mines in the White
areas set aside for them. WITNESSES AND EXPERTS 131
Mr. GRoss: You referred yesterday to a tin mine, did you not?
Mr. KROGH:But which tin mine was this?
~1r.GROSS:The Uis Tin Mine.
1'.fr.KROGH:Yes, Sir.
Mr. GROSS:Now that tin mine is located where, Sir?
Mr. KROGH: It is near the Brandberg, not far from Omaruru and
Usakos, Sir.
The PRESIDENT:Where is that?
Mr. KRC)GH:That is i·nthe southern sector and it forms part of the
proposed large Damaraland. It lies in part of the large area set aside by
the Odendaal Commission for this particular purpose.
Mr. GROSS:This is in what is called one of the Reserves, isn't it, Sir?
Mr. KROGH:Sir, I might have given the wrong impression here. I
should indicate that this falls within the large proposed Damaraland. I
could rnake sure of that particular point ...
Mr. GROSS:I am asking with regard to the prcsent situation. Is the tin
mine, to which you refer, located in a Reserve?
The PRESIDENT:An existing Reserve?
Mr. GROSS:Yes, Sir.
"M.r.KROGH:If you wiU permit me, the Odendaal Commission report
is lying next to me, and I could locate the particular mine and answer
that question.
The PRESIDENT:The question is, is it within an existing Reserve?
Mr. KROGH:Yes, Sir.
Mr. GRoss: I can save your time, Sir. Page 341 of the Odendaal Com
mission report refers to the Uis Tin Mine, near the Brandberg in the
Omararu district. Is that the mine to which you referred, Sir?
Mr. KROGH:Most of these Reserves set aside fall within magisterial
districts foradministrative purposes, Sir. The fact that it is classifi.ed as
falling in the Omaruru administrative district does not necessarily mean
that it docs not fall in a Reserve. I just want to make quite sure on that
point. I am looking for a map, Sir.
Mr. GROSS:Shall I wait, Mr. President, while the witness consults his
map?
The PRESIDENT:Yes, if you really want that information.
Mr. GROSS:As a matter of fact, Sir, I did not want to curtail the wit
ness from answering in any way he thinks. It is really not essential for
the purpose of my enquiry. In order to expedite the proceedings, may I
turn to the point that I am really getting at, Sir?
The Odendaal Commission report with respect to this mine states that
this Company, or this tin mine, is a wholly owned subsidiary of the South
African Iron and Steel lndustrial Corporation Limited. Is that a Euro
pean-owned company?
Mr. KROGH:Yes, Sir, but to the extent that the non-Whites of that
particular area have not yet reached the stage to undertake, operate and
finance mining, this is being donc under special permission in these non
\Vhite areas by outside capital, technique and management, but with
the vcry clear understanding that this is (to employa very popular word
that is used in the rcst of Africa) to be "Africanizecl" as soon as these
people are, in fact, qualifi.ed, show an aptitude and interest to undertake
mining activity. The alternative, Sir, would have been to not have
developed this mine at all.
Mr. GROSS:Sir, I do not wish to engage in controversy with you. My132 SOUTHWESTAFRICA
question said or implied nothing with respect to the justification or
otherwisc of ownership. I address the question simply to you, Sir, for the
sake of the clarity of the record-is the Company referred to in the
Odendaal Commission report, to which I have referred, a European
owned Company, or is it not?
Mr. KROGH: It is a European-owned Company-but it is not in fact
owned by Whites in South West Africa.
Mr. GROSS:I refer again to the restrictions upon the achievcment by
non-Whites in the mining industry in South West Africa of certain
promotions to listed posts. That is Iimited, Sir, to European-owned
mines, is it not?
Mr. KROGH:Sir, if the Uis :Mineis within an existing Native Reserve,
these restrictions that I have referred to would not operate against non
White employees. This is the policy and, if it does, then it is in fact an
irregularity, because it should not. If this Vis Mine does not, at this
moment, fall within a reserved area but would as soon as this large area
isproclaimed a Native area, then I can give you the assurance, Sir, that
thesc restrictions that we have referred to would not operate in favour of
White mine-workers in that particular territory.
Mr. GROSS:Is there any provision, of which you are aware, in the
legislative restrictions with regard to promotion in the mining industry
in the case of non-Whites, which makes exceptions in the case of the Uis
Tin Mine?
Mr. KROGH:I do not dispose of that detailed information, Sir.
Mr. GRoss: Do you know, Sir, whether or not there are, in fact, non
Whites employed in the Uis Tin Mine in any of the listed categories from
which they are excluded by the terms of the regulations?
Mr. KROGH:I do not know, Sir.
Mr. GROSS:Thank you. When you referred yesterday, therefore-to
call your attention to the testimony you gave with respect to the tin mine
at page II2,supra, of the verbatim record-! will read to you the follow
ing statement:
"As a matter of fact, now I corne to think of it, there is an im
portant tin mine, for instance, in the new and large proposed
Damara land, that is in operation and in fact is being exploited, and
I take it that this would give an opportunity to train these people,
if these minerai resources should become economically feasible to
develop in the northern territories."
Now, when you referrcd, therefore, to your opinion that this tin mine
would give an opportunity to train these people, you did not intend, I
take it, to refcr to the fact that you knew that they were being actually
employed?
Mr. KROGH:No, Sir, that is not, in fact, implied by my statement. I
said this would give them an opportunity to do so.
Mr. GROSS:The opportunity would then corne about as a result of
an exception possibly being made to the mining laws? Is that what you
had in mind about opportunity?
Mr. KROGH:Yes, Sir. It would, in fact, give them an opportunity to
acquire skills in the mining industry. .
Mr. GRoss: If the regulations were amended, or if a special exception
were made, they would have that opportunity. That, I take it, is the
sense of your testimony on page II2, supra? WITNESSES AND EXPERTS 1
33
Mr. KROGH:No, Sir, I want to give the very clear impression there,
that it is not a matter, as far as an observer ànd an economist is con
cerned, about amending existing laws. I was trying to indicate to you
very clearly that the operation of these mining laws relates to particular
areas in which White mineworkers have a preference, and that these
limitations do not operate in favour of the White miners in areas outside
the White area. I also tried to indicate that to the extent that these
limitations in the White area would preclude non-Whites from acquiring
mining skills, special arrangements would be made to allow the non
White workers to acquire these skills if and when they are required for
the development of mining resources in non-White areas where they
would then receive preference and priority with regard to the occupation
of these jobs. This is the same theme whkh I tried to pursue yesterday,
Sir.
Mr. GROSS:Would you please tell the Court, as shortly as you can, Sir,
whether, on the basis of your knowledge, there are any non-Whites
employed in any mining enterprise in South West Africain a prohibited
position?
Mr. KROGH:To the extent that non-vVhites are employed in the mining
industry in the southern White sector of the economy, these restrictions
operate with regard to their promotion in this particular industry and I
set out very clearly yesterday why I, as an economist, could understand
and appreciate, why under the set of circurnstances such as those in South
West Africa, these restrictions rnay be regarded as necessary by the
responsible authority.
Mr. GRoss: Are there, in your knowledge, anynon-Whitesin the mining
industry in South West Africa (I refer for the moment to the southern
sector), who are employed in any of the listed positions? Was your answer
intended to say "No" to that question?
Mr. KROGH:Yes, Sir, there are restrictions in this regard.
Mr. GRoss: There are restrictions-that is clear in the record. Are there
any non-Whites in the southern sector who, so far as you know, hold any
position in the mines which fall within the restricted categories?
The PRESIDENT:Do you understand the question?
Mr. KROGH:Not quite, Sir.
The PRESIDENT:The question seems to be simple enough. In other
words, are you, of your own knowledge, aware of any of the rcserved posts
in the rnining industry in the southern sector occupied by non-Whites?
That is the question, isn't it, Mr. Gross?
l\'!.r.GRoss: Yes, Sir.
The PRESIDENT:Do you know, or do you not know?
Mr. KROGH:I do not know, Sir.
The PRESIDENT:That is the answer.
Mr. GRoss: Thank you, Sir. Did you not testify yesterday, Sir, that
the output of the existing mines in the southern sector was something
Iike 90 percent. of the total production of the South West Africa Terri
tory?
Mr. KROGH: I said, Sir, that the hvo ...
Mr. GROSS:I asked whether you had said that yesterday, Sir, so far
as you recall. I just did not want to put words into your mouth, Sir.
Mr. KROGH:No, Sir, I did not say that.
Mr. GROSS:You did not say that. What did/ou say?
Mr. KROGH: I said that diamond mining an copper mining in South134 SOUTH WEST AFRICA
\Vest Africa were, in fact, responsible (these two) for about 90 percent.
of the total value of minerai production inthe Territory, but that the
value of output does not reflect, in fact, the degree to which they are in
any way important as employers of labour in the Territory. On the
contrary, they make a very big contribution with regard to the export
value of minerais, but a very small contribution to the creation of em
ployment opportunities.
Sir, mining, exccpt when it is on such a very large scale as in the case
of the Republic of South Africa, is generally regarded by economists
as a very poor starter of modern economic development and creator of
employment opportunities in the underdeveloped world, Sir, unless it is
of such a large scope that it in fact could do this, but compared with any
other industry, like the dcvelopment of agriculture or manufacturing
it is often quoted as one of the worst starters of modern
industry,
economic activity in the underdeveloped world. So the value of the
minera! exports does not reflect the extent to which employment oppor
tunities are in fact createdby the mines. I think it is a false association
to bring value of minerai exports or production in connection with the
number of employment opportunities in the Territory.
Mr. GROSS: Sir, how many persons are employed in mining industries
outside the southern sector of the Territory, do you know?
Mr. KROGH: There would be very few, Sir, outside the White sector in
the Territory.
Mr. GROSS: So that in applying the employment ratio standard which
you advised the Court you prefer, what roughly would be the pcrcentage,
the ratio, of employees in the mining industries in the southern sector as
compared to the territory outside that sector?
Mr. KROGH: I will have to make an estimate, Sir, if you don't mind.
It would be a very small percentage, I would say definitely less than
5 percent.
Mr. GROSS: So that on that ratio there is even a larger discrepancy
than taking the currency-up ratio, or at least about the same, let us say.
M:r. KROGH: Yes, Sir.
Mr. GRoss: Therefore on either basis the preponderant proportion of
the industry is in the southern sector-that is correct, is it not, Sir?
Mr. KROGH: You are comparing two quite different economies.
Mr. GROSS: I am not asking you to describe the economies-if the
Court wishes you to do so-1 just would like to have in the record, if you
willbear with me, Sir, the answer to the question whether, in your expert
opinion, one could fairly say that the preponderant output and em
ployment of and in the mining industries is in the southern sector.
Mr. KROGH: Definitely, Sir.
Mr. GROSS: Turning to another matter, are there, if you know, any
non-White engineers in the Territory of South West Africa?
Mr. KROGH: As far as I know, no.
Mr. GRoss: Are there, as far as you know, any non-Whites being
trained as engineers in South West Africa?
Mr. KROGH: No, Sir, notas far as I know.
The PRESIDENT: When you speak of an engineer, Mr. Gross, may
I ask, is that a fully qualified engineer or anybody engaged in the
engineering skills?
Mr. GROSS: Engaged with engineering skills, in any employment.
The PRESIDENT: That is another matter. WITNESSES AND EXPERTS 135
~Ir.KROGH:Sir, there are no universities in South West Africa-and
no university degree for non-White engineers, but they use the word
engineer, as you appreciate, for all kinds of technical work, too.
Mr. GRoss: How many, if any-perhaps you have answered this, but
I do not recall it-non-Whites are being trained as engineers in South
West Africa-did you answer that question, Sir? I regret I do not re
call.
Mr. KRoGH: Yes, I did answer that question.
Mr. GRoss: And the answer was what, Sir?
l\1r. KROGH:The answer is, so far as I know, not any at the moment.
1\fr. GROSS:So that in your reference in your testimony to skilled
people, opportunities for training of skilled people, it does not refer to
engineering skilis?
l\lrKROGH:It would refer to that. I said th:tt the opportunity would
exist there for them to acquire the skills as and when they are in fact
required by that particular industry operating in that particular area.
There is no point in training and qualifying people if there is no demand
for them; you create a greater problem by educating people and then
leaving them unemployed than in fact not educating them at all for
particular posts.
Mr. GRoss: Is any attention paid to the wish of the individual as to
his own accomplishment, his own talent and capacity? Is it entirely
determined by the demand to the extent to which he is given opportunity
to be trained?
Mr. KROG H: The demand for this particular person must exist; there
is no point in qualifying an individual ...
The PRESIDENT:That is not the question as put to you.
l\Ir. KRoGH: I am sorry, Sir, I could not quite get that.
The PRESIDE~T: The question is: regarding an individual, whether
there was or was not a demand for a particular skill, is the opportunity
open to him to acquire the skill in this method which you have indicated
to the Court, by attending these schools of instruction and acquiring a
skill? That is the question.
Mr. KROGH:Yes, Sir, there would be opportunity for him in fact to
acquire such skills.
Mr. GRoss: If he seized the opportunity, would he be able to utilize
his skill once he went through the time, effort and expense of acquiring
this skill? ,
Mr. KROGH:To the extent that there is a demand for his skills, yes.
M.r.GROSS:And is there a demand for his skills in the present situation
- in the economy?
Mr. KROGH:Not in the mines in the White area.
Mr. GROSS:I am talking about industry and mines, or any other
enterprises which require, let us say, engineering skills. Is there any
existing demand for such skills on the part of non-Whites in the Territory
at the present time?
Mr. KROGH:Yes, I can think of an example-for instance, in this
particular furniture factory operating in Ovamboland.
Mr. GROSS:I am talking about the southern sector, Sir.
Mr; KROGH:The southern sector-no, I cannot think of there being
any demand for his services at this stage. There are. as far as I know, even
very few White engineers in South West Africa-there could not be very
many more than. two dozen.136 SOUTH WEST AFRICA
Mr. GROSS: Would the same response apply to other professions as to
which the apprenticeship restrictions govern?
Mr. KROGH: These people acquire skills, as I pointed out just now, and
there is no prohibition on them to occupy jobs in the White sector in so
far as there is a demand for their services in the White economy. The
people that I have listed here are in fact, with few exceptions, occupying
these skilled jobs inthe modern White economy in the so-called Police
.Zone, ifthat is the point. There is no restriction, as these figures prove to
you, and the extent to which such restrictions as those in the mining
industry operate, I can assure you they are of marginal and not of fun
damental importance from an economic viewpoint for the Territory's
development-1 made that point yesterday.
Mr. GROSS: I am not sure I understood your answer to my question,
but I will not pursue it. In the course of your testimony yesterday, at
page n4, supra, again in the context of the response to my question
concerning the restrictions and the economic effects thereof, you said as
follows:
"As a matter of fact, if I am allowed to put it to you that we may
look at the Republic of South Africa as an example of things to
corne, then it is very clear tome that no restrictions would be placed
on the training of these people. As we all know, it is in fact a positive
and concrete development policy in South Africa to train these
people, but not as minor apprentices working alongside White
workers, as I would imagine this would be a provision reflecting
again, or being an economic cost due to the complex and delicate
social situation in such a particular set of circumstances."
What I want, if I may, to draw your attention to and ask your comment
upon is whether, in terms of the restrictions, "no restrictions would be
placed on the training of these people" in South Africa as a shape of
things to corne in the Territory, what people are you referring to and
what sort of restrictions? Let me stop there-whom did you mean by
"these people"?
Mr. KROGH: When I use the words "these people" I use a collective
term to indicate people who are in fact not regarded as members of the
White and economically viable group in South Africa. Secondly, there
is no restriction ...
l\fr.GROSS: Pardon me, Sir, may I hold you to that point, with the
President's permission? I have not understood your answer to my
question. ''These people"-is this a colloquialism on your part for non
White?
Mr. KROGH: In the context of the question you asked me, I take it
that "these" or "they" referred to the people you were referring to in
your question, which I have not with me now, Sir.
Mr. GROSS: \Vell, you used the expression; I do not want to badger
you with this; when you said "these people" in that context, were you
referring to non-Whites? I just wanted to make it clear.
Mr. KROGH: Yes, Sir, I was referring to non-Whites.
l\frGRoss: You were about to mention some point that you thought
relevant to this question?
Mr. KROGH: Yes, what I had in mind with regard to looking to South
Africa as an example of things to corne, I think it is very relevant, I put
it to you clearly that thcre is no legal restriction in South Africa operating WITNESSES ANDEXPERTS 137
in the apprenticeship law with regard to non-Whites, as it does in South
West Africa. In other words, the apprenticeship law in South Africa does
not discrimina te in respect of the member of a particular group. However,
restrictions have operated in fact outside the law for reasons of custom
and through control of entry into a particular trade, as I explained
yesterday. These rules and regulations operate outside the purely legal
framework of a country in any trade, and this limited the number of
skilled and semi-skilled people that were available in South Africa. In
order to circumvent that bottle-neck, as it were, in qualifying members
of the non-White population group to acquire skills, special institutions
and organizations have in fact been established by the Government to
give these members of the non-White population groups both the theory
and practice that would make them skilled and semi-skilled workers.
It might be of great interest to you, Sir, to know that the number of
people entering and acquiring skills in South Africa, outside the appren
ticeship system, and this refers to both Whites and non-\Vhites, is much
greater than the number that qualify through the apprenticeship
avenue. . .
The PRESIDENT:Is this common in the trades of many countries in
the world?
Mr. KROGH:Yes, Sir.
Mr. GROSS:Now it is true, is it not, Sir, that the acquisition of these
skillsthen is not available on the job-is that correct, Sir?
Mr. KROGH:Sir, you cannot acquire these skills unless, in fact, you do
the work-these people do the work, Sir.
M.r.GROSS:And that work is not being clonebecause of no demand-is
that correct, Sir?
l\lr. KROGH:Sir, to the extent that there is no particular demand for
an industry or trade then it does not exist in the country; he could not
obtain experience in that particular trade.
Mr. GROSS:So that the training school, to which you refer, would be
training persons for jobs for which there would be no demand?
Mr. KROGH:Sir, on the contrary. The policy of industrialization in
South Africa, as you may very well know, subsidises and encourages
industries along the borders of the White area-there are particular
railway subsidies and taxation provisions and so forth. In fact, it dis
criminates against industries developing in the existing White areas in
favour of industries along the border areas in order to encourage the
employment of and give employment opportunities to members of the
non-White population groups that would otherwise be discriminated
against or might be cxcluded from occupying jobs held at the moment by
White workers, Sir.
Mr. GROSS:You would agree I think, Sir, with the logic of the necessity
of defining the areas of which we speak.
l\IrKROGH:Yes, Sir.
Mr. GROSS:Now, when we talk about demand and when we talk about
trading opportunities, whether on the job or in organizations, in respect
of the territory of South West Africa, coming back to that for a moment,
I am referring to the modern economy that is to say the southern sector.
Have your answers been directed toward that sector in response to my
questions concerning demand and training opportunities and on the job
training?
l\lrKROGH:Yes, Sir. They have this opportunity. They are not with-138 SOUTH WEST AFRICA
held from occupying and getting this experience and they are in fact being
taught the particular trades-there is no restriction legally to do this, Sir.
Mr. GRoss: I understand you have answered my question. Now, with
respect to South Africa you began to speak of or you had finished
speaking of industries on borders-1 would invite your attention, Sir, not
to border industries or to present or projected industries outside the
White economy, as the phrase is, Iam talking about the White economy
where there is a labour force largely composed of non-Whites. With
respect to that economy, I am talking now about South Africa, Sir,
à propos of your reference toit as the shape of things to corne in South
West Africa, is there any demand, or, let me put it to you, is there any
training of non-White persons with a view to their employment in that
White economy in their skilled positions?
Mr. KROGH:Sir, these people are trained on the job and these jobs are
available in the \Vhite economy where they are created and, in fact,
there is a demand for them. These people acquire these skills, as the
figures clearly showed you, and they are employed there. They get the
experience and they are being taught there but not through the ap
prenticeship way of acquiring these skills, Sir.
Mr. GROSS:Let me perhaps give you a specific illustration, again with
respect to engineers, and again with reference to your comment con
cerning South Africa as an example of things to corne in the Territory.
I should like to quote from the debates of the House of Assembly of
South Africa of 25 May 1965 and the citation is No. 17, column 6638,
the following exchange:
"Bantu Engineers
14. Mr. Kaatman asked the Minister of Bantu Administration and
Development: how many qualified Ban tu engineers are employed by
his department in the (a) Bantu and (b) White areas of the Re
public.
Answer: the Minister of Mines: (a) and (b)-none.
15. Mr. Kaatman asked the Minister of Bantu Education: how man y
Bantu are at present being trained as (a) roads, (b) public works,
(c) transportation, (d) telecommunications, (e) town, (f) electrical,
(g) water, (h) civil and constructional and (i) other types of
engineers.
Answer: the Minister of Economie Affairs: (a), (b), (c), (d), (e),
(f), (g), (h) and (i)-none."
Are you familiar with the matter of training of engineers in South
Africa?
Mr. KROGH:Sir, I have not made a special study of that-no.
Mr. GRoss: So you have no basis, expert or otherwise, to comment on
this colloquy in the House of Assembly debates?
Mr. KROGH:No, Sir, but I would like to say that probably for every
engineer being employed in an industry, there would be at least two to
three hundred other skilled people in ratio to the particular engineer,
Sir, but I would not like to comment on that. I have not made a studv of
the training and employment of engineers as such, but I would like to
point out that I think those engineers refer to university qualified
people-! think so.
Mr. GRoss: Now, Sir, I should like, as briefly as possible, to refer to
the railways and harbours in South West Africa which, according to the WITNESSES AND EXPERTS
139
record, Counter-Memorial, III, page 64, is administered by the Minister
of Transport of South Africa. In the Counter-Memorial, III, page 67, the
Respondent quotes the following statement by the Minister of Transport
as applied to South West Africa:
"We only employ Natives to serve their own people where it is
practicable, and where it is acceptable to the rest of the staff. But
it will not be acceptable to the staff or the public that Natives should
be employed, even on Native trains, as firemen, conductors, or
guards. That is not my policy, and it will not happen."
Can you advise the Court, Sir, what a Native train is?
Mr. KROGH:No, Sir. I would not know what a Native train is but I
would like to point out that railway building as a means of public
transportation was, in southern Africa, largely done in the previous
century. The modern forms of extending public transportation is by way
of motor transportation as a result of the revolution that has occurred in
this particular industry. I cannot, however, tell you what a Native train
is, that is a concept with which I am not familiar, Sir.
Mr. GRoss: What, Sir, would be your opinion, as an expert, concerning
the economic reasons, if any, for the exclusion of non-Whites on a racial
basis from positions as firemen, conductors or guards? ·
Mr. KROGH:Sir, I could very well imagine, and I made this point
previously, that such an exclusion may be necessary for the sake of good
labour relations and for the sake of social peace. These two factors may
not be appreciated as being important for an economist who assumes a
type of society where there is social mobility and where the population
is relatively homogeneous. \Vhere, in a set of circumstances, as in South
West Africa, this is not the case-here, you have different groups, people
viewing each other as members of groups with suspicion-it is, for an·
economist at least, of fondamental importance not to forget in any
recommendations he makes or in any views he expresses, that there is
here a set of diverse social conditions that may in fact, very well require
him to understand and accept these particular limitations in the interest
of social peace and, thereby in the interest of economic development. Sir,
because without social peace-with continua! strife and upheaval-there
can be no economic development or reform in any case.
Mr. GROSS:I will corne back to this question of social peace shortly,
with the Court's permission. I should like, however, now to address a
question to you, both as witness and expert, with respect toorganization
of labour, freedom of association and bargaining in South West Africa:
It is undisputed in the record-! refer to the Counter-Memorial, Ill,
pages 91-92, as well as to the Memorials, I, pages 129-130-that, by
terms of the Industrial Conciliation Act of 1952, which came into effect
in South West Africa under Proclamation No. 28 of 1953, there is no
provision for the registration of Native trade unions and no provision for
conciliation of disputes in so far as Native employees are concerned. Are
you familiar with that legislation and that policy, Sir?
Mr. KROGH:Sir, I know that ...
Mr. GRoss: Can you answer that, yes or no, Sir?
Mr. KROGH:Yes, Sir.
Mr. GROss: You are familiar with it?
Mr. KROGH:Yes, Sir.
Mr. GRoss: May I continue? According to the Counter-Memorial, III, SOUTH WEST AFRICA
140
at pages 93-94, Native workers in the Territory are represented at con
ciliation board meetings on labour disputes by an inspector who is a
government official.Areyou familiar with that practiceand that policy, Sir?
Mr. KROGH: Yes, Sir.
M.r.GROSS: It further appears in the record, in the Rejoinder, V, at
page 31, that there are no Native trâde unions in the Territory. Are you
familiar with that situation, Sir?
:M:rKROGH: Yes, Sir.
Mr. GROSS: Now, would you explain to the Court, please, what
economic factors account for-I address my question to you now as an
economic expert-and justify this limitation of labour organization and
collective bargaining on a racial basis in the Territory?
Mr. KROGH: Sir, would you allow me just a minute or two to explain to
you what the cconomist's approach is to the trade union movcment as
such? Economists are increasingly coming to the conclusion that un
controlled and irresponsible labour union leadership and demands are in
fact contrary to the interest of economic development, cvcn in highly
developed countries.
In South West Africa, Sir, as far as I can recollect, White labour
unions-there are not many, probably two or three, I am not sure, but it
is a small number--came to the fore only quite recently; I think at the
beginning of 1950. Furthermore, Sir, labour unions in underdeveloped
countries, and particularly in Africa, have proved not to have the
necessary insight in the limited extent, if any, to which collective bar
gaining can, in fact, improve the economic positions, wages and ,vorking
conditions of their members. Neither, Sir, have they displayed any
leadership with regard to responsible union management that would
recommend them in any underdeveloped country.
Sir, these are not only my views. I would like, Sir, if you would permit
me, to quote very briefly from two sources that have recently corne to
my attention in this regard. These studies, undertaken by independent
bodies, state that after the politica1 independence of African States, one
of the first steps taken by the new governments that assumcd respon
sibility for the administration and development of their tcrritories was
to takc away all forms of independent and autonomous leadership among
the labour unions operating in the rest of Africa, ail in the interest of
political peace and in the interest of economic development of their
terri tories.
I would like to substantiate this very briefly by rcferring to two
sources. One is from Eliot J. Berg and Jeffrey Butler in an article entitled
"Trade Unions" in a publication with the title Political Parties and
National Integration in Tropical A/rica, edited by J. S. Coleman and
C. G. Rosberg, published in Berkeley and Los Angeles, by the University
of California Press, 1964. I quote, Sir, from page 366:
"Almost everywhere in the continent [and this refers to tropical
Africa] labour organizations were taken over by the governing parties
once independence was achieved. The process is already under way
in countries that are nearing independence. It differs in degree; the
1evers of control are manipulated more gently and more discreetly
in Senegal and Ivory Coast than in Guinea or Ghana but in most
countries the result is the same. The labour movement, if not com
pletely subordinate to the party, is at least pliable and responsive
to party pressures. WITNESSES AND EXPERTS
The process by which the party gains control over the labour
movement varies from country to country. Everywhere the party
brings to bear a combination of rewards and punishment: Rewards
for unions and union leaders who are prepared to accept the role
originally designated by the party and punishments and harass
ments for those who are recalcitrant.
Once in power, the Party has at its command a wide variety of
giftsand an abundance of penalties and ca.n quickly bend the most
determined trade unions to its will."
Finally, Sir, I quote, also, from page 367 of the same article:
"These rewards are powerful instruments, and frequently suffi.ce
to bring understanding between trade unions and goveming parties.
When they do not, the parties have not hesitated to bring into play
all the power of the new state machinery under their control."
In fact, Sir, they soon lost their independent fonction as an organiza
tion for collective bargaining in the interest of their particular members.
If you will permit me, Sir, to read very briefly a much smaller para
graph than the previous one, from another study entitled "Paradoxes of
African Tra.de Unionism, Organizational Chaos and Political Potential"
written by W. H. Friedland (assisted by G. E. Lichtblau), in Africa
Report, June 1965, edited by Helen Kitcher and published by the
African/American Institute in Washington. On page 12 it is stated as
follows:
"In the process of obtaining political independence, all African
leaders-in the tradition of political leadership everywhere-made
rash promises ta the African people. They argued that their countries
were wealthy, but that the people were poor because of the drain of
resources to the metropolitan powers. By stopping this drain, it was
sa.id, the material standards of life would quickly rise."
That is on page 12 and relevant to this we read further on page 13:
"In the past few years, Africa's political leaders have attempted
to control the unions [these are labour unions] because they feared
not only their political potential but also their ability to impede
economic development. In most cases control has been attempted by
the twin mechanism of co-operation and coercion."
That is the end of that quotation, Sir.
The PRESIDENT:Weil, I do not think the witness has finished his
comment upon your very general invitation to comment, Mr. Gross. I
think the Court will adjourn now for 20 minutes.
Mr. GRoss: Thank you, Sir.
The PRESIDE:-l"TD :octor, 1 gather you had not completed your com-
ment upon the matter putto you by Mr. Gross. Is that correct?
Mr. KROGH:Yes, Sir.
The PRESIDENT:Would you complete it as briefly as you can?
Mr. KROGH:Yes, Sir. Very briefly, I would like to say, that, as an
economist, I can very well understand why restrictions could, in fact, be
placed on the official recognition of trade unions in a set of circumstances
that cannot be described as a highly developed type of economy or
labour market, but that the opportunity for organization is nevertheless
permitted. There is no restriction on the formation, Sir, in South West
Africa of non-White labour unions, but they are not allowed to register SOUTH WEST AFRICA
as such. The reason for this (1 can very well see) i;;to give the leaders, or
the organized interests an opportunity to acquire experience to manage
and govern themselves and to learn the underly'Îng economic principles
with regard to the effect of labour unions in negotiating for daims, and
that great responsibility rests upon them in this respect since their
daims, if granted, have repercussions on other groups and the cconomy
considered as a whole.
Accordingly, I see these restrictions with regard to recognition or
registration, Sir, as a transitional stage, as an educative restraint-a
concept we economists use for restrictions designed to fi.rst educate these
people in responsible leadership and management of their unions, which
otherwise very often, Sir, operate to the detriment of the members of the
particular union. I also know, Sir, that this is not a negative approach.
Administrative machinery is, in fact, provided by the responsible author
ity that expressly lays clown and looks after the interests of these partic
ular workers, and so represents their interest in matters where their em
ployment position or welfare may be discussed or negotiated, Sir. I see
this as an educational and transitional stage, Sir, in contrast to an
irresponsiblc and revolutionary approach which the authorities might
feel, on the basis of experience in similar circumstances elsewhere, they
could not subscribe to.
~Ir. GRoss: Will you tell the Court, please, to whom you were referring
when you used the expression "these people"?
Mr. KROGH:Sir, I am referring to the members of non-White popula
tion groups that are, according to my mind as an economist, at a much
lower stage of economic development. They face quite different problems
of economic development, and, therefore, require quite a different policy
approach from the members of the White groups, Sir.
Mr. GROSS:I understand you to say, Sir, if I may extract the nugget
from your response, that by "these people" you are referring to the non
\Vhite members of groups-you have used both "members" and
"groups". Could you answer the question this way, perhaps? By "these
people" did you mean non-\Vhites in South West Africa?
1'Ir.KROGH:Yes, Sir.
Mr. GRoss: Thank you. Now, when you referred in your testimony
to one of the disadvantages of trade union organization and collective
bargaining, you referred, if Iam correct, to repercussions the daims may
have upon others. Would you explain to the Court what you meant by
that, Sir?
l\fr. KROGH:Sir, the extent to which you can daim a larger share of
the cake that is bakcd every year can be at the expense of the share that
goes to other contributors in baking the cake. But, most important of
all is, that it might also be a.t the expense of the size of the cake, Sir, in
which case everybody suffers, induding those who are represented by this
economic group in question.
Mr. GROSS:ls the Court to understand that by the refusai to permit
Natives to engage in collective bargaining, or to register trade unions
composed of Natives for conciliation purposes, one of the purposes is to
reduce their capacity to exert pressure to get an increased share of the
cake-to use your expression?
1'Ir.KROGH:On the contrary, Sir, it is not to decrease the size of the
cake.
Mr. GROSS:I am not talking about the size of the cake, Sir. I am WITNESSES AND EXPERTS 143
talking about the share of the cake, as distinguished, let us say for the
moment, from the size thereof. ·
;\frKROGH: No, Sir, I do not think that the purpose of it is in any way
related to the idea that these people are, in fact, withheld from obtaining
highcr living standards or better working conditions. On the contrary,
Sir, there is enough evidence to make me quite happy as an economist to
say that t.hcir employment conditions, and, in fact, their wages have
increased considerably over any length of period during which this may
reasonably be expected to happen.
There is no doubt, in my mind, that they have shared substantially
according to the results, and these indicate tome that the purpose is not,
in any way, to withhold any share from the income or product that is
generated annually in the Territory, Sir.
i\frGRoss: In the southern sector, which is what I am addressing my
question to at this time-who makes the decision whether or not the non
White is receiving a just share of the cake?
11IrKROGH: Sir, the type of economy that you have in South West
Africa, and also in South Africa for that matter, is an economy that
operates through the price mechanism. This means that first and fore
most the share of your contribution to what I call the national income,
and to which I rcferred as the cake baked annually, is primarily deter
mined through the price mechanism. But as we know, in ail economies,
even in hi~hly developed economies, for the sake of social fairness or
justice, it 1s the responsibility of the particular governing body of the
territory to interfere in the price mechanism, to lay down minimum
wages, to sec to it that there are different forms of transfers of income
from one group to another, unfortunately-1 must say as an economist
often for purely political purposes, Sir. But I hri.veto take this into con
sideration; I have to accept this in the interest of social welfare and of
pursuing other worthy objectives, that is other than just allowing the
free working of the price mechanism. Sir, this is also the case in South
West Africa, but wages are here first and primarily decided by the price
mechanism. To this I want to add, however, and I am sure of this as an
economist, that many of the wages received by non-White workers who,
as we are discussing now, are not permitted to register their trade unions,
are higher than those that would corne about normally through the price
mechanism. I say this mainly for the very simple reason, Sir, that the
suppl y of this type of worker is available in very large numbers, not only
in South West Africa but they corne, in fact, to scek work in the Territory
from areas beyond South \Vest Africa. The same is true, as you may very
well know, in the case of South Africa. If these people were to negotiate
a wage purely in a system of free enterprise and where the price mecha
nism would decide what value is to be placed upon their services, then I
am sure, Sir, it would be considerably lower than that which they are
enjoying at the moment. I say this as an economist, Sir.
Mr. GROSS:With your permission, Mr. President, 1 should like to go
back now over this last question and break into componcnts and if I
misunderstood you, please correct me. My question was-who makes the
decision as to the justice of a share?
Mr. KROGH: This is primarily decided by the price mechanism sup
plemented, Sir, by the authorities responsible for the administration and
development of the Territory.
Mr. GRoss: Now, in the event of a dispute between employees and144 SOUTH WEST AFRICA
employer, I am talking about private enterprise in the modern or ex
change sector, regarding wages let us say, who makes the decision as to
the resolution of that dispute?
Mr. KROGH:In order to resolve a dispute, because I take it the question
refers to resolving a labour dispute, employers and a representative from
the administration, that is of the governing body of the territory, decide,
and he represents, in fact, the interests of the workers, non-White workers
in this respect. They try and resolve this particular dispute, taking in
consideration such factors as the ability to pay of the particular em
ployers; what the repercussions would be in terms of employment;
whether it might put other people out of employment; whether it might
force ...
Mr. GROSS:I was not asking the factors that entered into it, if the
President permits me to interrupt to stick to the point.
)fr. KROGH:If they cannot resolve this dispute, it may be taken fur
ther to the Minister of Labour who eventually gives a judgment in the
interest of the community as a whole, Sir.
Mr. GROSS:So that the decision is made by a Government represen-
tative either in the first instance or on appeal, so to speak?
Mr. KROGH:An agent representing the interests of the workers, Sir.
Mr. GRoss: The agent is a government official, is he?
l\:t:r.KROGH:Correct, he is a civil servant.
l\:t:r.GRoss: Now, Sir, when you referred then in your earlier response
to my question, to social justice as a responsibility of the governing body,
were you intending to refcr to the exercise by the government, through
the civil service, of the authority to determine wage rates in the event of
a dispute?
l\Ir. KROGH:If wage rates is the essence of the dispute ...
)fr. GROSS:I still mean the case by hypothesis that this is the dispute-
yes.
Mr. KROGH:Yes, Sir. Then of course somebody must determine ...
)fr. GRoss: Well, Sir, I did not want to suggest otherwise.
)fr. KROGH:Sir, yes, the authority responsible for the administration
and development of the Territory is the particular body that would
eventually have to decide what is in the interest of social justice in the
Terri tory.
Mr. GRoss: Now, the Government, I take it these words mean that
the Government decides the dispute-that is what your words corne to,
isn't it, Sir?
Mr. KROGH:In the last analysis, yes.
Mr. GRoss: Now, what participation in the Government, if any, do
the non-White labourers have?
Mr. KROGH:Sir, they have no participation in the government of the
White area where the modern economy operates. In other words, they
are in that respect not representcd politically in the administration of
the White sector of the southern part of South 'West Africa.
)fr.GRoss: We are talking about the southern sector.
Mr. KROGH:That is correct, Sir.
Mr. GROSS:Now therefore, is it not correct to interpret and that the
only interpretation the Court can place on your testimony is that the
decision, with respect to a wage dispute, is made by a government,
through an official, in which the employees have no participation-is this
a correct formulation of your tcstimony? WITNESSES AND EXPERTS 145
Mr. KROGH:This is correct but it does not necessarily follow that their
interests are not in fact taken into account or ...
Mr. GROSS:I am not suggesting what follows, Sir.
Mr. KROGH:But I take it, Sir, that you want me to admit implicitly
that this possibility is the one that·I, in fact ...
Mr. GROSS:Mr. President, I have forborne from objection. I would
not wish the witness to impute motives to my questions, I would ap
preciate, Sir, Mr. President, if the witness would answer my questions
responsively-if my questions are at fault I apologize.
The PRESIDENT: I think that a witness ought to be more responsive
to a question which admits of an answer directly one way or the other,
Dr. Krogh. Sometimes the questions themselves rather lead the witness
to engage in the long discussion which he does; Mr. Gross. On this
occasion Ithink you could have given a more responsive answer, Doctor.
M.r.KROGH:Yes, Sir. Sorry, Sir.
Mr. GROSS: I have not been impertinent and I wish to assure the
Court and the witness I have not before objected because I have felt that
my fault was largely involved but, in this case, I hoped, and perhaps I
hope in others, a short responsive reply could be generated.
The PRESIDENT: I think possibly the witness did think that it was
implicit in your question-although I did not-and that the Court
would be asked to draw the inference. The fact is that the evidence has
already been established; it is on the record.
Mr. GROSS:Yes, Sir. And now I am going to ask the witness, as an
expert, as an economist, whether the existence of this situation gives to
the employees a fair or substantial voice in the determination of their
own wage levels?
Mr. KROGH:Yes, to the extent that they can form labour unions and
communicate their feelings, and represent their dissatisfaction, or ob
jections, and they are in fact allowed to form trade unions in the Terri
tory. Furthermore, there is machinery to communicate with them. It is
not that they are shut out, Sir, not having a view or not being allowed to
express a view, or their particular demands, or their particular interests
in such a negotiation.
The PRESIDENT:Could you tell the Court what kind of an official
represents them in the negotiations?
Mr. KROGH:He is called a labour inspector, Sir, who is a government
official, specially appointed to represent the Government in these
particular negotiations or where labour disputes arise.
Mr. GROSS:Would your answer to my question be different if you are
reminded, Sir, that there are no Native trade unions in South West
Africa?
Mr. KROGH:There are no such trade unions and this to me as an
economist, Sir, reflects the lack of interest ...
The PRESIDENT:The answer is that there are no trade unions, that
is ail.
Mr. GROSS:The answer is, Sir, that you would notalteryourresponse
to my question on the basis of this fact?
Mr. KROGH:Sir, there are, so far as I know, no non-White trade unions
organized and operating in South West Africa.
Mr. GRoss: Are you aware, Sir, whether there have been in, let us say,
the last ten years, any labour disputes which have arisen in theTerritory?
Mr. KROGH:Sir, I think, as in the case of South Africa, there have SOUTH WEST AFRICA
been very peaceful labour relations in South \Vest Africa. I can recollect,
that within the last ten years in South West Africa such a dispute leading
to a strike did arise in the case-of the mines, but I cannot give you the
details of the particular set of circumstances, nor how it was resolved. I
am sorry but I cannot remember the details.
Mr. GROSS: The Counter-Memorial, III, pages 93-94, lists five disputes.
The first is a dispute which occurred at the Lorelei copper mine in the
district of Luderitz, where Ovambo 1abourers went on strike. I am
reading from page 93: "An inspector of Labour investigated the matter,
found that both employers and employees had been at fault in certain
respects, and settled the dispute." Are you familiar with the circum
stances of that dispute, Sir?
Mr. KROGH: No, Sir, it must have been a very minor one because the
Lorelei mines . . .
Mr. GROSS: Do you know whether it was minor or major, Sir, as a
matter of your knowledge?
Mr. KROGH: Yes, I know that the Lorelei Copper Mining Company
near Luderitz is, economically speaking, really negligibly sma11 in the
mining industry, and in the number they employ.
Mr. GROSS: You do not have any evidence or information which would
contradict the statement in the Counter-Memorial, 111, on page 93,
which I have read, that there was a strike?
Mr. KROGH: No, Sir, I did not study the particular circumstances of
this particular dispute.
Mr. GRoss: Another reference, on page 94 of the same volume:
"In 1956 there was one case of a serious labour disturbance
amongst Native labourers at the Brandberg West Mine. An inspector
of Native Labour enquired and ascertained that there had been some
dissatisfactionamongst the labourers as a result of wages and con
ditions in the compound. Recommendations to overcome the causes
of dissatisfaction were made, accepted and implemented, with
satisfactory results."
Are you familiar with that "serious labour disturbance amongst Native
labourers"?
Mr. KROGH: The number of labourers involvecl, Sir, would have been
considerably and substantiallymore than those in the Lorelei copper mines,
but in fact I am sure that it was resolved in a very short period of time.
The PRESIDENT: The question was, are you familiar with the dispute?
Mr. KROGH: No, I did not study it.
The PRESIDENT: Then the answer is no.
Mr. KROGH: No, Sir.
Mr. GROSS: And one other example to which I will call your attention.
I will ask you whether you are familiar with the event; I quote from the
same page:
"A dispute involving contracted extra-territorial and northern
Native labourers at the Ojisondu Mine in the Okahandja district
towards the end of 1956 over the re-introducbon of a six-da y working
week, was also speedily terminated to everybody's satisfaction by
an inspector of Native Labour."
Are you familiar with the circumstances of that dispute, Sir?
Mr. KROGH: No, Sir. I did not study the particular circumstances. WITNESSES AND EXPERTS
147
Mr. GROSS: From your knowledge of the situation in the mining
industry, is a six-day working week the practice?
)fr. KROGH:Sir, I would not know whether that is general practice
throughout the Territory.
Mr. GROSS:Do you know, Sir, whether the referencc in the Counter
Memorial to an inspector of Native labour would refer to a government
representative? Would the inspector be a government official?
J\lrKROGH:Yes, Sir, he would be a government official.
Mr, GROSS:Therefore it would be, would it not, a matter of con
sideration from the point of view of social justice, the phrase you used
as to establishing the share of the cake, that there had been disputes
actually taking place in the Territory? That would be relevant to the
consideration of the situation, would it not, Sir?
Mr. KROGH:Yes, Sir. My opinion, expressed as an economist, was that
these disputes which, as you mentioned, ail occurred in relatively small
mines that are not important employers, relatively speaking, of non
White labour in the Territory considered as a whole. Furthermore, Sir,
these disputes were speedily resolved to the satisfaction of all. I did not
regard them as any serious labour disputes in the Territory from an
economic viewpoint during the past ...
The PRESIDENT:How many disputes have there been, Mr. Gross, over
the last ten years?
Mr. GRoss: There are five set forth in the Counter-Memorial, Sir, and
the, I think, most serious was undoubtedly, was it not, Sir, the one ta
which I have not referred, the Tsumeb-you referred I believe to the
Tsumeb strike or stoppage in your testimony, Sir. Perhaps in response
to the President's question, or, if I may, with respect, put it as my own,
Sir, would you state, if you have not done so, when that dispute took
place and how many employees were involved?
ilr. KROGH:No, Sir, I do not know the exact date but I said that I
could recall such a dispute, and that this was for me, as an economist,
an incident which I thought worth mentioning as an example of where
such a labour dispute had occurred, because the number involved was
considerable, in view of the fact that the mining industry in Tsumeb in
fact represents a major part from the point of view of production and
employment of non-White Jabourers in the Territory. That is why I
mentioned that as an example: I thought the others were rather in
significant, speaking generally.
Mr. GROSS: In the document, which is in the record of these proceed
ings, which is a document of the United Nations General Assembly,
document A/5446, Addcndum 2, 26 July 1963, cited at IV, page 605,
there is the following brief description of the Tsumeb strike by contract
labour. 1 shall read it to you, Dr. Krogh, and perhaps itmay refresh your
recollection concerning the matter:
"The largest scale single incident of the arrests and convictions of
African labourers in the territory in recent years took place in
December 1962, following strike action by Ovambo contract workers
at a new copper-smelting plant at Tsumeb. A total of ro5 Ovambo
1orkers were convicted of rcfusing ta carry out instructions: 61
were sentenced to a fine ofIO Rand or 30 days' imprisonment, under
the Mastcr and Servants Proclamation, and 44, charged with the
same offence under other labour legislation, were sentenced to
50 days' imprisonment without option of fine. Their labour contracts SOUTHWEST AFRlCA
were cancelled and all were to be repatriated to Ovamboland after
serving their terrns. The service contracts of 24 others who did not
appear in Court were also cancclled and they were returned to Ovam
boland. It was also reported that a group of new recruits, who had
refused to start work, would probabl y besent back to Ovamboland."
That is from page 12 of the document which I have cited, which is in the
documentation in these proceedings.
Do you evaluate this, if you have not already done so, as a serious
incident?
Mr. KROGH:Sir, I mentioned it, yes, as one dispute that had occurred
as far as I could recollect during the last ten years. But I must say that
I do not know whether that factual situation is completely correct. I
cannot, in fact, give evidencc to that effect. I am not in any way em
ployed by the Government, nor do I represent any labour organization.
I am an independent student of the Territory, but I cannot vouch for
those particulars as reported there, outside South Africa, or South West
Africa, by other parties.
Mr. MULLER:Mr. President, I think in fairness to the witness my
learned friend should leave the particulars of this particular dispute as
set forth in the Counter-Memorial. He has referred to other disputes ...
Mr. GRoss: Mr. President, with respect, Sir, if counsel wishes to bring
up testimony and re-direct, I would, with respect, Sir, suggest that we
cannot follow that procedure.
The PRESIDENT:Weil I must first hear, I think, Mr. Muller, Mr. Gross.
You were putting to the witness a statement of a dispute, and if it was
not a complete statement of the dispute then perhaps a wrong impression
was at the present moment conveyed to the Court. I do not suggest at
ail that it is not, but I would like to hear what Mr. Muller has got to say.
Mr. MULLER:I would only like to rcad the short description of this
particular dispute as set forth in the Counter-Memorial, which in fact
has been admitted by the Applicants:
"Another dispute arose in 1954 at Tsumeb as a result of Police
investigations regarding possession by Ovambo workers of illicit
liquor ... "
Mr. GROSS:;\fr. President, this is a different dispute that counsel is
referring to.
The PRESIDENT:Is it a different dispute?
nfr.GROSS:I am referring to the dispute of 1962. I understood counsel
to refer to the dispute of 195+
The PRESIDENT:Mr. Gross made it quite clear that it was the dispute
of 1962, Mr. ;\luller.
Mr. MULLER:I am afraid that that is the case but this is one of the
disputes dealt with amongst the five to which my learned friend referred
earlier.
The PRESIDENT:\Ve will deal with one dispute at a time.
Mr. GROSS:Sir, I readily admit that there have been other disputes at
Tsumeb, if that is the point learned counsel wishes to inject into the
record at this point.
The PRESIDENT:Yes, Mr. Gross, please continue.
Mr. GROSS:Now, I would Iikc to invite your attention, Sir, to the
International Labour Organisation resolutions with respect to the
practice and policy in South Africa and South West Africa. Are you WITNESSES AND EXPERTS
149
familiar, Sir, with the function and structure of the InternationalLabour
Organisation?
Mr. KROGH:As an economist, I am, Sir.
i\fr. GRoss: Are you aware, Sir, that in 1964 a committee on freedom of
association was set up by the governing body of the International Labour
Organisation?
Mr. KROGH: No, Sir. I do not know the details about when certain
bodies or agencies were in fact formed in the International Labour
Organisation.
Mr. GROSS:The undisputed fact that there was such a body set up
appears from the Reply of the Applicants, IV, page 423. Turning your
attention ta page 423 of the Reply, I should like to read a very brief
excerpt from the proceedings of that Committee.
"The Committee on Freedom of Association of the Govcrning
Body of the International Labour Organisation has concluded, with
the approval of the Governing Body, that provisions of law in
volving:
'.. discrimination against African workers (with respect ta the
right ta organize) (are) ... inconsistent with the principles that
workers without distinction whatsoever should have the right
to establish and, subject only to the rules of the organization
concerned, ta join organizations of their own choosing without
previous authorization and that all workers' organizations
should enjoy the right of collective bargaining.'"
This was, I may say, Sir, specifically with reference to the policy in
South Africa. For the sake of clarity, since you have referred, as have
other witnesses, to policies in South Africa, would you very briefly, if
possible, explain any essential distinctions there are between the policies
applied in South Africa and in South West Africa concerning the rights
of non-Wh1tes to engage in collective bargaining?
:\fr. KROGH:Sir, I am not an expert on the resolutions or standards of
the International Labour Organisation, and to what extent particular
countries do in fact adhere to them or to what extent they are obliged
to do sa.
I do know, however, that most of the standards laid down by the
International Labour Organisation are increasingly being admitted by
experts in the field.
i\Ir. GRoss: Mr. President, might I ask the witness ta respond ta my
question?
The PRESIDENT:The question is, witness, whether you know of any
circumstances which in relation to South West Africa distinguish the
conditions of labour from those appertaining in South Africa. AU that
you have had put ta you is a resolution passed. You are not asked to
comment on the value of that resolution or whether there is any sub
stance in the resolution. It is simply a resolution, sa if you have that in
mind, would you answer the question? Perhaps you would reframe your
question, Mr. Gross, sa that he will know precisely what it is you are
asking him?
;\Ir. GROSS:Yes, Sir. What policies, if any, with respect to the denial
or limitations upon the right of non-Whites ta engage in collective
bargaining in South West Africa are applied likewise in the Republic of
South Africa?150 SOUTH WEST AFRICA
Mr. KROGH: Sir, I know that in the Republic of South Africa non
White labour unions are not in fact registered but, similarly as in South
West Africa, they are free to organize. The labour organization machinery
in South Africa is much more advanced in this respect than it is in South
West Africa. There are regional labour boards organized by the author
ities in the particular areas where there are non-\Vhite workers and these
boards are consulted and advise the particular authority of their labour
conditions and grievances in particular trades. These labour boards do
not, as far as Iknow, exist in the case of South West Africa, but for all
practical purposes, labour-non-\Vhite workers-is represented in the
samc way. They are not, in fact, registered as official labour unions in
South West Africa or in South Africa, Sir.
Mr. GROSS: Is the registration of the union, either in South, or South
West, Africa, an essential condition to the right of that union to engage
in collective bargaining?
Mr. KROGH: I am not aware of the legal implications, but as an econo
mist, I have always interpreted this to mean that tf you strike and you
are nota recognized, official union then such a strike would be interpreted
as an illegal act, Sir.
Mr. GROSS: Are you aware also, Sir, of the significance of registration
with respect to the right to engage in collective bargaining?
l\:1rKROGH: I am not quite acquainted with the wording of this
legislation but I think, obviously, that if it is illegal to strike, then this
means cannot be used by trade unions if the dispute is not resolved or the
negotiation cannot proceed any further.
The PRESIDENT: In one case it is legal if registered and in the other
case you say it is illegal. Is that the positionIn the case of a registered
union it is legal to strike if negotiations break down?
Mr. KROGH: Yes, Sir.
The PRESIDENT: In the other case, it is an iilegal act. That is your
view?
Mr. KROGH: This is how I, as an economist, always understood this,
Sir.
l\:1rGROSS: Sir, with respect, I was referring to an additional point,
which perhaps my question, I am afraid, did not make clear. That is
the right of collective bargaining as distinguished from the right of strike.
Is a non-registered union recognized by employers for collective bar
gaining?
Mr. KROGH: Sir, I would say that they do indeed collectively negotiate
their wishes and their interests through the labour machinery that I have
indicated. They therefore, in so far as there are non-\Vhite labour unions,
pursue, indicate and formulate their interests collectively and this is
negotiated through the administrative machinery that I have mentioned
earlier.But I could very well, as an economist, say that if they are not
given the weapon to strike, then this would mean that there is a limitation
or restriction placed on the extent to which they can, in fact, demand or
obtain collectively that which they would have put forward as their
collective demands, Sir.
Mr. GROSS: Sir, you referred, in your response, to the phrase-you
used the phrase, if I understood you correctly from my notes~"collec
tively negotiate" through the procedure which you have described. Is
that substantially your testimony, Sir?
Mr. KROGH: Yes, trade unions negotiate collectively. The purpose of WITNESSES AND EXPERTS 151
forming a union or an organization is to meet the party on the other sîde
of the market collectively instead of doing this individually as workers.
This is what I mean by collective bargaining.
Mr. GROSS: Would you please respond to my question if I attempted
to restate it or clarify it? Did you, in your testimony, refer, to use the
phrase substantially, "collectively negotiate" through the procedures
which you have described? Did you use that phrase or some substantially
similar phrase, in your testimony, do you recall?
Mr. KROGH: Yes, Sir, to the extent that there are non-White labour
unions, Sir.
Mr. GROSS: Now, Sir, when I address this question to you, I do so in
your capacity as an economist. Is it not contradictory to refer to col
lective negotiation on the one hand and adjustment of disputes through
the decision of a government authority on the other hand in the absence
of a trade union?
Mr. KROGH: Sir, it is the duty of the particular labour inspector to
take into consideration on the one hand the wishes and the demands of
the workers and to determine, whether they are reasonable, just, or in
the economic interests of the particular parties concerned or the country
as a whole. Similarly, he must, in order to resolve a dispute, or to com
municate the wishes of the other, take into consideration, on the other
hand, the position of the employers. To the extent that hein fact, and I
take it that it is his duty to do so, does not make himself aware of the
wishes of the particular workers and if there is a non-White labour union,
obviously they would have a representative that he could consult, or
who would consult him or advise him on this. To the extent that there
are not any non-White labour unions, obviously yàu could not say that
their wishes are communicated to him collectively, or by a representative
because they would not be organized collectively, Sir.
Mr. GROSS: And therefore-to clarify now the realistic situation
would it not be pertinent to place into the record again the undisputed
fact that there are no Native trade unions in South West Africa?
Mr. KROGH: Yes, Sir, there are no non-White trade unions in South
West Africa and there is no limitation on their being formed.
Mr. GRoss: And there is no what, Sir?
Mr. KROGH: There is no limitation or restriction on non-White trade
unions' being formed or coming about.
Mr. GROSS: They do not have any power to negotiate because they
are denied the right to register. Is that a correct statement, Sir?
Mr. KROGH: Sir, they arc denied the right to use the weapons that
are usually used by labour unions, Sir.
Mr. GROSS: Now, with respect then, to the factual situation, that there
are no Native trade unions, can it be said, as an economist, that there is
no collective negotiation or collective bargaining available to the non
\Vhite employees in the Territory? Is that a correct statement of thefact,
realistically,from the economic point of view? Can you answer that
question yes or no?
Mr. KROGH: Sir, the fact that there are no non-White labour unions in
the Territory reflects to me, as an economist, that there is no collective
bargaining in this particular case.
Mr. GRoss: As an economist, would you say that the failure of a
collective bargaining machinery has any economic consequence upon the
welfare in material tenus of the individuals, the non-White labourer?152 SOUTH WEST AFRICA
Mr. KROGH: As an economist I must give a value judgment here, and
I have done this in my previous testimony. I have given you the opinion
that I think that the material welfare of the non-White workers in so
far as they earn wages in the modern sector is for all practical purposes
at a level, and improving at a rate that could not have been negotiated
or attained in fact had there been trade unions of the type or kind, as I
have tried to indicate, which operate in the rest of Africa.
Mr. GROSS: Is it your statement to the Court, as an economist whose
testimony is directed to the necessity for separate devclopment in the
Terri tory, that had there been trade unions in existence they would have
demanded lower wages or more working hours-is that the purport of
your testimony, Sir?
Mr. KROGH: The purpose of any labour organization or union is to
serve the particular interests of its members first and foremost. But
because there are no non-White trade unions in South West Africa it
does not necessarily follow that the interests of such workers are not in
fact taken into consideration or well looked after.
The PRESIDENT: That is not the question that was putto you, witness.
The question putto you is: ifthere were registered trade unions, able to
be organized by the non-White workers, then do you say that they would
have made daims less or greatcr than those arranged under the system
which presently operates?
Mr. KROGH: Sir, my answer, based on experience elsewhere under
similar conditions, would be yes, I think they would in fact have claimed
substantially and considerably larger amounts.
The PRESIDENT: Larger. It would be rather unusual for a trade union
to claim less, would it not?
Mr. KROGH: Quite so, Sir.
Mr. GROSS: Thence, in the light of that response, in whichIunderstand
you said they would, as normally would be expected, make larger de
mands rather than smaller demands ...
Mr. KROGH: Yes, as we ail do.
Mr. GRoss: Would you then clarify your response to my question, in
which you said, as I understood you, that in your expert view, had trade
unions existed with authority and force to bargain, conditions would
have been worse rather than better?
Mr. KROGH: I would say yes, I think they would have heen worse.
Mr. GROSS: Will you please explain on what basis you form that
judgment?
i\IrKROGH: lt is not always appreciated to what extent trade unions
can in fact operate effectively-improve their workers' share of the cake
that is baked annually-not even in highly industrialized economies.
lncreasing studies, one recently on America covering a period from the
previous century to the present, indicate that there has over a long period
been no evidence to show that the whole trade union movement has in
fact improved the share of the worker in the economy, such as that in
America. The idea of forming a labour union is of course to organize
firstand foremost in the interest of the welfare or income of its particular
members, irrespective usually of what the repercussions of their daims
would be on other members of the economy or whether these would be
in the interest of the economy as a whole. I can very well imagine that
certain workers can make unreasonable demands from their sidc (and I
must admit that "reasonable'' is an economic term referring to the ability WITNESSES AND EXPERTS 153
to pay, or not to put other people out of work)-that they can in fact
demand much higher wages and thereby increase their relative share of
the total cake, but at the same time reduce their absolute share as a
result ofthe effect their demands may have on the absolute size of the
cake. This very brief background explanation gives the main reason for
the limited effect, if any, such organizations can in fact have on im
proving their workers' position. Secondly, there is the fact that the non
White members of the labour force in South West Africa are, to a large
extent, not familiar with the economic principles underlying these
considerations that I have tried to sketch very briefly in a rather popular
way. Their demands might very well be based on the simple idea that
there is plenty where this cornes from, so I can just keep on asking, or
just keep on turning open the tap. This is quite a normal attitude for
people who have no or little appreciation of the responsibility that rests
upon them in respect of wage claims and the repercussions these may
have on other groups or on the economy as a whole. In this way it is
quite likely that the very position which they tried to improve in fact
deteriorates, and they are left worse off than when they proceeded in this
direction.
Mr. GROSS:Are you sufficiently well acquainted as an economist with
the general workings of collective bargaining to express an opinion to
the honourable Court as to whether or not there is any better method of
educating workers in the arts and sciences of collective bargaining than
by practising it? ·
Mr. KROGH: As I explained earlier on this morning, there is the op
portunity first to learn how to administer a union before you canuse this
instrument to negotiate and to use it as an instrument or organization to
stake your daim, other than that that is determined by the ordinary
market forces. In the very article which I quokd earlier on-if anyone
would care to look at that-the main shortcomings and disadvantages
were found to be that labour unions existed only in name white corruption
in their administration was the rule in tropical Africa-1 did not want to
quote the many examples given by expert outside observers. The first
problem is purely one of administration and management, let atone
moving from that position to one of negotiating responsibly in a modern
economy. In South West Africa the machinery is there, the opportunity
is given first to learn how to administer, organize and consolidate your
position as a labour organization, and this opportunity exists in the
Terri tory.
l\Ir. GRoss: ln what form does it exist, Sir, and where?
Mr. KROGH: To the extent that these people are in fact not restricted
or prohibit:ed in any way from forming labour organizations in the
Territory, they are free to do so; and in so far as the level of education
and literacy increases over time-a slow process in any development
plan or approach.
The PRESIDENT: Could I just put something to the witness, Mr. Gross,
if I may interrupt you? You seem to proceed upon the basis that if
workers are entitled under the law of any particular country to form
themselves into registered trade unions, the only purpose of so doing is
to engage in collective bargaining, that is to say where the trade union
deals directly withthe employer and isable to extract from it or demand by
virtue of the claim they put forward the best bargain they can get, un
affected by any interference, by and large, of a government. But are you154 SOUTH WEST AFRICA
aware of other systems in the world, in modem industrialized countries,
where there is no such thing as collective bargaining in that sense, where
awards are made by third parties, and they cannot be altered-although
the unions negotiate direct with the employer---except under the control
of arbitration judges or officials in general community interests, for
example, to prevent inflation and having regard to the justice of de
mands of various sections of the community? Collective bargaining is not
the only system. Are you aware of those other systems?
Mr. KROGH: Yes, Sir, but I have not made a study of them-1 am
aware of them in my general knowledge as an economist.
Mr. GRoss: May I revert to the question of collective bargaining in the
modern economic sector in South West Africa, and ask you what fonc
tions other than collective bargaining a Native trade union would
normally engage in, if it existed?
Mr. KROGH: I am terribly sorry, I did not get the last part of that
question.
Mr. GRoss: Would you explain what fonctions, if any, other than
collective bargaining, a Native trade union in the economic sector of the
Territory would engage in; what other fonction would there be for such
a union, ifit existed? I am just asking for your expert opinion.
Mr. KROGH: I think that the most important aspect from an econo
mist's viewpoint, and I am not an economist in labour unionism as such,
would be to look after the employment conditions, the wages paid, the
hours of work, the housing conditions, the entry into that particular
trade of other members, and to look generally to the welfare of the
members of that particular union. I cannot quite see what you are getting
at, but I would imagine those would be all factors that can be simply
reduced to saying "looking after the material welfare of those particular
workers in particular trades".
Mr. GROSS: And by "looking after" I take it you mean exercising
collective power to achieve demands?
Mr. KROGH: If they can exercise this in a responsible way, yes.
Mr. GROSS: I did not ask that, Sir; I asked whether the fonction of a
trade union would be to exercise collective power to achieve demands.
Mr. KRoGH: This would be its purpose.
Mr. GROSS:That would be its purpose. So that the absence of collective
power could affect the standard of wage, hour or working conditions in
the enterprise, could it not, Sir?
Mr. KROGH: Theoretically it could affect it.
Mr. GROSS: And is the normal method of looking after the welfare of
the members of the organization to present collective demands or griev
ances to the employer?
Mr. KROGH: Sir, this is a practice that is of recent origin even in the
highly industrialized countries and is normal in that sense. I should
imagine there could be exceptions-probably for very good reasons-but
I do not quite know or cannot recollect these now. But you must re
member, Sir, that the labour union movement is something of recent
historical origin in the economic development even of highly industrial
ized countries. Therefore, only inthat sense is it normal.
Mr. GROSS: Would there be apy alternative other than the presentation
of a petition to the goveming authority?
Mr. KROGH: Yes, Sir. I wouid say the type of machinery that is under
discussion here is an alternative to look after the material interests of WITNESSES AND EXPERTS 155
those particular workers. The administrative and labour machinery that
is available, used and, in fact, works satisfactorily from an economist's
viewpoint because it seems to resolve the different disputes that do arise
white the material positions of these people are improving continually
seen from an objective, economic viewpoint. So I would say that there
are other ways of arriving at this particular objective. The one mentioned
by you and by me is much better described, Sir, I take it, in some of the
documents before this Court.
Mr. GROSS: Are the alternatives, if I can penetrate through to your
response correctly and please let me know if I am wrong, either the
exercise of collective power through collective bargaining on the one
hand, or petition to or submission to govemmental decisions and resolu
tion of disputes onthe other? ls it a fair interpretation of your testimony
that those are the two alternatives fundamentally, or are there others?
Mr. KROGH: Sir, I could very well imagine that there are othcr forms
and means where you have neither of the two, but I cannot give you
examples at the moment. These are not the only forms-1 used them by
way of example, Sir, because you were referring to "normal" as that
which you find in the highly industrialized countries.
Mr. GROSS: And you think these would be the normal alternatives?
Mr. KROGH: In a highly industrialized country.
Mr. GROSS: In the modern sector of the economy in South West Africa?
Mr. KROGH: Sir, even in the modern Whi.te sector in South West Africa
trade unions among White workers were only instituted after 1950, so
it is absolutely abnormal, even in the modern economy among White
workers in the case of South West Africa historically, Sir.
Mr. GROSS: Just for the sake of clarifying this point, is the relative
recency of the \Vhite trade unions attributable to the rate of economic
development in the Territory, or are there factors which account for it
of another sort?
Mr. KROGH: No, Sir. I think that the effective and responsible use of
the trade union movement bears a correlation, or is associated, generally
speaking, with the stage of economic development.
Mr. GROSS: You mean that the White employees were not economically
developed suffi.ciently to have trade unions? Do I understand your
response?
Mr. KROGH: I would say, Sir, that you must not think of South West
.Africaas a terriory that is highly industrialized. There are, Sir, not very
many jobs outside of agriculture. I think agriculture alone employs, by
way of wage earning, about 40 percent. of all non-White wage-earners.
There are few White wage-earners relatively to the rest of the White
population in South West Africa. They are mostly independent farmers
and business people. These people are not Jargely a labour force working
for wages or salaries, but independent entrepreneurs operating in the
Territory. Therefore, I could very well understand, Sir, that the interest
of the \Vhite workers only assumed proportions worth organizing at this
late stage in the economic development of the modern sector of the
economy in the southern part of South West Africa, and especially as a
result oftheir urbanization. It must not be forgotten, Sir, that urbaniza
tion in South West Africa increased considerably only from before the
Second World War to the present day. It was, in fact, a purely rural
economy before 1938-1939, but with urbanization more opportunities for
employment as wage-earners other than in the rural areas were created. SOUTHWESTAFRICA
These are the major explanations of why White unions have corne to the
fore at such a late stage, Sir.
Mr. GRoss: Could your response perhaps fairly be boiled down to one
sentence, Sir,that the reason there have not been White labour organiza
tions until recently is that, until recently, there have not been many
\Vhite labourers at work in South West Africa? Is that a correct version
of your testimony, Sir?
Mr. KROGH:I would say so, yes. Preference has always been given, Sir,
to employment of non-White members in South West Africa. This, Sir,
is also policy with regard to the economy of South Africa ...
Mr. GRoss: If you regard this as responsive, subject to the wishes of
the honourable President, I would like to ask further questions. If you
regard what you were saying as responsive: Mr. President, I thought I
had had an answer to my question.
The PRESIDENT:Put another question, then, Mr. Gross.
Mr. GRoss: You have testified, Sir, that supplies of this type of worker
are available in very large numbers. This was one of the expressions you
used in your testimony-do you recall having made such a statement?
?lfr. KROGH:Yes, Sir, and the word "type" has no reflection on ...
l\Ir. GROSS:I am not asking you, Sir, to explain it. If you will forgive
me, I asked whether I had fairly characterized the statement. I would
like, if you permit me, to ask a question or two about that. I was not
implying that you were using derogatory language. What, factually, did
you mean by your words "this type"?
Mr. KROGH:Sir, very briefly in economic terms, I would say that the
supply of unskilled labour in Africa is very elastic-that simply means,
Sir, that there are many more people of this particular type of labour
than can, in fact, be employed, Sir. That is all I meant.
Mr. GROSS:Sorry. In other words, is it correct, from the economist's
point of view, that there is a surplus of non-White labour available? Is
that a correct statement, Sir? Did you answer that yesterday?
Mr. KROGH:I would not use that terminology, but that is the case, Sir.
Mr. GROSS:Is it, or is it not, from the economic point of view, there
fore, a well-established principle that a great supply of labour tends to
depress wages?
Mr. KROGH:Quite so, Sir.
Mr. GROSS:When, therefore, you are dealing (I will ask you to advert
to the northern economic sector) would the absence of collective bar
gaining or machinery for collective negotiations have any relevance to
the wage or other working condition levels in the face of a surplus of
available labour?
Mr. KROGH:Yes. I would like to explain this very bricfly, if the Court
permits me, Sir. The position is that the trade union movement would,
in fact, restrictthe number of people that could, in fact, become em
ployed or offer their services-in this case, excluding other non-Whites
that will not in fact becomc employed. This principle of excluding others
when there are not enough jobs to go round is, in fact, applied indirectly
in the Territory in this sense, Sir, that outside workers entering into the
Territory are given the lowest priority in the labour market. First and
foremost, they start from the non-White workers that are available in
the Police Zone. They, in fact, get priorit:y and preference, Sir, during
times of unemployrnent due to depression or to lowering in exports or
prices which reflect back on the economy, reduce its employment capacity WIDIESSES AND EXPERTS 157
and economic development. Then there is a second point, and that is that
those labonrers who proceed from the northern areas, Sir, get second
priority in the sense that, first you employ those nearest to you, then
those furthest from you, and then, lastly only, do the authorities in
South West Africa permit workers from outsidc to enter.
The PRESIDENT:What is your conclusion from all that?
Mr. KROGH:The conclusion is that there is protection with regard to
the interests of those nearest to the money economy against the supply
of this type of labour from the northern territories, which would depress
the wages, working conditions and employment opportunities of those
nearest to the market. Similarly, those outside the Territory would have
a depressive effect on those in the Territory, Sir.
Mr. GROSS:May I put one more question? Your reference (I hope
perhaps this could be answered yes or no) to the fact that if labour
unions existed they might have the effect of restricting the number of
available employees. Did you testify to that effcct, or did you not, Sir?
Mr. KROGH:I can sec that it would be in their interest.
Mr. GROSS:No, Sir. Did you testify to that effect, or did you not, Sir?
Mr. KROGH:I said that they would, _infact, be inclined ...
Mr. GRoss: Yes, to restrict?
Mr. KROGH:Whether or not there were enough jobs to go round, yes,
Sir.
Mr. GROSS:Then, finally, again with the hope of a yes or no, Sir, then
is it an economic effect of the absence of trade unions to keep a surplus
labour supply available?
Mr. KROGH:Sir, there is no interest in keeping any labour surplus.
Mr. GRoss: Is this a practical economic effect in terms of your earlier
response which you have just confirmed?
The PRESIDENT:Is what a practical economic effect?
Mr. GROSS:I am sorry, I thought the witness understood my question.
Is the economic consequence of the absence of trade unions under these
circumstances a method, or does it have the effect of making available a
surplus labour supply? End of question, Sir. Cari you answer that yes
or no?
'llfr. KROGH:No, not necessarily, Sir.
Mr. GRoss: Not necessarily, Sir. May I pursue this on Montlay, Sir,
with your permission?
The PRESIDENT:Perhaps on Montlay the witness would seek to make
his responses as brief as possible. This is not any criticism of you_at a!l,
Doctor. Your answers are very important, and many cannot be g1ven m
unqualified terms. The Court understands that. But if you are able to
make them more briefiy than you have, it will be appreciated by the
Court. And, if I may say so, Mr. Gross, further time would be saved if the
witness is not asked tao often, in.general terms, what he thinks about a
certain matter or to comment upon something in general; since that
simply widcns the area of disputation and so takes up a great deal of time.
[Public hearing of 27 September r965]
The PRESIDENT:The hearing is resumed. i\Ir. Gross.
Mr. GROSS:Mr. President, at the conclusion of the session on :24Sep
tember, on this page, supra, the ,vitness had I think begun to answer
the following question: SOUTHWEST AFRICA
"Is the economic consequence of the absence of trade unions under
these circumstances a method, or does it have the effect of making
available a surplus labour supply?"
"Mr. KROGH:No, not necessarily, Sir",
at which point, Mr. President, you graciously said that we could continue
at that point today, and I do so, Sir. Mr. Krogh, have you finished your
answer to the question, or do you wish to, if you have not?
Mr. KROGH:Sir, I believe that the answer to that question is that the
presence of non-White trade unions operating effectively in the Territory
could have an effect of causing conditions of un- or under-employment.
I might, if I am allowed to, just very briefly add that it must be clear to
me before I answer that question what exactly is understood by the term
"surplus labour", because this to my mind would exist whether you have
such trade union organizations or not. I must have clarity on what
exactly is meant by "surplus labour"; if it is meant that this is labour
that becomes unemployed as the result of the presence or absence of such
trade unions, then I should like to limit myself to that concept of the
term. On the other hand, used in a general way I can assure you that
surplus labour would exist irrespective of the presence or absence of such
trade unions on a large scale in the Territory.
The PRESIDENT: I think Mr. Gross' question was rather limited, was
it not, Mr. Gross, as the witness suggested?
Mr. GRoss: Yes, Mr. President; now, if I may follow your answer up
with ...
The PRESIDENT:Could the witncss, Mr. Gross, give his answer to the
question as limited by you? Do you understand, witness?
Mr. KROGH:Yes, Sir, in the limited sense of the word.
The PRESIDENT:I think that is the answer sought.
Mr. GROSS: Would you remind repeating that sentence-in the limited
sense of what, Sir, with the President's permission?
Mr. KROGH:To the extent that un- or under-employment would be
increased or decreased as a result of the presence or absence respectively
of non-White labour unions in the Territory.
Mr. GROSS:ln your response to a question on the same day, that is
at page 156, supra, of the verbatim record, you said among other things
as follows:
"The position is that the trade union movement would, in fact,
restrict the number of people that could, in fact, become employed
or offer their services",
etc.-that is the relevant portion of the testimony. Is your answer to
my question different from, or intended to bear any sense different from,
that which appears from this excerpt I have just quoted?
Ilfr. KROGH:No, Sir, my answer would not be different. I can see as an
economist that it may indeed be in their narrow interest to restrict the
supply of labour becoming available for employment. I can understand
as an economist that it would be in the interest of a non-\Vhite labour
union to try and restrict the number that could present themselves for
employment, for the simple reason, if you want me to explain that, that
for those that are, as it were, cmployed or inside the fence, if I may use
that popular term, their employment conditions and prospects would be
adversely affected by the inflow of large numbers of labourers to this
labour market. WITN'ESSES AND EXPERTS 159
Mr. GRoss: Those economic factors which you have just mentioned
would, would they not, operate to restrict the number of non-Whites that
could in fact become employed or offer their services in the White sector?
Mr. KROGH:The position is that competition !'romthis surplus labour,
in the general and structural sense of the word, is experienced by non
White workers in the Police Zone. As an economist I can tell you that
the White and non-White workers in the Southern sector are, for ail
practical purposes, non-competing members, groups, or economic units.
The restriction I referred to,nd my answer in that context, was directed
towards the effect that such restrictions would have on non-White wor
kers at the moment fully employed in the southern sector.
Mr. GROSS: That is what I am referring to as well. You use the ex
pression "non-competing groups". Would you be more explicit about the
groups that you had in mind, and where the competition would lie or
does not lie? In the phrase you use, what does the word "groups" mean
there?
Mr. KROGH:Groups operating in the labour market. There are, how
ever, different labour markets, there is not only one labour market. I
think it may be misleading to think of the whole of the southem territory
as one labour market. It is composed of very different labour markets in
the sense that the supply conditions-the quality and quantity of the
labour available for particular trades or particular jobs are diverse. We
generally and popularly speak in a macro-economic sense of the labour
market, but in fact as soon as you look at this it is more important to
break it down into its various components, because the supply and
demand conditions in each of these markets are different; that is after
all why you have different wages or emoluments for different people, or
for different professionsor trades.
Mr. GROSS:Sir, you used the phrase, if I may get back to my question,
with the President's permission, "non-competing groups", as I under
stood you. \Vere you referring to non-compcting non-White groups, that
is to say that non-White groups did not compete with each other, or that
non-White groups did not compete with Whites-what did you mean
by the phrase "non-competing groups"?
Mr. KROGH:I was using the term in the macro-economic sense. I was
trying to tell you, Sir, that the members of the different non-White
groups are, generally speaking and largely so, with few exceptions,
competitive with regard to the members of those particular groups that I
have mentioned, whereas they are not Corall practical purposes, and
speaking generally in a macro-economic sense, competitive with regard
to the members of the White population group.
Mr. GROSS:Do you mean-to put it in simple terms, for the Court's
complete undcrstanding-that the non-Whites who reside in the southern
sector, the economic sector, are in competition with the non-Whites who
are recruited frorn time to time as migrant labour? ls that the meaning
of your statemcnt, Sir?
Mr. KROGH:Yes, that is what I am trying to convey-that the degrec
of competition is much more between members of these groups than it
would be between members of these non-White population groups on the
one hand and those of the White population group on the other. It is a
matter of degree, I must admit, but the difference is so large that I regard
it as a structural feature.
Mr. GRoss: The answer to my question, is it, Sir, that there is corn- SOUTHWEST AFRICA
160
petition for employment between non-Whites on the one hand who reside
in the economic sector, and on the other hand those who are recruited for
labour there; are they a competitive set of groupings?
Mr. KROGH:Yes, Sir, I think I have answered that.
Mr. GRoss: Since that is the case, would it not follow that the organi
zation of trade unions on the part of those who residc in the Territory
would have an economic consequence in terms of restricting or affecting
the availability of migrant labour to employers in this sector?
Mr. KROGH:There are no non-White labour unions, as far as I know,
in the southern sector.
Mr. GROSS:I'vlr.President, I regard this as an evasion of my question,
perhaps unwitting.
The PRESIDENT:I do not think it is an evasion, Mr. Gross-you put
two questions, realJy: as to whether it had a certafo resuJt, and whether
it affected; it is difficult for the witness to answer whcn a question really
contains two parts. I think if you will re-frame the question, then witness
should seek to answer the question as put.
Mr. GROSS:I intended to ask, Sir, whether, in view of the competitive
position between the two non-White groups, the existence of trade unions
would have the practical effect-1 stress the word would-from an
economic point of view of restricting the availability of non-White
migrant labour?
Mr. KROGH:I think it would be in thcir intercst to do so, Sir.
11Ir.GROSS:That is not my question. Mr. President, I must protest
again.
The PRESIDE~T:lt would, would it, or would it not?
Mr. GRoss: Would it restrict, or would it not, Sir?
Mr. KROGH:I think it would, Sir.
Mr. GROSS:ls it not the case that disputes have arisen in this sector
regarding precisely this competitive situation; do you know of any, of
your own knowledge?
Mr. KROGH:Not that I know of, and I know why it has not.
The PRESIDENT:Your answer is that you do not know.
Mr. GRoss: Your answer is that you do not know?
11Ir.KROGH:I do not know of any such disputes arising because of
that, and I know why, Sir.
1'.fr.GROSS:You say that there have been no disputes arising out of the
competition between non-White groups from the sector and from outside
the sector respectively?
111r.KROGH:Not any major disputes that have corne to my notice, or
that I would regard as of interest, Sir.
11Ir.GROSS:May I call your attention to one which is cited in the
Counter-Memorial, III, page 94, which is one of the five disputes there
enumerated and which I read as follows:
"Smaller disputes involving strikes occurred at Walvis Bay
[parenthetically the number is not specified in this pleading] as a
result ofthe fact that various employers applied different wage rates
and that extra-territorial and northern Natives gained the impres
sion that they were regarded as less important and lcss valuable
labourers than local workers from the Police Zone. Officiais of the
Department of Native Affairs investigated the complaints and ap
proached employers, with the result that an Employers Association
was fonned and uniform wage scales recommended." WITNESSES AND EXPERTS r6r
Do I take it from your answer, Sir, that you are not familiar with those
disputes?
l\1rKROGH: I am not familiar with that dispute and I cannot see that
it is contradictory to the answer I gave, Sir.
l\IrGROSS: Now, Sir, do vou think that the fact, as set forth in the
Respondent's pleading, that labour disputes involving strikes occurred
as a result of the fact that diffcrent wage rates were paid respectively to
non-Whites from the sector and non-\Vhites from outside the sector
bears upon the competitive situation between those two groups?
l\IrKROGH: Yes, Sir. I am awarc that the different wage rates are the
result of differences in the supply conditions of these workers who opera te
in, as it were, a common market. Itcould, in fact, be explained very
simply in economic terms.
Mr. GROSS: Are you aware, Sir, why an employers' association was
formed?
Mr. KROGH: No, Sir. I am not acquaintcd with this particular organi
zation.
Mr. GROSS: But you arc clear, Sir, why an employees' association was
not formed, I take it.
Mr. KROGH: Sir, I know that thcrc is no such employee organization.
Mr. GROSS: I presume that it would be fair to say, would it not, that
had such an organization becn formed it could not have been registered
under the lawswhich are prevailing in the Terri tory? Is tha t not correct, Sir?
Mr. KRoGH: That is correct, Sir. I testified to that effect the other
day, Sir.
l'llGROSS: I just wanted to have it in the record in this context of
this dispute. Now, Sir, in connection with the responses you have given
regarding the economic impact in terms of the restriction upon com
petition of employment which would arise in the event trade unions
existed (I am not putting words into your mouth, Sir, I am paraphrasing
what I understand you to have said and the record will show what you
actually said), I do want, however, to refer to a report of the International
Labour Organisation ad hoc Committee on Forced Labour, which is
excerpted in large part in the Reply, IV, commencing at page 43r, where
the citation to the document is given (U.N. Doc. E/2431, 1953). The
following brief extract from the report is set forth at page 436 of the
Reply in the form of a conclusion on the part of the Committee as fol
lows; what I shall read applies to South Africa. I shall, with the Presi
dent's permission, then indicate that the same conclusion is applied to
South \Ve~t Africain the same report. Paragraph 372, on page 436, reads
as follows:
"Wi.th regard to the economi.c aspects of its terms of reference, the
Committee is convinccd of the existence in the Union of South
Africa of a legislative system applied only to the indigenous popula
tion and designed to maintain an insuperable barrier between these
people and the inhabitants of Europcan origin. The indirect effect
of this legislation is to channel the bulk of the indigenous inhabitants
into agricultural and manual work and thus to create a permanent,
abundant and cheap labour force."
And then to complete my question, Sir, at the same page, with respect
to South \Vest Africa, the Committee reached the following conclusion
on page 438 after referring to the allegations made:I62 SOUTHWESTAFRICA
"The Committee's findings on these allegations are the same as
those which it reached in the case of the Union of South Africa
regarding the compulsory nature of labour contracts for 'non
Whites'"
and the next conclusion:
"The evidence before the Committee leads it to confirm in the case
of South West Africa the conclusions it reached with regard to the
Union of South Africa itself" [and in the footnote it appears that this
paragraph 372 is one of those conclusions].
Now, Sir, with respect to the I.L.O. finding or conclusion, that the
indirect effect of the legislation is "to channel the bulk of the indigenous
inhabitants into agricultural and manual work and thus to create a
permanent, abundant and cheap labour force", would you please indicate
to the Court in what respects you regard that conclusion to be fallacious
or incomplete?
Mr. KROGH:I think it is fallacious and incomplete, Sir.
The PRESIDENT:In what respect, was the question.
Mr. GRoss: ln what respect, Sir?
Mr. KROGH:Sir, if you want me to explain ...
The PRESIDENT:I would like you to explain in full.
Mr. KROGH:The existence of an over supply of labour relatively to
limited employment opportunities, Sir, is a major, in fact a distinguishing
feature of underveloped countries. That is the first statement I would
want to make in this respect.
The second, Sir, is that this is particularly soin those parts of Africa
where, obviously, the extent of the development of modern economic
activity is limited. This is, therefore, to my mind, an indication that the
reference to this so-called legal system or restrictions operating in·the
case of South West Africa as being the cause and the major cause of the
existence of so-called surplus labour is what we economists call a case
of misplaced concreteness in explaining it, Sir.It is not the reason, nor
would I regard it as the major reason, for the existence of so-called
surplus labour.
I would like to go just one step further and explain that in rg6r, in
fact, a Committee of Economie Experts (I do not know who the members
of the Committee were, that was responsible for the passages quoted,
Sir, and that I am asked to comment on, but I do know who the members
are of this Committee that I am referring to now) prepared a document
for the I.L.O., which is published under the title Employment Objectives
in Economie Development, r96r, and incidentally, in which they describe
this whole dualistic system of economy-the existence of surplus labour
and, in fact, discuss the whole issue in front of the Court at the moment
(if anyone would care to look at that). I quote one of their major con
clusions with regard to the policy implication for development in such
territories.They make the following statement:
"It is highly important that development policy should discourage
excessive horizontal mobility by all the means at its disposai and
should provide more satisfactory alternatives for those who would
otherwise drift to the towns."
This is on page rn6, Sir.
I see most of these restrictions referred to as being designed to cope WITNESSES ANDEXPERTS 163
with a labour problem in a territory where you have had economic
development over a considerable period of time. Why I make this point,
Sir, is that these problems and the necessity, in fact, to employ all the
means at your disposa! to limit the horizontal movement of labour is a
development stage which most of Africa is still to experience in due
course, if they corne to that stage of development.
My general conclusion, Sir, îs that those are the main reasons, put very
briefly without further explanation, why I, as an economist, think that
that diagnosis is both fallacious and incomplete.
The PRESIDENT:The I.L.O. diagnosis?
l\lr. KROGH:The one referred to and in question. Yes, Sir.
~fr. GROSS:Just for the sake of clarîty and correction, your reference
-if I understood you-to the legislation as being a "major cause"
(perhaps you misunderstood the resolution whi,~hI re1d to you) is that
the indirect effect of the legislation is to channel the bulk of the indige
nous inhabitants, etc. There is no allegation in the report and no finding
in the conclusion that this isa major cause, I just wanted to make this
point so as to clarify the precise conclusion reached. However, I should
like to ask you,if I may, with respect to a comment which you made in
your response-you have, Sir, referred a number of times in your
testimony to underdeveloped countries and underdeveloped economies,
have you not, Sir?
Mr. KROGH:Yes, Sir, I have.
Mr. GROSS:Including the rcsponse you just gave, ifI understood you
correctly? Is that so?
Mr. KROGH:That it so, Sir, but I must immediately admit that all
economists would agree that the term is again an unfortunate one, and
that it has been forced upon them by politicians :rnd journalists and other
people. There are chapters written just about the concept "underdevel
oped", because it can really be very misleading.
The PRESIDE!'l'TV :erv well.
Mr. GROSS:Yes, Sir. Iwas not taxing you with the use of.that phrase,
I just wanted to be sure that I understood that you had used it. The
question that I should like to address to you, however, is whether you
consider that the economy in the southern sector of the Territory is an
underdeveloped economy in the sense in which you use the term?
Mr. KROGH:Sir, I use the term to indicate that the domestic economy
of South West Africa (that is a term that we use to refer to ail the
economic activities within the national boundaries of the Territory) is,
in fact, an underdcveloped economy accorcling to the standard definition
used by ail United Nations Agencies to indicate whether a country
is developed or underdeveloped. I couId go further, if you would like me
to.
Mr. GROSS:First I would appreciate knowing whether or not you care
to answer my question.
Mr. KROGH:I am getting to your question, Sir.
Mr. GRoss: May I re-state it, Mr. President? Do you regard the
economy ~f the southern •sector of the Territory as an underdeveloped
economy, m the sense that you have used the term?
Mr. KROGH:The term "under-dcvelopment" is a relative ...
The PRESIDENT:Do you, in the sense which you have used the term,
regard it or do you not regard it as an underdeveloped economy?
Mr. KROGH: I would regard it as a Jess developed economy-an SOUTHWESTAFRlCA
underdeveloped economy compared with that of Great Britain or Ame
rica, yes, Sir,but compared with the rest of Africa I would regard that
sector or economy as a developed economy.
Mr. GRoss: You are aware, Sir, are you not, that the Odendaal Com
mission has described the economy of the southern sector as a modern or
exchange economy? Are you familiar with the Odendaal Commission
report in that respect, Sir?
Mr. KROGH:Yes, Sir: I am.
:tlfGRoss: Do you disagree with that characterization of the economy
of the southern sector, Sir?
Mr. KROGH:Sir, I did give evidence on this the other day ...
The PRESIDENT:Do you or do you not agrce?
Mr. KROGH:I do not agree with it without qualification, Sir.
Mr. GROSS:Sir, at the risk of being facetious, is there anything in the
Odendaal Commission report of a basic analytical economic nature with
which you can express wholehearted agreement?
The PRESIDENT:I do not think that you can ask that question; there
are about 500 pages of it.
Mr. GROSS:I am struggling for a statement in the report which I can
hope for, fiat out, Sir.
What qualifications would you like the Court tohave before it in their
consideration of the validity of the Odendaal Commission report in this
respect, Sir?
Mr. KROGH: Sir, the tenns "modern economy", "diversified economy",
"underdcveloped economy" are all relative concepts. They are used
rather loosely by people who have to formulate policy and people who
have to explain many of these particular features in a very popular way.
It all depends in what particular contexts those words were used in that
paragraph. I have given evidence to show, Sir, that in a previous quota
tion out of the report I disagreed with its use and I thought it was an
unhappy choice of terminology in that particular context. The same
concepts may in fact be used to emphasize or explain something that the
Commission had in mind in another respect, and I have to know in which
context. I cannot say in general what I think the Commission had in
mind when using these terms throughout the report to describe different
situations, or to referto some specific conditions in a modern economy
that may be present in the southern sector, but which again also contain
other features that would, normally, by no means be associated with a
modern economy. So I would like to know specifically how these terms
are used in the Commission's report in order to qualify them appropriately
for your further enlightenment.
Mr. GROSS:Mr. President, if the witness would ask for clarification, I
want to assure the witness and the Court that I shall be only too glad to
furnish it. Now in response to the last comment, or question, for clarifica
tion, I refer for example to paragraph 1437 on page 429 of the Odendaal
Commission's report and should like to read, if J may, the following:
"An analysis of the socio-economic progress made in the Territory
in the past leaves no doubt that the first aim has been achieved,
namely the development of a modern economy in the Southern
Sector by the \Vhite group whereby avenues of employment and a
new field of experience have been created enabling the non-White
groups to transform their traditional socio-cultural background
selectively with a view to autogenous progressive development." WITNESSES AND EXPERTS 165
I should like, Sir, to ask, in this context, whether or not you agree with
the description of the Odendaal Commission of the economy in the south
em sector as a "modern economy", "whereby avenues of employment ·
and a new field of experience have been created enabling the non-White
groups to transform their traditional", etc. Do you agree with that as a
description of a modern economy? Or do you disagree with that formula
tion in the Odendaal Commission report?
Mr. KROGH:I would agree with that broadly, Sir: yes.
Mr. GROSS:Now, Sir, you are aware also, are you not, that the Oden
daal Commission report likewise refers to the modem economy of the
sector as an "exchange'' or "money" economy? Are you familiar with
that, Sir?
Mr.·KROGH:I am familiar with that but I explained the other day that
that association between "exchange" or "money" economy on the one
hand, and "modern" economy on the other, is an unfortunate choice of
concepts which is very popularly used in many reports by very qualified
United Nations Agencies investigating the problems of underdeveloped
economies. You see, Sir, I am not trying to be difficult on this subject.
The point is just that the economic insights into development problems
and policies, and the whole economics of underdeveloped countries for
that matter, are still in an underdeveloped state themselves. As regards
these concepts, we first have to agree onwhat we are talking about before
we can start talking in the main. As economists we are in the stage where
we are acquiring insight and understanding.
The PRESIDENT:The question is whether in general do you agree?
There may be qualifications in your mind, by comparison with some other
country, but in general do you agree with the description read by Mr.
Gross?
Mr. KROGH:Yes, Sir, I would in general agree with that.
Mr. GRoss: Now, Sir, is it or is it not true that the Odendaal Com
mission report, for example, in its discussion on page 427, under the
heading "Protection of Traditional Groups", with regard to the policy
pursued in the Territory, the economic policy pursued in the Territory,
that the Odendaal Commission analysis rests heavily upon the distinc
tion there drawn between the so-called modern economy of this sector
and the traditional or subsistence economy of the northern territories? ·Is
that not a correct appraisal of the Odendaal Commission report, if you
know, Sir?
11r. KROGH:Sir, yes, and as an economist I think that it is a ustified
distinction for policy purposes in the Territory. I would think also that
it is a wise one from the viewpoint of formulating and administering a
policy of development in the Territory of South West Africa. In fact it
is more striking in the case of South \Vest Africa than it is in many other
African territories.
Mr. GROSS:Is it not correct, Sir, to follow from what I understood to
be your acquiescence, your affirmative answer to my question, in essence,
that one of the basic reasons asserted in the Odendaal Commission report
for differential treatment, on a racial basis, in the economic sector, is
focused precisely on the argument that the southern sectorisa modern
economy, whereas the northern is a traditional subsistence economy? ls
not this a principal reason assigned by the Odendaal Commission to
explain the differential treatment between White and non-White in the
southern sector? I66 SOUTHWESTAFRICA
Mr. KROGH:Sir, I am not aware of all the considerations which led the
.Odendaal Commission to adopt that approach, nor am Ifully acquainted
with the reasons for choosing those particular concepts.
Mr. GRoss: You testified before the Commission, did you not, Sir?
M.r.KROGH:1 did, Sir.
Mr. GROSS:So far as you are aware, Mr. Krogh, did any other econo
mist testify before the Commission?
Mr. KROGH:Sir, I do not know, but it could very easily be established,
and this does not mean that there were no other economists. There is a
long list of the witnesses at the back ...
The PRESIDENT:You do not know?
Mr. KROGH:I do not know, Sir.
Mr. GROSS:That was the only question addressed to you. You do not
know whether any other economist did testify before the Commission.
Now, in the course of your testimony before the Commission, Dr. Krogh,
were you asked or did you volunteer testimony concerning the nature of
the economy?
Mr. KROGH: I did, Sir.
Mr. GRoss: In the southern sector?
Mr. KROGH:Yes, Sir.
Mr. GROSS:\Vere you asked also with respect to the use of phraseology,
not only in a technical word-game sense but expressing sound economic
concepts?
Mr. KROGH:Sir, I cannot recollect precisely, but I can give you an
assurance that I must have used terminology that they must have asked
me about (for what it was worth), but I cannot specifically remember
whether these particular concepts were discussed in the course of my
appearance before the Commission.
Mr. GROSS:The record establishes, I believe, subject to correction, that
no member of the Odendaal Commission was an economist. Can you
confirm or deny the accuracy of that statement?
Mr. KROGH:Sir, there was a very well-known industrialist on the
Commission and I know for a fact that be is very well served with quali
fied economists, in his private capacity. And I also believe that other
economists were at his disposai, bath in the formulation and in the
discussion of the problems that arase in the course of the Commission's
work. But I do not think any one of the members of the Odendaal Com
mission held a degree in economics, but Dr. van Eck was specifically
appointed, if I remember correctly, for his economic knowledge and as
an industrialist who has in fact served on very many economic commis
sions for the South African Govemment.
Mr. GROSS:Now, Sir, I am not seeking to impeach the capacities of
members of the Commission. I wish to enable the Court to have the
benefit of knowledge, if you had it, Sir, whether there were any econo
mists as members of the Commission. I take it that there were not, Sir?
The PRESIDENT:But the witness's reply is an answer, is it not, Mr.
Gross? An economist is not necessarily one who has a degree: he can
acquire a great deal of experience but not have a degree, and yet be an
economist.
Mr. KROGH:That is right, Sir.
Mr. GROSS: I would like to ask you, Sir, whether there were any
economists or industrialists as members of the staff of the Commission,
so far as you are aware? WITNESSES AND EXPERTS
lilr. KROGH:Sir, I do not know what exactly the staff position of the
Commission was, but I am quite sure that the whole government service
and all the expert departments were at their disposa!, if required.
Mr. GROSS:One more question along this line, Sir. Were there any
other economists-I shall leave aside industrialists for the moment, if I
may-those who have been credited and professed economics as a
career or profession, who have been cited by the Commission in its
report, so far as you are aware, other than yourself?
Mr. KROGH:No, Sir, but I know that they have consulted economists
who enjoy a higher standing than I do and, in fact, are better qualified
than I am. Sorne of them are working at the Economie Commission for
the South African Government full time, Sir, and they are highly quali
fied and eminent economists, Sir.
Mr. GROSS:Now, Sir, I wish to assure the honourable Court, as well as
the witness, that these questions were not designed to hanter the witness.
I wish to make clear, Sir, that the analysis, on the basis of which the
Odendaal Commission justifies the policy of apartheid or separate devel
opment, is the same as the basis upon which you were testifying, Sir,
under the heading of the necessity of applying measures of differentiation
between the varions population groups in South West Africa. I was
seeking to establish whether or not, as far as you are aware, the economic
premises and the economic analysis, from which the Odendaal Com
mission proceeded in arriving at its conclusions, were in any major res
pect different from those which you have been testifying to before this
Court.
Mr. KROGH:Sir, there are so many recommendations. I think it is very
unreasonable, Sir, to expect me to answer very briefly. I wish to know
to which particular recommendation ...
The PRESIDENT:Then give a general answer. '.fakeyour time and an
swer it. The question has been put to you in general terms so you are
entitled to answer it in general terms.
Mr. KROGH: Yes, Sir.
Mr. GRoss: May I, with the Court's permission, darify ... I wish to
make clear that the question is understood. Are there any major respects
in which the Odendaal Commission premises are different from yours in
arriving at the conclusion that separate devclopmcnt or apartheid is a
necessary condition of progress in the Territory?
Mr. KROGH:Broadly speaking, Sir, therc is no difference in my opinion
to those of the Commission on this particular issue, Sir.
Mr. GRoss: Thank you, Sir. Now, I should like to summarize the point
with respect to the effect of labour organizations. I just have one more
question on this, Mr. President. We have, in your testimony, Sir, to
which I have referred on page 156, supra, the testimony that "the trade
union movement would, in fact, restrict the number of people that could,
in fact, become employed or offer their services". We have also, Sir,
your statement in the verbatim of 23 September, at page 114, supra,
in which you said that "these regulations would be designed to limit the
number of skilled people in the territory, viewed as a homogeneous
whole, to qualify for particular tractes".
Now, Sir, I ask you, on the basis of those two statements, which I have
cited from your testimony, would it be fair and accurate to say that the
economic policy cornes down to this, that the availability of labour is
kept abundant and the flow regulated to meet needs, whereas the quali-168 SOUTHWEST AFRICA
fi.cation for skills is restricted in order to limit competition? Is that a
correct summary of your testimony?
Mr. KROGH:No, Sir.
Mr. GRoss: Now, Sir, have you in your studies encountered or heard
of Professor Leo Kuper?
Mr. KROGH:I have corne across the name-yes, Sir. I have not met
him personally, Sir.
Mr. GROSS:Mr. President, and Members of the honourable Court, he is,
at the present time, Professor of Sociology in the University of Califomia,
Los Angeles, formerly Professor of Sociology at the University of Natal
in South Africa. In an article appearing in a paper given to the African
Studies Association in New York in October 1961, Professor Kuper
stated as follows, at page 28, with reference to the policy of separate
development or apartheid:
"Apartheid is, in fact, a very tightly knit system of integration
extending to numerous aspects of the lives of the groups involved, a
totalitarian system of integration."
And, then, with specific reference to certain economic aspects, Professor
Kuper states:
"A second illustration relates to the systems of influx and efflux
control and of labour bureaux. ln theory, these permit the precise
integration of African labour into the economy. African labour can
be tr.eated as a commodity and fed into industry in the precise
quantities and qualities desired, without any redundancies in the
urban areas, while the reserves provide a pool to meet new or chang
ing demands. This is a most exact and economical form of integra
tion."
\Vould you, Sir, as an economic expert, agree with that formulation or
analysis of the economic system and the regulatory controls?
.Mr.KROGH:No, Sir, I do not, Sir.
The PRESIDENT:Mr. Gross, if you simply ask a question with respect
to what somebody else said and that somebody else is not before the
Court, don't you propose to follow it up and ask him in what respects he
does not agree?
Mr. GROSS:\Vell, I had intended to do that, Sir. I just wanted to
establish first, with respect Mr. President, whether or not he agreed or
disagreed. I wish to follow that up very ardently, Sir.
Mr. KROGH:Yes, first of all, this is a statement of a sociologist, Sir, and
I am a qualified economist. Now, it is true, Sir, that we both belong to
the social sciences, but it is generally known that economics is the most
disciplined of the undisciplincd sciences, that is of the social sciences,
whereas sociology, Sir, is the most undisciplined of the social sciences.
The basis on which the particular statements rest and the principles un
derlying that particular diagnosis, Sir, is something that I, as an econo
mist, cannot agree with, and I would like to explain that, ifit is required,
Sir, but then I would like that statement written clown so that I could
take it step by step. More than a mouthful has been said there, Sir,
and economic terms have also been used.
The PRESIDENT:I am sure Mr. Gross will do that. He will take it piece
by piece now, I am sure.
Mr. GRoss: The systems of influx and efflux control and of labour WITNESSES AND EXPERTS 169
bureaux are the systems to which Professor Kuper addresses himself in
this paragraph.
Mr. KROGH:That is clear, Sir. Thank you.
olr.GRoss: Now, Sir, "in theory" [he says] "these permit the precise
integration of African labour into the economy". Now, Sir, do you
disagree, as an economist, with the sociologist here that these deviccs do
"permit" of a precise degree of integration?
Mr. KROGH:I disagree, Sir.
Mr. GRoss: They do not permit of it, Sir?
Mr. KROGH:This system, Sir, does not, in fact, from an economic
viewpoint, permit of economic integration of the members who are being
controUed in coming into this economy, Sir, they do not bccomc econo
mically homogeneous units of the modern economy. I explained that the
other day_.Sir, and why I make this distinction.
Mr. GROSS: Now, secondly, or consequentially: "African labour can be
treated as a commodity and fcd into industry in the precise quantities
and qualities desircd without any redundancies in the urban areas while
the Reserves provide a pool to meet new or changing demands." Now,
Sir, do you agree that under these procedures and regulations African
labour can be treated as such a commodity and fed in, as desired? Do
you disagree with that, Sir?
Mr. KROGH:Sir, I disagree with that as an economist, fi.rst of all (this
might not be the case with a sociologist), because we do not refer to
labour as a commodity. Secondly, Sir, the whole intention and design of
the control of labour coming in from the Native Reserves (in this partic
ular case I have to have an example in mind to illustrate this very
specifically, Sir-entering, say, from the northern territoriesto the
southern modem economy) rest on two very good reasons that are in
creasingly being appreciated and, in fact, used as a basis for making
policy recommendations in countries that are experiencing excessive
horizontal movement of labour to areas where there are not enough jobs
to go around, Sir.
The first is,ir, that in order to avoid urban slum areas (this is looking
now from the viewpoint, Sir, of the area where these jobs are available}
in order to avoid this open and, in fact, worse state of misery, Sir, it is
regarded as necessary to control the influx of labour from areas where
there are less jobs available at this stage of development. Furthermore,
this labour is also controlled in the interest of the area from where these
people corne, Sir. ln the course of my research I tried to establish what
criteria were used from the side of the traditional economy, that is from
where these people corne, Sir-whether any criteria were applied in fact
with regard to the numbers that were allowed to leave their traditional
economy, because as an economist I am interested to see to what extent
economic conditions could be affected by the absence of these workers
from thcse traditional economies. In other words, Sir, to what extent
could one technically regard the labour available there as "surplus"
labour that could be removed or, in fact, be allowed to enter the developed
areas to seek employment and thereby suppfoment their incarne eam
ings, experience and so forth.
Now I was told not by one but by sevcral o! the responsible officers,
Sir,that the number they have in mind varies from 7 to ro percent. of
the total population in, for instance, Ovamboland, which as you know
accounts for nearly half the population of the Terri tory, Sir. The reason 170 SOUTH WEST AFRICA
given for this variation is that it ail depends on the particular year or
season of the year---droughts often last for several years in South West
Africa and would obviously make more labour available. They would in
fact then try their best from that end, if a similar drought didn't hit the
other part of the modern sector as well, to allow more of these workers
to acquire jobs in the modern sector in order tosupplement their earnings
and livelihoods by going out to work. But apart from the seasonal factor
of variation, Sir,they also know that as soon as there is availablc in the
traditional economy less than one able-bodied man to two women, a
stage is reached that could be regarded as a danger point for all practical
purposes. In fact this is a general rule used in other parts of Africa as
well, and I can give you the literature on this if you require it, Sir. The
reason is, Sir,hat in this particular economy which I now have in mind
(I am referring to the traditional Ovamboland economy) the women
are the agricultural workers, .whereas the men are not required to do
regular jobs in this type of economy, with the result that they are
available, as it were, in surplus form part of the year or time that they
are not required to do the particular tasks that are traditionally reguired
of them.
Hence, the extent to which such labour control operates is not, in fact,
that indicated by the Professor quoted by Mr. Gross. The extent of
controland the restrictions applied are based on dual economic consider
ations and I should imagine that there are other social considerations as
well. They are nevertheless based on economic considerations that apply
in fact to both the modern sector, Sir, and to the area from which these
migrant workers originate.
Mr. GRoss: Sir, would it be a fair reduction of your response toits
essence to say that the African labour through these devices can be
treated as a commodity and fed in to industry in the precise quantities
and qualities desired?
l\!rKROGH: Sir, I would not use that terminology. But I think that the
placing of labour in the sense that you regulate the available labour, see
toit that they arrive at and corne to areas where there is a shortage of
labour-South West Africa is a very vast territory as I pointed out the
other day, 20 times the size of the Netherlands and its population half the
sizeof thatof The Hague-these mining activities, the farms, the employ
ment opportunities are spread over vast areas, Sir, and in order to
regulate and place the workers coming in from the northern territories as
quickly, speedily and conveniently as possible-by convenient I mean
with regard to the workers-Sir, I can very well understand that this
may in fact be part of the reason why control is exercised in taking into
employment these labour units entering into the modern economy of the
Terri tory.
Mr. GRoss: Now, Sir, the last point in the paragraph I have cited is
"this is a most exact and economical form of integration". Now I think
you have already commented on that use of the term ...
Mr. KROGH: I disagree with that completely, Sir.
Mr. GROSS: Yes, Sir. Do you wish to comment further?
Mr. KROGH: No, Sir, I am quite happy about my reply, Sir, in my
previous testimony.
Mr. GROSS:Now, with the President's permission, I would like to
turn back to the Odendaal Commission report and refer to page 315.
I am now referring, Sir, to the southern sector as the report does in the WITNESSES AND EXPERTS 171
context which I shall refer to. At page 315, in paragraph 1284 (a) under
the heading of "The Exchange Sector", the following statement is made
in the Commission report among others:
"The members of this developed sector are Whlte and their
standard of living is, etc." [for the purpose of my discussion it is not
necessary to complete this sentence, although I will be glad to do
so].
The PRESIDENT: Where precisely is that paragraph? Is it the long
paragraph?
Mr. GRoss: Yes, Sir, it is the second sentence. Did I say 1284?
The PRESIDENT: Yes, but I realize it is 1285.
Mr. GROSS:It is 1285, I am sorry, Sir. "The members of this developed
sector are White." In the first place have you commented to the fullest
extent you wish with respect to the phrase "developed sector" in this -
context?
Mr. KROGH: Yes, Sir. I would not like to cover all that ground again,
Sir.
;_\fGRoss: Now, with respect to the use of the phrase"themembers",
what, if you know, do you understand the intent or purport of that
phrase to be in this context?
Mr. KROGH: Just exactly what it says, Sir.
~fr. GROSS: How do you distinguish between a member of the sector
and a non-member; as between, let us say, a non-White who has been
born, lives and works throughout his lifein the sector, and a person who
does the same thing but with a different colour, for instance White?
How do you determine the basis on which one is a member of that sector
and the other is not?
Mr. Km)GH: The easiest way for me, as an independent economist,
Sir, would be to apply a rule of thumb in this regard and look at the
colour of the skin of the particular person, Sir, because I know that the
historical background, economic qualities, aptitudes and so forth of the
members of the White group are quite different from the rest for all
practical purposes of my analysis, but not necessarily for purposes of
administering laws or anything like that. I will be observing this as an
economist. Sir, describing a thing as I see it but l do admit that I may
be wrong with particularly small exceptions. Generally speaking, how
ever, I would, in fact, be quite happy that I will be describing quite
satisfactorily for purposes of economic analysis, the different types of
economy that you have there.
I do not for amoment suggest, Sir, that there is necessarily any direct
association ... between the colour of your skin, Sir, and your economic
performance-! do not know, Sir. But I do in fact say that in practice
I observe this without enquiring further, Sir, in my particular field of
study. \Vhether there is any association between the colour of your skin
and your economic performance might be quite incidental. I, as an
economist, if you want to know this, am inclined to think it is a difference
in the stage of development of different groups of people, Sir.
1\Ir.GROSS: Now, Sir, is a White child, let us say five years old, a
member oi the White sector in the sense in which you use the term?
Mr. KROGH: Yes, Sir.
Mr. GROSS: Now, that would be because of his ethnie parentage-would
it, Sir?172 SOUTH WEST AFRICA
Mr. KROGH: No, Sir. I tried to point out the other day, Sir, that
economists have borrowed two concepts to describe different kinds of
economic societies. We have borrowed these from sociologists and an
thropologists. We are not happy about these concepts being used in
every context because they often convey wrong ideas that may be
emotion-inspired, Sir. Nevertheless, we distinguish between on the one
hand what we call "tradition-bound societies"-this does not mean that
it is a permanent state at all, as a matter of fact, Europe was inhabited
by tradition-bound societies several centuries ago, Sir-and on the other
hand, you have economic societies like those that went to the so-called
New World-New Zealand, Australia, Canada and the United States of
America, Sir-that had quite a different social, cultural and economic
background to the people who have traditionally lived in Africa, Sir.
As economists we say that the economic problems of development, the
absorptive capacities of these different societies with regard to the in
vestment of capital, or the extent to which public support or aid should
be given to these two different types of societies are quite different for
policy purposes, Sir. I can go into detail to explain why we regard this
so, but I do not think it will be necessary as I did in fact make this point
in the course of my evidence, Sir.As an economist interested in these
problems I wish to say that the fact that the one society's members are
largely of a different colour than those of another society would, according
to my mind, Sir, be completely incidental. But itis a rule which I must
admit one applies, it is only human to do so, Sir, and I am quite happy
economically speaking that here I arrive at a diagnosis which is for all
practical purposes, Sir, approximately correct.
Mr. GRoss: Now, Sir, you referred to the absorptive capacity of the
groupas a group-is that what you had in mind, Sir?
Mr. KROGH: That is correct, Sir.
Mr. GRoss: Those individuals who have relatively poor absorptive
capacity corne under the umbrella of the group, do they, for the purpose
of your analysis?
Mr. KROGH: That is correct, Sir.
Mr. GROSS: In this respect a one-year old child has more or less
absorptive capacity than let us say a five-year old?
Mr. KROGH: He has more absorptive capacity because he is my child
and he is bom and brought up in quite a different social, cultural and
economic environment than would be a child in the other example that
you were, in fact, trying to refer to, Sir.
Mr. GRoss: Now with respect, Sir, to Coloured, as the classification in
the census--do you regard the Coloureds as having absorptive capacity
similar to the so-called Natives or the so-called Whites?
Mr. KROGH: Sir, I regard the people of mixed colour in South Africa
referred to as Coloureds to have a greater absorptive capacity from an
economic viewpoint-by that I simply mean that they can make more
productive use of capital, aid, technical assistance under exactly similar
conditions than would be the case of a population group of the same size
composed of members of the Native population, Sir. Yes, I would say
that, Sir, as an economist.
Mr. GRoss: That they have the same absorptive capacity ... ?
Mr. KROGH: No, Sir.
Mr. GRoss: I misunderstood you.
1\fr.KROGH: So sorry, I am terribly sorry, Sir. WITNESSES ANDEXPERTS 173
Mr. GRoss: No, it is my fault. Clarify it, if you will, if the Court
permits.
Mr. KROGH:No, it is not necessary-·what I had in mind was to tell
you that I, as an economist, observe and would state, Sir, that as a group
they have a different absorptive capacity-that is the concept we use to
indicate different productiveness. The Coloured group would, I think no
doubt be more productive in the sense that I have used that word, Sir.
Mr. GROSS:Is the question then of productivity irrespective of race,
did Iunderstand you correctly, the criterion?
Mr. KROGH:Irrespective of race, Sir, because I am absolu tely con
vinced, especially after I had visited the United States of America, Sir,
that the cultural, social and productivity levels between, for instance,
the so-called "Negro"-which refers to the non-White population mem
bers or people of a dark colour there-are very close indeed, Sir, if not
virtually identical, to that of the large majority of White Americans. I
am quite sure there must be many Negroes who are in fact economically
more productive or have a greater absorptive capacity than a large
number of, for instance, the White group. This proves tome as an econo
mist that it is not a matter of race at all, Sir. To me it is a matter of
differences in stages of general development, Sir.
Mr. GRoss: Now, Sir, in the Odendaal Commission report at paragraph
121, page 33, the Commission describes the Coloureds numbering 12,708,
as follows as having-
". . . strong Caucasian strain and for the most part main tain a
Western culture and way of Iife. Their language is chiefly Afrikaans.
A considerable number hail from the Cape Province. The Coloureds
are found mainly in the larger towns, such as Windhoek, \Valvis
Bay, Luderitz and Keetmanshoop, where they are employed or have
their own businesses in industry. Many are artisans in the building
trade. A small proportion make a livelihood as stock-farmers."
Would you say, Sir, that thcy are not included as members of the White
sector for any reason other than their race?
Mr. KROGH:To my mind, Sir, I will answer that question by saying
simply that if you want to split hairs, I would like to go further on that.
I can make these distinctions even clearer, Sir, but I would use those
terms to typify, Sir, a type of society and to contrast that which is
important for economic devclopment policy purposes with another type
of economy or group of people you have referred to, Sir.
Mr. GRoss: The Coloureds, Sir?
~lr. KROGH:Yes, Sir. I was referring to this type of society you were
describing. You were explaining their typical economic activities and
this, in fact, substantiateswhat I tried to tell you just now, namely Sir,
that that description indicates to me as an economist that they are
economically more viable than the Native population groups but less
viable, Sir, I would say, than the White population group.
Mr. GROSS:Sir, may I have time for one or two more questions?
The PRESIDENT:Weil, try them out anyhow, Mr. Gross.
Mr. GROSS:Dr. Krogh, with respect to the classification of the popula
tion in this census on the basis of Native, Coloured and \Vhite, is it or
is it not a fact that restrictions upon freedom and limitations upon
advancement attend the classification, and are a consequence of the
classifie.ation? ls tha t not correct, Sir? SOUTHWESTAFRICA
174
Mr. KROGH:I did not quite get that last question, Sir.
Mr. GROSS:Is it or is it not a fact, Sir, that the classification of in
habitants of the Territory as White, Native or Coloured determines to a
large extent the limitations which are imposed upon certain freedoms
and the ceiling set upon their advancement economically? ls that a fact,
Sir?
Mr. KROGH:Sir, I cannot see any ceilings of economic advancement
upon these people. As a matter of fact it is a main characteristic, Sir, of
economic policy in these tcrritories that ail efforts are being employed,
and it is part of declared and practised policy, Sir, to uplift the members
of those groups that are at an earlier stage of economic development. And
this, Sir, cannot always be done by integrating them socially, politically
and economically into one society. As an economist I can hardly see
how you can integrate the underdeveloped majority into a developed
minority-1 can understand that this problem is the opposite and
difficult enough in America, but I cannot in the case of Africa-but that
is apart. I am telling you in fact, Sir, that there are no such things as
economic ceilings. New opportunities are being created at a rate that
impresses me as an economist, Sir, who has studied the problems of
expanding the economic freedoms of people, by that I mean the problem
of economic development in the rest of Africa, and other parts of the
world.
The PRESIDE:S-T I:do not think there is time for another question now,
Mr. Gross, but your last question did involve two separate questions
really.
Mr. GROSS:Yes, Sir. I am still at the ceiling, Sir.
The PRESIDENT:I do not think you have got beyond the first fl.oor.
l\Ir. GRoss: I think the ball was in my court, was it not, Sir? With
respect to the question which I addressed to you, I had the impression
from your response that you may have used the term "ceiling" in a
different sense from that which I had intended. I should like to call to
your attention, and ask whether you agree or disagree with, the follo\\-ing
testimony, brief excerpts of which I should like to read into the record
at this point, previously given in these proceedings. The first is testimony
given by Dr. Bruwer, former member of the Odendaal Commission; I
refer particularly to the verbatim of 6 July proceedings at X, p. 308, at
which, in response to my question to Dr. Bruwer-1 asked:
"Is it the opinion of the Odendaal Commission that, so long as a
non-White is in the White territory, he must be subject to limitations
upon his freedoms?
Mr. BRUWER:That, Mr. President, was certainly the consideration
of the Odendaal Commission on the basis of the broad approach of
the problem that I have tried to indicate."
And then I asked:
"Therefore, it would seem to follow that if the non-White, who
might spend his entire working life, or longer-beyond his retire
ment-in the White area, would be subject to imposed limitations
on his freedoms so long as he was physically present in the White
area. Is that correct?
Mr. BRUWER:That is correct, Mr. President."
Now I should like to read a colloquy between Mr. Cillie and myself; this WITNESSES AND EXPERTS IJ5
is from the verbatim record of I3 July at X, page 538. In that colloquy
on that page the following exchange took place:
"Mr. GROSS: And the answer is 'yes' to the question that there are
ceilings placed upon non-Whites, solcly because they are non
Whites? Is that correct?
Mr. CILLIE: No, I would say no. If you put it like that, I would
say placed upon them because they do not belong to the White
group."
And then finally witness Professor Logan, testifying on 9 July, at X,
pages 410-420 of the verbatim record-the following exchange:
''Mr.GROSS:Now do those restrictions [this referred to restrictions
upon achieving higher employment status], on the basis of your
study and analysis, have any relationship to the individual's innate
capacity or persona! potential and ability?
Mr. LOGAN:They have no relation to this, no.
Mr. GRoss: They are based entirely, are they, on his classification
under the census?
Mr. LOGAN:That is correct."
Do you agree with me, Sir, that the quotations I have read from Dr.
Bruwer, Mr. Cillie and Professor Logan all corne to the same point: that
ceilings are imposed upon individuals in the White sector because they
arc not members of the White group. Do y:ou have any question about
the purport of the testimony I have read in that respect?
Mr. KROGH:No, Sir, I have ...
Mr. GRoss: Do you agree with that, and if you do not, will you please
explain to the Court why you do not?
Mr. KROGH:Agree, Sir-I must say now whether I agree or disagrec?
This is completely a value judgment; the word "agree" implies that I
say that that must or should or should not or must not be done. I want
to make clear that when I say that I agree with that, then I say so in
the sense that as an economist I agree that the problems of economic
development and hence the most appropriate policies for the develop
ment of these different population groups are basically different; there
fore the policies appropria te to these particular problems of development
are different. I will go further,and I will say that even if these people
were at the same stage of economic development I can still, as an econo
mist-it is nota matter of whether I agree or not-very well understand
how members of one group at the same stage of development as that of
members of another group may prefer to retain their identity as a group.
This m?'y be for economic reasons only, but it may also be for non
econom1c reasons.
As a matter of fact, Sir, in the rest of Africa--1 am refcrring largely to
tropical Africa-you fi.ndthat the inhabitants are organized socially into
different socio-economic units or groups. They are more or less, generally
speaking, at the same stage of economic development, but they never
theless want to retain their identity. They may not prefer to be governed
or ruled by members of another group, and to that extent they may very
well lay restrictions or impose limitations on the entry of other group
members to the extent that members of other groups would want in fact
to govern them or administer them. I can understand that-but whether
I have to agree to that or not is, I feel as an economist, a question that176 SOUTH WEST AFRICA
can only be answered with a policy implication, and that is a persona]
matter. As a South African, I am also a member of a group, and my
answer would be my personal views. I do not think that is worth any
thing to the Court, that is my personal views as a member of a group,
as distinguished from my views as an economist.
Mr. GROSS: :\lr. President, Sir, in the interests of expedition and
clarity I am attempting my best to keep my questions clear and to
rcquest answers which do not involve extended comment. Mr. President,
I had asked the witness whether he agreed with the statements made,
which [ have read from the testimony. The witness it seems to me, with
respect, Sir, has explained his views concerning the validity of the policy.
I would like to have the record clear on this point, Dr. Krogh, with the
President's permission, whether you can give an unqualified statement
concerning whether or not you agree with the accuracy or validity of the
testimony which I have read.
The PRESIDENT:The difficulty I think arises between yourself and the
witness, Mr. Gross. You ask him whether he agrees with three statements.
lt is a little difficult, you know, for the witness; there is the position of
the witness to be considered. I do not think it was fuUy responsive to
your question, but it would be easier if you put separate issues to him.
Does he agree with this, does he agree with that? To ask him if he
agrees with three statements leads him apparently into the position
where he does not know precisely what he is to answer.
Mr. GROSS:I accept that of course, needless to say, Sir. I had at
tempted to circumvent that by asking whether he regarded the three
statements as having the same purport. I would not press the witness,
Sir, if Idid recollect and understand the response. The question is do
you agree, Sir, with the validity or accuracy of the statement by )Ir.
Cillie, that ceilings are placed upon non-Whites because they do not
belong to the White group? Is that an accurate statemcnt so far as your
economic analysis, expertise is concerned, or knowledge of the fact, is
that a correct statement or is it not, Sir?
Mr. KROGH:Sir, to the extent that the members of the White group
prefer to impose these restrictions on members of other groups, I, as an
economist, would observe this ...
The PRESIDENT:But that is not the question you are asked, Dr.
Krogh, the question is whether in fact thcre is a ceiling placed upon
them? That is the question. The reasons for the placing of the ceiling is
another matter and either you give your reasons at some later stage in
answer to counsel for the Respondent or you do not give them at all, but
that is the question.
Mr. KROGH: There are restrictions operatîng on members of non
\Vhite population groups that are in fact employed in the White economy.
Yes, that is the case, Sir.
Ilfr. GRoss: Now, I am asking this question, Sir, so that you may
consider your response in terms of the reason for my putting it to you.
Would you please advise the Court, without reservation if you can,
whether or not restrictions or ceilings are placed upon non-\Vhites be
cause they are not members of the White group?
Mr. KROGH:Yes, Sir, there are restrictions placed on them because
they are not regarded as members of the White group.
Mr. GROSS:Now, Sir, would you tell the Court whether in your analysis
of the economics of the Territory, I am referring now to the southem WITNESSES AND EXPERTS 177
sector, whether non-\Vhite labour is essential to the viability of the
economy?
M:r.KROGH:Sir, I must ask exactly what is meant by viability, Sir.
I do not think we understand each other on the use of the term.
The PRESIDENT:Is it essential for the functioning of the economy,
I suppose?
.Mr. GRoss: I would be glad to rephrase the question. I was trying
vainly to use a phrase that I erroneously attributed to the economics
profession.
Is the use of non-White labour necessary toenable the economy in the
southern scctor to survive?
Mr. KROGH:Definitely not to survive, Sir, but to operate at the lcvel
at which it is operating at the moment. lt is, in fact, an economic part
of it. That is my reply, Sir.
î\Ir. GROSS: In other words, Sir, your qualification, if I understood you
correctly, was that it could not survive as a modern economy? Is that a
correct interpretation?
î\:Ir. KROGH:I think it can survive as a modern economy without any
non-White labour, Sir. I use the term "survive" to mean what that term
means literally.
Mr. GRoss: Now, would you be preparcd to say that the economy
would be able to thrive without non-White labour or do you accept that
as a fair description of a condition of the cconomy?
Mr. KROGH:Sir, I think that the cconomy operates at a higher lcvel
because of the use of the non-White labour compared with the situation
that would obtain if non-White labour had not been used. And I also
think that it is in the interest of both Parties economically speaking ...
The PRESIDENT:That is not the question you were asked.
Mr. GRoss: May I rephrase it, Sir?
The PRESIDENT:Certainly.
).frGROSS:Would you accept the thriving of an economy as a descrip
tion of its quality? \Vould you prefer to use another word to describe its
operation at a satisfactory level?
î\fr. KROGH: It depends what you have in mind, Sir. A satisfactory
level is a completely relative term.
Mr. GRoss: I would like to ask you, Sir, in order to avoid a seeming
debate or argument between us, which I am sure would be out of place,
whether or not therefore, as an economist, you would agree or disagree
with the testimony of Dr. Bruwer in the verbatim record to which I have
referred, on 6 July, X, page 303, in which Dr. Bruwer agreed that he
could not, as a member of the Odendaal Commission foresee, "the
practical possibility of the White economy surviving and/or thriving
without the use of non-White labour". Do you, as an economist, wish to
take issue with Dr. Bruwer, as a member of the Odendaal Commission or
otherwise?
illr. KROGH:I know Dr. Bruwer personally, Sir, and I am sure that
he spoke there as a non-economist, also using words that if I explained
to him exactly what those terms mcant to an economist, I am inclined
to think that he would agree-but he has his own opinion on this of
course-that that statement is not correct, Sir.
i\frGROSS:What statement is that, Sir?
l\IrKROGH:The last statement you read tome, Sir.
Ilfr. GROSS:Is not correct, Sir?178 SOUTHWESTAFRICA
Mr. KROGH:Yes, Sir.
Mr. GROSS:The record will have to speak for itself. Now, Sir, in the
testimony relating to this same matter, in the same verbatim record, on
page 304, Dr. Bruwer was asked questions with respect to the time
span envisaged, if any, with respect to the ultimate objective, as he
described it, when the White economy could operate without non-White
labour at any acceptable level. The question was as follows-I am simply
identifying the problem so that you can focus on it as I read now the
exchange-page 304 of the same verbatim record which I ha,·e just
cited:
"The Odendaal Commission based its recommendations, if I under
stand you correctly, on the assumption that at some time in the
future, the White economy would opera te without non-White labour.
Is this a correct version of your testimony?
Mr. BRUWER:That is a correct interpretation.
Mr. GROSS:And what time span did this conclusion cover?
Mr. BRUWER:Mr. President, the Commission certainly did not
consider a span of time.
Mr. GROSS:Is this an important factor in the life of an individual
livingtoday?
Mr. BRUWER:It may well be, M.r. President.
Mr. GROSS:Could such a span extend, let us say, for 300 years
possibly?
Mr. BRUWER:That is also possible, Mr. President."
I should like to ask you as an economist, Sir, whether or not the
operation of the White economy without non-White labour is, so far as
you are aware, a policy or objective of the Government?
Mr. KROGH:Sir, I am aware that politicians have in fact made that
statement.
Mr. GRoss: Did you say politicians, Sir?
Mr. KROGH:Yes, Sir.
Mr. GROSS:I did not understand: I am sorry.
Now, would you answer the question in your own terms, Sir: do you
know whether or not this is an objective of the Government?
Mr. KROGH:Sir, I think it is the objective of the Government to create
as man y economic opportunities in the areas now set aside, which will
in fact be expanded as and when required, outside the White sector,
with the particular purpose that the members of the different population
groups need not corne into direct persona! contact in view of the need
of thcir economic interdepcndence. Whether they envisage a White
economy, in the sense that there would not be a single member of the
non-\Vhite population group, either on business, on vacation, to acquire
skills,o attend institutions of learning or at all, I cannot say. I do not
exactly know what they have in mind ultimately.
But I know that it is part of the policy, and I have evidence to show,
and I am quite content, that they are trying to spread the modern
economic activities to areas where the different population groups, or the
members of these different population groups, can live and work, be born
and die, without necessarily having to corne into contact with the mem
bers ofother population groups.
Mr. GROSS:Dr. Krogh, does the policy of separate development, about
which you are testifying, as a witness and expert, contemplate, or does WITNESSES AND EXPERTS 1
79
it not contemplate, that there will for an indefinite period be non-White
labour available and at work in the economic sector of the Territory?
Mr. KROGH:That I do not know, Sir.
:Mr. GROSS:You do not know the answer to that, Sir. You testified
before the Odendaal Commission with respect to the policy of separate
development, did you, Sir, in any respect?
Mr. KROGH:Sir, I cannot exactly remember the details of the questions
that were putto me at this occasion. It is quite possible . . . ·
!\Ir. GROSS:I do not want to press you for details or tax your recollec
tion, that undoubtedly would be unfair. Did you testify before the
Odendaal Commission in respect to the question of separate development
in any of its aspects?
;:\fr.KROGH:Yes, Sir. .
Mr. GROSS: Now would you please indicate to the Court whether, in
your testimony, the subject of the ultimate objective of the programme
was involved?
)lr. KROGH:Sir, the only objective that was in fact discussed, at the
occasion of my appearing before the Odendaal Commission as an econo
mic expert, was the immediate objective of developing the areas that had
thus far not been developed economically to the same extent as those
that I have described to you as the modem sector in the southern part
of the Territory. And, in this connection, we discussed matters-I can
remember now, Sir-with regard to whether one has to approach these
development problems differently from those in the modern White sector
of the economy. As a witness there I told them that I believed that the
problems were basically different, for several reasons, which I need not
go into now.
The PRESIDENT:You need not give the reasons at this stage, Doctor.
Mr. GROSS:May I begin, for the sake of clarity and expedition, to say
that I am referring to the modern sector and I would like to ask you
now, Sir, whether the mining industry, for exnmple-are you familiar
with the employment figures in the mining industry, by the way?
:Mr.KROGH:l\fore or less, Sir.
Mr. GROSS:Perhaps I could save you taxing your own recollection if
I could find them myse!L According ta the Odendaal Commission report,
page 343, the employment in mining in 1962 was as follows: White,
2,003, and non-White, 8,734. Do you have any reason to question those
figures?
Mr. KROGH:No, Sir, but I want to make quite sure that they refer to
South West Africa. Yes, Sir, of course that is right.
Mr. GRoss: I am referring to South West Africa only, Sir. With
respect to the question of the operation of those mines I address this
question to you. Both as a witness and as an economist, or either, what
would be the source of White labour in these mines if non-White labour
were no longer to be employed at a given point?
Mr. KROGH:Sir, I shall gladly answer that question. The most highly
mechanized industry in the whole of the United States, I am told by
United States economists, is the mining industry and I look at the United
States because this indicates to one what technkal means of producing
things .. ,
i\Ir. GROSS:Sir, may I interrupt a moment to ask a clarifying question?
The PRESIDENT:I think he is answering your question, and I think180 SOUTHWESTAFRICA
you should give him a little longer. I think he is going to refer to auto
mation.
Mr. KROGH:Yes, Sir.
Mr. GRoss: Yes, Sir, but I thought we might telescope it.
The PRESIDENT:You should make your answer as short as you can,
Doctor.
Mr. KROGH:I will try, Sir.
Mr. GROSS:\Vell, in other words, Sir, would your answer be, if the
President permits, that there would not be White labour employed in
the mines under those circumstances: they would be fully automated?
Is that the purport of your intended answer? ·
Mr. KROGH:I was trying to show you, Sir, that I think it could be quite
economical to operate the mines in South West Africa largely without
non-White labour, which is mostly not of a highly skilled and managerial
nature.
The PRESIDE:-i'T Y:ou mean at the present moment that could be done?
Mr. KROGH:Well, at the present moment I could not possibly see why
it would be in anyone's economic interests to do that, but it is a hypo
thetical question. Nobody wants to removc these people instantly.
The PRESIDENT:Technically is it possible today?
Mr. KROGH:Yes, but it would not be economical.
The PRESIDENT:I understand that.
Mr. GROSS: Sir, without wishing to quarre} with you, would you
seriousJy regard it as a hypothetica1 question toenquire as an economist
into the effects in the mining industry if the non-White labour was
eliminated in the light of the Odendaal Commission assumption that
there would be no non-White labour in South West Africa at some future
time? Is this not a question for an economist?
Do you wish to continue with your answer, Sir, on the basis of whether
or not there would be non-White labour employed in the mines under
any foreseeable circumstances, so far as you are aware, if the mines are
to continue to opera te?
Mr. KROGH:The rising price, or wages of these non-\.Yhite labourers
could in fact be such, after a certain stage, that it would justify the
introduction of mechanical means or automation, as has in fact been
done in the United States of America, with the shortage of labour that
has developed over the time there. Under such conditions I can see that
the mines would, if the labour was the same quality at that stage, find
it economical to operate without this labour. I can visualize that, de
pending on the economic conditions that are assumed to apply in due
course. I must know what the economic conditions are otherwise I
cannot answer yes or no to that type of question.
Mr. GROSS:Dr. Krogh, based upon the answer you have just given, as
an expert, would there be \Vhite employees if the mines are to continue
to operate? ·
Mr. KROGH:Within the framework of the policy of separate develop
ment, it is clear tome that there would be members of the White group
employed and working in the mines in the White areas.
Mr. GRoss: The mines, in other words, could not operate unless there
were either White or non-White labour or both: that is clear, Sir? They
could not be 100 percent. automatic, could they, Sir?
Mr. KROGH:I was not suggesting that for a moment ...
Mr. GROSS:I was just asking you a question. WITNESSES AND EXPERTS
I8I
Mr. KROGH:Yes.
Mr. GROSS:Now, under the circumstances we are discussing, and I
refer now specifically to the fact that you are testifying both as a witness
and an expert, with regard to the neccssity for separate development in
the Territory, would it be the case necessa1ily that under those circum
stances, that is the elimination of non-White labour in the mine, no jobs
would be available at a higher level of labour for non-Whites under the
policy of separate development?
Mr. KROGH:Sir, the point is not "necessarily", and I would like to
explain that if you would give me an opportunity to do so.
Mr. GROSS:Sir, I would like you to answer the question, yes, if we
understand each other on what the question is.
Mr. KROGH:Sir, it is quite possible that in due course, in IO, 20 or
30 years' time, the whole mining industry might in fact be operated by
non-White labour from the bottom right up to the top.
I can give you an example where this specialization of the different
population groups is now, in fact, developing in South Africa on an
industrial basis. This means that the whole industry is virtually being
operated, as it wcre, by non-\Vhites in White areas. Soit is quite possible,
Sir, that the Whites that are in fact at the moment employed in the
mining industry may very well in 20, 30 or 40 years' time not prefer
themselves to work in mines in their own White areas. This is quite
possible, it depends upon the economic situation and conditions and
opportunitics at that time, Sir.
The PRESIDENT: It does not require even an economist to corne to that
conclusion, does it Dr. Krogh?
Mr. GROSS:Under the policy of separatc development to which you
are addressing your testimony, Sir, would Whites and non-Whites be
permitted under any circumstances in the sector to work alongside each
other in a situation in which a White takes orders from, or operates under
the supervision of a non-White?
Mr. KROGH:I do not know, Sir.
l\Ir. GROSS:You do not know whether that is a characteristic of the
separate developmcnt or apartheid policy? You do not know, Sir, whether
this is a characteristic ofthe apartheid or separate development policy?
Mr. KROGH:It is not its main charactcristic, that I know. Whether it
is a characteristic or not, I do not know. I know it is not one of its main
characteristics.
Mr. Gnoss: Sir, may I call to your attention the Counter-Memorial,
III, at page 55, in which it is stated as follows-this is following the
listing of the prohibited posts in mining, that is those from which non
Whites are barrcd, the explanation for which is given as follows:
"These factors [that is the tracing of the factors purporting to
explain this restriction] are acccntuated by the fact that the mem
bcrs of the European group have traditionally occupied a position
of guardianship in respect of the indigenous groups, and that in the
economic field the relationship between Europeans and Natives has
generally been limited to that of employers and employees. In this
factual situation, most Europeans would refuse to serve in positions
whcre Natives might be placed in authority over them. Although
very few, if any, Natives in the Territory would at present be able
to hold any of the posts mentioned in the aforegoing paragraph,
Respondent was nevertheless obliged to take cognisance of the SOUTH WEST AFRICA
factual situation, and, for the considerations aforestated, to adopt
measures which would prevent Natives employed in European
owned mining enterprises from being appointed to technical and
responsible posts in which they would exercise authority over
European co-employees."
I call your attention specifically and particularly to the last sentence,
that Respondent was forced for the reasons mentioned-this was the
explanation supplied, "to adopt measures which would prevent Natives
employed in European-owned mining enterprises from being appointed
to technical and responsible posts in which they would exercise authority
over European co-employees". Now, Sir, would you please state whether
this policy is or is not a factor, an aspect of the policy of apartheid or
separate development.
Mr. KROGH: It is, Sir.
Mr. GROSS:Therefore, would it be correct to conclude that in the
development, the evolution or transition from the present situation to
one in which supervisory non-White employees would be placed over
White employees, that this would require an alteration in one of the
fondamental premises and tenets of the policy of apartheid? Is this not
correct, Sir?
Mr. KROGH:Sir, I do not think that is correct, for the very simple
reason that most of the Whites, that work in mines outside South Afnca
and South West Africa, Sir, and they are members of White groups,
apparently do not object at this stage against working under, let us say
a member of a non-White group. I can quite understand that, Sir, but I
cannot say as an economist whether in IO, 20, 30 or 40 years' time, the
members of the White group would be quite happy to work under a
non-White manager. I can also say, Sir, that in mines now, as the policy
stands at the moment, where mines are in fact in non-\Vhite areas, Ican
very well understand that there you could possibly find members of the
\Vhite group working under, being employed ifthey so wish, by members
of the non-White group. If this will be changed in due course, I do not
know; but Irespect, Sir, the wishes of the members of different groups.
If they do not in fact want to employ members of another group or do
not want their members to work under members of another group, I can
very well appreciate that if you forced them to do this, you would be
inviting social strife, Sir.
Mr. GRoss: Social what, Sir?
Mr. KROGH:Social strife.
Mr. GROSS:Now, Sir, just as a final question in this line and I will
endeavour, Mr. President, to bring this to a conclusion rapidly, the
honourable President addressed a question to you in the verbatim of
23 September 1965 at page n9, supra, à propos, I may say, for the
clarification of your responsc, of the question of limitations imposed on
employment. I take the liberty of quoting:
"The PRESIDENT:I see. \Vhat is the purpose then of a government
ordinance if the result would be the same whether there was or was
nota government ordinance?"
And you responded in the same verbatim as follows:
'The purpose in this particular setting would be to indicate very
clearly to the people who have aspirations for these particular jobs
that are being created in a particular area by a particular economy, ..
WITNESSES AND EXPERTS
not to aspire for these particular jobs, because this would frustrate
them. In fact, it would be like a signpost indicating before you enter
the street that this is a cul-de-sac, instead of arriving at the end and
then discovering that you have not been warned or clearly indicated
that there are other ways of arriving at your particular destination."
Now, I should like to ask you, Sir, in the tight particularlyof the ques
tions and answers which have just becn placed into the record, whether
it would be fair to characterize your response to the question addressed
to you by the honourable President as indicating a permanent exclusion
of non-Whites from equal participation with Whites in the modern
sector of the economy?
Mr. KROGH:Sir, to the extent that the members of a particular White
group do not want members of another \Vhite group to compete with
them or, in fact, the members of the White population group being
economically more resourceful or skilled, take jobs of the economically
weaker-1 can see that there can be social strife and reaction and I must
appreciate this as an economist.
Secondly, I can also appreciate as an economist that members of
different groups who have, in fact, equal skill but there is, let us assume,
only one job and this job is in an area that is clearly demarcated as an
area in which members of a particular group enjoy preference or can in
fact lay down preferences-that although these different individuals may
have the same qualification, I can very well understand and do respect,
Sir, the wishes of a group excluding the member of another group or
discriminating against him, unless of course, Sir, there is no other way of
giving or creating or providing employment opportunities for the member
who is excluded in this way. If he were excluded without such an alter
native I can imagine a responsible Government, must weigh up all the
consequences of such a particular set of circumstances, Sir.
Mr. GRoss: When you referred to one group and another group in the
reply you have just given, for the sake of complete precision do you
mean Whites and non-Whites in the modern sector of the economy?
Mr. KROGH:Or the different non-White groups, Sir. I can very well
imagine this too, Sir.
Mr. GROSS:Does one non-White group impose restrictions upon the
freedoms or advancement of other non-vVhite groups in the modern
economy?
Mr. KROGH:No, Sir. Because the modern economy is not ...
Mr. GROSS:Therefore, in the modern economy your question would
relate would it by the use of your terms "group" and "another group"
Whites vis-à-vis non-Whites, would it not, Sir?
Mr. KROGH:\Vith respect to the modern economy.
Mr. GRoss: To the imposition of ceilings or limitations upon freedom
of movement, referring to that.
Mr. KROGH:Yes, Sir.
Mr. GROSS:Now, you testified, Sir, with respect to the relationship of
the groups, White and non-White, in the foUowing terms. In the record
of 23 September, at page ro7, supra, you testified, Sir, in response to a
question-"most of the members of one group would view the members
of another groupas foreigners very often", This describes, inter alia,the
attitude between the Whites and the non-\\'hites, does it, Sir?
Mr. KROGH:On the contnny, Sir, I think there is some misunder
standing here, if you would just permit me very briefly, I will not cover SOUTH WEST AFRICA
this matter very fully, but it is obviously a very important matter and I
would want to clear this up once and for all, Sir. If you will permit me,
Sir, to give you just very briefly the views of one of the most distinguished
economists of this century on the problem of economic development, Sir
Arthur Lewis, who has been economic adviser to President Nkrumah of
Ghana, and furthermore, also I believe to part of Nigeria. He is at
present Professor in Princeton University, after he hacl held similar posts
in Great Britain. Now, he has very recently, Sir, in the Encounter of
2 August 1965, page 5, made this point, and in being a distinguished
economist, he puts it very much better. He makes the point, in fact, Sir,
with reference not to White and non-White groups, but with reference
to West Africain an article with the title Beyond African Dictatorship
The Crisis of the One Party State. I admit that this is largely with regard
to political administration and development in the West African territo
ries, but it also States the problem with reference to economic develop
ment. It may be of direct interest here and I think it explains the view
point I am trying to convey.
Professor Lewis states here on page 5:
"Each country [and he refers to West Africa, Sir] contains several
tribes living at different economic levels [and I am not, in the case
of South West Africa referring to tribes, Sir, but groups of people
composed of different tribes. SirArthur Lewis refers to West Africa].
And tribal consciousness and economic difference combine to produce
mutual antagonisms which menace the unity of the State. The result
of these mutual antagonisms is that every political party has a
geographical base. Sorne tribes support it; others are hostile to it,
or, at best, indifferent. [He goes on to say, Sir:] A single party
supported equally by ail the tribes is an impossible dream. [I am
skipping some of the rest and continue.] The tribe is the basis of its
organization. So, even in Ibadan, the capital, where live men from
every tribe, the party is organized not by street or by district, but
by tribe-family, village and tribe are West Africa's primary social
units."
I stop hcrc, Sir, and, if you would allow me, just very briefly on page 8
in this particular article, it is said ...
Mr. GRoss: May I interject, Sir? I fear that the question may have
been lost sight of.
The PRESIDENT: \Vell, I think we had better finish the quotation. Then
we can put the question again. You had better finish this quotation now
you have started upon it, witness.
Mr. KROGH: Sir, very briefly (I would like to quote more from this
articlebut Iwill end with the following), Sir Arthur Lewis contrasts the
situation, for instance, with Britain and France, he says:
"Britain and France are class societies and their institutions and
conventions are designed to cope with this fact. West Africa is not
a class society; its problem is that it is a plural society. What is good
for a class society isbad for a plural society. Hence, to create good
political institutions iWest Africa one has to think their problems
through from the foundations up."
I will leave it at that, Sir, because this to me explains ...
The PRESIDENT: Do you remember the question which was putto you?
.M.r.KROGH: Yes, Sir, the question which was putto me, if I remember WITNESSES AND EXPERTS
correctly, was whether I refer, when I say for the sake of social peace ...
Mr. GROSS:No, Sir. Forgive me, Sir.
The PRESIDENT:Put the question again.
Mr. GROSS:I am sure, Sir, this is a good question you have in mind
but the one I asked was: In your testimony you said that most of the
members of one group would view the membcrs of another group as
foreigners very often. I was asking you, Sir, whether you were referring
to the attitude between White and non-White groups in the context of
that sentence.
Mr. KROGH: I replied to that "not necessarily between White and non
White groups".
Mr. GROSS:Does that mean not necessarily, Sir-just for the sake of
clarity and not by way of argument-you mean that it applies to the
relationship between Whites and non-Whites, and that it also applies to
the relationship between certain non-White groups? Is that what you
mean, Sir?
Mr. KROGH:That is what I would like to say, Sir.
Mr. GROSS:May I, then, ask, Sir, with respect to a similar statement
which you made in the verbatim at page 139, supra, where in response
to a similar question you said "herc, you have different groups, people
viewing each other as members of groups with suspicion", in this sentence
were you referring to the relationship between White and non-White
groups, among others?
Mr. KROGH:Among others, yes, Sir.
l'llr. GRoss: Now, Sir, when you responded to the question just a
moment ago you referred, in respect of other territories, if Iunderstood
you correctly, you used the expression, "mutual antagonism". Did I
understand you to use that phrase?
Mr. KROGH:Sir, I think that is the phrase that was used by ...
Mr. GRoss: That you were citing?
Mr. KROGH:Yes.
l\frGRoss: \Vere citing that ...
Mr. KROGH:Yes, I was citing that out of the article I had in front of
me, Sir.
l\fr.GROSS: \Vere you citing that with approval, Sir-with con
currence?
Mr. KROGH:With approval. Tome as an economist, Sir, the matter is
clear if you look at South West Africa, at its history before and after the
White man arrived on the scene, as I described in my particular testi
mony. There are these various groups that, in fact, regard each other
with mutual suspicion, Sir. Morcovcr, if you look at various commissions
that have, in fact, reported on South West Africa, long before the Oden
daal Commission, Sir-as a matter of fact I can think of a particular
commission of the 1930s which was headcd by Dr. Holloway, the very
well-known and distinguished economist-it is dcar to me that mutual
antagonisms do, in fact, exist, among these groups, Sir.
The PRESIDENT:The question was whether you agree with the state
ment of Sir Arthur Lewis.
Mr. KROGH:Yes, I agree with this statement.
The PRESIDENT:Well, if you agree with it, that was the answer to
Mr. Gross' question.
Mr. GRoss: Would you then characterize the relationship between the
\Vhites and the non-Whites in South West Africa, taking these two sets186 SOUTHWESTAFRICA
of groupings alone for the moment for the purpose of my question, as
characterized not only by "suspicion" (the word you used) and as
"foreigners" (another word you used) and also fairly characterized by
the description of "mutual antagonism", Sir?
Mr. KROGH:Yes, Sir, I think it has the same ...
Mr. GRoss: Now, Sir, with respect to the frequent references you have
made to the importance of the maintenance of social peace-I think you
have used that phrase several times, have you not, Sir, as an important
objective of the system in South West Africa?
Mr. KROGH:I have said that that is a factor you have to take into
considcration in formulating or advising on policies as an economist, Sir.
Mr. GRoss: And you have referred, have you not, Sir, in several con
texts with regard to the question of restrictions imposed by Whites upon
non-Whites, that such restrictions are to some extent necessary or
required in order to ensure social peace?
Mr. KROGH:Yes, Sir.
Mr. GRoss: You have testified to that effect, have you not?
M.r.KROGH:I have, Sir.
Mr. GROSS:I have referred, for the convenience of the Court, to the
verbatim at pages 105 and 106, supra.
You are familiar, are you Sir, with the statement quoted by the Res
pondent in the Rejoinder, V, pages :25:2-:253w, hich I shall read to you
the statement by Prime Minister Verwoerd in which he is quoted as
saying:
"The only possible way out ... is ...that both, i.e., the White
man and the Bantu, accept a development separate from each
other. The present Govemment believes in the domination (baass
kap) of the White man in his own area, but it equally believes in the
domination (baasskap) of the Bantu in his area."
Are you familiar with the statement, Sir? Have you read the pleadings,
including this section of the Rejoinder?
l\lr. KROGH:I have never corne across that statement but I can see
that is quite in line with the policy envisaged and described as that of
separate development, Sir.
Mr. GRoss: Now, Sir, would you agree with the description of Dr.
Verwoerd in respect of the economic modem economy of the Territory
-the White economy, as it is called in the Odendaal Commission
report-as an area in which White domination is exercised, in Prime
Minister Verwoerd's words?
Mr. KROGH:I should sav the Whites dominate the economy-yes, Sir.
Mr. GRoss: You would'say that the White man dominates and the
non-White is dominatcd?
Mr. KROGH:No, I will not say "is dominated". I will say the dominat
ing feature ofthe modern economy is that the White man, in fact, under
takes, runs, organizcs, finances thisparticular economy. I do not imply
by that ...
Mr. GROSS:Now, Sir, is "domination of the White man in his area"
-to use the phrase used by Prime Minister Verwoerd-does that have
any relevance to the imposition of restrictions upon advancement, or the
right to enter into apprenticeship agreements, for instance?
Mr. KROGH:Sir, I do not know what the Prime Minister of South
Africa had in mind when he said that and on what occasion be said it but, WITNESSES ANDEXPERTS 187
as an economist, the word "dominate" there means to me that it is the
dominating feature of that economy, Sir.
The PRESIDENT: Ithas an objective meaning?
Mr. KROGH:Yes, Sir. That is the interpretation I put on that term,
Sir. I do not know what he meant by the use of that term, Sir.
Mr. GRoss: Now, Sir, the imposition by the dominant group of restric
tions upon advancement, or pro.motion, or movement of the non
dominant group-would that fairly characterize the situation prevailing
in the economic sector of the Territory?
Mr. KROGH:Yes, Sir.
Mr. GRoss: Pardon me, Sir?
Mr. KROGH:Yes, Sir.
Mr. GROSS:I did not hear you. I am sorry, Sir.
Mr. KROGH:I have testifi.ed to that effect, Sir.
Mr. GROSS:Now, with regard to the maintenance of social peace, was
it the intent or purport of your references to the importance of maintain
ing social peace that the White dominant group should be satisfied, as
sured, ofthe protection of its own interests, as a price of social peace
was that the intention?
Mr. KROGH:Sir, I can assure you that, as far as social peace is con
cerned,an economist has to take that into consideration. But the problem
in South West Africa is that the Whites may very well look too well after
themselves individually-too well that is at the expense of other groups
and that the main consideration for the imposition of measures of
protection-for the sake of social peace, Sir, opcrates not in the first direc
tion indicated, but the second is the most important one in the case of
South West Africa. It is the factor of production land that I am sure, for
instance, must be protected against the economically stronger and more
resourceful group in the Territory, Sir.
Mr. GRoss: Sir, when you referred in your testimony in the verbatim
at page I06, supra, to what you described as the "marginal effect" from
an economic viewpoint of the restrictions imposed upon freedom of
movement or advancement, you said Sir, that "restrictive measures may
very well be required in the interest of social peace".
Mr. KROGH:Yes, Sir.
Mr. GRoss: Now, Sir, my question to you is whether or not the phrase
"social peace", to which you refer there, means the economic or other
interest of the White group upon which they insist and for which the
restrictions are imposed-is that what you meant by "social peace"?
Mr. KROGH:In that context, yes; Sir.
Mr. GRoss: In this context?
Mr. KROGH:Yes, Sir.
Mr. GROSS:But would it not follow inevitably, Sir, that, under those
circumstances, social peace would have to be bought, in many cases, at
the price of social justice? Would you agree with that, Sir?
Mr. KROGH: It is a social cost, Sir, under those particu,lar circum
stances.
Mr. GROSS:And is the social cost not heavily visited upon individuals
who may have an innate quality or capacity to improve their lot and
their life?
Mr. KROGH:Sir, I think I have given you that reply in the very para
graph that you have quoted from my testimony. I think as an economist,
that itis of marginal signifi.cance, Sir.188 SOUTHWESTAFRICA
Mr. GRoss: It îs ofwhat, Sir?
Mr. KROGH:Marginal significance-this means it is not of fondamental
significance.
Mr. GRoss: To the individual who is affected by it?
The PRESIDENT:This has been gone into many times, Mr. Gross.
Mr. GROSS: l\frPresident, with all respect, the Applicants consider it
of the greatest importance to have a frank, unequivocal answer to this
question. If it has been made I will apologize, and would then ask that
it be repeated; if it has not been made I urge it, if I may and with your
permission, upon the witness.
The PRESIDENT:By all means.
Mr. GRoss: Would you please answer the question, Sir?
Mr. KROGH:Yes, Sir, I have already answered the question before,
and I will repeat it to you now again: that looking at a particular individ
ual I can very well understand that this would in fact mean an economic
sacrifice forthis particular individual. Yes, Sir, but we are not dealing with
a Robinson Crusoe economy where there is one person only; we are
dealing with a social economy that is in fact specially complicated in view
of the plural nature of the society, which I mentioned right in the be
ginning of my evidence as one of the structural problems of economic
development in South West Africa that any government or responsible
authority will have totake into consideration in developing the country
economically. I would go further, and I would say that even for the
particular group of which he is a member-I am taking this now from
the individual to the group to the inhabitants of the Territory as a
whole-1 can also see that it might be of some significance to the welfare
of that particular group. But, I can assure you that from the viewpoint
of the economic development of South West Africa seen as a whole it is
of marginal significance. And, I can very well appreciate as an economist
who has also studied the principles of welfare economics and of economic
inter-relationships that any responsible authority will very well have to
decide many issues against the background of the total social situation,
namely how it could very well compensate for the economic loss of an
individual or of the members of a particular group by making concessions
or creating other economic opportunities where such persons are in fact
excluded by the wishes of another group. My answer refers there to the
economy of South West Africain particular, and you asked me to what
extent does it refer to the îndividual? I can very well understand that
there are certain individuals who may, in fact, be affected detrimentally,
economically speaking by such restrictions as you are referring to in the
mining industry, and the supply of public transportation, and the other
examples that you mentioned, but I can assure you as an economist that
this is of marginal significance considering the economy as a whole.
Mr. GROSS:With respect to the effect of the restrictions imposed by
the dominant White group, is it of any economic significance or relevance
that the White dominant group has the responsibility to promote to the
utmost the welfare of the inhabitants of the Territory without their
participation in his decisions? .
Mr. KROGH:I have always interpreted that particular objective to
apply to the inhabitants of the Territory as a whole.
Mr. GROSS:So that it is intended to be understood by your answer that
the White dominant group, as the decision-making group, then must
make constant determinations as to the extent to which individuals will WlTNESSES AND EXPERTS r89
suffer in the interest of their interpretatîoof the economy as a whole
is this a cmTect statement?
Mr. KRoGH: No, I have always interpreted that statement to refer to
the obligations of the Mandatory, and in this particular case it would be
an outside party, being the Government of the Republic of South Africa;
and I have also always interpreted the particular provisions you refer to
as relating to the inhabitants of South West Africa as in fact the popula
tion was composed in 1920, in which case there was a White population
group. I dcduce from this that it is the obligation of the responsible
authority for the administration and development of the Territory to
take the total social situation of the Territory into consideration, and I
would say that any economist could very well see that the policy pursued
with regard to the development of the economy of South West Africa
was one in which members of the White population group were relied
upon first to discover, initiate and introduce modern forms of economic
activity in South West Africa.
Mr. GRoss; Would it be a fair summation of your testimony to say
that the White dominant group as trustee not only determines and
allocates the share of the cake, to use your earlier expression, but also
the degree and the condition of individual sacrifice or hardship which is
to be visited upon individuals in the Territory?
Mr. KROGH;They do this as ordinary economic units operating in the
Territory. Yes, they do this by employing certain people and not em
ploying other people; they do this by purchasing from a certain person
and not from another; to that extent they do in fact, bccause the economy
that we arc referring to is one which they have created, which they run
and in fact maintain and develop.
Mr. GROSS:Mr. President, there is one point which I would have raised
at the outset but ·for the fact that the witness was in mid-flight on a
question Ieft over from the previous session. It is, if I may say so, Sir, a
clean-up type of question of a specific nature, and I should like to con
clude with it, but it is out of context of the matters we have just been
discussing.
The PRESIDENT:By all means; if you feel it is necessary to put a
question, you put it, Mr. Gross.
Mr. GROSS:I wanted ta explain, Sir, that it is out of context.
The PRESIDE!'<T T:hat's ail right-the Court will be able to follow it.
Mr. GROSS:Thank you, Sir. The question is this: in your testimony on
24 September, at page 128, supra, you made references to the industrial
census and the classifications therein, which you read out, of skilled
and semi-skilled non-White workers, and on that page of the same
verbatim record you referred to "Occupational Distribution of Natives
in South West Africa, 1960 census". The Applicants have sought over
the weekend to obtain a copy of that document, and have been advised
that it does not existas a document. Would you please, Sir, clarify this
matter, and also explain what the actual source is of the figures you cite?
.Mr. KROGH:I will gladly do so, because I have something persona!
to do with this. I spent most of the weekend in Amsterdam, having been
a student there, and I was not readily available. \Vhen I returned they
asked me about these figures. The figures are not in fact published, as are
many ccnsus figures. I extracted these figures from the Bureau of Census
Statistics in Pretoria as notes for my own research purposes, and I will
gladly supply these notes to Mr. Gross if he so requires. Unfortunately, SOUTHWEST AFRICA
I might have given the impression in my evidence that they were taken
from a published document. What I was referring to is that these figures
were taken from the 1960 census data, which research workers very often
try to get even before they are published, or which are often not pub
lished at all.
The PRESIDENT:Yes, Mr. Gross?
?.fr. GROSS:Mr. President, I would respectfully request that the source
material be made available, reserving the right to comment thereon in
due course, but I should likc, if I may, in view of the fact that it has not
been possible to prepare for cross-examination on the basis of these
figures,to ask the witness, Sir, whether the basis of the classifications in
your sources break down the positions as between sldlled and semi
skilled-my first point-would you answer that?
Mr. KROGH:I can give you the details for every class and type of
occupation that is in fact included under the category of skilled and
semi-skilled persons. In other words, by way of definition it gives you a
breakdown of the various and different workers that fall under Category
A, which refers to workers other than labourers, the last item of which
reads "Other skilled or semi-skilled worker"-Item 7; Group B refers to
labourers including unspecifi.ed (those are workers that the census
authorities could not without doubt classify either as labourers or semi
skilled or skilled~they were put under "Labourers") ; and these two
together would give you the total number of economically employed
other than farmers or farm managers which, if they are added to that
total, would give you the total economically active Native population in
the Territory.
The PRESIDENT:I sec it is just on 6 o'clock, Mr. Gross, and your
position is that not having had the source document before you, you are
obviously not in a position to cross-examine in relation to the details
which were given, and you desire to have whatever source document the
witness prepared for the purpose of reaching the conclusions expressed
in his evidence?
Mr. GRoss: Yes, Sir, I would appreciate the document, but I would
also appreciate a direct response to my question, which was whether or
not the figures show the distinction between skilled and semi-skilled; I
understand that the answer is that they do not break down between
skilled and semi-skilled-is that correct?
Mr. KROGH:No, they don't, Sir-that is correct, but I can give you
some details to show which jobs are skilled ...
Mr. GRoss: vVhich jobs are skilled and which are semi-skilled?
Mr. KROGH: Yes, from the particular description of the various
breakdowns ...
Mr. GRoss: The second question, just to complete the record at this
point, and then I am through, Sir, if I may: does it likewise show break
down between Coloured and Native?
Mr. KROGH:I have only the data for that year for the Native popula
tion.
Mr. GRoss: So when you used the phrase "non-White" in your testi
mony, you were referring to "Native" alone-is that correct?
Mr. KROGH:Yes, but I can assure you that in the case of the Coloured
population there would even be more skilled and semi-skilled than there
are in the distribution I have given you for the Native population.
Mr. GROSS:Mr. President, I appreciate this patience that has been WITNESSES ANDEXPERTS 191
shown to this lengthy cross-examination; I have no further questions of
this witness, Sir.
The PRESIDENT:You do not desire to go into any detail on any source
material at all?
Mr. GROSS:Weil, Sir, I would like to reserve the right to comment
upon that, but I understood from the witness, perhaps erroneously, that
it would take some time~perhaps I did misunderstand, Mr. President;
could I enquire through you, Sir, when the document will be made
available?
The PRESIDENT:Doctor, could you say when the document which
contains your source material from which you derived these figures is
able to be made available to Mr. Gross?
l\frKROGH:Sir, I can have the typist make a copy this evening of my
notes that l have here, and I can try to have it delivered at Mr. Gross's
convenience before, say, 9 o'clock to night?
The PRESIDENT:I think that should be convenient, because I think
that one should aim at concluding the cross-exarnination of this witness
ifit is possible, Mr. Gross.
l\frGRoss: I have concluded, subject only to this.
The PRESIDENT:Subject to that then; the document containing the
source material will be delivered this evening to you, and if you desire
to continue any cross-examination tomorrow, you will be prepared to do
so at 10 o'clock, I assume?
Mr. GROSS:Subject, Mr. President, to a self-imposed, self-denying
ordinance.
The PRESIDENT:Well, I think we all have self-denying ordinances,
Mr. Gross.
[Public hearing of 28 September I965}"
The PRESIDENT:The hearing is resumed. Mr. Gross, do you desire to
ask any further questions of the witness?
Mr. GRoss: By your leave, Mr. President.
The PRESIDENT:Certainly.
Mr. GROSS: At the close of the session yesterday, Mr. President,
Respondent was good enough to agree to supply the source of material
from which Dr. Krogh quoted, and has been good enough to do so. I
have it before me in the forrn of a two-page document which is headed
"South West Africa: Occupational Distribution of Natives 1960", and
which, I presume, Sir, will be added to the documentation.
The PRESIDENT:Not necessarily at all, Mr. Gross: you are cross
examining, you know, and the question of whether it is put in evidence
is a matter for the Respondent. You can ask the witness anything you
wish about the document itself, but it does not become part of the
documentation.
Mr. GRoss: Yes, Sir. I wish to clarify the point because I note that in
the pleadings, the Rejoinder, VI, page 176, there is a listing, with nine
sub-headings, which contains the same numbers, although somewhat
differently arranged, as in these notes; and the citation in the Rejoinder,
at page 176, is to "Departmental information".
The PRESIDENT:Page 176 of the Rejoinder?
Mr. GROSS:Page 176 of the Rejoinder, Sir. I should like to ask the
witness whether he is familiar with the list on that page of the Rejoinder.192 SOUTHWESTAFRICA
It is introduced by the following paragraph:
"In further elucidation thereof, the following list has been com
piled of occupations held by Natives in the Territory not employed
as labourers or engaged in farming activities:".
And then follows a list of nine categories. Are you familiar, Sir, with that
listing?
Mr. KROGH:Yes, I think I have seen that listing, Sir.
Mr. GROSS:The total number of employees, of persans employed in the
listed occupations, is 21,230. That, Dr. Krogh, is the same number to
which you referred in your testimony in the verbatim record on 24 Sep
tember, at page 126, supra, in which you stated, among other things:
"In this census of 1960 indicating occupational distribution of
Natives engaged in economic activity in the southern sector there
was, in fact, a total classified as skilled and semi-skilled workers-a
total of 21,230."
Do the figures in the material which you have supplied to the Appli
cants, the title of which I have read into the record, apply, Sir, to em
ployees in these occupations in the Territory as a whole or in the southern
sector?
Mr. KROGH:Sir, Ithink they refer to employees in the southern sector.
I could check that to be absolutely certain, but I am nearly sure that
they refer to workers in the southern sector.
Mr. GRoss: The figure of 21,230, in the Rejoinder, VI, page 176,
follows an introductory paragraph in which, as I have said, reference is
to occupations held by Natives in the Territory. Do you, Sir, know of
your own knowledge whether this is an error and means to refer only to
the southern sector; or whether, on the contrary, your reference in your
testimony to the southern sector only was an e1Tor,and that the figures
actually refer to the Territory as a whole? Can you straighten the matter
out for the Court?
Mr. KROGH:Sir, it is clear tome that there is an inconsistency there,
namely my reference to the southern sector, and this other document
referring to the Territory as a whole. But since we are concerned here
with the total number of skilled and semi-skilled, I know that if it should
also caver the area falling outside the Police Zone, then it would not
affect the number of semi-skilled and skilled to any considerable extent.
As a matter of fact, in my evidence you will see (1 have not got the
document in front of me, unfortunately), but I think that the number of
labourers was something like ro5,ooo, on the one hand ...
Mr. GRoss: May I read it for the witness, Mr. President?
The PRESIDENT:Yes, I think the witness also should have a copy of
his document.
Mr. MULLER:I have a copy here, ifI may hand it to the witness. lt is
the same as Mr. Gross has.
The PRESIDENT:Thank you, Mr. Muller. We mayas well get the evi
dence accurately.
Mr. KROGH: Yes, Sir, I rounded off those figures when I tried to
arrive at a ratio of the skilled and semi-skilled on the one hand, and the
total, other than agriculturalists and other than labourers, on the other,
and I am quite convinced, knowing the Territory and knowing these
figures-! have worked with these figures in calculating the national
income for the Territory-that it would not affect the picture materially. WITNESSES ANDEXPERTS 193
I want to tell you, Sir, that the number involvcd, even if it is r,ooo or
2,000, would not affect so large a number to any considerable extent.
But I am not quite sure now whether the figures rcfer to the southern
sector only_.or to the Territory as a whole. I would like to check that. But
I can assure you that for all practical purposes it would be correct to say
that they refer, by and large, to the employment conditions in the
southern sector. ln fact I know that all the migrant workers, who corne
from the northern parts of the Territory, the 28,000 mentioned earlier on
in the evidencc, are included in these figures because they work in the
southern sector. They would be classified as "labourers" under the last
category.
I am just trying to make this point to indicate that it would not, to
my mind, affect the picture to any major extent, Sir.
Mr. GROSS:Well, Sir, just to refer for a moment to the figure which
you rounded out to 105,000. That figure is a sub-total, in the sheets that
you have supplied to the Applicants, which includes the categories of
labourers. That is correct, is it not, Sir?
Mr. KROGH:That is correct, Sir. It refers to Classification B.
Mr. GROSS:Yes, Sir. Now, I was referring to the figure of 21,230, of
skilled and semi-skilled, that is, those other than labourers, and do I
understand your answer to my question with respect to that figure,
21,230, to be that this figure refers to persons employed in the southern
sector or in the Territory as a whole?
Mr. KROGH:Sir, I am not quite sure now whether the y refer to the
southern sector alone or to the Territory as a whole, but I can give you
the assurance-it is my impression-that the number involved in the
21,230, who would be engaged as skilled and semi-skilled in the areas
falling outside the Police Zone, would not affect that total figure mate
rially.
Mr. GRoss: Do you mean, Sir, to shorten the matter for purposes of
elucidation, that the figures of employment in the territory outside the
southern sector, in the skilled or semi-skillcd categories, is a negligible
figure? Is that what you mean?
Mr. KROGH: Itis negligibly small compared with the total, Sir.
.Mr. GROSS:What ratio, roughly then, would you indicate, please, to
the Court?
Mr. KROGH:I shall have to estimate this roughly, Sir. I think one can
reasonably say that (of the zr,ooo) it would be round about 2,000 .to
3,000, but this is of course not a modern economy, as I explained earher
on.
Mr. GRoss: The 2,000 to 3,000 of this 21,000, approximately, are
employed in these skilled or semi-skilled occupations in the territory
outside the southern sector? Is that what vou have said, Sir?
Mr. KROGH:That is my rough estimate;Sir. .
Mr. GROSS:With respect to those 2,000 to 3,000, approx1mately, do
you have any figures or approximations with respect to how many of
those 2,000 or 3,000 are in skilled and how man y are in semi-skilled work?
Mr. KROGH:Sir, I have not got those figures, no.
Mr. GROSS:Do you have an approximation based on your knowledge
of the economics of the Territory?
Mr. KROGH: Sir, I have to make another rough estima te. May we
break this down?
Sir, I would say that the number will be, say, between 500 to r,ooo SOUTH WEST AFRICA
194
skilled and the rest I would imagine could very well be what is classified
as semi-skilled, Sir.
Mr. GRoss: Now, of the number you have approximated for skilled in
the area of the territory outside the southern sector, could you indicate
to the Court, please, the industries or enterprises in which such skills are
at work?
Mr. KROGH: Well, Sir, to begin with, there is the sphere of public
administration, apart from the private sector, and I am sure there are
agricultural officers, translators,clerks and administrative personnel.
There is also a great number of teachers, Sir, that would be included
under the public service. I can include there people serving in the field
of medical services, Sir. Further there is a number of craftsmen and
operators. I can see them working on the tractors, Sir, making bricks,
building these new townships. There is the furniture factory which I
visited-1 can see them working there, Sir. I am out of the public sector
now and have already moved into the private sector, Sir. There must be
some others that I cannot visualize at the moment, but they are there, Sir.
Mr. GROSS: Thank you. Could you give a rough approximation of the
distribution between the public sector and industrial or agricultural?
Mr. KROGH: I think that about more than half would be in the public
sector, which includes the development works as well, Sir. Yes, more
than half, Sir, say, about two-thirds, or 60 percent.
Mr. GRoss: So that you would say, Sir, that approximately 250 to 300
persons are employed in skills in industry or non-public enterprise in the
northern sector?
Mr. KROGH: Yes, on the basis of my previous estimates; I think they
are reasonably reliable, Sir.
Mr. GROSS: And what, Sir, is the population of the northern sector?
Mr. KROGH: The population of the northern sector, Sir? I cannot give
you the exact figure but I think it is approximately half, or just slightly
more than half, Sir.
Mr. GROSS: About 250,000, approximately?
Mr. KROGH: Approximately, yes, Sir.
Mr. GRoss: Now, with respect to the breakdown in the sheets which
Respondent has made available to the Applicants, there is listed in the
categories making up the total of 21,230 the following item in paragraph
6 (d): Domestic service and laundry-women: number r3,2r9. Do you
regard these categories as skilled or semi-skilled, Sir?
Mr. KROGH: As semi-skilled, Sir.
Mr. GROSS: So that, referring to the southem sector, reducing the
number of 21,230 by approximately 2,000 ta 3,000 representing those
estimated for the northern territory, leaving a total of approximately
19,000, of that number 13,200 are in domestic service and laundry
women, that is correct, Sir, according to these figures?
Mr. KROGH: I will say, yes.
Mr. GROSS: Leaving a total of non-domestic service and non-laundry
women of approximately 6,000 (roughly). is that correct, Sir?
Mr. KROGH: About 7,000, yes, Sir.
Mr. GRoss: Between 6,000 and 7,000. Would you say, Sir, then, ex
cluding domestic service and laundry-women and concentrating on
industry, industrial and mining enterprises, that the total number of
skilled and semi-skilled-according to these figures you have supplied
in the southern sector is approximately 6,000? WITNESSES AND EXPERTS
Mr. KROGH: 6,000 to 7,ooo.
Mr. GROSS: Yes, 6,000 to 7,000.
!lfrKROGH: Yes, Sir.
Mr. GROSS: And of that total of 6,000 to 7,000, would you indicate
again approximately (because these figures do not break them clown)
how many of those 6,000 to 7,000 are engaged in skilled, as distinct from
semi-skillecl occupations in the southern sector?
Mr. KROGH: I would say, Sir, that now that you have excludcd the
main component of those who are regarded as scmi-skillecl, it would not
Ieave many semi-skilled in the remaining figure, Sir.
I will have to make another rough estimate, Sir, of the 7,000, having
excluded the main component of semi-skilled workers, numcrically
speaking. Iwould say about 80 to 90 percent. of those of the remaining
7,ooo could be regarded as skilled, Sir.
Mr. GROSS: Now, Sir, in the same category in which is set forth the
domestic service and laundry-women (the total of which I have read into
the record) there is listed under item (c) caretaker and cleaner, number
576. Do you regard those as skilled employees, Sir?
Mr. KROGH: No, Sir, I would regard them as semi-skilled.
Mr. GROSS: So these are additional semi-skilled to the domestic service,
are they not, Sir?
Mr. KROGH: Yes, Sir, but the number is only 576. We are talking about
percentages, Sir.
Mr. GROSS: Yes, I do not mean to engage in a debate with you, Sir.
I am just trying to establish the figures in the record:
Mr. KROGH: Yes, there are quite a nùmber of listed items that are
semi-skilled, Sir, and I have never given evidence to indicate that these
only referrcd to skilled people, Sir. Icannot very well see how you can
take these items out, or not put them in this category. Where else would
you put them? Under labourers? I do not think they corne under la
bourers, Sir. They are defmitely semi-skilled, Sir.
Mr. GROSS: Would you bear with me, Sir, for another question to
which I invite your answer. In the same categorization there is the
item (e) under the heading Other Persona! Service, 287. Do you regard
that category as skilled or semi-skilled?
Mr. KROGH: Sir, that is a heterogeneous category. I cannot quite
typify this. I can think of all sorts of people supplying persona! services
that can, in fact, be skilled, Sir. The number, by the way, is 287. It is
small and I would say they include some semi-skilled, Sir, but I cannot
say ...
Mr. GROSS: But you cannot break that down, Sir, as I understand it?
Mr. KROGH: 287? No, I cannot break that down.
Mr. GROSS: Yes, Sir. Now, with respect to category 5-Worker in
transport and communication, sub-paragraph (c) Messenger, number
437-would you regard that as a skilled or semi-skilled occupation?
Mr. KROGH: Sir, I would regard that as semi-skiHed, Sir. The number
again, and if you add these ail up, would be small, Sir.
Mr. GROSS: \Vell, Sir, that "small" is a relative term.
Mr. KROGH: Absolutely. I indicated that when I started out, Sir.
Mr. GROSS: Yes, Sir. Now, the messengers, 437, plus the caretakers
and cleaners, 576, plus other persona! service, 287 (I wanted to fix those
figures inyour mind)-now, Sir, with respect to the breakdown of crafts
men and production worker, still in the general area of which the 21,230 SOUTHWEST AFRICA
·figure is composed, that is, paragraph 4, it is headed, Sir, "Craftsmen,
Production Worker"-that is correct, Sir, is it not, that characterization
ofthe document?
Mr. KROGH:That is correct, Sir.
Mr. GRoss: Now, Sir, can the total there-2,040-that is correct, is it
not?
Mr. KROGH:Yes, Sir, according to my notes, Sir.
Mr. GROSS:Now, according to this document, Sir (I am rcferring to
the document-that is a correct reflection of the document which you
have given to the Applicants, Sir) ... 2,040?
Mr. KROGH:That is correct, Sir. This document is based on notes that
I extractcd from the Bureau of Census and Statistics in Pretoria, Sir.
l\lr. GROSS:Yes, Sir. Now, can you explain to the Court what the
phrase "production worker" signifies, as distinguished from "crafts
man"?
Mr. KROGH:Sir, this is a term used in industrial censuses, Sir, to
indicate people who have to acquire skill in order to operate machinery,
Sir. This isnot quite an economic term but it indicates that these people
operate machines-they are also called "machine operators"-workers
that have to acquire skill. You cannot very well let a labourer, as used
here in this sense, Sir, operate a modern piece of machinery. I can give
you an example here-textile and leather workers would be people who
would be tailors, for instance, in the textile case, and in the leather case
they would be boot-makers, and so forth. This obviously implies, to my
mind, people with skills. You can go on---carpenters, joiners, metal
workers (this would include blacksmiths and workers Iike that}. The
carpenters, joiners, etc., I think are quite obviously skilled, and there
are also painters, bricklayers, plasterers, potters and brick workers, Sir.
There are food workers-they would be operating machines in, say, the
fishing industry or in some similar place where machinery is used, Sir.
There are also packers-1 should image that their number is small and
I shall not comment on that-and then, also, there are people working
with stationary engines and other equipment operators. The word I was
looking for is "equipment operators", Sir.
This classification is used,by the way, internationally, as a standard
system to classify the occupational distribution of workers. It is not, in
any way, a purely South African way of classifying people working in
different occupations.
Mr. GROSS:Now, Dr. Krogh, just to clarify your opinion as an expert,
you stated, I believe, the opinion that the figure totals approximately
1,300 composed of messengers, persona! service, caretakers and cleaners?
Mr. KROGH:Yes, Sir.
Mr. GROSS:Did you not use the word "negligible"?
Mr. KROGH: No, Sir, I did not sav that the number of domestic
servants were negligible. I did not say that.
Mr. GROSS:Sir, you have not understood my question properly. I am
not referring to r,300 domestic servants, I refcrred to three specific
categories ...
Mr. KROGH:They do not give you 1,300 ifyou add them, Sir. Never.
Mr. GROSS:Will you bear with me, Sir? I tried to fix in your mind
before, just to help to save time when I came back to it, messengers
437, other persona! service 287 ...
Mr. KROGH:No, Sir. I did not say that other personal service ... Wl'îNESSES AND EXPERTS 197
Mr. GROSS:I have not finished my question. Other persona! service 287,
and caretaker-cleaner, 576. Did you, or did you not, Sir, describe those
figures as negligible ordid I misunderstand you, Sir?
Mr. KROGH:Sir, I did not describe those figures as negligibly small. I
said, that the number which I would regard as semi-skilled workers and
which are included in these numbers after the domestic service and
laundry women have been excluded-which is by far the greater number
of the semi-skilled-would approximately be 20 to 15 per cent. of the
remainder. That is the difference between roo and the 80 and 90 percent.
that I mentioned earlier on, Sir. Now, if you add that up, you will find
that you get about roughly 1,200, and of those under the category "other
persona! services" I am convinced there are included a considerable
number of workers whom I would regard as skilled persons. It does not
follow that the people in that category are in fact semi-skilled just be
cause I do not know how to break it down for you, Sir. It would be, let
us say, roughly a thousand persons compared with the remaining number
which we had just now, and it would corne to about one-eighth or one
seventh and that would give you approximately, as I said, 12 percent.
or 15 percent. of the remaining total.
Mr. GRoss: And what would be the percentage on a comparable basis
of the craftsmen and production workers to the total?
Mr. KROGH:The craftsmen and production workers, Sir, are 2,000 and
I would regard most of them as skilled workers.
Mr. GRoss: My question to you, Sir: what percentage of the total?
Mr. KROGH:Of what total, Sir? \Ve have been working with three
different totals here. I must know which total you refer to.
l\lr. GROSS:You had no difficulty, Sir, arriving at a judgment and a
statement with respect to the former category, a negligible proportion,
and you gave a ratio. Now, I am asking you, Sir, to state in similar terms
the proportion represented to the total by the figure under craftsmen
and production workers.
l\Ir. KROGH:lt would be double the percentage that I gave you for
this other category, for the simple reason that I see the number is 2,040,
while the other number that I worked out as a proportion was about
1,000, so this particular category 4 (2,000) will be double.
The PRESIDENT:But the percentage remains the same?
Mr. GROSS:The percentage remains the same. Would you care to say,
Sir, whether you regard this percentage as more or less negligible than
the percentage of the semi-skilled?
Mr. KROGH:The percentage does not rernain the same, Sir. It is true
we are working with the same total, Sir, but the number added up just
now came to about 1,000 which I worked that out as a percentage giving
me about 12 to 15 percent. Now the present number, I see, is 2,000, so
the percentage would be double that, Sir.
Mr. GROSS:I will bring this to a head, Sir, and conclude, if I may.
\Vhat, Sir, if you know, is the distribution by proportion between the
Reserves and the area of the southem sector outside the Reserves, the
distribution of employrnent in the categories of craftsmen and production
workers?
Mr. KROGH:Sir, these figures include the non-\Vhite Reserves in the
Police Zone, of course, Sir.
Mr. GRoss: \Ve are talking about the southem sector?
Mr. KROGH:Yes, Sir. It is difficult to give you an exact figure. I have SOUTHWESTAFRICA
a certain ratio in mind but I have to look at the total number of non
Whites economically active in these areas in order to apply the ratio that
I have in mind.
Mr. GROSS:Would you approximate the ratio for the benefit of the
Court, on the basis of your knowledge?
Mr. KROGH:I think I will also use the same ratio very roughly, Sir,
with regard to the estimate that I made for you in the northern territories.
I think there would be, let us say, more than half, that is 60 per cent.
would be semi-skilled, of the total which I cannot give you now, while
the rest, 40 percent., would be skilled.
The PRESIDENT:Would you say that again?
Mr. KROGH:Of the number of non-White workers that are, in fact,
and could be classified as skilled and semi-skilled and who are working
in the Native Reservcs in the Police Zone, I would say that about 60
per cent. of them could be rcgarded as semi-skilled and the remaining
40 percent. as skilled. I could, if you wish, Sir, estimate with a margin
of error of, say,IO to 15 percent. on both sides, what the total number
itself is, from my knowledge of the Territory.
Mr. GRoss: Are you finished, Sir? Now, I am afraid that that was not
my question. Perhaps I misunderstood your response. I am referring, for
the moment, to 2,040 craftsmen, production workers, listed in documents
you have supplied to the Applicants. Will you state, if you please, Sir,
the approximate ratio, if you do not have the exact numbers, of the
2,040 who are employed in the Native Reserves of the Southern sec
tor?
Mr. KROGH:Sir, I must warn you that I am not an encyclopaedia. I
have not got these figures in my mind. I have a sense of proportion, Sir,
and can break these down for you, but my estimates are becoming very
rough.
The PRESIDENT:\Vell, I suppose we will be able to follow it in the end.
Mr. KROGH:I would say that of the figure of 2,000 the number would
roughly be about 15 to 20 percent.
Mr. GRoss: Employed in the Native Reserve?
Mr. KROGH:Yes, Sir, and I can tell you how I arrive at that figure
too, if you would like to have my estimate.
Mr. GROSS: Itis not necessary unless the Court wishes to hear it. I
just wanted to have the proportion.
Mr. KROGH:Yes, Sir.
Mr. GROSS:Approximately 20 per cent. of these ...
Mr. KROGH:15 to 20. I said 15 to20 per cent. and I was giving you a
range, Sir, to cover my estimate.
Mr. GRoss: 15 to 20 percent. of these craftsmen, production workers
are employed in the Native areas. Is that what I understand you to
mean?
Mr. KROGH:No, Sir, in the Native areas in the Police Zone.
Mr. GRoss: In the Police Zone.
Mr. KROGH:That is a rough estimate, Sir.
Mr. GROSS:Now, just one more question on this Iine. The craftsman,
production worker category, lists, as you have pointed out to the Court,
such trades, such occupations among others as carpenters and joiners,
painters, bricklayers, plasterers and so forth. That is correct, is it not,
Sir?
Mr. KROGH:Yes, Sir. WlTNESSES AND EXPERTS
199
Mr. GROSS: These occupations-are they among the occupations to
which the apprenticeship restrictions apply on a racial basis in the
southern sector?
Mr. KROGH: Yes, Sir, that would relate to some of these trades.
Mr. GRoss: Asto those I have mentioned, Sir, all without exception?
Mr. KROGH: Sir,I will have to recall now to which particular trades
the apprenticeship regulation bas in fact been proclaimed. I will have to
recall, Sir,hen I can tell you. Itis on record and you have it in front
of you.
Mr. GROSS: Well, Sir, I can call your attention and the Court's atten
tion to the Reply, IV, page 419, the footnote of which {and it is undis
puted in the records) states as follows, under the heading "Racial
Discrimination in Respect of Admission to Employment and Access to
Vocational Training", that with regard to the building industry the
following trades, for the purposes of the Ordinance, have been specified:
"bricklaying, plastering, carpentry, joinery, painting, decorating,
plumbing, sheet metal working, sign-writing and wood-machining." Also,
to complete your information on this subject, in footnote 8 on the same
page, in the mining industry the occupations for which restrictions have
been made effective for the purposesot the Ordinance are "blacksmithing,
boilermaking, masonry, carpentry and joinery, electrician, fitting and
turning, motor mechanic, plumbing and sheet metal working, radio
electrician, rigging, welding, diesel fitter and upholstering".
Now, Sir, with that information in mind as to the occupations for
which apprenticeshlp agreements and arrangements are not open to non
Whites by reason of law, can you say, Sir, coming back to the figures
you have supplied, what industries would provide employment for
carpenters and joiners, let us say, in the southem sector?
Mr. KROGH: \Vell, Sir, you use carpenters and joiners for other than
the building industry as well, and the figures are not given on an in
dustrial ha.sis.They appear according to broad types of occupations.
One can also break down into hundreds the type of work clone or the
type of occupations under these headings. There is no doubt a number of
people who do not, in fact, work in the building industry in the Southern
zone, but l can go further and tell you that exceptions can be and are
granted all the time with regard to the employment of people who would
otherwise, strictly speaking, not be allowed to occupy these reserved
jobs. These exceptions are made al\ along by way oi permit or permission,
soit does not mean that if job reservation should operate legally against
say, for instance, the building industry, there would not be any non
White carpenters or joiners working in the building industry in the White
sector. This would not follow, Sir, and in fact I know that there are some
working in these occupations.
Mr. GROSS: One final question, Sir. With respect to the distribution of
the craftsman, production worker category, can you advise the Court
what proportion are employed in the Native townships such as Katutura
in the southern sector, as distinguished from the so-called White area?
Mr. KROGH: That is a bit difficult for me, it is breaking it down very,
very small.
Mr. GROSS: Do you have any information with respect to the subject?
Mr. KROGH: No, I have not with me, Sir, but I could supply you with
the information. I could imagine that in these places where buildings
have been erected-houses and so on-prefercnce is given, in fact, to200 SOUTHWESTAFRICA
non-White workers to construct and to build these houses; and, jobs, as
I have explained earlier, are reserved, as it were Sir, for non-White wor
kers in the non-White townships.
l\fr. GROSS:Would it be accurate to say, without reference to figures,
I do not want to tax your recollection about this, that whatever the
reason the larger proportion, the preponderant majority of the occupa
tions listed under this category, craftsmen and production workers, are
actually in the townships or other Native areas in the southem sector
outside the Reserves?
Mr. KROGH:I have to make another estimate, Sir. I would say the
proportion would be approximately ...
Mr. GROSS:The total as a whole if you please, Sir.
Mr. KROGH:Of the 2,000, Sir?
Mr. GRoss: Yes.
Mr. KROGH: I would say roughly, Sir, 40 per cent. in the Native
townships and say 60 per cent. outside the Native townships. I must
point out, Sir, that this is item 4 of seven items of category A of an
occupational distribution which covers categories A, B and C. It refers
to one of four times seven-that is at least about 30 different sub-groups.
Accordingly, Sir, my estimate would be rather rough. I can think of a
lot of other of these categories where people work in the Native town
ships, Sir, that are not mentioned here at the moment. Sir, you have not
got this document or my notes in front of you, and I just wanted to
point out that we are talking about a sub-section of a section of a category
in the occupational distribution.
Mr. GROSS:Mr. President, that concludes the cross-examination. :llfay
the Applicants submit this document?
The PRESIDENT:No, Mr. Gross, your case is closed. You wereentitled
to cross-examine upon the document, which you have done. I will ask
Mr. Muller-do you propose to produce the document?
l\Ir. MULLER:I have no objection toit being produced, l\lr. President.
As a matter of fact, I think it would be advisable.
The PRESIDENT:Then you should produce it in your case.
Mr. MULLER:I would in the examination.
The PRESIDENT:It will be produced in the case for the Respondent,
Mr. Gross.
Mr. GROSS:That finishes the questions, Mr. President.
The PRESIDENT:One or two Members of the Court would like to ask
questions- J udge Forster.
Judge FORSTER: Monsieur l'expert, mes questions vous paraîtront
sans doute être une réédition de celles qui vous ont déjà étéposées à
l'audience. Cela tient au fait que mon esprit n'arrive pas encore à saisir,
je ne suis sûrement pas encçre à la bonne longueur d'ondes. Il vous
faudra, Monsieur, vous armer de patience.
Voici ma première question: si je vous ai bien compris, votre déposition
tend à démontrer l'impérieuse nécessitéde l'apartheid dans le Sud-Ouest
africain, eu égard aux conditions très spéciales qui y règnent, eu égard
notamment à la situation économique, à l'immense étendue géographique,
à la multiplicité et à la diversité des groupes ethniques, à. la stérile
apathie de l'indigène contrastant avec le dynamique esprit d'entreprise
de l'homme blanc.
Et parmi les bienfaits de l'apartheid, vous citez, par exemple, Jerégime
foncier qui protège dans les réserves la terre de l'indigène économique- WITNESSES AND EXPERTS 20I
ment faible contre la convoitise et l'accaparement du Blanc économique
ment puissant. Est-ce bien cela?
The PRESIDENT:Is what correct, Judge Forster. I do not understand
the question.
J udge FORSTER:Je vous demande si j'ai bien compris le sens de votre
déposition.
The PRESIDENT:I do not think that a witness can be asked, having
summed up evidence which has taken a considerable period of time, is
that the burden of his evidence-there is a great deal of descriptive
language in the question which is put. I hope the question will be put in
a more direct form to the witness.
Judge FORSTER:La question directement poséeest celle-ci: est-ce que
je comprends votre déposition en disant qu'elle tend à démontrer l'im
périeuse nécessitéde l'apartheiddans le Sud-Ouest africain? Est-ce bien
ce que vous avez voulu démontrer?
Mr. KROGH:Sir, I intended to show that taking into consideration
thisset of conditions you have mentioned that I would think in the
interest of the economic development and welfare of the population, Sir,
it would be in that interest to apply and in fact, to recognize the need
for differential protective and promotional measures, Sir. That is the
essence I think, put popularly, of my evidence as an economist acquainted
with the conditions in South West Africa, Sir.
Judge FORSTER: Je vous remercie. Voici ma seconde question:
Pouvez-vous me dire en tant qu'expert-économiste si les lois et règle
ments en vigueur dans le Sud-Ouest africain s'inspirent toujours de ce
souci de protection de l'indigène?
Mr. KROGH:Sir, I think largely yes, but there are certain trades, as I
have pointed out in the course of my evidence, that would also operate
protectively with regard to the labour market in the southern sector,
Sir.
But this would operate over a much larger range oï jobs and occupations
with regard to the non-White areas than it operates in fact in respect of
the occupations and jobs in the White sector, Sir. The largest single
other differential or prohibitive measure operates with regard to the
other important production factor, namely land, Sir, and in this respect
I have no cloubt in telling you, Sir,hat it operates virtually completely
and for practical purposes in the interest of protecting the economically
weaker non-White population groups against the acquisition of this
important production factor, namely land, by the economically more
productive and resourceful members of the \Vhite sector, Sir. Yes, Sir.
Judge FORSTER:Je vous remercie. Voici ma troisième question: vous
est-il possible, toujours enotre qualité d'expert-économiste, de m'aider
à déceler une trace de souci de protection de l'indigène dans le fait, par
exemple, d'interdire à un indigène parfaitement doué, l'exercice de la
profession d'ingénieur dans telle zone de son propre pays ou bien dans le
faitd'interdire à un Bantou de bonne éducation et de mise correcte de
s'installer dans tel quartier ou de descendre dàns tel hôtel de son choix,
quartier et hôtel situés dans son propre pays, placé simplement sous
Mandat et nullement annexé?
l\1.r. KROGH:Sir, with regard to the particular examples you have
given, I would say that there are no qualified non-V{hite engineers, Sir.
I have pointed out in my evidence that even the number of White quali
fied engineers would be a handful-they are small in number. I should202 SOUTH WEST AFRICA
say that in the non-White areas, Sir, no doubt preference would be given
to non-White engineers in the way of employment. I would say, Sir, the
same applies to the other examples you have stated. Sir, with regard to
the last part of your question, referring to such terms as annexation,
mandate, and so on-these are legal terms, I take it, Sir, and I cannot,
as an economist, give an interpretation to whether this or that is to be
allowed or not allowed. I take it, Sir, you obviously have in mind or
attacha certain meaning or definite meaning to a term such as a colony,
a mandated territory, or independent territory. Now I, as an economist,
do not know, Sir, exactly what is to be understood by these different
terms. They are not economic terms, they are legal-political, I do not
know what exactly you have in mind, Sir.
Judge FORSTER: Je voulais simplement situer les exemples. Je voulais
dire que, ces exemples, je les situais non pas en Afrique du Sud, mais dans
le Sud-Ouest africain, territoire sous Mandat.
Mr. KROGH: Yes, Sir.
Judge FORSTER: Je vous remerçie. Voici ma quatrième et dernière
question: il m'a semblé vous avoir entendu plus d'une fois qualifier de
marginale l'incidence des restrictions imposées aux indigènes dans le
domaine de l'emploi et de la protection sociale. Ne pensez-vous pas que.
ce qui semble marginal à l'économiste peut, en réalité,êtrecapital pour
l'indigène qui tient pour précieux le mérite et la valeur personnels?
Quand il est avéréque dans le Sud-Ouest africain, le nombre des
sujets d'élite est très restreint, ne pensez-vous pas que Ie fait de briser
l'élan d'un autochtone exceptionnellement doué est quelque chose de
plus grave qu'un phénomènemarginal? Je ne me place plus au niveau
de l'individu, négligeable à votre gré, mais à celui du groupe ethnique
auquel cet individu appartient. Avez-vous enfin mesuré l'effet terrible
ment démoralisant pour l'Africain (fût-il Bantou) d'entendre le Manda
taire blanc, chargéprécisémentd'accroître le progrès social des habitants
du Territoire, dire à l'élitenoire qui tente par ses capacités de crever le
bas-plafond qui lui pèse: "Tout effort dans cette ascension est inutile.
Ici, dans ce secteur blanc, laissez toute espérance. Sinon, vous vous
engageriez dans un cul-de-sac." C'est à votre déposition de l'autre jour
que j'emprunte cette dernière expression. Ces secteurs ne sont-ils donc
pas situés en territoire sous Mandat?
The PRESIDENT: What is the question-are these situated in a man
dated territory?
Mr. KROGH: Yes, Sir, they are situated ...
The PRESrDENT: \Vell, there is no dispute about that. What else is in
the question?
Mr. KROGH: \Vhether I understood as an economist, and have meas
ured the social-moral welfare aspects other than what we economists
understand as purely economic aspects? \Ve economists cannot measure
these things and nobody else can measure them numerically, Sir.
Economists regard general welfare as consisting partly of social welfare,
and part of social welfare is economic welfare, and I was speaking in
terms of economic welfare. · I must admit that we measure economic
welfare rather roughly, but we try to measurc this by what we call the
national income. This is a very, very rough approximation of what we
have in mind, but I must admit that this does not cover all we would
understand under economic welfare. There is more to economic welfare
than just the national income-this is a very rough indicator-but apart WITNESSES AND EXPERTS 203
from that I, as an economist, appreciate, and I think any economist
should appreciate, that economic welfare is not in fact the only and sole
consideration. I think this would distort completely the views or values
of any person if you did not have any other welfare considerations.
I think [ must explain to you, Sir, that this whole approach, which I
should liketo call the differential approach, is in fact a solution designed
to serve these very uneconomic values-ta give these non-economic
values an opportunity to be exercised and in fact to be enjoyed as part
of total welfare under this particular set of circumstances. The approach
is not only from an economic viewpoint, and I am very sorry if I have
given the impression that economic welfare is the sole and only con
sideration. These other aspects of general welfare that are not meas
urable, and in fact shade off into non-economic welfare considerations
are also of basic consideration. It is the very purpose, intent and design
of this policy, given the great parts of South West Africa that have not
been modernized economically yet, to develop the opportunities and
appropriate institutions in these areas where the élite and the leaders
could in fact not only play a primary role in the pioneering stage, but
also in fact receive ail the aid, assistance, encouragement that I think
anybody could possibly supply to make people, to use a very ordinary
term, happy in the general sense of the word, and not only in the purely
economic sense of the word.
Judge FORSTER: Je vous remercie. Je n'ai pas d'autres questions.
The PRESIDENT: Does any other Member of the Court desire to put
ahy questions? Sir Louis.
Judge Sir Louis MBANEFO: Dr. Krogh, I want to refer to your evidence
yesterday, and I am referring to page 178, supra, of the verbatim record
of yesterday's proceedings. You said in answer to a question, and I now
read what you said:
"But I know that it is part of the policy, and I have evidence to
show, and I am quite content, that they are trying to spread the
modern economic activities to areas where the different population
groups, of the members of these different population groups, can
live and work, be barn and die, without necessarily having to corne
into contact with the members of other population groups."
Would you clarify that statement-does it apply, for instance, to the
southern sector, where you have groups living within the same limit or
the same area?
Mr. KROGH: Yes, Sir, this is clearly illustrated in the proposed new
homelands of the ûdendaal Commission. Yes, I would apply this to the
southern sector as well. As you very well know, Sir, an enlargement of
particular homelands, if I recollect correctly, has in fact been proposed.
And, when I was in the Territory I think a large number of White farms
have in fact been bought by public money and given gratuitously to the
extension of a particular non-White homeland. The areas would of course
no doubt have to be consolidated in due course and enlarged, townships
are in the blueprint stage and being established and developed in these
areas. Yes, Sir, the idea is, very briefly, to give the different population
groups as many economic opportunities as they could possibly occupy,
administer, organize and develop, and in this way make them Jess
economically interdependent. lt 1s important to remember that in the
case of South West Africa the greatest dependence is on exports, not on SOUTHWESTAFRIGA
204
the market in the Territory. The latter, I think it is very misleading
many people think of South West Africa as a highly integrated domestic
economy. The modern economy of South West Africa is more integrated
with foreign economies by way of export, technical assistance and so on
than itis to my mind integrated with what I have called, very loosely,
the traditional economy.
Judge Sir Louis MBANEFOW : hat I want to find out is, is it the intention
that each group should be economically self-suffi.dent?
Mr. KROGH:No, Sir, on the contrary, but it will be largely dependent
not on the other group but on the outside world.
Judgc Sir Louis MBANEFO:What I am trying to get clear in my mind
is what would be the relationship between the different groups. You talk
in terms of separate economies ...
Mr. KROGH:Yes, but the fact that I say separate economics does not
mean that these economies are self-sufficient. I mean, for example, Great
Britain is not self-sufficient ...
Judge Sir Louis MBANEFO:What would be the relationship of the two
in terms of labour and market?
Mr. KROGH:In terms of the market, I think that the major part of
the production, as in the Southern sector at the moment, if you look at
the national income figures, 80-90 percent. of it is in fact produced for
export, not for local consumption, so that the percentage that is destined
for the local market is negligibly smalt. vVith regard to the labour situa
tion, I think that you could very well see that White workers, skilled and
possibly managers too, would be allowed by a particular non-White
group to enter its territory to do jobs there on a temporary basis, if they
so prefer. There would no doubt be some of these people, just as in other
African territories.In tropical Africa today, most of the formulation of
economic development plans-and I can very well imagine the execution
of these plans as well, requires highly technical and skilled people who
originate, as it were, from outside tropical Africa, and I know that if
many of these plans that are in the b]ueprint stage are to be executed,
very many more will have to be imported from outside. So I can very
well imagine that there would be White skilled people working in these
areas, but this would be subject to the wishes or approval of this partic
ular group-if it does not want White workers there, then it decides, in
fact, for me as an economist, that it places priority on other values than
purely economic development values. Whereas, another group might
quite well choose to have these foreign people working there, helping
them, being employed by them, in occupations that cannot, at that stage,
be manned by members of its own group.
In that case, it would indicate tome as an economist, that these people
prefer, compared to the other group I have mentioned earlier, Sir,
economic development before, for instance, the factor of Africanization
or having its people do that work even if they were not fully qualified to
the same extent. This would be the wish of the people.
Judge Sir Louis MBANEFOS :oif you use that phrase without necessarily
having to corne into contact with the members of other population
groups you visualize a situation where there could be no interchange of
labour between the two groups.
l\fr. KROGH:No, Sir. I said, not necessarily. I do not visualize a situa
tion where there cannot be any interchange' of labour. On the contrary,
to the extent that you say you have a receiving group and to the extent WITNESSES ANDEXPERTS
205
that this group prefers to receive these foreign workers to have them
work there just as they would in tropical Africa, that would, in fact, be
allowed, as it is in the case of Ovamboland at this very moment, Sir.
Judge Sir Louis MBANEFO:But they do not want to receive them?
Mr. KROGH:If they do not want to receive them then it is their choice
to do either with or without them and therefore prefer, for instance, a
lower level of living, or to sacrifice development efforts for the preference
of not having these foreign people there. Or, they can decide to Africanize
-that means putting people into these jobs of their own group in this
particular case. It could very well happen, Sir, that they could put in
people who are less qualified but of their own group to hold a job that
could be better done, economically spcaking, more productively by say
a member of another group. Tome this would indicate that they prefer,
in their set of values, rather to have this situation than to have the more
productive situation, let us say in this particular example. This to me
would mean that they do not regard the occupation of a particular job
by the most efficient worker ...
Judge Sir Louis MBANEFO:I am thinking in i:erms of groups that you
have spoken about. You have these two, or several groups, and the aim is
that each should be able to live, work and die without necessarily having
to corne into contact with the members of other population groups?
Mr. KROGH:Yes, Sir.
Judge Sir Louis MBANEFO:Now that assumes complete separation in
the economic field?
Mr. KROGH: No, Sir. It means "not necessarily". It means to the
extent that these jobs cannot, at this stage, be done by mcmbers of this
particular group.
Judge Sir Louis MBANEFO:But then it would operate both ways?
Mr. KROGH:Yes, Sir, of course. I am just taking the one example for
you on the one side. Yes, it would operate both ways. This docs not
mean that you will now be allowed to work in the other sector if this
other group would, in fact, let you corne and work there, or if they would
feel that this would be to their own economic advantage to have you to
work there, because they, at this stage, have not got somebody qualified
to man the job, or if they have somebody qualified he does not do the
job as productively as the one from the other group. They can decide
this, asthis is, in fact, decided internationalamong national States, but
the idea is that they must not think in terms of national States, this is
an African problem. If you think in terms of national States you think
of Great Britain, France or the Nctherlands, and so forth. But this is a
problem peculiar to Africa and, I should say, taking into consideration
this particular set of circumstances as in South West Africa, an "inter
national" solution on a miniature scale. That does not mean that the
members of one group may not work in the jobs of another group. And,
I can tell you, Sir, that there are, as I have tried to explain, many non
Whites working at the moment in the White sector, but more jobs are
being created and the whole modern economy is being expanded at both
points. Urban areas and so forth are being established and developed in
these areas outside what we have called the White area (thus far, I think
we understand each other there) ta create opportunities there and to
encourage the occupation of these opportunities by members of the non-
White groups. ·
Judge Sir Louis MBANEFO:Finally, then, could you say that, as far as206 SOUTHWEST AFRICA
one can foresee in the future, both groups would still have need of each
other in the economic field?
Mr. KROGH: Yes, Sir. I would think that, from a purely economic
viewpoint (but this excludes social considerations) it would be in the
economic interest of one group to, in fact, employ members of the other
group if the mcmbers of the other group want to be employed by the
members of this other group.
The PRESIDJ-:NTD : oes any other Member of the Court desire to put a
question to the witness? Ifnot, Mr. Muller.
Mr. MULLER:Thank you, Mr. President. I have no questions to put
to the witness, ail Ishould Iike to dois to ask that he identifies the copy
of his notes, which he has before him and upon which he has been cross
examined by my learned friend, Mr. Gross, so that that can become part
of the record.
The PRESIDENT:There is no objection, Mr. Gross?
Mr. GRoss: No, Sir.
The PRESIDENT:Very well, that may be done. I think the Court will
now recess for 20 minutes and then, upon the resumption of the hearing,
you will call your next witness, Mr. Muller. Is that correct, Sir?
Mr. 2\luLLER:Yes, I shall,Mr. President. May I ask that Professor
Krogh be excused from attendance if there are no further questions to
be put?
The PRESIDENT:Mr. Gross, Sir, have you any objection to the witness
being released from further attendance?
Mr. GRoss: No, Sir.
The PRESIDENT:Unless it is indicated by mid-day that there is any
further need for the witness to remain, he will be excused from further
attendance.
Mr. MULLER:I thank you, Mr. President.
The PRESIDENT:Mr. Muller.
Mr. MuLLER:Mr. President, the next witness will be Mr. Pepler and
his evidence will also concern the issues raised under the Applicants'
Submissions Nos. 3 and 4. \Ve have indicated to the Applicants that his
evidence will be directed to the following points, and I quote from the
letter of 22 September 1965 addressed to the Agent for the Applicants:
"(1) The different agro-economic regions of South West Africa.
(2) Schemes and methods applied in the promotion of economic
development of the said regions particularly in the field of
agriculture.
(3) The reasons for differential treatment (in the economic develop
ment), of the areas occupied by the different populat_ion
groups 1."
May I explain, Mr. President, although I have indicated that his
evidence will be directed,inter alia, to the different agro-economic regions
of South West Africa, that we have had evidence on that point by
Professor Logan. It is not my intention that that evidence be repeated
and Mr. Pepler will deal very shortly only with the agricultural activities
amongst the different population groups in the Territory.
May I ask that l\fr. Pepler corne forward and make both the declara
tions as witness and as expert.
1 SeeXII, Part IV. WITNESSES AND EXPERTS
207
The PRESIDENT:Let the declarations be made.
Mr. PEPLBR:In my capacity as witness I solemnly declare upon my
honour and conscience that I will spcak the truth, the whole truth, and
nothing but the truth. In my capacity as expert I solemnly declare upon
my honour and conscience that my statement will be in accordance with
my sincere belief.
Mr. MULLER:Mr. Pepler, your full names are Louis Andreas Pepler,
is that correct?
Mr. PEPLER: Yes, Sir.
Mr. MULLER:You hold the Bachelor of Science degree in Agriculture
of the University of Pretoria?
Mr. PEPLER: Yes, Sir.
Mr. MULLER:What is your present position?
Mr. PEPLER: Director of Bantu Development, Sir.
Mr. MuLLER: Have you held any other positions in government
service?
Mr. PEPLER: Yes, Sir. I was in the Department of Agricultural Tech
nical Services up until 1941; and from 1941 I was appointed Super
intendent of the Orange River Irrigation Schemes and the Loskop
Irrigation Schemes until 1949. At the end of 1949 I was Chief Professional
Officer in the Department of Bantu Administration and Development,
where I ultimately became Director of Agriculture and in 1961 I was
appointed Director of Bantu Development.
Mr. Mm.LER: \Vould you tell the Court what your fonctions are as
Director of Bantu Development?
Mr. PEPLER: Yes, Sir. My main fonction is to draw up development
plans for the different Bantu authorities in respect of their physical
development as well as their socio-economic dcvelopment, particularly
in their different home areas.
I alsohave to budget for these development plans.
Secondly, one of my fonctions also is to co-ordinate with the different
Departments which also deal with development work, for instance, the
Department of Water Affairs for the dcvelopment of water schemes,
irrigation schemes, etc., and also the Departmcnt of Commerce, Trade
and lndustry, for trade and industrial development in the homelands.
Thirdly, I have to determine the priorities of these different tasks that
have been designed.
Fourthly, I have to do the co-ordination in my Department, in order
to see that the works are carried out and implemented in the way that
they were designed.
And fifthly, I have to see to the proper irnplementation of those
plans.
Mr. Mm.LER: Do the functions which you have just mentioned also
extend to the Territory of South West Africa?
Mr. PEPLER: Yes, Sir.
Mr. MuLLER: Do you, in addition, serve in other advisory capacities
and representative capacities?
Mr. PEPLER: Yes, Sir. I am also a Director of the Bantu Investment
Corporation; I am a member of the Natural Resources Development
Council in the Republic of South Africa; I am Chairman of an Inter
Departmental Committee for the Planning and Development of the
Bantu Homelands; I am a member of the Permanent Committee for the
Development of Border Industries; I am Vice-Chairman of an Inter-208 SOUTH WEST AFRICA
Departmental Committee for Mining Development in the Homelands;
and I a!so serve on various interdepartmental ad hoc committees.
;'\fMULLER:Have you represented South Africa at international
conferences relating to agricultural matters?
Mr. PEPLER: Yes, Sir. I represented South Africain Madagascar in
1957. I also represented South Africain Guinea, in Morocco, in Ethiopia,
l\fozambique and also in Tunisia. These were conferences on agricultural
matters as well as for the economic conferences for Africa.
Mr. MULLER:Am I right in saying that you have an intimate know
ledge of the practical methods of development of the Bantu peoples,
particularly in the agricultural field?
Mr. PEPLER: Yes, Sir.
Mr. MULLER:That is both in South Africa and South West Africa?
Mr. PEPLER: Yes, Sir.
Mr. MULLER:Can you give the Court a very brief description of the
agricultural activities of the different population groups in South West
Africa?
Mr. PEPLER: Mr. President, as has been indicated, a fairly extensive
description has already been given in the Counter-Memorials of the
geographical features of South West Africa. I therefore propose to deal
mainly with the agricultural features in South West Africa.
As is commonly known, South West Africa is divided into the northern
sector and the southern scctor, commonly known as the Police Zone.
With your permission, Mr. President, I shall start with the northern
sector.
In the west of the northern sector we find first of all a portion of the
Namib Desert, and adjoining that is the Kaokoveld. Now the rainfall in
the Kaokoveld is not very high and the agricultural activities there are
mainly confined topastoral farming. ln the first instance the Kaokoveld
is inhabited by the Herero people-they are divided into three tribes
who mainly practise stock farming. The live-stock there consists of cattle,
sheep and goats. These cattle are very well-framed animais and are of a
superior type to the cattle that one finds, for instance, in Ovamboland.
The grazing is of a good type; it is sweet veldt grazing, and the carrying
capacity is not very high. There are stock diseases in the area, mainly
lung sickness, and anthrax is also found in the area. Those are the main
diseases found.
Then, as far as agriculture itself is concerned,t is not practised in the
Kaokoveld-not dry land agriculture. There are quite a number of
permanent springs to be found in the Kaokoveld, where people practise
irrigation farming on small holdings. They mostly produce tobacco and
vegetables.
Now, to the east of the Kaokoveld, one finds Ovamboland. Ovambo
land is known for its flatness; the rainfall increases again from west to
east. I would say the average rainfall in Ovamboland is around about
r6 inches. The Ovambo people are divided again into approximately
eight tribes. They practise mixed farming. They are domiciled mostly in
the central part of Ovamboland, not so much in the south-eastem part
and the eastern part of Ovamboland. As I have indicated, they practise
mixed farming; they keep cattle, goats and sheep. These cattle are much
smaller and smaller-framed than the cattle found in Kaokoveld. This
must be ascribed to the fact that one finds not only lung sickness there,
other than tick-borne diseases, but also internai parasites and liver fluke, WITNESSES AND EXPERTS 209
and I ascribe the smaller size of those cattle to the fact that they have
adapted themselves to the climatic conditions.
As far as crop farming is concerned, they grow different varieties of
crops in a very peculiar way. They apply the mound system, that is they
work up the sand in mounds and they plant the seed in those mounds.
ln other words, they more or less practise a hydrophonic form of agri
culture. They grow mainly kaffircorn, muhango and maize-those are
the three main crops that they are growing. Near the residential sites, and
within the boundaries of the residential sites, they also grow tobacco
and vegetables, and things of that nature. There is no irrigation practised
except experimental irrigation-plots that have been laid out.
Next, we corne to the Kaokoveld-that lies again to the east of Ovam
boland.
Mr. MULLER:I am sorry, you have mentioned that the Kaokovcld is
1ying to the east . . .
Mr. PEPLER:1 am sorry, Mr. President. The Okavangoland lies tothe
east of Ovamboland. There one finds the general vegetal cover is different
from Ovamboland, in this respect, that it has more indigenous trees and
one finds savannah country. It is inhabited by the Okavango people,
who are also divided into approximately five different tribes. They farm
mainly with cattle and goats. It is peculiar that they do not farm with
sheep at all. Now, these cattle are also better framed and they can be
compared with the type of cattle that one finds in the Kaokoveld,
although one can see that exotic breeds have been introduced in the past
and one finds quite a variety of types of breeds in Okavangoland.
The predominant diseases to be found there amongst the cattle are
also lung sickness, tick-borne diseases and parasitic diseases. They grow
crops fairly extensively,namely maize, kaffircorn;and other crops along
the banks of the Okavango River. They practise this form of agriculture
mainly along the banks of the river and not towards the south. They
have also started practising irrigation farming on a small scale and on
that irrigation scheme-the Vungu-Vungu irrigation scheme particularly
-they are growing a variety of crops now. This is, I must state specifi
cally, still in the experimental stage.
Now from Okavangoland we are going towards the east. Crossing the
Okavango river, one finds \Vestern Caprivi, which is a smaller area. It
is approximately 600,000 hectares in extent. It is savannah, mainly
bushveld country, and it is inhabited by a comparatively small number
of bushmen.
Further on to the east, across the Linyanti River, one finds Eastern
Caprivi, which is inhabited by two different tribes. They practise mainly
cattle fanning and small stock farming in a very small way. Their cattle
are also of a better-framed type and they also have different diseases
amongst their cattle, the main and predominant disease being nagana
or sleeping sickness. Foot-and-mouth disease also occurs there, which
normally has to be combated in Caprivi.
They also grow crops. Their crops are grown mainly along the Kwando
River which lies towards the south of Eastern Caprivi. They grow maize,
kaffircorn and muhango, and then one finds that they also grow some
vegetables, but mainly tobacco. They do not practise irrigation farming
at all in that area.
Now, 1\frPresident, I have indicated what I call the northern sector,
that is, the sector exclusively reserved for the Native peoples of South2IO SOUTH WEST AFRICA
West Africa. Those people (that is in all the different areas which I have
described now) own approximately two-thirds of the total cattle popula
tion belonging to the Native peoples in South West Africa and they
constitute about 5+5 percent. of the total Native peoples of South West
Africa.
Now, Mr. President, if we corne to the southern sector that is inhabited
by both Whites and non-\Vhites. If I can confine myself to the non
Whites again-in the case of the non-Whites, they are scattered right
from the south of South West Africa both towards the east and the west
and right up to almost the northern boundary of the Police Zone in 18
different Reserves that have especially been reserved for them. Now, if
you will permit me, I will start in the south. Again, the southern areas
have a very low rainfall, the rainfall increasing gradually from the south
towards the south-east. The lowest rainfall is right in the southern areas,
along the Orange River, and at one Reserve called Bondels it is approx
imately 2 inches per year. It increases very gradually up to a line, more
or less to Mariental, where the rainfall is approximately ro-12 inches a
year.
Now, these people confine themselves to small stock farming only. They
keepmainly goats, sheep (non-wool sheep), as well as a small percentage
of wool-, and karakul sheep. They also keep mules, donkeys and horses,
mostly for conveyance purposes.
Now, these people in this particular sector that I am talking about
have already entered a certain form of ... if I may revert back to the
northern sector, in that sector those people mostly practise the traditional
subsistence form of farrning and here in the lower portion they have
already entered to a certain extent or let me put it this way, some of
them, have already entered into the exchange or money economy, that
is a market economy.
In the central part, that is if one takes a line from Mariental up towards
the north of Windhoek, towards Epukiro and Okahandja, then one
finds that mixed farming is practised there. It is also a pastoral area, but
there it also becomes savannah country and one finds cattle as well as
small-stock farming. There they also go in for goats, non-wooled sheep,
cattle and, to a certain extent, a few karakul sheep. They also keep
donkeys, horses and mules but, as I stated, mostly for conveyance
purposes.
Then one cornes to the northern part, that is up towards the Police
Zone boundary. There the rainfall does increase and particularly in the
east of Okarara, i.e., in Otjituuo and those parts, mixed farming can be
practised, but on account of the irregularity of the rainfall and so on,
crop farming is only practised on a very small scale, the predominant
farming being cattle farming. Towards the west, that is Sesfontein and
Fransfontefo and those parts, one finds sma11stock rnostly, but they also
go in for cattle farming. The stock diseases found there are rnost corn
monly diseases like anthrax-just the common diseases which normally
have to be combated-but there is no lung sickness or foot-and-mouth
disease found there, except again in the east, where one finds that foot
and-mouth disease sometimes occurs; it mainly cornes from across the
borders of Bechuanaland on that side.
Now, if we revert to the European sector, the White sector, one finds
the same pattern of farming from the south again. These people farm
mainly with karakul sheep. They also keep goats and they have an WITNESSES ANDEXPERTS
2II
improved goat type there. The karakul farming is a specialized form of
farming which is practised by the White fanncrs and they, on account
of the fact that they have done a lot of fencing and paddocking and so
on, do keep cattle too. The cattle are of really good quality.
Towards the centre again cattle dominate in the fanning system
although one does find karakul sheep, goats, wool and non-wool sheep
there. Towards the northern sector, particularly towards the north-east,
that is in the Grootfontein and Tsumeb areas, mixed fanning is practised.
The main crops being grown there are maize and kaffircorn. Cattle
farming is also practised there. Now, in the White sector they are
definitely practising an exchange economy, that is a money economy,
already very extensively.
Mr. MULLER: Having described the agric1ùtural activities of the
various population groups, can you tell the Court whether, in promoting
agricultural development, differential methods are applied as between
the various population groups?
Mr. PEPLER: Yes, indeed, Mr. President. Various methods are prac
tised, or differential methods are applied, not only between the White
people and the non-White people, but also as amongst the non-Whites
themselves.
Mr. Mm.LER: What are the reasons for such differential methods?
Mr. PEl'LER: Mr. President, the main reasons I would say are that
they have reached different stages of development. As I have already
ind1cated, the Whites are practising an exchange economy, that is, a
money economy, whereas the non-Whites are mainly, and I emphasize
the word "mainly", practising the traditional subsistence economy.
Secondly, they cliffcr in their traditions, their cultures and their ways of
life. And thirdly, they have different conceptions of property and land
rights. I would describe those to be the main reasons, Sir.
Mr. MULLER:Now, will you very briefly describe to the Court the
different methods employed in developing the country agriculturally,
that is, the different methods that are applied amongst the different
population groups?
Mr. PEPLER: Yes, Mr. President. In dealing with this question I would
put it this way. With your permission I shall first deal with the \~/bite
sector and then with the non-White sector, but in prefacing these remarks
I first ofail want to indicate that the European farmers are practising,
are definitely practising, an exchange economy. They have to pay for
their land, either in cash or they can obtain loans for this. In the case
of the non-Whites, they still have the traditional system of land tenure,
i.e., land is provided for the different groups and in their own interests
they may not dispose of that land, whereas the Whi1e man can dispose
of his farm if he wants to.
ln respect of the methods and the assistance given, the White farmers,
once they have acquired a fann, must take the initiative themselvcs in
planning and developing that farm. They must provide the funds for ail
improvements. If they want to build a house they must provide the
funds for it. If they want to establish water points and provide water for
the stock as well as for domestic purposes, they must finance those
things. If they want to put up fences or roads or whatever has to be done
on a farm it must be done by themselves. If they want any extension
ser\'ices, that is, agricultural advice in connection with the development
of the farms, they can get it free of charge from the Administration, but2I2 SOUTH WEST AFRICA
they must also take the initiative in asking for advice which is then given
to them in consultation and after proper examination of the land, etc. If
they want to go in for crop farming, for instance, they must provide
the seed, they must get advice about what varieties of seed they must
get, what improved varieties they must get, fertilizers that must be
purchased and these must be acquired by themse1vcs. They must also
accept full responsibility for the marketing of their products. In cases of
drought, when relief is brought to these people they must definitely pay
for whatever relief was brought to them and it is repayable with interest.
Furthermore, Mr. President, they have to pay taxes towards the gcneral
advancement of South West Africa.
In the case of the non-Whites, Sir, both in the northern and southern
sector, the approach is exactly the same and the methods applied are
exactly the same except that I must indicate that whatever improve
ments are brought about, or whatever development projects are brought
to them, are brought in the closest collaboration and consultation with
the leaders of the different national groups. That is very important, i\Ir.
President, and I wish to stress it. The officiais are specially traincd to
deal with them. If the Native people want any advice these officiais are
at their disposai, but, as I have indicated in the case of the \Vhites, they
naturally have to ask for assistance if they want it. I am now talking
about extension services. In the case of the non-Whites the extension
officers visithem, they consult with them, they advise them, they guide
them but they will not attempt to undertake any improvements without
having incluced the leaders of the people to accept the devclopment
proposais that they do put to them. Now, ail improvements, Mr. Presi
dent, that are then brought about are given by the Administration or
the Mandatory to thcm. For instance, fencing: if they agree to fences
being put up, the fencing material is provided; they provide the labour
for putting up those fences but they are paid for the work clone. All
improvements, Mr. President, particularly water-as is commonly
known, in South \Vest Africa water is very scarce and· expensive to
obtain-these water points are brought here in the form of either dams
or bore-holes and the Reserves are developed that way at no expense to
them. For the sale of stock, when they are induced to sell stock, sale pens
are erected for them and whatever other improvements are necessary
are provided for. They are advised about agriculture when mixed farming
is practised. Good or improved seed varieties are brought to them; they
are given those free of charge. In the case of stock diseases-I have
indicated already stock diseases are prevalent in almost every territory
these are combated by officiais from the l\fandatory or the Administration
and all inoculations are done for them.
Then, in the case of drought relief, they are given this mainly in the
form of food brought to them. If there is a shortage of food for the stock
this is also provided for. They are, however, expected to do some work
in order to get foodstuffs. It is not given to them absolutely free of
charge or handed out so that they can just call for it and get it.
That approach, Mr. President, I take it that everybody will appreciate
it, is a psychological one to assist these people in developing themselves.
Now, as far as taxes are concerned, they do not pay any taxes except for
tribal levies which are imposed by their own leaders for their own funds,
but they do not pay other taxes.
Sir, with this background I would like to explain, with your permis- WITNESSES AND EXPERTS 213
sion, that itis for these specific reasons that I am an official today of the
Department, of what we call in the Republic, Department of Administra
tion and Development. We have the Department of Agricultural Tech
nical Services for the White sector and originally, that is, many years
ago, this Department of Agricultural Technical Services served both
Whites and non-Whites as far as agricultural services are concerned. But
it was found that it was so important for the development of the non
White groups that a special Department shoulcl be created, with a very
strong division of agriculture in this Department to serve the non-White
people exclusively as far as the promotion of agriculture in their areas is
concerned. This Department is staffed with a strong professional, as
well as technical staff.
Now, if I may just add, as far as improvements are concerned, which
I have already referred to, these are effected through them exclusively
for their exclusive use; the Whites are not allowed to use whatever im
provements have been made in their sector or in their differcnt reserved
areas. For instance, I have been talking about the irrigation scheme in
Okavangoland. More irrigation schemes will be established which will be
for their exclusive benefit. \Vhatever cattle improvement schemes are
undertaken are for thcir exclusive benefit.
If you will permit me, Mr. President, to mention this in the case of the
Republic, where we have advanced further already, there are quite a
number of exotic plantations. A few hundred thousands of acres of such
plantations are already established in the homelands for the exclusive
use and benefit of the people themselves. There are quite a number of
irrigation schemes which have been established for their exclusive use.
Other schemes have been established in a similar manner, e.g., large
fibre schemes, such as New Zealand hemp and sisal schemes, and I am
just thinking at this moment of a jute project which has been started in
Okavangoland, which will also, again, be for the exclusive use and benefit
of those people.
Mr. MULLER:Mr. Pepler, you stated that different methods are ap
plied for the promotion of agriculture also as between the Native popula
tion groups. Would you briefly indicate to the Court how these different
methods are applied and the reasons?
Mr. PEPLER: Yes, Mr. President. In the case of thesc different groups
that we are dealing with now, within the non-White people, one must
again indicate that different methods are applied because they, amongst
themselves, have reached different stages of development and for that
specific reason the approach must also be different.
If you will permit me, 11fr.President, there again I want to indicate,
as I have already indicated, that a special agricultural division was
created in the Department I am representing, but in this particular
instance the professional and technical people who deal with the agricul
tural aspects are not only agriculturalists in the sense that they are
dealing exclusively with the agricultural aspect, they are also specially
trained to know and take account of the traditional customs of the people
themselves. In other words, they must understand the people; they must
know their ways of life, before they approach them.
If you will further permit me, I must illustra te what I really mean by
that. Different peoples have different customs. There are, for instance,
Bapedi tribes which have cattle kraals where their beasts are commonly
kept. They have a common custom that if the head of that family dies SOUTH WEST AFRICA
the head is buried in the kraal and they have a sacred belief that by
burying the head of that family in the kraal, then the kraal will be
blessed, the animals will be prolific and they will progress in that respect.
Now, if one is not aware of that belief which we respect, which we can
see is really sacred to them, if one does not appreciate that or one does
not know about it, one would be inclined to go walking into a cattle
kraal of this nature and have a look at the animals as an agriculturalist,
which will really be against their traditions, because as the kraal is
sacred to them they are opposed to any strangers entering their kraals
when their beasts are there. Strangers can only corne there on invitation
and only once they have been invited and allowed to enter that kraal
can they go in. If matters of that type are not known and not respected,
then one can so easily go wrong in one's extension services and methods
in attempting to apply approved agricultural methods with these people.
Another factor which is very important in the promotion of agriculture,
as far as the officiais are concerned, is that we must accept that they
have reached these different stages of development and development
must therefore not be revolutionary, it must be evolutionary, because
then it wiH be more acceptable to them. Now, if I may quote a few
examples just to illustrate what I am trying to explain, Mr. President.
If we take in South West Africa the case of the Bushmen. \Ve know that
the Bushman is nomadic, we know that he is a hunter, he is a gatherer
of food; he is not accustomed to living a settled life. \Vhat would the
approach be in a case like that? It is no good trying to find them, wherever
they are, and saying we are offering you a few cows, we bring you some
cattle or we want to tell you how to cultivate or till the soil. The first
step would be to create a few water points because of the scarcity of
water in the areas in which they normally roam, induce them to corne
to these water points and live a more settled life. Once one has reached
that stage where they begin to get confidence in the officiais and see that
they have brought the water for them and they are not harming them,
and so on, they begin to gather there and the next step will be to bring
stock such as goats, to show them the goats, to show them the benefit
of the goats and to show them that they can use the milk of the goats,
and so on. Then the next step will be to bring a few cattle-a few cows
and to assist them in the milking of the cows and that sort of thing and
show them that they can utilize that milk. The next step will be to use
some water from the bore-holes, or water points, which have been
provided, and to plant some vegetables and show them the advantages of
the growing of vegetables and how they can live a more settled life. Now
that would be the technique of approach in the case of the Bushmen.
In the case, again, of the Ovambo, where he is already practising a
more advanced stage of agriculture, although it is still an elementary
form of agriculture but a more advanced stage than the group I have
just been describing the approach will be different in this sense, that one
will not know that they are both cattle farmers and practising crop
farming. So, one can approach them on the thing which one knows will
be acceptable to them. Now what will be the most acceptable to them?
Will it be stock farming or wilJitbe crop-farming? In the case of Ovambo
one would say that it would definitely be stock farming, that is, to try
and improve, or persuade and induce them to improve, the type of
stock that they have.
By studying the agro-ecological conditions, Mr. President, one realizes WITNESSES AND EXPERTS 2I5
that these animais have adapted themselves to prevailing conditions and
that it might be very harrnful to introduce exotic breeds, but one can
start off by explaining to them that they can combat diseases, because
some diseases are prevalent in Ovamboland one has tci teach them and
try to induce them to save their cattle by combating the disease, by the
application of prophylactic treatment. In this they might be interested.
Actually we have succeeded in that respect. We have explained those
things to them and they have accepted it. They have reached the stage
where they are interested, but they have not yet reached the stage where
they are prepared to dispose of their stock, to sell it and to enter a
market economy as far as stock is concerned.
The next step would be, again, as far as the crops that they grow are
concerned, to indicate to them the low fertility of the sand that they are
working up in mounds and that it could be fertilized by the addition of
kraal manure, and also that yields could be increased by the use of
improved seed varieties. This they have already accepted, but it was on
account of the approach. The approach was not that of telling them that
they must sell all their stock because if droughts corne and so on the
stock will die, it was to try to induce them to combat the diseases and
to try to induce them to use better seed varieties and to use kraal
manure. '
In the case of the Herero people again, who are mainly cattle farmers,
they have already reached the stage where they have entered into the
market economy. They are alrcady selling cattle. Now that is not a
difficultta;;k. One's approach should be to induce them to use improved
stock, use improved sires, so as to improve the quality of their stock.
This they are readily accepting. They are already using these improved
sires. Not ail of them, but some of them are already doing it, and the
approach there would be from the stock angle. You see, they are pastor
alists and cattle farmers-the approach was from that aspect and they
have accepted it, but one must also take into account m introducing
these improved animais that they are also still superstitious about
certain things. For instance, thcy are superstitious about the polled
animal, soit is no good bringing an Aberdeen Angus to them because it
will just not be acceptable to them. The same as far as certain colours
of cattle are concerned, they are prejudiced against certain colours, or
superstitious, if I may use that word, soif a specific breed of colour not
acceptable to them, although it rnay be of an improved breed, is brought
to them, they will not accept it.Now, Sir, I think I have cited a few
examples ...
Mr. MULLER: I think that is sufficient, Mr. Pepler. Can you say from
your experience whether the policy which you have just explained, that
1s, differential treatment, methods of developmcnt, has given good
results?
Mr. PEPLER:Mr. President, yes, I definitely think it has brought good
results and progress to a certain extent. If I may revert to the Bushmen
-I cited the approach just now-as far as success is concerned I can
report that quite a number of them are already living a fairly settled Jife;
in Tsumkwe for instance, a fairly large number of them are living a
fairly settled life, and they have already accepted the goat; they ha"'.e
already reached the stage where they are building kraals for thew
goats. At other similar posts they have already acccpted cattle, they are
milking cows now, and they arc living a more settled life. They have even216 SOUTH WEST AFRICA
reached the stage now where they are growing vegetables and so on,
and making use of these vegetables. They have actually reached the
stage, as far as cows and goats are concerned, whcre they have developed
a pride in these animals, and they have their own number which they put
round their neck, and they put the same number on their goat which
they regard as theirs and which they look after; so I think that is
definitely some progress that could be reported, Mr. President-a little
achievement, if I may say so.
As far as the Okavango people are concerned, again, and the Eastern
Caprivi people, I have mentioned already that in Eastern Caprivi nagana
and also lung sickness occur; now the approach here again related to
combatingthosediseases,and they have now readily accepted prophylac
tic treatment, they have readily accepted the inoculation of their cattle,
and actually they are taking a pride in participating in combating these
diseases now. In the case of the Okavango people, they are already
accepting cattle improvement by the selection of improved sires being
brought in, and they have reached the stage where they feel that they
arc really happy about it, and they have reached the stage where they
are also very, very happy to see the officiais when they visit them, both
the veterinarians and the agricultural officiais. Nagana is being ex
terminated very rapidly there as a result of their co-operation, and the
same applies in the case of lung sickness in Okavangoland.
In Ovamboland they have reached the stage where they are using
manure for their crops already; they have accepted improved seed
varieties; they are accepting the combating of stock diseases; they have
reached the stage where some of their own people have been trained
already to do the inoculation work and they are doing it themselves now;
they call themselves inspectors and they go around and do the inocula
tion, etc.; but there is just this one phase which we could not succeed in
yet, 1\fr. President, and that is that they will not part with their stock
yet. If I may cite an example the Oshikango Hospital has been put up
quite recently with over 400 beds, where meat is badly needed and they
have the ready market next to them; they have been entreated to bring
stock there but they refuse to do so-they do not want to part with their
stock. The position is now that we have to introduce the slaughter stock
from the Kaokoveld, where most people are prepared to sel! stock.
That is the case so far as the Ovambo are concerned; the Nama in the
Southern portion, again, have already corne to the stage, in cases where
they have been working on the European farms and they have seen
what karakul breeding meant, and so on that they have acquired karakul
rams and they are already breeding karakul, and quite a number of them
have thus entered the money economy. These are a few examples as far
as South West Africa is concerned. In the case of the Republic I think
I can report progress in the sense that the people have in certain in
stances, where certain irrigation schemes have been developed, accepted
them readily; they are making full use of them and they are definitely
attached to and settled on these schemes as full-time farmers.
I must also say that we do have our problems and set-backs at timcs;
in cases, for instance, like irrigation schemes one finds that they make
use of the scheme, they follow al! the advicc givcn to them, they put in
their seeds, they work, the whole family work on the land, and they get
good crops. Then they are assisted in the marketing of those crops and
so on, but by the end of the season when the ncxt crops are to be put in, WITNESSES AND EXPERTS
217
one finds that they are still living in thcir residential areas and they
refuse to corne and till the soil again, for they say "Well, l've got enough
money for the next two or three years, so why must I now corne back
and till the soil?" Those set-backs we accept-we realizc, Mr. President,
that one must in one's approach be tolerant and patient, and knowing
the people, working amongst them, understanding the people-! do not
say this to try to belittle the people-we do anticipate and we do expect
these set-backs, but we know that with perseverance they can also be
overcome. I can cite one actual example of the set-back I have just
mentioned, with your permission, and that is where a specifi.c type of
farming was brought to certain people, viz., improved dairy farming,
and the people were very interested; they were actually specially selected
people in their group, and a farm was specially set aside for them where
they were assisted in acquiring very gooù dairy cows; they went so far
as to dig their own silo pits; they gathered their maize, etc.; they ensiled
it for the winter months; they even went further and put in claver and
grass mixtures for grazing for their stock. They made excellent progress,
receiving anything from 600-800 rand a year. We as officials were very
proud, Mr. President, of the success, having specially selected these
people and so on, but after three years they started disappearing,
started selling their improved cows, started just leaving the farming.
operations altogether. Upon enquiries, the reply was the same: "\Ve
have got enough money for quite a number of years now-why should
we work?" As I say, I do not cite such sample, Mr. President, to belittle
the people; it is merely to show the Court that we and the officials be
longing to the Department dealing with the people understand them,
and we know that wc must be patient and tolerant. Yet we are very
optimistic that progress can be made, and we have definitely got cases
where farmers who have appreciated our advice and have defrnitely
progressed, and they do not run away from the farming projects any
more, they stay there permanently.
Mr. Mm.LER: Mr. Peplcr, you have now dealt up to this stage with
agriculture only; can you tell the Court what the approach is in other ·
economic spheres-industry, commerce, etc.?
Mr. PEPLER: Sir, the approach is naturally very much the same, but
in the European sector, of course, it is different in this sense: that the
European can act-he has the financial resources-as the entrepreneur,
he takes the initiative, he takes all the responsibilities in respect of
industry, and he has to find his own way. In the case of the non-\Vhite,
they still lack not only the means but also the skill and the initiative.
Again, as far as mining, for instance, is concemed, very little has been
done in South West Africa in tha t respect; there is one man prospecting
in the Kaokoveld already, but a further geophysical survey is still being
made. We know of the salt and the soda-ash possibilities in Ovambo
land-that can be exploited. As a matter of fact, the Bantu Investment
Corporation is now doing whatever it can to exploit the possibilities of
obtaining salt and soda-ash from the area so that this can be exploited.
In the case of industry, certain progress has definitely been made
already. In Ovamboland, for instance, a factory has been put up quite
recently for making furniture. The Bantu Investment Corporation has
put up the buildings, it has brought the know-how, it has got two in
structors, but for the rest there are only Ovambo people working in the
factory. Small brick-making factories and so on are also at present being218 SOUTH WEST AFRICA
put up; these are to be carried on in that particular area in Ovamboland.
As far as industries are concerned in the Republic, I think we have
advanced further there; the Bantu Investment Corporation has not only
started quite a few factories in the homelands, but has even reached the
stage where it has helped some of the Bantu people themselves to start
factories in their homelands. I can cite one specific example in the
Republic where a man has a cane factory; he was advanced by the Bantu
lnvestment Corporation an amount of 30,000 rand to assist him to put
up the factory; at present he is employing 77 employees-1 was there a
few weeks ago and I checked on the figures; he is doing quite well for
himself, Sir,and he has got a ready market everywhere in the country;
as a matter of fact I saw his balance sheet, too; he has a turnover of
u2,ooo rand per year and has a net profit of 14,000 rand per year. So
progress is more advanced, I must say, in the Republic than it is in
South West Africa.
As far as commerce is concemed, there are quite a few hundred traders
already in South West Africa. There again the approach in Ovamboland ·
was to say "Now, if you want to trade, you can trade", and then ulti
mately they sorted themselves out, and we have reached the stage now
where there are quite a number of traders on a satisfactory footing.
There is just one other aspect, Sir, which I would also like to mention,
and that is home industries.
Home industries is an activity that is definite1y being encouraged.
The Native peoples have the aptitude to make wonderful articles, handi
craft articles, and that is extensively being encouraged in South West
Africa, particularly in Ovamboland and Okavangoland. The people have
a ready market for these things in the Police Zone and elsewhere. They
have a standing order from the Administration for quite a large amount
and what is more, they are also marketing, we are assisting them in
marketing the stuff in the Republic and there is such a demand for it
that every endeavour is now made to encourage them to make more of
these things-basket work, woodwork-which we know they have the
aptitude to make. These home industries are being encouraged and
specially put up for the different national groups so that they can have
a ready market for them and the idea is to encourage them to make these
things so that they can have regular incomes for these products. I may
cite the special depot which has been put up in the Republic and the
sales for the stuff are so extensive there that one cannot really supply
the demand. The turnover is approximately 3,000 Rand per month but
that is still under the guidance of the Bantu Investment Corporation-it
is nevertheless for the exclusive benefit of the people themselves.
11fr.MULLER: One final question~an you tell the Court what, in your
opinion, the effect would be if these methods of differentiation, measures
of protection, were to be done away with; for example, if by reason of
the existence of a norm, rule or standard the governing authority were
prohibited from differentiating between the inhabitants of South West
Africa on the basis of membership of a group or tribe?
Mr. PEPLER: lt is my persona! opinion that ifa norm of this nature
has to apply, if I interpret it correctly, it will be a very tragic day for
the Native peoples. The whole object of the Mandatory to protect the
land rights of these people, the whole abject of assisting them socially
and economically sa that they can develop their areas into self-governing,
independent homelands, will be defeated. Mr. President, I think that WITNESSES ANDEXPERTS 219
other groups, 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 less developed people, will be the sufferers for it.
Secondly, Mr. President, my opinion is that if the top layer of any
national group has to be integrated into the more developed groups, it
will merely mean depriving that group of its leaders, those leaders who
could guide and assist the group into nationhood. Sir, if that has to
happen, then my persona! opinion is it must lead to the ultimate dis
integration of the underdeveloped national units.
Mr. MULLER:Mr. President, I have no further questions to putto the
witness. Thank you.
Mr. PRESIDENT:I see, Mr. Gross, it is now ten minutes to one, would
you desire to put any questions before one o'cloçk? Would you prefer to
leave it until tomorrow?
Mr. GRoss: If it so pleases the Court.
. [Public hearing of 29 September r965]
The PRESIDENT:The hearing is resumed. Witness, will you corne to
the podium? Thank you. Mr. Gross.
Mr. GRoss: Thank you, Mr. President. Mr. Pepler, would you be good
enough to tell the Court, Sir, what the extent of your travels in South
West Africa have been, roughly in terms of time spent there and areas
covered by yourself, Sir?
l'lfr. PEPLER:In South West Africa, Sir?
Mr. GROSS:Yes, ifyou please, Sir.
Mr. PEPLER: Sir, I went to South West Africa the first time in 1955
and I spent three weeks all told there. I flew up to certain parts and
from there I made use of Land Rovers and crossed the northern part,
that is the Kaokoveld, Ovamboland and Okavangoland. Then I came
down towards the south. 1 crossed Epukiro and Ovitoto, that means the
eastern part of the Territory, and I came right down to the south as far
as Bondels. That was during the first three weeks when I went there in
1955.
In 1957 I went there again with the particular abject of explaining to
the officials what was meant by agricultural planning and development;
I visited Otjimbingwe for several days. We examined the area very, very
carefully; we studied the conditions there, the agro-ecological conditions
and I explained to the officiais what we meant exactly by planning on a
farming economic unit basis.
At a later date-I cannot exactly say whether it was 1960 or 1961-I
went again to assist the officiais there and we visited quite a number of
Reserves in the south.
In 1962 l went with our Minister. We again crossed the northern areas
right from the Eastern Caprivi, where we conducted quite a few meetings.
We also conducted a few meetings in all three of the other northern
territories and then we came south again as far as Epukiro. My final
visit was in March this year when I went by 'plane down to the south.
I visited a few ofthe southern Reserves and then I went up north, again
to the Eastern Caprivi and crossed all the other homelands.
Mr. GROSS:Thank you, Sir. In your visits there and in the course of
your studies and discussions, did you have occasion to hold discussions220 SOUTHWESTAFRICA
with members of the non-White groups in the various areas you visited?
Mr. PEPLER:Yes, Sir, particularly when the meetings were conducted.
Mr. GROSS:Sir, in what language were those meetings conducted?
Mr. PEPLER: Mainly on the agricultural aspects ...
Mr. GROSS:No, Sir, I am sorry I did not make my question clear.
What language, what medium of communication was employed?
Mr. PEPLER: There were interpreters. The language employed was
either English or Afrikaans depending on what the interpreter could
interpret into best, but we always used interpreters in communicating
with the different groups.
Mr. GRoss: The non-Whites with whom you spoke generally could
not speak English or Afrikaans. Is that correct?
Mr. PEPLER: Their leaders could invariably speak either English or
Afrikaans, but for the sake of the majority attending these meetings an
interpreter was used.
Mr. GRoss: Was that condition true·, Sir, in the southern sector as well
as in the northern areas?
Mr. PEPLER: Yes, Sir.
Mr. GROSS:Approximately how much time have you spent in the
southern sector outside the Reserves?
Mr. PEPLER:Outside of the Reserves, not much, Sir, because I do not
deal much with the White sector.
Mr. GROSS:Are you personally familiar on the basis of first-hand
knowledge, if I may put it that way, concerning the conditions on the
farms in the rural areas of the so-called White sector?
Mr. PEPLER: Not personally, Sir, but I had quite a number of discus
sions with the agricultural officials there, that is, the veterinariaand
the staff working at Omatjenne Experimental Station, and on my travels
I traversed quite a number of these farms.
Mr. GROSS:I believe it may be pertinent to put into the record at this
point figures with regard to the population distribution by White and
non-White in the rural areas of the southern sector. The figures derive
from tables in the Odendaal report-table XVIII-1 am sorry to take
the Court's time with this, Mr. President.
The PRESIDENT:Table XVIII is on page 39, if that is what you are
Jooking for.
Mr. GRoss: Yes, Sir. On page 39 and particularly table XIX on page
4r. From those tables the figures derive that in round numbers there are
68,ooo non-\Vhites in the rural areas of the southern sector outside the
Reserves-68,ooo non-\Vhites in the rural areas and 20,000 Whites. Do
those figures correspond to your own appreciation, Sir?
Mr. PEPLER: Yes, Sir.
Mr. GRoss: And it appears from the Counter-Memorial, III, on page
74, that there are some 25,000 adult male Natives employed by farmers
in that same area. Does this correspond to your understanding, Sir?
Mr. PEPLER: Yes, Sir.
Mr. GRoss: In other words, there are more adult male Natives em
ployed on the farms than there are Whites in the rural area? That would
be correct?
Mr. PEPLER: Yes.
Mr. GROSS: In the southern sector-T am speaking now about this
population whose numbers we have just talked about, in the south
ern sector outside the Reserves-are you familiar, Sir, with restrictions WITNESSES AND EXPERTS 22I
or limitations imposed by law on the acquisition and use of farm land?
Ilfr. PEPLER: Of farm land? ln the White sector?
~Ir. GROSS: Yes, Sir. We are speaking about the southern sector
outside the Reserves.
;\lr. PEPLER: Outside the Reserves-no restrictions whatsoever that
I know of, Sir.
Mr. GROSS:Now, Sir, are you familiar with the restrictions on the
lcase or assignment of farm lands to non-Whitcs?
Mr. PEPLER: No, I am not familiar with any restrictions, Sir.
Mr. GROSS:These facts are undisputed in the pleadings, as I shall cite
to you, Sir. On pages IIS and n6 of the Memorials (I) the averments
are made by the Applicants, among others, that (this relates to land in
the southern sector outside the Reserves)-1 read from page u6, Mr.
President:
"... the standard form of lease contains a condition that ifthe
lessee marries or habituallv cohabits with a 'Native' or 'Coloured'
person, his lease becomes subject to immediate cancellation. \Vhile
the settler may sublet or transfer his interest in the land with the
written consent of the Administrator, he may do so subject only to
an express condition that 'in no case will consent be given to any
hypothecation, assignment, transfer, sub-lease or subletting to
natives, Asiatics or coloured persans'."
Have you corne across those provisions, Sir, in your cxperience?
}1r. PEPLER: 1 have not corne across any of those but I presume that
that rcfcrs to State lands and land that originally belonged to the State
and was given out by the State. As far as private property is concerned,
land which was not the State's originally and was acquired by indivi
dual farmcrs, the provisiôns do not apply, to my knowledge.
Mr. GROSS:Your understanding, Sir, is that the \Vhite farmers are
permitted to assign or sub-lease farm lands to non-\Vhites?
Mr. PEPLER: Provided it was not State land before that time, Sir.
Mr. GRoss: Now, could you explain to the Court, Sir, the reason for
that distinction to which you have testified concerning the legal restric
tions imposed with respect to land formerly State land and which is now
owned in fee and which was not formerly State land?
Mr. PEPLER:Sir, I am afraid, as I explained yesterday and mentioned
this morning, I deal mostly with the non-White population. I am not
acquainted with the legislation as far as the White sector is concerned.
If I may comment on that subject, coming back to your original ques
tion that there are more male non-Whites in the White sector than in
the non-White sector, I have made a survev of that particular section
and my conclusion is that there is more than énough land in the Reserves
to accommodate the non-Whites on an agricultural basis, on a farming
economic unit agricultural basis. There is more; than enough room for
them and, therefore, they must have left the Rcserves and find them
selves on the European farms of their own choice.
Mr. GROSS:Sir, perhaps I rnisunderstood your testimony. The question
which I addressed to you and which I thought you had answered before
related to the ratio of \Vhites to non-\Vhites in the southem sector
outside the Reserves-vou understood that, Sir?
Mr. PEPLER: Yes, I "understood that but if I may explain-the fact
remains that far more people can be accommodated on a full farming222 SOUTH WEST AFRICA
economic unit basis in the southern Reserves than one actually finds
there. Now I take it, my assumption is, that they prefer to go to work
on those White farms and in normal practice where a White farmer
employs labour he might employ up to 10 or 12 employees on his farm,
and for that reason you must invariably find more non-\Vhites on a
White farm than Whites.
Mr. GROSS: The fact is, Sir, is it not then, that the non-Whites in this
area to which we are referring, outnumbering the Whites in the rural
areas as they do, may and do work on the farms but are not permitted
to lease or sub-lease those farms-is that correct, Sir?
Mr. PEPLER: I cannot answer that question. As I say, I am not aware
of the legislation in the White section.
Mr. GROSS: Just again to complete the record. In the Counter-Memo
rial,III, at page 32-with reference to the paragraph from the Memo
rials, which I have read a few moments ago-paragraph 29 in the
Counter-Memorial states among other things "the facts contained in this
paragraph are admitted" and there is some further discussion which is
self-evident from reading it. The explanation given, and I would like to
address your attention to this, in this same discussion on page 32 of the
Counter-Memorial, is as follows:
"The reasons why Respondent formed the view that 'the Natives
generally have not yet reached the stage of development where they
would benefit from individual land ownership, particularly of farms'
appear from the limited nature of their agricultural activities as
described above 2."
Then the footnote is to the description elsewhere in the pleadings.
Sir, I should like to ask you whether the reference to the Natives
generally, and I stress the word generally, on the basis of your knowledge
of the agricultural situation, can fairly be interpreted as meaning that
there are indeed exceptions to the generality~is that correct, Sir?
Mr. PEPLER: Sir, if I understood you correctly, it conveys the idea
which actually exists in the Southern sector and that is that quite a
number of people are still practising the traditional subsistence economy.
Quite a number of them have not acquired the number of stock which
they would Iike to have and so on, and for that specific reason, they go
out and work on the White farms.
Mr. GRoss: Your use of the term "quite a number"-would you care
to indicate to the Court, on the basis of your expert knowledge or any
knowledge, approximately what proportion of the non-Whites would be
exceptions, roughly what proportion, what percèntage?
Mr. PEPLER: Sir, I would say over 50 percent.
Mr. GROSS: Sir, the 50 per cent. would be exceptions from the gener
ality that the non-Whites, or Natives as they are called here, generally
have not yet reached the stage of development requisite to landown
ership and utiliza tion?
Mr. PEPLER: Sir, yes, if you will allow me to take the case of the
southern areas which we are discussing now. I have some figures available
here showing that (if you will allow me just to look it up), according to
my calculations, in the southern areas approximately 4,817 families can
be accommodated as full-time farmers in that area, whereas there are at
present less than 2,000 families practising farming in the southern areas.
Mr. GROSS: Sir, again on the same general point, and again in reference WITNESSES AND EXPERTS 223
to the restrictions upon alienation, leasing and assignment and sub
leasing, which are undisputed in the recdrd, in the citations I have given,
the further explanation is made on page 33, of the Counter-Memorial,
III, and I quote from paragraph 30:
"A necessary corollary to the fact that Natives and Coloured
persons are regarded as on the whole not sufficiently advanced to
meet the rigorous requirements of commercial farming in the Terri
tory, is that White farmers should not, at any rate while ownership
in the farms remains vested in the Administration, be entitled to
cede or assign their leases to non-Whites. However, once the fanner
becomes owner of the land, no restraint is placed on his right of
aliena tian.''
That latter is the point you made before.
Now, Sir, I should like to call your attention to the phrase-"A
necessary corollary to the fact that Natives and Coloured persans are
regarded as on the whole not sufficiently advanced to meet the rigorous
requirements ... "-that also would necessarily apply, would it not, Sir,
to exceptions to the ·generality?
Mr. PEPLER: Yes, definitely, Sir.
Mr. GROSS: And, Sir, in your testimony of yesterday, you, if I may
refer to the record, stated that with respect to certain groups, you
testified for example at page 210, supra-in the southern part of the
southern sector, some Native farmers have already entered into the
money or exchange economy-that was your testimony, was it not,
Sir?
Mr. PEPŒR: That is correct.
Mr. GROSS: You also testified on page 215, supra, of the same verbatim
that the Herero "have already reachcd the stage where they have entered
into market economy".
Mr. PEPI.ER: That is correct, Sir.
Mr. GROSS: And on page 216, supra, you testified ycsterday, Sir, that
"the Nama ... have already corne to the stage where they are breeding
karakul" and "quite a number have already entered the money economy".
Is that correct?
Mr. PEPLER: That is correct, Sir.
Mr. GROSS: So that on the basis of your testimony, there are excep
tions to the generality references to Natives "on the whole" and that sort
of qualification-are there not, Sir?
Mr. PEPLER: Yes, that confirms what I have stated, that some amongst
the same group have reached a more advanced stage than the others but
they are definitely, to my knowledge and my experience, in the mino
rity.
Mr. GROSS: They are in a minority, Sir. Now with respect to that
minority, would you explain to the Court, Sir, why that minority,
whatever its nurnber may be, is subject to restrictions of the sort de
scribed in the pleadings. If they are not at the same low level, shall we
say, as the majority, why are they, this minority, subject to those
restrictions, Sir?
Mr. PEPI.ER: ]\frPresident, I cannot explain exactly what the reason
is for this.As I have already stated, I am not acquainted with the legal
position but from the practical point of view, I think I can give an answer
in this sense, that according to my survey and our planning made in SOUTH WEST AFRICA
224
terms of the agro-ecological regions and the carrying capacity of the
different Reserves, far more people, I am talking about the non-\Vhites
now, can be accommodated agriculturally in their Reserves than what
we find there today. Actually far more stock can be carried in those
Reserves than we find there today. So if there were any of those more
advanced people, who desired to remain as farmers in their Reserves,
there is absolutely nothing to stop them from doing so. Actually, there
are some of those people in the Reserves today who own up to 500 head
of small stock.
Mr. GRoss: Would it then be accurate to say, Sir, regarding the
southern sector, the rural areas outside the Reserves, that the restrictions
which have been described are based on a policy which is extended to
the group as a whole, irrespective of the minority, who are qualified to
exercise these rights and to make effective use of the land?
Mr. PEPLER: Sir, I interpret it this way that there is no need at present
for them to have more land and seeing that the groups want to remain
together through their own choice, I presume that for that specific
reason, this restriction might have been applied-if there is such legis
lation, I have, however, already pojnted out that, to my knowledge, it
does not occur in the case of privately owned farms. But my answer to
tha tquestion would be tha t there is no pressure whatsoever, land pressure,
in the Reserves and I do not see any curtailment on these people in this
respect which will affect them detrimentally.
Mr. GROSS: In other words, Sir, if I understand you, you are not in a
position to explain the restrictions to which I have referred in respect
of the qualified non-Whites who reside in the southern sector outside the
Reserves?
Mr. PEPLER: No, that is outside my field, Sir.
Mr. GROSS: That is outside your field. Now, when therefore the
Respondent in, for example, the Counter-Memorial, Ill, at page 33,
relating to the prohibition of assigning leases to non-Europeans, says as
follows: "When Respondent deems the Native population ripe for indi
vidual land settlement, provision can be made therefor", did the refer
ence there to"Native population", in your opinion, referto every Native
in the population?
Mr. PEPLER: I explained yesterday that they are not yet accustomed
to individual land tenure, it is against their traditional customs; they
want land tenure to be on a communal basis, and I think, that is my
personal view, that the idea is not to give them private, individual land
ownership unlcss it is their wish-the wish of the people themselves, as a
group, not as individuals.
M.r.GRoss: The individual wish in that respect, therefore, is regarded
as irrelevant as a matter of governmental policy, is it, Sir?
Mr. PEPLER: No, I would not say that.
Mr. GROSS:Then would you please, if you will, clarify your response
in the terms of the group consideration? Suppose a qualified individual
wishes to lease land for farming purposes in the Southern scctor outside
the Reserves, would that individual be rejected because he is a member
of a group, or would there be some other reason?
Mr. PEPLER: No, definitely not. I have already indicated that as far
as individualland is concerned, acquired by the individual Whites outside
land that used to belong to the State, he is absolutely free to do so; there
is nothing to forbid him doing so. WITNESSES AND EXPERTS 225
.Mr. GROSS: I am now referring, then, to land in the former category,
that is to say, State land or former State land; would you answer my
question in terms of that type of land?
.Mr. PEPLER: As I said, that is outside my field. I am not in a position
to answer that question.
Mr. GROSS: You are Director of Ban tu Development, are you not-is
that the title of your post?
Mr. PEPLER: That is correct, and may I qualify it by saying that I
have never yet felt the need or necessity togo into those matters, because
my experiencc is that ail the people at present living in the southern as
well as the northern sector could be accommodated on a sound agricul
tural footing on the lands reserved for them in those parts, so there was
never any need for me to go into those matters.
l\lr.GROSS: One of the points to which your evidence has been directed
and to which you have testified is stated in the letter to which Respon
dent's learned counsel has referred on 22 September: "The reasons for
differential treatment in the economic development of the areas occupied
by different population groups." I am referring in that context to the
reasons for differential treatment in the southern sector outside the
Reserves in the rural areas. Is it your testimony that you are not ac
quainted with the restrictions upon alienation or assignment or leasing
on a racial basis in that sector?
Mr. PEPLER: Yes, that is my evidence, that I am not acquainted with
that. .
Mr. GROSS: So that your testimony is not intended to be directed, as
a witncss or as an expert, to reasons for differential treatment in this
area which we have mentioned-that is a correct summation, is it?
Mr. PEPLER: In the White sector, yes.
Mr. GROSS: In the rural areas outside the Reserves?
Mr. PEPLER: Yes.
Mr. GRoss: I should like, then, to turn to a more basic question, and
that is the fundamental premise of separate development-a major
premise, let me put it that way. You are familiar with the general pohcy
of separate development or apartheid, are you not?
Mr. PEPLER: Yes.
Mr. GROSS: Is it not the fact that one of the major premises of the policy
of separate development or apartheid, known either way in the record,
is that the White or European is given a priority or exclusive position in
the White .uea, the condition of reciprocity in theory being applied so
that the non-White is given a similar position of exclusivity or priority
in his own area-is that a correct summa.tion of a major premise of the
policy?
Mr. PEPLER: No, I do not agree with that. The European has a land
area set aside for him and reserved for his occupation, and in a similar
manner land has been set aside and reserved for the non-Whites in which
the rights of the Europcan have also been limited; he ca.nnot acquire
any land in the non-White sector; he cannot even lease land there; he
is not allowed to enter that land without a permit; so I definitely do not
agree.
Mr. GROSS: \Ve perhaps misunderstand each other, but let me put it
to you in the tenns in which it was explicitly put by Prime Minister
Verwoerd when he was lV[inister of Native Affairs in 1956. This is cited
from the Counter-Memorial, III, at page 175-we are referring now to226 SOUTH WEST AFRICA
~ basic premise of the policy of separate development to which your
testimony is directed:
"In these territories [that is to say, the Native areas] the European
has no daim to property and certain civil rights. There he is the
temporary inhabitant who helps with the development of those
areas, but they belong to the Natives. The rights of the Natives are
bound up with this fact ... Just the opposite is the case in the
European areas. There is the home of the European's rights and
there the Native is the temporary resident and the guest, for what
ever purpose he may be there."
Do you agree with that as a correct statement of a major premise of the
policy of apartheid or separate development?
Mr. PEPLER: I fully agree with that statement.
Mr. GROSS:Then, in the southern sector outside the Reserves, would
this not be an important element in the explanation for the restriction
upon rights of alienation or leasing, which concededly exist there?
Mr. PEPLER:That would be the explanation.
Mr. GROSS:And could it not be said, then, that the restrictions upon
alienation and leasing and assignment of other interests in land are
imposed on the basis of whether a person is a \Vhite or a Native?
Mr. PEPLER: There is this policy of differentiation between the differ
ent national groups-I think that is generally accepted, and the known
policy of the Republic of South Africa---differentiation.
Mr. GRoss: So that you would also agree, would you not, then, with
the statement in the Counter-Memorial, III, page 233, that-
"Respondent has treated various parts of the Territory as areas
in which particular population groups are to have certain priority
rights of use and occupation, and that its policy in that regard,
far from being 'arbitrary', is based on what Respondent considers
to be a necessity inherent in the socio-economic situation in the
Terri tory; and, far from being 'discriminatory', attempts at achiev
ing a fair balance between the legitimate aspirations of the various
groups."
Do you agree generally with that statement which I have quoted from
the Respondent as an analysis of the policy of separate development to
which you are testifying? .
Mr. PEPLER: Yes, I do, but it is based, if I may explain there, on the
fact the Whites are looked upon as, and they are, the more advanced
group, and they regard it as their duty to protect the rights of the less
developed people, and for that specific reason that policy is adopted,
and is practised.
Mr. GROSS:The reference to-let us take the question of the matter
of priority rights of use and occupation-! quote from this excerpt I
have read-"attempts at achieving a fair balance between the legitimate
aspirations of the various groups"; wou1d you say that the reciprocal
limitations upon rights that are referred to by Prime Minister Verwoerd
as certain civil rights and daim to property-would you say that the
reciprocal denial or limitation of those rights involves the determination
of a fair balance between the legitimate aspirations of the various groups
in the respective areas?
Mr. PEPLER:Yes, I would definitely say so.
Mr. GROSS:Now, in the case of the southern sectoroutsidethe Reserves WITNESSES AND EXPERTS 227
where there are these population groups which I have placed into the
record, who makes the determination as to what is a fair balance be
tween the lcgitimate aspirations of the White and the non-White groups?
Mr. PEPLER: I cannot answer that question.
Mr. GROSS:Does your departmcnt or function have anything to do
with respect to the matter of determining the fair balance between the
legitimate. aspirations of the White and the non-White groups?
Mr. PEPLER: My department dcals with that rnatter, but I am an
agriculturalist and, as I have already indicated, the land which has been
reserved for the non-White people and which it is proposed to extend in
terms of the Odendaal report makes ample provision for the prescnt
population numbers to be established as farmers in their Reserves, that
is, as farmers exdusively, which is the basic form of primary develop
ment. When one cornes to the secondary sector, that is, the commercial
sector, then one must find with progress that those people, irrespective
of their group, must also enter that sector of the economy. But my
finding is that up to the present there has been no need whatsoever for
me, for instance, as an agriculturalist, to go to my department and say
that I find that there is a shortage of agricultural land in the Reserves.
M.r.GRoss: Your testimony, if I understand, is then intended by you
to be directed toward the question of land utilization and land shortage
as a technkal, agricultural, production question?
.Mr.PEPLER: Yes.
Ms. GRoss: Your testimony, as directed to the reasons for differential
treatment in the cconomic development of the areas occupied by different
population groups, is then not based upon nor rcflects the premises upon
which the policy of differential treatment is based?
Mr. PEPLER: I do not follow that question.
Mr. GROSS:Your testimony with respect to the reasons for diffcrential
treatment-is that intended by you to reflect considerations of the
premises upon which the policy is based, let me say, in social or political
terms, or both?
Mr. PEPLER: My answer to that question is again that I am dealing
with these different non-White national groups, and I know what the
policy is; I know that the policy is to protect the rights of those people
in every respect, and those rights that are protected in their Reserves
are of a reciprocal nature. As I have already explained, up to this stage I
have never corne across any instance where it was nccessary to approach
the Government to say that there is a dearth of land or that the land
reserved for the different non-White groups is not suffi.dent to accom
modate them.
Mr. GROSS:I would just wish to put one further question on this
specific line as to priority of use in several areas, depending on the race
of the inhabitants. In the Counter-Memorial, III, page 266, it is stated
that, à propos of achieving and maintaining a balance between the legiti
mate aspirations of the various groups, this "can best be accomplished
by setting aside, as far as practicable, an area for the exclusive use and
occupation of each group". Can you advise the Court whether this policy
is applied in the southern sector of the Territory outside the Reserves?
Mr. PEPLER:Yes, Sir. I have already indicated that the Whites in the
White sector have no rights in the non-White sector, to the different
limits that have been discussed here this morning, and the same applies
the opposite way.228 SOUTH WEST AFRICA
:tlfrGROSS: In the southern sector outside the Reserves?
Mr. PEPLER: Yes, Sir.
Mr. GROSS: ln respect of the reciprocity (I use the word: I am not
sure whether you would agree with the use of it, or would you express a
view on that? There is a reciprocity of limitation of rights-is that an
agreeable way of expressing it, do you think?), do you, as an expert in
the field of Bantu development and agriculture, regard the land policy as
inter-related with the economic and political aspects of the policy of
separate development?
Mr. PEPLER: Definitely inter-related with the economics of the different
sectors.
Mr. GROSS: And the politics, or political rights and freedoms of indi
viduals, would that be a related aspect of the land or agricultural policies?
Mr. PEPLER: The political aspects in their own Reserves or homelands
apply so that they have exactly the same political rights there as the
Vvhites have in their sector.
Mr. GROSS: And, conversely, that the deprivation of rights-just to go
over the same ground, I admit, briefly, but to put it in this context
specifically, the denial of rights, respectively, is based upon the same
political policy.Did you understand my question, Sir?
Mr. PEPLER: I did not quite follow the question.
Mr. GROSS: If I understood you, you referred to the granting of rights
in the several areas-White and non-White. Just for the sake of com
pleteness I wondered whether your same answer applied to the denial of
rights on a reciprocal basis?
Mr. PEPLER: That is correct.
Mr. GROSS: The pleadings of the Respondent (I will be very brief
about this, Sir, not to throw a long quotation at you) in the Rejoinder,
V, at page 253, stated as follows:
"The primary question at issue is political-the form which
self-ruleand self-determination must take in order to avoid strife
and struggle for domination and preservation, and to ensure har
monious relations. In order to secure justice and sound relations in
these respects, which are of overriding importance, separate develop
ment is desirable."
And then I will call your particular attention to the following sentence:
"As a consequence, boundary lines become necessary also in the
economic sphere, otherwise attempts at political separatism would
be rendered nugatory."
Sir, would you, as applied to the land policy, express an opinion to the
Court as to what the phrase used by Respondent "boundary lines in the
economic sphere" would imply?
Mr. PEPLER: Yes. I shall gladly explain that. The object of that really
is that the boundaries, as determined for the different sectors, are not
only based on the development of agriculture, but on each of these
homelands developing a diversified economy. In other words, they
must also be enabled to go through the different stages, from the traditio
nal subsistence economy into the exchange economy and ultimately into
the export economy. ln other words, they must develop those different
homelands to the fullest extent, both agriculturally and economically,
and then the economy that grows in each and every one of those indi- WITNESSES ANDEXPERTS 229
vidual areas can be inter-related with the adjoining territories or areas.
Mr. GRoss: Would you agree, Sir, that it is an objective of the land
policy to further the objective of "political separatism" between the
White and non-White areas?
Mr. PEPLER:Yes, because the whole object is that each national unit
must develop as a political entity.
Mr. GROSS : On a racial basis?
Mr. PEPLER: I will not say on a racial basis-on an identity basis,
which they prefer tokeep themselves.
Mr. GROSS:Do you mean that \Vhites prefer to keep themselves in one
area and non-Whites in another area? Is that what you mean, Sir?
Mr. PEPLER: As amongst themselves-the non-Whites as amongst
themselves. In South West Africa, for instance, we experience it. I think
it is explained in great detail in the Counter-Memorial. For instance,
some years ago, in this century still, the Nama and the Hereros were
enemies and it would be unfair to group them together now in one
political, economicalstructure.
Mr. GROSS:In the execution of your fonction as Director of Ban tu
Development (is that the correct title, Sir?), do you proceed from the
basis that the objective of the policy is separate geographical areas in
which Whitcs, on the one hand, and non-Whites on the other, will be
carrying on their, lives.and their Iivelihood?
Mr. PEPLER: l'.es, S1T.
Mr. GROSS:Do you, in the application of your policies in that respect,
have any guide-lines with respect of timc for accomplishment of this
ultimate objective?
Mr. PEPLER: Sir, I cannot give guide-lines, but I can indicate, as I
did yesterday, that the different groups have reached different stages of
advancement, and some have reached further stages than others. I have
indicated the case of the Bushmen and if I may take the group that we
regard to be the most advanced at present, that is in the Republic, the
Xhosa-speaking group, the Transkei, for instance, they have reached the
stage of aclvancement where they have been given self-determination
already.
Mr. GROSS: Your policy, then, if I understood you correctly and
correct me if I did not, which you pursue in the discharge of your duties,
is based upon no approximate time for accomplishing the geographical
separation between Whites and non-Whites?
Mr. PEPI.ER: Sir, if 1 may explain that, in my capacity as Director of
Bantu Development I invariably corne across this phenomenon that if
one develops, let me call it a homeland, for any particular group, one
must take a.ccount of the customs and ways of life of the people concemed.
I think I have already explained it yesterday. My experience is really
that it is no use developing any homeland physically without the closest
co-operation of and without the closest consultation with the people
themsel ves, Physical development means absolu tely nothing if one
cannot condition the people with one and let them participate in what
ever development does take place. If I may use the word, Mr. President,
I always talk about balanced development and by balanced devclopment
I mean the physical development of the respective homelands, as well
as the human development-in other words, the devclopment of the
human aspect.
Now, I cannot see what could be achieved if one develops physically SOUTHWESTAFRICA
230
without a sound, solid foundation for the humans themselves. It is no
good, Sir, putting up a roof before you build the foundations of the
house-you must have this balanced development and that is why one
must definitely take into account the stages of development of the differ
ent ethnie groups that we are dealing with.
Mr. GRoss: Yes, Sir. Now, in respect of the accomplishment of the
geographical separation on the basis of race, does the calculation enter
into your policy or plans whether or not the 68,ooo non-Whites in the
rural areas of the southern sector, outside the Reserves, will be removed,
voluntarily or otherwise, as you choose, from that area to so-caIIed
homelands at some stage?
Mr. PEPLER:Will be removed voluntarily ...
Mr. GROSS:Or otherwise, which ever you prefer. I did not raise that
question, Sir. That they will, at some stage, no longer reside and work
in this sector, is that an objective or a principle upon which your policy
and plans are based?
Mr. PEPLER:The objective, Sir, is to develop these homelands in such
a way that they can accommodate the majority, or all the people if
necessary, but, there again, I must qualify that not only is it on an
agricultural basis, but it must be on a diversified, economical basis. It
means, that anyone is free who wants to go back to his Reserve, to go
back voluntarily, and I do not for one moment think that they will
ever be forced to go back.
Mr. GROSS:The purport of my question, Sir, is to enable the Court to
understand, as clearly as possible, what the ultimate objective of the
policy which you are administering in this respect is, with respect to the
physical separation of Whites and non-Whites: (a) is that an ultimate
objective of the policy and (b) is there a time-limit involved for its
accomplishment if it is a policy? Those are two questions in one, if I may,
Mr. President.
The PRESIDENT:I think it would be better if you broke it into two,
Mr. Gross.
Mr. GRoss: (a) first, if you please, Sir.
Mr. PEPLER: Will you just repeat it first.
Mr. GROSS:Yes, Sir. Is it an objective of the policy which you ad
minister in this respectthat there will be a physical separation of Whites
from non-Whites in separate geographical areas?
Mr. PEPLER: Not necessarily, Sir.
Mr. GROSS:So that when reference is made, still pursuing this same
point (a), in the Odendaal Commission report, from which I have quoted,
page 429, to the "separate geographical areas" or when references are
made to "separation" on the basis of development in separate areas,
do those statements mean, or do they not mean, that the objective is
partial separation only?
Mr. PEPLER:Sir, I would like to define the objective in this way, that
each national unit must have the land specially reserved for him where
it can develop, where that group can develop into full nationhood. But
if they have people who still desire to sell their labour, or want to work in
the White sector or any other sector, I cannot see that the boundaries
would be tied to such an extent that they would be prohibited from
doing so.
Mr. GROSS:Coming to my question (b), do your plans and policies
reflect,or are they based upon, any assumptions concerning the time WITNESSES ANDEXPERTS 231
within which a major movement will take place of non-White from the
rural areas of the vVhite sector?
Mr. PEPLER: Yes, Sir, definitely; that is why these homelands are
being developed.
Mr. GRoss: Now, Sir, what would be the approximate time-limit-that
is what I referred to before as a guide line for your planning-in which
this, may I call it, "mass migration" would be accomplished from the
White sector?
The PRESIDENT:What mass migration?
Mr. GRoss: Of the non-Whites from the White sector outside the
Reserves.
Mr. PEPLER: Sir, I do not foresee any mass migration whatsoever
because the development is so evolutionary, and as the opportunities
arise forhe people to go to their own homelands then they will go there
voluntarily and in an evolutionary way. So I do not foresee that there is
really a yardstick in that respect enabling one to say that it will take
so long. As I have already indicated, and I must stress this again; it is a
question of balanced development; and there has never been any idea of
pushing the people back without affording them a decent standard of
living.
Mr. GROSS:Sir, there are 68,ooo non-Whites in the rural areas of the
southern sector outside the Reserves-this is a figure which we have
established and agreed upon. ln your planning and policy can you advise
the Court whether, let us say, in100 years' time, there wilbe only 30,000
people as you project your plans and policies? There \vill only be, let
us say,30,000 people in the southern sector?
The PRESIDENT:Mr. Gross, no question of that description can have
any value: surely we cannot gaze that far into the future. You can ask
the witness, in respect of the problem you are concerned with, what the
contempla tes will be accomplished in 5 or10 or 15 years, but the question
which you putto him surely is seeking to gaze into the far future, which
no man can do.
Mr. PEPLER: Thank you, Mr. President.
Mr. GROSS:May I rephrase the question or change the question, Mr.
President, to bring out the point which we have in mind?
The PRESIDENT:Yes, please do.
Mr. GROSS:What do you envisage in your policy and planning will
be the nurnber of non-Whites in the rural areas of the southern sector,
outside the Reserves, in 50 years' time?
Mr. PEPLER:Sir, that is also an impossible question to answer, because
you have the natural population increases and all that sort of thing.
I am prepared to go so far as to say that with the physical development
and other opportunities, that is commercial development, etc., in the
different homelands, I foresee that more people will be accommodated
in their separate Reserves, and that the figures will gradually decrease
in the White sector. That I am prepared to say, namely that the present
number dorniciled today in the White areas will decrease.
Mr. GROSS:Sir, do you envisage in your planning and policy astate of
affairs in which the northern territories will be independently viable
economically?
Mr. PEPLER: Yes, Sir, definitely.
Mr. GROSS:At what level would you say in terms of a scale from
subsistence to exchange economy?232 SOUTH WEST AFRICA
Mr. PEPLER: Sir, at present, as I indicated yesterday, the majority
are still practising a subsistence economy, but I have also indicated that
in Ovamboland the whole territory is not occupied yet. lt can accommo
date far more people than it is accommodating at prescnt, but seeing
that it carries the highest population figure in the northern homelands,
we have already started with the development of commerce and in
dustries.
I have indicated that we have already got a furniture factory there;
we want to put up a meat factory, a de-boning factory, and quite a
number of other activities can arise. There is economic growth in Ovam
boland today. There has been a hospital established, numerous clinics
have been established, schools are going up, towns are being established,
and all this will create economic viability in Ovamboland. So I do foresee
that as one finds an area or a homeland where the population has grown
to such an extent that economic viability should be created, and it is
created, they can become economically viable.
Mr. GRoss: Would you care, as an expert, Sir, to indicate to the
Court, you have an opinion about this, approximately what period of
time do you envisage will clapse before this viability is achieved?
Mr. PEPLER:Sir, if I were to give a figure in terms of physical develop
ment then it can be an easy matter, because the physical development
can take place very rapidly: water points can be made, as I have indi
cated; different factories can be put up, etc., but the whole object of this
policy of separate development is a policy of protecting the people in
their own homelands. In other words, let them become economically
viable. For that reason, the Bantu Investment Corporation has been
established. And with development these people will be absorbed in the
factories, they will be absorbed in the hospitals, they will be absorbed in
every respect, in trade and so on, so that they can become viable them
selves.
Now I grant you that initially the more advanced Whites must take
the initiative, but there again, the policy is that as thcy become available
the Whites will withdraw.
Mr. GROSS: Sir, are you familiar with the comparative per capita
income of the population in the northern territories, as compared with
the Southern sector at the present time? ·
Mr. PEPLER: At the present time-no, Sir.
Mr. GROSS:Sir, would you disagree, on the basis of your expertise in
the area of development generally, with the figures of Professor Krogh,
who testified here but not on this point, in The South A/rica Journal of
Economies, Volume 28, 1960, page r6, that "in the north thcter capita
income of the population is [,8 5s., and in the south it is [,17 1s. Does
this ratio appear to you to be substantially correct from your knowledge
ofthe Territory, north and south?
Mr. PEPLER: If Professor Krogh quoted those figures, Sir (1 know he
is a research man who must have done intensiveresearch work on that), I
must accept them.
Mr. GROSS:I will not press you for concurrence with these exact figures,
I do not mean to do that. But you would agree, Sir, on the basis of your
independent knowledge that there is, shall we say, a vcry substantial
discrepancy between the per capita incomes, north and south?
Mr. PEPLER: I would agree with that.
Mr. Gross: Now, the terms of the accomplishment of the viability WITNESSES AND EXPERTS
233
which you envisage for the northern territories-the so-called home
lands~would you have an opinion with respect to, let us say, on the
basis of your plans and policies, what the approximate disparity would
be in 50 years' time? Does this enter into your plan?
Mr. PEPLER:Yes, Sir. If one takes the Eastern Caprivi, the Kaokoveld
and Okavangoland, they are totally underpopulated. My approach, as
an agriculturalist, will first be to assist them in devcloping agriculture-in
other words, establishing a sound primary development footing. In the
case of Ovamboland, where the population figures are much higher, one
would undoubtedly stimula te progress in other respects too. The Ovambo
people have the advantage that they have very regularly corne into the
White sector where they have learncd to work on White farms, in White
industry, etc., where they earned money, and all that sort of thing, and
I think, in this respect, as far as the northern sector is concerned the
Ovambo people are more advanced as a result of experience and in
service training that they have gained in the White sector, with the
result that they have a layer of people who can take the initiative in
stimulating this. I cannot give you a time and say it will be inIO years'
time or 20 years' time. I can repeat, and I want to repeat, that that
growth will defi.nitely, from an evolutionary stage, gradually grow to a
more revolutionary stage.
Mr. GROSS:Sir, I am, of course, not asking you to be a prophet and
make preclictions. I am addressing you solely as Director of Bantu
Development and a witness, an expert, on the policy of separate develop
ment. Is the Court to understand, Sir, that in the development of policies
and plans with respect to this development, and to development, there
are no forecasts or targets of accomplishment of particular stages-! am
speaking now, Sir, in terms of your planning and policies rather than in
respect of your prediction of accomplishment?
Mr. PEPLER:Sir, there are. Plans are being worked out regularly. The
Physical Development Plans, Educational Development Plans, Health
Plans, all these plans are being worked out very carefully, the lot are
being budgeted for, but might I explain to the Court the difficulty that I am
placed in by this question? If I may quotc the case of the Transkei which
had advanced to the stage when they asked for self-determination the De
partment (the Prime Minister as a matter of fact) told them: now you
go into recess; you draw up your constitution, you say what you want,
what you are prcpared to do, what departments you are prepared to take
over, etc. This they did. Self-determination was given to them, Sir. They
have established in their Public Service 2,466 posts. At present there
are still over 500 White officiais working in the Transkei, being seconded
by the Republican Government to them.
I had the occasion to read the i\1inister of Agriculture for Transkei's
agricultural report very recently, in which he stated that he could not
foresee that he could replace all the White officiais in his Department of
Agriculture and Forestry within ten years. That is something specific
that I can go on, which I have read in his report.
It depends on how the people themselves progress, on how they
themselves are interested in the different subjects.In the Bantu medical
profession, Sir, I may say that there are quite a number of medical
people already opcrating in the Transkei and depending on themselves,
they can run the Health Department of the Transkei as soon as they get
enough medical officers to do so. But your question was "Are we plan- SOUTHWESTAFRICA
234
ning?" and my answer is: we are planning but it is most difficult to fore
cast how long it will take because it again depends on the human factor.
Mr. GROSS:Sir, may I stress that I am sure tha t the Court will appre
ciate the difficulties you confront in the development of these areas, and
also, as I attempted to make clear for the sake of my question and your
response, I am not requesting a forecast. I am trying to ascertain, for the
elucidation of this problem what are your target plans, or, in terms of an
enterprise, budget or forecast budget in that sense, in connection, for
example, with your responsibility, which you testified you bore, in page
207, supra, of the verbatim yesterday: "! also have to budget for these
development plans." And, with respect to the development plans, you
referred to your function "to draw up development plans for the different
Bantu authorities in respect of their physical development, as well as
their socio-economic development, particularly in their different home
areas". My question to you, Sir-perhaps you have answered it or may
not care to-is: In preparing those development plans, which is your
main function as you described it, and developing budgets for them, do
you or do you not have a plan or target for accomplishment of certain
stages of devclopment? I started this line of questioning, you recall,
with respect to the discrepancy in the per capita income. Taking that as
an example, do your plans and do your budget recommendations for the
development reflect in any way a time target for accomplishment in
respect of narrowing the discrepancy between north and south of the
per capita incarne? Do you have any objective in that respect set forth
before you in developing your plans and budgets? I am speaking about
a time factor here, Sir.
Mr. PEPLER:Sir, yes. In the case of the northern areas, for instance in
Ovamboland, for the next five years in my planning and budgeting I have
made provision for the expenditure of 35 million rand in Ovamboland
alone, whereas the figures for the other three northern homelands are
very much lower. I think that goes to indicate that I have a directive
and I have a plan in developing them according to their needs and the
requiremen ts.
Mr. GRoss: Do you have an estimate upon which those plans and
budget have been based? What will be the approximate per capitaincome
of the population of Ovamboland at the end of the fi.ve-year period?
Mr. PEPLER: Yes, Sir. If I may look up the figure. On the basis of the
de facto population in Ovamboland today, 16r.41 rand per annum in
1970.
Mr. GROSS:Mr. Pepler, with further reference to this point, I have
just one or two more questions. Reverting to the question of projections
for planning purposes, which is all we are addressing ourselvcs to,
would you indicate to the Court what the, if any, projected percapita
income, let us say at the end of five years, would be with respect to
Okavangoland? lt has a population I believe of some twenty odd
thousand or so-do you have a fi.gure?-28,000.
Mr. PEPLER:27,800, Sir, that is the number.
Mr. GRoss: Thank you.
Mr. PEPLER: Sir, it is based entirely on the potential agricultural
income in terms of the methods that they are practising today, not in
terms of the actual agricultural production capacity of the land and in
their case it will amount to approximately 80 rand percapita in five
years' time, in 1970. WITNESSES AND EXPERTS
235
Mr. GRoss: A rand, if I am not mistaken, Sir, is ten shillings in British
currency?
Mr. PEPLER: Yes, two rand to one pound sterling.
1\fr.GRoss: In your testimony of yesterday, at page 218, supra, in
response to a question addressed to you by leamed counsel, you replied
as follows:
"The whole object of the Mandatory to protect the land rights of
these people [that is Native peoples], the whole object of assisting
them 5ocially and economically so that they can develop their areas
into self-goveming, independent homelands will be defeated."
That was à propos of a question addressed to you by Mr. Muller as to
what the effect would be of, as he put it, "doing away with measures of
protection". Leaving aside, Sir, that characterization of the Applicants'
case, may I call your attention to your use of the phrase "independent
homelands'' and ask you to advise the Court what the economic signifi
cance, if any, of the word "independent" is in that context?
Mr. PEPLER: Sir, that means the same way as the Transkei has been
built up towards a self-governing national unit, in other words, as I
explained initially, after they had gone into recess they had indicated
whichdepartments they thought they were capable of administering with
European assistance, that is, still with the assistance of European offi
ciais.They are not entrepreneurs and so on, they are Government offi
ciais who assist them and guide them in administering their national
unit (in the case of the Transkei).
Now, if l may answer the question this way, it depends on what they
actually require initially, but the group will also build up, depending on
themselves, to an absolute independent national unit in which they can
govern themselves in every sense of the word.
Mr. GRoss: Now, Sir, this response refers, I take it, to political
aspects, if I understood you correctly.ith respect to my question to you,
what, ifany, significance from an economic point of view, including agri
culture, is to be attached by the honourable Court to your phrase
"independent homelands"? What economic independence, if any, do you
envisage by the use of that phrase?
Mr. PEPLER:Sir, by economic independence I mean opportunities over
and above agriculture alone can be created. Now, there are so many
natural resources in these different homelands where they can develop
different forms of economies. In other words thcy can develop a diversi
fied economy, but I think I have already mentioned that the boundaries
mentioned by you do not inclicate that the economy must sustain itself
within those boundaries always. There will always be an inter-related
economy. If I may quote the example of Basutoland in the Republic:
the inhabitants are administered by the British Government. They are
getting their independence, but I do not think that Basutoland, knowing
the territory as I know it, will ever become economically inclependent.
They have not got the resources to bccome economically independent
but there is an inter-related economy. In other words they buy food from
the Republican Government and whenever they have anything surplus
such as wool and so on, they market it through the Republican Govem
ment. There is an inter-related economy.
Mr. GRoss: Would it then, Sir, be a fair distillation of the essence of
your response to say that when you used the phrase "inclependent home- SOUTH WEST AFRICA
lands" you did not intend to include economic independencc in that
concept or formulation?
Mr. PEPLER: Sir, one can be economkally independent in the sense
that one can control one's own economy within the country, but there is
always such a thing as a commercial and export economy. When I
referred to that I had in mind the export economy too, which will be
inter-related just as we have it all over the world.
Mr. GROSS:Thank you, Sir. Now, specifically with reference to South
West Africa again, the Odendaal Commission report, on page 299,
paragraph 1248, referring to Namaland, the population of which is set
forth as 34,806, states as follows:
"As in the case ofpracticall yall the other homelands as well as South
West Africa as a whole, this region will remain dependent upon
supplies from elsewhere for its staple food requirements."
Is that a correct statement on the basis of your knowledge?
Mr. PEPLER:That is absolu tely correct, Sir, and if I may say, which I
omitted to do in my evidence yesterday, that is the case as far as the
whole of South West Africa is concerned. They still cannot produce all
their food requirements and are dependent on the Republic for certain
food requirements.
Mr. GROSS:So that it is correct to say that with respect to the northem
area of the Territory generally they will be dependent on the outside to
meet their staple food requirements-is this correct, Sir?
Mr. PEPLER: Tt is correct.
Mr. GRoss: Now also with respect to possible new industries in South
West Africa, and this is àpropos of your testimony yesterday, when you
were asked by learned counscl with respect to industry and commerce
development at page 217, supra, and following from the verbatim, the
ûdendaal Commission report at page 431, paragraph 1443, under the
heading on the preceding page "Possible New Industries in South West
Africa" states as follows:
"The list of possibilities inot impressive, and except for a few
relating to the fishing and rock lobster industry, and a possible
cernent factory at one of five towns, it is clear that there are at
present no important or obvions possibilities which could lead to
large-scale developments."
Do you agree with the accuracy of this analysis of the economy of the
Territory with respect to industry and commerce?
Mr. PEPLER: As far as our present knowledge goes, Sir, ves.
Mr. GROSS:So that in the development of plans for Bà:ntu develop
ment, is this premise, as set forth in the ûdendaal Commission report,
a premise upon which your planning and policy also is based in Bantu
developmen t?
Mr. PEPLER: No, Sir, not necessarily, because I have mentioned
yesterday that a geo-physical survey is being made to see what other
natural resources do exist which could be exploited.
Mr. GROSS:So that the forecast on this point depends entirely on
exploration and is not yet completed-shall we put it that way, Sir?
Mr. PEPLER: Correct, Sir.
.1\fr. GROSS: On the basis of your present knowledge would it ?e,
however, correct to say that your planning reflects the same assumpt10n WITNESSES AND EXPERTS 237
which is set forth in this reference from the Odendaal Commission
report with regard to new industries?
Mr. PEPLER: Except, Sir, that I do feel that as far as karakul sheep
breeding is concerned, that could still advance and progress in the
Territory and as you are aware, Sir, karakul farming in South West
Africa is the biggest source of income of the Territory. SoIforesee from
the agricultural point of view that economic growth can be stimulated
by improved karakul breeding in Namaland.
Mr. GRoss: That would be in the northern area, would it, Sir?
Mr. PEPLER: No, in Namaland.
Mr. GRoss: That is in the southem sector. I see. So that with respect
to the northern areas, would there be any question about the accuracy
or validity of this estimate of the Odendaal Commission with respect to
new industries?
Mr. PEPLER: Sir, there are natural resources such as the indigenous
forest...
Mr. GROSS: I just wanted to check far the sake of darity, with the
President's permission. 1 am referring to new, not cxisting, industries.
The statement of the Odendaal Commission report, which I have read,
refers to possibilities and says they are not impressive,I wanted to ask
you for the sake of darity, whether this relates to northem areas as well
asthe sout.hern sector?
Mr. PEPLER:At the present stage it is not impressive, 1 admit, except
for Okovangoland and the Eastern Caprivi where they have these indi
genous forests and according to a survey made by Mr. Keet, a previous
Director of Forestry, and the figures that he actually arrived at, the
value of these indigenous forests in those areas amount to 68 million
rand. Now these have not yct been exploited at this stage.
Mr. GRoss: Now the exploitation of that, Sir, is that part of the
presently envisaged plan of your department?
Mr. PEPLER: Yes, Sir.
Mr. GRoss: And is that budgetcd at the present time, Sir?
Mr. PEPLim: That has been budgetcd for and actually provision has
been made for more factories.
Mr. GRoss: For the manufacture of furniture?
Mr. PEPLER: For the manufacture of furniture.
Mr. GRoss: Now, Sir, again coming to this question of the furniture
manufacturing, I would refer in that specific context to the Odendaal
Commission report, in which the following statcment is made on page
435, in paragraph 1458:
"As regards other industries, [therc are some listed previously,
cernent, fishing, etc.]he Commission cannot express any opinion,
because their establishment must depend on entrepreneurs who are
prepared to venture into the various fields of enterprise. Special
attention should, however, be given to the establishment of a furni
ture factory in Ovamboland. There is an abundant supply of
excellent Transvaal teak in the eastem part of Ovamboland, which
isvery suitable for furniture."
Now Sir, ,tre you at aH familiar with the problems for the fmding of
entrepreneurs "prepared to venture into the various fields of enterprise"
including the furniture factory which is suggeskd here?
Mr. PEPLER: Yes, Sir. For that specific reason, the Bantu ln\'estment238 SOUTH WEST AFRICA
Corporation was established in 1959 in the Republic of South Africa and
it also functions in South West Africa. According to the Act, the Bantu
Investment Corporation acts on behalf of the different national units. The
Bantu Investment Corporation are granted money by the Government
of South Africa and they operate on those funds. In the specific case of
the furniture factory in Ovamboland, they have already invested over
roo,ooo rand in establishment of that and they actas entrepreneurs, the
idea being not to use private initiative there, but the Bantu Investment
Corporation, in terms of its Act, can employ people with the necessary
knowledge to advance 'that factory for them and I mentioned in my
testimony yesterday, Sir, that they are at present also employing people
to instruct the Ovambo people to manufacture that furniture. Now that
will apply in the case of every factory that is opened in any one of those
territories,the Bantu Investment Corporation is the body that really
initiates industrializa tion.
Mr. GRoss: Excuse me. Thank you. Where are the headquaters or the
main offices of the Bantu lnvestment Corporation?
Ilfr. PEPLER: The main office is in Pretoria but they have branch
offices in quite a number of the homelands and in the case of South West
Africa they have a branch office in Ovamboland.
Mr. GRoss: And would the Bantu Investment Corporation have a
board of directors, Sir?
Mr. PEPLER: Yes, Sir. I mentioned yesterday that I am a director
myself.
Mr. GRoss: Are there any non-Whites who are members of the board
of directors, Sir?
Mr. PEPLER: NO, Sir.
Mr. GRoss: Could you explain whether that is a policy, Sir?
Mr. PEPLER:That is a policy, yes.
Mr. GROSS:Not to have non-Whites, Sir?
Mr. PEPLER:Yes.
Mr. GROSS: Are the officials representing the Bantu lnvestment
Corporation in the Territory ail White?
Mr. PEPLER:No, Sir. A large number are non-White.
Mr. GROSS:At official level?
Mr. PEPLER: Officials, yes, Sir.
Mr. GROSS: What isthe highest level which a non-White occupies in
that structure, Sir?
Mr. PEPLER: Sir, there are few gradua.tes in commerce and they act
in various and different capacities. At present, they are mostly employed
by the Bantu Investment Corporation as a directive body to guide and
assist their own people in whatever enterprises there are-in trade, in
manufacturing, and all that sort of thing.
Now, I may go further, Sir, and explain there too that it is actually
the policy of the Bantu lnvestment Corporation to bring on toits staff
as many qualified people as possible, the object being not only to keep
them as officiais, but to give them an in-service training in such a way
that they can ultimately be the entrepreneurs in any of those projects.
If I rnay cite an example, two whorn I know qualified at the university
ofthe North and have now left the Bantu Investment Corporation and
they are running their own businesses.
Mr. GRoss: Sir, what posts did those two, for example, occupy in the
Bantu lnvestment Corporation during their service? WITNESSES AND EXPERTS
239
Mr. PEPLER: I think they are commonly named Extension Officers of
the Bantu Investment Corporation.
Mr. GROSS:And, speaking generally now, the non-Whites who are on
the staff, you referred to this, I believe, Sir, do any of them supervise
White officials or employees?
Mr. PEPLER:No, Sir, they do not supervise White employees.
Mr. GRoss: Is that a matter of policy, Sir?
Mr. PEPLER: Yes, Sir.
Mr. GROSS:With respect, fi.nally, on this line, to minerals; you testified
in the record yesterday, at page 217, supra, you referred to the fact
that non-Whites "lacked not only means l?ut skills". You recall having
testifi.edat, Sir?
Mr. PEPLER: Yes, Sir.
Mr. GRoss: Could you explain to the Court, Sir, the reason for the
absence of skills in the context of your testimony?
Mr. PEPLER: Sir, what I mean by that is that the Whites have more
capital resources . . . ·
Mr. GRoss: I am not referring to means but skills. .Myquestion was
whether you could account for the lack of skills which you testified was
prevalent in the situation.
).frPEPLER: Sir, the opportunities are being offered for these people
who want to acquire the skills, but one finds that there are not so many
of these people who want to enter into these different sectors, and that is
why, relatively speaking, there are far less with the necessary skills.
.Mr. GRoss: You are referring, Sir, in the context of your testimony,
to minerais. Jtis a fact, is it not, Sir, that there are some 8,000 or more
non-White employees in the mines in South West Africa?
Mr. PEPLER: Yes, Sir, that is correct.
Mr. GROSS:When you refer to lack of skills available in the northem
area, can you explain to the Court why it is that there is such a lack of
skills inthe minerai industry when there is that number of non-White
employees in the mining industry at the present time?
Mr. PEPLER: Sir, I was not only referring to mining. I was talking
about a general diversified economy,· that means in ail the different
sectors of development.
Mr. GROSS:I think, Sir, that perhaps the record should be clarified in
this respect. Itake it that, w.ith respect to mining, you would not make
an exception, or would you make an exception to your statement, your
general statement with regard to lack of skills available? Does t_hat lack
also apply to the mining industry, as part of your response?
Mr. PEPLER: Sir, I am sorry but I do not know enough about the
mining industry in South West Africa to express an opinion on that .
.Mr.GROSS:So that when you referred on page 217, supra, to "In the
case of the non-White, they still lack not only the means but also the
skill and the initiative", with reference to the skill, the lack of skill,
you did not mean to include the mining industry in your answcr. Is that
correct, Sir?
Mr. PEPLER: Yes, Sir.
Mr. GRoss: That is excluded?
Mr. PEPLER: Yes, Sir.
Mr. GRoss: With respect to lack of skills in industry, I take it that
that was within the scope of your response yesterday, was it not?
Mr. PEPLER: Yes, Sir.240 SOUTH WEST AFRICA
Mr. GROSS: Could you explain, in any detail you wish, the reason why
such skills are lacking in industry?
Mr. PEPLER: Sir, I must talk of observations only because I have
definitely not made a study of the different skills. I have indicated that
people who desire to undertake anything in their respective homelands,
or even in the European areas reserved for them in the towns and so on,
can undertake anything, they are not prohibitecl from undertaking any
enterprise. But in the case of the homelands, which I am representing
here, if they show the desire, even if they Iack the skills, then they are
assisted in developing those skills through the Bantu Investment Cor-
poration. .
Mr. GROSS: Sir, I am simply trying to clarify the scope and intent of
your testimony yesterday. I am referring to page 217, supra, and I
think you have now testified that in your response you were not intending
to refer to the mining industry.
Mr. PEPLER: Yes, Sir.
Mr. GRoss: The question addressed to you by Mr. Muller was:
"Mr. Pepler, you have now dealt up to this stage with agriculture
only; [this is on page217, supra, of yesterday's verbatim record] can
you tell the Court what the approach is in other economic spheres
industry, commerce, etc.?"
Then your response was:
"The approach is naturally very much the same, but in the
European sector, of course, it is different in this sense: that the
European can act-he has the financial resources-as the entrepre
neur he takes the initiative, he takes all the responsibilities in
respect of industry, and he has to find his own way. [And then you
went on to say] In the case of the non-\Vhite, they still lack not only
the means but also the skill and the initiative."
Now my question to you, Sir, was with reference to the skills that you
say were lacking. Leaving aside mining, as to which you are not testi
fying, and turning to industry, would you explain, if you can, Sir, why
there is a lack of skills, in the terms of your testiomony, in the economic
spheres, industry, commerce, etc.?
Mr. PEPLER: Sir, in the case of industry, for instance, one who wants
to take the initiative in putting up a factory, requires engineers, requires
architects, requires quite a number of technicians to put up a factory of
that nature. Then it is a case of administering that factory, and there are
not so many-apart from the means that these people do not have, but
which has been provided for now for they can obtain that through the
Investment Corporation-! cannot foresee that there are so many people
with the skills who will be capable of running a factory as it should be run,
knowing that the factory is a composite concern where people with
various types of education are required. For instance, as I have indicated,
I can think of very few factories where engineers are not required, where
architects are not required, and all that sort of thing, and there are not
many people qualified for that purpose at present.
Mr. GROSS: Yes, Sir. In respect of this elaboration of your response
to l\fr. Muller yesterday, can you explain to the Court the reason for the
lack of available skills in the enterprises you have just mentioned, for
example? Why?
Mr. PEPLER: Sir, I cannot explain the reasons, because as I have said WITNESSES A;>;D EXPERTS
241
already, there are many provisions made for the people if they want to
acquire the knowledge. But then knowledge does not mean everything;
expericnce after knowledge counts more really than the basic knowledge,
I should say.
;\Ir. GRoss: Precisely, Sir, and would it not, to put the same point in
a diffcrcnt way, be correct to say that skills are normally acquired on the
job, and at work; is not that the normal mcthod?
;\lr.PEPLER: Up to a certain stage, Sir, but an cngineer cannot ever
qualify by in-service training.
1ilr. GROSS:Now, Sir, in the case of the lack of skills in the respects
that you mentioned, having in mind that this is the forty-fifth year of
the 1>Iandate, do you have any specific information available to you
with respect to the restrictions or limitations upon the training of non
Whites? Do you have any knowledge of that?
Mr. PEPLER:Not in South West Africa, Sir.
Mr. GROSS:So that your response to 1>Ir.Muller, in testifying with
regard to separate development, without qualification of the point, to
which your testimony is directed, was not intended to cover the question
of limitations upon the training of non-\Vhites in South West Africa:
is that correct?
l\IrPEPLER: My testimonv was based on my knowledge of the people
and on the fact that I know"so few of them. I am, as I have explained,
Mr. President, Director of the Bantu Investment Corporation. I see all
these applications that corne in from people who are interested in such
enterprises, and my judgment was based upon my practical experience.
Mr. GROSS: Now, Sir-incidentally, if we can get a fiat, perhaps,
response to this-you arc not awarc, or arc you awarc, of the job restric
tions and reservations in South West Africa? Are you aware of these, in
industry?
l\IrPEPLER: No, Sir, I am not.
Mr. GROSS:I should like, if I may, Sir, and I am coming, i\IrPresident,
to mv conclusion, refer once more to the Odcndaal Commission report,
page" 3II, paragraph 1283-its sub-paragraph No. (15). I should like
to read it since it 1s,I think, within your precise area of responsibility,
and it cornes under the heading "Certain Observations and Recommen
dations of the Odendaal Commission". Itreads as follows (p. 3n):
"That since the planning and establishment of agricultural
training centres and the provisions of properly trained staff will take
at least a few years, consideration should also be given to the possi
bility of meanwhile recruiting suitable non-White students for
training in agriculture at institutions in the Republic of South
Africa, and of providing them with the nccessary financial assistance
to complete their courses."
Stopping there, before reading the next sentence, have there been, so
far as you know, any non-White students recruited during the past 45
years for training in agriculture at institutions in the Republic of South
Africa with provision of necessary funds?
~Ir. PEPLER: I can give a positive answer on that, as I was dealing
with that personally when I was Director of Agriculture. On different
occasions we made it c\ear to the officiais in South West Africa that they
had to try to recruit people from the different national units to corne to
the Republic of South Africa to take a diploma in agriculture; bursaries SOUTHWESTAFRICA
were offered, free study-it would not have cost them anything, but we
could not recruit one. At present we are again cndeavouring to obtain
students who are prepared to study agriculture in the Republic, but we
have not succeeded in recruiting one yet. Now that is, as I foresee, one of
our difficultieshat we are going to experience; we have planned an agri
cultural training centre at Orongo in Ovamboland; wc are prepared to
put up a second one, but if we cannot find the students, then I foresee
that we might cxperience a little difficulty.
Mr. GROSS:Thank you, Sir, but the answer to my question, if I under
stood you correctly, was that no non-White student has proceeded to
South Africa for training in agriculture at institutions thcre?
l\lr. PEPLER: Although the opportunities were offered.
l\lr. GRoss: I understand the qualification, but that is the fact, that
you have testified?
Mr. PEPLER: Yes.
Mr. GROSS:\Vith regard to the Odendaal Commission recommendation
that consideration should be given to this as a possibility, how do you
explain that recommendation composed in those terms in view of what
you have said about the past practice or effort?
Mr. PEPLER: Iwas not consulted by the Odendaal Commission mem
bers, and actually I do not know for what reason they have put that in,
but I personally was responsible for instructing the staff in South \Vest
Africa to endeavour to recruit people and emphasized that we were
prepared to give free tuition, free transport facilities and everything in
the Republic but we never got a recruit.
Ms. GROSS:You said, if I understood vou, that the Odendaal Commis-
sion had not consulted you? •
Mr. PEPLER: Iwas not consulted on this aspect.
Mr. GRoss: Did you testify before the Commission?
Mr. PEPLER: No.
Mr. GRoss: \Vere you consulted on any other aspect of the policy?
l\Ir. PEPLER:No.
l\Ir. GROSS:Of the agricultural policy in South West Africa?
Mr. PEPLER: The staff of the Odendaal Commission asked me to
submit quite a number of papers which I had previously prepared on
agriculture in South \Vest Africa, and Ipresume that they have made use
of those, but they did not ask me for evidence, nor did they consult me.
Mr. GRoss: And so far as you know, Sir, among the papcrs submitted
none related to the training of agricultural students, that subject was
not covered?
Mr. PEPLER:That subject was not covered in my papers.
Mr. GROSS:I sec. Now may I proceed to the next sentence in that same
paragraph-this is à propos, you recaH, of the suggestion that possibility
be given to recruiting suitable non-White students for training in
agriculture at institutions in the Republic, and now I read the second
sentence: "The media of instruction in the Republic of South Africa are
Afrikaans and English, and no language problems should therefore be
experienced in this connection." Going back to your previous testimony
with regard to the fact that your discussions and consultations in the
Territory with non-Whites was mainly, if not almost exclusively, through
interpreters, could you indicate on the basis of your knowledge whether
the difficulty you described in obtaining recruits for these studies might
have been a consequence of Ianguage deficiency? WITNESSES AND EXPERTS
243
Mr. PEPLER: I would not think so, because the minimum scholastic
requirement to enable a person to take his Diploma in Agriculture is
Standard 8, and in the schools they are taught either English or Afrikaans
or both, so I do not think that should have been an impediment.
Mr. GROSS:Is it regarded by you in the Bantu development process
and function that there be a widespread knowledge and ability to speak
English or Afrikaans or both on the part of the non-Whites in the
Territory?
Mr. PEPLER:Do you mean in the schools?
Mr. GRoss: No, in their lives.
Mr. PEPLER:Generally?
Mr. GRoss: Yes.
Mr. PEPLER: Yes.
Mr. GROSS:You think it is?
Mr. PEPLER: Oh, yes-1 have corne across many, many who speak
both languages.
Mr. GROSS:I think that you have answered my question affirmatively,
and I would like to conclude the reading of this paragraph: "Many
students from Rhodesia and elsewhere have already received their
training in the Republic of South Africa." Can you explain to the Court,
on the basis of your own knowledge, why it has proved possible to find
suitable recruits from Rhodesia and not from South West Africa for this
purpose?
Mr. PEPLER: If I may endeavour an explanation-I do not say it is
absolutely correct-but there are quite a large number of South Africans
in the agricultural field in Rhodesia. As a matter of fact, their last
Director of Agriculture was a South African, and it might be that these
people, having been accustomed to South Africa, have advised them that
they could go there; that might be an explanation, but I do not say that
is the case, because the counter-question can be: why didn't the same
happen in South West Africa? Then my answer would be that the reaction
was not the same in South West Africa as it was in Rhodesia.
Mr. GROSS:But you cannot explain the reason for that difference of
reaction?
Mr. PEPLER:No, I honestly cannot explain that.
Mr. GROSS:The Odendaal Commission report with respect to agricul
tural technical services-page 309, paragraph 1283-in making recom
mendations states-
"with a view to more efficient administration,the various territories
in South West Africa be grouped together as follows:
(a) White Area.
(b) Southern Sector (non-\Vhite areas)."
I pause there. Do you feel that you have covered in your testimony up
to this point adequately, from your point of view, the answer to the
question I now pose to you as to why and in what respects this grouping
on a White and a non-\Vhite basis would lead to more efficient adminis
tration?
Mr. PEPLER: Yes, that has been our experience-my personal ex
perience, too, in meetings with these people they have on many, many
occasions indicated that they wanted to retain their identity, and I
think that is in full conformity with their expressed desires.
Mr. GROSS;I see. Now, efficiency of administP-tion in that respect,244 SOUTHWESTAFRICA
then, is a corollary of the desire of the non-Whites to be administered
separately-is that the purport of your answer?
Mr. PEPLER: Amongst their own national units.
Mr. GRoss: So that with respect to the desires of thenon-Whitesin the
southern sector outside the Reserves, would you say that the question of
their desires would be material or relevant?
Mr. PEPLER: I would say we take full cognizance of their desires. ·
Mr. GRoss: \Vere they consulted, "they" being the non-Whites in the
southern sector outside the Reserves?
Mr. PEPLER: In what respect?
Mr. GROSS: In respect of this recommendation, if you know, of
grouping together for administrative purposes. Perhaps you do not know
the answer to that question?
Mr. PEPLER: I do not know the answer.
Mr. GRoss: That is the answer to it.
The PRESIDENT:Mr. Muller?
Mr. MULLER:I think in fairness to the witness my learncd friend should
putto him that all this is under a heading of ''Expansion of Agricultural
Technical Services", and tha t the whole of the recommenda tion relates
to agricultural technical services.
Mr. GROSS:Sir, I think that my leamed friend will fmd that I precisely
stated that this is under the heading "Agricultural Technical Services".
The PRESIDE~T: I did not notice it, myself.
Mr. GRoss: Yes, Sir. If I did not, it was purely an omission on my part
-1 know I intended to.
Proceeding now to sub-paragraph {2) in paragraph 1283 on page 309,
the following recommendation is made:
"That, for agro-economic reasons, the homelands in the Northern
Sector be grouped as follows:
(a) Ovambo-Okavango Complex: .. .
(b) Herero-Damara Complex: .. .",
and so forth; I will pause there. Can you explain, if you know, what the
Ovambo-Okavango Complex means in this respect-in respect of this
recommenda tion for so-called grouping of the area?
Mr. PEPLER: I cannot say that I have an authentic explanation, but
the grouping has historical backgrounds. The Ovambo people settled
themselves in what was ultimately called Ovamboland, whereas the
Okavango people, who I indicated yesterday consist of approximately
five tribes, settled themselves in Okavangoland, along the Okavango
River; and my presumption is that the Odendaal Commission felt that
they did not want to upset that structure. I may add, too, that in meet
ings that we conducted in Ovamboland, they invariably stated that
they wanted to retain their boundaries, and that they wanted to retain
their identities.
Mr. GROSS: Itis not my purpose to go into the purely hypothetical
and contingent planning for the so-called homelands, but I should like to
address the question to you as an agricultural expert, what significance
is to be attached, if any, to the characterization of Ovamboland, Oka
vangoland, Bushmanland and Western Caprivi as an "Ovambo-Oka
vango Compiex" in this context? What does that grouping mean with
respect to the four areas designated? Does this mean that they will be
operated as a unit in certain respects? WITNESSES AND EXPERTS 245
The PRESIDENT:For agro-economic reasons.
Mr. GROSS:I do not understand that phrase. Sir.
The PRESIDENT:Well, it says, you see, for agro-economic reasons, the
grouping should be in that complex.
Mr. GROSS:Yes, Sir, but it does not explain, Sir, with respect, what
happens, how it is to be administered, and my question was, I am afraid,
clumsily fashioned. In respect of this grouping for the agro-economic
reasons, what would be the administrative or structural form in which
this, so-called, complex would be administered--if you know, Sir?
Mr. PEPLER: Sir, if it is in the sense of the agro-economic regions, I
would like to explain that, that is now as an agriculturalist from the
scientific point of view, the area has been divided into 16 different agro
economic regions ...
Mr. GROSS:No, "reasons" is the word, Sir. I am afraid you misunder
stood me. Reasons-for agro-economic reasons. My question, Sir, is:
For those reasons, what would be the administrative, or governmental,
or other structure, which would be designed, if you know, to relate to
these reasons? Perhaps you do not know the answer toit, Sir?
Mr. PEPLER: Sir, I think I do understand what is meant by that.
In other words, let us take the Ovambo people, again, as such-that the
concentration will be on the Ovambo people, as such, the object being
totrain their own people, to guide thcm on the agricultural lines so that
they have t.heir own people as teachers, as agricultural extension officers,
etc.
Kaokoveld, for instance, is, again, inhabited by the Herero people,
the idea being, again to train, to establish a centre where the Herero
people will have the opportunities of being trained by their own people,
of bcing guided and assisted by their own people. I think that is mainly
what is meant by the agro-ecological ...
Mr. GROSS: The agro-economic reasons relate, Sir, to-1 will not
pursue this too much further but it would be helpful, I think, to have
clarity both in my question and response. The extract which I have read
says that "for agro-economic reasons the Homelands in the Northern
Sector be grouped as follows", and one grouping which I take as illustra
tive (there are two mentioned) is the Ovambo-Okavango complex, and it
suggests by itslisting that four projected homelands (without mentioning
that term) should be dealt with as a complex. My question, Sir, to you
is-what are the implications of that (if you know, with respect) to the
administrative structure that presumably would be intended to carry
out the purpose for which that recommendation is made? Do you
know, Sir? Perhaps you do not?
Mr. PEPLER: No, Sir. What I understand by that is that the agro
ecological conditions are more or less the same and what is actually
meant by that is that development can take place in Ovamboland but a
different form of development can take place in Okavangoland, and
that separate administrations must be developed for these different areas
because the approach will be different.
Mr. GRoss: So that, Sir, so far as treatingthem as a complex is con
cerned, you have no light to ...
Mr. PEPI.ER: I have no light on what is meant by a complex as used in
that context.
Mr. GRoss: Thank you, Sir. .
Now, just one final question. Would you be prepared to summanze SOUTH WEST AFRICA
your testimony in the following terms, as used in the Odendaal Com
mission report, on page 427, paragraph 1433. Because it is a fairly
lengthy paragraph, from which I propose to read not more than three
sentences, I shall identifv the first sentence, for the convenience of the
Court, as occurring towàrds the bottom of the first left-hand column on
page 427, in paragraph 1433. The sentence to which I would call your
attention, Sir, reads as follows, and I would be gfad to read the intro
duction if the meaning of this sentence is not clear because of the context:
"Consequently, a group gives preference toits own group members
in regard to opportunities within its group, so that members of
another group are handicapped or excluded from the activities of
the group, other members being admitted only in so far as they are
supplementary to the group and not competitive."
The other sentence, which I should like to read, is in the second para
graph on page 427, on the right-hand column, and it reads as follows:
"The result of this phenomenon [and the phenomenon relates to
problems in] underdeveloped territories where economic opportuni
ties are limited and where group loyalties are very strong and
dominate the individual's life ... "
The PRESIDENT: Where are you reading from there, Mr. Gross?
Mr. GRoss: That is the top of page 427, on the right-hand column,
the second full sentence. To corne back to the last paragraph of 1433:
"The result of this phenomenon is, therefore, that there is socio
economic mobility within a group for its members and that their
mobility outside is restricted to the extent to which they are supple
mentary to other groups. This phenomenon manifests itself at the
international level in a high degree of internai (homogeneous ethnie
group) socio-economic mobility, in contrast with a low degree of
international mobility. Thus the group or nation offers its members
the most favourable atmosphere and opportunities to develop
progressively. Similarly the group offers its members security by
protecting them against 'unfair' infiltration by members of other
groups. [And then it concludes] ln this way the group or nation
fulfils a very important socio-economic welfare and developmental
fonction.''
Now, extracting from that le'ngthy and somewhat complex series of
basic premises of the Odendaal Commission, which it regarded apparently
as of vital significance, I would like to ask you, Sir, whether you agree
that, in the situation prevailing in South West Africa, the premise of
separate development, to which you have directed your testimony, is
based upon the policy and approach that there is a White group which
has its membership, from which the non-White group are excluded,
exceptas they are supplementary to the White group, and, conversely,
that there is a non-White group, or groups, from which Whites are ex
cluded from membership, except in so far as they are supplementary to
the non-White groups. Is this essentially the premise from which you
proceed in your testimony with regard to the desirability, or necessity,
of apartheid? ·
Mr. PEPLER: Sir, yes, that is the position. As I have explained yes
terday, the approach in the techniques of promoting agriculture-this WITNESSES AND EXPERTS
247
is my specific subject, I am not talking about other spheres of develop
ment-is that the different groups have reached different stages of devel
opment, and, now when I say that, I mean that different non-White
groups have also reached different stages of development. I think I
indicated that in my testimony yesterday.
If one were to take the Bushmen group, as such; the Odendaal report
defined an area, or two separate areas actually, which they have specially
recommended to be reserved for the Bushmen people. If a more advanced
people amongst the White group were to enter the boundaries of what is
proposed to be, ultimately the Bushmen homeland, where -they can also
develop, then it stands to reason that the more advanced people can also
exploit the Bushmen, which means that they will not be able to build
themselves up to the state where they can have their ultimate self
determination, but that they may be subjected to exploitation by those
other peoples and I think this is what the Odendaal Commission report
wishes to convey in that context.
Mr. GRoss: And, Sir, with respect to the other sicle of the picture-of
the non-White in the White sector of the economy, as it is described in
the Odendaal Commission report-the non-White is there as a temporary
sojourner, or as a guest, as the Prime Minister has said, for whatever
reason he may be there, is that the corollary of what you have described
forthe other sicle of the Jine?
l\IrPEPLER: Yes, Sir.
Mr. GROSS: Now, Sir, finally, with respect to the future, in your
planning and policy, do you envisage a permanent system in whiéh this
concept will be applied?
Mr. PEPLER: Sir, if I may express an opinion on that, I do not think
that one must regard this policy of separate development as something
to be static. Itis really a dynamic policy and I do not foresee that these
different national groups will always be bound and confined to their in
dividual groups. So, if they so desire-and I would like to stress the word
"they"-to corne together, to form a federation, or whatever the case
may be, I do not think there would be anything prohibiting them from
doing so, but that I can only foresee as happening in the future. The
policy of separate development is really based on the foundation of
building up these people, as I have already cxplained, to a stage of self
determination. Once they have that self-determination, I do not see why
the y should be forbidden by anybody if they, of their own wish and desire,
want to forma federation, and so on. That is what I foresee for the future,
Sir. I may be wrong.
Mr. GRoss: Now with respect to the White economy, the White sector,
does the same reasoning apply that it is the White groupas a matter of
"se1f-determination" which decides the degree to which the freedoms and
advancement of the non-Whites shall be subjected in the White sector?
Mr. PEPLER: Could that question be repeatcd, Sir?
Mr. GRoss: Yes, Sir. With respect to your testimony concerning the
policy in the non-White area-I am now asking with respect to the
Vvhite sector-and in that sector, Sir, would you apply the same reasoning
and policy to it that the Wbite group, who arc members of the White
economy, by the exercise of self-determination, which is the phrase you
used on the other sicle of the line, will determine the extent and quality
of the limitations of freedom and advancement which shall be imposed
upon the non-White group in their sector? SOUTHWESTAFRICA
The PRESIDENT:That is a diffcrcnt proposition altogcther to what the
witness has been speaking about.
Mr. GRoss: With your permission, Sir, I should like to withdraw the
previous question and pose this one.
Mr. PEPLER: I have answered to the first question, Sir.
Mr. Gnoss: You answered in terms of the non-White areas, Sir-1 am
referring to the White sector, and I ask you ...
Mr. PEPLER: Sir, my answcr to that is that that is a projection of a
future political structure, on which I, honestly, am not an authority,
and if you would excuse me, I am not prepared to express an opinion on tha t.
l\Ir. G1wss: No further questions, Sir.
The PRESIDENT:Thank you, Mr. Gross. Judge Jessup, I think wishes
to ask a question. Judge Jessup.
Judge J ESSUP:Mr. Pepler, I would like to ask you to give the Court a
few additional points of factual information in connection with your
testimony and, in asking these questions, I hope you will realize that I
have in mind the stress you have laid upon the differences between
differcnt groups and also your particular emphasis upon the necessity
for patience and for evolutionary processes, and I am not asking you to
look into the future but rather to give us information about the past. I
am interested to know about how long some of the developments you
described took to move from initiation to completion. l\lay I, as an
example, take your reference to the development of the Bushmen and,
as I understand it, you were talking about the same experiment or
development which is dealt with in the Odendaal Commission report at
page 29, at a place known as Tsumkwe. You said that first you must start
and bore the holes, get water and accustom them to coming for the water,
and that after a while you might bring goats and cattle, and then later
you could teach them to plant. Can you tell me about how much time
elapsed between the first boring of the water holes and the eventual
settling of these people using their goats and cattle and plants?
1ir. PEPLER:Approximately two-and-a-half years, Sir.
Judge JESSUP: Thank you. And did that experiment or development
begin bcfore 1961, when you became Director of Bantu Development?
Mr. PEPLER:Yes, Sir. If I remember correctly, it started in 1958, but I
am not positive of that date, Sir, but itwas before 1961.
Judge JESSUP: And in a similar context, when you spoke ofthedevel
opment of home industries, how long from the time you induced them
to begin develop these industries do you find a satisfactory evolution in
terms of production?
Ilfr. PEPLER: Sir, if I could explain it this way, as I said yesterday
in my testimony, they have an aptitude for these things. Now the diffi
culty in the past had becn that there was not always a ready market for
their home-craft products, so it stands to reason that quite a number of
them did not take the keen interest in home crafts that they did in the
past, but since tourism has gone apace now in South West Africa, as
well as in the Republic, it is our special endeavour to assist them and
guide them, and point out to them that they can manufacture these
things; that they can bring them to central points and that these things
will be acquired.IfI may say about this position, as I explained it to the
officiais with whom I am dealing in encouraging this, a man, for instance,
makes walking-sticks (and they can make very fine walking-sticks, Sir)
then he has to go to a road and he must try to sell his product there. WITNESSES ANDEXPERTS
249
Now, it might take him a day, or it might take him three days to sell
his product. Tourists corne along-one might be prepared to pay his
price. You find a type of man who is generous, who feels that a lot of
work has been put into a thing, and he says "You are charging me too
little, I will pay you more for it''; but you get the other type again, who
says "Y ou are charging me far too much for this" and he starts bargaining
withhim which I,personally, as an official representing the Department,
feel is unfair towards him. So we started in South West Africa by nego
tiating with the Administration itself, asking it "Now, look here, do en
courage these people. You have the Etosha Game Reserve there, buy
these products from them and sell them".
The idea is that we feel it is a culture that should definitely not die
out amongst these people, and we want them to rctain quality and for
that reason we are cncouraging it and it is quite obvious that it has an
outlet and ...
Judge ]ESSUP: But, NI.r.Pepler, what I am trying to get at is how long
some of these processes take? You said, in connection with the Bushmen
project, two-and-a-half years. From the time you began to develop these
home industries until the time when you got a Jiow of goods to market,
so to speak, is it a question of one or two years, or five years?
11'1r.EPLER: No. In the case of home industries I am really optimistic
that it would take not more than two years, because once they know
there is a ready market it is inherent in them to make these things.
Judge JESSUP: Now, another development you spoke of, I think, in
Ovamboland. You said that you finally were able to convince them of
the advantage of using manure in their moulds where they were growing
their crops. How long a process of persuasion or indoctrination before
they began to adopt this method?
M.r. PEPLER: Sir, it is a very graduai process. One first of all has to
demonstrate this to them, then one gets a few falling in with the idea and
then it gradually works up and ...
Judge ]ESSUP: Within a question of two or three ycars?
Mr. PEPLER: In the case of Ovamboland, Sir, about five years.
Judge JESSUP:Then you testified and you discussed it again this
morning that, in certain instances, some of the non-White groups had
entered into the market economy, or the money economy. Am I correct
in understanding, from your testimony, that you consider that progress
desirable? You wish to have them move on into a market economy?
Mr. PEPLER: Yes, Sir.
Judge JEssuP: Or money economy?
M.r.PEPLER: Yes, Sir.
Judge JEssuP: Then you also testified at pages 216 and 217, supra,
yesterday, that in certain cases persons would work for a while and then
say, well, we have enough money now and we will just relax for a few
years. I am interested to know whether, in your programme, you have
any methods or devices for persuading these people of the advantage of
accumulating additional money and entering into the money economy,
so to speak?
Mr. PEPJ_ER:Yes, Sir, we do. That is one of our specific tasks, that we
do encourage them. \Ve advise them about savings banks and there
are quite a number today~not so much in South \Vest Africa as in the
Republic-.who are already making extensive use of savings banks and
so on. And they have quite a number who have corne to the stage where SOUTHWEST AFRICA
they do not believe in just numbers, but quality, and as soon as they have
more than they can actually carry, they market the stuff.
Judge }ESSUP: And if these people were among the peoples who like
to own cattle, would you be prepared to show them a source from which
they could buy more cattle with these extra funds they are earning?
Il.fr.PEPLER: Yes, Sir. \Ve assist them not only in marketing cattle,
but we also assist them otherwise. If I may explain, we feel that we
cannot just tell these people "Go to such and such a place and you can
buy improved sires", say. Our government offi.cials go and they buy
these improved sires; they bring them to central spots and they offer
them to these people and advise them. Now these sires are available
here, or improved cows, etc., and they even get these at subsidized
prices, Sir.They do not pay the full price that the Mandatory or the
Government has paid.
Judge JESSUP: Thank you. Now this is a different type of question.
Under Bantu Development, does the development of the Coloureds corne
under your jurisdiction?
Mr. PEPLER:No, Sir, that is separate.
Judge JESSUP: Is there a separate organization ... ?
Mr. PEPLER: Yes, Sir, there is a special department for Coloured
affairs.
Judge JESSUP: One other point-this is my last. You have at several
points referred to the comparative developments in the Transkei-eau
you indicate to the Court whether those developments began carlier in
time than comparable devclopments in South West Africa?
Mr. PEPLER: Yes, Sir.
Judge JESSUP: Or did they all begin about the same time?
Mr. PEPLER: No, Sir, in the Transkei they started, I think, in 1915,
if I remember correctly, because the first agricultural school that was
put up there was in the early twenties.
Judge JESSUP: And at the present time, in the homelands in the
Republic of South Africa, is the amount of money, personnel and effort
devoted to the development of the homelands and the people in them
more or less equivalent to the comparable effort in South West Africa,
if you compare the two?
Mr. PEPLER:Sir, Yes. Can I put it this way, that as far as funds-the
allotment of fonds, or the allocation, rather, of fonds-for the develop·
ment projects are concerned (I have invariably, and on several public
occasions, made the statement), we have never yet had a scarcity of
fonds. Over the last ten years the provision of funds has never been a
problem-wehave always received all the funds which were required, but
as I indicated yesterday, we are a little scared to go too fast with the phys
ical development. We must always keep balanced development in mind
that is, the human development-as well as the physical development.
Judge jESSUP: Thank you, Sir. That is all, Mr. President.
[Public hearing of 30 September z965]
The PRESIDENT:The hearing is resumed. There being no further
questions of Mr. Pepler from l\Iembers of the Court, Mr. Muller, do vou
desire to re-examine? •
Mr. MULLER:I have no further questions, thank you. Mr. Pepler has
indicated to me that, since reading the record, he would like to explain WITNESSES ANDEXPERTS 251
an answer given to one of the questions asked by Judge Jessup yesterday,
if the Court will permit him to do so.
The PRESIDENT:Would you first indicate upon the transcript at what
particular page, without indicating what is the explanation which is to
be given?
Mr. MULLER:Yes, I shall, Mr. President. At page 248, supra, of the
record of yesterday.
The PRESIDENT:Very well. l\fr.Pepler, I understand you desire to
make an explanation or modification or amplification of some statement
you made in relation to a question put to you by Judge Jessup, is that
correct?
Mr. PEPLER: Please, Sir, if I may do so.
The PRESIDENT:Would you kindly proceed and do so?
Mr. PEPLER: Sir, the question was put by Judge Jessup after he had
explained what exactly he desired; he ended .up by saying:
"Can you tell me about how much time elapsed between the first
boring of the water holes and the eventual settling of these people
using their goats and cattle and plants?"
In this respect he referred to a place known as Tsumkwe . .l\lPresident,
when I replied to that question I specifically had Tsumkwe in mind, and
my reply to that was "Approximately two-and-a-half years". Un
fortunately I omitted to say that previous to that quite a number of
bore-holes and watering wells had been sunk at various places to enable
these people, the Bushmen people, to gather there, and they were actually
given food there and medical treatment. When Tsumkwe was established,
and a special Bushman Affairs Commissioner was appointed and sta
tioned at Tsumkwe, then the Bushmen people were encouraged to settle
around Tsumkwc, and I had Tsumkwe spccifically in mind in answering
the question; but what I would like to explain to the Courtis that these
watering points, wells, etc., were established quite a number of years
before that, and quitc a number of the Bushmen people were attracted
from those wells to Tsumkwe and after they had been conditioned at the
other places, and came to Tsumkwe, it took approximately two-and-a
half years for thcm to accept goats, cattle, and to start planting vege
tables; that is what I would like to explain to the Court.
The PRESIDENT:That is all that you desire to add, Mr. Pepler?
Mr. PEPI.ER: Thank you, Sir.
The PRESIDENT:Does Judge Jessup desire to put any further questions
at all?
Judge JEssuP: No thank you, Mr. President.
The PRESIDENT:Weil then, Mr. Muller, the witness may leave.
Mr. MULLER:Thank you, Mr. Pepler. Mr. President, the next witness
will be Dr.Van Zyl, and with the permission of the Court Dr. Rabie will
introduce the witncss and put certain questions to him.
The PRESIDENT:Mr. Muller, Mr. Pepler will be released from further
attendance, unless you are informed to the contrary by midday.
Mr. MULLER:I thank you, Mr. President.
Mr. RABIE: May it please the Court, Mr. President, Dr. Van Zyl's
evidence relates to Applicants' Submissions Nos. 3 and 4. As set out
in a letter to the Deputy-Registrar of the Court on 30 July 1,a copy of
t See XII, Part IV. SOUTH WEST AFRICA
which was sent to the Applicants' Agents, Dr. Van Zyl's evidence will
be directed to the following points, and I quote from that letter:
"Considerations underlying differential education for the various
population groups in South Africa and South West Africa. The basic
principles ofthe Bantu Education System, its application and effects.
The probable consequences of doing away wüh djfferential rneasures
in the educational field."
Mr. President, the Applicants were also notified on the 28th instant that
Dr. Van Zyl would not deal with education at the university Jevel, and
that Professor Rautcnbach, whose name appears on the Respondent's
list of witncsses, would deal specifically with university education.
May I now introduce the witness, Mr. President, and ask that he be
allowed to make bath the declarations provided for in the Rules, that is,
both as witness and expert?
The PRESIDENT:Let the declarations be made. Will you make the
declarations, Doctor?
111r.VANZYL: In my capacity as a witness, 1 solernnly declare upon
my honour and conscience that I will speak the truth, the whole truth,
and nothing but the truth. 1n my capacity as an expert, I solemnly
declare upon my honour and conscience that my statement will be in
accordance with my sincere belief.
The PRESIDENT:Thank you.
Mr. RABIE: Dr'. Van Zyl, your full names are Hendrik Johann Van
Zyl?
Mr. VANZvL: Yes, Mr. President.
Mr. RABIE: You are at the moment Deputy-Secrctary of the Depart
ment of Bantu Education; you are stationed in Pretoria?
Mr. VANZvL: Yes, Mr. President.
l\Ir. RABIE: In your capacity as such, you are mainly concerned with
Bantu primary and secondary education and vocational and teacher
training, is that right?
i\lrVANZYL: Yes, Mr. President.
l\lr.. RABIE: 1n regard to academic qualifications, you have a B.A.
Degree, and your major subjects of study were Bantu Languages and
Anthropology, is that right?
Mr. VANZvL: Yes, i\IrPresident.
Mr. RABIE: You also have an M.A. Degree in Anthropology and a
Ph.D. Degree, also in Anthropology?
Mr. VANZvL: Yes, Mr. President.
l\frRABIE: Dr. Van Zyl, do you have a knowledge of Native languages
spoken in South Africa?
Mr. VANZvL: Yes, Mr. President.
Mr. RABIE: Do you speak any of them?
Mr. VANZvL: Yes, Mr. President.
l\1r. RABIE: How man y?
Mr. VAN"Zv1,: Three, I should say.
Mr. RABIE: You speak threc, and do you have a knowledge of any
others?
Mr. VAN ZYL: I have a working knowledge of a fourth, Mr. President.
Mr. RABIE: You speak three and have a working knowledge of a
fourth one, Sir. You started off your career as a teacher in 1937, is that
right? WITNESSES AND EXPERTS 253
Mr. V AN Z YL: Yes, Mr. President.
Mr. RABIE: And during the next four years you taught in a few
European schools, and also in two Native teacher-training institutions,
is that correct?
Mr. VAN ZYL: Yes, Mi-.President.
Mr. RABIE: In 1942 you became a Principal in a Ban tu High School
in the Northern Transvaal, is that right?
Mr. V AN ZYL: Correct, Mr. President.
Mr. RABIE: And you held that post until 1948?
Mr. V AN ZYL: Correct, Ilfr. President.
Mr. RABIE: During the years 1937-1948 you also taught a Native
language, Northern Sotho, as a subject, is that Iight?
Mr. VAN ZYL: Yes, Mr. President.
Mr. RABIE: What did you do during the years after 1948-let us say
from 1948-1957, when you took another post?
Mr. VAN ZvL: Mr. President, I was Inspector of Bantu Education
from 1948-1957, when I was appointed Professional Assistant in the
Department of Bantu Education. After that I became Under-Secretary
for the Department of Bantu Education, and at present I am holding the
post of Deputy-Secretary for the Department of Bantu Education.
Mr. RABlE: Would you just state in a few words what your duties were
when you were an Inspector of Bantu Education?
Mr. V AN ZYL: I had to inspect primary and secondary schools as well
as teacher-training institutions, and give guidance to teachers generally.
Mr. RABIE: ln 1957 you went to Head Officeof the Bantu Education
Department in Pretoria, and then became an administrator, is that right?
Mr. V AN ZYL: Tha t is right, Mr. President.
Mr. RABIE: In 1958 you were Chairman of the Commission of Enquiry
appointed by the South West Africa Administration into Native and
Coloured Education in South West Africa, is that correct?
Mr. VAN ZvL: That is right, Mr. President.
Mr. RABIE: And for that purpose you spent some months in South
West Africa?
Mr. VAN ZYL: That is right, Mr. President.
Mr. RABIE: During that period you had to make a study of the different
population groups in the country?
Mr. VAN ZYL: Idid, Mr. President.
Mr. RABIE: Have you also visited South West Africa on other oc
casions?
Mr. VAN ZYL: Yes, subsequently on two occasions.
Mr. RABIE: In 1964, from April to July, you visited the United States,
and you visited various educational institutions in different parts of the
country, is that right?
Mr. VAN ZYL: Yes, Mr. President.
Mr. RABIE: In 1957 you represented your Department at what is
usually called the C.C.T.A. Conference at Tananarive, Madagascar?
Mr. VAN ZYL: Yes, Mr. President.
Mr. RABI E:I believe it was a conference dealing with technical subjects,
or something of the kind?
Mr. V AN ZvL: A conference for the co-operation of technical services
in Africa.
Mr. RABIE: You are also a member of the Joint Matriculation Board
in South Africa?254 SOUTH WEST AFRICA
Mr. VANZYL: Yes, Mr. President.
Mr. RABIE: What does that Board do-would you just say, in a few
words?
Mr. VAN ZYL: The Joint Matriculation Board exercises control over
the standards at the matriculation level in the Republic of South Africa,
that is, to ensure that all the different education departments corne to
the same standard at the end of all the school curricula.
Mr. RABIE: Matriculation is the final year of the secondary school
course in South Africa?
Mr. VANZYL: Yes, Mr. President.
Mr. RABIE: You a~e Chairman of the Committee for Bantu Languages
of that Joint Ilfatriculation Board?
Mr. VANZYL: Yes, Mr. President.
Mr. RABIE: You are also a moderator of matriculation examination
papers in three Native languages of South Africa?
Mr. VANZYL: That is right, Mr. President.
Mr. RABIE: What does a moderator do, would you say briefly?
Mr. VANZYL: In the first instance the moderator has to give guidance
to the examiners, and then moderate the papers which are set for the
different examinations to see that they are up to the required standard,
and then, after the examination has been written, a sample of the scripts
presented by the candidates is submitted to the moderator, and he has
got to go through these scripts to see whether in marking the examiner
has maintained the required standard.
Mr. RABIE: Dr. Van Zyl, you are the author of a number or series of
what are called "graded language manuals" for use in both primary and
secondary schools in two Native languages?
Mr. VANZYL: That is correct, Mr. President.
l\frRABIE: These have been published over a number of years?
Mr. VANZYL: Yes, Mr. President.
Mr. RABIE: And they are also used in Bantu schools?
Mr. VANZvL: That is correct, Mr. President.
Mr. RABIE: You have also written a book called A Practical Guide for
Bantu Teachers. Is that right?
Mr. VANZvL: Correct, yes.
Mr. RABIE: And you have translated into Northem Sotho, which is a
Native language used in South Africa, a series of graded arithmetic books
for use in lower and higher primary schools.
Mr. VANZYL: That is right, Mr. President.
Mr. RABIE: And you have published an English translation and notes
of a collection oftraditional Northern Sotho praise poems?
Mr. VANZYL: Yes, Mr. President.
Mr. RABIE: And, in addition to that, you have written a number of
works of an anthropological nature in both English and Afrikaans?
Mr. VANZvL: Yes, Mr. President.
Mr. RABIE: One of them, I believe, concems games played by the
Northem Sotho people of the Northern Transvaal and another is an
anthropological study of the economic life of a South African Bantu tribe?
Mr. VANZYL: That is correct, Mr. President.
1fr. RABIE: Finally, you have written several Afrikaans readers for
usein Bantu schools?
Mr. VANZYL: Yes, Mr. President.
Mr. RABIE: Now, Dr. Van Zyl, could you explain briefly to the Court WITNESSES AND EXPERTS
255
to what extent there is differentiation in the education of the different
population groups in South Africa and South West Africa?
Mr. VAN ZYL: Mr. President, theΠare eight education departments
in the Republic of South Africa, established mainly for geographical and
cultural, including language, reasons and there are four provincial
education departments for Whites, one national department for Whites
providing mainly technical and vocational training; there is one educa
tion department for Coloureds; there is one education department for
lndians and one education department for Bantu, with six regional
offices.In South West Africa there is only one education department,
with a sub-section for White and Coloured children and another for Bantu
children. The Odendaal Commission recommended that Native education
i11South West Africa be transferred to the Bantu Education Departmcnt
in the Republic.of South Africa and, according to a White Paper, which
I believe is before this Court, issued by the Govemment in connection
with the recommendations of this Commission, the transfer of the
educational services for Bantu in South West Africa to the Department
of Bantu Education has been accepted, in principle, by the Govemment,
but its implementation has been deferred. Then, I should add, Mr. Presi
dent, that the education departments for Whites and Coloureds in both
areas have separate schools for English-speaking and Afrikaans-speaking
pupils. The Department of Bantu Education has separate schools for
seven different language groups, and in South West Africa there are also
separate schools for different language groups among the Ban tu. I should
perhaps also mention that there are separate universities also for the
different population groups.
Mr. RABIE: Now, Dr. Van Zyl, are curricula and examinations in the
schools of the varions groups in South Africa the same?
Mr. VANZvL: Mr. President, curricula for all dcpartments are virtually
the same, that is, the same subjects are offered by all the different
education departments. Each department has its own syllabuses, which
are substantially also the same as those of other departments and vary
only in so far as content and method are determined by factors of culture,
tradition and background, but at the top level, that is, at the end of the
secondary course, the standards for ail syllabuses and examinations are
the same and are controlled by the body to which we have just referred
the Joint Matriculation Board.
The facilities, equipment, teaching aids, etc., may differ from depart
ment to department, depending on local circumstances, the particular
needs of a group, etc., but the minimum requirements are, however, laid
down to ensure adequacy of standards.
Then, Mr. President, each de·partment conducts its own examinations
quite independently up to the junior certificate level.
Mr. RABIE: Would you just stop there and say what is meant by
junior certificate?
Mr. V AN ZYL: Yes. l\lrPresident, I was also going to explain why we
so often refer to examinations in the Republic of South Africa and also
in South ·west Africa, whereas in other countries my experience is that
extcrnal examinations do not play such an important role, but in the
Republic of South Africa, and also in South \Vest Africa, standards are
mainly ensured by way of a system of externat examinations conducted
by various examining bodies.
Now, Mr. President, the junior certificate course is the first course SOUTH WEST AFRICA
taken at the secondary level. Pupils who emerge from the primary
school, or the elementary school, into the sccondary school takc a junior
certificate course, which extends over three years and which is followed
by the senior certificate course, which ends up in the matriculation
examina tion.
Mr. RABIE: Yes. You said, when I interrupted you, that each depart
ment conducts its own examinations up to the junior certificate level and
you have now said that there is uniformity at the matriculation levcl?
Mr. VAN ZYL: That is right, Mr. President.
Mr. RABIE: Now, could you just say what examinations Ban tu stu
dents in South Africa and South West Africa write?
i'.1.rAN ZYL: Ban tu students in the Republic of South Africa write
the junior certificate examination, which is also a public examination
conducted externally by the Department of Bantu Education itself.
Ban tu students write that examination and also Bantu students in South
West Africa are called upon to write that examination because they
follow the same syllabuses. But when we corne to the matriculation
examination, we have decided not to introduce a specific matriculation
course, or examination, for the Department of Bantu Education, and
Bantu candidates in the Republic, and also those of South West Africa,
are to write the matriculation examinations conducted by the Joint
J\Iatriculation Board itself, or the examinations conducted by the
Department of Education, Arts and Science. That is the Department,
Mr. President, to which I referred in the beginning, which is a national
department providing mainly for technical and vocational training.
Mr. RABIE: Now, the next- witness is going to deal with university
education, but could you just briefly indicate, while we are on the subject,
how those universities are run?
Mr. VAN ZvL: Mr. President, as I have indicated, there are separate
universities for the different population groups. These universities are
independent. The university colleges mainly attcndcd by Ban tu students
are also run by their own councils and serrates but, for academic purposes,
they are linked with the University of South Africa.
Mr. RABIE: My next question, Dr. Van Zyl is: has there ever been an
integrated system of education in South Africa or in South West Africa?
i\frVAN ZYL: i\1r. President, there were attempts at integration in
two territories which subsequently became two provinces of the Union
of South Africa, now known as the Republic of South Africa. During the
Dutch period in the Cape-1652 to 1806-an attempt was made to
establish integrated schools for Whites and non-\Vhites who had accepted
the Christian faith, but it soon became evident, however, that integration
was impracticable and that it served to accentuate the differenccs be
tween White and non-White, rather than to eliminate them. The last
remnants of this system were clone away with by the Dutch Government
the early years of the settlement by the Governor de 1\Iist in
itself in
1685. Then, after 1806, under British rule, the authorities tried to unite
\Vhite and non-White into a single community, with a common language,
common religion, common culture. Mixed schools were considered to be
the most powerful agent in this regard, but the attempt again failed and
the scheme actually had the opposite effect.
Then, there was another experiment towards integration in the Pro
vince of Natal in the nineteenth century. With the British annexation
of Natal in 1843, the purpose became again to westernize the Natives WITNESSES AND EXPERTS 257
wholived in that area, who were known astheZulus, and to integrate them
into White community schools, which wcre then declared open to all.
The experiment was also a failure.
Then, Mr. President, the British South Africa period-a short period
of ten years only, from 1900 to 1910. The few rcmaining mixed schools,
which were mainly schools for Coloureds and Whites in the Cape also
disappeared gradually. Certain private schools, which were theoretically
still open to White and non-White failed to harmonize practice with
theory, and in 1910, when the Union of South Africa was founded, a
poliey of separate schools for the different population groups was adopted.
Mr. President, in South West Africa therc have never been integrated
schools for \Vhites and non-Whites, and no attempt was made to institute
a joint system of education thcre when the :Mandate was granted to South
Africa.
i\Ir.RABŒ: Dr. Van Zyl, would you briefly describe the system of
Bantu education that existed in South Africa before the passing of the
Ban tu Education Act in 1953?
.Mr. VAN ZYL: l\Ir. President, as in man y other parts of the world,
the first Bantu schools in South Africa came into existence as a result of
missionary activity. For the purposes of evangelization, the missionaries
had to teach the Bantu to read and write and, accordingly, had to esta
blish and maintain schoois. The first l\Iission School for Bantu was
established almost 200 ycars aga in 1789. So, a system of mission schools
was founded and for man y years the burden of so-called Native education
was borne entirely by missionary societies. lt was their pride but, ulti
mately, the burdcn became so heavy that thcy couid not carry on without
State aid. Financial support from the State was first introduced in 1854
in the Cape Province, and was progressîvely increased, until by 1925,
virtually all expenses were borne by the State. Bccause of this, the State
had to exercise some form of control over these fully subsidized schools.
Then, for the purposes of local administration, the State-aided schools
came under the various missionary societies. The administration of
fonds and profossional control was cntrustcd to the four provinces of
the Union, each acting quite independently of the other. Some form of
co-ordination was ensured by the establishment of a so-called Native
Education Advisory Board for the Union.
Then, Mr. President, the main contribution of the missions to Bantu
education was their pioneering work during the difficult years of its
inception. The missionaries studied the Bantu Ianguages and developed
them into writtcn ianguages. They also translated the Bible into varions
South African languages. As may be expected, religious education enjoyed
pride of place in the mission schools. Education was not~this is another
point which I should make-an integral part of a general plan for the
dcvelopment of the Bantu, and the central Government, as I have
pointed out, had no sharc in this service.
l\fr.RABIE: Dr. Van Zyl, the then existing system was altered in 1953:
is that right?
Mr. VAN ZYL: That is right, l\Ir. President.
Mr. RABIE: Could you briefly say why that was clone? .
iVfrV AN ZYL: i\frPresident, because itwas felt that there were certam
definite shortcomings in the system that existed prior to 1953.
Mr. RABIE: Would you briefly sa.y what those were, or were considered
to be?258 SOUTH WEST AFRICA
Mr. VAN ZYL: Mr. President, a serious defect in the old system was the
divided control of Native education, to which I have already referred.
The missionary approach differed from church to church, and the result
was that confusion was created in the minds of many Bantu Christians,
who were not all adherents of the same church. Further, as I have already
indicated, each of the four provincial authorities had their own policies in
regard to the administration of the subsidies to mission schools and in
connection with the control of professional work.
That should perhaps be considered as the main defect of that system,
but the system also did not contribute adequately to Bantu community
development, I mean to the development of self-reliant, self-respecting
Bantu communities, which could be further developed to the full in all
spheres.
Further, Bantu schools were managed by missionary superintendents,
and inspected by departmental officiais. The result was that parent com
munities had no share in the management of these schools and accor
dingly showed little interest. They did not regard the schools as their own
institutions.They were foreign institutions, to which they had to send
their children for the sake of an education which they themselves did not
fully understand.
Then, 11Ir.President, there was also the uncertainty as to the future
and development of Bantu culture. In this respect there were two
schools of thought. Firstly, those who believed that Bantu culture was
inferior and that it should gradually disappear. Secondly, those who
believed that the tradional Bantu culture, including the various Bantu
languages, could develop into, or could serve as a basis for, a modern
culture fully able to satisfy the needs of a modern wor!d. While this
uncertainty in connection with Bantu culture remained, there was little
hope for the schools to play an effective part in the development of Bantu
culture.
Mr. RABIE: \Vhat was done in an effort to bring about an improvement
in the old system?
Mr. V AN ZYL: Mr. President, the usual thing was done: a commission
of inquiry was appointed, the so-called Eiselen Commission, which was
appointed in 1949. This Commission made a thorough study of ail matters
concerning Native education, and consulted a large number of interested
persons and bodies in an attempt to find satisfactory solutions for the
problems which they were called upon to solve.
The Commission also consulted Bantu individuals as well as organi
zations.
Mr. RABIE: Now, could you briefly say what the basic recommen
dations of this Commission were?
Mr. VAN ZvL: Mr. President, I should first of all try to indicate what
the all-embracing finding of the Commission 'Yas, and this was that
education for the Natives should be co-ordinated with a definite and
carefully planned policy for the development of Bantu society. That is
what I would call the all-embracing finding of this Commission.
Then in order to achieve this, further recommendations were made
which were substantially as follows: to secure efficient and co-ordinated
planning, designed to develop sound social institutions, education should
corne under the central Government and be taken away from the pro
vincial authorities to which I have referred earlier on.
Secondly, increased emphasis was to be placed on the education of the WITNESSES AND EXPERTS 259
masses, so as to enable them to co-operate in the evolution of new social
patterns.
Further, that schools should be linked as closely as possible with
existing Bantu social institutions; and further, that active steps should
be taken to produce literature of a functional value in the Bantu lan
guages.
And it was also recommended, Mr. President, that the mother tangue
should be used as the medium of instruction for at least the duration of
the primary school course. Further, that Bantu parents should, as far as
practicable, have a share in the control and life of the schools. Itwas
argued that parents and schools should be complementary and they
should not be competitors in the field of education. Further, that Bantu
personnel should be employed to the utmost. Also, that schools should
provide for a maximum development of the Bantu individual, mentally,
morally and spiritually.
And these recommendations, Mr. President, were accepted by the
Government, and the Bantu Education Act was passed in 1953, and the
principles which I have outlined were implemented in practice.
Mr. RABIE: Dr. Van Zyl, would you tell the Court what the reaction of
the public was, and of the Bantu in particular, to the new education
system?
Mr. VANZvL: Mr. President, for reasons of their own, certain indivi
duals went out of their way to criticize and to belittle the new system.
These critics received considerable publicity. The matter was dragged
into politics and various persons and bodies, who knew little or nothing
of the system, attacked it even before it had an opportunity of proving
itself.The result was that many Bantu at first regarded the new system
with suspicion and were made to believe that their children would be
given an inferior education. But after some time it became clear that there
was no reason for alarm, and now that the aims are better understood by
all, and the achievements are known, the atmosphere has changed and
the system is showing itself to be an enormous success.
Mr. RABLE: Dr. Van Zyl, what would you say or what do you regard
as the main advantages of the present system?
Mr. VANZYL:Well, here again, Mr. President, there is an all-embracing
advantage, and I should start by saying that an educational organi
zation which the Bantu can call their own is being established for them.
Since the passing of the Bantu Education Act in 1953, the Bantu have
been given an active share in the education of their children.
Community schools, managed by all Bantu school committees and
school boards, have been established, and some 50,000 Bantu parents
are serving on these bodies, and are being trained in the rudiments of
self-government. ·
The ultimate aim is to enable Bantu groups to assume full responsi
bility for their own educational service, as is already the position in the
Transkei today.
The scheme has also led ta increased interest in education on the part
of Bantu parents, who in turn encourage their children to go to school
and, what is perhaps more important, ta remain there until they have
acquired literacy or even more advanced education. There was a time
prior to this new system when the parents did not care; if a child wanted
ta go ta school he could have gone of his own free will, and if he felt like
leaving the school, because he was bored, or for some other reason of his260 SOUTH WEST AFRICA
own, the parents did not mind and just allowed him to leave the school.
Now that the schools have become part and parcel of the Bantu com
munity, and now that the parents have a share in their management and
take an active interest in what is going on, they urge their children to go
to school, and they also, should I say, compel them to remain there for
a sufficiently long time to acquire literacy, or whatever education they
are aiming at.
The new system has brought about a phenomenal increase in the
enrolment during the past ten years. The number of pupils has doubled
during this period and grows at the rate of roo,ooo per year. Of all
children in the age group 7 to 14, about 80 per cent. are at present
attending school, which I should say, Mr. President, is a very high
percentage. And in 1964-unfortunately these are the latest figures I
have at my disposal-the enrolment figure was, in round figures,
1,840,000, nearing the 2 million mark, as against 870,000 in 1953.
The number of schools has increased by over 3,000 during the same
period, and during the past three years new schools have been registered
at the rate of a school a day. The total number of schools has grown from
5,602 in 1953 to 8,672 in 1964. The expansion is still going on and it has
become a real problem to cope with the demand.
These schools are of various kinds. There are the ordinary schools,
to which I have referred; and then there are 26 technical and vocational
schools, offering courses to boys and girls; there are still 43 teacher
training schools, training teachers at secondary level, after the junior
certificate examination; and in 1964 there were 4,186 students being
trained as teachers-2,000 of them took the examination at the end of
the course, and some r,630 passed.
The system, l\fr.President, also creates extensive opportunities of
employment to Bantu as teachers and in other related posts. The number
of teachers has grown from 21,150 in 1963 to 32,200 in 1964; and for the
purposes of these figures I still include the Transkei because the figures
were taken together for our statistics. There is still a shortage of certain
types of teacher, especially in secondary schools, and at present the
Department of Bantu Education still employs some 500 \Vhite teachers,
but this number, 500, comprises only 1.2 percent. of the total teaching
staff.
Bantu teachers are appointed to the highest posts of principal, in
spectors and assistant inspectors of schools. There are as many principals
of schools as there are schools, and perhaps we should note that a prin
cipal gets, in addition to his basic salary, an allowance, a principal's
allowance, for this added responsibility. There are at present SS Bantu
inspectors of schools and 170 assistant inspectors. Perhaps I should
point out that until recently these officials were called sub-inspectors and
supervisors of schools respectively. The new terminology, however, is as
I have indicated. I am given to understand, that the post of sub-inspector
and supervisor of schools has also been introduced in the Department of
South West Africa.
Administrative functions are also gradually being handed over to the
Bantu. Every school board has a secretary, and 470 boards in the
Republic have full-time paid secretaries. Altogether 502 boards employ
20,000 teachers, that is 73 percent. of all the teachers, and in this case
the Transkei is excluded.
ln an integrated educational system, Mr. President, progress by the WITNESSES AND EXPERTS 26r
Ban tu in these respects would have been hampered by competition from
more experienced and more advanced groups. Then, separate schools
stimulate the development of the Bantu languages concerned, and the
production of school books in these languages. They also provide the
stimulus in other respects of culture, such as literature, folk-songs, etc.
Then, Mr. President, I must add that the separate school system makes
it possible to adapt educational facilities to the background, need, and
circumstances of a particular group. In this connection, I may mention
the following factors, which corne into play.
Firstly, certain educational principles relating to mother-tongue in
struction, the provision of specialized class-books, the application of the
principle of proceeding from the known to the unknown, the preservation
of particular cultural institutions, the adaptation of syllabuses, etc.
Secondly, technical and vocational training are offered to meet par
ticular needs.
Thirdly, provision of teachers and facilities and the expenditure
connectcd therewith.
Mr. RABIE: Now, Dr. Van Zyl, you have referred to instruction through
the medium of the mother-tongue as an advantage of the system of having
separate schools. Could you explain briefly why you regard such instruc
tion as an advantage in education?
Mr. VAN ZYL: Mr. President, there are many reasons why mother
tongue instruction is of vital importance and I would like to mention
just a few of these reasons. My own experience of Bantu schools in South
Africa, as a teacher, as principal, and also as impector of these schools,
has convinced me that mother-tongue instruction is the best method,
especially in the primary school. It is, in fact, a generally accepted
educational principle that the mother-tongue is the best medium of
teaching and I know of no educationist of standing that denies that
principle. The use of the mother-tongue as a medium has various ad
vantages. I may point out that it has been stated in United Nations
publications that "experts accept as axiomatic, on psychological, socio
logical and educational grounds, that the best medium of teaching a
child is his mother-tongue". Ihave quoted from a publication by Unesco
and I have been told that this passage and others, which I hope to quote,
have already appreared in the Respondent's pleadings.
I may also point out that Unesco experts have recommended that
every effort should be made to provide education in the mother-tongue
to as late a stage of education as possible. I should like to refer to a recent
articleby an African professor of the University of Ghana, K. E. Darkwa,
entitled Education for Cultural Integrity, the Ghanian Case. It was pub
lished in New Era, Volume 46, No. 3, of March 1965. In his concluding
remarks, the author wrote:
"What then should be the position of the vernacular in our educa
tional system? The answer is simple, vernacular must be given top
priority. One of my own deficiencies in life is the lack of ability to
express myself sufficiently in either English or my vernacular."
Mr. RABIE: Dr. Van Zyl, before you proceed, you have a copy of the
article there?
Mr. VA~ ZYL: I have, Sir.
Mr. RABIE: You will hand it in? 262 SOUTHWESTAFRICA
Mr. VANZYL: Yes. Shall I hand it in, now, Mr. President?
The PRESIDENT:Are you tendering the article in evidence, Mr. Rabie?
Mr. RABIE: Yes, Mr. President.
The PRESIDENT:Very well then.
Mr. RABIE: We have notified, I may say, the Applicants of the article
and it wiU be handed in.
The PRESIDENT:Any objection, Mr. Gross?
Mr. GRoss: No, Sir.
Mr. RABIE: Will you proceed, Dr. Van Zyl?
Mr. VANZYL:Also, Mr. President, experts have pointed out, and we in
South Africa ourselves have experienced, that the vernacular is of the
utmost importance in bridging the gap between home and school. Our
experience is also that if a child is taught in his mother-tongue his
parents tend to display a greater interest in his education. This is to be
understood. The use of the mother-tongue is the best way to ensure
that pupils understand what the teacher tries to teach them and it helps
to develop their reasoning powers, and their initiative. It also promotes
original thinking.
Mr. President, we have experienced that pupils who are taught
through the medium of their own language perfonn better than pupils
who are taught through a foreign medium. Our experience has been
confirmed by tests made elsewhere. In this regard I may refer to ex
periments carried out by Unesco experts in the Philippines. Those
experiments showed that vernacular-medium pupils performed better
than foreign-medium pupils in various non-language subjects. These
experiments also showed, and it has also been our experience in South
Africa, that vernacular-medium pupils are emotionally more stable and
develop more confidence than others, and, furthermore, that they show
a greater ability to organize and to express their thoughts, that their
social education is better, and that they attend school more regularly.
Mr. RABIE: Would you indicate where the results of the experiments
you refer to are recorded, Dr. Van Zy1?
Mr. VANZvL: Mr. President, they are recorded in Unesco publications
on the experiments carried out in the Philippines-published in Unesco,
April-May 1958, Volume X, Nos. 4-5, pages 43 and 44.
Mr. President, I may say also that the mother-tongue medium has the
added advantage that it stimulates the development of the language and
the literature of that particular population group. It also stimulates
the development of a culture generally, because, in the same article by
Professor Darkwa that I have referred to before, the view is expressed,
and I agree with him, "that language is the foundation of society and
the root of culture. This is why every society must preserve its language
ifit does not want its foundations to be destroyed."
Mr. RABIE:Dr. Van Zyl, can you indicate whether school examination
results in South Africa have provided any evidence of the efficacy or
otherwise of rnother-tongue instruction in Bantu schools?
Mr. VAN ZvL: Mr. President, we have had some very interesting ex
periences in this connection in the Republic of South Africa and Iwould
like to deal with this question in two parts: firstly, with examination
results at the end of the primary school course-that is at the standard
six level-because, in the primary school course up to standard six the
actual medium in our country is the mother-tongue, and, for the junior
certificate course as well as the matriculation course, the medium is a WITNESSES AND EXPERTS
different language-one of the official languages. So there is a difference.
Secondly, then, I would like to deal with the junior certificate and the
matriculation examinations. Now, we have little doubt that the use of
mother-tongue as a medium has contributed greatly to better results in
the standard six examination.
Perhaps [ should explain, Mr. President, that, prior to the New Deal
for Bantu Education in the Republic of South Africa, mother-tongue was
an accepted policy and was carried out up to the standard two level in
the primary school. At the standard three Ievel-that is actually in the
fourth school year-English or Afrikaans was introduced as a medium
of instruction. But the Bantu Education Act required that mother
tongue instruction should carry on from the fourth year up to the sixth
standard. Now, in 1958 the standard six examination was conducted in
the mother-tongue for the first time. The percentage of. passes in this
examination rose from 68 in 1958 to 79 in 1960 and as mother-tongue
medium became well established in the primary school the percentage rose
to 84 in 1964.
In junior certificate examinations there have also been better perfor
mances in recent years. The reasons for this improvement, I must admit,
cannot precisely be determined or ascribed exclusively to mother
tongue instruction for standards of teaching are steadily improving.
We have evidence, however, that students who started on secondary
courses in recent years had a better grasp of suhjects learned during the
primary school course, and that they were, for that reason, able to make
faster progress.
Mr. President, then I would only like to say that, in the junior certi
ficate examination prior to mother-tongue medium in the primary
schools, the percentage of passes was in the neighbourhood of 55. In 1962
this percentage rose to 57 and two years later, after mother-tongue
medi1,1mbecame well established again, in the primary school the per
centage rose to 74. I should point out, Mr. President, that, although
this examination is conducted by the Department of Bantu Education
itself, it is a public examination organized in the same way as any other
public examination. Externat examiners are appointed. The majority of
examiners for this junior certificate examination do not belong to our
Department. They are taken from other education departments. Also,
the moderators are taken from other education departments, so there
is no question of thinking that there was a possibility of the lowering of
standards. Students who wrote the matriculation cxamination in 1960
and 1961 had their primary school training through the medium of
English and the percentage passes in those years were exceedingly poor,
because there were also other disturbing factors.
But 1960 was again a more or Iess normal year and then, when candi
dates who had their primary training partly through the medium of the
mother tangue wrote the examination, the percentage of passes rose
from 26 to 40. In 1963 and 1964 the results were even more revealing.
Here again I want to point out that the candidates who wrote the matri
culation examination, which is an entirely external examination, had
their whole primary school course through the medium of the mother
tangue and in these years these candidates did so well that the percen
tages rose from, as I have said, 40 the previous year to 61 in 1963 and
62 in 1964, and we have reason to believe that th<)results in coming years
will be even better. SOUTH WEST AFR!CA
l\lrRAB!E: Now, Dr. Van Zyl, you have referred to the mother-tongue
in the primary and secondary schools. Would you briefly indicate what the
position is in regard to the teaching of the official languages, English
and Afrikaans?
Mr. VAN ZYL: 11r. President, when mother-tongue instruction was
first introduced in the Republic of South Africa people were given to
understand by critics that the teaching of English and Afrikaans as
subjects had corne to an end and that Bantu children were not given the
opportunity of acquiring a knowledge of these languages, and more
particularly English, in our Bantu schools. But the Bantu Education
Department fully realizes the importance of teaching Bantu children
English and Afrikaans and provision is made for the teaching of these
subjects from a very early stage. A Bantu child who cornes to school
starts his second language, his first language being his mother tangue,
in sub-standard A, that is, the first year of the primary school, and he
starts the second official language in the same year, but six months later.
These subjects are taught right through until the end of the secondary
school course.
The position is therefore, Mr. President, that a Bantu pupil studies
English and Afrikaans as second languages in the same way as an Afri
kaans pupil, for instance, would study English.
Mr. RAmE: Now, Dr. Van Zyl, you referred earlier to facilities for
tcchnical and vocational training in South Africa which have regard to
particular needs of the Bantu people. Would you briefly describe what
these facilities are?
Mr. VAN ZYL: 1\lr. President, in view of the special circumstances
pertaining to the Bantu people at present, it is considered best to provide
formai training in certain directions at dcpartmental institutions.The
requirements for admission to such schools is standard 6, that is, the
end of the primary school course and after the eighth year of schooling.
Thcre are no such tradc schools for Europeans and provision is made for
them in a different way.
I can give some particulars: there are five technical schools which offer
courses in general mechanics, building construction, electricity, wood
work and draughtsmanship. There are II vocational schools for boys.
By "vocational schools", l\Ir. President, I actually mean trade schools,
where the boys are enabled to qualify as artisans, tradesmen. These
schools offer courses in building, electrical wiring, tailoring, upholstery,
plumbing, motor mechanics, carpentry, baking, radio mechanics, courses
for radiotricians and brick-making, etc. There are ten vocational schools
for girls offering courses in subjects such as home management, dress
making, hairdressing and beauty culture, baking, millinery, etc.
Mr. RABIE: Dr. Van Zyl, you also stated earlier that separate school
systems have a bearing on the provisiqn of facilities and teachers and
the cost thereof. Would you briefly say what you had in mind when you
said this?
Mr. VANZYL: This question, or similar questions are often asked and
my answer to this question is of more than ordinary significance. I do
hope that I shall manage to make a very important point clear. It is the
policy to build up Ban tu communities and to help them to participatc in
this process. To achieve this purpose it is essential to teach the masses
and to make schooling available to as man y pupils as possible. It is a fact
that these masses are, both in South Africa and in South West Africa, WITNESSES AND EXPERTS
at a lower level of development than theothergroupsand thattheymain
tain a lower standard of living.
Now, Mr. President, since this is so, Ban tu teachers are employed at a
lower salary than in the case of the other groups, salaries which bear a
reasonable relationship to the incomes of other members of their group.
For the same reason, buildings and other equipment generally need not,
and are not expected by the people to be exactly the same as in the case
of the other groups. 1 may point out in this regard that it is also our
policy to employ Bantu workmen for the erection and maintenance of
buildings and for the manufacure of furniture. This, too, reduces costs
and helps to make it possible to provide services on a ,vider basis than
would otherwise have been possible.
With the advancement of the Bantu people, economically and other
wise, the considerations I have mentioned will necessarily be affected
and a basis for fmancial provision will naturally have to be adjusted. The
position is not a static one. Furthermore, 1 would like to emphasize in
regard also to the present time that there is no question of providing
inferior facilities. The savings are effected in respects which donot affect
the quality of the education provided. \Vhere facilities have a necessary
bearing on the quality of instruction, for instance, in the technical and
vocational schools I have mentioned, the general policy is to make them
at least as good as sirnilar institutions or facilities for the other groups.
On the whole, the savings that could be effected have, I am sure, enabled
us to reach the masses much more extensively than would have been
feasible if the cost per unit had been as high as it is for White education.
The taking over of the educational system by the Bantu peoples
themselves on their way to independcnce and self-determination is
greatly facilitated in the sense that they would not have to carry from
the outset an expensive educational system with, for instance, teachers
paid on a scale which they would be unable to maintain. There is also,
I may point out, to my knowledge no rescntment at this differentiation.
Of course, teachers, \Vhites and non-\Vhites, are for ever asking for
higher salaries but there is no objection to differentiation as such. We
are in this respect proceeding on much the same lines as independent
African States north of us.
Mr. President, the differentiation as compare<l with White education
and with salariespaid to \Vhite teachers operates in a practical way to the
advantage of the Bantu people.
Mr. RABIE: Dr. Van Zyl, in 1958, the South West Africa Administration
appointed a commission of enquiry into Native education in South West
Africa of which commission you were the chainnan. Now could you say
briefly what were the main reasons for the appoinünent of that commis
sion?
Mr. V.-1.xYL: Mr. President, the reasons were substantially the fol
lowing: a general survey of ail educational services in the Territory was
carried out during the years 1957 and 1958. [ should point out that during
1957 there was another commission of enquiry to enquire into the whole
question of education of South \Vest Africa and that commission had to
deal with all the different population groups, but before it had corne
to the end of its task it decided that it could not do the specialized work
required for Bantu education. So, they completed their work only in
regard to White education and the administration appointed another
commission in r958 to deal with the non-White groups. Of course, the 266 SOUTH WEST AFRICA
commission was so composed that there were experts also in the field of
Coloured education. lt was felt at the time that the timc had arrived to
assess the position which obtained then with a view to bringing about
improvement where necessary. The commission was asked to determine
existing shortcomings and to formulate an effective system for the Native
communities of South West Africa. lt was also asked to ascertain to
what extent Bantu education in the Union of South Africa could serve
as a basis for Native education in South West Africa.
Mr. RABIE: Now, what in broad outline were the recommendations of
your commission?
Mr. VAN ZYL: Mr. President, there was a wide range of recommenda
tions and they included, inter alia, that a system of community schools
with Native governing bodies be introduced; that a separate section of.the
South West African Education Department be established in order to
specialize inthe needs of Native education; also, that the development
of the Native languages should be cared for by establishing a language
bureau for the production of literature and more particularly the pro
duction of school books. We also recommended the progressive intro
duction of mother-tongue instruction in the primary schools. The
principle of mother-tongue instruction was not a new one in South
West Africa but application and practice was a different matter. \Ve
aise further recommended that the South African syllabuses and exami
nations be introduced in South West Africa so that teaching aids, and in
particular graded class books, which were available in South Africa,
could be used; certain primary school syllabuses were to be adapted to
local circumstances.
Mr. RABIE: Did your commission consult the Native groups and leaders
in Native communities in an effort to fi.nda suitable system for the Terri
tory and, if so, what was the general attitude towards the proposed
changes?
Mr. VAN ZvL: Mr. President, the consultation with the various Native
community leaders, I would say, was the most interesting part of our
·task and representatives of ail sections of the Native population were
consulted and prolonged discussions, which I may say we enjoyed, some
times lasted two days in one place. The commission explained the dif
ferent possibilities to these leaders-ailwere in faveur of the proposed
school committees and school boards on which parents could serve and
thereby have a share in the management of their schools. The majority
of these people, whom we have consulted, favoured a type of govcrnment
school in preference to mission schools and indicated that they were
prepared to consider a community school, as we tried to explain to them,
as a kind of government school for all practical purposes. The only indi
cation, Mr. President, ofdoubt or reluctance to co-operate in the launch
ing of a new system came from the Hereros, and to a lesser extent from
some Namas. The Hereros, who number about 35,000, are known to
oppose most government schemes.
IlfrRABIE: To what extcnt have the recommendations of your com
mission been implemented-1 refer only to the few you have mentioned?
Mr. VAN ZYL: Mr. President, as neither I nor my department are
officially connected with Native education in South West Africa, the
information at my disposai was gained through a personal interest that
I take in the Territory and in education generally. To the best of my
knowledge the following steps have been taken: community schools WITNESSES AND EXPERTS
267
involving school committees and school boards have been introduced
and the process is far advanced in the northern territories, where parent
communities have responded well to the new system, but because of
various problems the introduction of this system of community schools
in the southern area has been delayed. Bantu education syllabuses,
pertaining to the Department of Bantu Education in the Republic of
South Africa, have been introduced on the following basis: syllabuses
forthe primary schools have been adapted to mit local conditions and
examinations are conducted independently by the South West Africa De
partment of Education at the standard six level; junior certificate sylla
buses have been introduced unchanged and candidates write the Bantu
education examinations. This, Mr. President, is important because the
junior certificate syUabuses are so designed that they link up with the
syllabuses of the Joint Matriculation Board and the Department of Edu
cation, Arts and Science because our junior certiftcate candidates are des
tined to write the examination conducted by those bodies; the Bantu
Education Department's courses for teacher training have also been
taken over; the wide range of graded class books available in the Repub
lic are also used in South West Africa as far as possible; a Bantu lan
guage bureau has been set up, as we recommended, and a separate section
for Bantu education with its own chief înspector and inspectorate has
been established in the existing education department.
Mr. RABIE: Now, Dr. Van Zyl, do you know whether the Odendaal
Commission also made recommendations in regard to the education of
the Native people in South West Africa?
Mr. VANZYL: Mr. President, yes. First of ail, as I have said before, the
Commission recommended that Native education in South West Africa
be transferred to the Department of Bantu Education in the Republic
of South Africa. Secondly, I wish to mention that certain recommen
dations made by the Commission show a striking resemblance to the
recommenclations made by the 1958 Commission. So, for example, the
Commission approved of the principle of community schools, partly
instituted in South West Africa as a result of the 1958 recommendations.
It also approved of the principle of mother-tongue instruction and the
development of Bantu languages. It found that there was a poor demand
for vocational courses offered for Native pupils at the Augustineum, but,
nevertheless, thought that the general development programme which
it proposed for the Native groups would crcate a need for vocational
training and for facilities for training in agriculture and animal hus- ·
bandry. It accordingly also recommended the extension of facilities at the
Augustineum and the establishment of a training centre in Ovamboland ..
The Odendaal Commission also stressed the importance of commercial
and technical junior certifi.cate courses and recommended that such
courses be instituted. These courses already exist in the Republic of
South Africa.
i\fr.RABIE: Dr. Van Zyl, fi.nally, what, in your opinion, would be the
results if an attempt were made to institute a system of joint schooling
in the Territory of South West Africa?
l\frVANZYL: Mr. President, I do not think that there is any hope of
success. The differences among the population groups in background,
language, tradition and culture are so big that the people do not mix
socially,with the result that integrated schools are almost inconceivable.
From what. I know of the people, there cannot be peaceful integration in SOUTH WEST AFRICA
the field of education and any attempt to enforce integration will cause
the collapse of the educational services. Further, integration will bring
friction and enmity among the pupils. ln other countries with hetero
geneous populations, attempts at integration have brought about serious
clashes between the racial groups and in some instances have even led to
violence and this, l\Ir. President, is, in my opinion, exactly what will
happen in South West Africa.
From an educational point of view, a system of joint education would,
if it could be introduced, mean the end of some of the advantages I have
previously mentioned. It would be impossible to apply sound educational
principles which can be applied under the present circumstances. So,
for instance, instruction through medium of the mother tongue would
be out of the question for at least one group and it would be impossible
to do full justice to the traditions and culture of all the groups. If the
official languages, English and Afrikaans, were to be the sole media the
Bantu groups will suffer as a result.
Mr. President, as I see it, ail such unfortunate results can be avoided
by having a s 1stem of separate education as at present and by providing
proper facilities for the different groups. As far as I know, nobody in
South West Africa has ever requested or.propagated integrated schools
and I make bold to say that everybody realizes that such a policy would
be impossible.
Mr. RABIE: Mr. President, that concludes the questions I wish to put
to the witness.
The PRESIDENT:Very well, Mr. Rabie. l\lr. Gross?
l\lr. GRoss: Dr. Van Zyl, you will understand, Sir, that I am cross
examining you on the basis of notes hastily prepared while you were
testifying and, therefore, if I do by chance misquote you or in any other
way not correctly rcflect your testimony, would you please, for the benefit
of the Court, correct me at once. Itwill be unwitting.
I understand, Sir, that you testified that from 1948 to 1957 you were
an Inspector in the Department of Bantu Education. Is that correct,
Sir?
Mr. VANZvL: Yes. l\fr. President, perhaps Ishould give a little more
explanation. I was in the field, as I call it, for seven of those nine years
and for the last two years of my position as lnspector of Schools I was
called to the new head office for Bantu education to assist in the plan
ning of the new Department.
Mr. GRoss: Thank you. Now, as you testified, I believe your fonction
was to inspect institutions and to give guidance to teachers. Is that
substantially correct?
Mr. VAN ZYL: That is right, Mr. President.
Mr. GROSS:Did you, in the course of that period and in that fonction,
visit South West Africain the performance of your duties?
Mr. VANZvL: No, Mr. President.
Mr. GROSS:This was entirely, then, in South Africa itself, Sir?
l\IrVAN ZYL: Yes.
r1fr. GROSS:The fonction of your Department of Bantu Education,
perhaps this will emcrge more clearly from your testimony when I have
had an opportunity to read the verbatim record-was it your testimony,
Sir, that the Department of Bantu Education, of which you were
Deputy-Secretary, has jurisdiction over the Bantu education system of
South West Africa? WITNESSES AND EXPERTS
Mr. VAN ZYL: No, Mr. President.
Mr. GROSS: If it does not involve too much repetition, since it is already
in the record, would you clarify the extent to which your Department
has any responsibility with respect to South West Africa, if any?
Mr. VAN ZYL: Mr. President, I should say that the responsibility of
my Depari:ment would only be indirect because, as I have indicated in
my main evidence, certain syllabuses which are applicable in the Re
public of South West Africa have been introduced in South West Africa
as, for instance, for the junior certificate course and for the teacher
training course. So South West African pupils have to follow those
courses and ultimately they have to write the examinations conducted
by my Department.
Mr. GROSS: Does your Department determine the nature of the
examinations and the syllabuses to be administered and applied in
South West Africa?
Mr. VAN ZYL: In those particular cases, yes, Mr. President, for the
junior certificate course and the teacher-training courses, also for vo
cational training, I should not omit that. But my Department has an
Examination Board consisting of senior officials and specialists in various
fields and, on this examination board South West Africa also has repre
sentation.
Mr. GROSS: Let us take as a hypothetical example, Sir, that a teacher
or school official in South West Africa considers that changes should be
made in the curriculum or syllabus. What would be the procedure by
which such a recommendation would be received and disposed of by the
governmental agencies concerned?
Mr. VAN ZYL: The normal way, Mr. President, is that any teacher in
the Department who feels that a change should be effected-a change
of any kind-if he is an assistant teacher he would take the matter to
his principal, discuss it with him and, if they agree, the principal would
go forward with the proposa!, give it to the inspector, who will, in tum,
take it to the heads of the Department, and the Departrnent will ulti
mately refer the matter to the Exarninations Board which I have
mentioned.
J\lrGRoss: The Department being your Department?
Mr. VAN ZYL: No-the Department being the South West African
Education Department.
Mr. GROSS: And is the South West African Education Department in
any way affiliated with your Department of Bantu Education?
Mr. VAN ZYL: Only in the sense, Mr. President, that that Department
has representation on our Examinations Board.
Mr. GRoss: On your Examinations Board?
Mr. VAN ZYL: On our Examinations Board, yes.
Mr. GROSS: Does the Department for South West Africa have full
authority to make changes in curriculum or syllabuses on its own au
thority, or does it have to refer such changes for approval to some higher
agency or some different agency?
Mr. V AN"ZYL: The South \Vest African Education Department is free
to make whatever changes it chooses in the lower primary course and
the higher primary school course. As it is, they only use the Republican
syllabuses as a basis and they adapt these to local conditions and nobody
can stop them frorn even changing these syllabuses radically, but when
they corne to the junior certificate course they have to act more carefully270 SOUTHWESTAFRICA
because, as I pointed out this morning, the junior certificate courses are
so designed that they link up with the matriculation courses which
these Bantu pupils are called upon to take after the junior certificate
course.
Mr. GRoss: When you use the phrase "act more carefully", would
you elaborate that in tcrms of the discretion, if any, which they have to
make alterations on their own authority?
Mr. VANZvL: Well, Mr. President, they will not be able to introduce
changes on their own without notifying anybody. Then they will have
to follow the proccdure which I have tried to explain and if there is a
suggestion for a change or for the introduction of another subject, as
was the case with the subject of German, they bring that through their
representative to the Republican Examinations Board and ask for its
co-operation in effecting the change that they have in mind.
l\Ir. GROSS:Where does the final authority for decision lie?
l\Ir. VA:-.ZvL: With the Head of the Department for Bantu Education.
Mr. GROSS:In Pretoria?
l\lr. VANZYL: In Pretoria.
Mr. GROSS:Is that same procedure applied to any other aspects of the
fonction of the education system in South West Africa?
Mr. VANZYL: No, Mr. President, it concerns only certain courses, as
I have said before-the junior certificate course, the teachers' training
course and also the courses for vocational training.
Mr. GROSS:Would the necessity of approval by the Department of
Bantu Education in the Republic apply also to, let us say, changes in
the matriculation examination?
Mr. V A!'ZYL: No, Mr. President, the Department of Bantu Education
has no right to bring about any change in the matriculation courses.
There again the Department of Bantu Education has a representative
on what I have referred to as the Joint Matriculation Board, and should
the Department of Bantu Education feel that the change or extension
of facilitiesare necessary, that representative must take it to the Joint
i\fatriculation Board and ask for its approval, and then, after discussion,
it will be formally approved by the Board.
l\Ir. GROSS:So that in the case of matriculation courses or exami
nations, do I understand you correctly to testify that the approval of the
Joint i\fatriculation Board in Pretoria would be necessary for changes
in the matriculation examination and course-is that correct?
Mr. VANZYL: That is right, Mr. President.
Mr. GROSS:The department concerned with education in South West
Africa-where is that located?
Mr. VA.:,, YL: In Windhoek, capital of the Terri tory.
Mr. GROSS:And how is it composed-1 mean, what is its composition,
its membership, how many?
Mr. VANZvL: Mr. President, I would like to know whether Mr. Gross
is referringto the top officials ...
Mr. GRoss: I beg your pardon-! shou1d have asked itdifferently.
The PRESIDENT:What is the goveming body?
l\Ir. GROSS:Thank you, Sir. I am asking for the picture of the adminis
trative set-up-how is it composed?
I1Ir.VAXZYL: I will try to answer that question. At the head of every
thing there is the ...
Mr. GROSS:We are talking about South West Africa? WITNESSES AND EXPERTS 271
Mr. VAN ZvL: South West Africa. There is the Administrator in
person, who has a Legislative Council with an Executive Committee,
and they may be considered the political authority in that country;
and then there are different departments ...
Mr. GRoss: May I interrupt you there, Sir, if you will permit me, just
for the sake of sequence? By whom is the Administrator appointed?
Mr. VAN ZvL: The Administrator is appointed by the Government of
the Republic of South Africa.
Mr. GROSS:By any particular branch or department thereof?
Mr. VAN ZvL: If I have to answer that question, Mr. President, I will
have to guess; I would rathcr not answer it, it is not in my particular
field.
Mr. GROSS:I am sure the Court would not wish you to guess. Let me
ask you whether the Department of Bantu Education, of which you are
Deputy-Secretary, has any relationship with the Administrator of
South West Africain an official capacity?
Mr. VAN ZvL: No, Mr. President.
Mr. GRoss: To whom in South Africa, in the Republic itself, does the
Administrator report, if you know, Sir?
Mr. V AN ZvL: I should say to the Government itself.
Mr. GRoss: There again, would you answer that you are not aware to
which department or agency of the Government he reports?
Mr. V AN ZvL: There again I think I should guess; I think he reports
to the Prime Minister's Department.
l\1r. GROSS: To the Prime Minister directly-but that is simply a
guess.
l\frVAN ZvL: I would not vouch for its correctness.
Mr. GROSS:That is ait right, Sir. Now, with respect to the Legislative
Council (I believe you described it). how is that constituted, both as to
personnel, membership, and as to mcthod of appointment; take one
question at a time-I am sure the President would wish me to put it to
you one at a time: first, with respect to the composition of the Legislative
Council, how is it corrîposed?
Mr. V AN ZvL: It is an elected body. ·
Mr. GROSS: What is its composition-how man y members does it
have? Do vou know?
Mr. VANZYL: No, I would not know, cxactly. \Ve can checkup on the
figures.
l\frGROSS:What is the function of the Legislative Council, what are
its responsibilities?
Mr. VAN ZYL: In connection with Bantu education-their responsi
bilities?
Mr. GROSS:Yes, what arc their responsibilities in that connection,
what do they do?
l\Ir. AN ZvL: Up to now I should say that it was their duty to define
policy in general.
i\Ir. GROSS:Education policy for South West Africa?
rilr. VAN ZvL: For South West Africa.
Mr. GROSS:In the Bantu education field?
Mr. VAN ZYL: Yes.
Mr. GROss: And they report, presumably, do they, to the Adminis
trator-is that correct?
Mr. VAX ZYL: I should think so.272 SOUTHWEST AFRICA
)Ir. GROSS:Who in turn reports to the Prime Minister's office, you
guess, I take it?
Mr. VAN ZvL: I guess, yes.
l\lrGROSS:With respect to the Legislative Council, you have said you
do not know the number of members composing it-is that your testi
mony?
Mr. VAN ZYL: Yes; there again, if I were to give an answer, it would
be a guess-1 may be a few out.
Mr. GRoss: Can you approximate it-roughly how large a body is it-
is it half a dozen, or is it 50-roughlyspeaking?
Mr. VAN" ZvL: It would be in the neighbourhood of 40, I shonld say.
Mr. GROSS:Of something around 40?
l\Ir. VANZYL: Yes, say between 30 and 40.
î\Ir. GRoss: The Court will undcrstand that you have stated that you
do not know the exact number. Of that number, whatever it may be,
how many are non-White?
Mr. VAN ZvL: They are ail White.
î\Ir. GRoss: Do you have any basis for an opinion, either as witness or
expert, as to whether the fact that they are all White is a matter of
policy?
il'Ir. VAZYL: Itis nota matter of educational policy.
l\Ir. GROSS:Is it a matter of governmental policy?
Mr. VAN ZvL: I should think so, yes.
Mr. GRoss: Do you know who dctermines that policy?
l\Ir. AN ZYL: I believe the Government of South Africa determines
the policy.
Mr. GROSS:When you say that it is not a matter of educational
policy, do you mean that you sec no relationship between the composi
tion of that Council and theeducational policies pursued in the Terri tory?
Mr. VAN ZvL: I should say no.
The PRESIDENT:You see no relation.
Mr. GROSS:You sce no rclationship between those two-that was the
sense of your response, that this is not a matter of educational policy?
Iwill not pursue that further, I think I am confusing the witness; if I
may withdraw that, Mr. President? With respect to the composition,
again, do you know, roughly again approximating, what the types of
persons are who compose the Council with respect to profession or
occupation, generally speaking?
Mr. VAN ZvL: Mr. President, do I understand correctly-does Mr.
Gross refer to the Legislative Council?
Mr. GROSS:Yes, I am still talking about the Legislative Council of
approximately 40 people that we are still discussing. Are there lawyers
on it, are there teachers, are there engineers?
Mr. VAN ZvL: I really would not be able to say, Mr. President.
The PRESIDENT:Yon don't know?
Mr. VAN ZvL: I have not gone into details about that qualification.
Mr. GRoss: Just to save agony on the part of evervbody in the Court
room, would you state that you do not really have information con
cerning the structure and functioning of the Administrator's Office and
of the Legislative Council and of the Executive Committee-would you
state that for the record, so that I do not have to ask you detailed
questions about them?
î\Ir. VANZYL: I have a general knowledge of what is going on, but the WITNESSES AND EXPERTS 273
Court will appreciate that I would not be able to give evidence in that
field as an expert.
i\fr. GRoss: I have asked you, Sir, as a witness or expert-1 am at
tempting to save the Court's timc, not to debatc with you-do you as a
witness or expert have knowledge concerning the functioning of the
Office of the Administrator of South West African Education, the
structure and responsibilities of the Legislative Council of that Office
and the Executive Committec thereof; do you have personal knowledge
concerning these matters, as witness or as expert?
~1r.VAN ZYL: Ihave a general knowledge of their duties and the way
they function, yes.
i\'lrGROSS:If I ask you questions which you consider to be more
specificthan you have knowledge of, you will please indicate that by
your reply. With respect to the Legislative Council, I may revert to that
for a moment: what responsibilities does the Lcgislative Council, if any,
have with respect to the determination of the extent to which, let us say,
mother tongue should be used as a medium of instruction in the schools
of South West Africa?
i\1r.VA::s" ZYL: Up to the present moment it is for the Legislative
Council, Ishould sav, to determine whether it should be so, and it is also
the Administration, acting on behalf of the Council that a Commission
of Inquiry was appointed, and the recommendations were received, and
it was for the Council to decide whether they wantcd to implement those
recommendations; no other body, so far as I know, in South West Africa
would have had the authority to choosc.
;\IrGRoss: Does it follow from your rcsponse to my question that the
Legislativ,~ Council has final authority to make that decision?
i\IrVAN ZvL: I should sav so, ycs.
i\Ir. GRoss: Could they be'overruled by the Administrator?
Mr. VAN ZYL: I should say yes, if he chooses to, but in practice I do
not think it ever happens.
iir. GROSS:I am talking now about the principles of the structure.
Could the Administrator be overruled by the Prime 1'1inister?
l\lr. AN ZYL: Be overruled by the South African Government, I
should say yes, because he is in a subordinate position. ·
Mr. GROSS:So that it would be fair to say that the ultimate authority
for such installation or change of policy, for example with respect to
mother-tongue instruction in South West Africa, would ultimately be
within the power of the Republic Government itself-is that correct?
i\frVAN ZYL: I should say ves.
Mr. GRoss: I suppose that, the Executive Committee to which you
referred is an Executive Committee of the Legislative Council-is that
correct?
Mr. VAN ZYL: Yes.
Mr. GRoss: Do you know approximatcly how man y members of the
Executive Committee there are, or is this within the specific area of
which you are ignorant?
iir.VAN ZYL: I believe there are four members and the Administrator.
i\1r. GRoss: Four members of the Executive Committee?
IlfrVAN ZYL: Yes.
1Ir. GROSS:Are they ail members of the Legislative Council?
Mr. VAN ZYL: Therc are four elected members, and of course the
Administrator is also ex otficioa mcmber of the Executive Committee.274 SOUTHWESTAFRICA
llfr. GRoss: I see. And are the four members of the Executive Com
mittee ail members of the Legislative Council, if you know?
Mr. V AN ZYL: They are.
Mr. GRoss: lt would follow, then, that none of those is non-White,
they are all White, I take it?
· Mr. VAN ZvL: They are all White.
Mr. GRoss: Does the Executive Committee, if you know, have full
authority to act for the Council?
Mr. V AN ZvL: I should say, in certain respects, but I would not be
able to say exactly what the position is; I have never made a careful
study of the position.
Mr. GROSS: In other words, when you testify to the point of the basic
principles of the Bantu education system, its application and effects,
you are not including in your expert testimony evidence with respect to
the structure within South West Africa by which the system is given
effect-is that a fair statement?
Mr. VAN ZvL: I was aware of the fact that the administrative authori
ties in South West Africa had the authority to decide and to dctermine
policy, but I never bothered to know exactly how they act in coming to
their decisions.
Mr. GROSS: With respect to the testimony you were giving when I
interjected my questions regarding the Administrator and the Legisla
tive Council and the Executive Committee, you had, I think, referred to
those as "political authority"-did you use that phrase, or some such
phrase?
Mr. VAN ZvL: Yes.
Mr. GRoss: Would you clarify that for the Court?
Mr. V AN ZYL: I would not like to say more than that it is a body that
is elected on political lines, I should say.
Mr. GRoss: Is the Council elected?
Mr. VAN ZvL: The Council is elected, yes.
Mr. GRoss: \Vho are the electors of the Council-by whom is the
Council elected?
Mr. VAN ZvL: By the White members of theTerritory, who qualify as
voters.
l\IrGRoss: Now, these White members of the Legislative Council that
administer the Bantu educational affairs are all elected by only White
members of the Territory-is that correct, Sir?
Mr. VAN ZvL: Yes, I should say so.
Mr. GROSS: Do you happcn to know, Sir, whether they run for office,
are there candidates for election? Do you know, Sir?
Mr. VAN ZvL: I could not follow that question.
Mr. GRoss: Is there a slate of candidates placed before the White
voters for electionto the Lcgislative Council-do you know, Sir?
Mr. VAN ZvL: I am sorry, Mr. President, the first word I could not get.
The PRESIDENT: "Slate."
Mr. GROSS: Is there a slate of candidates for election to the Legislative
Council placed before the \Vhite voters of the Territory?
Mr. VAN ZvL: I would not be able to answer that question.
Mr. GROSS: With respect now to your testimony regarding the struc
ture, would you continue, Sir, if you remember, where you left off-you
had just referred to the Exccutive Committee. Now would you continue
from there, Sir. WITNESSES AND EXPERTS
275
Mr. VANZYL: Well, Mr. President I should corne down to the Depart
ment itself. There is an Education Department at the head of which is
a Director of Education; he is assisted by a Deputy-Director for all
services and by a Chief Inspector for Bantu education and they, in turn,
are assisted by an inspectorate-a number of inspectors for \Vhite and
Coloured schools on the one hand and a number of inspectors for Bantu
schools on the other hand. They are further assisted by administrative
officers in the head office and perhaps in their regional offices and then
the system consists further of 316 schools throughout the Territory of
which the majority are in the northern territories and that is about the
whole set-up.
;\lr. GROSS:Now, Sir, by whom is the Director of Education of the
Territory appointed?
)Ir. VANZvL: He is appointed by the Civil Service Commission of the
Republic of South Africa on the recommendation of the Executive
Committee of South West Africa.
:VIr.GRoss: The Civil Service Commission is, Itakc it, a branch of the
Govemment of the Republic, is it, Sir?
Mr. VANZYL: You are right, yes.
:\1r. GRoss: Is there a Civil Service Commissioner or is that a Com-
mission of more ... ?
l\Ir. VANZYL: It is a Commission consisting of a number of persans.
l\fr. GRoss: Approximately how many, Sir?
l\frVANZYL: I should say there are five.
Mr. GRoss: Are they all White, Sir?
l\lr. VANZYL: They are all White, Mr. President.
l\frGROSS:Now, you said, did you not, Sir, that there is a Chief
Inspector in the Education Department?
l\1r. VANZYL: Yes. -
l\Ir. GRoss: Presumably appointed by the Director of Education, is
he-as far as you know?
î\lr. VANZYL: \Vell, also appointed by the Civil Service Commission
on the recommendation of the Director and the Executive Commit
tee.
l\lr. GRoss: You referred also, did you not, Sir, to a Deputy-Director?
l\frVANZYL: Yes.
Mr. GRoss: Is he also appointed by the Civil Service Commission?
Mr. VANZYL: Yes, i\1r.President.
~Ir. GROSS:And there are a number of inspectors composing an
inspectorate for varions population groups, is that correct, Sir?
Mr. VANZYL: That is correct, Mr. President.
Mr. GRoss: And how are those inspectors selected, Sir? Are they
appointed?
Iifr. VAN ZvL: Usually vacancies are advertised and from amongst
the applicants recommendations are made by the Director and the
Executive Committee to the Civil Service Commission and they finally
appoint a candidate.
1'1r.GRoss: And there is an inspector for the Coloured, an inspector
for the \Vhite, an inspector for the Native schools, is that correct, Sir?
?.fr. VANZYL: As I have pointed out in my chief cvidence, Mr. Presi
dent, I am not perfectly sure of what the position is at the present
moment but from what I have gathered in conversations with colleagues
in that area, they have got one inspectorate inspccting White and SOUTH. WEST AFRICA
Coloured schools on the one hand and another inspectorate for the Bantu
schools.
Mr. GROSS: Are those inspectors also appointcd by the Civil Service
Commission or have you answered that, Sir?
Mr. VAN ZYL: They are appointed by the Civil Service Commission.
Mr. GROSS: In Pretoria?
Mr. VAN ZYL: ln Pretoria.
Mr. GRoss: Are the y ...
Mr. V AN ZYL: I must make this clear, Mr. President, the first selection
takes place in Windhoek and the first recommendations are made by the
Director and the Executive Committee, and the Civil Service Com
mission in Pretoria acts only on their recommendations when they
finally appoint them.
Mr. GRoss: They recommend and the Civil Service Commission
appoints, I take it.
~lr.VAN ZYL: You are right. Yes.
Mr. GRoss: Do you know how many inspectors there are, Sir?
Mr. VA:-.ZYL: For Bantu education?
Mr. GRoss: Yes, Sir.
Mr. VAN ZvL: There are five. Five approved posts; whether they are
all filled at the present moment I could not tell you.
Mr. GROSS: Can you tell the Court, Sir, whether, as far as you are
aware, they arc all White?
Mr. VAN ZYL: The inspectors are all White, ~fr. President.
Mr. GROSS:At what level, Sir, in the hierarchy of the educational
administration does the non-White occupy a position-name the highest
level if you will please, if you know?
Mr. VAN ZYL: In South West Africa?
1Ir.GRoss: Yes, Sir.
Mr. V A~ ZYL: Mr. President, as far as I know the first post from the
top occupied by a Bantu is that of sub-inspector. It is a post just below
that of inspector of schools and the aim is that he should ultimately take
the position of that White inspector. As soon as hc is considered capable
of doing so, as soon as the particular Bantu group or Bantu authority
has corne to the stage where it assumes full rcsponsibility for its educa
tional services, the White inspector is withdrawn and the Ban tu sub-in
spector takes his place. There may still then be a person in a position of
authority over the Ban tu inspector, he will also ultimately be withdrawn
and be replaced by a Bantu, say Dfrector, or whatever he may be.
Mr. GRoss: Arc there any Bantu sub-inspectors, so far as you are
aware Sir, in the portion of the administration dealing with Coloured or
White schools?
1Ir. VAN ZvL: There are none, as far as I know, Mr. President.
Mr. GROSS: With respect to the promotion eligibility of Bantu sub
inspectors to inspectors, how many, if any, such promotions have been
made in the history of the Territory since the 1fandate?
Mr. VAX ZYL: None, as far as I know, Mr. President.
Mr. GRoss: Now, Sir, would you, as an expert, be in a position to
advise the Court, express your opinion, concerning the reason why no
Bantu sub-inspectors have become inspectors?
Mr. V AN ZvL: The reason, Mr. President, is mainly because at the
present moment there is no Bantu authority yet which has assumed full
responsibility for its educational services, and so long as the final rc- WITNESSES AND EXPERTS 277
sponsibility of such services rests with the White Government in South
Africa the White Government is represented by a White inspector in a
particular area but as I have said, as soon as they reach the stage where
the White Government withdraws for all practical purposes, then the
\Vhite Government's representative in the person of such an inspector
is also withdrawn.
The PRESIDENT: Could I ask the witness, ;\fr. Gross; when you say:
until the Ban tu group has assumed the full responsibility, does that mean
every responsibility including financial responsibility?
Mr. VAN ZvL: Yes. Of course, the financial responsibility may still be
made possible through subsidies received from the mother government,
as the position is in the Transkei at the moment.
l\frGRoss: Excuse me, Mr. President.
The PRESIDENT: Certainly.
Mr. GRoss: You testified I believe, did you not, that you had spent
some months in the Territory in 1958 as Chairman of the Enquiry into
Bantu and Coloured education in South West Africa?
Mr. VAN ZvL: Yes, Mr. President.
l\frGROSS: And that you had, if I understood your testimony, numer
ous consultations, I do not remember the qualifier, but you had consul
tations in the course of your enquiry there with members of the popu
lation groups-is that correct, Sir?
Mr. V AK ZYL: Yes, Mr. President.
Mr. GRoss: Did you, as a result of your enquiries and consultations,
reach a conclusion with respect to whether or not there were actually in
the school system in South West Africa, Bantu teachers or principals
who would be qualified to become inspectors or higher in the educational
administration of the Territory?
Mr. VA!\ ZvL: Mr. President, I was impressed by some of the Bantu
teachers I met in South vVest Africa, by their persons and also by their
ability to teach because I made use of the opportunity also to attend
some lessons conducted bv some of these teachers. But of course, I would
not consider anyone adequately qualified for the post of inspector until
he has had experience in other posts leading up to that high post of
inspector.
Mr. GRoss: Did you ascertain whether there were such persons who
are obtaining experience in those sub-posts, if I may call them that?
Mr. VAN ZvL: At the time of the enquiry, Mr. President, there were no.
such posts. There were no posts of Bantu supervisors of schools as we
used to call them in the Republic at the time. There were also no posts
of Bantu sub-inspectors of schools. As a matter of fact there were not
even White inspectors for Ban tu education; they had only one in
spectorate serving all the schools in South West Africa. lt was only our
Commission that recommended the institution of posts of Bantu super
visors of schools-we did not even at the time recommend the post of
it wa.ssomething that came later and we thought
sub-inspector because
that they should first establish properly a post of supervisor and then,
subsequently, the post of sub-inspector should be introduced as things
developed.
Mr. GRoss: Do I understand you correctly, Sir, to testify that in
1958, when you were conducting your enquiries in South West Africa,
there were no Bantus employed in the educational system as sub
inspectors, istha t correct, Sir?278 SOUTH WEST AFRICA
Mr. VAN ZYL: That is correct, l\lr. President.
Mr. GROSS:Were any Bantus employed in the educational system at
administrative levels or executive levels in any capacity, Sir?
Mr. VAN ZYL: Not that I know of, M.r.President.
l\lr. GRoss: You would have known, Sir, that was relevant to your
enquiries, was it, Sir?
Mr. VAN ZvL: Yes, I would have known, i\fr. President.
i\lr. GROSS:Did you not also testify that from your observation and
analyses of the situation, as well as consultations, you reached the con
clusion that there were individual Bantus, who had qualification to
exercise these posts subject only to lack of training for them-is that the
sense of your testimony, Sir?
Mr. VAN ZYL: Weil, I came to the conclusion that there were Bantu
in the Territory who were capable of assuming certain administrative
responsibilities and we immediately recommended the institution of
such positions for these people.
As I have pointed out, we recommended the post of superviser of
schools which will place certain Bantu educationists in positions of
authority over principals of schools. As a matter of fact, within the
Police Zone at the time there were not even proper posts of principals of
schools. We also recommended that, so as to give them more authority.
\Ve recommended posts of supervisors of schools who could be in positions
of authority over the principals, and we recommended the institution of
school boards which would have fully fledged and full-time secretaries;
and we considered those to be the fields for these people to gain experi
ence in the service of their own people.
i\Ir. GR6ss: \Vere your recommendations accepted, Sir, in any of these
respects?
Mr. VAN ZYL: They were, Mr. President.
i\Ir. GRoss: If you have not already testified to this, Sir, would you
please tell the Court how many Bantu sub-inspectors there are at the
present time employed in the system.
l\Ir. VAN ZYL: Mr. President, I would not be able to tell how manv
have actuaily been appointed, and also what I say is not because of
official information that I have, but in conversations with colleagues and
friends there I have concluded that they have approved of five posts of
sub-inspector. Whether these posts are all filled at the present moment
I would not be able to say.
Mr. GRoss: But it would presumably follow, would it not, Sir, that if
the recommendation had been made for five such posts, that it was not
considered beyond the realm of practical possibility that there were
people eligible to fill them? Is that nota fact?
Mr. VAN ZYL: I should think so, yes, Mr. President.
Mr. GROSS:This recommendation with respect to the creation of these
five posts,to which you refer, was made when, Sir?
l\Ir. AN ZYL: I am absolutely uncertain, Mr. President: I would not
be able to say. Also, perhaps I should just add this, it rnight .be possible
that they have not yet decided on the term "sub-inspector", that they
would still call them "supervisors" of schools, but it will corne to the
same thing, the principle will rernain unchanged.
l\lrGRoss: This clarifies, Sir, I think, what you rneant by the word
"posts" in connection with my question as to whether you knew the
highest level at which Bantus were actually employed. You testified
; WITNESSES AND EXl'ERTS 279
now, Sir, that you are not aware, of your own knowledge, whether any
of these five posts are actually filled by Bantu; is that correct, Sir?
Mr. VAN ZYL: That is right, iVIr.President.
Mr. GROSS:Now, Sir, therefore, may I revert to my question and ask
whether, on the basis of your own knowledge, you can tell the Court the·
highest level in the administrative structure, with respect to education
in South West Africa, in which Bantu are actually employed and at
work?
Mr. VAN ZYL: I am afraid, Mr. President, that I would not be able to
tell.
Mr. GROSS:\Vould you, Sir, as an expert, regard it as important that
such positions be filled? Important, if 1 may clarify my question, for the
sound training of Ban tu and for the betterment of the educational system
with respect to the Bantu?
Mr. VAN ZYL: Mr. President, it is South African policy not to have
integrated systems of any kind, so there will not be and I cannot advo
cate the establishment of an integrated administrative system, but the
opportunities for administrators to be trainecl are created when scparate
administrations for the different Bantu authorities are established. Then
all potential administrators are taken up into that system and they are
trained by White seniors until those seniors withdraw.
Mr. GROSS:Would it be a fair interpretation of your testimony just
now that the reason why there are no Ban tu in administrative positions
that is the case, is it not, Sir, incidentally?
Mr. V AN ZYL: I believe it is the case, I would not be ...
Mr. GRoss: According to your view, your opinion, would you say, Sir,
that the reason for that is because by employment of such persons in
administrative positions you would produce what you describe as an
integrated system? Is that the point, Sir?
M.r.V AK ZYL: That is right, Mr. President.
ilfr. GROSS:And would it not follow then, Sir, that the reason why the
Bantu are not employed in these positions is because of the policy of
apartheid, is that correct, Sir, or separate development, as it is known?
Mr. VAN ZYL: The policy of separate dcvelopment, I should say so,
yes, Mr. President.
Mr. GRoss: There would be no other reason, so far as you are aware,
Sir, for this phenomenon-that there are no Bantu employed in the
direction of their own system of education?
Mr. VAN ZYL: Of course, il1r. President, there are many reasons for
maintaining this policy of separate development.
Mr. GROSS:\Vell, Sir, I had not intended at the moment to get into the
policy of separate development, which I shall, with the Court's per
mission, corne to in due course. I am attempting to establîsh, and I
believe the answer has already been given, Sir, that it is the policy of
separate development or, as it is altematively known in this record,
apartheid, which accounts for the fact that therc are no Ban tu employed
in administrative positions in the Bantu education system in South
\Vest Africa. That is a correct reflection of your testimony?
Mr. V AN ZvL: I should think so, yes, Mr. President.
Mr. GROSS:I should like to turn now, Mr. President, to a different but
related subject, and that is with respect to the broad aspects of the edu
cation policy in the Territory. I think you testified, if my notes are
correct, Sir,to the effect that one of the criticisms of the earlier system of280 SOUTH WEST AFRICA
education was that it was not part of a general plan. \Vas that sub
stantially your testimony, Sir?
~:l.r.AN ZYL: Not part of a general plan for the development of Bantu
communities.
Mr. GRoss: And you testified, if I understood you correctly, that the
schools formerly in existence in the educational system in vogue then
did not tend toward the development of self-reliant, self-dependent
Bantu communities; was that substantially your testimony?
Mr. VAN ZYL: \Vell, not to the extent that they ought to have done so.
Mr. GROSS: Now, Sir, with respect to the southern sector of the
Territory, did you in your studies, in 1958, take into account conditions
there and make recommendations with respect to that sector?
Mr. VAN ZYL: Yes, Mr. President.
Mr. GRoss: You did not confine yourself exclusively to the northern
areas of the Territory, is that correct?
Mr. V AN ZYL: Definitely not, Mr. President.
Mr. GROSS:Did you, in connection with your studies of the education
problem and system in the southern sector, take any special notice of
the situation prevailing in that portion of the southern sector, or Police
Zone, lying outside the Reserves?
Mr. V AN ZYL: Yes, we did, Mr. President.
Mr. GROSS: ln connection with the education policies-1 ask you this
either as a witness or expert, or both-then in effect in 1958, in the
southern sector outside the Reserves, was that educational system
directed toward the developrnent of what you described, I believe, as
self-reliant, self-dependent Bantu communities?
Mr. VA:,, ZYL: As I have said, l\fr.President, if it did contribute
towards it, is did not do so to the extent it should have contributed.
Mr. GROSS: The Odendaal Commission report, Sir, refers, in several
places which have been placed into the record, to numbers of Bantu,
of various tribes, who are, as the Commission expresses it, "absorbed"
into the diversified economy of the southern sector. In your studies with
regard to the education system, and I am talking now about the exchange
economy, the southern sector outside the Reserves, in your studies of the
education system there, did you take into account the significance, if
any, of the factthat the Bantu were absorbed in the diversified economy?
Mr. VAN ZYL: I think we did, Mr. President. I cannot remember well,
but I think we did.
Mr. GROSS: But you did pay attention, I assume, to the problems
presented by this absorption of the non-Whites into the economy, did
you not, Sir?
l\fr.VAN ZvL: Yes, ves we did take ...
The PRESIDENT: I think, i\frGross, you should make clear what you
mean by the words "absorb" and "absorption".
Mr. GROSS: With deference, I would like to ask the witness if he could
make it clear.
The PRESIDDn: No, I think you should make it clear because it has
been a matter of controversy as to what the word really means.
Mr. GROSS: Sir, I do not know what the word means so I cannot make
it clear. I will do my best, however, to avoid misleading the witness, by
referring specificallyto the section of the Odendaal Commission report
which I have in mind, and which has been previously introduced into
the evidence. WITNESSES AND EXPERTS
For example, Sir, on page 3I of the Odenclaal Commission report,
paragraph IIJ, the following statement is made:
"With the arrival of the Whites, resulting in increased persona!
safety and greater development, the Damara were able to evolve a
totally new way of life. Large numbers were absorbed in the economy
of the southern part of the country and displayed exceptional
aptitude as employees."
Sir, would you have an opinion as to what the Odendaal Commission
meant by the use of the word "absorbed" in that context?
Mr. VAK ZYL: Sir, I would not like to give an opinion on that matter.
I have not studied it and I fail to give an expert opinion on it.
Mr. GROSS:Would you care to advise the Court what you considered
the correct designation of the relationship between the non-White
employees and the economy; would you describe it, Sir, if you do not
accept the term "absorbed"?
Mr. V AN ZYL: No, I would not know what to answer, or how to answer
that question, Mr. President. You will agrce that it is not in my particular
field of interest.
Mr. GRoss: Well, Sir, I do not think that I would agree to that but that
is not for me. I think that the question might be approached from a
slightlydifierent way. Do you feel, as an educational expert, and in the
light of the responsibilities you have testified you perform, that education
has a relevance to the relationship of an individual to the economy in
which he works?
Mr. VAN ZYL: I should say yes, Mr. President.
Mr. GROSS:And if he is a working member of the economy, let us say
during his life, would the nature and objectives of bis cducation have a
relevance to his potential of accomplishment in that economy?
Mr. VAN ZYL: Yes, it would .
.Mr. GROSS: From the economic point of view-I am not addrcssing
this question to you as an economist, which we know you are not, Sir,
bu! as an educator-what, if any, consideration did you give, in the
course of your enquiries, in 1958 or at othcr times, to the problems
posed by the education of persans, non-White persans, who were-and I,
with the permission of the President, put the word in quotes-"absorbed"
into the White economy, as it is called? Did you pay attention to that
problem, Sir?
ilfrVAN ZvL: \Vell, l\Ir. President, we were mostly concerned with the
economic development of the Bantu homelands and the different Bantu
national groups.
Mr. GRoss: When you say you were mostly concerned, Sir, I think
you have testified that you did consider, did you not, I do not want to
put words in your mouth, but did you not testify, Sir, that you did
consider the educational problems of the southern sector outside the
Reserves? You did testify to that?
Mr. VAN ZvL: Yes, we did.
Mr. GROSS:\Vould you wish the Court to understand that you did not
regard that as an important aspect of the educational system in South
West Africa?
Mr. VAN ZYL: Yes, Mr. President, but we did not take those Natives
who had established themselves outside the Native Rescrves as being
completely eut off from their regions of origin, and from the national SOUTH WEST AFRICA
groups to which they belonged. \Ve still took them to be an integral part
of those national groups.
Mr. GRoss: So that, if I understood you correctly, Sir, in devising your
recommendations you started from a point of departure, did you, that
the Bantu in the modem economy in the southern sector should be regar
ded as a member, so to speak, of the northern areas? Is that correct, Sir?
!l'lr. VAN ZvL: I should say so-yes, Mr. President.
Mr. GROSS:Now, Sir, did you pay any attention at all to the problem
of education with respect to his performing arole in the economy of the
Territory in the southern sector?
Mr. VAN ZYL: Yes, we did, Mr. President.
Mr. GROss: And, Sir, in that connection, would it be, then, relevant to
refer to the creation of self-reliant, self-dependent Bantu communities
as the major objective of the education of such a persan who is employed
in the White economy in the southern sector?
Mr. VAN ZYL: I should say so-yes, Mr. President. Being engaged in
the White economy does not imply that an individual is eut off from his
own national group. I mean his earnings and his skills may be of economic
value to his own national group.
l\lr. GROSS:May we take, as an example, Sir, for the purpose of making
the matter more clear ta the Court, perhaps, the subject you have
testified to, that is to say the teaching in vemacular or mother tangue?
Shall we focus on that for a minute, Sir? Now, with respect ta the re
quirements of a non-White who, let us say, spends his entire life as an
employee in the modern sector of the economy, would you explain to
the Court, as an expert, whether or not vemacular-his tribal language
is as important to him as knowing well the language of the economy in
which he works?
Mr. VAN Zvr.: Well, I should say, l\fr.President, that there is no need
to decide whether his mother tangue is of any significance for him in his
own group, but the point that we, as educationalists, wish to make is
that as a medium of instruction, as a means of conveying knowledge to
a student or to a pupil, his mother tangue is a very important factor,
because he understands it better than any other language. That does not
take away the fact that any pupil with any mother tangue may acquire
a useful knowledge of any other language for whatever purposes there
may be.
Mr. GRoss: Sir, is it a fair interpretatioof your previous testimony,
on direct examination, that the first priority is given to teaching through
the medium of the mother tangue-the higher priority? Is that the cor
rect version of your testimony?
Mr. V AN ZYL: Yes, Mr. President. I may add, at the present moment,
for at least the duration of the primary school course.
Mr. GRoss: Yes, Sir. Now, would you state whether you believe, also,
that the same priority of teaching in vemacular, or mother tangue,
should be accepted in the case of the non-White who spends bis life as an
employee in the modern sector?
Mr. VAN ZvL: Most definitely yes, Mr. President.
Mr. GRoss: What is the reason for your opinion in that respect, Sir?
Mr. VAN ZvL: Bccause it does not bring about any change, Mr. Presi-
dent. No matter where a pupil lives, if he has a particular mother tangue,
that mother tangue serves the same purpose as it would have served
anywhere else. WITNESSES AND EXPERTS
Mr. GRoss: Let us take, as an cxample, Sir, iEI may, a non-White-a
Bantu, a Native, according to the census category-who is employed,
let us say, for most or all of his working life as a domestic servant in a
"White household" in Windhoek. Now, in respect of his work and life,
would you say, as an expert educator, that it is reasonable to give a
higher priority to teaching him in the medium of vernacular than in the
medium of the language of the area, spoken by the persons for whom he
works?
Mr. V AN ZYL: Mr. President, provision is made for communication
with his employer by teaching him the emploxer's language, if he cares
to learn it, but, before he goes out to work, while he is still at school, the
employer's language is not of such great importance to him as his mother
tongue, more particularly as a medium of instrnction.
Mr. GRoss: Sir, there are, are there not, numbers of non-Whites (I am
referring now to Natives) in the southern sector outside the Reserves,
who are born and live and die in that sector? Is that correct, Sir?
Mr. V AK ZYL: It could be. Yes, l\lr. President.
Mr. GROss: Now, with respect to a person, let us say, who has been
born of parents who themselves have been born and worked in the
southern sector-my question to you, Sir, is whether you feel that a
purpose is served by giving a higher priority to instruction through the
vemacular to such a persan than through the language of the community
in which he works and is destined to work?
Mr. V AN ZYL: Yes, Mr. President, the fact that an individual stays for
his whole life in articular area-or, shall we say, in a White area-does
not imply that he adopts another language as his mother tongue. In his
home, in his dealings with his parents and with his friends, he still uses
his mother tangue.
Mr. GRoss: It is the policy, is it, Sir, of the educational system, so far
as you are aware, to perpetuate that condition, that situation? Is that
correct, Sir?
Mr. VAN ZYL: I should think so. Yes, Mr. President.
Mr. GROSs:What is the reason for that, Sir?
Mr. V AN ZYL: Weil, the educational reason, of course, is that the
mother tongue still remains a very valuable means of conveying know
ledge to the pupils at school in the first instance. Also, the Bantu lan
guages in South West Africa and in the Republic of South Africa are of
great cultural value, and, as those entrustcd with the developrnent of the
Bantu people and their culture, the South African Govemment would
not like to be held responsible for having neglected such cultural in
stitutions.
Mr. GRoss: Sir, would you agree that the short cxplanation is that it
is the policy of the South African Govemment to give first priority to
the development of separate homelands? ls that the foundation of the
educational system?
illr. AN ZYL: That is right, Mr. President.
Mr. GROSS:The question then would be, would it not, Sir, whether the
non-White, living and working in the modem economy of the southem
sector, is to receive an education which adjusts him more effectively to
the economic situation in which he lives, or to a homeland or area of
another description? Is that a correct formulation, or do you disagree
with that statement, Sir?
Mr. V AN ZYL: Mr. President, I think that both conditions should be SOUTHWESTAFRICA
taken into consideration, because, at the present moment, one never
knows where a pupil receiving education will ultimately land. He may go
back to his homeland immediately, or he may be employed temporarily
in a White area.
The PRESIDENT:lt is just on one o'clock, ~Ir. Gross, and you might
be prepared to stop or stay at this moment, but, before the Court
adjourns, I would be personally grateful to you-since you have, in
your case from time to time, placed emphasis upon those people in the
urban areas outside the Reserves who were born, live and die there-if
you would indicate where the Court would be able to find any evidence
to establish the approximate number of people involved.
Mr.GRoss: I shall endeavour to supply that, Sir.
[Public hearing of I OctoberI965]
Mr. GROSS:Mr. President, at the conclusion of the proceedings yester
day, the President asked the Applicants to indicate to the Court where
the Court would be able to find any evidence to establish the approximate
number of people (l am referring, Sir, to this page, snpra, of the verbatim
record) involvcd. that is to say, with respect to the number of persons
who, in my locution, were born, lived and <liedin the Police Zone in the
urban areas outside the Reserves.
Sir, wouldthe Court wish to have me commence with the reply to that
question, or proceed with the witness?
The PRESIDENT:I think you might proceed with the witness, Mr.
Gross, and ail the Court requires is a reference to the evidence, not any
explanation.
Mr. GROSS:I could give that briefly, Sir, if you wish.
The PRESIDENT:Weil, vou could do so now then.
Mr. GROSS:The reference would be to the Odendaal report, page 39,
table XVI II ; to page 39 of the Odendaal report, paragraph 148; to the
testimony of Professor Logan, X, pages 48r and folJowing; to further
testimony of Professor Logan, X, pages 395 and 396; to the Odendaal
report, page n7, paragraph 438; further reference to page 41 of the
Odendaal report, table XIX, the 196o census; and as corroborative
evidence, the U.N. General Assembly document A/AC 73/L14, 5 October
1959, page 6; and the General Assembly document A/AC 73/Lro, I9
August 1957, page 15; and, finally, the Odendaal report, Chapter X,
page n7, in particular paragraphs 446 and 447. In one sentence, Sir, the
conclusion inescapably to be drawn ...
The PRESIDENT:That is ail I have asked, 1\Ir.Gross. The only further
question 1 ask, are the two United Nations documents in the record?
Mr. GROSS:Of that I am not certain, Sir. They are available in the
library, but I do not know whether they are in the record.
The PRESIDENT: Thank you.
Mr. GROSS:I would appreciate the opportunity, Mr. President, of
explaining the significance of these figures in a sentence, lest I leave a
misleading impression. May l have that permission?
The PRESIDENT:Weil, yes, l\Ir. Gross; I only want the reference, but
if you desire to do so please do so. .
Mr. Gnoss: Ycs, Sir. The phrase "Natives who were born, hved and
<lied in the respective areas" is a locution meaning those permanently
resident there. The two terms used by me interchangeably are, it is sub- WITNESSES ANDEXPERTS
285
mitted, established by the information given to the Court. Thank you, Sir.
l\fay I proceed with the witness?
The PRESIDENT:Certainly.
l\lr. GROSS:Dr. Van Zyl, towards the conclusion of your testimony
yesterday, I believe, or during the course of your testimony, you wcre
referring to the teaching vernacular in the school system, were you not,
Sir, and I have several further questions along that line, on that subjcct.
I should like to know what consideration has been given to the problem
presented by the fact that in the Reserves in the southern sector there is a
wide distribution of so-called Native tribes: specifically, Sir, I refer to
the information clcrivcd from the Odenclaal Commission report, table XX,
at page 41, which reveals that of the seven non-White groups represented
there, ail arc scattcred among the 17 Native Reserves; and that the
Damara, for examplc, are spread among 14 of the 17 homelands or
Reserves. The Nama live in 12 of the17; the Herero in 16-let me pause
there, if I may.
The PRESIDENT:Is this in table XX, Mr. Gross?
l\frGROSS:This is derivcd, thcse figures are derived from table XX in
the Odendaal Commission report, at page 4r.
The PRESIDENT:Thank you.
l\Ir. GROSS:Now, Sir, would you explain, in the light of those figures
of the scattering of the tribes throughout the Reserves, what considera
tion, if any, was given to the problems presented by that fact in the
establishment of vernacular instruction in the schools in those Reserves?
l\Ir. VANZYL: Mr. President, I would like to point out that each of the
Ban tu homelands, or Reserves as Mr. Gross prefers to call them, belongs
mainly to one of those groups, and I should say that in any of the
Reserves there is a language which predominates. If there are any people
in a particular Reserve belonging to another language group, they will
definitelybe a very small minority group, and the mere fact that they are
found in a foreign Reserve, if I may call it that, will be an indication that
they are familiar with the home language of that particular area. They
might have grown up there, and they might have been absorbed by that
particular group, where they constitute a minority group.
Mr. GROSS:Sir, may I take as an example-we are talking of course
now about the southcrn sector-thc Reserve of Tses. It would appear
from the cited table XX, that in that Reserve the population is composed
as follows: Damara 1r.6 per cent.; Nama 34.9 per cent.; Herero 48.94
per cent.; and then a small scattering of Ovambo and Okavango, less
than I per cent.
Now, wit:h respect to the situation in Tses, then, given this particular
distribution, what would be the language vernacular of Tses, for example?
Mr. VAN ZYL: Mr. J)residcnt, in this case there would be substantial
communities representative of the different national groups which nir.
Gross has mentioned. I think it can be taken for granted that the II
per cent. Damara constitute one. or two, or maybe three sizeable com
munities of their own; and even if they are intef,'Tatedwith the Damara
in other communities, the Damara still speak Nama, because those two
groups have the same Janguage. So in actual fact, in this particular
Reserve there are only two groups to be considered, the Nama-speaking
group, consisting of II pcr cent. Darnara and the Namas, who are also
Nama-speaking, representing 34 per cent.: and then, of course, the
Herero, speaking a different language. And here again, knowing the286 SOUTHWESTAFRICA
Hereros as I do, I am perfectly sure that they would not be integrated
into the other communities, they would forma community of their own
and it would not be difficult to provide schools with the Herero language
as a medium.
Mr. GRoss: Sir, would your explanation, which you have been good
enough to givc to the Court, apply also to a Reserve such as Fransfontein,
where the distribution is Damara 60.9 percent.; Nama 18.5; Herero rr.r,
and Ovambo and Okavango 9.49, approximately 9.5 percent.? Would the
explanation you gave with respect to Tses apply likewise to Frans
fontein?
Mr. VANZYL: Mr. President, it will be substantially the same.
Mr. GRoss: In that case, Sir, where you have a relatively small
distribution of Ovambo and Okavango, let us say roughly 9.5 per cent.,
do they receive instruction under the vernacular teaching plan in the
language of the predominant population group in that Reserve?
Mr. VANZYL: Mr. President, if this small minority group constitutes
a community of its own, it will be possible to provide a separate school
for them only. If they are individuals, scattered among the other main
groups in that particular area, one may assume that they have Jearned
to know the language of those groups into which they have been taken up.
Mr. GROSS:\Vould you have any idea, Sir, of the population of the
Fransfontein Reserve? The breakdown-I have not figured the total,
Sir-is as follows from the same table: Damara 494; Nama 150; Herero
90; and Okavango and Ovambo 77-a total ofSn.
Now, this, of course, is a small proportion of the total population of
the Territory-the Court will understand that. However, the point of the
question is to elucidate, taking this as an illustration, if you will, the
solution devised by the educators for the vernacular teaching where you
have a situation of this sort. Would there, Sir, be a separate school for
the 90 Hcrero? Would that be contemplated in that Reserve?
Mr. VAN ZYL: It is difficult to say, Mr. President. This presents a
particular problem with which the authorities will have to deal as best
they can.
The PRESIDENT:Dr. Van Zyl, there is a copy of the report on the table
next to you. You might be able to follow Mr. Gross more carefully if you
have reference to page 41, so that you need not make any notes; you can
follow it on the table itself.
Mr. VAN ZYL: Thank you, Mr. President.
Mr. GRoss: I have been referring, particularly, Dr. Van Zyl, to table
XX-as the President says, it is at page 41. Now you say, Sir, this type
of situation presents a particular problem; how, Sir, is it proposed to
resolve this problem?
Mr. VAN ZYL: \Vell, I should say it wiII depend very much, Mr. Presi
dent, on the number of, say, Herero children present there. They could
be taken into one of the other schools. I should point out again that here
the two main groups-the Damaras and Namas-will present no problem
because they belong to the same language group. It might, then, be
possible to institutc a class for Hercro children at one of these schools for
the bigger language group-a separate class in the same school. That often
happens, That is one way of getting out of the difficulty, Mr. President.
l\Ir. GRoss: Would you, then, care to comment, if you will, Sir, on the
statement made in the Respondent's pleadings, in the Counter-1\Iemorial,
Ill, page 362, paragraph 22, sub-paragraph (i) which states that- WIT:\'ESSES AN:D EXPERTS
"Of the 102 schools in the Police Zone at present, r offers instruc
tion in 3 languages, and 20 in two ]anguages. Herero, is the medium
of instruction in II schools, and 10 of thcse are attended almost
exclusively by Herero pupils. Narna is the medium in 68 schools:
in 6 of these Iessons are also explained in Herero, and in the others
Nama-speaking pupils form the overwhelming majority. Tswana is
the medium of instruction in 2 schools, at both of which Tswana
speaking pupils form the vast majority."
Now, would it be a fair construction of that statement in the Counter
Memorial that, generaBy speaking, it is the situation that minorities
attend school and that the instruction which they receive is, maybe,
offered in the vernacular of another tribe, of the majority of those in
attendance at the same school? Is this a correct infercnce to be drawn
from this analysis?
l\IrVAN ZYL: l\Ir. President, yes. If the minority group is so small that
the children from this minority group constitute a fcw inèlividuals. I
should say they could easily be taken up in the other classes because it
could be taken for granted that if there are so few living in that particular
area they would be thoroughly conversant with the predominating
Janguage of the community.
l\lrGROSS: Now, leaving this problem, you have testified with respect
to the general policy of the introduction of the vernacular teaching, or
mother-tongue instruction, as the medium of instruction, that this was,
among other reasons, to preserve the culture of the tribe concerned. Is
that correct, Sir?
l\IrVAN ZYL: Partly so, yes, Mr. President.
Mr. GROSS: With respect to the medium of instruction employed, is it
also taken into consideration whethcr the culture, or the language itself
-the cultural implications of the language itself-is such that modern
terms are used-terms to describe modern economic or political pheno
mena, shall we say? Does the normal vernacular Ianguage encompass
those ideas or forms of expression?
Mr. V AN ZYL: Mr. President, I should point out again that, at the
present moment, the vernacular medium in the case of Bantu schools
does not extcnd further than the primary school course. For the purpose
of instruction inthe primary school, these languages ?,Tealmost adequate.
We have had the experience in the Republic of South Africa that we had
to calculate, or we had to determine, whether there is an adequate
vocabulary to cope with the demands set by the requirements of the
instruction in the primary school. We have corne to the conclusion that
about 90 per cent. of the terms needed already exist in the Bantu lan
guages, and, as for the remaining IO per cent. of the terms needed for
this particular purpose, there are several ways of fmding suitable terms.
We actually had to (I would not like to say fabricate) make them by
employing various methods. For instance, in the Republic of South
Africa we have issued, in each of the sevcn Bantu languages in that
country, a vocabulary list, or a list of terminologies, for use by the
teachers in the primary school, consisting of 8,000 words. As I have
pointed out., about 90 percent. of these words already existed; they had
only to be given their rightful place in the list and they were to be made
use of in the school, and we have had great sucŒss in making the terms
which were lacking.
The point I woulcl'further like to make, Mr. President, is that, at the288 SOUTH WEST AFRICA
primary school level, it is not necessary to use difficult terms connected
with economics, politics, and such matters as those to which i\lr. Gross
referred. For .the ordinary purposes of primary school tessons, the
Janguages are adequate.
Mr. G1wss: Now, Sir, the primary school goes through what standards?
Mr. VANZvL: The first eight years of schooling, !\frPresident.
Mr. GRoss: \Vhat would be the last standard of the primary school,
Sir?
Mr. V ANZvL: ?1Ir.President, there are two sections of the primary
school in the Republic; this is also being introduced in South West Africa.
Firstly, there is what we call the Jower primary school, extending over
four years, the first two years being called sub-standard A and sub
standard B, and then standards I and 2. Then there is the higher primary
section, also extending over four years, which includcs standards 3, 4,
5 and 6.
Mr. GROSS:Now, Sir, with respect to the number of students enroHed
in South West Africa-1 am referring now to South West Africa-I
would refer you to the Odendaal Commission report, page 255, paragraph
I06r, and, in particular, table No. LXXXXVI, which is set forth in that
paragraph. You will notice, if I am correctly reading the table, that in
the enrolment per standard of lndigenous Language Groups-which, as
you notice, is the heading of paragraph Con that page of the report-that
the enrolment at Standard IV is r ,124, or a per_centageof 2.38 of the total.
\Vould that figure mean that, at that stage, the teaching in vernacular
would end and the tcaching through English or Afrikaans, as a medium
of instruction, would begin, or would you describe what happens at that
point in the educational Jevel-at Standard IV level?
111r.VANZvL: Mr. President, I assume Mr. Gross is referring to South
West Africa only?
;\Ir. GROSS:Yes, Sir.
11fr.VAN ZYL: Now, according to information at my disposai, mother
tongue instruction in South West Africa at the present moment is only
applied up to the end of the lower primary school, that is up to standard
2, in the southem territory. In the northern territories it goes as far as
standard 3, at the present moment, according to the information that I
have.Soin certain areas they will change to, I believe, Afrikaans medium
at the standard 3 level, and, in other areas-and more particularly the
northern areas-they change over to Afrikaans medium in standard 4.
That is correct, Mr. President.
Mr. GRoss: At that stage, Afrikaans, if I understand you correctly,
Sir, becomes the medium of instruction, does it, Sir?
Mr. VAN ZYL: That is right, :1\fr.President.
Mr. GRoss: And, at that stage, is the indigenous language taught any
more?
Mr. VAN ZvL: I would not be able to say for sure, Mr. President,
whether it is done, but the recommendation of the 1958 Commission was
that the mother tongue should be taught as a subject right through the
primary school, that is up to the standard 6 level. I think that the
Odendaal Commission has stressed the importance of that point also. So
I assume that the mother tongue, the vernacular, will be taught in ail
these classes as a subject.
l\fr. GROSS:Finally, Sir, on this point and in evaluating these figures,
it would appear, would it not, Sir {I am referring to table LXXXXVI WIT~ESSES AND EXPERTS 289
once more), that approximately half, that is to say, 47'45 per cent. of
students are enrolled in sub-standard A and then the figure for sub
standard B drops off down to 21.32 per cent. Did you notice that, Sir,
in the figures?
Mr. VAN ZvL: Yes.
Mr. GROSS: Could you explain to the Court the reasons for that
dropping-off of enrolment at that early age?
Mr. VAN ZvL: Mr. President, I would not be able to say exactly what
the reason is, but usually the normal reason for such a reduction in the
numbers is because the school system has not got the co-operation of the
parents. In the Republic of South Africa, before we had our system of
community schools wîth parental bodies assumîng responsibility for the
local management of these schools, we had the same position and it was
found that the numbers dropped as indicated in this table. The main
reason, I should say, Mr. President, is that in South West Africa they
have not yet got the full co-operation of the parents to see that the
children corne to school and that they remain at school for a considerable
period.
Mr. GROSS:Sir, in your experience as an expert educator, you have
dealt with the problem of the attitude of parents towards the educational
system; have you not, Sir?
l\frVAN ZYL: Yes.
Mr. GROSS:\Vould you explain to the Court, Sir, the primary reason
why a parent would be, let us say, unenthusiastic about whether his
offspring become educated or not?
Mr. V A!',! ZvL: Mr. President, could Mr. Gross please repeat his
question?
Mr. GRoss: I am sorry. On the basis of your experience as an educator
you have testified, Sir, if I understood you, that one problem which
accounts for the dropping of attendancy when at this young age is the
Jack of co-operation of the parents. My question to you, if I may repeat
it, Sir. is whether, on the basis of your experience as an educator, you
could advise the Court concerning the major reasons why parents in
South West Africa, for example, do not tender their co-operation in
respect of obtaining an education for their children?
Mr. V AN ZYL: Mr. President, I think I should refer the Court to my
main evidence yesterday when I tried to point out that one of the major
shortcomings of the older system which previously existed in the Republic
and which also, until rccently, existed in South West Africa and, even
up to this day, in certain areas, the schools were educational institutions
which the parental communities did not consider institutions of their
own. They were regarded as foreign institutions establishcd by foreigners,
by strangers, offering an education of which they themselves did not
understand much and if the children cared to go there they could, to
acquire an education just for the sake of acquiring an education. If the
children chose to remain at school for one, two, three or four years, they
were free to do so. Their parents did not bothcr because the schools did
not belong to them, they had no responsibility and they virtually did not
understand what was going on.
Mr. GROSS:Now, Sir, would you say, on the basis of your experience,
that one of the primary reasons why the parents would be less than
enthusiastic in respect of their children becoming educated is that they
themselves are uneducated~the parents? SOUTHWESTAFRICA
Mr. VAN ZYL: I would not say that, Mr. President. I think generally
the Bantu people of South West Africa, as also in the Republic of South
Africa, are kcen to secure as much education as possible for their children.
These people are proud people; they have been independent for many
generations and they are used to caring for their children themselves.
They were used to providing whatever primitive facilities there were in
the traditional Bantu society for their children themselves and now a
situation is brought into their community where strangers become the
benefactors of their children, strangers coming from remote places would
bring these facilities for them and the children soon corne to realize that
there are certain good things in life which their parents are unable to
provide for them. The parents, on their part, seem to be reluctant to
receive these good things which are brought by strangers. It does create
the impression that they become the receivers of dole and charity and
they assume the image of a miserable beggar in the eyes of their children
whose affection and admiration they are supposed to command.
Ithink tha t mainiv, Mr. President, would create a feeling ofrepugnance
in the hearts and m1nds of the parental communities because they were
used to providing whatever facilities were needecl by their community
and, more particularly, by their children and now, aH of a sudden, this
privilege is being taken out of their hands. As I say, they just become
the receivers of these good things.
Mr. GROSS:Sir, when you say "all of a sudden", would you mind
indicating to the Court what time period you have in mind? The Mandate
was, I believe, undertaken in 1920. When ,vere the first efforts made to
overcome this pride, or whatever expression you used, with respect to
the parents' attitude toward education of their children?
.Mr. V ANZYL: Mr. President, I do not think any effort was made until
the system of community schools was recommended by the 1958 Com
mission. Prior to that the missionaries came along with their school
facilities and offered them to the parents and the parents never had a
share in the management and control of the schools.
Mr. GROSS:What, incidentally, Sir, if you know, is the rate of literacy
in South West Africa among the Native population?
Mr. V ANZYL: Mr. President, I had the figure but it just slipped my
memory. I could look it up.
Mr. GROSS: Would you have the figure in mind, to help refresh your
memory, Sir, with respect to, let us say, the literacy rate in the southern
sector, letus say, outside the Reserves, if there is such a figure?
Mr. V ANZYL: Mr. President, here again, I had the figure in mind, but
it just slipped my memory. I am sorry. I would not like to guess and give
a silly answer because we can look it up if necessary.
Mr. GRoss: Weil, we might corne back to that ifit seems necessary.
The question I should like to turn to is whether the answer you gave to
my question with regard to the attitude of the parents applies equally
with respect to the urban arcas of the Police Zone outside the Reserves?
Mr. VAN Zvr,: To a certain extent, yes, l\fr.President.
Mr. GRoss: What would be the major differences of the attitude of
parents in that sector from that which you described as a generality?
Mr. VAN ZYL: Weil, in the urban centres I should say the parents
would make use of the school as a useful place where they can send their
children white they themselves go to ,vork, so as to keep them out of
mischief. So without having due regard for the education that children WIT°NESSES AND EXPERTS
will receive at the school, they are eager tolet them go to school and they
command thcm to remain there for the whole school day because there
is nobody at home and there is nothing else for them to do.
Mr. GROSS: You would ascribe that part of their motivation is the
desirc to sec their children educatcd? \Vould you include that in your
explanation?
Mr. VAN ZvL: Yes. At the same time they achieve that end also.
Mr. GROSS: Now, Sir, to the extent that that enters into the motivation,
generally speaking, of the parents' attitude toward education, would you
indicate ta the Court what, on the basis of your knowledge and expert
opinion, would be the objective which the parents normally seek for their
children's education-objectives in terrns of accomplishment?
Mr. VAK ZvL: Primarily, Mr. President, the objective is to acquire
literacy. Ali parents, as alsothe children, have a dcfinite desire to become
litera te,hat is to be able to read at least one language, rnaybe their own
vernacular, and to write that language. And, of course, together with
this literacy they also acquire a fair knowlcdge of arithmetic and a few
other things that may be taught at school, but they mainly go to school
in the first instance for the sake of literacy.
Mr. GRoss: And then, beyond that, is that a means to an end or is
literacy an end in itself in the attitude of the parents with whom you
have conferred on this matter?
Mr. V AN ZvL: In a certain respect it is an end in itself because adults
in these te1Titories arevery often confronted with the problem that they
are unable to conduct their own correspondence. They go out to work
and, if they arc not literate, they will have to secure the services of some
pcrson who is literate to write their letters home for them and also, when
the letters return, to read them for them. Of course, this, to say the least,
is an incursion on their privacy, so most of the parents feel that once
they can acquire that amount of literacy, so that they are able to do
their own correspondence, they have already achieved something worth
while.
Mr. GRoss: Sir, if I understood you correctly, you were referring, I
believe, to why the parents wish to be literate-is that correct?
Mr. VAN ZvL: Yes.
Mr. GROSS: I was referring to why the parents wished their children to
be literate.
Mr. V AN ZYL: Weil, I should say in the first instance, they are also
thinking of their children becoming literate for its practical value but, of
course, some parents have much higher ambitions for their children and
they would like them to remain at school for a longer period and to get a
more advanced education.
Mr. GRoss: So that, Sir, the falling off of enrolment, which is reflected
in these global figures, the table to which I have called your attention, is
not due entirely is it to the Jack of co-operation or interest on the part of
parents?
Mr. VAN ZvL: No, I would not say entirely, Mr. President, but I was
trying to point out that the Jack of co-operation from the parents was
one of the main reasons.
Mr. GROSS: Could you explain, Sir, what one or two other main reasons
are?
Mr. VAN ZvL: Weil, it is also known that the children do not like
school. It is like that even with White children in South Africa. SOUTH WEST AFRICA
292
Mr. GROSS: And cverywhere else.
Mr. VAN ZYL: And everywhere else. Perhaps they become bored and
simply leave the school because they prefer to do so. Their parents have
not reached that stage of development where they would compel them
to remain at school unless they are properly organized in bodies where
they can help one another in this respect.
Mr. GROSS: Is there a system of compulsory education in the Territory
of South West Africa for Natives?
Mr. VAN ZvL: So far as I know there is not, Mr. President.
Mr. GROSS: Is there a system of compulsory education in South West
Africa for Coloureds?
Mr. VAN ZYL: I think so, Mr. President, but I am not sure ...
l\frGROSS: If you do not know, Sir, the record ...
Mr. V AN ZYL: It has been recommended ...
Mr. GROSS: The record indicates otherwise, Sir, I do not want to
mislead you. I just wanted to know whether you had the information,
Sir,I gather you do not. Is there a system of compulsory education in the
Territory for Whites?
Mr. VAN ZvL: Yes, Mr. President.
Mr. GRoss: Would you explain, if you will Sir, why compulsory
education at any Jevel is not introduced in the Territory with respect to
Natives?
l\frVAN ZvL: Mr. President, I think mainly because the Bantu com
munities have not reached that stage of development where it would be
feasible to make education compulsory. We should not lose sight of the
fact that the introduction of compulsory education in any country or in
any community impJies legisJation by which the parents are compelled
by law to send their children to school and should they fail to do so, they
are liable to be prosecuted for not having observed the laws in connection
with compulsory education. We have consulted the Bantu communities
in South West Africa as well as in the Republic of South Africa, whether
they would Iike such legislation by which they would be compelled to
send their children to school every day and consistently upto a particular
ageor up to a particular standard. All the communities and leaders whom
we have consulted on this matter have indicated that they are not ready
for such a thing.
Mr. GRoss: Now, Sir, you have referred generally to Native com
munities?
Mr. VAN ZvL: Yes.
Mr. GROSS: I would invite your attention here again to the southern
sector, the modern economy in the areas outside the Reserves, and I
should like to introduce into the record here, just for the sake of the
convenience of the Court, that Professor Logan at X, page 480, testified
that the following non-Europeans were "domiciled"-that is the ex
pression used-in the southern sector as follows: home areas or Reserves
-38,648; urban areas-59,073 and rural areas-68,334- Lest there be
any confusion in your mind, Sir, about the meaning of the phrase
"domiciled", he testifiedat page 480, in response to a question, that this
referred to whether or not there was a permanent place of residence. So
taking the figure for the moment, for the purpose of my question, of the
59,000 non-Europeans domiciled or permanently resident in the urban
areas of the southem sector, outside the Reserves, would you say, Sir,
that with respect to the educational system envisaged for them, the WiîNESSESANDEXPERTS 293
principles and policies which you have expressed with respect to the
development of Bantu communities in the northern areas, for example,
would be the same principles and the same policies with respect to these
individuals in the modern economy?
Mr. VAN ZYL: To a certain extent, yes, Mr. President, but of course,
as I have said also in my main evidence yesterday that different educa
tional principles have to be applied in different areas and where you have
people at different stages of development. Now, by and large, the prin
ciples would be the same but there will necessarily have to be certain
adaptations in regard to approach, method and other such matters.
Mr. GROSS:In following that up for clearer understanding of the policy
with respect to the educational system in this area of which I speak, the
urban areas outside the Reserves, I am thinking now of the Natives
therein who total incidentally 49,000 approximately because 10,000 of
the non-Europeans are Coloured according to the Odendaal Commission
report-thinking of these approximately 49,000 Natives in the urban
areas, described in the Odendaal Commission report as the "money
economy", would you indicate to the Court what major differences you
would think, as an educator, would be relevant to the education of the
Natives living in and working in that sector, differences from the educa
tion in the traditional subsistence economy areas elsewhere?
Mr. V AN ZYL: Mr. President, as far as basic principles are concerned,
there would be no difference whatsoever but Mr. G10ss would like to
know what differences there would actually be. I should say, in the first
place, there is an educational principle which bas to be applied in all
cases that a teacher, in instructing his pupils, in conducting his lessons,
must proceed from the known to the unknown. And it stands to reason
that the pre-school knowledge of children living in urban Bantu residen
tial areas will necessarily differ from the pre-school knowledge of children
living in rural areas. So that will have to be taken into account by the
teacher. Also one subject, environmental studies, is a subject which has
to be adapted according to the locality of the school, so it stands to
reason that, in the subject of environmental studies and later also the
subject of social studies, there will have to be an adaptation because of
the Iocality of an urban school and the surroundings.
Mr. GROSS:Sir, would it be the policy that in that adaptation to which
you refer in the social and environmental studies that the Native popula
tion would be accorded the same opportunities for instruction in accor
dance with their individual capacity as the White population?
Mr. VAN ZYL: Defi.nitely yes, Mr. President.
Mr. GROSS:Then, Sir, suppose that an individual Native cornes to the
authorities and says "I love my parents and appreciate my tribal back
ground but I would not like to study in vernacular, I would prefer to
study in Afrikaans or English and I would like, if possible, then to
prepare for a university life and perhaps go abroad to the university"
-let us say, such a hypothetical individual should corne to the author
ities-this is a possibility is it, Sir, that this would happen?
Mr. V AN ZYL: Yes, to a certain extent, Mr. President.
Mr. GRoss: Well, let us take just one case-may I? What would the
response be to him by the authorities?
Mr. V AN ZYL: Mr. President, the position would be that he would be
informed that no exceptions could be made. He will have to study his
vernacular whether he is particularly interested in it or not. It is a rule294 SOUTH WEST AFRICA
of the country and the school has got to go through with it and it is the
same with White children. One could easily find an Afrikaans-speaking
pupil, who might not have sufficient interest in the English language, to
say he would rather not study English, he thinks that Afrikaans is
sufficient forhe purpose of a career that he has in mind. He will not be
allowed to take Afrikaans only, he has got to take both languages, soit
is the same in Bantu schools, it is laid down that the vernacular must be
taken as a subject and hc will simply have to go through with it.
I have to point out, Mr. President, that it is not as though he is
deprived of the opportunity of learning the official languages. In the
Republic they are taught the official languages right from the fi.rst year
of their schooling. If 1 remember well, in South West Africa they have
decided to introduce the second language, or the official languages, in the
second year of the school, and by the time they reach the end of the
primary school or, say, the junior certificate course, they are normally
thoroughly conversant with these languages. So if he then chooses to
drop his mother tongue, he can do so, but so long as he attends school, he
has got to abide by the mies of the school.
Mr. GROSS:Now, Sir, I think that it would be a matter of common
knowledge, of which the Court should take sufficient notice, no doubt,
that, with respect, Mr. President, in educational systems throughout the
world, Ianguage instruction is compulsory, so that this would not be an
unusual phenomenon, is that correct? My question was not directed
toward the compulsory nature of the curriculum. My question is directed
to the point-perhaps you can answer it positively or negatively-isthere
any facility in the Territory in which the person I described hypothetically
could learn in the medium of Afrikaans or English if he was anxious to,
and his parents also were anxious for him to, let us say?
Mr. VAN ZYL: Mr. President. incidentally there would be a fcw schools
in South West Africa where the medium might be Afrikaans particularly,
because, I should say there are small communities of Bantu people who
have adopted Afrikaans as their home language. I am speaking under
correction, but I think there may be one or two such communities in
South West Africa. In the Republic of South Africa there are definitely
such communities, where Bantu people have adopted Afrikaans as their
mother tongue. In such cases, of course, the medium of instruction in
their particular school becomes Afrikaans and, if there is an individual
in a particular area where Afrikaans is not used as a medium and provided
it is also his own Ianguage, he can make arrangements and attend a
distant school where Afrikaans is used as a medium.
Mr. GROSS:With respect to the terri tory of South West Africa, there
are, you say, one or two schools?
Mr. VAN ZYL: There could be, Mr. President. I am not sure.
Mr. GRoss: They would be exceptional, in any event, or would they?
Mr. VAN ZYL: Exactly.
Mr. GRoss: Do you happen to know, Sir, whether either one is in the
urban areas in the southern sector?
Mr. VAN ZYL: If there are any such communities they would be in the
Southern sector, Mr. President.
Mr. GROSS:We are not clear where. The objective of the system, then,
would it be fair to say, is to deprive the individual Native in such case,
or to make it difficult for him, to learn in a medium which he, personally,
or his parents if he is too young to decide, consider would be more WITNESSES AND EXPERTS 295
advantageous to him from the standpoint of pursuing his economic liveli
hood, \vould that be a correct statement, Sir?
Mr. V AN ZYL: May we put it this way, Mr. President, no child in
South West Africa or in the Republic of South Africa will be allowed, in
a public school, or government subsidized schoo[, to be taught through
a medium which is not his mother tongue.
Mr. GROSS: His mother tangue being that established by his parentage?
Mr. V AN ZYL: It can be established by his parents.
Mr. GROSS: Would that be the normal method by which it would be
established?
Mr. V AN ZYL: Yes. Mr. President, I believe it will also be subject to
control by some departmental official.
Mr. GROSS: To the extent that it would generally be controlled by the
parentage, would you say, Sir, then, that the medium of instruction
normally available to him depends entirely upon his ethnie background
without regard to the economic or social consequences of the educational
system?
Mr. VAN ZYL: Mr. President, it has a bearing on the economic system.
I think I should try to make it understood that we believe that you
cannot take a pupil anywhere by trying to teach him right from the
beginning in a language which is not his mother tangue. You will appre
ciate that when these young children corne to school and enter for the
first year, it is quite possible that they do not know anything of an
official language or any other language except their mother tongue. So
that there would be no point in trying to teach them through another
medium. The teacher would definitely have no success in trying to
achieve his goal. So, if the mother tongue is not used as a medium of
instruction, the future of that pupil, economically or otherwise, is vir-
tually doomed. ·
Mr. GROSS: In the answer you just gave, were you referring to the
modern economy in which the Native is employed, or as well as the
northern areas of the traditional subsistence economy? Were you refer
ring to both in your terms of your response, Sir?
Mr. VAN ZYL: Yes, Mr. President, to both.
Mr. Gaoss: With reference to the group, which is whatever word one
chooses (the Odendaal Commission reference is to "absorb", but I will
not insist upon that word), the individuals, the Natives who are at work
in the economy and who live in that economy, in that area, would the
system of which you speak, take into account the fact that their parents
and, in certain cases, grand parents, had been born and had Iived in that
area?
Mr. V AN ZYL: If it is necessary, Mr. President, for any particular
reason, it will be taken into account. I cannot think of any particular
reason at the moment why it should be taken into account.
Mr. GROSS: In connection with that response (you are dealing here,
I take it, are you not, Sir, with the rather fondamental question of the
relationship between the educational policy, concerning which you are
testifying and the society in which the individual lives-that generally
iswhat we are speaking of, is it not, Sir), do you regard, just by way not
of argument, but of clarification of your perspective on this matter, the
49,000 Natives as an insignificant, marginal element, as sometimes has
been testified in these proceedings? You do not need to answer that
question if you do not wish to, I just wondered about the impor-296 SOUTH WEST AFRICA
tance which you attach to that number of Natives in these urban areas.
Mr. V AN ZYL: Mr. President, they could be of importance. We should
not lose sight of the fact that they are spread over many different
places.
Mr. GRoss: The urban areas?
Mr. VAN ZYL: The urban areas-yes, Sir.
Mr. GROSS:With respect to these persons-as you say, they could be
of some importance-! would call to your attention the discussion in the
Odendaal Commission report (I will not burden the record of the Court
with extensive readings), page 427, under the paragraph (c), headed
"Protection of Traditional Groups" and, in particular, to paragraphs
1431 and thereafter on that page. I will not tax you with the necessity
of reading that in full, but the question I should like to ask you is whe
ther, in the development of the educational system in the modern or
exchange economy with respect to the Natives, the consequences of social
change, brought about by the modern or exchange economy, are given
special consideration with respect to the educational system for Natives
in this modern or exchange sector? Is the phenomenon of social change
brought about by the economy taken into consideration in the develop
ment of the educational system?
Mr. VAN ZYL: Yes, to a certain extent, Mr. President, as I have
pointed out already.
Mr. GRoss: Now, Sir, when you say "to a certain extent", and this is
why I wanted to corne back to your previous testimony on this point-it
is designed to elucidate for the Court the impact of the policy upon the
individual-what would be the reason for any difference in the courses
availabie to Natives, as distinguished from Whites, in this sector?
Mr. VAN ZYL: Mr. President, the courses are basically the same, and
in many instances they differ very little as far as contents are concerned.
One would expect that the subject-matter in certain subjects would
differ slightly and the approach of teaching a particular subject might
differ considerably. For instance, the approach in the teaching of English
to Bantu pupils will, of necessity, have to differ from the approach in
teaching White children, or Engfüh-spcaking chiJdren, or for that matter
even Afrikaans-speaking children, but otherwise there is not such a vast
difference. I would almost say that there is hardly suflicient difference
between these syllabuses for it to be worth white mentioning.
l\frGROSS: Well, Sir, in terms of your response, is the educational
system in the Southern sector, to which you have just referred, an ex
ception to the general policy announced, among others, by the Prime
Minister, that the Native is to be educated? I shall read an excerpt just
tosee whether the southern sector is an exception or not. I read from the
Rejoinder, VI, page 41, in which the present Prime Minister said:
"The Bantu must be guided to serve bis own community in all
respects. There is no place for him in the European community
above the level of certain forms of labour. Within his own community
however all doors are open. For that reason it is of no avail for him
to receive a training which bas as its aim absorption in the European
community while he cannot and will not be absorbed there. Up till
now he bas been subjected to a school system which drew him away
from bis own community and practically misled him by showing him
the green pastures of the European but still did not allow him to
graze there." WIT:--ESSES AND EXPERTS
297
Now, Sir, would the policies which you describe generally, with respect
to the urban area educational system in the southern sector, be an excep
tion to the statement that "there is no place for the Bantu in the Euro
pean community above the level of certain forms of labour" and that
"for that reason it is of no avail for him to receive a training which has as
its aim absorption in the European community"? Would that policy
apply to the southern sector in the urban areas in a modern economy,
Sir?
Mr. VAN ZYL: Mr. President, we will have to differentiate between
what I call a general education, extending over the usual primary school
course and the junior certificate course, which does not prepare a pupil
for a particular specialized task: it is a gencral education preparing him
for specialization in later life. So as far as the first eight or even the first
nine school years are concerned, I should say that the present system
has no bearing on what Mr. Gross has quoted from the Rejoinder, because
we must understand that all these years of education should be considered
as a prepa.ratory training for more specializcd work in later life, or for
more specialized training at a later stage. I think I have made it cleaI
that as far as the ordinary general education is concerned, the system has
no bearing on that statement by the Prime I\Iinister.
So we must corne to specialized forms of training, if Mr. Gross was
thinking of that.
1\IrGnoss: \Vell, Sir,Iwas just rcquesting your understanding, in the
context of your responsibilities, of the policy as enunciated by the Prime
Minister; at the time he was, I believe Minister of Native Affairs. Now,
in connection with the same foundation of the education policy, in terms
of the policy as you apply it, would you explain the following quotation,
which also appears on the same page of the Rejoinder, VI, in which Prime
Ministcr Verwoerd, among other things, in that quoted paragraph,
discussing the evils of the education system as it existed prior to the
Education Act of I953, says (beginning near the top of page 41):
"It [that is, the education system] prepares them not for life
within the community which would gradually be uplifted by it, but
for a life outside the community and for situations which in fact do
not exist. In other words the community has not benefited from this
to such an extent that because of the general progress of its sons and
daughters who have won pretty examination certificates it could
absorb them in a suitable manner. [And then I call your attention
particularly to the following two or three sentences.] A considerable
number of those who were trained in this way were taken up again
in the education machine which created a cycle of its own and of the
evils in isolation of the Bantu community.;'
Pausing there for a moment, would you have any expia.nation, Sir,
of what the policy is with respect to the creating ofa cycle, in this term,
by taking up persans who were trained and putting them again in the
education machine?
The PRESIDENT: Mr. Rabie.
Mr. RABIE: Sir, I am sorry to interfere but I would submit, with
respect, that this is being unfair to the witness. He has been asked five
or six questions rolled up into one statement. I would suggest that the
,vitness be given an opportunity of reading what has just been put to
him. Tome it seemed like a considerably long passage, and it is not clear298 SOUTH WEST AFRICA
to me, I do not know whether it is clear to the witness, I should think
not, just what the question is.
The PRESIDENT:It is advisable ifthe witness is going to be asked what
he thinks of the words used by somebody else-if that is what he is going
to be asked-that he should have a copy of the document in front of him.
In any event I think he should have a copy of the document in front of
him, and so that might be provided to him, Mr. Rabie.
If you could, Mr, Gross, it would assist if you could break the question
down. It is a little difficult for anyone to answer a question when you
quote at lcngth what somebody clse has said, as I have drawn attention
before, and then ask a question generally about that. That is particularly
soif the witness does not have the document in.front of him.
I think Mr. Gross will break the question down, Mr. Rabie. In the
meantime, I think it would be a good idea if a copy of the Rejoinder, VI,
if that is the one you referto, Mr.Gross, was given to the witness. Would
you provide him with one: have you got a copy there?
Mr. R,rnrn: Yes, Sir: I could, Mr. President ...
The PRESIDENT:Oh, it's your own copy, is it?
Mr. RABIE:The Court might not wish him to see what is contained in
the rest of the Rejoinder ...
The PRESIDENT:Counsel's observations on the sidef
Mr. RABIE: I do not know how we can avoid that at this stage.
l\frGRoss: I would be glad to supply ...
, The PRESIDENT:There is no objection to this [President's own] copy;
it is not marked at ail.
Mr. GRoss: I am sorry, Sir, do you wish me to continue?
Dr. Van Zyl, before wc revert to this quotation on VI, page 4r of
the Rejoinder, may I just ask one question, Sir, to place into the record
at this point: Did you testify yesterday that the Administrator of Educa
tion for South West Africa reports to the Office of the Prime Ministcr
of the Republic?
Mr. VANZvL: Yes, Mr. President.
Mr. GRoss: It would follow, would it, Sir, that the Prime Minister and
his Office would fix the policies by which the Administrator for South
West Africa is controlled?
l\Ir. VANZYL: Mr. President, if I remember correctly, I said that the
Admini5trator had to report to the Government of South Africa, and,
when I was asked to which department, I said I believed it could be to
the Prime Minister's Department.
The PRESIDENT:That I thought was your reply.
l\frGROSS:Have you confirmed overnight your understanding in this
respect?
Mr. VANZvL: Yes, I have, Mr. President.
Mr. GROSS:Can you tell the Court whether or not your guess was
correct?
Mr. VANZYL: I am sorry, I did not understand Mr. Gross correctly,
l\fr.President. I did not ascertain which was the correct department.
Mr. GRoss: Yes, Sir. This was just for information, Sir. I had recalled
your testimony yesterday, but I recall it was a guess and I wanted to
know whether you had taken the opportunity to verify it.
Now, Sir, if I may, then, turn back to the quotation-have you had an
opportunity to read it?
Mr. VANZvL: Yes, Mr. President. WITNESSES AND EXPERTS 299
Mr. GROSS: I had just read the following sentence from Prime Minister
Verwoerd's quotation: "A considerable number of those who were trained
in this way were taken up again in the education machine which created
a cycle of its own and of the evils in isolation of the Bantu community."
I ask you, Sir, as Deputy-Director of Bantu Education, whether you
could elucidate for the Court, you have an opinion on the subject, what
the significance of the reference to "education machine" would be in that
context?
Mr. VA~ ZYL: Mr. President, I do not fully understand what the Prime
Minister meant by that particular quotation.
Mr. GROSS: Now, Sir, coming to the next sentence: "In this way
Native education served to create a class of educated and semi-educated
persons without corresponding national development", and, then,
finally,if I may bracket this with the last sentence: "This is the class
which has learned that it is above its own people and feels that its spiri
tual, econornic and political home is among the civilized community of
South Africa, namely the Europeans, and feels frustrated that their
wishes have not been complied with." Without asking you too general a
question about that, would you, Sir, in the application of the educational
policy with respect to the Native (again rcferring to thosc, as the Prime
Minister said, "absorbed in the economy"), explain whether you feel that
you believe that the Natives in that sector, in that modern economy,
represent a community which could be fairly called "uncivilized"?
Mr. VAN ZYL: I would not say they were uncivilized, Mr. President.
l\IrGRoss: Would you say, Sir, that, from the stand point of the appli
cation of the educational policy in that sector, the White population
there would- be a "civilized community" in a sense clifferent from the
way you would describe the degree of civilization obtained by the
Natives?
Mr. VAN ZvL: Yes, there will be a differcnce of degree, Mr. President.
Mr. GROSS: What, Sir, would be the standards-objective ·standards
if any, by which you would determine, if you could, whethcr a particular
Native had reached a degree of civilization corresponding, let us say, to
that generally prevailing among the White members of that sector?
Mr. VAN ZYL: Mr. President, I am afraid 1 will not be able to answer
that question satisfactorily.
Mr. GROSS: Sir, finally on this point, I would refer to the statement by
the Respondent in the Rejoinder, VI, at page 41, not quoted from the
Prime Minister but set forth in paragraph 8, in which the Respondent,
among other things, seeks to explain the statement quoted from the
Prime nlinister, and I would invite your attention to paragraph 8 on
page 41,where it is stated as follows: "Education provicled in the afore
mcntioned form, Dr. Verwoerd stated, 'must stand isolated from the life
of the Bantu society' and did not uplift the community." I invite your
attention to the following sentence:
"It served, at most, to create a small class of educated or semi
educated persons who considered themselves elevated above their
own people and who sought to enter the ranks of the Europeans,
only·to become dissatisfied and frustrated when they found that the
Europeans were not preparcd to admit them to their society."
Then follows the elaboration from his speech which we have discussed.
Now, with respect to the statement in the Rejoinder which I have quoted, SOUTHWESTAFRICA
300
is it, Sir, or is it not a point underlying the educational system with
respect to the Natives of South West Africa, that no Native should be
educated on a basis which wouid Iead to his considering himself "elevated
above" his own people? Would that be a fair characterization, in your
understanding, of one of the foundations of the Native education policy
in the Territory?
Mr. VAN ZYL: Mr. President, no. For all practical purposes, the Ban tu
in South West Africa can get exactly the same education as Whites, with
necessary modifications along the lines we have discussed this morning.
But, otherwise, there need be no differencc. AsI pointed out in my main
evidence yesterday also, the general education given to Bantu pupils and
White pupils culminatcs in the same standards, the same examination
requirements, at the end of the full school career when they ail have to
,nite the same matriculatiôn examination.
Mr. GROSS:And you have also testified, have you not, that there is no
compulsory education for Natives inthe Territory?
Mr. VAN ZYL: I have, Mr. President.
Mr. GROSS:And the figures on the enrolment have already been placed
in the record from the relevant table, have.they not?
Mr. VAN ZYL: Ycs.
Mr. GROSS:With respect, therefore, to the availability of education to
bath, what inference would you draw, if any, with respect to the fact that
there are Jess than 4 percent. of the Natives enrolled from Standard IV
onward?
Mr. V AN ZYL: Mr. President, does i\frGross want me to clarify that
position?
Mr. GRoss: Do you wish me to clarify the question, Sir?
The PRESIDEXT:He wants you to draw an infcrence, if you have any
inference to draw from the figures. Is that table XXXI? I think the
witness might just have the table in front of him.
Mr. GRoss: That is table LXXXXVI on page 255. That table, as has
already been demonstrated, shO\vs the percentage of the total of indig
enous language groups of the population enrolled in the Fourth Standard
as 2.38 pcr cent., and my question was whether you, as an educator and
an expert, draw any inference with regard to the, shall we say, low num
b~r of Natives being educated beyond that level with respect to this
standing in the community as a whole, the social and economic welfare?
Mr. V AN ZYI.: If l understand the question correctly, I can only repeat
what I have said this morning, that becal)-sc there is no compulsory
education, and because the parents have not in the past or up to now
felt that it is part of their responsibility to see that their children remain
at school long enough to proceed to Standard 1V or even beyond, it has
resulted in this considerable drop in enrolment.
The PRESIDENT:Doctor, does that explanation apply also to the
diminution in figures of numbers enrolled from Standard V to Standard
X, whcre it drops from 630 to 3?
;\1r. AN ZYL: Perhaps to a lesser extent, Mr. President. Of course, the
higher the pupils go at school the more satisfied they become with what
they have achieved, and they themselves just leave the school, or they
may even persuade their parents, if their parents woukl insist on their
remaining at school any longer, to let them go out and work; but tho~e
who are more ambitious, of course, can carry on. I would likc to make 1t
clear that there is no reason to believe that the drop is due to the in- WITNESSES AND EXPERTS 301
adequacy of facilities, because facilities are provided as they become
necessary.
The PRESIDENT:Might it be due to the absence of opportunities when
they leave school?
Mr. V AN ZYL: You mean opportunities of work?
The PRESIDE:-,.fTO:utside, yes. of work.
Mr. VAN ZYL: Of course, a person who leaves school at the Standard IV
level is not suitable for any other type of work than just that of an
ordinary labourer. The Court will agree that a man who has gone as far
as Standard IV cannot be considered a highly t~ducated person.
Mr. GROSS:In the context of your reply to the honourable President's
question, have you testified-my memory fails on this-with respect to
your knowledge or lack thereof with respect to job restrictions and
reservations in the Territory?
?iir. VAN ZYL: No, I have not gone into that aspect.
Mr. GROSS:Are you aware of the policies pertaining to job reservations
and restrictions, for example, on apprenticeship contracts of Natives in
certain industries-are you familiar with those?
Mr. V,rn ZYL: Not very familiar, although I have a general knowledge
of it, I am aware of certain conditions.
Mr. Gnoss: \Vould you say, in elaboration of your response to the
question of the honourable President, whether the lack of opportunities
would be attributable to such restrictions and reservations, among other
things?
Mr. VAN ZYL: No, not at all.
Mr. Gnoss: Would you explain in what respect the denial of the
opportunity or limitations upon freedom of promotion in certain in
dustries would not restrict economic opportunity?
Mr. VAN ZYL: There may be restrictions in the \Vhite areas for Bantu,
but the Prime Minister and cvcrybody else in the Government today is
thinking in terms of the development of our Bantu homelands, and the
Education Department is geared to supply whatever trained persons are
needed for the further development of those Bantu homelands. In the
Bantu homelands and in the development schemes which we find there,
there are no restrictions whatsoever for the Bantu.
Mr. GRoss: Would you say, then, that the primary objective of the
educational system is to prepare and educate the Bantu for life and work
in, shall we say, Black areas?
Mr. VAN ZYL: That may be the primary objective, but it does not
exclude them from finding employment also in White areas, if work is
available and if there are no restrictions.
Mr. GRoss: The testimony to which I should now like to turn is your
testimony yesterclay with respect to vocational and teacher training in
South West Africa; I believe you testificd, did you not, that this is
within the responsibility of your Department?
Mr. V AN ZYL: Yes, of the South \Vest African Education Depa1tment;
you mean the training of-technical training ...?
Mr. GROSS: Vocational and teacher training schools in South West
Africa-does your Department have any responsibility with respect to
those institutions?
Mr. V,u, ZYL: Only in the sense that they follow the syllabuses issued
by my Department, but for administrative purposes and local control
teacher training institutions and whatever vocational training facilities302 SOUTHWESTAFRICA
there are corne under the Education Department of South West Africa
itself.
i'.\Ir. GROSS:Would it be within the fonction of your Department to
decide, in the last analysis, whether or not additional institutions should
be established in the Territorv?
Mr. VANZvL: No. "
Mr. GRoss: Whose decision would that be, in the last analysis?
Mr. VANZvL: I believe it would rest fi.nally with the South African
Government, but matters of this nature surely neecl not be taken to such
high authorities. lt rests, I should say, with the Director of Education in
South West Africa.
Illr. GROSS:The final authority would be, you testified, in the South
African Government; are you familiar, in this respect, with which
division or department of the South African Government would have the
final sav in this matter?
The PRESIDENT: I think the witness is in a difficulty in respect of this.
In one sense ait policy finally has its repository in the Government, and
it might be said in the l\Iinister of State, whether it be the Prime Minister
or anybody else, under whose authority that particular department
functions, but many things do not of course go to the top. The question
is, who would be responsible for rnaking a decision in respect of the
subject-rnatter you are asking about?
Mr. GRoss: Yes, Sir. Who woulcl be responsible for making a decision
in respect of whether or not a new training institution should be estab
lished in South West Africa?
Mr. VANZvL: Weil, norrnally, Mr. President, the local director of
education would take that decision.
Mr. GROSS:The South West Africa director?
Mr. VAN ZYL: The South West Africa director, yes.
l\Ir. GROSS:And would he provide his own budget in the event that
he decided to do so?
l\IrVAN ZvL: I should think so, Mr. President.
Mr. GRoss: He would not, in that case, be required by procedure or
regulation to request authority from the South African Governrnent
itself?
Mr. VAN ZYL: I do not think so, Mr. President. Of course, I assume
that even the director will have to get approval for extensive new
schernes from the local political authorities, such as the Executive Com
rnittee,the Administrator, acting on behalf of the South African Govern
ment.
Mr. GROSS:Now, with respect to the facilities themselves: according
to the information in the Pleadings, I refer specifically to the Counter
Memorial, III, page 467, there are at present in the Territory four
vocationa1 and teacher training schoo1s. Does that correspond to your
infonnation, Sir? That is at III, page 467, of the Counter-Mernorial,
paragraph 4, if I may save the Court's time. As stated in Chapter V there
are four institutions at which teacher training facilities are provided for
Natives in South West Africa. Do you accept that figure, Sir?
i'.\lVAN ZvL: I accept it as being so, yes, Mr. President.
l\lr. GROSS:And with respect to the vocational training as distinguished
from teacher training, is it not a tact,Sir, that the Augustineurn is the
only institution in the Territory which gives courses in vocational
training as distinguished from teacher training? WlTNESSES AND EXPERTS
Mr. VAN ZYL: According to information at my disposa!, Mr. President,
industrial training, or vocational training, has also been instituted in
Ovamboland.
Mr. GROSS:At an institution, Sir?
flllV.AN ZYL: At an institution. I would not be able to say at which
one, ;\Ir.President.
'flllr.GRoss: Well, I will not press you on that point. I would, however,
refer you to the table on page 467-the same page of 111-which lists
the number of pupils enrolled from 1956 year by year to 1963. Do you
notice that table, Sir?
::\IV.AN ZYL: Yes.
Mr. GRoss: You will notice, for example, Sir, that in 1961 there \Vere
a total of 43 pupils enrolled in a course of training for carpentry and
tailoring and masonry combined. That is correct, Sir?
)Ir.VAN ZvL: Ycs, Mr. President.
Mr. GRoss: In 1963 there were, in the same three courses of training,
only 33 pupils enrollcd. Can you express an opinion, Sir, as to the reason
for the falling off in enrolment, if I interpret the figures correctly?
Mr. VAN ZYL: lt is difficult to say why this has happened, Mr. Presi
dent, because normally the enrolment grows very rapidly and I can only
a.scribe this to a lack of interest on the part of the South West Natives.
Mr. GROSS:And would that lack of interest possibly be attributable,
in whole or in part, to lack of economic opportunity?
il-fr.AN ZYL: By no means, Mr. President.
:\Ir. GROSS:Would you in your further response indicate whethcr in
this context the job reservations and restrictions might have a dis
couraging effect upon enrolment in this school?
Mr. V AN ZYL: Not at all, Mr. President. Perhaps I should point out
that judging from the table that we are studying here. in masonry, for
instance, for the years 1961, 1962 and 1963 there were no students at all
and at the present moment, and I should say for the past few years, a
large number of masons, builders, are needed for the ncw development
schemes in that area. They are needed to such an extent that many
buildcrs have to be sent there from the Republic of South Africa to assist
in the building schemes in the northern territories as well as in the Police
Zone. So this could not possibly reflect a Jack of opportunity for em
ployment.
Mr. GRoss: Do you say that there could be no relevance between these
two phenomena, the falling off of enrolment and the job restrictions or
reservations?
!\fr. AN ZvL: Definitely not, l\fr. President.
Mr. GROSS:Would that be on the basis of any knowlcdge concerning
the actual motives impelling the individuals not to apply? Have you any
concrete basis for your opinion in this regard?
l\1rVAN ZvL: \Vell, I can only repeat what I have said, Mr. President,
that there are opportunities, for instance, for builders. There are many
opportunities for employment and people are simply not availablc. They
have to be recruited from a neighbouring country and everybody in
South West Africa knew that there were always building schemes going
on and these youngsters should have known that their services would have
been in demand.
Mr. GRoss: Did you say, Sir, in the northern areas?
Mr. VA~ ZYL: As well as in the southern areas.304 SOUTH WEST AFRICA
Jlr.GROSS: Now, with respect to the southern area, are you familiar,
Sir, with the restrictions placed upon apprenticeship contracts on the
part of Natives in the building industry?
Mr. VAN ZYL: I know of it, i\1rPresident.
Mr. GRoss: And do you know, Sir, that that has been made effective
with respect to a number of occupations within the building industry?
Mr. VAN Zvt: As far as the training of apprentices is concerned, yes,
Mr. President.
Mr. Gnoss: Would you regard this restriction as relevant to the
limitation of opportunity?
Mr. VAN Zvt: No, Mr. President, because special facilities for the
training of Ban tu tradcsmen or artisans arc provided; whereas Whites
have to be trained as apprentices, the Bantu pupils get their industôal
training in institutions. They get a forma! training in these courses and
they are trained by well-qualified instructors and I believe that every
thing is donc to facilitate their training in this respect.
Mr. GROSS: Sir, with respect to mining, for example, are you aware
whether or not rnining is a relatively large employer of labour in the
Terri tory?
Mr. VAN Zvt: Yes, l\fr.President.
Mr. GRoss: Now, in respect of the mining regulations restricting
certain posts to Europeans in the case of European-owned mines which
are the substantial portion of the mines, what, if any, limitation of
economic opportunity would you consider from the educational point of
view-stimulation of interest in education-what effect would that have
upon the discouragement of enrolment in training courses?
l\lrVAN ZYL: I should not think that it would have any bearing on it,
Mr. President.
l\IrGROSS: Now, Sir, in considering the development of the educational
policy, isattention given by your Department, or by any department so
far as you are aware, to the factual situation as described by the Respon
dent in its Pleadings-1 will take as an example the Counter-Memorial,
III, page 55, paragraph 30, in which reference is made to the employment
within the mining enterprises and the restrictions on a racial basis which
prohibit certain posts from being filled by non-Europeans. I read the
following sentence, beginning near the bottom of page 55-perhaps I
had better read the sentence before in order to make myself clear:
"In the history of the Territory there has at ail times been social
separation between these groups [to whit, E.uropean and Native],
and experience has shown that members of each group prefer to
associate with members of their own group, and that certain kinds
of contact betwcen members of these groups tend to create friction.
[Then, skipping a sentence, the following statement is made] In
this factual situation, most Europeans would refuse to serve in
positions where Natives might be placed in authority over them.
Although very few, if any, Natives in the Territory would at present
be able to hold any of the posts mentioned in the aforegoing para
graph, Respondent was nevertheless obliged to take cognizance of
the factual situation, and, for the considerations aforestated, to
adopt measures which would prevent Natives employed in European
owned mining enterprises from being appointed to technical and
responsible posts in which they would excrcise authority over
European co-employees." WITNESSESANDEXPERTS
305
Now, I have quoted this rather lengthy excerpt to give the setting. I
would like, with the President's permission to go back and ask one or
two questions of a specific nature.
In respect of the development of the Native educational policy in the
Territory, is the unwillingness, in terms of the statement, of most Euro
peans to serve in positions where Natives might be placed in authority
over them regarded by the education authotities as a factor in the
development of the educational system itself, in any respect?
Mr. VAN ZYL: I will have to think about this, Mr. President. I do not
think a problem of that nature will necessarily arise in the educational
system. At this moment I cannot think of any instance.
Mr. GRoss: Now, specifically, in the context of the discussion of the
questions and answers relating to vocational training, focusing on that,
would the policy, or rather the factual situation described in the excerpt
from the Counter-Memorial enter into the nature of the courses or into
the number of facilities available in the Terri tory for vocational training,
or would it be irrelevant to such a consideration?
Mr. VAN ZYL: I think it would be irrelevant, Mr. President. · r
}Ir. GRoss: In othcr words, Sir, so far as your understanding is con-
cerned, the fact that Natives are, if I paraphrase correctly, closed from
positions in which they would have authority over Europeans as a
general policy of separate development-that would not have any
bearing on a decision with respect to the nature or number of vocational
institutions or courses offered?
l\Ir. VAXZYL: Nothing whatsoever, Mr. President.
Mr. GROSS:Would it, however, not bear upon the question of limitation
of opportunity open to the Native on account of his race?
Mr. VAN ZYL: I do not think so, Mr. President.
l\Ir. GROSS:Do you mean that the Native is presumed not to wish to
aspire to positions in which he might be given a.uthority over Whites?
Mr. VAN ZYL: Mr. President, Iwould not like to daim to be an author
ity in this particular field but I cannot see in what way a position of
authority over a White person could be of economic significance to any
Native.
Mr. GROSS:Would it help you, Sir, to analyse the question, if it were
to be pointed out that the posts from which Natives are precluded, for
example in the mining industry, do involve authority over Whites and
this is a reason assigned for their exclusion from those posts?
Mr. VAN ZYL: Well, Mr. President, I should say that similar posts
could be laid on for non-Whites also.
Mr. GRoss: In what areas, Sir?
Mr. VAN ZvL: I would not know, Mr. President, that is if Mr. Grossis
referring to the mining industry.
i\'Ir.GROSS:Yes.
.i\Ir.AN ZYL: I would not knO\v.
Mr. GROSS: The fact is, is it not Sir, as has been testified, that the
heavily preponderant proportion, both ofoutput and employment in the
mines, is in the southern sector in the European-owned mines-are you
familiar with that situation, Sir.
Mr. VAè'Z <YL: Yes.
Mr. GRoss: Now, with respect to those mines located in those areas,
by which ] mean the southern sector, is it your testimony, Sir, that the
denial of opportunity to achieve certain posts in that industry in those306 SOUTH WEST AFRICA
areas does not discourage aspirations for education in vocationa! training
relevant to the mining industry?
Mr. VAN ZYL: I cannot see how it can possibly be so, Sir, because I do
not know of any industrial school in the Republic, both for Whites and
non-Whites, where people are·specifically trained for occupations in the
mining industry.
l\frGROSS: The fact, Sir, as set forth in the Counter-.Memorial, Ill,
at page 57, to which I draw your and the honourable Court's attention,
is summarized in the following sentence on that page:
"It is hoped that the Natives will in time show increased interest
in the mining industry, and establish mining enterprises which will
accommodate such Natives as aspire to the technical and higher
posts in the industry."
On your understanding of separate development in the education field,
which is one of the points to which your testimony has been directed,
do you understand this statement in the Counter-1\lemorial as meaning
that when and if mining enterprises are established in Native areas or
in the Reserves that then such Natives, as aspire to the technical and
higher posts in the industry, will have an opportunity which is now
denied to them?
Mr. VAN ZYL: I can see it that way, yes.
Mr. GROSS: Sir, I would like to discuss very briefly the problem of
teacher training as distinguished from vocational training. With respect
to teacher training, the Odendaal report, page 257, paragraph 1066,
indicates that in 1962, there are 143 candidates in teacher training in the
Territory-do you have that figure before you, Sir?
Mr. VAN ZYL: Yes.
Mr. GRoss: Now Sir, would you regard this as an adequate number of
candidates considering the educational needs of the Territory-as you
understand them?
Mr. VAN ZYL: I should say, Mr. President, taking into account that
the full teaching establishment at the present moment constitutes about
1,400 teachers, it is not clear from what I have gathered so far whether
this figure is indicative of the number of teachers that will qualify in
1962 or whether this is the total number which are in training.
l\IrGROSS: Sir, would it help to read the introductory paragraph ro66,
may I insert it into the record, Mr. President?
"One of the most important factors hampering the expansion of
educational services for these population groups [which refers to
non-White] has always been the lack of well-trained staff. The
present admission requirement for teacher training is Std VI, and
during 1962 the following number of candidates were in training."
It then sets forth the number at each institution and the total is r43.
Having read that, Sir, could you respond to my question, whether you
regard the total of T43 candidates in training as adequate to the educa
tioi:tal needs of the Territory from a standpoint of accomplishing your
pohcy?
Mr. VAN ZYL: Mr. President, I am trying to determine how many of
these students will qualify in one particular year. Taking into account
the normal position, there would probably be about 70 teachers who
would qualify in one particular year and in 1962, when there was a
teaching establishment of something in the neighbourhood of a thousand WITNESSES AND EXPERTS
teachers, an addition of 70 to the establishment would not be quite what
is required for an establishment of that size. It should be at least ro per
cent. according to our experience.
Mr. GROSS:Thank you, Sir. Now that would bear, would it not, on
the first sentence of paragraph 1067 following the one we have just rcad
from page 257. ·
The PRESIDENT: Itsupports that paragraph.
Mr. GRoss: Yes, Sir. l wanted in fairness to the witness to point
that out in the context of his response.
"Although the present tcacher-pupil ratio of r :37 is exceptionally
favourable, the numbers of teachers now being traincd will hardly
be sufficient to meet the increasing demand for educational ser
vices."
I take it, on the basis of your testimony, that you would agree to that
conclusion of the Odendaal Commission?
IlfrVAN ZvL: Yes, Mr. President.
Mr. GROSS: Now, Sir, could you explain to the Court why there is not
a greater enrolment of teachers, if there is a greater need and demand?
Mr. V AN ZYL: Mr. President, I think that the main reason, judging
from the figures that we saw on page 255 of the Odendaal Commission
report, is that too few children stay at school long enough to complete
the pre-training for a teachers' course, and I believe what the Education
Department in South Africa will have to do now is to step up the pro
duction of Standard VI pupils in the first instance and see that more of
them go through to the junior certificate level.
The PRESIDDIT: How will they do that?
1Ir.VAN ZYL: Here again, Mr. President, I would like to point out
that, having secured the co-operation of the parental communities
through a new system of community schools, they will be able to keep
the children at a school for a longer period than they did in the past.
So I think they arc well on their way to produce more Standard VI pupils
and also to encourage them to go further---everything for their training
is made possible for them: the facilities are expanded as soon as it be
cornes necessary and I belicve that at the Augustineum for instance, a
large majority of the pupils are boarders and they get full bursaries,
which cornes to free boarding and lodging while they are attcnding that
secondary course. So it cannot be said that the administration and in
particular the Education Department does not go out of its way to make
it possible for thcse youngsters to achieve as high an education as
possible.
Mr. GROSS:WouId it be going out of the way, as you put it, to have a
compulsory educational system in the Territory with respect to Natives?
Do you have an opinion with regard to the desirability or otherwise of
the introduction of compulsory education for Natives in the Territory?
The PRESIDENT:Is this, do you think, relevant to any issue in this
case, ?!Ir.Gross?
l\lr. GROSS:Compulsory education?
The PRESIDENT:Yes, compulsory education as a matter of policy to
be introduced into any particular country. In many countries throughout
the world, there is no compulsory education and in many countries it
has only been introduced recently.
Mr. GROSS: Yes, Sir. The Applicants, with respect, for response would SOUTH WEST :\FRIC.-\
say it is of extreme importance to their contention of the allocation of
rights, privilegcs and burdens on the basis of race, in view of the fact
that within the Territory of South \Vest Africa, as the undisputed facts
show, there is a compulsory system of education on a racial basis for
\Vhites and no compulsory educational system for Natives or Coloureds,
Sir,and this is the essence of apartheid policy as applicd to the Terri tory
in the educationa\ field and it is in that context, Sir, that I am attempting
to extract from the witness his expert opinion conccrning separate
devclopment and its essentiality, according to his testimony with respect
to this differentiation on a racial basis, Sir.
The PRESIDENT: I see.
Mr. GRoss: Now with regard to the question I askcd you-what in
your opinion is the reason ... 1 think I asked you in these terms-what
is your expert opinion regarding the desirabiiity or otherwise of a
compulsory educational system for the Natives in the Territory under
the prevailing circumstances?
Mr. V AN ZYL: Mr. President, I do not think that it would be feasible
for the simple reason that the administration will not have the co
operation of the Bantu people. They have not rcached that stage where
you can expect them to accept a drastic system like that. At the
present moment, they still need their children for domestic purposes;
they necd 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 ,vith a
scheme whereby they would be punished by law should they not observe
the requirements of the Jaw. I think otherwise if the administration could
secure their co-operation, it would be a good thing and I believe the
administration would not be reluctant to introduce it, but at the present
moment I do not think it is a scheme that can be introduced.
i\IrGROSS: Sir, with respect again to the urban areas, which ·are the
areas, I take it, of rapid social change-that is correct, is it not?
Mr. VAN ZYL: Yes.
Mr. GROSS: \Vith respect to that area, I suppose there are no cattle
in the urban areas. With respect to the introduction of a compulsory
education system in the modern economy-specifically in the urban
areas-would you express your opinion as to whether a compulsory
system would be desirable or undesirable in that scctor?
Mr. VAN ZYL: I think, Mr. President, that a compulsory system can
be introduced with greater case in the urban aieas and I believe that the
administration has made partial provision for that by encouraging the
school boards concerned to introduce compulsory education within their
particular area, and I think, for all practical purposcs, that there is
compulsory education in these urban areas. I should say a very large
percentage of the children of school-going age attend school already.
Mr. GROSS: Do I understand you to say that it is your impression, or
is it your knowledge that there is a system of compulsory education in
the urban areas in the southern sector?
Mr. V AN ZYL: i\fr.President, I said, for all practical purposcs, and in
the urban areas. It is not a system of compulsory cducation in the
ordinary sensc of the word. I would like to repeat that the administration
has made it possible for school boards in a particular centre to introduce
compulsory cducation within its area, but it is not enforccd through
legislation-it is only an agreement amongst the parents themselves that
children should corne to school and that it would be compulsory and they WITNESSES ANDEXPERTS 309
might even have a little fine of their own for defaulters, I should say.
Mr. GROSS:But there is not governmental policy and law comparable
in any respect to that applicable to the VVhitepopulation, which applies
to Natives?
Mr. VAN ZvL: No, Mr. President.
Mr. GROSS:It is a correct statement, is it, Sir?
Mr. VAN ZYL: That's right.
Mr. GROSS:I would call your attention in this connection, to page 261
of the Odendaal Commission report, in which the following statement
appears in paragraph 1097. I will read the paragraph so that you have
the full, force sense of it:
"At present there is no statutory provision for compulsory educa
tion among these population groups. Their customs and traditions,
and the fact that their educational tradition is not yet long estab
lished, hamper the introduction of compulsory education; nor does
the Commission consider that compulsory education can simply be
imposed from above with any measure of success, unless the com
munities themsclves take the initiative."
Pausing there, Sir, on the basis of your inquiries in 1958 and your expert
knowledge generally with regard to education in the Territory, do you
consider this finding of the Odendaal Commission, which I have just
read, to be applicable to the urban areas of the southern sector?
Mr. VAN ZYL: Yes, Mr. President.
Mr. GROSS:The educational tradition in that sector, according to the
Janguage, is not yet long established, is that true, Sir, in that sector in
the urban areas?
Mr. VAN ZvL: Yes, Mr. President, it is.
Mr. GRoss: Do you know how long Natives have resided and had their
permanent residence in that sector?
Mr. VAN ZYL: It would differ from place to place, Mr. President. I
should say the first settlers from outside came to Windhoek about 60
years ago.
Mr. GROSS:That is at the time of the aftermath, was it not, of the
so-called "rebellion" at the time of the German Occupation?
Mr. VAN ZYL: Yes, Mr. President.
Mr. GROSS:So that it is truc, is it not, Sir, that there are some (I will
not ask the number) Natives who have resided in Windhoek for several
generations?
Mr. VA~ ZYL: Yes, some of them, IlfrPresident.
Mr. GROSS: In respect of those, the modern or exchange economy has
been developing for how long, Sir, in that sector?
Mr. V AN ZYL; Mr. President, are we referring to the White economy?
Mr. GRoss: I am referring to the economy in which you have Whites
on the one hand and Natives at work on the other hand in the same
economy. Referring to that economy, I ask you, Sir, if you know ap
proximately how long this modern economy-this exchange economy
has been in the course of development in the sector?
Mr. V AN ZvL: Mr. President, as I have said, for aboµt 60 years.
Mr. GROSS:In other words, the period during which the Natives have
resided there permanently and successive generations thereof, has also
been a period during which the sector has become a money or exchange
sector, is that not correct, Sir?310 SOUTHWEST AFRICA
The PRESIDENT:There are a number of facts alleged in your question,
Mr. Gross, such as, for example, successive generations have lived there.
I do not know what the witness knows about that as a factual position,
but if he is not asked to answer to the fact then he can proceed to answer
the question.
Mr. VAN ZYL: Mr. President, I was just going to say that. Those living
there now would not all have gone there 60 years ago. Sorne have spent
lesser time than othcrs, so it would be difficult to single out those who
have been there for 60 years and make special provision for them, and
those who came later to have a different scheme for them.
Mr. GROSS:Did you consider, Sir, in the course of your inquiry con
cerning the Native education system in South West Africa, the popula
tion patterns in terms of permanent residence versus migratory labour,
in certain areas?
for example,
Mr. VAN ZvL: Yes, we did, l\Ir. President.
l'lfGRoss: Now, with respect to those persons which the Odendaal
Commission report refers to as settled communities and which Mr. Logan
referred to as domiciled, did you, in the course of your enquiries con
cerning the educational system, ascertain the approximate numbers of
persons who had been there all their lives, let us say?
Mr. VAN ZvL: Yes, we did, Mr. President.
Mr. GROSS:Can you give the Court an approximation of the number
in the urban areas?
Mr. VAN ZYL: If I remember well, Mr. President, I worked it out once
and it came to about 60,000 out of the total population.
l\Ir. GROSS:Had been born in the urban sector?
Mr. V AN ZYL: I would not be able to say whether they were actually
born there, but they were settled there and they found employment, of
course, in many different urban centres taken together.
Mr. GROSS:There are, however, according to your inquiries, a certain
number of persons in this category, Sir?
Mr. VAN ZYL: Yes, Mr. President.
Mr. GROSS:And did you also ascertain whether or not there had been
a succession of two or more generations of Native inhabitants in that
area?
Mr. VAN ZvL: No, we did not, Mr. President.
l\frGROSS:Do you regard that as a relevant question in connection
with the education tradition which you were examining?
Mr. VAN ZvL: l'\fPresident. no. \Ve took these people who had settled
in urban areas at the time still to be part and parcel of their respective
national groups pertaining to different homelands. We were informed,
for instance, that the Hereros staying in urban centres have ail retained
their connections with their homelands and their national groups in the
Reserves. So we took all the others still to have the affiliation with their
homelands and their national groups, irrespective of the fact that they
were living in these urban areas.
Mr. GROSS:Would it be a fair inference from that response that the
education policy and system reflects that premise, or point of departure,
which you have just described?
Mr. VAN ZYL: I did not get that ...
Mr. GROSS:Would it follow from your testimony that the educational
system which you recommended as a rcsult of your inquiries in 1958,
proceeds from the point of departure of considering the Native in the WITNESSES AND EXPERTS
urban areas as ... I think you used the expression ... \Vhat expression
did you use, Sir? You considered him what with respect to the homeland
or northern areas, did you say, "affiliated with", or some sucli ex
pression?
Mr. V AN ZYL: Affiliated-I said, part and parce], Mr. President.
Mr. GROSS:Part and parcel-that was the expression, I can remember.
In your recommendations with respect to the educational policies con
cerning the Natives in the urban areas, you proceeded from the point
ofdeparture that they were part and parcel of a territory or area outside
their place of permanent residence, is that correct, Sir?
Mr. VAN ZYL: More particularly of a special national group, Mr.
President .
.Mr.GROSS: And, Sir, with further reference to the compulsory educa
tion point which is in respect of the Territory of South West Africa, I
refer again to paragraph 1097, and the sentence following that which I
had previously quoted, on page 261:
"The Commission did, however, receive evidence from teachers
and others to the effect that compulsory education is essential, but
this is not yet the opinion of the population in general."
Now with reference to that sentence, would you now state whether you
agree or disagree with the opinion of the teachers and others who have
testHied before the Commission that compulsory education is essential?
.Mr. VAN ZYL: I would not know, Mr. President, why they claimed
that it was essential. It would have been better understood if they said it
was advisable-why essential, I could not tell~and I do not think I
would agree with the teachers if that were their view.
Mr. GRoss: Now, secondly, Sir, with respect to the reference to the
statement that this is not yet the opinion of the population in general,
would you have any basis for judgment as to whether or not the popula
tion in general refers to the territory as a whole, or does it refer to, let
us say, the Southern sector outside the Reserves as well?
l'lfr.AN ZYL: I think it refers to the territory as a whole.
Mr. GROSS:One final Iine of questions, Mr. President, if I may, with
respect to the matter of teacher differential in salaries, which you covered
in your testimony yesterday. You have testified with respect to the
number of teachers enrolled in the three teacher training schools in the
Terri tory, if I understood you correctly, that the number is not adequate
to meet the projected needs in accordance with your calculations. That
is a correct version of your testimony, Sir?
l'l:.AN ZYL: Yes.
Mr. GRoss: Among the reasons for the inadequate (in that sense)
enrolment in teacher training, would you, Sir, express an opinion con
cerning the discouraging effect, if any, of the differential between salaries
paid to White and Native teachers, respectively?
Mr. VAN ZYL: No. As I indicated in my ma.in evidence yesterday,
there is no reason to believe that the teachers are dissatisfied with the
existing differentiation between salaries payable to Whites and salaries
paid to Bantu. They all clamour for higher salaries, but so far we have
not corne across any complaint that there is this differentiation.
Mr. GROSS: In connection with this response--first, however, may I
cite for the record here, from the Re1oinder; I do not have the citation,
so J will not cite it; I will, however, refer in connection with your response312 SOUTH WEST AFRICA
to the paragraph on page 43 of the Rejoinder (II), if you can find it, in
which the following statement is quoted-this is a further quotation by
the Respondent from a statement by Dr. Vcrwoerd:
"Thirdly, the Bantu teacher must be utilized as an active factor
in this process of development of the Bantu community to serve his
community and build it up and learn not to feel above bis cornmunity
so that he wants to become integrated into the lifc of the European
community and becomes frustrated and rcbellious when this does
not happen and he tries to make his community dissatisfied because
of such misdirected and alien ambitions,''
Have you in your experience encountered teachers who you regarded as
frustrated and rebellious because they could not become integrated into
the life of the European comrnunity?
Mr. V AN ZYL: I think this should be taken to mean that it might be
possible for'a situation like this to arise. Up to the present moment I do
not know of any situation of this kind that exists.
The PRESIDENT: Except by them speaking to you, how would you
know whether they were frustrated or rebellious, by their conduct-have
you ever noticed any frustration in terms of conduct or rebellious attitude
towards their position and the \Vhites?
Mr. VAN ZYL: Not among the teachers, Mr. President.
l\fr.GROSS: Would you agree or disagree with the characterization of
the desire of a Native teacher to bccome integrated into the life of the
European community as an "alien ambition"-would you agree with
that formulation of his aspiration, his ambition?
l\1r. VAn ZvL: Yes, l think that can be acceptcd as a possibility.
1Ir. GROSS: With regard to your tcstimony concerning principals
therc arc Native principals of Native schools, are there, and White
principals of White schools? Can you state to the Court whether there
is a differential in salaries paid to White and Native principals respec
tively, doing the sa.me work?
Mr. VAN ZYL: I thought it was generally known that the \Vhites are
paid more than the Bantu teachers; it also applies to the principals.
1\fr.GROSS: Could you explain to the Court why such a differential
exists in the case of principals?
Mr. V AN ZYL: I should say that the principal's allowance, if it is a
principal's a!lowance, has a bearing on the basic salary which he gets.
If a teacher gets a comparatively lower basic salary he would also get a
principal's allowance which is in a reasonable relation to that basic
salary; if the salary is higher, then the principal's allowance automatically
becomes higher.
1Ir.GROSS: So that the principal's salary differential is a reflection or
consequence, is it. of the differential of salary at the teacher's level, is
that correct?
l\frVAN ZYL: Yes.
Mr. GRoss: And therefore that differential remains, if not a constant
factor, at least a factor during the career of the White and Native teachers
respectively, isthat so?
Mr. VAN ZvL: Yes. Of course, we never think of comparing the position
of Ban tu teachcrs with the position of \Vhite teachers because, as I have
indicated before, the Bantu have a lower standard of living, and econorn
ically they have not advanced as far as the \Vhites; but this is not a WlTNESSES AND EXPERTS 313
static position-we firmly believe that ultimately there will be no
differentiation, depending on the progress which the Bantu make.
Mr. GRoss: You regard the differential, there fore, if I understand you
correctly, as unfortunate; in principle would you regard the differential
as a fair or as an undesirable phenomenon?
The PRESIDENT:In what respect?
Mr. GROSS:In any respect, Sir, relevant to ...
The PRESIDENT:In any respect whatever, then.
Mr. GRoss: In any respect whatever.
;\fr.VA~ ZYL: I would not consider it as undesirable and bad, in
principle.
Mr. GROSS:But nevertheless you stated the objective would be to
eliminate it, is that so?
Mr. VA:-l'ZYL: \Vell, depending on the economic development of the
Bantu teacher.
Mr. GRoss: That is what I understood you to mean. Now, I presume,
would it not be fair to say that if the objective, depending on the econom
ic development, is to eliminate it, that would bear upon the question of
whether It is a fair or just discrimination or differentiation, in principle?
Mr. V AN ZYL: No, Icannot see any unfairness in it at this stage.
Mr. GROSS:For the sake of the record at this point, I would place into
the record, if I may, the undisputed figures from the Reply at IV, page
395, which is as follows:
"The commencing salary of a married male 'European' teacher in
the lowest category, including a special allowance, is Rr,406. The
comrn.encing salary of a married male 'Native' teacher with com
parable qualifications, together with his cost-of-living allowance, is
R696."
First, do you know whether the cost-of-living allowance in the case of
the Native and the special allowance in the case of the White is a com
parable figure?
Mr. VAN ZYL: I am a bit uncertain as to what the position in South
West Africa was but, of course, at the present moment these cost-of
living allowances no longer exist; it has been aholished in the Republic,
and l think also in South \Vest Africa; but at that timc at certain levels,
at the top level, it was exactly the same for Whites and non-Whites.
Mr. GROss: The allowance?
Mr. VA:-iZYL: The cost-of-living allowance.
l\frGRoss: That is our understanding as well. Therefore, with respect
to the salary, the discrepancy would be of the order of the ratio estab
lished by the figure r,406 to 696-that is somcthing more than 50 per
cent., is it not? In any event, I will not ta.xyou-my mathematical mind
does not work that far. But the differential is a substantial one, of course,
is it not, you would agree?
i:'lfVAN" ZYL: Yes, but there are also other economic factors that one
has to take into account. I would not like to repeat too often the fact that
the Bantu teacher has a much lower standard of living which he has to
finance, but it might be enlightening to tell the Court that, for instance
as far as housing is concerned, a Bantu teacher living in the Bantu resi
dential area of Windhoek would get an apartment consisting of the
normal three or four rooms-kitchen, bathroom, with water on the tap,
with ail electricity laid on-for something Iike 6 rand a month, while314 SOUTHWESTAFRICA
the White teacher who lives in the \Vhite area of the same town has to
pay ten times as much for his apartment of perhaps lesser accommoda
tion.
Mr. GROSS:So that the salary differential reflects the difference in the
economic environment-that would be correct?
l\Jr. VANZYL: That is right.
i\fr. GROSS:With respect to the system described as "separate develop
ment" in your testimony and in the record, are there any White teachers
teaching in non-White schools?
l\fr.VAN ZYL: Yes.
Mr. GRoss: Are there any non-White teachers teaching in White
schools?
Mr. VAN ZYL: No.
Mr. GROSS:From your experience in the Territory, and on the basis
of your inquiry, would you state whether or not there are non-\Vhite
teachers who have the qualifications and competence ta teach anywhere
in the Territory at commensurate level-at a level. that is to say, com
mensurate with that of a White teacher doing the same work?
Ilfr. VANZYL: I cannot think I can.deny that; there might be teachers
who would be suitable to teach in White schools.
Mr. GRoss: Is the reason why no non-\Vhite teachers teach in \Vhite
schools a matter of policy, of apartheid or separate development-is that
the sole reason for this phenomenon?
Mr. VAN ZYL: I would like to give the main reason for that, and that
is that the Bantu teacher, with his good qualifications, is needed for the
upliftment of his own people; his services are not necessary in a White
school, where we have got an adequately qualified White staff to carry
on with the work; and this is also what the Prime Minister has referred
to when he said that educated Bantu should not think that they should
offertheir services in a White community; by implication it means that
the good services of an adequately trained Bantu teacher or technician
would virtually be wasted in \Vhite society, because his services are not
teally needed, whereas his services are very badly needed in his own
homelands and for the upliftment of a backward people.
Mr. GRoss: \Vould you say that in the southern sector-this will be
my final question, Mr. President, ifI may-outsicle the Reserves there is
a perfect balance between the supply of White teachers available and
the requirements of \Vhite education in that sector?
Mr. VAN ZYL: I would not be able to say whether the teachers are all
recruited from the Territory itself, but if there should be a shortage of
White teachers it is nota clifficultmatter to secure their services from the
Republic; many of them are prepared to go there and teach.
i\fr. GRoss: So that would it be fair to say, in conclusion, that with
respect to both White and non-White teachers in the Territory, there is
a need for both-is that correct?
Mr. VAN ZvL: Yes.
Mr. GROSS:With respect to the education of both \Vhite and non-
\Vhite in the Territory?
llfr. VAN ZYL: Yes.
Mr. GROSS:I think, Sir, that concludes my questions.
The PRESIDENT:Th;.ü does not conclude your cross-examination, I
assume, Mr. Gross, does it?
Mr. GROSS:I think I will rest there, Sir. WITNESSES AND EXPERTS
315
The PRESmf:NT: Very well, thank you.
Mr. GROSS:Thank you, Sir.
The PRESIDENT:Does any Member.of the Court desire to put a question
to the witness? (A Member of the Court having indicated his desire so to
do, the President continued.} Then I am afraid we will have to adjourn
at this particular stage; you will be in attendance on Montlay afternoon,
Doctor. But before we adjourn, Mr. Gross, thank you for your explana
tion as to the relevance of your cross-examination in relation to compul
sory education, but do I understand the proposition correctly when I
state it thus: there is compulsory education of the White people in what
we caH the White sector in the southern zone?
Mr. GRoss: Yes, Sir.
The PRESIDENT:There is no compulsory education elsewhere. Do I
understand that if there is no compulsory education imposed upon the
peoples, take for example of the north, irrespective of the difficulty of
policing it. irrespective of the question whether it is acceptable to the
people, irrespective of any other circumstances, that is inherently in
consistent with Article 2 of the ?-.Iandate and per se a breach of the
Mandate?
Mr. GRoss: No, Sir, that would not be the Applicants' contention. The
Applicants' contention in respect of the difference, standard or require
ment of compulsory education on a strictly racial basis would be that
that, standing alone, unsupported and unexplained, would violate the
duty to allot rights and burdens, privileges and so forth on the basis of
promotion of welfare and progress of ail the inhabitants to the fullest
practicable extent, and that it would seem to the Applicants that a
system in which no compulsory education in any part of the Terri tory,
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 significance of the educational aspect of apartheid seen in rela
tion to all other aspects of the apartheid policy of which this forms a
part.
The PRESIDENT:\Vell, then, we will corne to the consideration in those
circumstances whether that is consistent with the case which you put
before the Court at the time you made your Final Submissions, Mr. Gross;
but we will not discuss it here now.
Mr. GROSS:Yes, Sir.
The PRESIDENT:The Court will ad}ourn.
M.r.GROSS:May I say, Sir, that I hope that there will be an opportunity
to elaborate on the answer to this question at some appropriate time?
The PRESIDENT:By all means.
[Public hearing of 4 OctoberI965]
The PRESIDENT:Will you corne to the podium, Doctor?
Sir Louis Mbanefo desires to ask certain questions of the witness. Sir
Louis?
Judge Sir Louis MBANEFO:The first question I would like to ask is
about the Bantu Education Act. Has it actuaUy been applied to South
West Africa?
The PRESIDENT:The question is: has the Bantu Education Act been
applied to South West Africa?
Mr. VANZvL: No, Mr. President. SOUTH WEST AFRICA
Judge Sir Louis i\IBANEFO:You stated on page 259, supra, of the
verbatim record of 30 Scptember that "since the passing of the Bantu
Education Act in 1953, the Bantu have been given an active share in the
education of their children". Then you continued, in the next paragraph
but one:
"The ultimate aim is to enable Bantu groups to assume full
responsibility fortheir own educational service, as is already the
position Jn the Transkei today."
And further down you mentioned the advantages and finally you said
that:
"Now that the schools have bccome part and parcel of the Bantu
community, and now that the parents have a share in their manage
ment and take an active interest in what is going on, they urge their
children to go to school ... "
In another part of your evidence you spoke of using the mother tongue
as a medium of instruction and said that the whole purpose was to get
the people interested in their homelands so that they can go back to their
homelands and become useful to their community. Am I right in stating
that this was what you said in your evidence?
l\fr. VANZvL: l\frPresident, I would not say that the whole purpose
isto let the people go back to their homelands. The idea is that as many
educated and skilled persons as possible should go back there to help
with the upliftment and development of the homeland, but others, who
find employment in the White homelands and who prefer to stay there
for the time being, I should say are, of course. free to do so.
J udge Sir Louisl\1BANEFON : ow, if you look at the Odendaal report on
page 41, you will see table XIX and table XX. Have you got the page?
Mr. VAN ZvL: Yes, Mr. President.
Judge Sir Louis MBANEFO:Now, if you look at table XIX you will
find that in the homeland of the Damaras-have you got that-the
northern homeland, you will find Sesfontein with 300 people.
The PRESIDENT:That is in table XX is it?
Mr. YAN ZYL: J\IrPresident, I do not know if r am still with the
Judge. Itis table XIX?
Judge Sir Louis MBANEFO:Yes.
Mr. VAN ZvL: And the Damara people are concemed?
J udge Sir Louis MBANEFO:Yes.
Mr. VAN ZvL: Sesfontein?
Judge Sir Louis MBANEFO:Yes.
Mr. VAX ZvL: Sesfontein, yes. There are 309. Yes, Mr. President, I
have got it.
J udge Sir Louis ;\fBANEFO:You will see that they do not exist any
where else in the homeland. I have not asked my question yet, but I just
want to get the facts established.
Mr. V A?, ZvL: Yes. Mr. President, it is not quite correct. There are
Damara homelands in the southern sector ...
Judge Sir Louis MBANEFO:I am coming to that. I am now talking
about table XIX.
Mr. VAN ZYL: Yes.
J udge Sir Louis MBANEFON : ow, you will see that in the southern sector
you have 18,000 Damaras in urban areas, 18,499. WITNESSES AND EXPERTS
317
The PRESIDENT:Do you see that?
Mr. VAN ZYL: I have got it, l\fr. President.
Judge Sir Louis l\fBANEFOA : nd in the rural areas, 20,260.
i\IrVAN ZYL: Yes, l\fr.President, I have got that.
Judge Sir Louis MBANEFO:Now, is the purpose of the new scheme to
educate these roughly 40,000 people so that they can go and be useful
in a community different from where they live?
l\fr. VANZvc No, Mr. President, that is what I was trying to point
out. The 309 people who are given under the heading Northem Home
Areas are not actually living in Damara homeland. The Damara home
lands are under the rural areas in the first section of the table under
"Southern Sector". Thcre are many Bantu homelands in the southern
sector which we should not forget.
Judge Sir Louis MBANEFO:Yes. If you corne to the southern sector
the total people living in the home area is roughly: Damaras, 3,624-
Mr. VANZvc Mr. President, as I see it, there arc 18,499 Damaras in
urban areas and 20,260 in rural areas and in home areas-is that what
the honourable Judge is referring to, the 5,285 perhaps?
Judge Sir Louis MBANEFO:Which table are you looking at?
The PRESIDENT:Table XIX.
Judge Sir Louis MBMŒFO:Table XIX, yes. Now you have got your
rural and your urban areas in the southern sector?
Mr. VANZvL: Yes.
Judge Sir Louis MBANEFO:And then you have the northern home
lands-northern home areas?
Mr. VA'.'<vc Yes, Mr. President.
Judge Sir Louis l\fnANEFO:Now, as to the southern sector in table
XIX, if you want to deal mainly with the southern areas, you would have
to relate to the Southern home area in table XX, and if you look under
Damaras there are 3,624.
The PRESIDENT:Firstly, do you agree with the learned Judge's state
ment that you have to relate certain figures? Did you catch what Sir
Louis said?
i\fr.VAX ZvL: Not quitc, Mr. President.
The PRESIDE~T:Perhaps, Sir Louis, you will put that in the form of
a question, then the witness will understand it?
Judge Sir Louis MnANEFO:I want to get the facts established that is
why I am just reading from the table. If you look first of all attable XIX
you will see "Southern Sector-Ur.ban area-Damara 18,499".
Mr. VANZYL: That is right, Mr. President.
Judge Sir Louis MBANEFO:"Rural area-Damara 20,260."
Mr. VAN ZYL: That is right.
Judge Sir Louis MHANEFO:Those two figures add up to roughly
39,000. Now, it is part of the purpose of the education scheme that these
people would be educated in their Native or mother tongue, and that the
curriculum and syllabus would be relatcd to their institutions.
Mr. VAN ZYL: Would the Judge mean, Mr. President, to their cultural
institutions?
Judge Sir Louis l\fnANEFO:Weil, J will read from your statement on
pages 258-259, supra, of the verbatim record of 30 September.
"Secondly, increased emphasis was to be placed on the edu~ation
of the masses, so as to enable them to co-operate in the evolution of
new social patterns. SOUTHWESTAFRICA
Further, that schools should be linked as closely as possible with
existing Bantu social institutions; and further, that active steps
should be taken to produce literature of a functional value in the
Ban tu languages ... and that schools should provide for a maximum
development of the Bantu individual, mentally, morally and
spirituall y."
Mr. VANZYL: Yes, Mr. President, I said that.
Judge Sir Louis MBANEFOT : he education of these 39,000 people would
be reorientated to the needs of their home area?
Mr. VAN ZvL: To a certain extcnt, yes. I have to point out that in the
first instance the children will get a general education for general develop
ment, and as from a certain stage they will have to start specializing in
different directions, and they will then be trained ta undertake certain
development schemes, mainly in their homelands, but they are still free
to offer their services outside the homelands if they care to do so; but
the idea is that as soon as they are ready, and as soon as they are pre
pared, they should take the acquired skills and knowledge back to their
homelands to assist with the development of those areas.
Judge Sir Louis Jl.foANEFOT : hat is in respect of Sesfontein-thatwill
be the place where 300 people live?
Mr. VANZYL: Yes. Ithink we should not take Sesfontein very seriously
as a homeland of the Damara people. It is not an area where they
normally live, or where they mostly live. That is just a small group who
must have emigrated there, and who live there now. I am not sure
whether with the new homelands which have been proposed by the
Odendaal Commission, Sesfontein will fait within the Damara home
land-1 have not gone into details, butIwould not be surprised if it falls
outside the new Damara homeland.
Judge Sir Louis MBANEFO:And the same, to a large extent, is truc of
the Namas?
Mr. VANZYL: Itis also truc of the Namas. The Nama, as we will sec
from this table, live largely in the southern areas of the southern sector,
much more towards the south. Sesfontein should actually be taken just
as a small community which has settled there; it is not as though they
occupy a vast area; it is just a concentrated community.
Judge Sir Louis JI.IBANEFO C:ould you tell the Court how man y Bantu
languages are officially recognized as media for instruction in South West
Africa?
Mr. VAN ZYL: The proposai was that six of the existing languages
should be recognized as school languages.
Judge Sir Louis MBANEFO:And are you in a position to tell the Court
how many people in the smallest of the language groups would use one
language?
Mr. VANZvL: If I remember well, I think the Hereros would be the
smallest single language group. The Namas constitute the smallest
national group of people, but then we have the position that Namas and
Damaras both speak the same language; but the Hereros constitute the
smallest language group, if I remember well.
Judge Sir Louis MBANEFOW : ha t would you give their population as?
Mr. VANZvL: The Hereros? 35,000.
The PRESIDENT:As shown attable XIX, 35,354 in the southern sector?
That's the total?
JI.fr.VANZvL: That is right. WITNESSES AND EXPERTS
Judge Sir Louis l\lBANEFO:And they have no other homelands outside
the southern sector?
l\fr. VANZYL: No, they have no other horneland. Of course, the Hereros
never lived in the northern areas; they are at present occupying their
traclitional homeland, which has been enlarged and which, I believe, ,vill
still be enlarged after the new recommendations of the Odendaal Com
mission.
Judge Sir Louis MBANEFO:And in their home areas they have 15,000?
Mr. VAN ZYL: In their home areas?
The PRESIDENT:In the southern sector.
Judge Sir Louis MBANEFO:ln the southern sedor-table XIX.
Mr. V AN ZYL: According to this table, yes.
Judge Sir Louis ~IBANEFO:What opportunity would there be for an
educated persan to find a living amongst a community of 15,000 people,
if a large number of them get educated?
Mr. VANZvL: I think that there would be ample opportunity, if we
take into consideration that a centre which is taken to be a large urban
centre like Windhoek itself has a population not much bigger than
35,000, including all population groups, and I think everybody would
agree that in \Vindhoek, for instance, there are numerous opportunities
for people to make a living and to contribute towards the welfare of that
centre.
J udge Sir LouisMBANEFO:Then you would not be talking about him
going back to develop hls institutions in his home area?
l\frVAN ZYL: Yes, but I was trying to point out that an area which is
in itse1f, geographically, a very vast area occupied by a potential popula
tion of 35,000 would need the services of many people to develop it to the
fullest.
Judge Sir Louis MBANEFO:Of the 35,000, 9,000 live in urban areas,
you say?
Mr. VANZYL: At the present moment, yes.
Judge Sir Louis MBANEFO:And ro,ooo in rural areas?
Mr. VANZYL: Yes.
Judge Sir Louis MBANEFO:And the remaining 15,000 in the home
areas?
Mr. VANZYL: Yes. . ,
Judge Sir Louis MBANEFO:And I take it that these areas are scattered
over a large area?
Mr. VAN ZYL: I would not say the homeland consists of various areas
scattered over a much larger area; it is one big consolidated area, and if
there are smaller Reserves not consolidated into the main homeland of
the Hereros, it will soon be done.
J udge Sir Louis MBANEFO:Yes, but within that consolidated piece of
land you probably have about roo settlements or villages?
.Mr.VAN ZYL: I would not say as man y as that, but there could be a
fair number.
J udge Sir Louis MBANEFO:50?
Mr. VAN ZYL: 50, or perhaps less.
Judge Sir Louis MBANEFO:And you have got 15,000 people spread
over 50 villages?
Mr. VAN ZYL: Yes, it could be; of course, they would not be ail of the
same size, there would be bigger centres and smaller centres.
Judge Sir Louis MBANEFo:Yes, but they couldn't be much if the total320 SOUTH WEST AFRICA
pop1ùabon is 15,000. What I am gettjng at, and I am going to Jead on
toit later on in my questioning, is: these educated people are people who
are being educated so that they can go back and help their people. I just
want to get an idea of what sort of help they can givc to their community.
Mr. VAN ZYL: In the first instance they can go there as teachers; they
can go there as artisans, to erect buildings which may be needed for
public services; they can go there as agricultural instructors; they can
go therc as doctors, even, when the time cornes; girls can go there as
nurses; they can go there as merchants.
Judge Sir Louis MBANEFO: You can't be much of a merchant in a
community of 15,000 people.
The PRESIDENT: Is that a question or is it a statement?
Judge Sir Louis l\1BANEFO: One wants to get the impression, because
we have had statements of opportunities being opened for them in their
home areas, and one wants to get clear in one's mind the type of op
portunity that they have.
Illr. AN ZYL: I would not like to argue the point, but if I have to
give my opinion I should say that there will ultimately be big concen
trations of people and the othcrs may be scattered over the whole of the
homeland as farmers living apart on separate farms or in very small
communities, and these very small communities wiU have to be served
from the bigger centres that will be established and that will grow in the
homeland.
Judge Sir Louis l\IBANEFO: Until then, of course, there will be very
little or no opportunity?
Mr. VAN ZYL: No, the opportunities will be there right from the be
ginning-not for all types of people, but right from the beginning there
will be certain opportunities, and as the development will gain in mo
mentum there will be more and more opportunities.
Judge Sir Louis l\lBANEFO: You said that the people are being taught
through the medium of theîr mother tangue, and in respect of South
West Africa up to Standard II, and in the north upto Standard III; and I
believe vou said that it has been recommended to raisc it to Standard VI?
Mr. VAN ZYL: Yes. ·
Judge Sir Louis MBANEFO: Could you tell us what subjects are taught
in the Native languages in primary schools?
Mr. VAN ZYL: In South West Africa only?
Judge Sir Louis MBANEFO: I will deal with South West Africa.
)fr. VAN ZvL: The usual subjects on the curriculum of the primary
school, and thev include arithmetic, environment studies in the lower
primary school: nature study, health education; of course, then there
are the three languages that have to be taught; I think those are about
ail the subjects.
Judge Sir Louis l\1BANEFO: And with respect, for instance, to arith
metic: do you take them up to things like, for instance, compound
interest?
Mr. V AN ZYL: Not in South West Africa, because compound interest
only cornes into the picture towards the Fourth or Fifth Standard, not
in the lower primary school up to Standard II.
Judge Sir Louis MBANEFO: If you took it up to Standard VI, you would
then have to instruct them through that medium, wouldn't you?
Mr. V AN ZYL: That is right. It has been clone in the Republic of South
Africa, up to Standard VI. WITNESSES AND EXPERTS 321
Judge Sir Louis MBANEFO:I notice you said that you had in fact taken
a Standard VI examination in Bantu languages in South Africa?
Mr. V ANZYL: Yes, Mr. President in the Republic of South Africa.
Judge Sir Louis MBA)IEFO:Now when you get to the complicated level
ofarithmetic for instance~what do you do?
Mr. VAN ZYL: :;\fr.President, we have managed to overcome whatever
problems there were. As I have pointed out before, the majority of the
terms that we need for the primary school were already in existence in
these Bantu languages and those words which were lacking were made~
we formed them. I think it happens in any language which has to
deYelop and which has to be adapted to new needs and requirements and
perhaps I should mention, Mr. President, in the Republic of South
Africa, we already have several series of graded arithmetic books in all
our Bantu 1.anguages and in those books all the necessary terms app~ar
because they cover all the standards of the primary school. I can testify
that the system works well.
Judge Sir Louis MBANEFO:You said I believe, on the subject, that
primary education only makes them fit to work as labourers, nothing
more than labourers?
Mr. V AN ZvL: I think so, Mr. President.
J udge Sir LouisMBANEFO:And in that case, there will be no need for
maintaining a high level or improving this standard.
Mr. VAN ZvL: Now, it should be understood, Mr. President, that after
the Standard VI level, we use English or Afrikaans as the medium of
instruction. So for more advanced education, we do not use the Bantu
languages as medium at the present time.
Judge Sir Louis MBANEFO:Now, in South West Africa, the educational
facilities that exist for the Natives is up to Standard X.
Mr. VAN ZYL: That is right, Mr. President.
Judge Sir Louis MBANEFO:And that is the level at which they matric
ulate?
Mr. VAN ZYL: That is when they matriculate, yes.
Judge Sir Louis MBANEFOA : nd I gather that at that level you say that
they take the same examination as \Vhite pupils?
Mr. VAN ZYL: It is so, Mr. President.
Judge Sir Louis MBANEFO:But that papers are separately marked? •
]\fr. VAZvL: I pointed out on the first day in my main evidence that
there are two examining bodies which conduct the examination for Ban tu
pupils; there îs the Joint Matriculation Board itself, which also serves as
a controlling body and conducts an examination of its own-candidates
who write that examination are thrown in with all the other candidates
and the papers are marked by the same examiner.,; and moderated by the
same moderators. I should also say that those who write the examination
under the Deµartment of Education, Arts and Science, are treated in
the same wa.y-the same examiners for \,\lhites and non-\Vhites and the
same moderators.
Judge Sir Louis MBANEFO:Could you tell us roughly about how many
people in the last five years-youcan take any year in the last five years
or you can take the whole five years together-have gone through
Standard X in South West Africa?
Mr. VAN ZYL: I am not certain about the figure, Mr. President, but it
is a very low figure.
J udge Sir Louis MBANEFO:As low as it would be ... ? SOUTH WESTAFRICA
322
i\Ir. VANZYL: lt would be extremely difficult to say, but I would not
say more than 20 passed the matriculation examination during the past
five years.
J udge Sir Louis MBANEFOA : re you in a position to tell the Court what
the 20 people, who passed the matriculation, did after that?
Mr. VAN ZYL: No, I cannot, Mr. President. I know of a fcw. I know
that there are two or three studying for the B.A. degree at the University
College ofthe North and I know that there are a few teaching in South
West Africa and there may be a few clerks serving in some or other
public office. Of course, altogether there may be many more than
20 matriculated Bantu people in South West Africa, but they could have
matriculated before the period mentioned by the honourable Judge.
Judge Sir Louis MBANEFOI : appreciate that it is not your problem to
speak about higher education, I was going to ask about how man y have
had higher education but perhaps you would get that for me later.
l\1r. VANZYL: I think that would be best.
Judge Sir Louis MBANEFO:Now, you said in answer to the question
that if there is any sizable minority needing instruction and living in a
remote area arrangements could be made for them to receive instructions
in their own language.
Mr. VAN ZvL: I did, yes, Mr. President.
Judge Sir Louis MBANEFO:They would be either given a separate
school or they would be taught in separate classes in an existing school?
Mr. VAN ZYL: That is right, Mr. President.
J udge Sir Louis MaANEFO:How many people do you normally envisage
to qualify for starting a community school?
Mr. VAN ZvL: From what I have been told, Mr. President, in South
West Africa, they are prepared in some of these remote areas to start a
school with 15 pupils.
The PRESIDENT:Fifteen?
Mr. VAN ZYL: Fifteen.
Judge Sir Louis .MBANEFOA : nd taken up to Standard VI if they
continue?
1\Ir.VANZYL:No, I would not say that, I think they would take them
up to Standard II perhaps or a little further depending upon the ability
of the teacher but once they reach the higher classes of the higher primary
school,they would probably be taken to central schools, where provision
is made for hostel facilities.
Judge Sir Louis MBANEFO:Would you think that accounts for the
large drop off from Standard Il in the number of pupils who continue at
school?
Mr. VAN ZYL: Yes, Mr. President, I think it can be ascribed to that
to a certain extent but I should say there are other more important
reasons for the sharp drop after the Standard II !evel.
Judge Sir Louis MBANEFO:I believe the important reasons you gave
were that the parents had not appreciated the need of compelling the
children to continue at school?
Mr. VAN ZYL: That was my impression, Mr. President.
Judge Sir Louis MBANEFOA : nd that is being taken care of, as you say,
by forming community schools?
Mr. VAN ZvL: Yes, Mr. President.
Judge Sir Louis MBANEFO:Would you explain more what you meant
by community schools-does it mean that schools that are run by WITNESSES AND EXPERTS 323
missions are taken over by the community or what-could you tell us
exactly what?
Mr. VAXZYL: Weil, in the first place, Mr. President, a community
school could be described as a school managed by a local parental com
mittee, and which for further administration comes under a school board
which assumes responsibility for the administration of a number of
schools in a particular area where common interests result in their
forming a unit·or where they geographically form a unit, but mainly a
community school is a school which belongs to the parental community,
the local parental community, and a school for which that community
assumes local responsibility.
Judge Sir Louis MBANEFO:Just a point of information on existing
mission schools, is the proprietorship transferred to the community?
Mr. VA~·ZvL: Yes, Mr. President. The missions were not compelled
to ·band over their schools. The system which was introduced in the
Republic was also offered in South West Africa and the missions were
asked to surrender control of the schools which they had established so
that they could become community schools, and the missionary bodies
which were prepared to do so did hand over their schools and they were
subsequently made community schools; others have kept them and they
are still receiving full State subsidy but I believe they will reach a point
where they wiH have to choose between running these schools at their
own cost or handing them over for the purposes of making them com
munity schools.
Judge Sir Louis MBANEFO:These mission schools are run by Native
headmasters and teachers?
l\Ir. VAr-ZYL: Yes, Mr. President, provisionally.
Judge Sir Louis MBANEFOA : nd the parents, most of whom I assume
would be uneducated-illiterate?
l\lr.VANZvL: There may be some uneducated parents, others may
have little education and admittedly much Jess than the teachers.
Judge Sir Louis MBANEFOA : nd you said that they regard these schools
run by Native headmasters, Native masters, as foreign schools?
Mr. V ANZYL: No, not that, Mr. President. The schools or does the
honoura hie J udge refer to mission schools run by ... ?
Judge Sir Louis MBANEFO:Mission schools, yes. I wilr repeat my
question-mission schools run by Native headmasters and staffed by
Native teachers.
Mr. VANZvL: Yes, Mr. President, that is the impression that we got.
They do not consider the schools their schools, they belong to the
missionary bodies.
Judge Sir Louis MBANEFOA : nd ifI understand you correctly, the fact
that they form these community schools, makes the people feel that the
schools belong to them and that encourages the parents to encourage
their children to remain at school.
l\Ir. VANZvL: \Vell, I would not say to encourage the children, but
to compel them to go to school and also to make it possible for the
children to remain at school for a considerable period.
J udge Sir Louis MBANEFOD :oes that mean that the parents have not
yet appreciated the value of education?
Mr. VANZYL: I would not say that they have not appreciated the
value of education but seeing that it was not a service that they them
selves provided and for which they had to assume responsibility, they324 SOUTH WEST AFRICA
did not take it very seriously; they admired a child who wanted to go
to school and who remained at school for a long time and who proceeded
nicely with his tessons, but ifthe child cared to leave the school they
seldom insisted on his staying on for a longer period, because in most
cases, it involved a certain amount of expense for the parents and some
of them gladly withdrew the child or allowed the child to leave school
so as to save the money which he othenvise would have had to pay.
Judge Sir Louis MBANEFO: If a parent knows that if his son continues
at school he will be better equipped for a better position and higher pay
inthefuture,doyounotthinkthatwill makehimkeepthe child at school?
Mr. VAN ZYL: Certainly, yes, 111r.President.
Judge Sir Louis MBANEFO: More than the fact that he was made a
member of the school board?
l\IrVAN ZYL: Yes. Mr. President, I should point out that all the
parents are not serving on the school committees or on school boards.
There are many who do not serve on those bodies, but those bodies are
representative of all the parents and there is a common feeling of interest
in the school in the whole community and they work together for the
advancement of that school and for the bettermcnt of the position of
their children. It is better now. Formcrly, they did not take as much
interest and they did not seem to realize the benefits to which the
honourable Judge has just referred.
Judge Sir Louis MBANEFO: You said that the purpose of primary
education is to acquirc literacy?
Mr. V AN ZYL: The purpose of the lower primary course is, in the first
instance, to acquire literacy, Mr. President.
Judge Sir Louis MBANEFO: And that leads you on to the ... ?
Mr. VAN ZYL: The higher primary course.
Judge Sir Louis MBANEFO: And education real1y becomes purposeful
at the higher level than the primary level?
Mr. VAN ZYL: Mr. President, I would not say that the lower primary
education is not purposeful. It also serves a very good purpose. I think
I have pointed out-last time, when I gave evidcnce-that the fact that
they become litera te is of very great importance for them, for one reason
which I gave, is that they can conduct their own correspondence and
they can read their Bible and other suitable literature and, by reading,
of course,they can expand their knowledge and their education virtually
on a private basis.
Judge Sir Louis MBANEFO: Another thing I would like to ask you,
Dr. Van Zyl, do you have the experience of the phenomenon of boys
educated up to Standard VI and beyond not wanting to be labourers?
Mr. VAN ZYL: I would not say that I know of individuals, iir. Presi
dent, and I would not know exactly what the position is in South West
Africa,but in the Republic-if that could be taken as an example-many
of those who reached the Standard VI lcvel will still become labourers.
Judge Sir Louis MBANEFO: I know, but they do not like it.
Mr. V AN ZYL: No, they will still become labourers because they are
not equipped for anything else. They can become messengers in offices
and, indeed, many of them do become messengers, but they cannot
become derks, Mr. President, or be employed in any other posts where
considerable education or skill is required.
Judge Sir Louis MBANEFO: In this respect, have you any knowledge of
other African territories where you have a similar situation? WITNESSES AN'D EXPERTS
Mr. VAN ZvL: Similar education, Mr. President?
Judge Sir Louis MBANEFOS : imilar, yes, where people are educated up
to primary school level.
The PRESIDENT:Do you have any personal knowledge of other African
countries with educational problems ... ?
Mr. VAN ZYL: Yes. I happen to know something of the Rhodesias, the
former Federation of Rhodesia and Nyasaland.
Judge Sir Louis MBANEFO:Do you know, for instance, that in many
places clerks are recruited from Standard VI? ,
Mr. VAN ZvL: Mr. President, I did not know that, but I would not be
surprised that in certain underdeveloped parts of Africa people with as
little education as that are employed as clerks, but in South Africa it is
not necessary because there are a great many who have advanced beyond
that stage. In the Republic, for instance, there will b12,000 candidates
writing the junior certificate examination this year and about 7,000 or
8,000 will pass the examination, and if clerks are needed they will be
recruited from amongst that group, or even those who pass the matric
ulation examination. There will probably be about 800 passing the
matriculation examination this year. There will be others offering even
higher education, and those who have Standard VI have not got a chance
against these people.
Judge Sir Louis MBANEFOW : ould that be the position in South West
Africa?
11Ir. VAN ZYL: The position would be more or less the same in
South West Africa, although the numbers are, of course, comparatively
smaller.
Judge Sir Louis MBANEFO:Lastly, l want to ask you, how many
secondary schools, or how many schools, go up to Standard X in South
West Africa, I mean schools for Natives?
Mr. VAN ZvL: At the present time, Mr. President, there is only one,
which goes as far as Standard X and I believe steps are being taken to
offer the matriculation courses also at other centres, but for the present
people are recruited from all over the Territory to this one centre.
Mr. President, of course, we should not lose sight of the fact that the
total population of that vast country is just over half-a-million and, so
far,it did not seem necessary to have more than one centre, because all
those who wanted the secondary education could have gone there; their
facilities were adequate.
The PRESIDENT:Does any other Member of the Court desire to put a
question to the witness?
I only have one question to put to you, Doctor. In the examinations
-the matriculant standard-is there any reason to believe that if
a non-White candidate is competent and answers his papers correctly
he is down-graded because of his race?
Mr. VAK ZvL: No, it is not possible, Mr. President, because their
names do not appear on their examination papers. They write under
numbers. So the examiner will, for all practical purposes, not know
whether a candidate is White or non-White.
The PRESIDENT:That is all I wanted to ask you, Doctor. Mr. Rabie,
do you wish to put any questions in re-examination?
Mr. RABIE: I have no re-examination, Mr. President and, with your
leave, the Respondent's next witness will be Professor Rautenbach. He
will be led by my learned friend, Mr. Grosskopf. SOUTHWESTAFRICA
The PRESIDENT:Doctor, you are released there from further attend-
ance. Is there any objection from l\frGross?
Mr. GROSS:No, Sir.
The PRESIDENT:You will be released from further attendance, Sir.
Mr. Rabie, will you call your next witness?
Mr. GROSSKOPFM : ay it please the Court, Mr. President, Professor
Rautenbach is the next witness. His evidence relates to Applicants'
Submissions 3 and 4 and as set out in a letter to the Agent for Applicants,
of which a copy has been sent to the Deputy-Registrar on 30 September.
Professor Rautenbach's evidence will be directed to the following points,
and I quote, he will testify on "higher education, and the consequences
of applying a policy involving an absence of separation in the said
sphere". He will also make "a comparison between policies regarding
higher education in South Africa and recent trends elsewhere". May I
ask, Mr. President, that Professor Rautenbach be allowed to make both
the declarations provided for in the rules, that is, both as witness and as
expert.
The PRESIDENT:Let the witness make the declarations.
Mr. RAUTENBACHI:n my capacity as a witness, I solemnly declare
upon my own conscience that Iwill speak the truth, the whole truth and
nothing" but the truth. In my capacity as an expert, I solemnly declare
upon my honour and conscience that my statement will be in accordance
with my sincere belief. .
Mr. GROSSKOPFP : rofessor Rautenbach,.'your full names are Caspar
Hendrik Rautenbach?
Mr. RAUTENBACH T:hat is so.
Mr. GROSSKOPFY : ou hold the following degrees: the degree of B.A.,
which you attained in I92r. Is that correct?
Mr. RAUTENBACH T:hat is correct.
Mr. GROSSKOPFB : .D., in I923?~
Mr. RAUTENBACH T:hat is correct-in November 1923.
Mr. GROSSKOPFM : .A., also in 1923?
Mr. RAUTENBACH J:uly 1923.
Mr. GROSSKOPFT :hen you hold a Doctorate in Philosophy, which you
attained at VictoriainI932?
Mr. RAuTENBACHT : hat is correct.
Mr. GROSSKOPFA : nd you have an Honorary Doctorate of the Univer-
sity of Montreal?
Mr. RAuTENBACHY : es. I received that in I958.
Mr. GROSSKOPFW : hat is your present occupation?
Mr. RAUTENBACHM : y present occupation-my major office-is that
·of Rector and Vice-Chancellor of the University of Pretoria, and outside
ofthat another office which I hold is that of Chairman of the National
Advisory Education Council of the Republic of South Africa, and another
office I hold is that of Chairman of the Council for the Governing Body
of the University College of the North.
Mr. GROSSKOPFB : efore we go over to that Professor, will you tell the
Court something about the University of Pretoria? What is its medium
of instruction? ·
Mr. RAUTENBACHT :he medium of instruction of the University of
Pretoria is Afrikaans. lt has been that since 1932.
Mr. GROSSKOPFA : nd what is the size of the University?
Mr. RAUTENBACHT :he number of students now is 10,200, and the WITNESSES ANDEXPERTS
327
staff (the whole staff, including administrative staff) is just over I,ooo,
with close on 700 members of teaching staff, n7 departments and II
faculties.
Mr. GROSSKOPFH : ow long have you been on the staff of the University
of Pretoria?
Mr. RAUTENBACHM : y first appointment was in August I923-that
means, 42 years.
Mr. GROSSKOPFA : nd what was the nature of that appointment?
Mr. RAUTENBACHI: was appointed a part-time lecturer in philosophy
in I923 and frorn 1924 onwards Ihad a full-time appointment.
Mr. GROSSKOPFA : nd what othér offices did you hold on the academic
staff ofthe University?
Mr. RAUTENBACHO : n the academic staff of the University,I became
Professor of Moral Philosophy and also Professor in the Faculty of
Education ..for philosophy of education, and also lecturer in the Faculty
of Divinity on Christian Ethics. Later on, I became Dean of the Faculty
of Arts and after that I was appointed, on 9 April I948, to my present
office of Principal, or Rector, as the Afrikaans name is-the old Latin
name-and Vice-Chancellor of the same University.
Mr. GROSSKOPF:Now, are you also a member of the Council of the
University of South Africa?
Mr. RAUTENBACH I:have been a member of the Council of the Univer
sity of South Africa-1 was a member for a number of years but under
the Act 1·can send an Alternate and for the last two years I have been
sending an Alternate, but I was a member for about I2 to 14 years.
Mr. GROSSKOPF:Will you just tell the Court briefly-you will be
coming toit later-what exactly the University of South Africa is?
Mr. RAUTENBACHT : he University of South Africa is an examining
and degree-granting University in the first place, but in the middle
forties,the division for teaching by medium of the post or by corre
spondence was instituted and that has now become the so-called division
of teaching. lt is also the university in which all the students of the State
colleges are registered, because that at the present moment is the
University which is their degree-granting institution.
Mr. GROSSKOPFY : ou have also told the Court that you are the Chair
man of the Council of the University College of the North. \Vill you just
tell the Court briefly what that college is? Yon will also be coming to
that later.
Mr. RAÙTENBACHT :he University College of the North is one of five
State colleges established under the Act of 1959. It opened its doors in
early March I960. It is the University College which, according to the
decision of the Minister of Bantu Education, is the college for the Sotho
speaking communities, also the smaller Venda and Tsonga groups. It is
situated 180 miles north of Pretoria, where I reside, it is I8 miles from
Pietersburg, it is just over the border of one of the Bantu homelands.
Mr. GROSSKOPF:Are you also a member of certain inter-university
associations, such as the Statutory Committee of Principals?
.M.r.RAUTENBACHY : es, by the Act I have got to be a rnember of the
Committee of Principals. I was its first elected chairman in the early
fifties and . . . ·
Mr. GROSSKOPF:... and were you a member of the Executive
Committee of the Association of Universities of the British Common
wealth?328 SOUTHWESTAFRICA
Mr. RAUTENBACHY : es, I was a member of the Executive Committee
of the Association of Universities of the British Commonwealth, as it was
then called-it has since become Commonwealth without the British
for five years.
Mr. GROSSKOPFA : re you a member of any scientific bodies?
Mr. RAUTENBACHY : es, I am a member of the Scientific Advisory
Council ta the Prime Minister of the Republic of South Africa. I have
been a member of the Council for Educational and Social Research since
1948 and since 1954 I have been Chairman appointed by the Minister of
Education, Art and Science of its General Purposes Committee. I am also
a full member of the South African Academy of Arts and Science and
varions other bodies.
Mr. GROSSKOPFN : ow dealing specifically with educational bodies, are
you a member of the National Advisory Council for Adult Education?
Mr. RAUTENBACHY :es, I have been a member for many years.
1\fr. GROSSKOPFA : re you Chairman of the National Advisory Educa
tional Council?
Mr. RAUTENBACH Y:es, I have been Chairman of the National Advisory
Educational Council since its inception in 1963.
Mr. GROSSKOPFV : Vhatare the fonctions of this Council?
Mr. RAUTENBACHT : he fonctions of this Council are to advise the
Minister of Education or, through him, other Ministers, on the broad
general principles of education for the country as a whole-co-ordinate
education in the country as a whole in the sphere of primary and second
ary education and tertiary education outside the university sphere. The
university sphere is excluded from that Council. '
Mr. GROSSKOPFA : re you also the Chairman of the National Committee
forthe Co-ordination of Education of all Race Groups with the Changing
Economy?
Mr. RAUTENBACHY : es, that is an ad hoc committee which was ap
pointed after October 1963 and it is still functioning and will still fonction
for some years. I am chairman of that committee also.
Mr. GROSSKOPFA : re you the author of any books or publications?
Mr. RAUTENBACHY : es, I am the author of some books, one book on
moral philosophy and one on the epestimology of microphysics-of all
things-and then I am the author of about 35 articles on varions aspects
of university-its organization, the organization of teaching, the fonc
tions of the varions bodies-faculty, executive committee of serrate,
senate council--on the access to higher education, more orless the major
facets of the university as such. Outside of that, I was also the author of
a pamphlet on the struggle for the mother tongue.
Mr. GROSSKOPFN : ow, dealing specifically with South West Africa, do
you have any expert knowledge about circumstances in that Territory?
Mr. RAUTENBACHA : s far as I could obtain knowledge from reading
and studying, I gained some knowledge of South West Africa.
Mr. GROSSKOPF:Do you have sufficient knowledge to express an
opinion as to whether it would be practical to start a university college
or universityor some similar institution iSouth \Vest Africa?
The PRESIDENT:I do not think that is a question you can putto the
witness. He cannot answer to that, the Court must answer to that. The
witness gives evidence of hisxpert experience and the Courtis the judge
of his degree ofxpert knowledge.
Mr. GROSSKOPFA : s you please, Sir. WITNESSES ANDEXPERTS
Mr. RAUTENBACHM : ust I reply to the question?
The PRESIDENT: No, the question will be put in another form.
Mr. GROSSKOPFD : o you know what the population of South West
Africa is?
Mr. RAUTE:s'BACH Y:es, ?1Ir.President, it is just over half a million.
Mr. GROSSKOPFD : o you think that it would be practical to establish a
university institution in that Territory?
Mr. R4.UTEXBACHW : eilit is not practical at the present moment I
should think, but it is a possibility in the future. At a certain stage of
developmcnt, I hold that half a million people could have a university,
but at a later stage of development, not at the prescnt stage.
Mr. GROSSKOPFD : o you know what facilities are provided for higher
education of students coming from the Territory?
Mr. RAUTENBACHF :or highcr education of students coming from the
Territory, as far as \Vhite students, or European students, are concerned,
they can corne to any university in the Republic itself bccause there is
no institution for higher education of that type in the Territory. As far
as other st:udents are concerncd, thcy can attend the various colleges
-State colleges-and the Bantu in whom I am particularly interested
can, with the permission of the Minister, enter one of the three. I think
at the present moment that the Minister is inclined to send them to the
Bantu college of the North.
Mr. GROSSKOPF:Now, you have referred to various institutions for
higher learning in the Republic of South Ahica; could you give the Court
a brief surnmary of the history of institutions for higher education in
South Africa?
Mr. RAuTENBACH:The first significant Act was that of the British
Parliament in 1873 establishing the first university institution in South
Africa. That was the old University of the Cape of Good Hope. Itwas a
purely examining and degree-granting institution. Out of that body grew
various universities under the Act of 1916. Under the Act of 1916, fully
fledged universities emerged, those of Stellenbosch and Cape Town and
the third federal university of South Africa, which, at that time, had, I
think, stwen constituent colleges. Again, these constituent colleges, when
they came to maturity, became full-fledged universities in turn and by
1953, more or less, there had been eight fully fledged residential univer
sities and the University of South Africa as a degree-granting and
examining body. That is as far as higher education in general is concerned
as regards the Whites.
In 1915, a start was made with the Native college at Fort Hare. lt
actually opened its doors on 8 March 1916 and, as the name signifies, the
word "Native" was used in those days, it was a college which was
supposed ta serve the Bantu. That college actually, that is in sections,
served bath secondary and tertiary education. sccondary and higher
education.
In 1923, under the Act, it was declared to be an institution for higher
education. In the middle thirties it dropped the secondary part and by
1936 it only retained the university part. Now, this College also prepared
students for the examinations and degrees and diplomas of the Univer
sity of South Africa. Shall I carry on about the history of this College?
.!\Ir.GROSSKOPFY : es, if you please.
Mr. RAUTENBACHT : he College retained that status and in any case
special relations emerged in the long run between that College and the SOUTHWESTAFRICA
330
University of South Africa, ·even as some universities in Africa had
special relations with the University of London and still have up to the
present moment. This remained up to 1951 when the College was trans
ferred to Rhodes University, situated in Grahamstown, 60 miles away,
as a constituent collegeprotem, and under the Act of 1959 (a special act)
it was changed and became one of the three colleges for Bantu students
as from the beginning of 1960. That is the history of the Native College
of Fort Hare.
Mr. GROSSKOPF\V : ere there any other university institutions providing
higher education for Bantu students prior to 1959?
Mr. RAUTENBACH Y:es. Up to 1959 all the universities in South Africa
were open universities, which means to say that with the approval of
Council and subject to the applicant having the necessary entrance
qualifications, he or she cotùd enter any one of the universities. There
hadalso been established apriva teinstitution ofaiversitytypein the vici
nity of Pretoria under the name of Kolege ya Bana ba Afrika, wlùch means
College ofthe Children of Africa. That private institution, of which I was
a supporter, prepared students for the examinations of the University of
South Africa and it was merged into the Bantu College of the North as
from 1 January 1960.
· Mr. GROSSKOPFD : o you know of any facilities specifically for medical
training?
Mr. RAUTENBAClI:Yes. In the early fi.Hies a medical school, or a
medical factùty, had been established as a faculty of the University of
Natal and it was a closed faculty providing for the training of Indian,
Coloured and Bantu students in medicine. It is still a closed facu1ty and
it is still part of the University of Natal up to the present moment.
Mr. GROSSKOPFN : ow, taking the position as at 1959, could you tell
the Court how many Bantu students were enrolled at these various in
stitutions in that year?
Mr. RAUTENBACH I: 1959 the exact number of 300. 300 were enrolled
at the Universities of Witwatersrand, Johannesburg, the University of
Cape Town and the University of Natal. 491 were enrolled in the Bantu
College at Fort Hare and a small number were enrolled in the private
institution called Kolege ya Bana ba Afrika.
Mr. GROSSKOPFN : ow, Professor Rautenbach, would you express your
views as to the merits or demerits of the system and the facilities of
university education for the Bantu as they existed prior to 1959? First
I should like you to comment, if you will, on the extent of the facilities
available.
Mr. RAUTENBACH T::he facilities available, as I have already testified,
were the facilities of the open university, plus the Bantu College at Fort
Hare, plus the University of South Aftica, on the purely academic side.
But outside of the Bantu College at Fort Hare there were, in 1959, few,
ifany, residential facilities. ln any case, if there were residential facilities
these were apart or separate. The state of affairs prior to 1959, or up to
1959, wasasfollows: in the case of the Bantu College at Fort Hare the
student had a complete opportunity of being a student, there only being
Bantu, Coloured and Indians so there were no restrictions. In the case of
the Universities of Cape Town and Witwatersrand the classes were
integrated classes,but outside of that, as regards ath1etics, social amen
ities, these were separate. The University of Natal had its own arrange
ment. This University had internai separation and had separate classes WITNESSES AND EXPERTS 331
for its White students, for its Bantu students and for its Indian and
Coloured students as a third group.
Mr. GROSSKOPF: To what extent would you say that the Bantu took
advantage of, or were admitted to, those facilities?
Mr. RAUTENBACH: They were admitted under certain limitations. In
the case of the University of Natal they were not admitted to the
Faculty of Science and Mathematics because thiore were too few places
to accommodate students outside the White group. In the case of the
other universities, they were admitted subject to certain limitations.
Now, in the case of the Mcdical Faculty, University of Natal again,
Bantu students were then and are still admitted on the basis of, firstly,
their matriculation result, their matriculation aggregate; secondly, the
points scored in mathematics; and thirdly in English, which is the
medium of instruction, and fourthly as a result of an interview to which
ailstudents are subjected. So that, subject to there being student places
or vacancies, there was a fairly wide range of admission prior to 1959.
The limitations were imposed in each case by the university itself, subject
to the number of student places and in the post-war period, .Mr.President,
great pressure was exerted on the universities, as in all countries. After
the ex-servicemen had gone through university, by 1953 or 1954, we
became aware of the fact that the numbers had not been going down but
a new generation had arrived and the result is that great pressure was
exerted on the facilities at the universities in the late fifties.
Mr. GROSSKOPF: What influence, if any, did this pressure have on the
admission of the number of Bantu students admitted to the universities?
Mr. RAUTENBACH: I certainly think that this pressure limited the
number of students admitted to the Medical Faculty at the University
of Witwatersrand and the Dental Faculty, because there is a numerus
clausus as regards these faculties. They can only train a certain number
of medical students and dentists in the clinical years.
Mr. GROSSKOPF: Do you think that these limitations affected all
students on a basis of equality or not?
Mr. RAUTENBACH: I am not quite clear in my mind as to what you mean.
Mr. GROSSKOPF: As between the Bantu students and the White stu
dents for instance?
Mr. RAUTENBACH: Yes, I think that the situation in the open univer
sities was detrimental to the best interests of the Bantu students and I
give the following reasons for that.
In the University of Natal where, up to the present moment, Indian,
Coloured and Bantu are trained in medicine, the training covers seven
years and not six years as in the case of other universities. The University
of Natal gives as its reasons the following: the low aggregate for matric
ulation, the cultural Iag, the language lag as regards the medium of
instruction,the low marks obtained in mathematics in matriculation and
some other related reasons. The result is that in the University of Natal
the first year of study is not, as in other universities, devoted to physical
science, physics and chemistry and botany and zoology, but the first year
is devoted more to what we call "remedial work" .
.Mr. GROSSKOPF: Now, why is this remedial work necessary?
Mr. RAUTENBACH: The remedial work, according to the view ex
pressed by the committee for selecting students at the U_niversity of
Natal, must be done because there is a cultural lag, that 1s the word
used there, and a language handicap.332 SOUTHWESTAFRICA
Mr. GRoSSKOPF:Now, what do you mean by "cultural lag" and to
what do you ascribe it?
Mr. RAuTENBACHT : hat in general means that in the case of the Bantu
he has, as a rule, not yet corne from a home where books are often seen
or read or from where there is a library, or participation in intcllectual
life to any great extent. That is a cultural lag---one cultural lag in this
respect. ·
Mr. GRossKOPF:Mr. Rautenbach, you were commenting on the system
of university education, particularly for Bantus, as it existed prior
to 1959. Could you tell the Court to what extent did the so-called "open''
~niversities provide facilities for extra-curricular activities of the Bantu
students attending them?
Mr. RAuTENBACH:The cxtra-curricular activities,referring in this
case to sport and athletics, social amenities, if there were any, were
provided separately. They were not allowed to become members of the
various athletic. associations-football and tennis, etc.; they were not
allowed to participate in inter-university activities of that kind; so that
outside of the purely academic there was separation on these campuses.
Mr. GROSSKOPFC : ould you tell the Court whether attendance at the
open universities had any effects, and if so what effects, on the relation
ship .between the Ban tu students attending these universities and their
respective communities?
Mr. RAUTENBACHI:n general the impression was that attendance at
open universities tended towards creating a gap between thcir own
communities and thcmselves, taking them out of their own sphere and
bringing them into a sphere which in man y respects was foreign to their
own people. .
Mr. GRoSSKOPF:These various factors you have mentioned, Professor
-what effects, do you think, did they have on the number of Bantu
graduates produced by these universities?
Mr. RAUTENBACHT :he following factors I think limited the number
of Bantu students attending the universities: firstly, the number of
places at the universities; secondly, the relatively high expense at these
universities. I should mention here that in 1959 the Bantu College of
Fort Rare, which was a separate institution, had more students than the
open universities combined; in other words, the Bantu availed themselves
more of the separate opportunity in a separate institution than the
opportunities on the open campuses.
Mr. GROSSKOPF:You mentioned the expense; were therc any other
factors of relevance, you think, as regards the number of Bantu graduates
at the open universities, or from the open universities?
Mr. RAUTENBACHY : ou say the numbcr of Bantu graduates?
Mr. GRossKOPF:Yes.
Mr. RAUTENBACHT :hose actually obtaining degrees?
Mr. GRoSSKOPF:Yes.
Mr. RAUTENBACHN : o,Icannot think of other relevant matters here
at the present moment.
Mr. GRoSSKOPF:What demand was there for Bantu graduates?
Mr. RAuTENBACH:There was an ever-increasing demand for Bantu
graduates, particularly since more or less 1953, a need so far exceeding
the provision and so far excecding the numbers coming forward that I
think educational leaders by the late fifties had realized some other new
type of provision should be made. i\Iay I mention here that after the WITNESSES ANDEXPERTS
333
Bantu Education Act of 1953 was implemented as from 1954 onwards, it
became clear that no great breakthrough could be made in the sphere of
secondary education unless more gradua tes were coming forward or more
teachers trained for teaching on the secondary level, and that was one
of the very important matters, one of the very important reasons, why
serions efforthad to be made to extend the facilities for the training of
Bantu, Coloured and lndian, but particularly the Bantu. Secondly, with
the implementation of the new dynamic policy for the development of
Bantu homelands, economic development, etc., more top-level adminis
trative officiais were needed, and these also had to be supplied by the
universities. It is generally taken that the universities provide for
leadership.
Mr. GROSSKOPFT :he comments you passed on the provisions prior to
1959-what solution was proposed for thcse varions criticisms you have
mentioned?
Mr. RAUTENBACHT : he reply to criticisms and the plan to meet the
diffi.culties are to be found in the University Extension Act, Act No. 45
of 1959, and that is the Act through which the State university colleges
were created as from 1960 onwards.
Mr. GROSSKOPFW : hich university colleges were created in terms ofthis
Act?
Mr. RAUTENBACHF :our university colleges were created in terms of
this Act: the Ban tu University College of the North, No. I; the University
College at Ngoye, in Zululand, No. 2; the University College of Natal for
lndians; the University College of the Western Cape for Coloureds; and
what I mentioned already in my evidence today, the Bantu College of
Fort Hare became then the University College of Fort Hare.
Mr. GROSSKOPFH : ow is the administration of these university colleges
organizedr
Mr. RAUTD!BACH:I take it that by the word "administration" you
mean how are these governed, what is the form of govcrnance? According
to the Act the university consists of (1) the Council, which is a body
corporatc; secondly, an Advisory Council, the Advisory Council con
sisting of at least eight members drawn from the ethnie groups who have
an interest in that university college; thirdly, a University Senate ad
vising on instructionand the discipline of students, with its committces,
generally called faculties or by other names; fourthly, an Advisory
Senate consisting ofthe Heads of Departments helonging to those ethnie
groups and such other lecturers as the i\1inister appointcd to the Advisory
Senate; then the Rector as the chief executive officer of the university,
and in the Act, as in ail Acts pertaining to universities, ail the professors
and lecturcrs and members of the teaching staff and students are
mentioned as components of such a university rollege.
Mr. GROSSKOPF:Which students attend these varions university
colleges? Could you just tell the Court?
Mr. RAUTENBACHA : ccording to the Act, the l\Iinister can determine
which ethnie groups shall attend the varions university colleges. The
University Collegc at Durban is reserved for Jrnlians; the Western Cape
for Coloureds; the medical faculty of the University of Natal for lndians,
Coloureds and Bantu; the former University College of Fort Rare for
Xhosa-speaking people; the University Collegc at Ngoyc for Zulu and
Swazi and the University Collegeof the North for Sotho·speaking peoples,
for Venda and Tsouga.334 SOUTH WEST AFRICA
Mr. GROSSKOPF: Now in addition to those colleges, what other univer
sity institutions may be attended by Bantu particularly or other non
Whites?
1'-1r.AUTENBACH: AH universities may be attended by non-Whites,
subject to firstly, the Minister granting permission; secondly, their
qualifying for entrance; thirdly, the council of that university allowing
them to register and there are at present still, I think, r8r registered at
three or four of the full universities.
Mr. GROSSKOPF: Now dealing particularly with the university colleges
established particularly for the Bantu people-what is the language of
instruction?
Mr. RAUTENBACH: The language of instruction outside of the Bantu
languages is English at the present time. In the case of the college for
the Coloured, the language is Afrikaans; in the case of the college for the
Indians-English.
l\frGROSSKOPF: Could you tell the Court what the nature and quality
of the material facilities at these colleges are?
Mr. RAUTENBACH: The material facilities at the College of the North
are excellent-the lecture rooms which I have seen and have often
inspected; the laboratories, in fact my university people acted as advisers
to the architect in the case of the laboratories; the new library is good.
In the case of Ngoye, there are also new buildings; in the case of the
College at Fort Hare buildings have been added; in the case of the
lndians, the y are still housed on Salisbury Island but a beautiful site has
been selected in Durban of some 450 acres and they will be getting their
new buildings there and they could corne in there by 1967; in the case of
the Western Cape College, these are also new buildings-the first build
ings were erected for teaching up to the first degree, but with the develop
ment of the post-graduate level the laboratories had to be extended.
Mr. GROSSKOPF: Ho,v would you say these various facilities compare
with those of the older universities in South Africa?
Mr. RAUTENBACH: They compare very well, of course, because they
are new and when the laboratories were erected, the architect and his
advisers visited all the universities to get the latest ideas as regards
equipment and building of laboratories, etc.
Mr. GROSSKOPF: What courses are offered at these university colleges?
Mr. RAUTENBACH: The university colleges started off chiefly with
courses in the faculty of Ietters and philosophy, the faculty of arts as it
is also known, the faculty of pure science and mathematics and the
faculty of education. A1though in the case of Ngoye there were only two
faculties at the outset, letters and arts, and education, a third has been
added. ln the case of Fort Rare, divinity has been added and a full legal
faculty has been established leading up to the LL.B. degree-that is the
degree taken after the first degree. All in ail, I think there are about 58
subjects taught at these colleges, all subjects, taught anything from one
to three years, so that student courses I suppose would amount to some
thing like 240 or 250. Now in my own university there are just over 925
student courses, but, of course, this is very much older, and courses are
being added from year to year.
Mr. GROSSKOPF: Now, there has been reference from time to time to
the training of engineers-could you tell the Court what facilities are
available for training of Bantu engineers?
Mr. RAUTENBACH: The facilities available in South Africa at present WITNESSES AND EXPERTS
335
are the facilities attached to the White universities at Cape Town,
Witwatersrand, Natal, Pretoria and Stellenbosch. These are the only
facilities forraduate training in engineering, for training of engineers
to acquire a degree, and students could attend these ifthe Minister were
to allow them to do so. According to the statistics I obtained, the Minister
did give permission to one student in 1962, and I made furthcr enquiries
and it became clear it was a post-graduate course he intended attending.
There were a number of applications for attendance at open universities,
and where the science faculties of the Bantu colleges provide the training
for the first year of engineering, physics, chemistry, applied mathematics,
etc., the Minister referred these applicants to these various colleges. A
survey was made atone time as to the need for instituting training for
engineers at the Bantu colleges. It was found that five Bantu students
intended taking up engineering as a career but before any real serious
preparations could be made as from the second year onwards, these
applicants had already selected other professions. I only know of one
trained civil engineer, a Bantu, in South Africa and he has left South
Africa for Swaziland recently.
l\lrGROSSKOPF: Now proceeding to the staff of the university colleges,
could you first tell the Court how the staff is appointed?
Mr. RAUTENBACH: The staff is appointed, l\Ir. President, after ap
plications have been solici~ed and these are advertised in many papers
for some time, perhaps a month. Then a selection committee is appointed
by the principal, consisting of the head of that department or a closely
related department, the head of the opposite nurnber in the University
of South Africa, one or two experts drawn from other universities. This
committee for selection then lays its report before the senate of the
university college concerned. The senate then makes a recommendation
to the university council and the council then makes a recommendation
to the Minister. The process then is-the post is advertised, the com
rnittee ofexperts is appointecl, the committee of experts recommends to
senate, senate to council, council to the Minister, and the Minister makes
the appointment.
Mr. GROSSKOPF: Now what isthe qualitv of the staff that has been ob-
tained? ·
Mr. RAUTENBACH: The quality of the staff is excellent. Many of the
members of staff hold doctorates of universities of the Continent,
American universities, British universities, South African universities. I
have even found that in one department, there are three out of five
members of the teaching staff holding doctorates, others hold master's
degrees or honours degrees, more than one master's degree and others
hold bachelor's degrees, but these are usually appointed to junior lectur
ships until they improve their qualifications and then they are promoted
to higher posts.
l\frGROSSKOPF: To what extent has it been possible to make use of
Bantu intellectuals in staffing these university colleges?
Mr. RAUTENBACH: At the outset, we refer to 1960, a survey was made
of the available Bantu academics, or men and women of promise, and a
number were selected, but none was appointed to a higher post than a
senior lecturer and none was appointed at that time to the headship of
a department. Since then, the following has happened. In the Bantu
College at Ngoye, of the 50 members of staff, nine arc now Bantu, one
holds the rank of professor and head of a department. Of the 69 members336 SOUTHWESTAFRICA
of the teaching staff at the University College of the North, 12 arc Ban tu
and, of these, two are heads of departments, one with a rank of professor
and the other senior lecturer and, in the case of Fort Rare, of the 89
members of staff, 15 Bantu have been appointed and, of these, one is
professor and I think there are a number who are heads of departments
with the rank of senior lecturer.
Mr. GROSSKOPFN : ow, Professor Rautenbach, you have testified about
the cultural life that influences the performance and admission of
students at the old open universities. To what extent is attention given
to that in these new colleges?
Mr. RAUTENBACHA : ttention is given to that in these new colleges at
the present juncturc, by the very fact that the numbers are small and,
in dealing with small numbers of students (comparatively small numbcrs)
and with a very favourable staff-student ratio, it is possible to give more
persona! and individual attention to students than where you have large
numbers, such as at my own university. Secondly, the men and the
women who teach in these universities get to know how to prescnt the
material or the subject-matter in such a way that learning becomes more
efficient. One should bear in mind, Mr. President, that these students are
stili prepared for an external examination and the external examination
is the same as that taken by thousands of \Vhite students, and the
teacher, lecturer, or professor has to keep on his tocs in order to get a
fair number of passes in his class, so he has got to adjust his teaching to
that kind oflag, and may I qualify "cultural lag" by saying that it is the
intellectual cultural lag, it is nota lag in other spheres. Cultural lag does
not mean an inferiority, by the way, it simply means that owing to
environment there will be Jess advantages accruing to that individual
than to others.
Mr. GROSSKOPF:Will you tell the Court what attention is given to
these students? How do the pass rates compare, in tact, with those
elsewhere?
Mr. RAUTENBACHT : hey compare very favourably. The first year is
regarded as the most difficult year in South Africa and ail over the world.
In 1961, 1962, 1963 and 1964, in only one year was the first year pass
rate under 60 percent. The average is slightly above 60 percent., which
is the same as at my university. At my university it is a steady 62 per
cent. It is just over that, I thinkIt is just about that-the average over
the first five years.
Asregards the second and third years, I can also give you the statistics.
Itis the same. Now degrees în South Africa, Mr. President, are three-year
degrees-the first degrees, B.A. and B.Sc.-not four years as in the case
of America. It is very much the same as at my own university-75,
76 per cent. in the second year and over 80 in the third year.
Mr. GROSSKOPFP :rofessor Rautenbach, how do the fees at the univer
sity colleges compare with those in the other universities?
Mr. RAuTENBACH:ln no case does the composite fee (the composite
fec in this case meaning a fee including both residential facilities and
teaching) exceed frno (the equivalent off rno English). In the case of
the European universities, both board and lodging itself is about f 150
to f160 English and the tuition fees apart may be anything up to over
rno guineas each per annum. As regards other African States, in Liberia,
or I think, Nigeria and others, the composite feethere isthe equivalent of
f165Englishand upwards. It is,thus, half of that in most African countries. WITKESSES ANDEXPERTS 337
Mr. GROSSKOPF\:Vhat facilities are available for financial assistance ·
or scholarships, or things of that sort?
Mr. RAUTENBACHG : overnment bursaries and government loans are
provided. Besides, private firms, municipalities and other bodies, such as
the Shell Oil Company, have corne forward with loans, scholarships,
bursaries and prizes and, in the case of some of the colleges, the number
of bursaries and loans available exceed the number of students and that
is, of course, a very favourable situation.
Mr. GROSSKOPF' Y.ou told the Court that, prior to I959, in the open
universities there were few facilities for extra-curricularactivities of
Bantu students. Could you compare the position with the new Bantu
university colleges in that respect?
Mr. RAUTENBACHY : es.In the new Ban tu colleges, the student is in
the same privileged position as the \Vhite students are in their universities
and university colleges, enjoying a full lifc, enjoying a full academic life
and also in the extra-curricular and co-curricular sphere-debating
societies, literary societies, scientific associations, sport and athletics, a
student is a whole man or a whole woman on his own campus.
Mr. GROSSKOPFH : ow does the number of students in the new Bantu
colleges compare with the number of students previously enrolled at the
open universities?
Mr. RAUTENBACHA : s I testified earlier this afternoon, the number at
the open universities in 1959 was precisely 300. The number at the
colleges today is I,Io7, minus I81-that is, somewhat over 900-940 or
950. There are 950 students more or less at these three colleges for the
Bantu ethnie groups.
Mr. GROSSKOPF:And how many Bantu students are there.at other
university institutions?
Mr. RAUTENBACHA : s I just mentioned, there are still at the present
moment 181 in the three universities Johannesburg, Cape Town, and
Natal, and the Natal students, of course, inclrnle the 80 students in the
medical faculty. Then, the number is given in the statistics of the
University of South Africa as being 1,500-just over 1,500 this year, but
I think that includes the degree students at the Bantu university colleges,
who would probably be in the neighbourhood of 700-800, the others being
diploma students.
Mr. GROSSKOPF:What would your projection be of the number of
students in these institutions over the next number of years?
Mr. RATJTENBACH T:he projections which have been made so far are
as follows for the Bantu. That, in the case of the Bantu College of the
North, in Ngoye and Fort Rare the expected increase is somewhat more
than double the present number in the first five years and, with the
doubling of the numbers again to 1975, and again doubling the numbers
to 1980. So that by 1970 the projection there will then be close on 2,000
students; by I975, 4,000 and, by 1980, 8,000.
Mr. GROSSKOPFO : n what is this projection based?
Mr. RAUTENBACHI:n one case a mathematical formula was used. In
the other cases, I think commonsense was used and a study of the
number of secondary school pupils, the graduai increase in the number
of primary school pupils, these going on to secondary schools and then
the steep rise, which is now taking place in the number of matriculants.
There has been a sudden, steep rise in the number of matriculants. The
matriculation is the entrance examination to universities and in I964 SOUTHWESTAFRICA
the indications are that we have this steep rise continuing for many years
to corne.
Mr. GROSSKOPFY : ou have already testified that by 1959 there was a
substantial demand for Bantu graduates. What is the position at the
moment?
Mr. RAUTENBACHT : here is an ever-increasing demand for Bantu
graduates in every sphere .
.Mr.GROSSKOPFD : o you know whether those who have been graduated
have succeeded in obtaining gainful employment?
Mr. RAUTENBACH :es. Every one of these has succeeded in obtaining
gainful employment. Of course, the Bantu colleges have selected the best
of these to appoint them to posts in the colleges themselves becausc
they are the future academics.
Mr. GROSSKOPFP : rofessor, what role do these colleges play in the
community life of the various communities?
Mr. RAUTENBACH M: r. President, I am best acquainted with the Bantu
College of the North, which I visit, as Chairman of the Council, from time
to time. I also attend public events there, graduation ceremonies,
visitors' days, prize-giving days and occasions of that nature on that
campus, and these events are attended by the Bantu from the neighbour
ing township, from Pietersberg and from the Bantu area in which it
stands. The University CoJJegeis next door to the headquarters of the
Commissioner-General, and when the headmen or Bantu leaders corne
for a meeting there, as a rule they also visit the College. It is near one of
the main roads in the Transvaal and it is visited by many people. Re
cently we had a visit there of, I think, 76 Bantu headmen, coming from
South West Africa.
Mr. GROSSKOPFT :o what extent do you think these colleges are being
accepted by the various communities?
I1fr.RAUTENBACHT :o my surprise and gratitude, they have already
been accepted. In this respect, that the students are reg3:rding th1s
particular college as their college, or identifying themselves with that,
their college, the Bantu College of the North. The Advisory Council has
already shown that they accept it as their college. The Advisory Council
consists ofBantu intellectuals, of Bantu chiefs or leaders, and somc of
the members of the Advisory Council have given gifts in kind to Univer
sity College. One man, Lekhanjane, has donated a scholarship, or at lcast
a sum of money of r,ooo rand, which is the equivalent of f500 English,
for Bantu students.
Mr. GROSSKOPFH : ave any other gifts been received?
Mr. RAuTENBACHY : es, from the Johannesburg municipality, from the
Pietersburg municipality, the local governments, from the Shell Oil
Company, from Von Schaik's bookstore in Pretoria and a number of
other private undertakings of an industrial or commercial nature.
Mr. GROSSKOPFP : rofessor, do you see any value in the intellectual
contacts on the staffs of these Bantu university colleges between the
various groups represented there?
Mr. RAUTENBACHY : es, on the campus of the Bantu College of the
North there is association as between the White members of staff and
the Bantu members of staff. There is intellectual association. They meet.
They corne to know each other. They corne to appreciate each other. I
think they corne to know each other's problems. I think there is great
advantage in this association. In fact, Mr. President, I have, myself, WITNESSES ANDEXPERT:, 339
gained a good deal of knowledge for my own work in advising the
government on education from association with the Professor of Practical
Education at the Bantu College of the North, Professor Kgnari, whom
I have often 1met in bis office.
Mr. GROSSKOPF:Professer Rautenbach, could you tell the Court
whether the principles applied in these Bantu colleges correspond with
prindples advocated in other parts of the world?
Mr. RAUTENBACHM : ay I have some clarity on that question? What
do you mean by principles? Principles of teaching or training or ... ?
i\frGROSSKOPFY : ou have explained to the Court that at these univer
sitiesattention is given to the particular attributes of the students and
the particular association with their communities. To what extent are
these factors also recognized in other parts of the world?
l\lr.RwTENBACH: I think it is part, although every university has
something of a local or national character, there is something which
every university has in common with every other university in the world
and these broad general principles are accepted and applied at Turfloop
and at the other colleges, the broad general principles.
Mr. GROSSKOPFA : nd as far as their specifi.cimplementation is con
cerned in an African context?
M.r.RAVTENBACH A:s far as their specifi.cimplementation is concemed
in an African context, Ithink that is also done there. There is a strong
department of Bantu languages and with the exception of the Professer
-Professor Endemann-the other four members of his staff are Bantu
from the varions ethnie groups. So that on the staff itself something of
the best, I think, in Bantu lite in these ethnie groups is present on that
campus and these gentlemen, these members of staff, act as a kind of
go-between as between the Rector, Professor Potgieter, and the Bantu
students. It is of great assistance to Professor Potgieter, in guiding his
universitv, to have at his elbow Bantu intellectuals, who can interpret
many problems of the Bantu and can make him acquainted with their
particular angle or their usage, or their custom, although Professer
Potgieter hîmself is a trained social anthropologist. But after all it
requires a man from that very group to bring forward the finesse of that
group.
l\IrGROSSKOPF D:o you know, Professer, whether any other authorities
have emphasized the importance of attuning university education to the
needs of African societies?
l\lr.AUTENBACHM : r. President, yes. Since round about 1962, the
middle African States started studying higher education with a view to
the future. A fi.rstmeeting was held in Addis Ababa, in Ethiopia, and the
next meeting was arranged for Madagascar, Tananarive; but in between,
as a preparation for this further meeting on higher education in the
African States, a Committee was appointed to prepare a report. The
leader of this committee was Professor Carr-Saunders of London Univer
sity; President Weeks of the University of Liberia was one of the people
to assist him and· help him and also Monsieur Capelle of the French
Ministry of Education. These three gentlemen prepared a report for the
meeting at Tananarive in :Madagascar and in an article written after the
meeting, making reference to what happened at that meeting, we fi.nd
that Carr-Saunders writes as follows on this subject ... May Iread that?
1 See p. 396infra. SOUTHWESTAFRICA
340
The PRESIDENT:Is it a particular excerpt with which you agree,
Professor?
Mr. RAUTE:-iBACH Y:es, it is an excerpt with which I agree.
The PRESIDENT:And which your experience qualifies you to express an
opinion upon as to whether it is correct or not?
Mr. RAUTENBAc'HY : es, it is correct. I agree entirely with this state
ment. Shall I read it, Mr. President?
The PRESIDENT:Pleasc do.
Mr. RAUTENBACHM : ay I just look for it for a moment? One of the
statements is the following:
"African universities are still small with consequential high over-
head costs and a policy which diverts students ... "
The PRESIDENT:Yes, i\Ir. Gross?
Mr. GROSS:May I ask what page the witness is reading from?
The PRESIDEST: Yes, certainly. What particular page is it that you
are reading from?
l\IrRAuTENBACH:I think there is a photostatic copy which bas been
made which could be handed in, or I could use that. That was the original.
The PRESIDENT:If you would give the pagination from the original.
Pe1haps you could do so, Mr. Grosskopf, yourself, can you?
i\IrGROSSKOPF :f I could just pass the pamphlet?
The PRESIDENT:Very well. let the witness see the original and give
the pagination.
Mr. RAUTENBACH F:irst, it is p12eof this brochure, Starting A/rican
Universities by A. M. Carr-Saunders.
The PRESIDENT'Y . ou have that,Mr. Gross?
Mr. GRoss: Yes, sir.
Mr. RAUTENBACHA : nd the first reads as follows:
"The calculations made in the previous section were based on the
assumption that so far as African students studying overseas were
concerned there would be no increase in their number. Whv was this
assumption made? It was not because overseas countries have
shown anv reluctance to take more African students; indeed, the
United States is disposed towards generous help for them. It is
because of the attitude takcn by the African States as set out in the
resolution adopted at the Tananarive conference. That resolution
stated that: 'There is a strong feeling in favour of studcnts' com
pleting their undergraduate studies in their home countries. It is
essential for young Africans to acquîre deep enough roots in their
own cultural and social environment during their formative ycars
before coming into contact with strong outside influences.' "
That is one quotation, and the other is on page 23. This relates to the
difference in salaries, but the reason advanced here is this:
"The principlc that children and adolescents are best educated in
their own country has been discussed in relation to Africans. It also
applies to expatria tes."
The PRESIDENT:It also applies to what?
Mr. RAUTENBACHT :o expatriates. That is a new name which has been
given,Ilfr. President, to people sojourning for the time being in African
countries in a teaching capacitvand who have no tenure but are expected
to stay there at the presenttime for not more than sevcn years. There is
also another quotation coming from this pamphlet: WITNESSES ANDEXPERTS 34I
"African universities are still small with consequential highover
head costs, and a policy which diverts students to other countries
and so slows down the growth of African progress is disadvanta
geous. Again, overseas scholarships are likely to fall to the abler
students to the impoverishment of the student body at home. More
generally, it can be said that the urgent task is to build up African
universitieswith all spced, for on thcm so rnuch depends. [And thcn
just to have the whole argument] Universities in other countrics
cannot be substitutes for home universities."
The PRESIDENT:Mr. Gross?
Mr. GRoss: Could I just have the page of that, Sir?
The PRESIDENT:Yes, certainly; just give the page of that, please,
Professor.
l\lr. GROSSKOPFP : erhaps, i\Ir. President, we could give the page num
bcr in a minute and Professor Rautenbach could continue his evidence in
the meanwhile.
Mr. RAUTENBACHI: marked it, l\1r.President, in the other publication,
Minerva, of r963. I marked it in that and not in this.
The PRESIDENT:If Mr. Grosskopf undertakes to let l\fr. Gross know
the pagination before we leave at 6 o'clock, you may continue with the
Professor'i:;evidence.
Mr. GROSSKOPF:I will do that, Mr. President. That was thcn the
opinion of CarreSaunders and you have indicated that you agree with it
in its entirety-with the views expressed there?
Mr. RAUTENBACHT : hat was the opinion of Carr-Saunders, substan
tiated by the resolution of the African States at Tananarive.
Mr. GROSSKOPF:Now, have similar views been expressed by other
persons?
Mr. RAUTENBACH:Yes. The first time I met these views was in the
British Universities' Quarterly of September 1958. An article was written
there undcr the title "The Idea of an African University" by Hodgkin
that is T. Hodgkin. He expressed the following ... l\Ir.President?
The PRESIDENT:Have you got the document, Mr. Gross?
Mr. GROSSKOPFC : ould you give the refcrence to that, Professor?
The PRESIDENT:Have you got the document, Mr. Gross?
Mr. RAUTENBACHI:f you could pass on one of these things, where I
could find that? I have brought along the whole of the article which I
quoted in one of my articles. [ did not note the page.
The PRESIDENT:Mr. Gross? Pardon me, Professor, Mr. Gross?
i\fr. GROSS: In order to save the Court's time, Mr. President, if it
could be made available at the conclusion of the session ...
The PRESIDENT:Yes, certainly, that could be done, could it not, Mr.
Grosskopf?
Mr. GRoSSKOPF:That could be clone. Will you continue please, Pro
fessor Rautenbach?
Mr. RAUTENBACHT :here, Hodgkin writes as follows:
"I could argue that the question, what can Africans reasonably
demand of their universities, can no longer be answered by saying,
quite simply, an cducation of essentially the same type and standard
as is provided in those European universities which have been
accepted as models. This is principally because the climate of
African opinion on such matters has changed and is changing. In a SOUTHWESTAFRlCA
342
variety of fields, the policy of identity, or, as it is sometimes termed,
assimilation has been rejected. The attitude of many, probably
most, African intellectuals, North ofhe Equator at any rate, is that
where institutions have been borrowed from Europe, they must in
the nature of things develop specificaIIy African characteristics."
And then, shall I continue?
Mr. GROSSKOPFI:f you please.
Mr. RAuTENBACH:I also quote here, Mr. President, from Sir Eric
Ashby's opening address on the occasion of the Commonwealth Univer
sities Conference, London, 15 July 1963, which I attcnded myself. Itis
to be found in the Report of the Commonwealth Universities Conference,
1963. It is also to be found in Minerva. Sir Eric Ashby said the following:
"The Asquith Commission, which laid down in 1945 ... "
The PRESIDENT:Mr. Gross?
Mr. GRoss: I am sorry, 11fr.President, but these quotes apparently are
regarded as of sufficient value to be put into the record. I wonder whether
I could have the citation and page-where it is published and any other
information?
The PRESIDENT:Where was it published and who is Sir Eric Ashby so
that we may know something about the persan whose views you are
quoting?
M.r.RAUTENBACHM : r. President, must l tell the Court who Sir Eric
Ashby is?
The PRESIDENT:Weil, I think it would be useful.
Mr. RAUTENBACH S:ir Eric Ashby is at present Master of Clare Collcge,
Cambridge. Sir Eric was Professor at London University, then went to
Australia. After his war service in World \Var Two he was appointed
ScientificAttaché in Moscow. He returned from Moscow and he became
Principal and Vice-Chancellor of the University of Belfast, Northem
Ireland and now, for about six years, has been Master of Clare College,
Cambridge.
The PRESIDENT:That will be enough I think. Perhaps you might now
give Mr. Gross the actual title of the pamphlet you are quoting from, or
the address that he made and the page so that Mr. Gross may have
occasion to be able to refer to it ovemight.
Mr. RAuTENBACHT : he title is "The Diversity of Universities" and, as
I say, it is in the Report of the Congress and it is aiso to be found in
Minerva, but I could not quote that, Mr. President.
Mr. GROSSKOPFP :erhaps we could follow the same course, Mr. Presi-
dent, and give the references to Mr. Gross. .
The PRESIDENT:The page number will be given to Mr. Gross. Very
well. Have you completed your quotation yet, Professor?
Mr. RAUTENBACH T:hank you, Mr. President.
Mr. GRossKOPF:Have you read vour quotation yet, Professor?
Mr. RAUTENBACHY :es, I am through with that.
Mr. GROSSKOPFG : ood. Are there any other similar views that you
could refer the Court to?
Mr. RAuTENBACH:No. These views are of such importance coming
from Africa, from the people who are involved with us in this matter, that
I would hardly go outside Africa for opinions of this kind.
I can also quote, if necessary, a meeting of the United Nations Or
ganization.
Mr. GROSSKOPFW : hich one is that? WITNESSES ANDEXPERTS 343
Mr. RAUTENBACHT : hat is the one held in Geneva and the date, I
think, was 1963. I have the text before me: it is General Session K,
Training of Scientific and Technical Personnel.
l\frGm)SSKOPF:And what is the publication from which you are
quoting?
Mr. RAUTENBACHI:found it in one of the university publications from
overseas-the whole was quoted in this and it is a United Nations
publication. Ihave the whole thing before me. The extract was made as
a whole and there is some reference here. It can be obtained in The
Hague.
Mr. GROSSKOPFI:f you have the text before you, Professor, perhaps
you could just quote the passage you wanted to quote and give the page
of that publication from which you are quoting?
The PRESIDENT:So long as you let Mr. Gross know precisely where
the document is to be found, whether it is this document or the original
or a copy of the original I should say.
Mr. R.AuTENBACHY : es, well all I can add is that there is a footnote
here to the effect that this can be obtained in The Hague and is on page
356 of this booklet I have before me.
The PRESIDENT:What is the name of the booklet?
Mr. RAUTENBACHT : he name of the oooklet is Universiteit en Hoge
School, which is Dutch for "University and High School" and is the
official publication of the Netherlands Universities-the universities of
this country.
The PRESIDENT:You mayas well give us the quotation now.
Mr. RAuTENBACHT : he quotation here is on this page and there is this
Committee of the United Nations, Special Session K/23, Specialized Pro
gramming for Training at Higher Technical Institutes and Universities.
This refers to developing countries.
"By attending the good universities of more advanced countries,
etc.,the students can acquire the necessary knowledge. The main
disadvantage of such a programme is that a rather long stay in
countries with a different way of life, different possibilities of work
and different available means, will instil them with ideas and habits
which will not let them readjust themselves to their original social
environment.''
The PRESIDENT:Mr. Gross?
Mr. GRoss: ]\fr.President, is the witness, may I inquire, reading an
English translation of the original Dutch work?
Mr. RAUTENBACHN : o. According to this publicationit is the original
English.
l\frGRoss: Thank you.
l\fr.RAUTENBACHT :he introduction is v.ritten in Dutch, but the rest
is quoted from the English.
The PRESIDENT:Yes, Mr. Grosskopf?
l\fr.GROSSKOPF:Now, Professor, I just want to make it clear that
these various passages you have read are. in addition to similar ones
which are found in the Counter-Memorial. Is that so?
l\fr.RAUTENBACHT :hat is so, Mr. President.
Mr.GROSSKOPFA : nd do you agree, in general, with the views expressed
in them?
Mr. RAUTENBACHI: agree completely with the views expressed, yes.344 SOUTH WEST AFRICA
Mr. GROSSKOPF: Finally, Professor, I should Iike to ask you your
opinion as to what would happen if the present differentiated provisions
for university education were abolished. Firstly, I would ask you what
your views would be as to what would the results be if there were no
institutions specially attuned to the needs of the Bantu?
Mr. RAUTENBACH: If the policy were to be reversed, in other words,
the old type of open university would become open again in that sense,
we wou]d not only be back where we were in c958, but we would be
saddled with a number of new problems. Since 1960 the students on these
various campuses and, I think, the members of the staff, Bantu, Indian,
Coloured, have led a much fuller life than was possible prior to 1959,
both in the purely academic, in the co-curricular and in the extra
curricular. They have become aware of their rights, they have become
more acutely conscious of their aspirations and the only alternative to
the present would be not to return to 1959 but an entirely new set-up
and that is the completely integrated university. And with a completely
integrated university more problems will arise than we have ever had
before.
Mr. GROSSKOPF: Why do you say that, Professor?
Mr. RAUTENBACH: Because the cultural Iag, and it is the intellectual
part of the cultural, and the language lag has not changed considerably.
The handicap will still be present there. If Bantu students were now to
enter the medical facu1ties at other universities they would have to
compete for the places there, unless you have a numerus clausus, with
White students because it is a matter of entering on merit. The experience
in Natal has been, and is at the present moment, an unfair type of com
petition, and whereas the seven years' training in Natal has proved to
be very satisfactory, at the end of that period the external examiners for
the medical students of Natal University corne from the White univer
sities, from their own universities, and they have found that they apply
the same standard in the final examinations that they use in Cape Town,
Johannesburg, Pretoria or Stellenbosch. They pass on the same standard
and are registered with the same Medical Council.
Now, if we were to return to what we had before 1959, and if every
university becarne an open university, that one special provision, which
has been made to overcome this temporary cultural lag, will fall to the
ground with all its results.
Furthermore, gioups, who have become more group-conscious in the
mcantime, and they have a right to become more conscious, on the same
terms will create a number of new problems for any chief executive
officer of a university.
Mr. GROSSKOPF: Now, that is your view as to what would happen if
the differential universities were entirely abolished. Could you express
a view as to what would probably happen if the present university
colleges were rctained, but if students were permitted an unfettered
choice of attending any university they liked?
Mr. RAuTEKBACH: Mr. President, that is a matter of opinion, but the
climate-tbe whole intellectual climate of the world-has changed to
such an extent that these things no longer happen in the ordinary,
natural way that every man follows his own bent. There is so much
provocation from the outsidc, so much organization, that a number of
problems would be created. These institutions for the Bantu, which we
are trying to build up in every respect to be the equal of university in- WITNESSES AND EXPERTS
345
stitutions elsewhere, will no longer have the sole right to get the best of
the Bantu intelligentsia and the result is, I am afraid, that we would no
longer be able to have what we had in 1959 where the majority, even
with the open universitics at that time, went to the Bantu Collegc at
Fort Hare. I am afraid that if we were to reverse the policy these Bantu
colleges would survive, but without this dynamic growth, this vigour,
which they display at the present moment, particularly if scholarships
and bursaries are offered to withdraw the able students from those
university colleges.
Secondly, you could not retain the best staff if the best type of student
does his post-graduate work elsewhere. lt is one of the attractionsin a
university to be able to teach and train men and women at the post
graduate level. So I am afraid we will get very few advantages and we
will solve fewer problems than we create and I do not think that the
Bantu communities which are being served by their own men and women
willbe as well served by those who, to some extent, eut loose from their
own communities. As the representatives of the African States said at
Tananarive two or three years ago, one can substitute the word "over
seas" for White, Bantu for African and then you get the same picture.
Mr. GROSSKOPFI : have no further questions.
The PRESIDENT:Mr. Gross?
Mr. GROSS:Yes, Mr. President, I would like to cross-examine, Sir.
The PRESIDENT:Certainly, please do so.
Mr. GROSS: Yes, Sir. Dr. Rautenbach, I will question you for the
remaining portion of this session from my notes and if I unwittingly
misquote you or distort what you have said, please correct me if you will,
Sir.
You testified, I believe, Dr. Rautenbach, that your knowledge of
circumstances in South West Africa was obtainecl by reading and study.
Is that correct, Sir?
Mr. RAUTENBACHT :hat is correct, Mr. President.
Mr. GROSS: Could you cite any authorities on whom you relied in
reaching your conclusions with respect to the educational problems of the
Territory, Sir?
Mr. RAUTENBACHA : s regards the educational problems of the Terri
tory, I read the report submitted by Dr. Van Zyl who headed that
Commission in 1958 or 1959; I have read the Odendaal Commission's
report, I have read Professor Wellington's survey of the whole South
West African situation, as published in Optima ...
Mr. GRoss: What was that name, Sir?
Mr. RAUTENBACHW : ellington. Professor Wellington of the University
of Witwatersrand. He wrote an article in Optima with a view to this
court case at The Hague, just to give general background information on
South West Africa.
Mr. GROSS:In your testimony with respect to the situation in higher
level education in South Africa, I take it that the undisputed facts of
record are familiar to you with respect, for example, to the number of
students enrolled in South West Africa at various levels of the secondary
school~are you familiar with those figures?
Mr. RAUTENBACHY : es, I am familiar with the percentage and some
of the figures, in a general way.
Mr. GRoss: I was referring, among other things, specifically to the
tableLXXXXVI which ison page 255 ofthe Odendaal Commission report. SOUTHWESTAFRICA
Mr. RAUTENBACHI: have it before me.
Mr. GROSS; You wiJl note attable LXXXXVI the Standard IX-this
is for the year 1962, as you will note-has four persons enrolled, and
Standard X three persans enrolled-this is for the year 1962 in all of the
Territory of South West Africa?
Mr. RAUTENBACH Y:es.
Mr. GROSS:Do you have any question about the accuracy of that
figure?
Mr. RAUTEKBACHN : o.
Mr. GROSS: Itis truc, is it not, that the completion of Standard Xis a
necessary prerequisite for admission to university in South Africa?
Mr. RAUTENBACH It is partly truc, in so far as Standard X by itself
does not give access, but the Standard X which provides matriculation
there are two examinations; the one is a school-leaving, not· providing
access, and the other is a matriculation, which does provide access.
Mr. GROSS:So that if I understand you correctly two examinations are
required, but completion of Standard Xis a requirement in itself, is that
right?
Mr. R,\UTENBACHY : es, it is after the twelfth year of schooling, which
means Standard X, one does go on to university.
l\Ir.Ross: And with respect to the enrolment figures in higher educa
tion-1 refer to the Counter-1\lemorial, Ill, at page 474, which is the
Respondent's pleading-and I shall Just read these figures across the
line, with the introduction as foUowsm paragraph 21:
"Ovcr the years 1960 to 1962 the number of students who attained
the necessary qualifications for admission to a university was as
follows:
1960 1961 1962
Native 1 2 2."
Finally, just to set the picture, it is true, is it not, as is stated in the first
sentence of paragraph 21 on this page: "There are no facilities in South
\Vest Africa for higher education"-that is correct?
1\Ir.RAUTENBACHT :hat is correct.
Mr. GROSS:Reverting now to the authorities whom you have read and
upon whom you have relied in reaching your views with respect to the
higher level education problems in the Territory, you referred to Dr. Van
Zyl's report-that was, I think, was it not, the 1958 Commission of
Enquiry to which Dr. Van Zyl has testified in these proceedings?-and
the Odendaal Commission report itself; do you have any other basis of
knowledge or expertise of any kind with respect to conditions in the
Territory, except for the documents and authorities you have cited?
Mr. RAUTENBACHN :o.
Mr. GRoss: Have you ever visited the Territory?
Mr. RAUTENBACHN :o.
Mr. GROSS:In connection with the responsibHities of your committee
-I refer to you now as Chairman of the National Advisory Committee
on Education-! believe you testified, did you not, Dr. Rautenbach, that
it was the fonction of that committee, among other things, to advise
regarding education policy and to co-ordinate education policy, excluding
higher education-is that correct?
Mr. RAUTENBACHN :o, it is not quite correct-!said for the Republic
as a whole. WITNESSES ANDEXPERTS 347
Mr. GRoss: For the Republic as a whole. Does that exclude problems
arising in South West Africa? ·
Mr. RAUTENBACH It: does exclude, by law, problems arising in South
West Africa, with this proviso: that for the Director of Education of
South West Africa it is.an open matter to associate with my council on a
voluntary basis; he visits us, and he is a guest, and if he wishes to bring
anything forward relating to South West Africa, he may do so; and he is
actually a kind of assessor-member of my council, but South \Vest Africa
is excluded. We had a ruling laid down by the Minister of Education,
Arts and Science that South West Africa is excludèd from the sphere on
which we advise directly. . ·
Mr. GROSS:With respect to another committee on which you serve,
the National Cormeilfor Social Research, you are Chairman of its General
Purpose Committee, is that correct?
Mr. RAuTENBACHT : hat is correct.
Mr. GROSS:What fonction, if any, does that have with respect to
affairs or events in South West Africa?
Mr. RAUTENBACH It may have a relation with South \Vest Africa in
so far as this council allots funds for research, and if there is anything in
educational or social research especially relating to South West Africa
-at least, we allot monies for research in the whole-thatincludes South
West Africa. A student for a Ph.D. Degree, for instance, a Doctor's
Degree in Education, may conduct research in South West Africa, and
if he applies for a grant to this council, then we may give a grant; soit is
only an indirect relation.
Mr. GRoss: How many members are there of the National Advisory
Council on Education?
Mr. RAuTENBACHT : wenty-nine, including myself as Chairman.
Mr. GRoss: Are they all classified as White under the South African
census?
Mr. RAUTENBACHT :hey are all classified as White.
Mr. GRoss: How large a staff does that council have?
Mr. RAtrTENBACHT : he council has a small staff directly available in
the form of a Secretary, an Assistant Secretary and three or four others,
but the council has at its elbow the services of the whole Department of
Education, Arts and Science whenever we need administrative officiais,
and so on; that is now the National Advisory Education Council.
Mr. GRoss: This is the National Advisory Education Council?
Mr. RAL'TENBACH Y:es.
Mr. GRoss: The omission of non-Whites from the membership on the
council is a matter of policy, is it-State policy, or council policy, or
both?
Mr. RAUTENBACHIt: is a matter of State policy, but may I complete
the picture?
Mr. GROSS:With respect to the council itself?
Mr. RAuTENBACHW : ith respect to the council itself, yes.
Mr. GRoss; If the Court wishes.
Mr. RAUTENBACHT :he Act in no way limits the advice given by the
council to European education only, and as a matter of fact the Govem
ment has asked the council in October 1963 to bring forward recommen
dations to co-ordinate the education of all national groups with the
changing economy, and it was mentioned in my curriculum vitae that I
also preside over that. And then there is a Bantu Advisory Education SOUTHWESTAFRICA
Committee, and there is a Colour Advisory Education Council, and the
reports of the Colour Council are sent tous, and also the Bantu Coun
ciI.
il.frGROSS:Now, with respect to the council itself, to which I wanted
to confine my question for a moment, of which you said there are 29
members, does the function of this council with respect to the Republic
as a whole deal with Native or Bantu, Coloured and White education
affairs?
Mr. RAUTENBACHI: have already stated that the Act simply states
co-ordination-to enunciate the general principles of education for the
country as a whole-without mentioning Whites.
Mr. GROss: And in practice, and in operation, do you deal with all the
ethnie groups-Whites, etc.?
Mr. RAUTENBACH W: hen the Minister concerned, the Minister of Ban tu
Education, through the Minister of Education, Arts and Science ap
proaches the council, then we deal with that; I have already said that a
Committee of Cabinet, which means the Government, did approach this
council to deal with all the groups in connection with this matter of the
co-ordination of their education with the changing economy and wider
provision for technical education for all groups-that was clearly stated
in our directive.
Mr. GROSS:So that if I understand the answer correctly, the council
does on occasion deal with education problems pertaining to ail of the
ethnie groups in the Republic?
Mr. RAUTENBACH In the Republic.
Mr. GROSS:Yes. Could you explain to the Court whether the reason
why there are no non-Whites among the 29 is based on anything other
than a racial criterion?
Mr. RAUTENBACHY :cs; I do not think it is based on a racial criterion,
it is based on the fact of South Africa giving domicile to a collection of
communities, and these communities are not simply separated by way
of race, they are also separated by way of ethnie group-ethnic group,
where people belong more or less to the same race.
Mr. GRoss: Then if I asked you whether the exclusion of non-Whites
from membership on the council is based upon ethnie considerations,
would you have a different answer to my question?
Mr. RWTENBACH:I cannot get that quite clearly.
i\IrGRoss: I will state it more simply, if I may, Mr. President. Is there
any reason other than an ethnie one why there are no non-Whites on the
council?
Mr. RAUTENBACHY : es, there is this reason, which is part and parcel
of the whole policy or programme, and that is the different levels of
development.
Mr. GROSS:Do you mean to say that there is no non-White in South
Africa who is at a level, culture or language, which would not qualify
him as an individual for membership on the council?
N[r. RAUTENBACH:No, I have never said that, suggested that or
believed that, but a member of the council has to deal with a group, and
Professor Kgnari of Turfloop, who is Chairman of the Bantu Council,
deals with Ban tu education, advises the i\Enister of Bantu Education;
and it is not a matter that he is neither a fit nor suitable nor able persan
to sit with us-be could sit with us. As regards intellectual equipment he
is the equal of rnany of my colleagues, if not their superior. WIDIESSES AND EXPERTS 349
[Public hearing of 5 October 1965}
Mr. GROSS.Would you advise the Court what is meant by, in your
statement, "Professor Kgnari of Turfloop, who is Chairman of the Bantu
Council"-the Bantu Council in this context refers to what?
~fr.RAUTENBACH: The Ban tu Council refers to the Ban tu Advisory
Committee, the Advisory Committee on Bantll Education. It is the
opposite number of the body of which I am Chairman; where my council
is the National Advisory Education Council, this is a council specifically
instituted for a committee or a body to advise the Minister of Bantu
Education on Bantu education.
Mr. GROSS:I see. When you say in your testimony that he "could sit
with us", what did you mean by that?
Mr. RAUTENBACH: That was in reply to your question whether, in the
whole of South Africa, there was no man who had the civilization, the
culture, to be able to sit with us-that was my reply to that, in estimate
of the man's abilities-his intellectual abilities, his cultural dcvelopment,
etc.
Mr. GROSS:I sec. I do not mean to pursue this at too great length, but
just for clarification could I refer to page 348, supra, of the same verbatim
record at which, in response to a question by me whether there was any
reason other than an ethnie one why there were no non-Whites on the
council, your response was: "Yes, there is this reason, which is part and
parce! of the whole policy or programme, and that is the different levels
of development"; could I ask you what your reference to "different levels
of development" meant in that context?
11irRAUTENBACH: The different levels of development in that context
meant that the Bantu groups or units or communities had as yet not as
communities reached, for instance, the same level of development as the
Cape Coloured people, or the Indians, or the Whites. There was still a
certain lag in dcvelopment of the community as a whole.
Mr. GROSS:Then is it correct to interpret your testimony to mean that
because of the different levels of development between or among various
groups, the capacity of an individual is taken as irrelevant to the question
of membership on a council of this sort which deals with all groups?
l\IrRAUTENBACH: I cannot quite follow your question-would you
kindly repeat it?
l\Ir. GRoss: Starting from your reference to the different levels of
development and your explanation of what it meant in this context, my
question is whether this implies that an individual who is a member of a
particular group but individually capable of serving in this capacity, like
Professor Kgnari, for example, whom you mentioned-that the individual
capacity or ability of that person is considered irrelevant to the question
of whether or not he could serve as a member of your council?
Mr. RAUTENBACH: No, it is not irrelevant, but what is really relevant
isthat Profossor Kgnari, with his abilities, his intellcctual equipment, is
a greatcr authority on Bantu education than on the education of Euro
peans, and his best service in South Africa at the present stage can be
given to the Bantu community. If he were to help advise on the White
community, if that had bcen the directive for his council, then of course
it would be different, but he was appointed specifically as Cbairman as an
educational leader in the Bantu community to guide and lead this
committee to advise the Ministerof Bantu Education on Bantu education.350 SOUTH WEST AFRICA
Mr. GROSS: I do not mean to hold you to this particular individual-1
take him as an example because you have referred to him in your
testimony-but what I am anxious to get at from the standpoint of the
Court's fuller understanding of the policy underlying the exclusion of
non-Whites from membership in the council of which you are Chairman
which deals with problems of all the ethnie groups, Whites and non
Whites alike, is whether the policy of exclusion is based upon anything
other than membership of an otherwise gifted individual in a certain
ethnie group? This is the point of my question to you.
Mr. RAuTENBACH: I am afraid there is a misapprehension. I said in my
testimony yesterday aftemoon that there was nothing in the Act, Act
86 of 1962, the Act on the National Advisory Education Council, to
prevent any minister from requesting through the Minister of Education,
Arts and Science that my council should advise on a educational matter;
that is what I said, but we cannot on our own initiative advise the
Minister of Bantu Education or, for that matter, the Minister of Colourèd
Education, Department of Coloured Affairs, or on lndian affairs. I think
the record will show that.
Mr. GROSS: I have no doubt it does, and I did not mean to imply
anything to the contrary. You say, as I understood, you testified with
respect to this matter by qualifying it by the use of the phrase "on your
own initiative", did you not, or words to that effect?
Mr. RAUTENBACH: Yes; I didnot usethewords "on ourown initiative",
but I used the words another minister may, through the Minister of
Education, Arts and Science (and that is the Minister dealing with the
educabon of Whites) request my cound1 to ad vise, and that has happened
once.
Mr. GRoss: Therefore you would have to be prepared to advise,
obviously, as effectively as possible if the request were made-this is
really ~he point I am directing your attention to. Now, starting from
that point of departure, would you regard it, from the standpoint of an
expert in this field, as relevant to a consideration of such a question that
there would be direct and continuous participation of representatives of
groups who might be affected by your recommendations?
Mr. RAUTENBACH: I think there should be communication, and the
Act under which my council works prescribes that our recommendations
should be made in consultation with the various education departments,
bodies, organizations and persons who have an interest in education.
Mr. GROSS: The communication would be most effectively performed
in what manner?
Mr. RAuTENBACH: In this case, on the occasion of a visit to the Bantu
College of the North, I visited Professor Kgnari, who is Chairman of the
Bantu Education Committee, and mentioned the fact that my council
had received a directive from a Cabinet committee including, of course,
the minister under whom he and his co1leagues work, the Minister of
Bantu Education, to the effect that we should bring forward suggestions
and plans for the co-ordination of the education of all groups with the
changing economy, and for more extensive provision fortechnicaleduca
cation, and we had a long discussion on this matter.
Mr. GROSS: ln connection with the fonction of assuring co-ordination
in the sense you have described, that would involve a continuing problem
and a continuing interrelationship, would it not, between the educational
policies of the varions groups? WITNESSES ANDEXPERTS
351
MR. RAUTENBACHT : hat would depend on the type of directive we
received, on the type of recommendations we make at a certain stage.
Now it happened in this case that after having gone into the whole
matter over the course of 18 months, and consulting with the Department
of Bantu Education and its officials, with the varions other departments
of education and their officials, with the Prime Minister's Economie
Advisory Council, with the Department of Labour and all concerned, in
May of this year we had a joint meeting to deal with these matters and
to formula.te our findings, and our findings were that at' the present
moment the varions education departments, and particularly the De
partment of Bantu Education, were carrying on to the best of their
ability that type of work which was mentioned in our directive; and we
recommended to the Minister of Bantu Education through the Minister
of Education, Arts and Science-that is the prescribed way-that that
should be accepted as one of our findings. We also made other recommen
dations, which I could mention if the Courtis interested in those recom
mendations.
Mr. GROSS:Subject to the wishes of the Court in this matter, if I may
refer to the problem that you have just described, I understood you to say
tha t this involved-a course ofsome 18mont hs of concentration and stud y?
Mr. RAUTENBACHY : es.
Mr. GRoss: During that period, Sir, of 18 months, would there be any
reason, which you could advise the Court, why it would not have been
a feasible and very wise idea to have members of other groups sitting
as full members of your Council?
Mr. RAUTENBACH Y:es. After this discussion with Professor Kgnari the
leading man, the Chairman, he told me, and I have the statistics to prove
that, that at the present juncture the greatest problem in the sphere of
Bantu education was to get more pupils to progress beyond the primary
stage into the secondary stage because occupational training, and par
ticularly technical training, take place at the level of secondary education,
and the greatest problem was not, at this stage, according to him, to
make provision for further technical training, further schools, but to
try and retain a larger number of pupils or students in the schools, so
that we can get more pupils staying in the secondary schools and then,
through a process of differentiation, bring them into the varions streams,
and one of the streams would be the stream of technical education, and
he told me that he did not think it was worthwhile pursuing the subject
any further with him.
Mr. GROSS:This would be an important problem, no doubt, would it
not, Sir, in the general scheme of education in the Republic?
Mr. RAUTENBACHI:t is an important problem throughout the whole
world, the whole of Africa, and the Republic.
Mr. GROSS:Now, Sir, if I may revert to my question, which perhaps I
did not make clear, would it have been feasible and wise, from the point
of view of your expertise in the educa tion field, to have had a non-White,
or one or more non-Whites, sitting as full members of the Council during,
let us say, this period of 18 months, when these problems were under
study? May I just ask you, Sir, would it have been feasible? .
Mr. RAUTENBACHN : o, I do not think it would have been feasible. I
could give the reasons why I think it would not have been feasible, and
the one is that outside our Professor Kgnari and two other gentlemen
who have professorial rank in the Bantu university colleges-in the one352 SOUTHW . ESTAFRICA
case a Professor of Psychology, in the other a Professor of Education-the
highest post held at present by a Bantu is that of a Sub-inspector of
Education. The result is that the expertise, as you call it, is to be found
at the present moment more amongst the European officials and officers
of the Education Department than amongst these, and Professor Kgnari
himself is not an expert, neither am I an expert, in the field of occupa
tional education. In fact, I am not an expert outside of university edu
cation-I am a generalist outside the field of university education.
Mr. GROSS: The fact is, is it not, Sir, tha t the reason of policy to which
you referred yesterday, which underlies the exclusion of non-Whites from
membership on the Council is related to the ethnie origin rather than
the individual quality or capacity of the person? Is that not so, Sir?
Mr. RAUTENBACHT :hat is so, but is onlv half of the matter. The other
half is so closely related to the stage o"tdevelopment of that ethnie
group-that is at the background of the whole programme of separate
development or separate education.
Mr. GROSS: But you want the Court to understand, Sir, that because
of the level of development of the ethnie group to which you refer, that
a person who is a member of that group by the classification of the census,
but who is above that level, could not, by that very reason, advise you,
as a member of the Council, effectively with respect to the problems of
his group as a wh'ole?
Mr. RAVTENBACH: He could advise me in that field where he has
specialized knowledge. On the Bantu Education Committee there is, to
my knowledge, no specialist in that sphere, so why should I get another
generalist to advise me where I am also a generalist? I should, in this case,
seek the assistance, and, according to the Act we can seek the assistance,
of any one of the 30,000 European teachers, or for all that, of the, I
suppose, 26,000 Bantu teachers in the country. But it is a matter of the
efficiency and the suitability of the man's knowledge on this ad hoc
Committee, this ad hoc problem.
Mr. GROSS:Sir, would there be, so far as you are aware, anything in the
governmental policy of the Republic which would preclude full member
ship of non-Whites on the Advisory Council?
Mr. RAUTENBACHY : es.
Mr. GROSS:Would you explain to the Court what that governmental
policy would be, Sir?
).frRAUTENBACHT :hat governmental policy is the policy of separa
tion, also on this kind of body.
Mr. GROSS:And that would be the underlying reason, would it, Sir,
that might, for example, preclude you from making a recommendation
to add a non-White to the Council?
Mr. RAUTENBACHY : es, but that is, as I say again, not the complete
story. The complete one is that the underlying reason for that is, again,
the different levels of development and then, the general policy of the
Government at this stage not to pay so much attention to the individual
as the development of the community as a whole. ·
Mr. GRoss: Now, Sir, may I ask you one further question on this line?
Perhaps it would lead somewhere else and I might follow it up, but the
question I have in mind is, with respect to the fonction of the Advisory
Council regarding "White education", would that not involve and include
consideration of the relationship between \Vhite education and non
White education as a problem of White education in the area? WITNESSES ANDEXPERTS 353
Mr. RAUTENBACH:Yes. It certainly would, Mr. President, in this
respect, that education has to be co-ordinated with manpower problems
and with economic development and the manpower of the Republic of
South Africa is not only the White manpower but all the manpower,
including the woman-power for all that, and the result is that when one
deals with education, ail of us should look where the manpower is to
be found and the result is that one has to take note in a general way of
what is forthcoming from Bantu education, from Coloured education,
from Indian education and from European education.
Mr. GROSS:Considering, for example, the problem of segrega tian or
othcrwise of universities in South Africa, to which we shall turn our
attention shortly, Sir, but in this context, in considering that problem,
you would, of course, concede readily, no doubt, that the interests of
Whites and non-Whites a1ikc arc involved in policy decisions regarding
that matter. ln respect of the functioning, docs the Council have any
direct or indirect present or potential responsibility with respect to mat
ters within that area of concem-segregation of university instruction?
Mr. RAUTENBACHN : o. My Council is limited by the Act and by the
division in the Act to education outside the university sphere-primary
education, secondary education and tertiary, non-university education.
l\frGROSS:So that with regard to the area of concern which you have
just clearly described to the Court, in that area the policy underlying
the separation or segregation in the secondary sphere, let us say, would
be a matter within the present or potential scope of the Advisory Council.
would it, Sir?
Mr. RAUTENBACHN : o, we are empowered to make recommendations
on sound principles of a general nature on education and we had a
directive from the Minister to pay attention, in the first instance, to
White education and then we have this one directive on the co-ordination
of education of the various groups with a changing economy and forther
provision for technical education,
Mr. GROSS:So that your fonction-the fonction of your Council-if I
understand you, proceeds from the point of departure of the directive
which you described? Is that correct?
Mr. RAUTENBACHY : es, that is so.
Mr. GROSS: Now, in vour consideration of the matters which fall
within the scope of your éouncil, do you, at any timc in your deliberations
or studies, considerwhether the directive itself is well or ill-founded, or
should be modified in any respect?
Mr. RAUTENBACHW : e could do that. Wc have not done that so far·,
we have not found the reason to ask such questions, but if such a matter
were to arise I could see no reason why this should not be done or could
not be done.
Mr. GROSS: Would it be fair to say that the fonctioning of your
Council then, Sir, and that you as Chairman, are within the four walls
of the scheme of the govemment policy as embodied in the directive? Is
that correct?
Mr. RAUTENBACHY : es.
Mr. GROSS:Could you then, under those circumstances ... ?
Mr. RAUTENBACHN : ow you are bringing forward another point.
Mr. GROSS:I have not finished my question, Sir.
Mr. RAUTENBACHI: am sorry.
Mr. GROSS:I thought you merely answered to my previous question ...354 SOUTHWESTAFRICA
l\1rRAUTENBACHN : o, it is one of your questions in the series.
l\ir. GROSS:Yes, I intended it to be so, Sir. I was just on the point of
asking you whether following from that you would be good enough to
describe to the Court, as br:ieflyas fair1y may be done, the natureof the
government directive which forms the basis of your function in this
respect, that is, with regard to separation or segregation?
Mr. RAUTENBACHB : y implication-that was what I wanted to say.
By implication, I could note in that directive that government policy
had to be borne in mind and by that I mean that part of the directive
was that no public declaration should be made by the National Advisory
Education Council on this matter, but its decisions should be of a
confidential nature and should be transmitted, in each case, to the
department concerned, to the Minister conccrncd; that means to say,
our recommendations, if recommendations had been forthcoming on this
one matter; but certainly recommendations were forthcoming, one was
that as soon as it is practicably feasible, the Government should, or the
Department of Bantu Education should, make primary education com
pulsory, and as soon as possible after that, secondary education. We did
not announce that publicly because our directive had been that our
recommendations should be transmitted to the Minister concerned.
l\lr. GROSS:I would like to pursue that. Perhaps it will give you an
opportunity to clarify or add. With respect to the question of the nature
of the directive, you have now referred, Sir, to the matter of compulsory
education. Leaving that aside for one moment, are there any other
substantive aspects of the directives with regard to the policy of sepa
ration or apartheid?
l\lr. RAuTENBACH:No. There was no clear statement or directive.It
was by implication, as Imentioned, Mr. President.
Mr. GROSS:What was by implication?
Mr. RAUTENBACH T:hat we should report, not directly to the Ministry
of Education, Arts or Science or that the Chairman-1 am empowered
to make public announcements-should make no announcements but
each of these recommendations should be sent to the departrnent con
cerned, in this case the Department of Bantu Education.
Mr. GRoss: Would it be correct to conclude, Sir, that the directives
under which you operate do not relate directly to the problem or policy
of ethnie, racial orgroup separation?
Mr. RAUTENBACHN : o. I think, Mr. President, I could best describe
the whole situation if I were to say that the directive and the Acts are
of such a nature that we proceed from that as a prernise that there shall
be separation or apartheid.
Mr. GRoss: That is the major premise of the Government?
Mr. RAUTENBACHT :hat is the major prernise of the Governrnent and,
by implication, it is the major premise for the Council of which I am
Chairman.
Mr. GROSS:Now, with respect to the problem of compulsory education
to which you referred, there is compulsory education now with respect
to \\'hites, is there not, Sir, in South Africa?
Mr. RAUTENBACHY : es. In the northern part, in Transvaal, there has
been compulsory education since 1907, but not before that date.
l\Ir. GRoss: And are vou aware of the situation in South West Africa?
I may say that the record shows that there is compulsory education
for the Whites there. WITNESSES AND EXPERTS
355
Mr. RAUTENBACHY : es, I am aware of that.
Mr. GROSS:Now, I understood you to testify that, with respect to the
problem of compulsory education, it was a directive that as soon as
practicable,or words to that effect ...
Mr. RAFTEXBACH:No, it was not a directive. It was a recommena
dation. It is one of the recommendations coming from this Joint Com
mittee of the Education Council and various other departmental re
presentatives to the Ministers concerned that, in the case of Bantu,
Coloured and Indian education, as soon as it is practically feasible
primary education should be made compulsory and afterwards secondary
education should be made compulsory and there was a reason for that.
Mr. GROSS:With respect to non-Whites, you were referring to, Sir?
Mr. RAUTENBACHY : es.
l\fr. GROSS:Now, would you explain to the Court what the reason was
forthe recommendation?
Mr. RAUTENBACHT :he reason for the recorrunendation was what I
have already mentioned this morning: that unless more Bantu pupils
remained to the end of the primary school, completed the primary school
course, entered the secondary school course, did part of it or completed
it, we would not be able to attain the other objective of training more
Bantu in occupational training or technical training.
Mr. GRoss: Sir, are you, onthe basis of your reading of the authorities
you have cited with respect to South West Africa, to wit, Dr. Van Zyl
and the Odendaal Commission and, I believe, one other, are you suffi
cientlyfamiliar with the situation in South West Africa to express an
opinion as an expert with regard to the problem of compulsory education,
let us say,in the urban areas in South West Africa. Do you have any
views on that, Sir?
Mr. RAUTENBACHI: am not an expert in that sphere, but I could
express a view.
Mr. GROSS:Well, would you please do so, Sir, and specifically with
respect to the problem, ifany, arising in urban areas as distinguished,
let us say, from northern territories or other areas?
Mr. RAUTENBACHM : r. President, I see what Mr. Gross is aiming at
now and he questioned Dr. Van Zyl very closely on these matters, and
now that I see what he is getting at I would prefer not to answer those
questions. Dr. Van Zyl is an expert on those matters.
Mr. GRoss: Now, Sir, that is with respect to South West Africa. Now,
with respect to South Africa itself, would you care to express an opinion
with respect to the différences, ifany, arising in the field of compulsory
education as between the urban areas of South Africa itself and the
other areas of South Africa?
Mr. RAUTENBACHI: take it that by that i\Ir. Gross refers to the Bantu
residential areas, the urban areas and the Bantu homelands?
Mr. GRoss: Yes, Sir, to start with.
Mr. RAUTENBACHA : nd must I take it that you are asking me what
reasons I can advance for not, at this stage, making primary education
compulsory?
Mr. GROSS:No, Sir. That may enter into your answer, Sir, it is up to
you, but my question is whether there are any ,tSpects of the problems
underlying compulsory education which arise in the urban areas as
distinguished from, or are different from those which arise in other
areas? SOUTH WEST AFRICA
Mr. RAuTENBACH: Yes, I think it stands to reason, l\fr.President,
that the urban areas are more densely populated areas, that children
are within easier rcach of the schools themselves, whereas in the Bantu
homelands, outside of those homelands, where the community has a way
of living in villages or cities, in many of these homelancls they live in
family groups, comparatively far removed from each other. Then the
third group of Bantu reside on the farms and, excepting for vcry big
farms where the people farm in a big way, these are still more sparscly
spread. There is a difference, thcn, as between the one area and the other.
Mr. GRoss: Now, Sir, with respect to that difference, if I may pursue
that for just a moment, you have referred, I understand, to congestion
of population as one factor. Are there any elements involved in the
problem, let us say, of social change that are peculiar to the environment
of the urban areas which may not be found elsewhere?
l\fr.RAUTENBACH: Mr. President, investigation has shown that the
idea of such a vast difference between the Bantu residing in the urban
area and in the more rural areas, if vou can call them that, is not what
many people thought.1 have read ari article in the prestigious American
journal Foreign A/jairs by a Bantu joumalist, residing outside South
Africa, who was born and raised in an urban area. He states that there
is a continuity between the Bantu communities in their homelands and
those in the urban residential areas like the string of a kite.
That was published in Foreign Atfairs fairly recently. Then, members
of my staff of the Social Anthropology Department had for a number of
years received a grant from the Social Research Council to makc a study
of the so-called urbanized Bantu in the Bantu residential areas of the
city of Pretoria, wherè I reside. They also discovered that in many im
portant respects the so-called urbanized Bantu still has his roots in the
rural areas in his own communitv.
Mr. GRQSS: Sir, you have testÎfied, as I have just reminded you, that
the Odendaal Commission report was one of those authorities on which
you have based your expertise with respect to South \Vcst Africa. Now,
I should like, in the context of our present exchange, to refer to the
Odendaal Commission report, page 425. Have you a copy of the report
before you, Sir? If you turn to page 425, Sir, I would call your attention
to paragraph 1430 at the bottom of the right-hand column on page 425.
Do you find paragraph 1430?
Mr. RAUTENBACH: I have found it.
Mr. GROSS. Now, I should like, in the context of this discussion and
adhering as closely as possible to the problem of social change and the
rootage of the Bantu-if I may use that phrase-to call your attention
to the following several sentences in that paragraph.
Starting with the first sentence, I realize, Sir, that you have stated
that you do not wish to tcstify with respect to South West Africa on this
matter. Do I undcrstand you correctly there, Sir, before I read this?
Mr. RAUTENBACH: Yes, unless it is similar to a situation in the Re
public.
Mr. GRoss: Weil, you have anticipated my point there. Therefore,
in that context, which is precisely what I have in mind, I should like to
read the following first sentence. This is under the heading, you will
notice, Sir, of "Transition from a subsistence economy to a money
economy" and it reads as follows:
"Human beings tend to settle in the environment in which they WITNESSES AND EXPERTS
357
earn a living. Income and occupational group furthermore deter
mines whether an individual belongs to an economically upper,
middle or lower class. Thcre is a correlation between occupation and
occupational group, on the one hand, and economic and social
status on the other."
Would you have any question of agreeing with that, Sir? Do you
agree with that?
Mr. RAUTENBACH; I agree with that.
Mr. GROSS:Then I would like to call your attention-skipping the
next sentence or two-to the following language:
"The result is social stratification accordingto income and level
of occupation. A process of Westernization follows, as well as
adjustment to the economic, social and spiritual requirements of a
different type of community life. In a process of one-sided imitation,
the economic standards of living of the Whites are accepted, with
a resultant increase in expenditure on the necessities of Jife, housing,
furniture, recreationalnd transport facilities, education, etc."
Now, kecping in mind the reference to education in that context, if
you agree with this general analysis of the Odendaal Commission, would
you express an opinion, Sir, regarding the implications, in the field of
education, regarding the resultant increased expenditures on cducation,
what specifically would that imply with respect to the object of education
for which those expenditures were necessary?
The PRESIDENT:Does the wîtness, Mr. Gross, first agree with the
gencral statement?
Mr. GROSS:Yes, first do you agree with this statement?
Mr. RAUTENBACHW : ith this statement? Which interpretation do you
mean?
Mr. GROSS:Generally do you agree or disagree?
Mr. RAUTENBACHI: agree with this statement as a description of the
externals of the situation-the outward, visible things, the economic
interdependcnce which is to be found in such an area. I do not agree
that the essential "Africanness" of any individual is changed by these
outward changes.
Mr. GROSS:I see, Sir. Now, with respect to the reference to education,
and you note the use of the word in that quoted section ...
Mr. R.AuTENBACHW : hich are you referring to?
Mr. GRoss: The sentence to which I call your special attention for my
question is:
"In a process of one-sided imitation. the economic standards of
living of the Whites are accepted, with a rcsultant increase in
expenditure on the necessities of life, housing, furniture, recreational
and transport facilities, cducation, etc."
I focus on the word "education" and ask you, Sir, to restate my earlier
questions, whether you will express your opinion concerning the objec
tives of education in this context, for which increased expenditures
become necessary?
Mr. RAUTENBACHI:f this is what the question amounts to, whether
this outward change also should bring about a change in educational
practice, if that is the question, then my reply is yes to a certain extent
it should, because education should fit the member of the community
for his work and his life in hi5 .:ommunity. SOUTHWESTAFRICA
358
· Mr. GROSS:And the community in this respect is the community in
which he lives and works? Is that not so, Sir?
Mr. RAUTENBACHT :hat is the community in which he lives and works
and hopes to live and work.
Mr. GROSS:And hopes to live and work?
Mr. RAUTENBACHY : es.
Mr. GROSS:And there are persons in that category, so far as you
know, in the urban areas of both South Africa and South West Africa
who live and work and who hope to live and work in those areas, Sir?
Mr. RAuTENBACH:Yes, they do also live and work in those areas.
Mr. GROSS:Yes, Sir, and there are persons within that category?
Mr. RAUTENBACHY : es.
Mr. GRoss: Many of them I suppose, Sir?
Mr. RAUTENBACHY : es.
Mr. GROSS:Now, when you refer to external or outward change or
sign, Sir, when the reference is made à propos of that statement in your
response, when the Odendaal Commission refers to,among other things,
"the economic standards of living of the \Vhites are accepted"-do you
mean to say, Sir, there is only a manifestation or externalization of
acceptance-is that the way you interpret this?
Mr. RAUTENBACHY : es, that is in accordance with the authority which
I quoted-the Bantu journalist who wrote on the misleading aspects of
this external development, where Europeans are inclined to think that
the essential man as said, has changed his Africanness, and we regard
him as an imitation of the White-! can read that if you want it.
Mr. GRoss: \Vell, Sir,I won't invite you to-you may if you wish, Sir,
if the Court wishes-it is upto you, Sir, in answering my question.
Mr. RAUTENBACHI: think I would like to have that on record.
Mr. GROSS:Will you give the citation please. .
Mr. RAUTENBACHI: seem to have left some of my stuff at home.
The PRESIDENT:Do you mean at the hotel or in South Africa?
Mr. RAuTENBACH: I have got it here.
Mr. GROSS:Could you read the most pertinent portion of ...
l\fr. RAUTENBACH:It is very brief. It is written by Mr. Exekiel
Mphalale a Bantu writer, barn in South Africa and now living in Kenya,
rais~d in the Bantu residential area in Pretoria and this is what he
says:
"Any visitor, who sees an urban African smartly dressed in
American style of clothes-in short, the visitor who sees him in
town like one who is committed to it and lives by its assumptions
may think the African has wholly surrendered his traditional values
to an urban Iife that is a bad imitation of the White way of life but
there is a definite Iine of continuity in African cultures which acts
in individuals and groups like the string by which the kite is held to
the ground." ("The Fabric of African Cultures", Foreign Affairs,
July 1964.)
Mr. GRoss: Yes, Sir, and that is, if Iam not mistaken, Mphalale is it
not, Sir?
Mr. RAUTENBACHY : es.
Mr. GROSS; VVe are familiar with his works, Sir. Do you happen to
have read any of his works in which he expresses an opinion regarding
segregation and education? WITNESSES AND EXPERTS
359
l\Ir. RAUTENBACHN : o. I receive Foreign Aff airs and I read Foreign
Affairs.
i\lrGROSS:Now, to corne back for a moment to the question of the
"externalization". I was referring, Sir, to the Odendaal Commission
statement that the persons, and they referred, Sir, to "human beings"
not to Whites or Blacks or anybody else. They referred in the sentence,
to which I called your attention, in which education is mentioned, that
"the economic standards of living of the Whites are accepted"-and this
is where I pauscd before. Are they accepted, or are they not, so far as
your own observation is concerncd, in the areas with which you are
familiar?
Mr. RAUTENBACHT : hey arc accepted as objectives which must be
kept in mind, which must be strived for, and let us say, which must be
imitated.
Mr. GROSS: Ali right, Sir, putting imitation asidc, I suppose that
imitation could be a form of flattery?
Mr. RAUTENBACHI:t is, and it is a very useful way of learning too.
Mr. GRoss: Yes, Sir. And with respect to whether it is imitation,
or some original Native genius alongsidc it as well-let us !cave that
aside, Sir.
Mr. RAUTENBACHM : ay I qualify that word? By imitation I mean
accepting it from an environment as an cxarnple which could be used by
oneself.
Mr. GROSS: In the same way, Sir, let us say that a four or five year
old \Vhite child leams from his environment, would you say?
i\Ir. RAUTENBACHY : es, Sir.
Mr. GROSS: Now, with regard to the neccssities of life leading to in
creased expenditure for cducation, I am still focusing on that because
it is, of course, within the field of your expertise, you have mentioned
congestion in urban areas, concentration of population, and I think you
have mentioned the requirement for learning in order, I am paraphrasing
loosely,to improve one's economic welfare-would you accept that, Sir?
Mr. RAuTEN"BACH I:accept that.
Mr. GRoss: Now would you add to that also, Sir, the requirement or
objective in the "White society", as it is called in the Odendaal Commis
sion report, the desirability or otherwise of full self-realization in the
modern world, in intellectual as well as economic tenus?
Mr. RAuTENBACH:My reply to that is most certainly that I do accept
it as a justifiable aspiration, economically, socially, culturally and
politically.
Mr. GROSS:With respect to compulsory education, which exists with
regard to Whites, are you aware that there are approximately 100 per
cent. ofthe Whites of school age in South West Africa, who are enrolled
in the schools there?
Mr. RAUTENBACHI: am awarc of that.
Mr. GRoss: Is the same thing true in South Africa, Sir?
Mr. RAUTENBACHT :he same is truc of South Africa.
Mr. GROSS: Whereas now I will call to your attention the following
facts which are undisputed in the record, in order to elicit your opinion
with regard to comparable situations in the Republic itself. I call your
attention to the cnrolment figures in the Odendaal Commission report,
page 239, table 87. Incidentally, Mr. President, parenthetically, this has
not previously been the subjcct of examination and is not mere repeti- SOUTHWESTAFRICA
tion-I thought I would explain that to avoid any misunderstanding of
the tables because there are many tables being cited. This is table 87
on page 239, which refers, as you notice, to distribution of pupils in
standards in the southern sector in 1962 and breaks it clown, as you can
see, both by standards and by sections within the sector. You will notice,
Sir,that Standards VII, VIII, IX and X... •
The PRESIDENT:What page is this?
Mr. GROSS:Page 239, Sir, the bottom of the left-hand column of the
Odendaal report.
The PRESIDENT:That is table 87, is it?
l\fr.GRoss: Table 87.
The PRESIDENT:Thank vou verv much.
Mr. GROSS:I was afraid for a moment, I had my roman numerals
confused, which often happens. Sir. After Standard VI, that is Standards
VII, VIII, IX and X, there are no pupils in the homelands enrolled in
those Standards-that is correct, is inot,Sir?
1\Ir.RAUTENBACHY : es.
Mr. GROSS:This is, of course, "homelands", I may have mis-spoken,
sometimes known as "Reserves" in the southern sector-this is entirely
related to the southern sector. Now in the rural areas in the southern
sector, outside the Reserves this would be, in the so-called Whiteecon
omy, there are, as you will notice, five pupils enrolled in Standard VIII
and none in Standards IX and X-that is correct, Sir, is it not? Now
then we corne to towns which have otherwise been referred to as urban
areas outside the Reserves in the southern sector and wefind, Sir, that there
are four, in 1962 this is, enrolled in StandarIX and three in Standard X
and then finally on the total enrolment in the next column you will find
the same figures repcated-that is four and three respectively. So the
only pupils, as it appcars from this table, enrolled in the school system in
South West Africain Standards IX and X, are in the urban areas outside
the Reserves-that is correct Sir, is it not from this table?
l\Ir. RAUTENBACHT :hat is correct.
Mr. GROSS:And would you advise the Court whether a comparable
situation exists inSouth Africa?
Mr. R..\UTENBACHY :es, a comparable situation exists in South Africa
to the best of my knowledge.
Mr. GRoss: Now, Sir, the figures I suppose would be higher because
the population is higher?
Mr. RAUTENBACHY : es, and the school attendance in the Republic is
83 percent. between the age of 7 and 14 and in South West Africa it is
more or less like 46 per cent.-there is that difference.
Mr. GRoss: Now, would you in terms of the ... I revert to the exccrpt
from the Odendaal Commission to which I have been referring earlier,
that is to sayon page 425, could you please indicate whether the fact that
the only enrolmcnts in those Standards, such as they are, are from the
urban areas, that this would indicate special problems prevailing in the
urban areas with regard to education? .
Mr. RAUTENBACHY : es, I would rather ...
The PRESIDENT:Mr. Grosskopf.
Mr. GROSSKOPF: If I may just object to the fonn of that question,
there is no evidence that these enrolments are from the urban areas-these
are peoples at school in the urban areas and, Mr. President, you will
recallthe evidence of Dr. Van Zyl that the highest schools are ail situated WITNESSESANDEXPERTS
361
in the urban areas for students from the whole Territory. So that the
forrn in which the question was put is, with respect, in my submission not
an accuratc one.
The PRESIDENT: Mr. Gross, would you put the question again so that I
can see precisely what the point in issue is.
Mr. GROSS: I think the point, if I may say so, 1sextremely well taken.
I had made an assumption here with respect to the origin of the students,
so to speak, enrolled in these Standards. Ithas been pointed out by my
friend that this figure bears no information with respect to whether, for
example, these three students enrolled in the urban areas had corne
from, for example, Ovamboland.
Now Sir, in order to c1ear that point up, are you aware, Sir, in respect
of the situation in South Africa, the Republic itself, whether the enrol
ment of Bantu students in the, let us say, Standards IX and X, would
represent students who corne from outside the urban areas and go to
school in the urban areas?
;'.\RAUTENBACHI: could not say. In the case of the adults there is an
influx control but not in the case of these youngsters under 18 so far
as I know, so that it would at the best of times be rather difficult to say
where they corne from. But I happen to know something about the
origin of university students and the university students came frnm
bath ... at least they have their home, their domicile is in many cases
in the urban areas and in man y cases in the rural areas, but they attended
schools where they could find a school and the school is generally situated
where there is the greatest density of population.
At the present stage of development, the Bantu child is as often as
not brought to the school. There will be reached another stage where the
school, as far as possible, will be brought to the child. That is happening
on the lower level of the primary school already, in the case of the rural
school or fann school. The school is being brought to the child there. At the
present timc, at secondary level, the child isstill being brotgto the school.
Mr. GRoss: Before I return to this, may I just ask you, Sir, in connec
tion with the problem of locahon of schools to which you have referred,
from the point of viewof education expertisewould there be anyexplanation
for the fact that in South West Africa the Standards in question are to
be found only in the urban areas?
.Mr.RAUTE1'BACH 1:1r. President, I am not an expert on secondary and
primary education. I made a declaration here at the beginning to testify
as an expert. If I have any expertise, it is in the field of university
education. The other, secondary sphcre of interest is the White education
of primary and secondary schoolchildren and the rest is a third sphere of
interest, but I am no expert on thesc matters.
Mr. GROSS:All right, Sir.
!\fr. RAUTEl\'BACHI:do not Jay any daim to be an expert. Dr. Van Zyl
is the expert.
~lr. GRoss: So you would not seek to draw any infcrences from the
fact that this is the situation. In other words, you would not have any
opinion with respect to why it is that these levels of instruction are to
be found in the urban areas?
Mr. R.\UTENBACH:I have opinions but I do not daim that they are
opinions of an expert.
l\lr. GROSS:Weil, Sir, I will not press you unless you wish to express
the opinion of a witness. SOUTH \VEST AFRICA
Mr. RAUTENBACH: I would not like to express so many opinions .
.Mr.GROSS: All right, Sir, Now, let us continue with the paragraph,
if I may, Sir-paragraph 1430-and I would like to draw your attention
to the fact that in pursuing this matter~I do so because of your reliance
upon the Odendaal Commission for your views with regard to the matter
and with regard to the important aspects of the statements as findings
by the Odendaal Commission. The top of page 427: "The struggle ... ",
that is to say the struggle referred to in the preceding portion-! have
left out a sentence to which I should call your attention.
"As is the case of the Whites, artificial needs are created for
them. Family life undergoes a change and imitates the pattern of
the \Vhites. The struggle to live becomes an economic struggle to
provide necessities. Their work and occupation [I call your attention
to this, Sir], in effect becomes a formative process which helps non
\Vhitc workers to adjust to and fit in with the requirements of living
and economic standards of the changed community life to which
they belong and of which they are part."
First of aH, Sir, do you understand the phrase "changed community
life" to re'ferto the sector in which they work and live and in which they
hope to work and live?
Mr. RAUTENBACH: Yes.
Mr. GROSS: Now, Sir, with respect to the reference to: "Their work
and occupation in effect becomes a formative process" and so forth,
wouldyousaythat education plays a vital role in the development of that
formative process?
Mr. RAUTENBACH: Yes, it is probably the most important.
l\fr. GRoss: Now, one final reference Jnthis paragraph, to complete the
circle of the thought in this very key paragraph in the Odendaal Report
is the following, which is the conclusion of the paragraph itself; I will
read it, if I may:
"The result [which, generally speaking, refers to the result of the
consequences of everything that has gone before] is a process of
\Vesternization with its typical problems of backwardness, deterio
ration of family life,etc., but in many cases also successful adjust
ment."
Pausing there, would you say, Sir, from your experience, that there
are many cases of successful adjustment in the sense of this report?
Mr. RAUTENBACH: Yes, as far as my knowledge goes-which is limited
-I would say that therc are cases of successful adjustment.
Mr. GROSS:Would you say that it is one objective of education to
facilitate and expedite that type of adjustment?
Mr. RAUTENBACH: Yes, if it does not include indoctrination;if it does
not include the one idea and ideal that the onlv form of civilization and
culture is to become Western in every respect, but if the man chooses to
become Western, it is also up to him through self-determination, or
freedom, to become that, but I have no right to impress that on that
man. Nobody has the right to doit.
Mr.. GROSS: "The goal [it says] is always better-paid employment,
especiall y for the ... "
Mr. RAUTENBACH: I beg your pardon, where is this?
l\lrGRoss: This is the last few sentences at the top ... WITNESSES AND EXPERTS
The PRESIDENT:This is the next sentence to the one Mr. Gross was
reading.
Mr. GROSS:The next sentence to the one I just read.
Mr. RAUTENBACH : hich paragraph, please?
Mr. GRoss: Paragraph 1430, which continues at the top of page 427,
inthe left-hand column, Sir.
Mr. RAUTENBACHY : es, I have found it, thank you.
Mr. GRoss: I just read the paragraph which ended with the phrase
"successfuladjustment". Now the next sentence. I was starting to read,
or have read, I am not sure which:
"The goal is always better-paid employment, especially for the
children. A striking feature [and I call this ta your attention, Sir]
isthe value attached to school attendance, education and scholastic
achievement. A new type of man emcrges: a \Vestemized non
White side by side with the Western White."
With respect to the "striking feature" which attends this situation
of social changeto which we are addressing ourselves, "the value attached
to school attendance, education and scholastic achievement", would you
say, Sir, fromyour experience, that that is a correct statement?
Mr. RAUTENBACHI: would say it was a perfectly correct statement.
I can support that with my own experience-the great yeaming of the
African people for more and more education and their great expectation
that education will salve all their problems.
Mr. GROSS:Would you say, Sir, that perhaps the single most important
aspect of social development is education?
Mr. RAUTENBACHI: would subscribe to that fully.
Mr. GRoss: Does this, Sir, underly the reason why you perhaps recom
mended compulsory education as soon as practicable?
Mr.RAUTENBACH Y:es, that is one of the reasons why we recommended
compulsory education.
Mr. GROSS:Would it be within your knowledge to advise the Court
whether or not if, let us say, it proved feasible in the urban areas to
introduce compulsory education for non-Whitcs, considering that it
exists for \Vhites, that you would recommend that that be donc, where
practicable as well as when practicable?
l\Ir. RAUTENBACHY : es,I certainly would do that, but taking into
account the wishes of these people themselves to a certain extent.
Mr. GROSS:And the wishes of these people, Sir, relate to the people
to whom the Odendaal Commission is referring when they say "a striking
feature is the value attached to school attcndance"and so forth. Would
they include these people in the phrase you used?
Mr. RAUTENBACHY : es, but now I must mention this other facet, or
rather aspect, of the matter and that is that Dr. Van Zyl and his commis
sion found that there was no widespread wish on the part of the people
in South West Africa, at this stage, to make it compulsory, but at some
future stage.
Mr. GROSS:Yes, Sir, I have in mind thattestimonywhen I aska question
now with respect to your own knowledge on the basis of your own
recommendation whether, in addition to the reference to which you
referred to the people as a whole, to get away from the group, or "whole''
aspect of the matter, your recommendation with respect to compulsory
education for non-Whites is based upon feasibility of accomplishment
where possible as well as when possible? SOUTH WEST AFRICA
Mr. RAuTENBACH: Certainly.
Mr. Gross: Would you say, Sir, that, as far as the urban areas are
concerned, in the light of what you have testified about the Odendaal
Commission findings, do they or do they not present a special problem
and a special opportunity with respect to this matter of compulsory
education?
Mr. R'i.UTENBACH: I would say that the urban areas are somewhat
in advance of rural areas and homelands in this respect.
Mr. GRoss: Did you, Sir, in your recommendation, take into account
the treatment of requisite education to qualify for education in univer
sities?
Mr. RAUTENBACH: I do not quite get that.
Mr. GRoss: Did you in your analysis of the matter of compulsory
education take into account the degree of educational achievement
requisite to qualify for university education?
Mr. RAuTE:-lBACH: Yes, I had that in the back of my rnind, that we
should get more university students; one way of getting more university
students from these communities was to introduce compulsory education
in future at some time so that a larger number will proceed beyond the
ordinary compulsory stage, which as a rule is 16 years or Standard VIII.
Once they have gone up to 16 years, then one could encourage them to
stay on to Standard IX and Standard X and corne to the university.
Mr. GROSS: Would this, or would it not, have a bearing upon the
followingundisputed facts in the record, out of the Odendaal Commission
report-I refer to page 157, paragraph 650; there are 94 doctors in the
Territory of South West Africa, there is no Bantu doctor; 93 are White,
and one is classîfied as "Baster" and practises medicine in Windhoek;
with respect to the problem of education generally, would you have an
opinion with respect to why, after these many years of the Mandate
administration, there is no Bantu doctor in the Territory of South West
Africa?
l\frRAUTENBACH: I would suggest that it is owing to general back
wardness in education, as is the case in many parts of Africa. I happen
to have read through the summary recently of the Odendaal report,
and the statement there is that the real significant development in
education, or the real start of education, was only after South Africa got
the i\Iandate in 1921; whereas something like 15 percent. of the popula
tion had been attending schoo1, now in 1962 something like 46 percent.
were attending school. I have a list here of the number of graduates in
1962 throughout the whole of sub-Saharan Africa, and it is very much of a
similar picture through South West Africa.
Mr. GROSS: Would you say that the same reasons apply to explain
why there are 16 dentists in the Territory, of whom all are White-would
the same explanation that you have just made apply to that fa.et?
Mr. RAuTENBACH: I know as yet of no Bantu who has completed his
dental training, up to the present moment. There arc Sodoctors in training
in the Natal University; in the medical faculty SoBan tu doctors staycd over
the seven years; but I do not know of a Ban tu dentist-it may just have
slipped my notice, but I do not know of one as yet. One should bear in
mind that the highest number of matriculants amongst the Bantu were
stillunder 300 so far in the Republic, and of these, the three university
colleges have to be fed, and teachers' training colleges, and in adminis
tration and ail these services, and that is why I am so keen to get more WlTNESSES A!>IDEXPERTS
Bantu mat.riculants, more Bantu university students, to provide better
for the future.
Mr. GROSS:With respect to the 80 who are receiving medical education,
are any of these from South West Africa, so far as you know?
Mr. RAUTENBACHI: have not had these broken up, I am not sure
about that.
Mr. GROSS:Finally and very briefly, with respect to another profession
which has been the subject of some discussion here, engineering; it is
undisputed in the record that there are no non-White engineers in South
West Africa. I refer to Dr. Krogh's testimony, at page 134, supra.
The PRESIDENT:That is in the sense of graduat es, Itake it, Mr. Gross
graduates in engineering?
l\frGROSS:Yes, Sir, that is my understanding. And Dr. Pepler, who
has testified previously on 29 September at page 241, supra, testified in
response to a question that "an engineer cannot ever qualify by in
service training". Did you understand the quotation?
Mr. RAUTENBACHI: understand the quotation, but I beg to differ from
Dr. Pepler. He cannot get a degree, but he can get associate membership
of the Engineering Association which enables him to enter the same
sphere of work as a graduate engineer. By the way, that is something
which is in my realm, and that is that of university and qualifications,
and so on; it is not Dr. Pepler's rcalm, because he is an agricultural expert.
Mr. GROSS:I see. Are there any agricultural engineers?
~fr. RAUTENBACH:Oh yes, we train agricultural engineers; my
umversity has been training them since 1928, but there are no Bantu
agricultural engineers as yet.
Mr. GROSS:Could an agricultural engineer receive experience by in
service training which would qualify him to serve in the same capacitics
as a qualified engineer with a degrec?
l\frRAUTENBACHI: am not quite sure about that, but I just have an
idea that under the departmental work of Dr. Pepler and his people-soil
conservation and so on, and these matters-if a boy, whether Bantu
or White or Indian or Coloured, were to enter that, were to take certain
examinations of certain overseas institutes, I think it is just possible
that he could become an associate of one of these institutes of civil
enginecrs, but I am not sure about this. It is happening with others, so
that I think it could be possible.
Mr. GRoss: That would involve training, education, at overseas in
stitutions, you say?
l\Ir. RAUTENBACHN : o, not necessarily training. You can enter as an
external student of many of these institutions overseas without being
overseas yourself, and it is done by correspondence.
Mr. GRoss: So far as the Republic itself is concerned'in this matter,
there has been placed into the record an excerpt from the debates in the
South Africa House of Assembly on 25 May of this year, which is No. 17,
column 6638 in Hansard, in which the ]'.vlinisterof Bantu Education,
l\fr.Cadman, was asked how many Bantu are at present being trained
as roads, public works, transportation, telecommunications, town,
electrical, water, civil and constructional,and othcr types of engineers,
and the answer, in each case from the Minister of Economie Affairs, was
"None". With respect to the training of engineers, what is the policy in
the universities in South Africa with respect to non-Whites, specifically
Bantus, qualifying for engineering degrees? SOUTHWESTAFRICA
Mr. RAUTENBACHT : he policy of the university institutions involved
is to advise the Minister to make provision for training as soon as it
becomes apparent it has been established that there is a need. A survey
of this type was made since the institution of the Ban tu colleges, and the
first result was that five young men would apparently corne forward for
training, but before further provision was made or anything further was
donc, all five had withdrawn and had chosen othcr professions. And in
the case of one or two of the other applicants there is on record, the
record I have brought with me from South Africa, in rg6z the Minister of
Bantu Educatfon gave permission to a Ban tu studcnt to study engineer
ing at the University of Cape Town. A number of others had previously
applied, and they were informed they could do the first year of study at
one of the Bantu colleges or as an externat student of the University of
South Africa.
l\Ir. GRoss: That would be by correspondence course?
Mr. RAUTENBACH:For South Africa correspondence, but in the case of
the three Bantu colleges the subjects are mathematics, applied mathe
matics, physics and chemistry, and ail these four subjects on a first-year
basis can be done, but no student bas been forthcoming so far who really
has a serious idca of getting an engineering training amongst the Bantu.
Amongst the other groups there are a large numbcr in training at the
moment.
The PRESIDENT:\Vhat other groups do you spcak about?
Mr. RAUTENBACHI: am speaking about the lndians, and I am speaking
about Co1oured people, but I think particularly about a group which has
not been mentioned here, and these are the Chinese people-there are
about 220 or 230 of them at the Universities of Witwatersrand, Cape
Town, Rhodes and Natal, and there are many engineers in training
amongst them.
l\fr.GROSS: Dr. Rautenbach, with respect to the question of the
overseas institutes to which you referred, would that, Sir, apply to cor
respondence or to persona! attendance in the normal way.
Mr. RAuTENBACH:That would apply, Mr. President, to correspon
dence.
Mr. GROSS: With regard to persona! attendance, what, Sir, is the
policy, if any, with respect to applications which might be made by
Bantu scholars who wish to personally study overseas?
Mr. RAUTENBACHM : r. President, I am undcr the impression that the
Government is not encouraging Bantu students to study overseas at the
present time, but to retain them in South Africa and to make provision
forthem in South Africa.
Mr. GRoss: Sir, with respect to the matter of overseas study, are you
aware, on the basis of any study you have made, of the number of Bantu
or, I mean to say, generally non-White students of South African origin.
who are personally studying overseas, not by correspondence?
Mr. RAuTENBACH:l\fr. President, no. The last statistics I saw referred
to the year 1959, in one of the public~tions from Britaii:i. There was a
summary of students coming from overseas (that was shll when South
Africa was in the Commonwealth} and I remember, at that time (I still
remember some figures) the 1argest number in Britain in that year were
from Nigeria and that was r,200. There was not a very large number,
but there were a number coming from South Africa. I do not remember
the numbers. I have not seen statistics later on. WITNESSES A!'.DEXPERTS
:i\lr. GROSS:You would not, Sir, or would you, regard this question as
one which would be relevant to the development of the university level
education system in South Africa?
Mr. RAUTENBACH :t would be relevant in this respect and that was
also expressed by Carr-Saunders and others, that one does want to
retain the ablest students at your own univcrsity institution bccause
these young men go on to post-graduate study. These young men, if they
do well, enhance the reputation of that university, and losing the ablest
students means also a handicap to the development of that university.
Mr. GROSS:Sir, à propos of yourtes timony with respect to the avail
ability of overseas study by correspondence, and your testimony with
respect to the facilities available in South Africa, I would like to refer to
a table appearing in the report of the Sub-Committee on Africa of the
Committee on Foreign Affairs to the House of Representatives of the
United States with respect to the number of African students, specifically
South African students, studying in the United States, and the figure is
390 students from South Africa, of whom 136 began their studies in the
United States in 1964 to 1965. Sir, what bearing, if any, would this figure
have with respect to the problem of university level education in South
Africain terms of the desire of studcnts to study abroad? Is that question
clear, Sir?
Mr. RAUTENBACHN : o, it is not clcar.
Mr. GROSS:This, you will agree, would you not, indicates a desirc on
the part of a certain number of non-White students from South Africa to
study abroad? That is clear from the figures, is it not, Sir? I ask whether,
Sir, as an expert, you would have any views with respect to the signi
ficance ofthat figure, that fact, with regard to the general desire of non
White students to study outside South Africa?
Mr. RAUTE:-IBACH I:can testify that I know that there is such a desire.
I have been a member of the Advisory Committce to the British Council
which awards scholarships and bursaries; I was a member of the Com
monwealth Universities' Advisory Committee on scholarships abroad; I
know about the application of Africans or Bantu and others to go
abroad, and it is a consideration on our part always whethcr that man
is prepared to declare that he wants to return to South Africa.
Mr. GROSS:Now, Sir, if he declares his wish to return to South Africa,
would this be a reason for denying his visa to study abroad?
Mr. RAUTENBACHN : o, that in itself would not be a reason, and in that
case, if the man is otherwise suitable and promising, we recommend and
thcn it is outsidemy sphere or our sphere whether he gets a visa or not.
Mr. GRoss: Do you know, Sir, how many, if any, of the South African
non-White students who are, let us say, studying in the United States,
by way of example, are therc without visas or other official permission
of the South African Government?
Mr. RAUTENBACHI: could not say, but from time to time one does
read in the papers about one or other of these young men, or not so young
men, in certain cases, who in some way or other fled the country and
provision was made for them in the United States, by some foundation
or something of the kind. I have read about these cases but I have no
persona! knowledge.
Mr. GROSS:This has not corne within the purview of your conccrn
with regard to the university level education in South Africa?
~Ir. RAUTENBACHN : o, I do not sec that it has any bearing unless it368 SOUTHWESTAFRICA
is a wonderfully gifted man who could become a professor of, let us say
physics, for instance. I would be interested in getting such a man back
because we have so few, as yet, on the side of the exact sciences who
have progressed far, but, on the other hand, again, South Africa does
provide for training up to a doctorate and cvcn post-doctorate levels in
the caseof C.S.I.R. ·
Mr. GRoss: Sir, in your studies or analysis of the university level
education policies to which you are addressing your testimony, would
you express an opinion to the Court why, if you know, on the basis
of your experience or judgment, a South African non-White student
should apply to a foreign university for training? Specifically, perhaps,
to focus the question, what bearing does that fact have, if any, with
respect to the adequacy or otherwise of educational facilities in the
Republic in the fields of his aspiration?
i\lr. R.wTENBACH:I think it has comparatively little bearing because
as many, or very many more Whites apply forscholarships and bursaries
tooverseas universities-American and soon.
Mr. GROSS:Are the same policies or, as you term it, encouragement or
lack thereof. applicd to the \\'bite South African student who wishes to
pursue studies abroad?
Mr. R,rnTENBACH:Taking into account the situation of the White
community, certain policies are applied. For instance, scholarships are
not awarded in branches where a student can do his training in South
Africa.
Mr.GRoss: If a White student applies for a visa to study abroad is he,
as a condition of obtaining that visa, under any obligation to state
whether it is his intention to retum to South Africa upon completion of
bis studies?
l\1r.R.wTENBACH:To the best of my knowledge, but J would not take
my oath on that. That is asked in the form which he fills in to obtain a
visa for going abroad,but in those bodies of which I am a member this is
not significant. He has got to express his intention of returning to South
Africa.
Mr. GRoss: ln other words, if a White persan applies for a visa to
pursue studies abroad he has to state his intention to return to South
Africa upon completion of his studies? Is that what you have said, Sir?
Mr. RAuTENHACH:Yes, to the best of my knowledge that is soin the
case of providing passports. As I said, I would not like to take my oath
on it. Again, it is a fiein which I am not an expert.
i\fr. GRoss: This is nota type of policy question which arises before the
Advisory Council?
Mr. RAUTENBACHN : o, the Advisory Council deals with sub-university
level andthere is no need to proceed overscas at the sub-university level.
Mr. GRoss: Now, just to round out the factual picture, have you had
occasion to inquire conceming the number of South West African non
Whites who are pursuing studies abroad, outside South Africa?
:\Ir. RAUTENBACHH : ave I any knowledge did you ask?
Mr. GRoss: Have you any basis for knowledge on that point, Sir?
Mr. RAUTENBACHI: read about a man by the name of Benkes who at
that time claimed to be a student overseas and one or two others, but I
just read that in the newspaper and I do not regard that as the very best
source of information for an academic man.
Mr. GRoss: Now, Sir, this table to which I have referred, being an WITNESSES AND EXPERTS 369
official publication of the Congress of the United States, the House
Foreign Affairs Committee, sets forth that there are six students, non
\Vhite or "African" students from South West Africa, who are at the
present time studying in the United States. \Vould that fact have any
significance in your mind with respect to the choice of institution avail
able in South Africa as distinguished from abroad?
Mr. RAUTENBACH: It would have an effect on my mind if I were to
know what the reasons were for these young men going to one or the
other country. It would also affect me if I were to know whether they
had fled the country or tried to get out in the ordinary way, or whether
they had received a passage out of the country on condition that they
would not return again. Quite a number of these factors would influence
me but just quoting six men without knowing anything about their past
or their background-I could not say.
}Ir. GROSS: The fact that there arc twice as many South West Africans
pursuing university level instruction in the United States than there are
in South Africa-would that ratio have any significance in your mind?
i\fr.RAUTENBACH: Not in this situation as we know it at the present
time.
M:r. GROSS: Now, Sir, did I understand you to refer to "condition of
agreeing not to return"? Did I understand you to say that. Sir?
)Ir.,RI\.UTD!BACH: I have also read in the newspapers about the time
a complaint was made about a certain individual wanting a passport and
the passport was granted subject to that individual not returning to
South Africa. As I say, it is a newspaper report.
M:r. GROSS: I am attempting to focus on policy because _Iwanted to
make sure the Court understood your testimony in the way you would
wish it. With respect to the White student who applies for a visa to study
outside the country, I understood you to say that the question asked
was whether he woulcl agree or intend to return to South Africa. Is that
correct, Sir? I understood you to say that in the case of the non-White
student ,vho makes a similar application to study outsicle the country
the question is asked or the assurance requesterl that he will not retum.
i\frRAuTENl!ACH: I have read about cases like that.
i\frGROSS: Do you happen to know what the policy is, Sir, with respect
to the Whites and the non-Whites respectively in this context?
Mr. RAUTENBACH: Not with such certitude that I could inform this
Court about the policy and its details.
Mr. GROSS: Do vou, Sir, regard then the entire question-! address
this to you as an expert, Dr. Rautenbach--do you then regard the entire
question of the number of non-\Vhite South and South West Africans
who study abroad, and the reasons for which they do go abroad, do you
regard these elements as unrelated to an analysis of the university system
of South Africa?
Mr. RAUTENBACH: No. If I had the genuine reasons why they went
abroad, that could influence my views on the necessity of making certain
provisions for which there was no provision in South Africa. To say six
people, whether they went overseas to take English as a major subject
well, we do make provision for that. If they went to study engineering
and if I could learn something about what course these young men were
pursuing, then I would be in a better position to reply, but just mention
ing the number ...
Mr. GRoss: Weil, I thjnk that js a fair comment, Sir. However, before370 SOUTH WEST AFRICA
we get to that, I would like to ask you again whether you consider that
the reasons why these young men and women go abroad for education is
related to your analysis of the educational system of South Africa itself?
Do you regard this as a matter with which you, as an expert, need not
concern yourself? This is my question, Sir.
Mr. RAUTENilACH: Mr. President, I am asked to judge on reasons
which I could imagine or somebody else could imagine, not on real
reasons, for they have not been advanced. And until I have these reasons
before me I cannot answer that question of whether their presence
abroad is relevant to future education policy in South Africa. I am very
sorry. I regret sincerely.but I cannot reply tohypothetical situations. I
am inciined to agrec with Sir Isaac Newton-hypotheses non fingo.
Mr. GRoss: My question, and I will pursue it only to make sure you
understand it, is whether you regard the number of non-White students
who pursue studies abroad and the reasons why they do so as outside the
scope of your analysis of the South Africa university level educational
system-is it or is tt nota factor related to the South African univcrsity
svstem?
• Mr. RAUTENBACH: The nature of the reason would determine whether
their presence abroad was relevant to the South African situation.
IlfrGROSS: \Vell, Sir, your admitted lack of knowledge with respect
to the reasons would reflect would it, Sir, some gap in your information
of a relevant nature?
Mr. RAuTENBACH: Not necessarily, because the real reasons and the
reasons given are not always the same.
Mr. GROSS: So that your suspicion of the data which you would obtain
bas deterred you from making an enquiry-is that what you want the
Court to understand?
Mr. RAUTENBACH: No, it has never impressed me as being a factor on
the horizon of such vast importance that I should devote any particular
amount of time to that.
Mr. GROSS: With respect to the six South West African students and
still referring to the same document, this time however, to table 3 at
page 20---you do not have the document in front of you, Sir-1 am
reading it-of the six South West African students, four are listed as
graduate students in agriculture. Now would you have any basis for an
opinion, Sir, as to whether the fact that these four students from South
\Vest Africa are graduate students in agriculture in the United States
would that have any bearing on whether there were adequate facilities in
South Africa for a South West African non-White to pursue graduate
studies in agriculture?
Mr. RAuTENBACH: No, not unless I know whether they perhaps took
their degree in Basutoland, becausc in Basutoland provision was made to
the best of my knowledge for study in agriculture.
Mr. GROSS: But it is undisputed in the record that no facilities for
higher education exist in South West Africa, and so far as South Africa
is concerned, on the basis of your knowledge or expert opinion, would
any of these four South West African non-Whites who are pursuing
graduate agriculture studies in the United States have qualified in South
Africa itself-could they have qualified in South Africa itself?
î\Ir.RAuTENBACH: No, they could not have qualified in South Africa
itself because the training is given at the universities of ... yes, they
could have, there is a slight possibility that one could have trained in WITNESSES AND EXPERTS 371
Natal because in the University of Natal there has been an agricultural
faculty for anumber of years and they were allowed to do varions courses,
and it may just be, I am not sure about that Mr. President.
Mr. GROSS: I do not want to tax your knowkdge beyond the point of
your information, but I want to get before the Court your analysis of
the possible implications of these facts from an expert point of view.
;\frRAUTEN"BACH: I have other information on this point if you want it.
Mr. GROSS: If it is relevant to this point, Sir, I think perhaps the
Court would welcome it.
flfrRAUTENBACH: It is relevant to this point and also to the other
point raised in connection with engineering. There has been a committee
going into this whole matter of the training of agricultural experts in
animal husbandry, etc., and one of the members of that committee was
the Dean of the Faculty of Agriculture at my own university and I know
about this because he had to get leave from me to do this, and on the
other hand, as Chairman of the Council of the Bantu College of the North,
I had a part in acquiring an experimental farm with a view to establishing
an agricultural faculty at that institution. So that my reply is now that
if the presence of these young men in America is due to a Jack of training
facilities inSouth Africa, as soon as we know about a need then we go
into that and we make recommendations to the Minister-1 am very
interested in these figures.
.i'tGROSS: May I then express gratification that this information may
perhaps be of service to you in your further studies.
The PRESIDEC'l"T:The important thing is that it be of service to the
Court I think, l\frGross.
Mr. GROSS: That is the first loyalty always, Sir. I would Jike to turn
to your testimony with respect to conditions previous to 1959 in South
Africa and in particular your testimony on page 331, supra,ofyesterday's
verbatim record, which is 4 October. I refer specifically to your statement
in response to the question put by Mr. Grosskopf at the top of page
331, in which Mr. Grosskopf asked you-"To what extent would you say
that the Bantu took advantage of, or were admitted to, those facihties?"
Your answer was as follows:
"They were admitted under certain limitations, In the case of the
University of Natal they were not admitted to the Faculty of
Science and Mathematics because there were too few places to
accommodate students outside the \Vhite group. In the case of the
othe runi versities, they were admi tt ed subjeet to certain limitations. "
Now Sir, with spedfic reference to the fact, as you testifi.ed in the portion
I have just read, that there were too few places to accommodate students
outside the White group, does that mean, Sir, that an absolute priority
of admission was given to the \Vhites?
Mr. RAUTE.}!BACH: Yes, the University of Natal was established with
the idea of it being a University for the Whites and with ail the sympathy
of its Council and its Principal for other groups, it had to satisfy the first
of its patrons. It was not legally established that it was for one group,
but by tradition. The University of Natal decided in 1935 to provi.de
facilities as far as possible for non-White groups, but I have read that
at a certain stage, owing to the European numbers coming forward in
the post-war period, there were no more places for the non-Whites and
they wcre encouraged to enter only the other courses of study. SOUTHVi'EST AFRICA
372
Mr. GROSS: This was a matter of university policy to rcserve the
positions for Whites only?
Mr. RAUTENBACH It was a policy of this particular university because
at that time it was an open university and the University Council decided
what the policy would be in this respect and this was the University
Council's decision as far as I know.
Mr. GROSS:The University Council's decision was to give an absolute
priority to Whitcs to fill up all available places beforc non-Whites would
be considered for admission-is tha t correct, Sir?
Mr. RAUTENBACHT :hat is correct as far as the Faculty of Science and
Mathematics is concerned-I have only read about that being the case.
Mr. GROSS:Would you explain or do you consider that you have ex
plained why this absolute priority v,7asestablished by the University as
a matter of policy?
i\Ir. RAUTENBACHI: could just guess at that-the University of Natal,
situated in one of the provinces of the Republic, the majority of the
people are English-speaking and they have been settled there for a long
time. lt was established as a College in 1909 and I think very few ap
plications came to this University beforc 1935 to make provision for
others, it had become part of tradition. In 1935, the Council of this
University dccided to make some provision for the training of other
groups outside Whites, subject to internai separation.
The PRESIDENT:May I ask the witness a question. 1\1r.Rautenbach,
you speak of the Council deciding these things, to what extent is the
Council, if at ail, subject to the direction of any governmental control?
Mr. RAUTENBACHI:n the universitics establishcd by Acts of Parlia
ment, the so-called incorporated universities, the Council has what we
call in Afrikaans or Dutch Iaw "regspersoon"-it is a corporate body
and it is a corporate body which has ail rights pertaining to a corporate
body with certain exceptions; the one exception is that it may not
establish new departments or faculties unlcss the l\Iinister of Education
gives his approval; secondly, it may not institute new posts unless the
Minister of Education gives his approval-otherwise it is an autonomous
body.
Mr. GROSS:\Vith respect to this question that the honourable President
has addressed to you, in the first place, has the corporate body to which
you refer been composed exclusively of White persans?
Mr. RAUTENBACHA : corporate body of the University of Natal has
always becn to the best of my knowledge composed cxclusively of White
persons.
Mr. GROSS:Js it not true, let me put it affirmatively-is it true that
the members of the Council are appointed by the State President?
l\Ir.AUTENBACHN : o.
Mr. GRoss: By whom arc they appointed?
l\Ir. RAUTE~BACHO : nly a certain number of members are appointed by
the State President. Let us sav, there are 20 members or 22 or 24 in the
University of Natal and the ~le is that the State President appoints
about one-third-about eight. As a rule three or four are elected ... must
I continue-shall I continue with this? As a rule three or four are elected
by the alumni. Then another number are elected bv the donors, those
who have givcn or prescnted gifts or donations to- the University in
excess of a certain amount.
Mr. GRoss: Vou mean the generous alumni, Sir? WITNESSES AND EXPERTS 373
Mr. RAUTENBACH: We are a young country-we have not got so man y
alumni as yet who are both generous and well-to-do, but rnany of the
large corporations do give amounts. \Ve are not as far advanced as the
Americans in that respect~they really set an example to the world.
Then as a rule the municipality in which that university is situated also
appoints a.certain number of members so that the number of mernbers
appointed by government may be one-third to two-fifths-it differs from
universlty to university.
Mr. GROSS: Thank you, Sir. With respect to the fixing of priorities,
absolute or otherwise on a racial or ethnie basis-would the Council in
exercising its autonomy consult with the Ministcr of Ban tu Education or
any other government official, normally?
Mr. RAUTENBACH: Now, I could not sav what other councils would do
in that case because prior to 1959, it was not necessary to consult with
the Minister.
Mr. GROSS: Therefore, your testimony with respect to the matter in
question is not based upon information concerning how the council, in
fact, arrived at its decision and in the first place stopped there-is that
a correct statement?
Mr. RAUTENBACH: No, that is not quite correct. The Principal of the
University of Natal, who is retiring at the end of this year and who has
been serving there for over zo years, published a long article in October
1964 on the history of the training of various groups outside the White
group-The University of Natal, over the period I938-r963. ln this long
article he mentions various steps which were taken to make that provi
sion and also the varions provisos which were made by the Council, so
that if that is not sound and reliable information then I would not know
what is. Perhaps I misunderstood you?
!\frGROSS: You understood me perfectly and you cited exactly the
right authority, if I may say so. The question I would now like to ask you
is, did this undoubted authority to which you rder explain in his report
why there was an absolute priority for Whites in the Faculty of Science
and Mathematics and not in other faculties?
Mr. RAuTENBACH: No, he did not even mention it in that report.
1\IrGRoss: Do you have any expert or other basis for an opinion on
that subject-for the reason for this distinction?
Mr. RAUTENBACH: Yes, in one of his addresses which he gave about
six years ago he mentioned this fact that a limitation had to be set on
entry into a science faculty because there were too few places.
Mr. GROSS: But you have no opinion, Sir, as I understand, as to why
there was an absolute White priority in this faculty whereas in other
faculties there was not?
Mr. RAUTENBACH: Yes, I have an opinion on that, and as I have al
ready said, I think that Natal was by tradition regarded as a university
which in the first place was established for the training of \Vhites, and
this Council bas to bear in mind what public opinion is and if the Nata
lians by birth or people residing in Durban or Pietersmaritzburg had been
excluded they would have raised Cain I think.
Mr. GRoss: Exduded from the Faculty of Science?
Mr. RAUTENBACH: Excluded from whichever faculty they could not
enter because other groups stood in their way.
Mr. GROSS: Is your testimony on the point that Bantu were not
admitted to the Faculty of Science and Mathematics because there were374 SOUTHWESTAFRICA
too few places outside the "White group? Does that apply to other
faculties at the university of Natal as well?
Mr. RAUTENBACHT :hat I could not say. I only saw this mentioned in
the case of the Faculty of Science.
Mr. GROSS:You do not know what the policy was with respect to
other faculties at the university?
Mr. RAUTENBACHI: can make them by inference, that the policy was
that as long as there were places let them corne along.
Mr. GROSS:So that there was an absolute priority for Whites in all
faculties in your opinion, Sir?
Mr. RAUTENBACHW : ith this one exception.
Mr. GROSS:With what exception?
Mr. RAUTENBACHT :he Science Faculty. The Faculty of Science and
Mathematics.
Mr. GROSS:I understood you to say that your opinion was that the
absolute White priority applied to all faculties of the university.
Mr. RAuTENBACH:Yes, it applied in theory but no problem arises
until there is a lack of student places.
Mr. GROSS:I see.
Mr. RAuTENBACH:In faculties like Arts and Literature you can
accommodate large classes and you can dupiicate classes and you can
triplicate classes, but in the Science Faculty you have got to have a lab.
Mr. GRoss: ln other words, Sir, this is the reason; the Science Faculty
studies needed laboratory facilities and that this, would you agree, is
where the shoe pinched? That in the case of the other faculties there was
not the necessity to apply the policy of absolute White priority. Would
you agree to that statement?
Mr. RAUTENBACHN : o, there was not as good a reason, or as sound a
reason in other faculties as in this case.
Mr. GROSS:AU right, Sir. Turning now to the same verbatim at page
345, supra, this is by way of clarification or elucidation, if you will, Sir.
At page 345, in answering questions directed to you by Respondent's
Council, you assigned as one of the consequences which would follow
from what was described as the abolition of differential universibes, one
of the reasons you assigned on page 345 was: "Secondly, you could not
retain the best staff if the best type of student does his post·graduate
work elsewhere." Now, Sir, would you consider, as an educationalist, that
the limitation of freedom of movement or opportunity for the best type
of student, limiting his freedom to pursue his studies elsewhere, might
have a depressing or discouraging effect on the faculty of that institution?
Mr. RAUTENBACHT : hat the limitation imposed, did you say, would
have a discouraging effect?
Mr. GRoss: Your testimony is that one of the reasons for the so.called
differential universitieswhich are otherwise described as segregated
universities, wasthat you could not retain the best staff if the best type
of student does his post-graduate work elsewhere. Now, my question is
whether you regard this reason for limiting the freedom of an individual
to pursue studies at a university of his choice as an adequate reason from
the educational point of view? Do you understand my question? Would
you care to answer that, Sir?
Mr. RAUTENBACH:Yes, I will answer that. The indication so far
has been that no member of staff has become unduly depressed
by the limitation of the movement of graduate students. I have not WITNESSES AND EXPERTS
375
heard about anybody thinking of resigning his post for that reason.
Mr. GROSS:Your testimony as I understood it, Sir, and as I said
before-this is for clarification and elucidation-was that this was one
of two reasons you gave in response to Counsel's request for your opinion
as to what the result would be if segregation or differential universities
were abolished, and you have cited this as one of the two reasons. Now,
I wanted to pursue that with you and ask whether you think it is, if I
may put it shortly, a valid and sensible reason from an educationalist's
point of view?
Mr. RAUTENBACH: Itis a valid and sensible reason from an education
alist's point of view, whohas an open eye for the realities of the situation.
The most important component of a university, after the student of
course, is the teacher and the retention of a good staff is something which
worries every university executive, and, where I have an interest in these
Bantu universities, I would like to retain that staff. They have left the
university for other reasons but not for the reason that the limitation of
the movement of students has depressed them to such an extent that
they thought they had better get out of this type of university.
Mr. GROSS:So you would not regard this as a major reason, in reply to
Mr. Grosskopf's question?
Mr. RAUTENBACH: No, it is an additional reason.
Mr. GROSS:Merely an additional or supplementary ... ?
Mr. RAUTENBACH: A supplementary reason.
Mr. GROSS:And it is purely suppositious on the basis of anything that
has happened so far in your experience?
Mr. RAUTENBACH: Yes, we have done a great deal of supposing this
morning.
Mr. GROSS:Thank you, Sir. With regard to the general probtem of
staffingof the non-White universities, has there been a difficulty created
in respect of recruitment of teachers by reason of the opening of the
segregated schools?
Mr. RAUTENBACH: The influence or the result of the opening of more
schools wit:hmore posts bas aggravated the situation which existed before
that time, which exists throughout the whole world at the present time
-and that is the shortage of academic manpower. It is noticeable now
that we have to appoint at the White universities younger men than
previously and wc are experiencing the same problems. Iam experiencing
a problem at my university to get properly qualifi.ed young men into the
Faculty of Law and I have had a complaint, just before I Ieft my country,
from Professor John Maréof the University College of Ngoye, and he was
on the look-out for a young B.A. or LL.B. man. \Ve are experiencing the
same difficulty, but he was more fortunate than we are in being able to
recruit men from the White universities who could still retire at the age
of 60 and then, with the assistance of the Minister of Education, offering
them a ten-years' contract to go and teach at the Bantu universities. He
bas just recruited a man from the University of Witwatersrand for the
teaching of English, who formerly was senior lecturer at my university
a very good man.
Mr. GRoss: Now, Sir, would you be prepared to say, Sir, that leaving
aside, but not forgetting, the beneficial reasons you have asserted in your
own view for the establishment of these segregated schools, that this
teacher problem was one of the prices that had to be paid in order to
accomplish the objectives you had in mind?376 SOUTH WEST AFRICA
Mr. RAUTEl'ŒACH: Yes, it is one of the prices which had to be paid
there and it is one of the prices which is being paid over again in the
establishment of two new European universities.
Mr. GROss: With regard to the establishment of the separate univer
sities inthe 1959 Extension of University Education Act, as it was
called, I shall now address certain questions on that subject to you. In
order to lay a foundation for those questions, I would like to ask you,
Sir,whether you are familiar with the 1959 Act in question?
Mr. RAUTENBACH: Mr. President, I am familiar with that Act. I think
I have a copy of the Act with me.
tifr. GROSS:I may not necessarily refer to specific provisions but I just
want to establish whether or not you regarded yourself as an expert with
regard to the provisions of the Act.
Mr. RAUTENBACH: Mr. President, I have no legal training. The only
man who can really be an expert on these matters in fact is a man with a
Jegal training. J have a general knowledge of this Act.
!\fr. GROSS: You will know, Sir, generall y, what the reasons were
which were assigned by the Government for the adoption of the legis
lation?
Mr. RAUTENBACH: Yes, Sir.
Mr. GRoss: I am not asking you now to explain them. I just want to
lay the basis for your knowledge on this subject.
l\lr.RAUTENBACH: Yes, Mr. President, and I think these are to be
found in the report of the Select Committee of Parliament.
Mr. GRoss: Yes, Sir. You are familiar with the reasons, are you not?
l\lrRAUTENBACH: I am familiar with the reasons.
i'llr. GROss: Are you familiar with methods by which the Iegislation
was implemented~has been implemented? ·
' Mr. RAUTENBACH: Yes, in general.
Mr. GROss: Are you familiar, or do you profess familiarity with the
consequences of the measures taken to implement the legislation?
Mr. RAUTENBACH: Yes, I am familiar with the number of students,
etc.,ifthat is what is referred to.
!\Ir. GROSS:Generally speaking. Thank you. I want to turn now to the
question of the major reasons, if you pleasc, which were assigned by the
Minister of Bantu Education to the House of Assembly in support of the
Act in question. Can you summarize those? Select the ones that you re
gard as of outstanding significance.
Mr. RAUTENBACH: I think a mistake is made there. The Act was not
introduced in the House of Assembly by the Minister of Ban tu Education
but by the Minister of Education. That is the Act of 1957.
Mr. GROSS:Yes, Sir, now I am referring to the statement of the Minister
made in the House of Assembly in 1959, which is referred to in the
Counter-Memorial, m, page 483, which is preceded by-introduced by
the comment at paragraph 35, from which I read:
"Later the Minister of Bantu Education, in the same debate,
explained the four fondamental considerations on which the BilJ
was based.
The following is a summary of the ?iiinister's speech."
This, Sir, is the speech to which I am addressing myself.
The PRESIDENT:That was not on the introduction of the Bill, that was
later. Is that correct, Mr. Gross? WITNESSES ANDEXPERTS 377
Mr. GROSS:This, Sir, was on the introduction of the Bill, on an ex
planation of it. Itis cited in a footnote of the Counter-Memorial: "U. of
S.A., Part. Deb., House of Assembly, Vol. IOO (1959)." That would be at
the time of the debate on the Bill that had been introduced. Is that
correct?
Mr. RAUTENBACHY : es, but I do not think ... I know for certain in
1957, when the Bill was introduced for the first time, the i\Iinister of
Education, Arts and Science introduced it.
I had actually spent the previous evening with him as his guest and I
knew he was going to introduce it the following day. Now I am not sure
whether the second introduction of the Bill was done by the l\linister of
Bantu Education, but in any case he participated in that debate. There
is no doubt about that.
1lr. GROSS:That is the speech to which I am referring. l\lrPresident,
is there any other aspect of this which you wanted ... ?
The PRESIDENT:I wanted to·be clear upon certain points.
Mr. GROSS:With respect to the speech, the excerpts from which are
set forth in the Counter-Memorial, III, pages 484 and following-I will
not burden you, Sir, or the Court with the reading of excerpts from those
speeches, [ do, however, wish to ask you a basic question-a question
which perhaps you can answer shortly. Would you say, Sir, that the
introduction of the Act was a portion of the general implementation of
the apartheid or separate development policy in the Republic?
i\frRAUTEXBACH : r. President, that has been my impression all
along, that that was one of the bulwarks of this programme.
Mr. GROSS:And, Sir, would you, in the context of that reply-and
this is one sentence to which 1 call your attention and the only one
which I shall rcad, on page 485, that refcrring to open universities or
mixed uni versities. The Minister is quoted as saying as follows:
"If it is still to be permitted [that is to say, the open university]
it will create the fatal impression that apartheid is something which
is applicd and should be applied only until the non-\Vhite has
received his matriculation certificate... "
The sentence goes on from there. You may consult it if you wish,. or
counsel may check to sce whcther this is fairly in context but, pausmg
therc, would you, Sir, have an opinion with respect to the exte!1t to
which the introduction of the segregated university system was des1gned
to assure that the policy of apartheid genera.lly would not find any
exception in the education system of the country? Would you agree to
that as a fair summary of that statement?
Mr. RAuTENBACH:No, I would not agree to that as a fair summary of
that statement.
Mr. GROSS:Would you please explain to the Court what your view
would be of that matter?
Mr. RAUTENRACHT :he apartheid separation (the word sounds so very
sinister in another language, although it does not in my own as it is an
Afrikaans word) is not there for its own sake-it is a programme-a
programme starting from this premise, that every community in South
Africa has the right to be in South Africa, has the right to live there, h~s
the right to develop there; that any community in South Africa 1s
capable of producing its own leaders; that any community should be
encouraged to produce its own leaders; that it should be open to a
community, through a process of self-detennination, assisted when it is SOUTHWESTAFRICA
Jess mature than the other, to make its own choice as regards the future;
that any community has the right to lay daim to its most gifted young
men and older men, whether trained primary school level, or the second
ary school level, or the tertiary school level. The main objective of this
programme was stated, I think, very clearly by the Prime Minister,
Dr. Verwoerd, in London, in 1961, during the Lancaster House events,
when he saw a vision of the future of South Africa as being a country
with nations or communities politically independent and economically
interdependent. Now all these aspects or facets-the first leveof educa
tion and the second level of education and the third level of education
are part and parce! of this programme, and education is a very important
part of this programme, to move in the direction of full nationhood for
these various communities and peaceful co-existcnce where the justified
aspirations of all are on their way towards fulfilment, if not fulfilled. I
cannot see the trend of the question, for-that rneasure of 1959 was to
savc an aspect of apartheid, because that is a means towards an end. One
is involved with the end more than the means. Apartheid is a means
towards an end-it is not an end in itself.
Mr. GRoss: Yes.
Mr. RAUTENBACH:I do not know whether I have answered the
question.
Mr. GRoss: I appreciate, Sir, the length of your reply. I wou!d like to
know whether what you have described or attributed to Prime Minister
Verwoerd would be perhaps accurately summarised by another reference
more directly relevant to the educational system of South West Africa.
In the House of Assembly Debates on the so-called White Paper regarding
the Odendaal Commission report, on Wednesday, 6 May 1964-the
document has been dted fo the record and is dted in the pleadings, Sir
the Prime Minister, Column 5641, said as follows:
"J therefore lay it down as a principle that we envisage the even
tual right of self-determination for each of the smaller and larger
racial groups in South West Africa. Secondly, we offer protection
for every group in their development towards the highest fonctions
within each group, including self-administration in ail spheres. The
Report proves this very clearly, and the education envisaged is
directed towards that object."
I pause there, Sir, "... the education envisaged is directed toward
that object". Now the abject as stated, would you agree, Sir, is based
upon the object of self-determination for each of the smaller and larger
racial groups and separate political entities, economically interdepen
dent; is that the objective?
Mr. RAuTENBACH:That is, to rny mind, the objective.
Mr. GRoss: Would you agree, Sir, with the Prime Minister's character
ization of the education system as being envisaged as directed toward that
objective?
Mr. RAUTENBACHY : es, I read that together with his well-known policy
announcement on the Bantu Education Bill in the Senate Meeting of
7 June 1954-
1\Ir. GRoss: Then, Sir, finally, the Prime Minister goes on to say,
thirdly, and I skip a few irrelevant words in which he castigates the
honourable Member for Hopetown:
"The limitations imposed on the freedoms of people (as we find WITNESSES AND EXPERTS 379
practically over the whole world where anybody lives in a territory
of somebody else) falls away as soon as eve1ybody can enjoy his own
freedom in his own territory."
On the basis of your study and analysis of this situation, would you agree
with the indication from this statement-if it is a fair indication-that
the non-White in the so-called White sector of the economy in the
territory is living in somebody else's territory, would you apply that
concept to that particular situation?
Mr. RAUTENBACH: Yes, I would regard him as being a man who is
sojourning there and they sojourn there perhaps for three gcnerations or
four generations.
Mr. GROSS: I see, Sir. Leaving that then and continuing, "the limita
tions imposed on the freedoms"-may I ask you, Sir, whether you regard
this as a fair statement of the situation that there is a limitation on
freedoms imposed on the sojourner? Would you agree to that, Sir?
Mr. RAUTENBACH: Yes, there is definitely a limitation.It would be
extremely dishonest to deny that.
Mr. GROSS: Now, Sir, would you then, proceeding from that point,
express your view, whether you agree or disagree, with the conclusion of
the Prime Minister in this same excerpt that these limitations will, to
use his term, fall away as soon as everybody can enjoy his own freedom
and his own terri tory, do you agree with that evaluation of the ... ?
Mr. RAuTENBACH: That is the Prime 11inister's vision of the future,
and be is visionary at times and that vision appeals tome.
Mr. GRoss: Now you would characterize it as a vision, Sir?
l\IrRAUTENBACH: As a vision. Yes.
Mr. GRoss: Not then, as a programme of action?
Mr. RAUTENBACH: No, the ultimate is a vision. The programme of
action is this programme of separation, to realize what is incorporated in
that vision.
Mr. GROSS: \Vould you have any estimate at ail, or basis for an
estimate, as to when, if ever, the vision will be off the drawing board, so
to speak?
Mr. RAUTENBACH: I am very pleased with that question, Mr. President,
because iri the sphere in which I am active I set my target at not later than
1980. By then, the Bantu university colleges wiHbe full fledged univer
sities.By then, the stage will be reached-I mention the blue-print
where the present Council will change places with the present Advisory
Council and when the Bantu people, in this case, will take over the
fonctions of the Council and my successors (I shall not be there by that
time) will then be the people who will realize that they have sojoumed
for so many years in Bantuland.
Mr. GROSS: With respect to the proposition of ...
l\fr.RAUTENBACH: The reason for 1980, I mentioned that.
l\fr.GROSS: Yes, Sir, that has familiar overtones to me ...
Mr. RAUTENBACH: That is the target for all middle Africa-from
South of the Sahara right down to the border of Rhodesia, and I think
we are in a.dvance of this.
Mr. GROSS: With respect to the "falling away" of the limitations on
freedom, and I quote "as soon as everybody can enjoy his own freedom
in his own territory", and we are talking here, Sir, about the educational
context, the field of your own knowledge and experience, would you say
that the educational system is geared to the proposition that there will, SOUTHWESTAFRICA
at some unspecified time, be a total separation according to racial
groupings each "in his own territory", to use the Prime Ministcr's
language?
Mr. RAUTENBACHY : es, there is a likelihood of that. I believe we are
doing our best to make that happen and to bring that about.
l\Ir.GRoss: You envisage a total physical separation of the ethnie groups?
1llr. RAUTENBACHA : s far as I can see it, separation of the ethnie
groups, as I said, po1itically independent, economically inter-dependent.
He spokc of a commonwealth of nations in South Africa.
Mr. GROSS:Sir, he spoke about ...
Mr. RAUTENBACH:No, that was in London, he spoke about the
Commonwealth of Nations.
Mr. GROSS:What l am referring tais (sometimes it appears elusive in
some of the statements made, if I may interject that) to have as precisely
as possible, in terms ofthe education context, particularly, whether the
educational system is geared toward the objective of physical separation
of races or ethnie groups in separate teITitories?
Mr. RAUTENBACHY : es, I could subscribe to that for 50 per cent. You
see, the separate territories are there already. Education will not create
separate territories,but education gives a recognition to the fact that
there are separate territories, there are separate homelands, and, to use
Mr. Gross's word, cducation is geared to that real!ty. It is a form of
community service, education of a particular community.
Mr. GROSS:I regret to say that this is where previçmsly in the record
I have also fallen off going around a curve, if Iay put it that way, Sir.
I am not talking about the same thing you are talking about. I am asking
you whether it is an objective for which the educational system is devised
and applied. Is it an objective that there will be physical separation on
a racial basis, whereby Whites will live in one geographical area, and
non-Whites of various backgrounds and types and tribes will live in other
areas; is this an objective, Sir?
Mr. RAUTEXBACHY : es, as far as I can judge that is part and parcel of
the education programme. The education programme adjusts itself to that
reality, that there are Bantu homelands, there are Bantu residential
areas.
Mr. GROSS:I do not want to argue with you, J am trying to clarify my
question. Therc are Bantu homelands, as you describe them-let us
forget the nomenclature and for the sake of this discussion perhaps let
me agree with you. There are of course areas, and I am referring specifically
to the southern sector of the Territory for this purpose ...
Mr. RAUTENHACHI: thought you were referring to the Republic, not
South West Africa.
Mr. GROSS:I am coming to that, but I should like to be sure that we
understand each othcr. I am referring at the moment to the southern
sector in which there are Whites and non-Whites, in the so-called White
economy, in the Odendaal Commission phrase. It is undisputed in the
record that there is a majority of non-Whites in that sector outside the
Reserves, in the so-called White economy. Pausing there for a moment,
is it envisaged as an objective of the education policy with respect to
these individuals, non-White, and \.Vhite for that matter, that they shall
be at some stage, visionary or otherwise, physically separated and placed
so that they wil1live in separate geographical territories or areas-can
you answer that question? WITNESSESANDEXPERTS
381
Mr. RAüTEIŒACH:May I, to clarify that, just ask a question in return,
Mr. President?
The PRESIDENT:Certainly.
Mr. GRoss: With the Court's permission, I will try and answer it to
the best of my ability.
Mr. RAUTENBACHI :s it the idea of Mr. Gross that I should answer in
reply to this whether the people who are now resident in that area should
be removed at some future date-is that what he is after?
Mr.GROSS;If you requestmeto clarifymyquestion, I will be delighted to.
Mr. RAUTENBACHT : hat was what I asked-does he want me to reply
to that, whether I visualize a possibility of their being removed, or that
education aims at that-that they should be removed from their residen
tial areas there on to reservations or Bantu homelands, or something of
this type?
Mr. GROSS:May I say, without trying to be facetious, if you have a
group of people living together who have one life-time, or more, or part
of a life-time, or whatever the case may be, my question is whether,
regardless of how it is accomplished, whether they go voluntarily or by
persuasion or by compulsion-for the moment forgetting that-is it an
objective that, by some means or other, the races or groups now living
and working in the same sector in the same economy wiU be physically
separated--is this an objective of the educational system, toward which
the educational system is directed?
Mr. RAUTENBACH:It is an objective of the policy of apartheid or
separation, and education is also part of that programme. I can reply
as regards the Republic, just from general knowledge, not because I am
an expert on this, that the date is mentioned as 1978 when the absolute
number of Bantu in the Bantu residential areas in the Republic will be
corne stabilized and from then onwards will go down, so that by the
year 2000, if I remember correctly-I suppose demographers, or what
ever you call them, made this calculation-we would have the same
situation again as we had in 1944-1946; but please, I have no politician's
conscience in my keeping-it is very difficult for me to answer these
questions which lie in the sphere of politics.
Mr. GROSS:I realize how difficult the questions may be. The questions,
however, that I intend to ask, centre on the education policy and its
objectives, as to which you are testifying as an expert. Is it your answer
to my question that it is or is not an objective toward which the education
policy is diIected, that at some time in the future there will be a situation
in which there are \Vhites in one area and non-Whites in other areas----can
that question be answered yes or no?
Mr. RAUTENBACH:That question cannot be answered without some
qualifications, because with Whites in one area, in absolute separation,
and others in another area, in absolute separation, that means there will
not even be people who corne from the one and work in the other.
Mr. GROSS:That is right, that would be exactly what would follow.
Is that envisaged as a part of the doctrine of apartheid or separate cle
velopment?
Mr. RAUTENBACHN : o, what I seem to remember about this is that we
will always have people coming from over the border to work in the
White area, as far as human vision stretches.
Mr. GRoss: Then, on the basis of that response which you have so
clearly stated, how, if at all, would you explain the Prime Minister's SOUTHWESTAFRICA
reference to the limitations imposed on the freedom of people falling
away as soon as everybody can enjoy his own freedom in his own terri
tory; what relevance, if any, does that statement have with respect to
the non-Whites who will always be, from time to time or their life long,
working, living alongside Whites-what relevance does it have, if any,
this statement?
Mr. RAUTENBACHI: still cannot get the gist of your ...
The PRESIDENT:Is the witness being asked this as an educational
expert or in terms of political policy?
Mr. GROSS:As an educational expert, Sir, because the testimony as I
understand it, and I may be mistaken-perhaps ifI am not mistaken,
the testimony will be withdrawn-1 thought that the testimony was
directed to the point that the education system has an objective; that
that objective, among others, is part of the policy of apartheid or separate
development. There are therefore certain possible areas of relevance, are
there not, pertaining to the education policy itself, which are governed
by the objective to which the educational policy is directed, if you call
them political, or economic, or social, or moral or anything else. Is it not
correct that the educational policy is directed toward a major objective,
vision or concept-call it what you will-to be applied in the Territory
and in the Republic-is that nota fair statement?
Mr. RAUTENBACH: On the face of it, yes, but as an educationist the
major objective of an educational policy is an educational objective, and
that is the training of the whole man in a whole community.
Mr. GROSS:And then perhaps we might corne to this question: if you
use the word community, as you just have, what is the significance of the
word as applied to the economy in the southern sector which is described
in the Odendaal Commission report as a modern or exchange sector
what community do you have in mind in that context?
Mr. RAUTENBACHI: have already said that I have not visited South
West Africa, and I cannot reply to that.
Mr. GRoss: With respect to the Republic, how many non-Whites live
in the so-called White areas, that is to say the urban or modern economy?
Mr. RAUTENBACHI: think by and large about one-third---0ne-third in
the homelands and one-third in the rural areas.
Mr. GRoss: About one-third?
Mr. RAUTENBACHY : es.
Mr. GRoss: About roughly how many people would that be?
Mr. RAUTENBACHT :hat would be three to four million, I suppose.
Mr. GROSS: With respect to those individuals, or a preponderant
number of them, you are familiar generally with that aspect of the educa
tional problcm of South Africa, I am certain?
Mr. RAUTENBACHY : es.
Mr. GROSS: With respect to those people-we corne to the same
question,but transposed to South Africa, with which you are familiar
is the education policy pursued with respect to these one-third, let us
say, directed at the objective of leading them to self-fulfilment as mem
bers of ethnie communities or the area, the urban White, so-called
economic, community in which they live and work-what is the objec
tive of the education system, in those terms?
1\fr. RAUTENBACHF : or the foreseeable future I think the education
system takes note of both, and in that connection may I refer to the
speech of the Prime Minister, his Declaration of Policy, as given on WITNESSES AND EXPERTS
7 June 1954 beforc Senate, the Upper House, where he stated that the
aim or objective of education was preparation of people for work and for
life. He mentioned work and life in own communities, but he also
mentioned the type of work availahle for Ban tu and others in the White
areas, he also mentioned that, and that is why, as I say, he himself in any
case mentioned various aspects of this matter. I am now rcferring ta his
speech of :r954.
Mr. GROSS: This is Prime i\Iinister Verwoerd, is it?
i\IrRAUTEXBACH: That is Prime :MinisterVerwoerd in the Scnate, yes,
with his Declaration of Policy, after the Act had been passed in Septcm
ber 1953-he also made a speech then, but only brought out two points;
later on he reviewed the whole situation, and this is a whole kind of
philosophy of education, of Bantu education. education in general, and
sa on; I regard it as a most important speech in that respect.
Mr. GROSS: Is that the speech in which he said:
"I just want ta remind honourable members that ifthe Native in
South Africa today in any kind of school in existence is being taught
to expect that he will live his adult lifc under a policy of equal rights,
he is making a big mistake"-
is that in that same speech?
Mr. RAUTENBACH: I have ;m idea it is in that same speech, and in its
context it is rather interesting.
Mr. GROSS: And is it also in that same speech when he said:
"Until now the Native has been subjected to a school system
which drew him away from his own community, and practically
misled him by showing him the green pastures of the European, but
still did not allow him ta graze there"?
l\fr.RAuTENBACH: Yes, it has that familiar ring.
Mr. GROSS: When the statement to which you have referred, by the
Prime î\Iinister, and other similar statements are made, do they envisage
then, in your judgment-1 am not speaking politically, but of what the
education system is oriented toward-that thcre will be for all fore
seeable future a limitation upon frecdoms of non-Whites who are in so
called White areas, living and working and going to school there-is this
the way these statements are fairly to be construed?
Mr. RAUTENBACH: Yes, and vice versa.
Mr. GROSS: Vice versa meaning, I take it, that what has been referred
ta as the doctrine or principle of reciprocity is envisaged permanently,
or for the foreseeable future, indefinitely, on the ground that, or along
side the fact that, in the non-White areas, if I may call them that, the
Whites will be subject likewise to limitations upon freedom-is this the
basic element, or shall I say the philosophical basis, of the concept of
apartheid?
Mr. RAUTENBACH: Yes, that is the philosophical one, andv,:hatismore,
it is the moral one, tao, and Matanzima, the Chief Minister of the Trans
kei, just before I had left South Africa, had again informed publicly the
White traders in the Transkei that their sojourn there would always be
of a very temporary nature.
[Public hearing oj 6 OctoberI965]
Mr. GROSS: Dr. Rautenbach, I propose to direct your attention, if you
please, ta the problem of the segregation of the South African universities SOUTHWESTAFRICA
in the terms of your testimony and its implications, and I will attempt
to be somewhat more spccifi.c perhaps in certain respects than I was
yesterday.
In the first place, we have referred, I believe, to the fact that in 1959
there was passed in the Republic of South Africa the Extension of
University Education Act. That is correct, is it not, Sir? Now. would you
say, as a general, and I would say a rathcr obvious, matter, that in view
of the absence in South West Africa of facilities for higher education,
which is an undisputed fact in the record in so many words, in the
Counter-Memorial, III, page 474. that it follows that the system and
facilities in the Republic of South Africa itself constitute for all practical
purposes the facilities and system for higher education for the Territory
of South West Africa? That would follow, would it not, Sir?
Mr. RAUTENBACHT : he fact is that the facilities for higher education
for people from South West Africa are provided in the Republic of South
Africa at the present time.
Mr. GHoss: Yes, Sir, and there are none others, you agree, in South
West Africa? That is your understanding, is it not, Sir?
Mr. R,\UTENBACH:No. Thcre is no institution of a university type in
South West Africa. To my knowledge there are four teachcr training
colleges which tend towards tertiary education but they cou]d not be
callcd univcrsity-lcvcl collegcs.
11tr.GROSS:Yes, Sir. Now, in going over some of the principal features
of the Extension of Universitv Education Act, I should like fi.rst to start
with the fact that the Act, does it not, provides criminal penalties, in
cluding imprisonment, for White persans attending non-White university
colleges? Is that correct, Sir?
Mr. RAUTE::O.BACC Hr:iminal ...
Mr. GROSS:Criminal penalties. Ycs, Sir.
Mr. RAUTENBACHB : ut how could they attend?
Mr. GROSS:I have just asked you whether you know if this in fact is a
provision of the Act.
Mr. RAUTENBACHN : o, I do not know that.
Mr. GROSS:Weil, it is, I believe, the case. The provision is a fi.neor
six months' imprisonment in the event of a White attending a non-White
University or a non-White attending a White university.
The PRESIDEST: Does that mean, Mr. Gross, a fine or six months'
imprisonment in default of payment of the fi.neor an alternative?
Mr. GROSS:lt does not specify, Sir. Itis apparently discretionary with
the court, Sir.
Could you express an opinion with respect to the reason for such a
criminai provision?
Mr. RAUTENBACH N:o. I did not know about that provision for punish
ment and I could hardly imagine a situation in which that would ever
occur or happen. It seems to be very theoretical.
Mr. GRoss: I beg your pardon, Sir?
Mr. RAUTENBACHI:t seems to be a very theoretical provision, if there
is such a provision.
Mr. GRoss: Would you have a comment, Sir, with respect toits policy
implications, if any? The reasons why such a provision would be regarded
as a necessary part of the educational system?
Mr. R,\UTENBACH:No. Itis part of a common system. It would mean
fraud and it is punishmcnt for fraud, not for trying to become educated. WITNESSES ANDEXPERTS
Mr. GRoss: By fraud do you mean concealing racial origin? Is that
what you mean, Sir?
i\frRAUTENBACH\:Vell, an effort at concealment of colour, etc.
i\frGROSS:So you would have no other explanation for such a provi
sion inthe academic scheme other than to avoid concealment of racial
origin?
Mr. RAUTENBACHN : o. I would explain it in terms of any ordered and
civilized community which Iikes to have order and makes provision for
those who do not respect what has been ordcred.
Mr. GRoss: Would you say, Sir, that the apparently perceived require
ment for criminal penalty might imply that thern is a danger or risk from
the standpoint of the Government-that some individuals might seek to
obtain admission to universities of a different colour, so to speak?
Mr. RAUTENBACHM : r. President, the whole situation is of such an
imaginary nature, so fantastic. that is very clifficult for me to express
opinions on hypothetical situations.
Mr. GROSS:Do you regard, Sir, the existence of a criminal provision in
this Extension Act as a fantastic provision? Is that what you mean, Sir?
M.r. R..AUTENBACH N:o. The situation which is sketched here, that
something of this kind could happen, Icould hardly imagine it happening,
but if it does happen it is a form of fraud. That is what I mean.
Mr. GROSS:And that is the only basis upon which you can explain the
existence of the provision?
Mr. RAL'TENBACHI: am not a trained lawyer-1 have no experience
of that type-1 could not give ail these explanations.
i\Ir. GROSS:Sir, in your various capacities on advisory councils and so
forth, would vou, ift has now corne to vour attention for the first time,
· make a reco"mmendation for elimination or maintenance of that pro
vision?
The PRESIDENT:)Ir. Gross, it does not seem to me that that question
has any relevance at all. The Professor is an expert in a certain field. He
says he does not know anything about this particular matter and you
are seeking to extract an opinion from him. Now you are asking him as
to whether he would make a recommendation in the future. What
relevance has that got to any issue before the Court?
1\frGROSS:Weil, Sir, with respect, I am having a little difficulty in
obtaining from the expert witness his opinion concerning the validity, as
a part of the educational system, of such a criminal provision. It is for
that reason that I was attempting to frame my question to elicit an
opinion. \Vith respect, Sir, if it is in order and the witness does not wish
to answer, I will not press the point.
The PRESIDENT: Itis not a question of whether he wishes to answer
but rather whether he is compctent to answer a question of that descrip
tion and whether it is relevant. After ail, your difficulty is that you are
asking the witness about a particular matter of which he knows nothing,
and asking his opinion upon the mattcr.
1\fr.GROSS:I will not press this Iinc further, Mr. President.
The next element in the Act, to which I would call your attention, is
this. Are you ignorant of or familiar with the fact that the legislation
omits the so-called conscience clause? Are you familiar with that?
Mr. RAUTEKBACHl: am familiar with that.
J\fr.GROSS:Would you explain to the Court, Sir, what the "conscience
clause" is, as it is commonly called?386 SOUTH WEST AFRICA
Mr. RAuTENBACH: The conscience clause is a clause which was em
bodied in legislation referringto higher education, which was passed in
1916, and the conscience clause forbids that in the case of an appointment
or promotion a man's faith, or lack of faith, should be taken into account.
The conscience clause forbids that in examining students, awarding
certificates, classifying students as passing with or without distinction,
that a man's religious faith should play any role whatsoever in these
situations.
Mr. GROSS: Sir, doesthat clause prevail in respect of White universities
at the present time?
Mr. RAUTENBACH: The conscience clause prevails in respect of nine of
the ten universities. It does not apply in the case of the University of
Potchefstroom as regards staff.
Mr. GRoss: Can you explain, Sir, if you know, the reason for that
exception of Potchefstroom?
Mr. RAuTENBACH: Yes, it is due to historical reasons. \Vhen the Act
was passed incorporating the former University College into a university,
the legislative body took note of the historical fact that the University of
Potchefstroom, like many universities in many countries, also in the
United States, was established by a church and in the Act of the Univer
sity of Potchefstroom there is a very wide provision that, in the case of
appointments, note could be taken of the historical Christian character
of the institution.
Mr. GROSS: This was, if I understand it, an exception to the prevailing
policy of a conscience clause with respect to \Vhite universities?
Mr. RAuTENBACH: No. It is not so much an exception as it was. There
is another university which is tending towards that and once had legisla
tion before Parliament and will probably return again.
Mr. GRoss: Which university? .
Mr. RAuTENBACH: The University of the Orange Free State.
Mr. GROSS: And would you explain whether that also is explained by
the same reasons?
Mr. RAUTENBACH: No. I think it can be explained by the fact that the
student population is rather homogeneous there and there is strong
church support too. It is rooted. Itis also its national university, rooted
in the people of that Province and it reflects something of the nature of
those people.
Mr. GRoss: Yes, Sir.
Mr. RAuTENBACH: A university should reflect something of the nature
of its community.
Mr. GROSS: Now, Sir, is it a fact, if you know, that the legislation to
which we are addressing ourselves omits the conscience clause? Are you
aware of that, Sir?
Mr. RAUTENBACH: I was aware of that from the very outset.
Mr. GROSS : ould you explain to the Court the policy, or other consi
derations of an educational nature, underlying that omission from the Act?
Mr. RAUTENBACH: I personally think it is a very fine provision and I
think it is an advance on the old conscience clause.
M:r.GROSS: What is the provision to which you refer, Sir? I was
referring to the significance, if any, of the omission from the Act of a
conscience clause and my question was whether you could advise the
Court what significance, if any, there is from the educational point of
view with respect to its omission from the legislation? WITNESSES AND EXPERTS
Mr. RAUTENBACH: In effect, the conscience clause has Jittle real effect
and the omission of a conscience clause does not mean the omission in
the South African picture of the freedom of conscience, because freedom
of conscience ist,>uaranteed by the law of the land.
Mr. GRO.SSB : ut can you not explain the reason for the omission of the
conscience clause from the Act?
Mr. RAUTENBACH: The best reason that I couId give is that there was
no very_good reason for retaining it.
Mr. GROSS:You do not regard the omission of the conscience clause as
of significance?
Mr. RAuTENBACH: No. In fact I advised the then Prime Minister, who
had a discussion with me, to omit it.
Mr. GROSS:To what?
Mr. RAUTENBACH: To omit the conscience clause.
Mr. GRoss: And have you advised, Sir, with respect to the omission or
cancellation of the repeal of the conscience clause from the legislation
pertaining to White Schools?
Mr. RAUTENBACH: May I just qualify my statement? By the then
Prime Minister J mean Mr. Strijdom, in 1957, not Dr. Venvoerd. I am
sorry, 1 would like to hear your question again.
Mr. GROSS:I was just asking you, Sir, whether you have made any
recommenclation with respect to the repeal of the "conscience clause" in
the legislation pertaining to the White universities?
Mr. RAuTENBACH: No, it lies outside my province, with the exception
of my own university, and I think I could spend my time in a more
profitable way in the case of my own university than in this or that
repeaL It costs a lot of money to repeal a law, too.
Mr. GROSS:As a matter of principle, would you care to express your
view as to whether you would favour the elimination or repeal of the
"conscience clause" from the White universities?
!\fr.RAUTENBACH: In the case of my own university, it would make no
difference whatsoever whether it stands or whether it is omitted and,
seeing that it would cost some money, well, like others, I like to spend
my money, or the university's money, in the best possible way.
Mr. GROSS: Now, Sir, turning to another question. I refer to the
regulations proclaimed for students at the so-called Bantu or non-White
university colleges, and ask you whether you are familiar with the
regulations gazetted for the students at those colleges, Sir?
Mr. RAuTENBACH: Yes, if these are the regulations which came after
the Act, I am familiar with them because the Council of the University
College, of which Iam Chairman, dealt with those regulations and made
our recommendations to the Minister of Bantu Education.
Mr. GRoss: Are you familiar, Sir, with the regulations involved in the
White universities?
Mr. RAUTENBACH: I am familiar with the regulations involved in the
White universities, particularly my own.
Mr. GROSS:Is there a regulation in your university, for example, Sir,
that students may not leave the college precincts without permission
from the hostel superintendant? .
Mr. RAUTENBACH: There is a regulation at rny university that stu
dents-it all depends on what year they are in-but first-year students
may only leave the precincts of the residential campus with the per
mission of the warden or the lady warden of the residence and only for a SOUTH WEST AFRICA
number of evenings in the week, but no student is free to corne and go as
he wishes in my university. As regards the residential part of the campus,
there is a\so a regulation, or a whole set of regulations.
Mr. GROSS: With respect to the regulation ...
Mr. RAUTENBACH: I actually meted out punishment some time ago
when 18 studcnts were absent when the roll-cal\ was held and I took
disciplinary men.sures against two of them.
Mr. G1wss: ls it rcquired that the classmen, or the members of the
universities abovc the first year, receive permission to leave the college
precincts?
l\lrR.-rnTENBACH: Yes, as far as I know, that is so.
;\IrGROSS; In your university, Sir?
Mr. RAuTENBACH: No, in mv universitv it is not so. To leave the
college precincts when they aie in reside'nce-they cannot leave the
college precincts without leave or without making use of what we call
open evenings or open days or weekends, but that does not hold in
the case of leaving the teaching campus because we have off-campus
housing. They may corne and go on that as far as they like, but those who
are in lodgings provided by the university ... we must always know where
they are, even the members of my staff leaving the campus for more than
24 hours have to leavc their addrcsses behind and, if it is during the
week, I myself or the Dean must give them leavc to go.
Mr. GROSS:The student, for example let us say, on a day when there
are no classes, who wishcs to go into town for a half-hour to buy persona!
effects, does he requlrc permission for that purpose?
Mr. RAUTENBACH: No, he does not require permission because we are
right in the town itself and the Bantu colleges are removed at a con
siderable distance from anv town.
i\IrGROSS: I see, Sir. '
Mr. RAUTENBACH: That is a verv important differcnce. Pietersburg,
the nearest town to the Bantu College of the North, is about r6 to rS
miles. You have got to go bv bus. Now in South Africa, as in many
countries, the parents of students regard the university authorities as
being in loco parentis and if the parent turns up and the boy or girl has
been absent for more than 24 hours, or 12 hours, they call the university
authorities to account for what has happened .
.r. GROSS: I see, Sir. So, if I understand you correctly, a student may
not leave the collegc precincts to go to a shop without faculty permission.
Is that correct?
Mr. RAuTENBACH: That is couect in the case of Turfloop. There is a
shop r8 miles from there.
Mr. GROSS: That is the case in what, Sir?
i\IrRAUTENBACH: In the Bantu College of the North.
;\frGRoss: I am talking, Sir, about your university.
l\frR..\UTENBACH: No, I have already said, ;\fr.President, that tho~e
students who are in residential halls or dormitories, as they are called m
America, if absent from a meal have to report, not always to the lady
warden or the warden, but there is a house committee and there are
student advisers,, and if they are absent they have to report to these,
even during mealtimes, but they can leave outside those hours. They
cannot leave in the evenings without permission and they have got to
sign a book when they corne in and they have to sign a register when
they go out. WITNESSESANDEXPERTS
Mr. GROSS:With respect to one more regulation-1 will not pursue
this too much further, I just want to get the clarification of the distinc
tion, if any, drawn in the regulations gazetted--is it the practice in the
White universities with which you are familiar that no statement may
be given to the press by, or on bchalf of, the students, without the Rec
tor's permission?
Mr. RAUTENBACH:Yes, that is soin my own university, but I give
permission. again, I delegate my authority to the Chairman of the
Students' Representative Council. He can make declarations, with my
permission, seeing that I have delegated that to him, on student affairs.
Mr. GROSS:Do you know the practice, Sir, at other so-called White
universitics?
11fr.RAUTENB 'ACH : Yes, I know the practice ... You mean in South
Africa?
Mr. GROSS:Yes, Sir.
l\lr. RAUTENBACHI:n South Africa, it is very much the same all over,
but students do, in fact, make declarations, and at times they are called
to order and at times they are not called to order. One has to use one's
judgmcnt on such matters.
Mr. GROSS:Is there, so far as you are aware, in the case of the White
universities a regulation proclaimed or gazetted which prohibits declara
tions without permission?
'11fr. AUTENBACH:In the case of the White universities, our regulations
are not proclaimed or gazetted outside our own campus and the students
themselves have made a regulation, in support of a university regulation,
that no man outside the Chairman of the Students' Rcpresentative
Council may make a press statement concerning student matters, so that
pari passu we also have, on our own campus, made and proclaimed
regulations.
]\fr.GROSS:This, then, Sir, if 1 understand, is a matter of, shall we
say, student self-discipline or student self-government. Is that correct?
Mr. RAUTENBACH :o, it is not only a matter of student self-govern
ment but it is a delegation of certain authority to the students by myself,
as Chairman of Senate. Senate is the body, as in the case of the Bantu
colleges, which has sway over student discipline. It stands there, too.
Mr. GRoss: That policy is not manifested in, or implemented by, a
regulation, is it, Sir?
Mr. RAUTEN BACH:No, not by a gazetted regulation in the Govemment
Gazette.
Mr. GRoss: Yes, Sir.
Mr. RAUTENBACHT : hat is the difference.
Mr. GRoss: Yes, Sir. Now, I would like to turn to the organization and
contra! of the non-White colleges. I believe you have testified, Sir, that
the Councils are all-White and the Advisory Councils non-White. Is that
correct, Sir?
Mr. RAuTENBACH:That is entirely correct, Mr. President.
Mr. GROSS:And, Sir, you have testified that the Serrates are all-White
and the Advisorv Senates non-White. Is that correct?
l\fr. RAUTENBACHT : hat is correct also.
Mr. GROSS:And, Sir, what is the method by which members of the
Councils and Advisory Councils are selected or appointed?
l\Ir. RAUTENBACHA : s regards the appointment of the Council-I am
now referring to page 4 of the copy of the Act which I have-that was390 SOUTHWESTAFRICA
as gazetted, I do not know whether you have the same there ... The
fourth article saysthat a university college does consist of ... and then,
Council, etc., and there is no specific provision here as regards the
qualifications to be held by members of Council.
Mr. GROSS:Perhaps I could assist you to focus on this, and perhaps
save time, if the President permits. Is it not correct that all the members
of both the Council and the Advisory Council are appointed by the State
President who designates the Chairman? Is that correct?
Mr. RAUTENBACHY : es, that is correct but that does not signify any
qualifications, excepting, I think, that he should not be bankrupt or
anything of that kind.
Mr. GROSS:I was not referring to qualifications but to methods of
appointment.
Mr. RAUTENBACHI: am sorry, it was a misunderstanding on my part.
Mr. GRoss: Similarly, is it not correct that, with respect to the White
Senate and the non-White Advisory Senate, the Rector is ex otficio a
member of the Senate, the other members being professors or lecturers
selected by the Minister of Bantu Education, after consultation with the
Council? Is that correct?
Mr. RAUTE~BACHT : hat would be correct.
Mr. GROSS:And, with the Council's consent, the Senate may delegate
to the Advisory Senate powers to deal with matters relating to instruc
tion, examination and discipline. Is that correct?
Mr. RAuTENBACHT : hat is correct.
Mr. GRoss: Now, with respect to the Senate and the Advisory Senate
-1 believe that you have agreed that the members are appointed by the
Minister of Bantu Education in both cases-is that not so, Sir?
Mr. RAUTE~BACHT : he members of the Senate?
Mr. GROSS:The members of the Senate and Advisory Senate are ap
pointed by the Minister of Bantu Education. I think you have just
testifi.ed to that?
Mr. RAUTENBACHY : es.
Mr. GROSS:Now, I should like to revert to your testimony of yesterday,
page 372, supra, of the verbatim, in which you testifi.ed regarding the
method by which members of the Council of the University of Natal, I
believe, are selected. Are you lookingat page 372, Sir, of the verbatim?
May I read it ta the witness, Mr. President?
The PRESIDENT:Certainly. I think it is near the bottom of page 372.
Mr. GROSS:Near the bottom of page 372, Sir. You testified in response
to my question "By whom are they ['they' referring ta members of the
CounciIJ appointed?" Your answer was "Only a certain number of mem
bers are appointed by the State President" and then you went on to say,
in effect, if I may summarize it briefly, that the State President apJX>ints
about one-third-about eight, and then you described how others were
appointed. Now, Sir, would you explain to the Court, if you will, the
basis of the distinction between the method of selection of members on
an ethnie basis, or otherwîse, of membe1s of the Council, in the case of
the non-White as compared tathe White unîversities?
Mr. RAuTENBACHT : he basis for this differentiation is that in the one
case we are dealing with private, State-supported universities, awell
known type of university in Britain and all over the world where there
has been British influence. The \Vhite universities have become that type
of university after having been in many cases for a number of years WITNESSES ANDEXPERTS
39I
State institutions very much like the Bantu State institutions of the
present time. The Bantu State colleges are purely State institutions. You
find in every country, even in this country where we are at present, in
the United States, with its famous State universities, that, as in the case
of State universities all over the world, the governing body is appointed
by the public authority. The government paying in this case, bearing the
financial burden up to the extent it does; the government also, of course,
who pays the piper calls the tune in this respect; that everywhere where
there is a State institution, the governing body is appointed by the State,
whether it is a highly developed country, an under-developed or a de
veloping country. It is universal.
Mr. GROSS:Now Sir, in South Africa itself, if we may confine ourselves
to that at the moment, are there any State supported White universities?
1fr.RAUTENBACHA : ll universities are State supported.
Mr. GROSS:Financed?
Mr. RAUTENBACHF :inancially, yes, up to the extent of 66 percent.
Mr. GROSS:And Sir, à propos the distinction,then, that you draw
between State supported and financed White, as distinguîshed from non
White, institutions in respect of the question we are discussing-the
method of selecting the Councils and Senates. Is the distinction based
upon the fact that in one case there is roo percent. financial support by
the State and the other case, as you mentioned, 66 per cent.? ·
Mr. RAuTENBACH:No, it is not roo per cent.-it is closeto roo per
cent.
Mr. GROSS: In the case of the non-White?
Mr. RAUTENBACH I:n the case of the non-White as was the case of my
own institution prior to r917.
Mr. GROSS:Could you clarify again your response to my question in
terms of the reason for the distinction in the method of selecting the
members of the Councils and Senates, respectively, in the non-White and
White schools? You said, if I unde1stood you, that the reason why the
government appointed the members of the Councils and Senates in the
non-White institutions was because of the fact that they were financed
by the State. Did I understand your answer correctly?
Mr. RAUTENBACHT :hat was my answer-that is one of the important
considerations-there are others.
Mr. GROSS:\Vell Sir, before you get to the others, in view of the fact
that, as you have testified, the White institutions or some of them, I
think you said all of them, are also financed by the State, would you
explain why their Councils and Senates are not also appointed by the
Government?
Mr. RAUTENBACHY : es, that is a matter of evolution. There was a stage
in which the majority of what we today call White universities were in
the very same position that the Bantu institutions are at the present
moment. The institution of which I am the academic head was established
in 1908 and up to r9r7 it was a State institution and it is written in the
record that not even a wheel-barrow could be bought by the Transvaal
University College without the permission of the Minister.
Mr. GROSS:Is it not a fact, Sir, that the University College of Fort
Rare in r959 had on its Council and Senate both White and non-White
persons? ·
Mr. RAUTENBACHI: am not sure about that-it can be. Oh yes, they
had in the senate, Professer Jabavu, at one time he was a member of392 SOUTH WESTAFRICA
Senate, a well-known African and there was a gentleman from America,
a negro, who was professor and who recently returned to South Africa
for a visit~the Senate was a mixed Serrate.
Mr. GRoss: The Senate was what, Sir?
Mr. RAUTENBACHW : hat we call a mixed Senate.
Mr. GROSS:So that the answer to my question is that it is true that
in 1959, the Fort Rare Council and Serrate were composed of Whites and
non-Whites.
Mr. RAUTENBACHI: am not sure about the Council, Mr. President,
Mr. Gross was asking me a question about the Senate.
Mr. GRoss: In the work entitled A Decade of Bantu Education by
Muriel Rowe, published by the South African Institute of Race Relations
in 1964 in Johannesburg, at page 131, it istated that at theVJ1iversity
College of Fort Rare in 1959 the Council had 19 Whites and 3 African
members, and that the Senate had 21 Whites and 4 Africans. Do you
dispute the accuracy of that?
Mr. RAUTENBACHN : o, it is quite possible.
Mr. GROSS:Now Sir, when you speak about evolution as explaining
why there are roo per cent. government appointed non-White Councils
and Serrates as distinguished from the practice with respect to Whites~
would you not agree that in view of the change that has been made with
respect to the University of Fort Rare that this is evolution in reverse?
Mr. RAUTENBACHN : ow, before I can reply to that, it would help me
if I were to know if those rnembers of the Council mentioned there were
not members of the Senate who had been elected by the Senate to the
Council. Under the old system the Senate had a certain number of
representatives on the Council, but it would not change the fact that
there could have been Coloured members of Council.
Mr. GROSS:Well, there were non-Vlhite members of Council. In fact
my question to you is whether the changeover, by reason of the 1959
legislation and its implementation at Fort Hare, as an example, to an all
governmentally appointed White Council and White Senate, would not
be evolution backwards?
Mr. RAUTENBACHN :o, because there was also a parallel evolution and
that was that the government prior to 1959 had subsidized Fort Rare in
the same way as the so-called White universities, and after 1959 a new
system of financing the university arose and parallel with the new system
of financing the university, as I said, it becaIJle a State institution. Once
you have a State institution, there is the tendency in al! countries of the
world that the governing body shall consist of appointees of government,
and what is referred to now as the evolutionary lies ahead in so far as the
advisory council will in due time take over the whole job of governing the
university; it has already taken over certain parts which have been
delegated as mentioned in the Act, the possibility was stated and it has
been exploited.
Mr. GROSS: I plead guilty to confusing you with the form of my ques
tion. Iam afraid I confused two things and I think it may be important
to clarify it. I referred, I am afraid without specification, to the two
problems: one, the method of appointment of the Council and the Serrate
membership and two, the question of its composition. on an ethnie basis.
Now at the moment, just for the sake of clarity, since I am afraid J put
the two into one question befoŒ, I am referring sole!to the question of
the racial or ethnie composition of the Council and Senate and ask you WITNESSES AND EXPERTS 393
again, ifI may, to avoid any confusion in your mind by my previous form
of question, whether in respect of the ethnie or racial composition of the,
let us say, Council and Senate of Fort Hare, which is now all White at
the Council and Senate level and all non-White at the advisorv level, so
to speak-whether that change from the previous mixed system of
government of the university is not a step backwards?
Mr. RAUTENBACH M:y reply to that is that it is a step forwards and
the reason is that now the Advisory Council is a body, no longer two or
three members sitting there, but a body, with its own Chairman and also
a member of that ethnie group. That body is preparing itself for the take
over. and the opportunity of involving more leaders of these communities
in a body with a certain status, and a very high status, is a great step
forward in the participation of that group and its leaders in the govern
mcnt of the university.
Mr. GROSS:Sir, in what respect if any is it a step forward or a great
leap forward, or whatever formulation you wish, to have adopted legisla
tion which eliminated the possibility of continuing the membership on
the Council of non-Whites who had participated as members for some
years-in what respect is that a step forward?
Mr. RAUTENBACHI:f, to use the word of Mr. Gross, they were elimi
nated from the one and therc had been no provision elsewhere, that would
have been a step backwards-not one, it would have been a dozen steps
backwards-but seeing that the provision was made by the Act else
where and seeing there is a blueprint showing wha.tthe end of this process
of evolution should be, I do not think it was a step backwards but. as I
say, a Jeap forward.
l\1rGROSS:Weil Sir, when you used the word "elsewhere" are there
any non-White co1legesin the Republic which have mixed Councils?
Mr. RAUTENBACHN : ot to my knowledge.
Mr. GROSS:And when you say "elsewhere" what do you mean by that,
Sir?
7'.Ir.RAUTENBACHT :hose people who lost membership of the Council
at Fort Hare or men of their standing are now accommodated in the
Advisory Council.
Mr. GROSS: By elsewhere you meant that they were moved from the
C?uncil to the Advisory Council-is that what you meant by "elsewhere"'
Sir?
l\IrRAUTENBACHY :es. I would not say these individuals as such, but
the type of man, the leader.
Mr. GRoss: You mean the non-Whites, Sir, don't you?
Mr. RAUTENBACHY :es, I mcan the non-Whites, what we are referring
to, both of us.
Mr. GRoss: Now therefore, you think this was a step forward to make
a pro\'ision whereby non-\Vhites who had previously served as members
of the Council were given opportunities "elsewhere'', which means to
serve as membe1s of the Advisory Council. Is that what you mean,
Sir?
l\Ir. R..\UTENBACH T:hat is precisely and exactly what I mean.
i\IrGRoss: And you regard that as a step fonvard, Sir?
Mr. R..\UTENBACHA : s a step forward of more than three feet.
Mr. GROSS:Now Sir, did you not state that it was the objective that in
due course that non-Whites would serve on the Council itself?
Mr. RAUTENBACHY : es,1 did say that.394 SOUTH WEST AFRlCA
Mr. GROSS: So that would be a step forward, would it, when that great
day cornes, Sir?
Mr. RAuTENBACH: lt would be a step forward when that is envisaged
and carried out in an honest manner.
Mr. GROSS: Assuming that it would be carried out honestly, would it
be then fair to summarize your testimony saying that it was a step
forward when the non-Whites are excluded from the Council and it will
be a step forward when the non-Whites are again admitted to the
Council? Is that not then the summation of your testimony on this point?
· Mr. RAUTENBACH: No, that is not the summation of my testimony.
Mr. GROSS: \Vell, would you clarify it in any respect that you feel
appropria te?
Mr. RAUTENBACH: Yes, I could clarify it on one point. ]\frPresident,
when the Select Committee of Parliament was appointed to report to
Parliament on the proposed legislation, I gave testimony before and sub
mitted a memorandum before that Select Committee, I advised that the
best way would be to have what I called this morning "a mixed Council"
and a "mixed Senate"-1 advised that, that was my recommendation.
Mr. GRoss: As they had in ...
The PRESIDENT: I think the witness ought to finish his explanation.
Mr. GROSS: I thought he had finished. Please continue.
Mr. RAUTENBACH: That was my idea-1 made this suggestion. The
Chairman of that Select Committee asked me the following question:
what would you do if an African leader, an educationalist, a good man, a
sound man-if I inform you now that he asked that we should not do
that and he gave the following reasons: when we sit there together with
White people, one of two things happen-we just go along with them as
if they were always right or we have a tendency togo in the opposite
direction because they are White; please leave us out of this at this stage,
and let us have a body by ourselves where we can develop. Then, when
the Act came along, I thought it was a very elegant solution. I did not
get my way, but if that was desired on the part of leaders of the Ban tu,
then, well, after all, one has to take note of how they wish to have things
done and they wish to develop. My words were quoted in the minority
report presented to Parliament, they are on record.
Mr. GROSS: Is it your testimony, then, that a reason for the exclusion
of non-\Vhites from membership in the Council or Senate is that it is the
wish or will or preference of the non-Whites themselves? Is that vour
testimony? "
Mr. RAuTENBACH: I must say now that it certainly had a great in
fluence, because that was what actually happened: that the idea of a
joint council was dropped, which I had suggested, or a joint senate, and
a rather elegant device evoived, and that was the other one of having the
two bodies and the blueprint; we should not think of the two bodies
without the blueprint, or refuse to develop it.
Mr. GROSS: Are you familiar with the events which took place in Octo
ber 1959 when the Fort Hare students adopted a resolution with regard
to the matter of the changes contemplated in the legislation?
Mr. RAUTENBACH: Yes, that was general familiarity with students on
campuses of all types, and their acts and actions. protests, etc.
l\frGROSS: I refer to the resolution which is set forth in the Sunday
Times of IIOctober 1959, as follows. This was adopted by the Fort Hare
students: WITNESSES ANDEXPERTS 395
"The Government in its dictatorial action in disrnissing our staff
members without stating any reasons has added to the atmosphere
of insecurity and uncertainty that has engulfed Fort Hare during
the past few years. This atmosphere makes the normal pursuit of
acadernic activities almost impossible,but let it be noted once and
for ail that our stand as students of Fort Hare, and as the future
leaders of our country, upholding the principles of education as
universally accepted, remains unchanged and uncompromising. Our
outright condemnation of the university apartheid legislation re
mains steadfast."
\Vere you familiar. with that resolution at the time?
Mr. RAUTENBACHY : es, I also read the Sunday Times.
Mr. GROSS:The reference to the resignation of the staff--do you know
how many members of the staff of Fort Hare resigned?
Mr. RAUTENBACHN : o, I know some members resigned.
Mr. GROSS:Do you know the reasons they assigned for their resigna
tions?
Mr. RAUTENBACHT :he real reasons, or the reasons they gave?
Mr. GROSS:I asked you for the reasons they assigned. We can go into
their motivation, if you wish to, later, but fi.rst would you be good
enough to answer my question?
Mr. RAUTENBACHI:also read in the Sunday Times about their reasons.
1\ir. GROSS:What reasons did they assign, according to your infor
mation?
Mr. RAUTENBACHI:n a general way-it is now some years ago-sorne ·
of them expressed this idea: they were no longer prepared to serve in this
kind of institution, which has a tribal character, which sins against every
possible principle of university education, etc. These were the general
reasons published in South Africa.
Mr. GROSS:lt was, in sum, based upon opposition to the changes
proposed by the legislation, was it not?
Mr. RAUTENBACHY : es, in the general way, opposed to the principles
embodied in the legislation.
Mr. GROSS:Is it true also that in 1960 eleven students were not re
admitted? Are you aware of that fact?
Mr. RAUTENBACHY :es, I am aware of that fact.
Mr. GROSS:And that the Minister of Bantu Education, explaining
their exclusion-this is from Hansard of 8 March 1960, column 2927-
said that their re-admission "was not considered by me to be in the best
interests of the college because of their activities in 1959". Two of these,
incidentally, were postgraduate students; one had completed eight
university courses, twohad completed seven courses, one six courses. Do
you know anything about this incident, further than what you have
testified?
Mr. RAUTENBACHI:know about that incident, and I also know that it
is part and parce! of every university act that if the university council
does not consider it in the interest of the university, it need not accept
the registration of a student.It holds also in the case of my university
and other universities-all university institutions in South Africa; with
out giving a reason, we need not register a student.
Mr. GROSS:Here there was a reason given, and my statement to you,
if Imay pursue it one notch farther, was that they were not re-admitted
because of their activities in 1959. Could you explain to the Court, on396 SOUTHWESTAFRICA
the basis of your knowledge or information, whethcr this explanation
referred toanv activities of these students other than in connection with
the resolution" which I have quoted?
Mr. RAUTEN"BACH N:o, Mr. President-ilfr. Gross has read that the
Minister has said "owing to their activities in 1959"-that is the reason
he gave, and that is the reason I read also in the newspaper report of the
sessions of Parliament.
Mr. GRoss: You know of no other activities in 1959 for which these
students might have been disciplined, other than their activities in
connection with this resolution? That is my question.
Mr. RAUTENBACHN : o; I do not know the details of disciplinary mea
sures against students other than these in that year-we do not advcrtise
disciplinary measures as a rule,wc keep it as a private matter.
Mr. Gnoss: Thank you. Now, with respect to the testimony which you
gave on Monday, 4 October, at page 338, supra. I will read it, if the
President pcrmits. Counsel, Mr. Grosskopf, asked whether you saw any
value in the intellectual contacts on the staffs of these Bantu university
colleges betv,reen the various groups represented thcrc. I should like to
place your response into the record, with the President's permission,
because of subsequent questions. Your answer was:
"Yes, on the campus of the Bantu College of the North there is
association as between the White members of staff and the Bantu
members of staff. There is 1nte1lectual association. They meet. They
corne to know each other. They corne to appreciate each other. I
think they corne to know each other's problems. I think there is
great advantage in this association. In fact, Mr. President, I have,
myself, gained a good deal of knowledge for my own work in advising
the government on education from association with the Professor of
Practical Education at the Bantu College of the North, Professor
Kgnari, whom I have often met in his office."
With your recollection of that testimony refreshed, this is a correct
version of your testimony, is it?
Mr. RAUTENBACH T:he word "often" should corne out-"whom I have
met"-1 would not over-emphasize that "often".
Mr. GROSS:When you say "whom I have met often in his office" you
would delete, with the President's permission, the word "oftcn"?
Mr. RAuTENBACHY : es.
Mr. GRoss: Could that be donc, Mr. President?
The PRESIDENT:It is a correction which you are giving as evidence
now?
Mr. GRoss: Yes, Sir.
The PRESIDE~T:Then it need not be omitted, it is simply recorded in
the transcript.
Mr. GRoss: Would the intellectual association to which vou refer, and
the benefits you testified you derived from the association:be unusual in
connection with the relationship between Whites and non-Whites on the
staffs of universities?
Mr. RAUTENBACHN : o, that would not be unusual.
Mr. GROSS:That would be a normal incident of the relationship be
tween the various staff groups, of different races or ethnie groups?
Mr. RAUTENBACHY : es, on the same campus.
Mr. GRoss: And would you say whether the contact-"association", WITNESSES AND EXPERTS
397
to use your word-between these groups, betwcen the staff members of
various ethnie groups, has produced, in your own words, "better under
standing" of each other's problems in the sense of their educational,
social, economic, political problems?
l\frRAUTENBACHI: would say that, and I could give reasons for that.
Mr. GRoss: Pcrhaps the Court would be interested in your reasons.
l\Ir. RAUTEKBACHT : he Bantu College of the North is situated in the
Pietersburg district, a district chiefly populated by Afrikaans-speaking
farmers, and like most rural people, on the conservative side. Now since
the college was established in 1960 and came to be better known, it has
happened that on various occasions a Bantu member of staff has ad
dressed a \V'hite gathering, a meeting of Whites, on university and aca
demic matters, and a good deal of prejudice in that very conservative
area against the very presence of the Bantu College of the North in its
own environment has been removed. In fact,there is an appreciation now
for the very presencc of this Bantu college, and the idea which is em
bodied there, and the ideals which are strived after. Just before I left the
country, about two weeks ago, there was a report on an address which
had been given to one of the clubs in Pietersburg itself consisting of
young businessmen in the town and coming from outlying districts, and
the address was given by one of the Bantu members of the staff of the
University College of the North. Professor Kgnari also has addressed
people, Whites have been invited to certain meetings, and I remember
this education man-1 was not there, but 1had reports from the Rector
addressing a group of people, and the very fact of Whites who have not
had the opportunity of hearing a coloured man of learning and culture
and civilization, that very fact has had its beneficial influence.
Mr. GRoss: Would you agree, as a distinguishfd educator, that it is a
virtue, and indeed, perhaps one may say a glory, of the university that
it provides the facility for bringing together persons of diverse back
grounds-economic, racial and other? Would you say that is one of the
central, cardinal features of the universitv?
Mr. RAuTENBACH:No, I would say that is an important feature .
.Mr.GROSS:But you would not minimizc its importance, or would you,
as an educator?
Mr. RAUTENBACH:There are varions ways of establishing contact
between academics outside actual, physical contact in each other's
presence, but it is one way of doing it, and there is this, let us say, world
wide communication at the present time, but there is another way of
doing it: this very man I am mentioning was a recipient of a State
Department grant and visited the United States, this Bantu; I read the
report just after I had visited the States, and that established contact as
between him and other people again-that is another way of doing it.
Mr. GROSS:Then you would say, would you, that the increase of con
tacts of varions types is of constructive and beneficial value?
Mr. RAUTENBACHl:t is of constructive and beneftcial value if it does
not take place at the expense of the most important part of any campus,
and that is instruction or teaching and research and education in general.
.Mr.GRoss: And in what respect would you advise the Court that there
would be such obstruction arising from the contacts in question?
Mr. RAUTDIBACH:No, I never used the word "obstruction".
Thfr.GRoss: I beg your pardon, I misunderstood you-what word did
you use? SOUTHWESTAFRICA
;\IrRAUTENBACHI: do not remember using a word which could be
interpreted as meaning obstruction.
Mr. GROSS:To get to the point: I am attempting to elicit from you,
for the benefit of the Court, if it wishes, what obstacles or disadvantages
there are in the negative side of the balance sheet, so to speak, with re
gard to contacts which have these advantages of which you have spoken.
Mr. RAUTENBACHI: think it was as a result of the words I used, that
as long as the primary task is carried out on the campus, then that other
very important matter can also be tackled, but the one should not be
done at the expense of the other. By that I mean that this new type of
academic who is either always on his way towards an airport or from an
airport is not a1ways an asset to a university.
Mr. GROSS:Regarding the advantages which derive from the type of
contacts we are discussing, which you have testified appertain at the staff
level. Would you regard that similar values would attach to contacts
between the members of the Council and the Advisory Council, and
between the Senate and the Advisory Sen~te, respectively? Would they
also benefit from the type of contact to wh1chyou refer and for the same
reasons?
;\Ir. RAuTENBACHA : type of contact would be beneficial.
Mr. GROSS:Sir, would there, for example-to discuss for a moment
the desirability or advantages, if any, of having a mixed college Council
-be advantages of closeness of contact and understanding by participa
tion in the deliberations of the Council itself?
Mr. RAUTENBACHA : fter having seen the new system in action, and
having watched it closely, that is, wherc there is a separate college coun
cil and advisory council with the link in between, the Rector who, ex
officia, is a member of the Advisory Council, and, by the way, the Chair
man of Council may visit the Advisory Council, I have changed my mind
about that since I gave evidence before the Select Committee of Parlia
ment.
Mr. GROSS:It is your present view, Sir, that there would be advantages
derived from doser contact through common or mixed membership?
Mr. RAuTEXBACH:No, I overestimated the advantages when I gave
evidence before the Select Committee.
Mr. GRoss: Has there been any experience, Sir, sincc 1959. which
changed your opinion in that respect?
Mr. RAUTENBACHY :es, and the experience has been that the Advisory
Council is doing such a good job of work without the presence of Whites
that I do not see that it is very necessary that we should meet face to
face always. ·
Mr. GRoss: And, conversely, would you say that the White Council is
doing so well without the presence of non-Whites that there is no reason,
from that point of view, to mix it again as it was at Fort Hare in ... ?
;\fr. RAuTENBACHN : o, seeing that the White Council gets the minutes
and agenda of the Advisory Council and, besides that, having the link
between the two bodies in the Rector of the university, we have found
no necessity, outside of asking the Rector some questions about certain
resolutions, to have a meeting or to meet each other.
l\Ir. GROSS:Sir, would it be fair to say that (to summarize your testi
mony on this point) the collaboration which takes place between the
Council and the Advisory Council takes place in various forms, butdoes
not include joint deliberations? Is that a correct statement? WITNESSES ANDEXPERTS 399
1fr. RAUTENBACHT :hat is a correct statement.
Mr. GROSS:And the reason against such joint deliberations is what,
Sir?
Mr. RAUTENBACHT : he reason I gave was the reason given at that
time by a leading Bantu educationalist expressing preference for a
separate body for foreseeable time.
Mr. GROSS:Sir, are you familiar with the reason given by the Minister
of Bantu Education for the changeover from the mixed to the racial
composition of the Fort Rare College?
Mr. RAUTENBACHN : o, not Fort Rare particularly, but in a gencral
way the whole policy. I am acquainted, by and large, with that-the
whole background. I have served on occasions ...
Mr. GRoss; Raving read Hansard . ..
Mr. RAUTENBACHT :hat was some years ago.
Mr. GROSS:Could I remind you, Sir, that it was in 1959 that the
Minister of Bantu Education, in the Assembly (and this is in Hansard 5
and 12 of 1959, Columns 50 and 60 and Columns 4443-4453) explained as
follows: (I paraphrase to save the Court's time, but the reference is to
the actual language in the Hansard.)
"In the past, White and non-White persans had served on the
Council and Senate [and this had been Fort Hare] and had been
accommodated on a basis of cquality. [The Minister went on, too, in
his explanation tosay that] This must inevitably create the fallacious
impression among the non-Whites that apartheid was something
which disappeared when one attained a certain academic level, that
academic training would remove discrimination in South Africa. As
a resultthe students would become agitatecl against the racial order
in South Africa instead of valuable members of their own com
munity."
Now, Sir, is the Minister's explanation familiar to you?
Mr. RAUTEKBACHI: did not remember those specific words.
Mr. GROSS:Those were not his exact words. I have summarized his
words. Would you say that, on the basis of ...
The PRESIDENT:If you could summarize words in that description,
Mr. Gross, you could quote the prccise words.
Mr. GRoss: Sir, I do not have with me the Hansard. I have quoted
from an authoritative work, which I have cited A Decade of Bantu
Editcation by Muriel Rorrell, published by the South African Institutc of
Race Relations, to which I have referred.
The PRESIDENT: It is not unusual, you know, in books which are
written by people that the summary, when it is examined with the
document or the material from which the summarv is made, is not a
completely true reflection. •
Mr. GROSS:Mr. President, with respect and with gratitude for painting
it out, I have attempted to make clear in the record that these are not
the words. I have asked the witness whether or not he is familiar with
the speech and, having read the summary from this work, I have, Sir,
asked the witness whether he is familiar with the original, and that is as
far as I have proposed to go because of the very point the honourable
President has made. ·
The PRESIDENT:Thank you very much.
Mr. GROSS:Would you say, then, Sir, whether you are familiar with400 SOUTH WEST AFRICA
the language actually used by the Minister of Bantu Education in that
speech?
l\1rRAuTENBACH: Familiar with the ]anguage?
l\Ir. GRoss: You are. or arc not, Sir?
l\ir.RAUTENBACH: In a general way, yes, but I cannot quote the
words ...
Mr. GROSS:1 would not ask you to do that,,Sir.
Mr. R.\UTENBACH: And Icannot judgewords whichare not quoted words.
i'.\GRoss: On the basis of your general familiarity, would you say
whether or not you regard this summary by Miss Horrell in this work as
a fair summary, or can you answer that question?
Mr. R.\UTENBACH: No. I do not regard that as a fair sununary of the
motivation for the establishment of separate universities and the form
of governments. It is slantecl.
Mr. GROSS:I see, Sir. \Vith regard to the slanting of this summary,
would you say, Sir, on the basis of your knowleclge or recollection of the
speech in question, that the policy of changeover from the mixed ta, shall
we say, segregated govcrning body of Fort Hare was related in any way
to the governmental policy of apartheid or separate development in the
educational system as a matter of principle?
Mr. RAuTENBACH: Yes. I rcally think that at that stage it brought the
Bantu universities into line with the general policy of the Government.
Mr. GRoss: And would you agree, Sir, that the reason for the change
was to bring the situation in Fort Hare in line with the Government
policy of strict separation?
Mr. RAuTENBACH: With the Government policy of separation for the
sake of those communities. Itis always half a statement to concentrate
on the means and not the objectives or the aims.
Mr. GROSS:For the sake of those communities?
Mr. RAUTE:-.BACH: Yes, and for peaceful co-existence.
Mr. GROSS:Yes, Sir. Now, these are the reasons for the rigid separation
which, of course, are very prominent in the records. The answer to my
question, I take it, is that for reasons which you regard as excellent, Sir,
the reason for the change-over was to bring Fort Hare in Jine with the
governmental apartheid policy. That is correct, is it not, Sir?
Mr. RAUTENBACH: Yes, that is correct.
Mr. GRoss: Now, Sir, regarding the general attitude prevailing about
the period 1957-1959, àpropos of your testimony, inter alia,with regard
to the attitude of certain individuals, White or non-White, on the
segregation policies, I would like to ask you, Sir, whether you followed
during 1957-1959 the varions positions taken pro and con by authorities
with regard to the legislation then under discussion?
i\IrRAUTENBACH: I took a good deal of notice of what was happening
in South Africa and outside South Africa.
l\IrGROSS:And you would regard yourself as rather well~informed on
those developments at that time, Sir?
Mr. RAuTENBACH: As relatively well-informed. I could not declare
myself an expert.
Mr. GRoss: Are you acquainted with the work which was the joint
product of the Universities of Witwatersrand and of Cape Town, pub
lished under the heading The Open Universitie:sin South Africa and
published in Johannesburg, Witwater:,rand University Press, 1957? You
are familiar with that? WITNESSES AND EXPERTS 401
i\Ir. RAUTENBACHI: am familiar with that. I had about half a dozen
copies sent tome. I read one of them.
Mr. GRoss: Yes, Sir. Did you comment on it: in writing or otherwise
after you had read one of the six copies?
Illr. RAUTE.:,.[BACIHn: article1 published I commented on certain of
the ideas which had been expressed and one article was the article on
Sir Eric Ashby's speech on the occasion of one of these ceremonies.
Mr. GRoss: Well, Sir, lest there be any confusion, I am referring to the
document The Open Universities in South A/rica, which was publishecl
"pursuant to and as a result of the Conference convened in Cape Town
in January 1957 and attended by authorized representatives of the two
universities, senior members of the academic staffs and members of the
two university councils". This is quoted from füe preface in this volume
to which 1 have referred. Are you familiar with that work, Sir?
Mr. RAUTENBACHY : es, I am familiar with ail these agitations.
1lr. GROSS:AUthese what?
i\fr. RAUTEXBACHA : gitations.
i\lr. GROSS:You describe this document as an agitation, Sir?
Mr. R.WTENBACH:No, but the whole process during that time-the
events on ail sides-were ...
Mr. GROSS:On all sicles was there a series of agitations and counter
agitations? Is that how you would describe the discussions at that time?
Mr. RAUTENBACHY : es. You were referring to the period r957-1959
and there was a good deal of agitation on both sides in that period;
memorials and counter-memorials, marches and counter-marches on the
side of the students and, in the long run, some academics too.
Mr. GRoss: I see. When you uscd the term "agitation" in respect of
this publication, was it your intention to impeach its authority by use of
that termi
11Ir. RAUTEXBACHN : o, not to impeach its authority that it is an
account of what happened and what was said, but when I say agitation
it is not the type of discussion, exposition, which has arisen since then
and which one associates more with the university and the university
atmosphere. As I say, it is on both sides. I do not want to impeach the
one sicle-one is like the other.
Mr. GROSS:Now, 1 would just like to clarify your use of that term, Sir.
It is true, is it not, that the preface is signed by former Justice Centlivres,
who was then Chancellor of the University of Cape Town, and by Richard
Feetham, who was Chancellor of the University of Witwatersrand? You
are familiar with the fact, Sir?
Mr. RAUTEXBACHI: am familiar with that fact and I knew ex-Justice
Feetham very well.
Mr. GROSS:In the preface, Sir, again to weigh its value in terms of its
acceptability as an authority, it states that the book-
"clearly reveals the far-reaching character of the issues raised by the
Government's proposai and no one who r,~cognises the gravity of
these issues, intheir bearing on the future welfare of South Africa,
can afford to ignore the strength of the case made in support of the
daim of the open universities that they should not be deprived of
frcedom to continue to exercise their existing rights. Rcaders will
realise that the plea of the open universities is not only a plea for
the preservation of their own freedom, but a plea for the preserva
tion ofthe freedom of every South African university."402 SOUTHWESTAFRICA
Would you agree, Sir, with the characterization of the issues involved as
of gravlty and having a bearing on the future welfare of South Africa?
.Mr.RAuTENBACH: Iwould agree that the issues being raised at that
time and being discussed were of importance and are still of importance
for the future welfare of South Africa. But that does not mean that I
agree that what was at stake is as described in that particular booklet.
Mr. GROSS:Are you referring now, Sir, to the merits, or otherwise, of
the pronouncements or conclusions reached?
Mr. RAUTENBACHY : es.
Mr. GRoss: Turning to those, Sir, if I may, I refer to page 5, which is
under the heading of "The Essence of the Case" and, for convenience,
attempts to summarize the essence of the problem. The first point is,
Sir-to which I will ask you whether you agree or disagree-
"The open universities declare that legislativeenforcement of
academic segregation on racial grounds is an unwarranted inter
ference with,university autonomy and academic freedom. These are
values which should not be interfered with, save with the utmost
circumspection; and the onus lies upon any government which con
templa tes such interference to justifyts proposed action clearly and
irrefutably."
Pausing there, would you agree or disagree with that statement?
The PRESIDENT:There are a number of statements there, Mr. Gross.
This type of question has been referred to more than once. When you are
cross-examining an expert in respect of something said by somebody else
it does not give the expert an opportunity to consider his reply. nor is it
of great assistance to the Court, if you read a statement containing a
number of allegations. Why don't you put the allegations specifically to
the witness, as you have done on previous occasions? That is the correct
way, if I may say so, to seek to cross-examine an expert witness.
Mr. GRoss: The two sentences which I have read are interrelated and
I had thought that they encompassed one thought. I will, however, read
each sentence and ask whether it contains more than one idea. I find it
somewhat difficult to break it down without destroying the context, Sir.
The fi.rst sentence is:
"The open universities declare that legislative enforcement of
academic segregation on racial grounds is an unwarranted inter
ference with university autonomy and academic freedom."
If there is not more than one thought in that, Sir, would you express
agreement or disagreement with that statement?
Mr. RAUTENBACHS:tarting at the end, because there are also three or
four statements in what you have read, there are two concepts at the
end, academic freedom and autonomy.
Mr. GRoss: Would you distinguish between the two for the purpose of
my question? Let us take first the statement that "the open universities
declare that legislative enforcement of academic segregation on racial
grounds is an unwarranted interference with university autonomy". Do
you agree with that statement by these authorities?
l\lr. RAUTENBACHN : o, I do not agree with that statement because it
does not state the whole of the situation.
Mr. GROSS:What important element has it omitted, Sir, from the point
of view of your agreement or partial disagreement?
Mr. RAUTENBACHT :hat what is called "academic segregation" there WlTNESSES AND EXPERTS
is rejected without giving a full explanation or a somewhat wider ex
planation of what the aims were of establishing separate institutions.
i\lr. GRoss: With respect to this sentence, and 1 do not mean to parse
it, Sir,but I want to be sure that we understand it in the same wav-1
understand this sentence to emphasize legislative enforcement. This is
the essence of the case, one of the key paragraphs. "The open universities
declare that legislative en/orcement of academic segregation on racial
grounds is an unwarranted interference with university autonomy"-we
stop there. Do you disagree regarding the conclusion that legislative
enforcement of academic segregation is an unwarranted interference with
university autonomy?
Mr. RAUTENBACHN : o. I do not agree with that in South Africain its
own peculiar situation.
:\IrGROSS: Now, Sir, would you then explain why you disagree in
respect of the desirability or othenvise of enforcing this segregation by
legislative enforcement?
.Mr.GROSS: Dr. Rautenbach, I believe you were about to answer or
would you prefer to have the question re-stated with the President's
permission?
Mr. RAUTE~BACH:I would prefer to have it re-stated please.
Mr. GROSS: As closely as I can recall it, it related to the basis of your
disagreement, whole or partial as it may be, with the pronouncement of
the authorities we have been discussing, that the open universities declare
that legislative enforcement of academic segregation on racial grounds is
an unwarranted interference with the university autonomy. The em
phasis, Sir, I thought, is on legislative enforcement, and we were at the
point, I believe, of your explaining to the Court why you disagreed with
this statement's emphasis on the undesirability of legislative enforcement
as a method for bringing university apartheid into being.
l\lr. RAUTEXBACH U:sing the same emphasis of Iegislative enforcement,
I agree that these things can and should be done by legislative enforce
ment even if there is autonomy and freedom. even as I agree that in
certain countries, under certain conditions, integration in universities
of ail racial groups should be brought about by legislative enforcement.
Mr. GROSS; In other words. you are referring in the latter connection
I take it to certain policies and certain States which by law or otherwise
prohibît segregation or discrimination in education-is that what you
are referring to, Sir?
Mr. RAUTENBACHN : o, not only prohibit but prescribe intervention
and I am referring, of course, in this case to the United States of America,
where so much was spent after the Supreme Court gave its verdict on
these matters and spent on that legislation thousands and thousands of
dollars and the employment even of armed forces to enforce it; that is
something beyond the "legislative" of course, it is the result of legislation.
I would agree that there was justification for that.
Mr. GROSS: I think we need not, unless the Court wishes, get into a
discussion of the Constitutional position of the United States. However,
I take it that you do not agree with a policy which would prohibit segrega
tion in South Africa-that is self-evident, is it not, Sir? Do you under
stand my question?
Mr. RAUTENBACHA : t this present juncture, I would not agree, if I
have taken the question correctly, with legislation. At least, I would be
against Iegislation which would enforce integration. SOUTH WEST AFRICA
~Ir.GROSS: Which would prohibit separation, Sir, or is that just
another way of saying the same thing?
Mr. RAUTEXBACH: That is another way of saying the same thing.
Mr. GRoss: Your preference would be to put it the other way. Now
with respect to the legislativc enforcement of university apartheid or
separation (in the words of the report it is apartheid), would you say, Sir,
that the desirability, in your terms, of legislative enforcemcnt, rcsts upon
the unwillingness of the universities themselves to apply the policy of
apartheid? Would you say that enters into the problem and justifies
legislative enforcement?
Mr. RAUTENBACH: No, I could not say that in face of the fact that at
the University of Natal there was voluntary segregation, and cven in the
case of this University the lcgislation brought about a new state of
affairs.
Mr. GROSS: Sir, with respect for a moment to these universities which
have been described as the open universities as distinguished from
Natal ...
i\lrRAuTEXBACH: Natal regards itself as an open univcrsity. .
Mr. GROSS: Ali right, Sir. Then let us say that with respect to open
universities other than Natal, is the justification in your analysis of
legislative enforcement of apartheid in the universities to be explained
to any dcgrce by the rcsistance of some of the open universities to the
policy of separation?
Mr. RAUTENBACH: That may have played a role, Mr. President.
Mr. GROSS: Is there any other reason you can think of, Sir, and explain
to the Court, why legislative enforcement would be necessary?
Mr. RAUTENBACH: Yes, to further the objectives in connection with
development of the various groups.
Mr. GROSS: Do you mean by that. Sir, to say that the open univcrsities
such as Witwatersrand or Cape Town could not be trustcd without
JegisJative compulsion to carry out these policies to which you have just
referred, for the reasons which you assert?
Mr. RAuTE~BACH: No, there are also other reasons, another being that
the so~called open universities never at any timc in their existence were
in the fullest sense of the word "open" universities----only the classrooms
were open but not the other aspects of university life.
Mr. GROSS: The open university (I do not insist upon the phrase, this
is the phrase used in the title of this work and commonly used, l think,
by yourself in your testimony), I am using the term merely to identify
certain universities. Would you state again, Sir, if you have already donc
so, whether it enters into the necessity for legislative enforcement that
these universities, or some of them, could not be entrusted, if lcft to their
own devices, to carry out the policy of apartheid in their education-is
that a correct statement of one of the reasons for the legislativc enforce
ment?
l\irRAUTENBACH: l\Ir. President, it is very difficult for me to give a
verdict on what would or would not have happened. As I say, it may
have been one of the causes and it probably was one of the causes, but I
would not go so far as to say that it would always be the statc of affairs,
because some of these gentlemen have changed their minds.
11r.GROSS: I ask you again, Sir, are there any other causes or reasons
underlying your disagreement with the statement here against enforced
segregation by legislative measures? WlTNESSESANDEXPERTS
Mr. RAUTENBACHI: think, by and large, in the course of my submis
sions here, or my testimony, I have given .inumber ofreasons ofa positive
nature why I think that legislative enforcem~nt should have taken place.
Mr. GRoss: You have no others to add, Sir?
Mr. RAUTENBACHN : o, not particularly at the present timc.
Mr. GRoss: With respect to the normal requiremen ts of law and ordcr,
enforcement is normally geared to the proposition that some people or
institutionsare prone to commit wrongs-is that not so, Sir?
Mr. RAUTENBACHT : herc would have bcen no law in the world if the
possibility of transgression had not been there, or the reality of trans
gression.
Mr. GRoss: Normally, Sir, if there is a legislative requirement, parti
cularly one which is attended hy criminal sections, that would mean,
would it not, that there was a fear or suspicion that the universitics in
question rnight, if left to their own devices, continue with their traditional
policy of mixed or open education-is that not so, Sir?
Mr. RAUTENBACH:Mr. President, I have been trained in law at my
university by lawyers who at the Serrate Meetings say that whatever law
is passed is a law which regulates something-something must be regu
lated-and a law regulates. It seems to me that that is a very sensible
way of approaching it.
The PRESIDENT:\Vere you aware of any suspicion on the part of the
universities, or the open universities, that if !dt to their own devices
they would not support the policy of separateness or apartheid in the
universities?
Mr. RAUTENBACH:Yes, there is a possibility. I think thcre were
symptoms of that ...
l\frGROSS:There were what, Sir?
Mr. RAUTENBACH:There were certain symptoms or s1gns that that
could possibly have happened.
Mr. GROSS:Sir, continuing now, with the next statement under the
heading of the Essence of the Case, I read as follows from page 5, and
continuing on page 6:
"The open universities believe that the policy of academic non
segregation provides the conditions under which the pursuit of truth
may best be furthered and that it has promoted inter-racial harmony
and understanding."
Pausing there, Sir, do you agree or disagree with that conclusion?
Mr. RAUTE~BACH:I disagree with that conclusion. I will give my
reasons. In the case of the University of Natal, I attended a graduation
ceremony (I think the American terrn for that is a "commencement", a
commencement exercise) which had been boycotted by the Coloured
graduates, after a goocl deal of agitation had taken place. The case in the
University of Natal-the graduates carne before the Chancellor or Vice
.Chancellor in groups and not alphabetically. Now that is where men were
on the same campus, attending segregated classes, but even there this
problem arose. You have the problems brought ,lbout by Whites, not by
the Coloured people, dernanding that the social fonctions, <lances and so
on, should be attended bv ail and, in the University of Natal, a fight
broke out when a Bantu n=;anhad approached a young \Vhite woman for
a dance and the police had to be brought in. The reason why I think there
should be enforced segregation at this stage is to prevent that and not
only for the sake of law and order, but it is an attack, it is an offence to SOUTH WEST AFRICA
the dignity of a man who has been invited to a dance by a member of the
Committee if one of the womenfolk refuses to dance with him on the
ground of colour. That is the worst type of discrimination which can be
found.
Mr. GRoss: Sir, to revert to the comment or conclusion of the author
ities here under discussion, that the policy of academic non-segregation
promotes, among other things, inter-racial harmony and understanding.
Apart from the episode to which you have just referred, Sir, which I
would agree, of course, is deplorable, do you agree that the mixed or open
system of education promotes inter-racial harmony and understanding in
any respect?
Mr. RAUTENBACH: It may do so, but it has often happened that, even
on one campus, a school campus, where there are two Janguage groups
(now I am referring to the language groups in South Africa of the Whites,
the English and the Afrikaans language groups) on a certain day, when
one group wants tocelebrate this or that event in the past history, it has
led to conflict. I hope in due time we will become more mature and over
come that, but bringing people together from varions backgrounds rnay
lead to conflict, and particularly as soon as the numbers become more or
less equal. When there is a small minority on one side they tend to with
draw, but when the numbers become larger the possibility of conflict
becomes very great if you have more or Jess two equal groups, or ifthe
situation arises where a group begins to think it is not getting its full
share and, in the case of people who are of various colours, of various
ethnie relationships, on the same campus at the present time there is such
strong sense of the rights of groups that I really do think it would not be
very advisab1e, by law or by custom, to re-introduce so-called open
university systems, particularly in those two universities which I have
mentioned where there is integration in the classrooms, but outside of
that segregation.
Mr. GROSS:Would it be consistent with your analysis, with which you
have just favoured the Court, that in terms of the report, frorn which we
are quoting at page 6, that inter-1acial harmony and understanding are
promoted by segregation? Would you go so far as to say that, Sir?
Mr. RAUTENBACH: I would go so far as to say that if segregation is of
a positive, dynarnic nature, which rneans that each of these groups ought
to have an opportunity of realizing their aspirations, then segregation
will Iead to more harmony because nobody will have a right to be dis
gruntled or make comparisons.
Mr. GRoss: Does this answer presuppose or rest on the fondamental
premise of apartheid, as appears, for exarnple, frorn Prime Minister Ver
woerd's staternents which have been read into the record, that each
group, or community, is to operate in its own sphere, so to speak?
Mr. R-\UTENBACH: So to speak. To lead toward nationhood in each
sphere.
Mr. GRoss: Let us talk about South West Africa for a moment, which
is the subject of these proceedings. \Vhat would be the answer you have
just given in terms of the so-called modern or exchange econorny? Would
you consider that in that sector the Whites and the non-Whites live in
the same sphere?
Mr. RAUTENBACH: They live in the same sphere for eight hours a day
probably, if they have an eight-hour working day, but for the other r6
hours, they do not live in the same sphere. WITNESSES AND EXPERTS 407
Mr. GRoss: Would you say, Sir, that the degree of realization of
economic well-being, social advancement and moral self-realization, that
these factors are influenced in any way during the eight hours in which
they work?
Mr. RAUTENBACH: I do not quite get that question.
Mr. GROSS: You made a point, Sir, of the fact that they live in one
sphere for eight hours and live in another sphere for eight hours.
Mr. RAUTENBACH: They work in that sphere for eight hours.
Mr. GROSS: They work in that sphere for eight hours?
Mr. RAUTENBACH: They do not just sit down.
Mr. GROSS: They spend their time in that mixed or so-called White
economy? My question to you, Sir, if I may perhaps put it in more direct
terms, with respect to that portion of their lives which is spent in the
service of the White economy, shall we say, what, if any, role should
education play with respect to promoting inter-racial harmony and un
derstanding, as between the White and non-White in that sector?
Mr. RAUTENBACH: Education should always tend towards establishing
harmony between individuals and groups. I think it is part of the edu
cators' task to do that. but I do not see how vou relate that education to
that eight hours, specifically, where a man is"bmy working on a machine
or something of this type. I cannot quite see how you, Mr. Gross, relate
these matters.
Mr. GROSS: \Vell, suppose that man who is ,vorking on a machine has
aspirations to, let us say, become assistant foreman, just by way of
hypothesis. With respect to his understanding of the Whites, in the sense
of better understanding of the White employer, he being non-White,
would education have arole in the establishment of better understanding
between the two groups? This is my question to you, Sir.
Mr. RAUTENBACH: Yes, I certainly think that education should in any
case teach representatives of both groups that all are human beings with
all the characteristics of human beings, that the colour of a man's skin
does not make him sub-human or superhuman. That is one thing that
education, in the wider sense, should bring about.
Mr. GROSS: Do you think, Sir, that lesson is taught well by the segrega
tion, enforced or otherwise, of education according to ethnie groupings?
l\fr.RAUTENBACH: Education according to ethnie groupings ... But
it is also education according to Christian ethics in so far as scripture is
taught in all schools, but with freedom ·of conscience and, if there is one
lesson scripture brings forward-from the thinl chapter of Genesis-it
is that all people are created after the image of Gad irrespective of colour
or race or ethnie grouping.
Mr. GRoss: With regard to the welfare and progress of the non-White
person who is spending eight hours a day on a machine in the so-called
White economy, do you recommend, Sir, as a matter of educational
policy that he be taught in a segregated school and that the White em
ployer and his children be taught in a segregated school in order that
those two could understand each other better? Is that what you are
saying to the Court, Sir?
.Mr. RAUTENBACH: Yes.
Mr. GROSS: In what respect would this segregation or separation teach
the White and the non-White, respectively, Jessons in harmony and
mutual understanding?
The PRESIDENT: Or produce it? SOUTH WEST AFRICA
i\Ir.RAUTE:::,;BACH: I beg your pardon.
The PRESIDENT: Or result in it?
Mr. GROSS:Or result in it-yes.
The PRESIDENT: Teach or result in it.
:Mr. RAUTENBACH: In the first place, having a school in your own
group, having a school committee, or a school board, from your own
group, using the vernacular, or the mother tongue, as the first language
for teaching and learning ccrtainly gives a sense of value or dignity to
every group and the individual raised in a group, where the group itself
is aware of its value and its dignity, will remove that idea of inferiority
when meeting the other. t would not be conducive to a sense of value or
dignity at the prescnt stage to bring them together. Therc are many
reasons why, in the one case, a better opportunity is provided for self
fulfilment and self-realization, happiness and satisfaction than in an
integrated group.
l\lr. GROSS:And this reasoning that you have just advanced applies,
does it, Sir, to the situation in which the White and the non-White serve
the same economy?
Mr. RAUTENBACH: Yes, that also applies because the residential areas
are apart and the schools are situated in the residential areas and not in
the factories.
Mr. GRoss: And not the what, Sir?
.Mr.RAVTENBACH: They are not situated in the factories, where they
work for eight hours, but ...
Mr. GRoss: I think the record shows tha t the non-White schools are
not only segregated but separated from the areas in which thcse people
work.
Mr. RAUTENBACH: You could cal! that geographical scparation.
Mr. GROSS:Geographical apartheid as well as educational? Yes, Sir.
With regard to the underlying goal of promoting inter-racial harmony
and understanding, I take it that your answer to my question was that
separate instruction on the basis of racial groupings gives to each group
a sense of dignity and ... Is that correct, Sir?
1Ir.R-\UTE:::-;BACH:That is one of the points.
i\lrGRoss: And that creation of a sense of dignity on the part of each
group encourages them to understand each other and to harmonize with
each other more effectively? ls that what you conclude, Sir?
:11IR.AurENBACH: Yes, because what I value in myself for my own
group I have got to grant to another to value in his group. You have
separation, too, leading to more peace-you have Northern Ireland and
the Irish Republic. In Cyprus, where there was a question ofintegration,
you got the opposite and even inthe vast sut-continent of India, separa
tion is not proving quitc satisfactory. There is still some trouble with
separation itself, but integrate now, there, and what will happen?
Mr. GROSS:Your point bcing, I take it, that the problem of inter
racial strife, prejudice and discord is a rather universal phcnomenon. Is
that correct, Sir?
Mr. RAuTENBACH: That is universai. lt is not peculiar to South Africa.
11Ir.GROSS:That is right, Sir. With regard to the general problem of
promoting inter-racial harmony and understanding, you have testified
have you not, Sir, that among the staff of the non-White colleges,
with which you are familiar, the relationship, working contact and asso
ciation between the Whites and the non-Whites has indeed promoted WITNESSES AND EXPERTS
mutual understanding? Is that a correct version of your testimony, Sir?
Mr. RAUTENBACH: That is a correct version of my testimony as regards
the men on this academic level and an ad koc association. It is an ad hoc
association for certain purposes and it is an association subject to a
certain development which is envisaged in the future.
Mr. GRoss: When you say people have a certain lcvel where this
chemistry of co~operation applies, at what level would you say a different
relationship exists, or a different consequence results from working
together and studying together?
Mr. RAUTENBACH: At those levels where the customs of the communitv
play a dominating role and where these tend to arouse emotions. Now,
it is generally presupposed that university people or the academics, the
egg-heads some call them. have corne to a stage where reason plays the
greatest role. In other spheres perhaps emotion is more easily aroused
and where emotion may be aroused, tension may be aroused and those
tensions are not settled by argument or by debate, but in other ways.
Mr. GROSS: Would you say, for example, that the graduate of a medical
school or the graduate of a law school had reached the level that you are
describing, with respect to staff level?
Mr. RAUTENBACH: Yes.
Mr. GROSS: Therefore, would you explain in what respect then there
would be a difference, if any, in the mutual understanding arising from,
let us say, medical students or law students studying together. In what
sense would that problem, or the problems created thereby, be different
from those which arise, or do not arise, in staff associations between
ethnie groups? ·
Mr. RAUTENBACH: I have to return, Mr. President, to the evidence I
submitted here before, and I have to draw attention tothe fact that the
experience at the University of Natal in its medical faculty, since the
early fifties, has bcen that medical education of the Bantu is best served
by spreading the six years' course over seven years. Now, if the Bantu
and the others are to be brought together at the University of Natal
who have the widest experience of this, and immediately, not only the
differentiation-it will be felt as a discrimination if the one group is told,
you have a certain lag in language, remedial instruction, or a certain lag
here or there, you are going to have to study for seven years whereas the
others study for six years. That would immediately create tension,
dissatisfaction and that would not be differentiation, that would be
harmful discrimination.
Mr. GRoss: Therefore, Sir, in respect of the example I gave you, in
medical school, let us say, the purpose of separation or segregation is to
protect the non-White from what might be called, the consequences of
his own cultural lag. Would that be a fair description of your testimony?
Mr. RAUTENBACH: Yes, as long as cultural lag is not ascribed to in-
herent factors.
Mr. GROSS: To what factors?
Mr. RAUTENBACH: Inherent or innate.
Mr. GRoss: Would it be pertinent, then, to enquire whether in your
studies of the university level education, as part of the South West
Africa educational system in this sense, if there have been any non
White candidates for medical school, let us say, who have not suffered
from this cultural lag which you describe?
Mr. RAUTENBACH: I think there must have been at some time or other SOUTHWESTAFRICA
4ro
medical students at the University of Wltwatersrand-I know they were
picked-Bantu students for final year, one year-1 do not know how
many years they took over the course-but there may have been some
bright ones, some exceptionally bright ones, who took the course in six
years. One of the examiners informed me that in certain subjects he
found that the Bantu people had difficulty. In other subjects, again, they
were probably in advance of the Europeans. He is nota trained psycholo
gist, merely in internai medicine,but that was his impression. Now, that
second-band knowledge is not my own knowledge, but it is possible that
it could have happened, and I think it bas happened that a man of Bantu
origin bas passed this course inthe same period as the other, but Natal's
experience bas been, by and large, that there is a handicap, there is a
lag which must be overcome by remedial measures.
Now, I know in many countries of the world-1 visited California-in
California too, in the engineering training, certain remedial classes are
given to students coming from certain schools, where there is also a lag.
Mr. GRoss: With respect to the non-White whom you describe and,
whom, shall I say, for shorthand, is not to be thought of as a cultural
laggard-with respect to such a person, who is admittedly and obviously
qualified to perform bis studies in the requisite period and with a hope
of success, would you say that his exclusion from the medicaI school of
bis choice was based upon any consideration other than his race or ethnie
origin?
Mr. RAUTENBACHI:f I heard you correctly, you are asking whether the
exclusion ...
Mr. GROSS:Of such an individual is to be explained on any basis other
than his racial or ethnie classification in a census?
Mr. RAUTENBACHN : o, as far as the door of this is concerned, that door
is opened or closed according to the act, and that act does base it on
ethnie relations.
i'Hr.GROSS:So that the short answer to my question, I take it, is that
the doctrine or policy of apartheid precludes attendance of such a person
upon the basis of his racial or ethnie origin without reference to his
innate capacity or ability. That is a correct paraphrase of your testimony?
Mr. RAuTENBACH:No, I am afraid that is not a correct paraphrase,
because as long as it still stands in the Act that, with the permission of
the Minister, a man may enter another university, that is not correct. It
may be correct for 99 percent., but correct means completely correct.
Mr. GRoss: That is right. Now let us turn to the point you have just
referred to, the matter of exception, the r percent. exception. First let
me ask you, if I may, when and îf an exception is granted, what is the
role and relationship of the excepted persan in the White university
when he achieves the status of residing and studying there? What is his
roteand relationship in the university?
Mr. RAUTENBACHT :he White student?
Mr. GRoss: The non-White who gets an exception, the r per cent.
category, who are granted an exception to which you referred, and goes
to a White university; what is his relationship to the White students that
comprise the totality of that university?
Mr. RAuTENBACH:His relationship to the White students who com
prisethe totality of the studcnt part of that university is that of a man
who attends the same classes, the same lectures, works in the same
laboratories, and his physical presence in a geographical sense is on that WITNESSES ANDEXPERTS 4II
same campus, but he is deprived of quite a number of amenities, quite a
number of privileges, which form part and parcel of the extra-curricular
contribution towards education.
Mr. GRoss: And would you add to that perhaps that he would be a
lonely individual in that environment?
Mr. R.AuTENBACHY : es, he could be a lonely individual, he could
develop complexes of the Freudian type.
l\fr.GROSS:Would it be relevant to that possible consequence of the
situation we are describing to consider the advantages, humane, practical
and otherwise, of putting that gifted student in a position where he had
like similarly gifted or capable students of his own race or religion in the
same environment? In other words, putting it very simply, is there not
a good reason arising from your testimony to have a situation in which
that man does not find himself alone in a so-called White environment?
Mr. RAUTENBACHY : es; if there had been complete integration, then
the situation would have been different, but as long as there is no
complete integration on any campus, there is something on that campus
which hinclers me.
Mr. GROSS:Still remaining with the question of the certificat es of
exemption or exception to which you referred in your testimony as the
I percent. exception to the apartheid principle ...
l\Ir.RAuTENBACH:I did not mention r per cent., Mr. President-!
mentioned it in another connection; there are at present r8r Bantu in
the open universities, which is very much more than r percent. of r,ro7.
Mr. GROSS:I,!07 Bantu students in South Africa?
Mr. RAUTENBACH:Yes, in South Africa at university level in the
residential universities or institutions.
Mr. GRoss: You referred to 99 per cent.-I don't mean to press you
on that.
Mr. R.AuTENBACHN :o, that is in another context.
The PRESIDENT:It was a figure of speech?
Mr. GRoss: You say that there are 181 Bantu registered in White
universitiesat the present time?
Mr. RAUTENBACHY : es.
Mr. GROSS:That figure does not include those taking correspondence
courses, I suppose?
Mr. RAUTE:N"BACN Ho:.
Mr. GRoss: Where are these 181, if you will advisethe Court, and how
are they distributed among the universities?
Mr. RAUTENBACHT :he greatest number is found in Natal.
Mr. GRoss: And how many are there?
Mr. RAUTENBACHT : here are 80 medical students; I think all in all
there must be over roo. ,
Mr. GROSS:Now those 80 medical students at Natal-would they not
be in attendance at a non-White medical school?
Mr. RAUTENBACHY : es, they are in attendance after the first year at
the non-White medical school.
Mr. GROSS:So that including those 80 among the number you have just
given would not be intended to signify to the Court that these Bo are
attending White institutions except in the purely formai sense that the
university is the over-all umbrella?
Mr. RAUTENBACHT :hat is so.
Mr. GROSS:Reverting to what I think perhaps may be doser to the412 SOUTHWESTAFRICA
point, that leaves approximately roo students who have been granted
exceptions by the Minister, is that correct?
Mr. RAUTENBACHY : es-that is about JO percent.
Mr. GROSS: .Now among, roughly speaking, at what universities are
those 100 exceptions in residence?
illr. RAUTENBACHT : hey are chiefly to be found in the University of
the Witwatersrand and the University of Cape Town, which were named
open universities by Mr. Gross.
Mr. GRoss: Do you have any idea as to the relative distribution of
these rno between the two universities of Witwatersrand and Cape
Town?
illr. RAuTENBACH:A document is available here ...
Mr. GRoss: I mean off-hand. do you know?
Mr. RAUTENBACHT : hev are to be found chieflv in those faculties and
departments for which the Ban tu colleges as yet 'do not make provision.
I found some in music, for instance, and in certain cases for certain types
of B.Sc. Degrees, and in speech therapy-1 noticed that going through
the list; but by and large they are chiefly to be found in those depart
ments and faculties where the Bantu co!Ieges as yet do not make pro
vision.
Mr. GRoss: You do not know, l take it, the general distribution of
these IOO as between \Vitwatersrand and Cape Town?
Mr. RAuTENBACH:The majority are at Witwatersrand.
Mr. GRoss: About roughly how many would you say?
Mr. RAUTDIBACH:I think about 70 per cent. of those.
Mr. GRoss: So there are about 70, roughly, at Witwatersrand and 30
at Cape Town-that represents the total picture, does it,of exceptions
granted to non-\Vhites to study at White universities, leaving aside the
medical school of Natal?
Mr. RAUTENBACH:I could now give you exact figures. Out of 145
applications made to the Minister as from January 1960 up to Fcbruary
of this year, out of the145,24 were granted.
The PRESIDENT:Twenty-four were what?
Mr. RAUTENBACHT :wenty-four Ban tu were given permission to attend
\Vhite universities. The others may be carry-overs, and I do not know
how the arrangement was, but that is the exact number-24 applications
out of 145 were granted. The majority of those which were not granted
were referred to the Bantu colleges which made provision for their study.
Quite a number of them did not qualify for cntrancc to any university
they failed the matriculation examination and the supplementary
matriculation examination. There is a list available of each and every
one of these individuals.
Mr. GROSS:Is it the practice, so far as you are aware, for the Minister
to give reasons for the rejection of applications?
l\lr. RAUTENBACH:No, not the practice to give reasons, but there is
generally a note added, the student is referred to this, that or the other
institution which does make provision, and inthat I see a certain reason,
the rcason for refusai then being that provision is already made at a
certain place and approach that body or approach that university, but I
would take it that the Minister does not give a reason in every case.
l\fr. GROSS:Would the slip or note to which you rcfer indicate, for
ex.ample, whether a course was available through correspondence at the
University of South Africa? WITNESSES ANDEXPERTS
.i\rr.RACTEXBACHY : es, that is the infercncc which I must make from
the list which I received.
î\Ir. GRoss: Would you be prepared to advise the Court, roughly again,
approximatcly what proportion of the Applicants dcnied exception by
the î\1inister were denied such exception on the ground that they could
pursue the same courses through correspondence at the University of
South Africa?
i\1r.RAUTE:SBACHI: think more or less aU of them, though not South
Africa; quite a number werc referred to the Bantu colleges.
Mr. GROSS:For corresponclence courses?
î\Ir. RAUTENBACHN : o, not for correspondence courses.
i\Ir. GROSS:I was referring to correspondence courses.
Mr. RAUTENBACHO : h, for correspondence courses; no, a very small
number of that list was referrccl to South Africa, because the majority
of them hacl applied for current B.A. and B.Sc. Degree courses or educa
tion courses which were availablc at the Bantu universities.
Mr.GROSS:You say that a small number, so far as you are aware, wcre
denied entrance by reason of refcrence to the possibilities of correspond
ence courses?
Mr. RAUTENBACHY : es, I remember a small number of that type.
Mr. GROSS:What would your opinion be with respect to that as a
reason for denying application for persona! stuclies?
.Mr.RAUTENBACHF :or persona! studies?
Mr. GROSS:Yes, not through correspondence, through attendance in
person.
i\Ir. RAUTENBACHO : f course I givc prefcrence to attendance in person.
î\Ir. GROSS:Would you regard, from the eclucationist's point of view,
a correspondence course as equivalent to a course achieved by persona!
attendance, in respect toits academic excellence and so forth?
î\Ir. RAUTE~BACH:In respect of the content, the subject, of the course;
as regards that, I have been informed by members of my staff that in
many spheres they were surprised at the succcss which could be achieved
through correspondence-languages, the arts, and so on; in fact, the
Dean of the Facultv of Law told me-in South Africa vou first have to
take a de&'TCC outside the law faculty before you can enter the law
faculty-that they had had a number of students coming from the
University of South Africa who had bccn taught through correspondence,
and who were up to the grade in the prescribed subjects of Roman Law,
Roman Dutch Law, Latin and the two languages of the country; but I
think in the case of the sciences, of course, you cannot make a man a
physicist through correspondence-he has got to work in a laboratory
outside the systematic part of the subject.
i\lr. GROSS:Can you makc him a musician by correspondence?
i\lr. RAUTENBACHN : o, you could not makc hjm a musician otherwise
either if he has not got musicianship in him.
Mr. GROSS:If somcbody came to you, Sir, a non-White student, and
asked your advice with respect to the relative merits in his persona!
case-may we talk about an individual and not a group for a moment
and asks you for your advice as to whether he would get a better educa
tion through a correspondence course than by persona! attendance at a
university-what would your advice to him be, Sir?
i\IrRAUTENBACHî:\fy advice to him would be-if it is possible for you
to attend what we call a residcntial university where there is viva voce SOUTHWESTAFRICA
teaching, I would prefer that of course and everybody would prefer that
because it is the acquisition of a skill and not only a theory-you could
not acquire a skill by correspondence.
Mr. GRoss: Sir, in the book to which I have refcrred, A Decade of Bantu
Education by Muriel Horrell, the statement is made at page 139 that
à propos of the question we are discussing of exceptions requested and
granted that "in 1961, only three Africans were permitted to enrol for a
first timeat an open university, two in Natal and one at \Vitwatersrand".
Are you in a position, Sir,to confirrn or question those figures as the case
may be?
Mr. RAUTENBACHI: have great doubts as to the correctness of that
figure because that does not seem to coïncide with the 24, and in the first
two years there were more permissions granted than later on-and for
what subjects were they registered?
Mr. GRoss: I was just asking you ...
Mr. RAUTENBACHB :ecause that is misleading, Mr. President. If these
were the very first Bantu students wanting to take, for instance, a Bache
lor of Music degree, and I remember now that in the list I saw there was
an applicant for music on the university level, it is misleading to say that
these were the first ever allowed as if the others had not been allowed.
Mr. GRoss: Sir, because perhaps of the form of my question, you do
injustice to this scholarlyand careful work.
The PRESIDENT:That is your description of it, Mr. Gross, it is a docu
ment that is produced by somebody-it is not supported by giving it
descriptions. lt nùght be very scholarly, it might be very reliable and it
may not be very reliable.
Mr. GROSS:Sir, it has been attacked as a misleading statement and I
will withdraw the characterization of this book, of course, Mr. President,
but the point to which I should like to draw your attention is that the
statement is-"in 1961, only three Africans were permitted to enrol for
a first time at an open university, two in Natal and one at Witwaters
rand"-! asked you, Sir, whether you had any information on the basis
of which you could confirm or dispute these figures?
Mr. RAUTENBAcu:Mr. President, if that is taken literally, it is entirely
incorrect.
Mr. GROSS:How many Africans were permitted to enrol for a first
time at an open university in r96r?
Mr. RAuTENBACH:I do not know. Before r96r, there were 300 and at
present, there are 181 and they could not be there-because otherwise
the criminal procedure would have caught up with them by now, which
was mentioned this morning-they could not be there unless they were
allowed to enter by t~e Minister. Now Sir, subtracting the number from
Natal, we have more or less agreed that there are 100. Now it is marvel
lous,if only three were enrolled in one year and that was a general trend,
that there still could be roo--there is a conflict somewhere between these
figures.
Mr. GROSS:I am not vouching for these figures. I have no personal
knowledge of them and I will not characterize the authenticity of the
work but I take it that the answer to my question whether you know how
many Africans were enrolled for the first time in 1961, is that you do not
know. Is that correct Sir?
Mr. RAUTENBACHI: do know that there were not more than 24.
Mr. GROSS: \Vell, there were not more than 150,000 for that WITNESSES AND EXPERTS
matter Sir, but the question is, how many were there? Do you know?
Mr. RAUTENBACH: \Vell, I think it pretty scholarly to say in this case
not more than 24 beca.use 24 were allowed since 1960 and I do not think
all were allowed in one year.
Mr. GRoss: WeH, let me ask you with respect to 1962-maybe there
is somcthing about 1961 that is putting us in an unnecessary atmosphere
of dispute. In 1962, according to this same work, only two new African
students were admitted, both to the University of Cape Town, to take
diploma courses in nursing and music respectively-the citation for that,
Sir, is the Minister of Bantu Education, Assembly, 2 March 1962,
Hansard VI, Column 1869. Now Sir, do you know whether or not it is
correct that only two new African students were admitted in 1962 under
this procedure?
Mr. RAUTENBACH: That is not the correct way of saying it, Mr. Presi
dent, "only two new African students" wanting permission to enter the
course for sister tutors were admitted and they were the only two ap
plicants and as far as I know they were the first applicants in South
Africa. As a result of their coming forward eight Bantu women were
trained and rccently received their diplomas for the same course through
the University College of the North. But it is misleading, in any case it
is not the full story, to say "only two were admitted" because therein
liesthe suggestion that so many were refused or so many had not been
admitted before.
Mr. GROSS: Perhaps the use of the word "only" justifies your comment
but that is not my word but the book's.
Mr. RAUTENBACH: The scholarlv book?
Mr. GROSS: Uncharacterized. Now in r962, Sir, do you know how many
new African students were admitted to White universities?
Mr. RAUTENBACH: Now I know by and large in the live years, 24 were
admitted but there are 181 and there is a list available hereifI could get
hold of that I could mention every figure.
The PRESIDENT: It would save us a great deal of time if you could.
Mr. RAUTENBACH: I would be pleased to doit, Mr. President.
Mr. GRoss: Now Sir, with respect to the breakdown of the enrolment
of Africans at universities in varions years. at page 140 of this work,
which I have cited, and the footnote gives the source of the figures, the
enrolment of Africans at universities in varions years starting at 1954
went as followsat Cape Town: 1954-26; 1957-29;1959-39; 1961~r8;
is this correct according to your information?
Mr. RAUTENBACH: Yes, it is correct but ...
Mr. GRoss: Do you question these figures or do you wish to explain
them?
Mr. RAUTENBACH: These figures have to be explained. I take it that
the majority of those mentioned under 1961 were those who, under the
Act, couic! complete their training. They were not newcomers but they
had been in those universities in 1959 and you cannot get a degree in
South Africa unless you have done at least more than half of your work
in the same university and under the Act, thcse people were allowed to
carry on, so that amongst those 18, some are carry-overs from previous
years.
Mr. GROSS: Thank you for the explanation. In other words, this is an
enrolment figure, as set forth here, regardless of the origin or time of the
original enrolment. You are quite right, Sir, thcre. N'owwith regard to SOUTHWESTAFRICA
\Vitwatersrand on a table similarly across the line,1954, the enrolment
of Africans in Witwatersrand University was 72; 1957-59; 1959-74;
1961-38. Would you explain to the Court, Sir, whcthcr or not the 38
figure for1961 would, if you know, include persons who had received
exceptions?
Mr. RAUTENBACHY : es, I remember from that list I saw, there were
persons who had reccivcd exceptions.
Ilfr. GROSS:But you do not know, Sir, how many of that 38 would be
in that catcgory?
Mr. RAUTENBACHI: could bring it along. I am rather tired and my
memory does not fonction as well as usual and the result is that it is some
strain to bring forward the exact figures and ail these details but I am
prepared to accept those figures there, quite prepared.
Mr. GROSS:I think, Sir, that unless you wish to make any further com
ment on the question, I have no further questions with regard to the
exceptions. Would you like to add anything?
Mr. RAUTENBACHY : es, there is a very interesting point in the figures
you have mentioned and that is the figures which went down before 1959
and therc is an cxplanation for that too.
Mr. GROSS:\Vould you give that explanation?
l\fr. RAUTENBACH:The Ban tu students were encouraged, after the
establishment of the medical faculty at Natal, by the authorities of the
University of Witwatersrand, to go and study in Natal. I know that for
a fact becausc the Principal of that University was my next-door
neighbour and I know for a fact that he thought that the new policy
should be to encourage the Bantu students to go and make use of this
new faculty-that is the reason why they came down before 1959 and
then went up again.
Mr. GROSS:l had not meant to mislead you by reading these figures at
you but, the fact is that at Witwatersrand,as I read before, the figure in
1957 was 59 and in 1959 the number was 74.
Mr. RAUTENBACHI: would like to give comment on that. In the course
of 1957 and 1958, and that is where the students corne into the picture,
and that is why l used the word "agitation" this morning, week by week
meetings were held and the clarion call went out that now is the time to
enrol at the Universityof \Vitwatersrand because under this ncw legisla
tion you won't be able to-once you are in you can complete your course.
That is one of the reasons, if you look at all of them with the exception of
Natal, there was a tcndency towards a steep rise i1959 and my following
comment will be-as was expected that after 1959, these numbers would
go down and the rcsult would be that we had this increase in numbers as
from 1962 onwards at the Bantu colleges, going beyond what we had
before, so that by1965 there were 1,107at the colleges and at the univer
sities, whereas in1959 there had been about 660, almost doubling the
numbers-that is somewhat more of the picturc.
Mr. GRoss: The rush, if l may call it that, Sir, to enrol in 1957 and
1958, indicated a desire, a strong desire perhaps, on the part of these
persons to achieve that education at those institutions?
Mr. RAUTENBACHT :hat must have been one motivation at least.
l\fr. GRoss: Do you regard that, Sir, as unworthy in any respect?
Mr. RAUTENBACHN : o, it is a very worthy aspiration.
Mr. GRoss: In other words, the rush, if I may again call it that to
enrol, was undoubtedly to be explained, was it not, Sir, by the fact that WITNESSES AND EXPERTS
if the legislation were passed there would be criminal penalties if they
applied to enrol and were permitted to?
Mr. RAUTENBACH: I do not think any one of them knew about future
possible criminal penalties. I did not know aboutit either this morning.
Mr. GRoss: I would like to refer to one particular conclusion reached
in the report The Open Universities in South Ajrica because, by coïnci
dence or otherwise, it expresses a judgment concerning the matter to
which you testified and uses the same phrase you used. I refer to page 7
of The Open Universities in South Africa and I read the following:
"The open universities would also deny the validity of any argu
ment for compulsory university apartheid which is based upon the
adage that 'he who pays the piper calls the tune'. No government
would be justified in using its control over the national purse as a
lever for such a purpose. All sections of the population contribute to
the national incarne and also to university endowments."
Istop there I take it, from your previous testirnony, that you do, on
the other hand, believe that "he who pays the piper calls the tune". Is
that correct, Sir? Did you testify to that?
Mr. RAUTE~BACH: In a certain context, yes, but notas one universal,
unqualified truth.
Mr. GROSS: Now, Sir, in the context and sense in which you intended
your testimony to be taken by the Court, or otherwise, would you now
express your agreement or disagreement with the conclusion I have read
from the report? Do you wish me to read it sentence by sentence, Sir?
Mr. RAUTE~BACH: Yes, please.
Mr. GROSS : The first sentence is:
"The open universities would also deny the validity of any argu
ment for compulsory university apartheid which is based upon the
adage 'he who pays the piper calls the tune'."
Pausing there, Sir, do you agrec or disagree with the validity of the argu
ment that "he who pays the piper caHs the tune"?
Mr. RAUTENBACH: I disagree with the tenor of the argument.
Mr. GROSS: Now, Sir, would you explain to the Court the basis of your
disagreement?
Mr. RAUTENBACH: Yes, and I will take this very country in which we
are at the present time-the Netherlands-as an example. In the
Netherlands here there are three Imperial or State universities (Rijks
Universiteiten-literally Imperia! University or State University). The
legislation pertaining to these universities actually prescribes the date on
which universities should open, prescribes the general tendency of courses
to be given, and here we have a case, within a certain context, of "he
who pays the piper calls the tune". The same holds for the State univer
sities ofthe United States of America.
Mr. GROSS: Now we are speaking, are we not, Sir, about the argument
of the piper's tune-argument, if I may call it that-in respect of the
enforced introduction into the open universities of the system of apart
heid? This is what we are talking about, is it not, Sir?
Mr. RAUTENBACH: Yes, but it also has a wider context because, in
relation to the White universities-the so-called open universities-there
are certain matters prescribed by law by the Government as to the
minimum period of attendance for a certain degree, etc. In that respect, SOUTHWESTAFRICA
the State contributing towards universities has a certain sayon behalf of
society at large and on behalf of the taxpayer. The autonomy of the
university and the freedom of the university has never been absolute. It
is a relative concept.
Mr. GRoss: Sir, in elaboration of that, I would call to your attention
the explanatory considerations in this same report, with which you arc
familiar, at page 32, in which this joint conference concluded on this
point as follows, and I will ask whether you agree or disagree, Sir:
"It might be argued by some theorists that the Government's
claim to interfere in academic matters can be be based upon the
large sums of money which it pays to universities in grants and loans
and that he who pays the piper has the right to call the tune."
Now, with that introductory comment they go on to say:
"Happily, no South African Government has by its conduct
hitherto given countenance to this proposition."
Do you accept that as a correct statement of fact? This was in 1957, Sir.
Mr. RAuTENBACHY : es. I have no reason at this moment to doubt the
correctness of that statement.
Mr. GRoss: Now, they go on to say, Sir, or to argue, if you wish to
callit that:
''If the time were to corne when the piper theme had to be taken
seriously we might perhaps ask who really docs pay the piper. Is it
the Govemment or the taxpayer? And are all the taxes paid by
Whites?"
I will pause there, Sir, and ask you, if you wil1comment, is it true that
ail taxpayers are White, or not?
Mr. RAUTENBACHI:t is evidently true that all taxpayers are not
White.
Mr. GRoss: Now, Sir, with respect to those taxpayers who pay the
piper, what role, if any, do they have in the selection of the Government
which decrees their university apartheid system?
Mr. RAUTENBACHN : o, they have no say. The Black people have no
votes for the members of Parliament. I think that is well known.
Mr. GRoss: Now, Sir, the dedsion as to whether or not the university
system should be placed in the apartheid framework was based, was it
not, Sir, on Govemment policy without referendum?
Mr. RAuTENBACH:Yes, it was based on Govcrnment policy without
specifi.creferendum, without submitting it to the electorate at that mo
ment. lt is also based on custom which was much older than that Govem
ment.
Mr. GRoss: What is the custom, Sir?
Mr. RAuTENBACHT : he custom is to live separately.
Mr. GROSS:In connection with the custom which you have described,
the university study which I have in my hand, and I refer to page 6, says
as follows with regard to custom:
"The open universities deny the validity of the argument that
they should close thcir doors to non-White students on the ground
that in being open they are ignoring an established South African
tradition. Apartheid is notthe only relevant established tradition in
South Africa. The tradition followed by the open universities has WITNESSES AND EXPERT!,
deep roots in the history of the Cape Colony and is no less South
Afric~n for the fact that it accords with the universality of Christen
dom.
Now, if I may go back over that, as you wish me to, sentence by sen
tence. The statement, which is a connected thought, I believe, opens
with the sentence that "the open universities deny the validity of the
argument that they should close their doors to non-White students on
the ground that in being open they are ignoring an established South
African tradition". In the context of your reference to the "custom",
would you also substitute the word "tradition", Sir? You take those as
synonymous, do you, Sir?
Mr. RAUTENBACH: Yes.
Mr. GROSS: With respect to your comment with regard to the estab
Iishedcustom or tradition, I take it you disagree with this statement
then?
Mr. RAVTENBACH: I disagree with that and I will give my reason for
that.
Mr. GRoss: Yes, I was going to suggest that you do soif you wish to.
Mr. RAUTENBACH: Well, the Native College of Fort Rare, which be
came the :Santu College, was established in that very Province, Cape
Province, and was established-opened its doors-in r9r6. So that in
that Province, to which these gentlemen refer, where the old Cape liberal
tradition held sway, the first university institution closing its doors to
Whites-the Native College of Fort Rare-was established. So that
seems to conflict with the historical reality.
Mr. GROSS: Sir, were not the open universities also located in the area
you are referring to?
Mr. RAUTENBACH: No, only one of them: Cape Town. The Witwaters
rand University is up north, close to my University. We are 40 miles
from each other.
Mr. GROSS: Could you indicate to the Court if you know the compar
ative enrolment figures for Fort Rare versus Cape Town University?
Mr. RAUTENBACH: Yes. Fort Rare's enrolment in 1959 was 481, some
thing like that, and Cape Town in 1959 must have had about 5,000--
4,500.
Mr. GROSS: With respect to the question of the tradition or custom to
which you and the universities, through the medium of this report, have
referred:
"The tradition followed by the open universities has deep roots in
the history of the Cape Colony and is no less South African for the
fact that it accords with the universality of Christendom."
Taking the first part of that sentence, if I may, Sir, "the tradition
followed by the open universities has deep roots in the history of the
Cape Colony". Would you agree or disagree with that as a factually
correct historiestatement?
Mr. RAUTENBACtt: I disagree with that. It is history as written by
these gentlemen. There is a theory in South Africa of the old Cape liberal
standpoint. Now there is some substance in that, but the substance does
not lie where these university people think it lies but in the relation to the
Coloured people. You see, we distinguish between the Cape Coloured
people and the Bantu. There is a distinction and the old Cape liberal
tradition was chiefly as regards the Coloured people and there was a420 SOUTH WEST AFRICA
tradition of that kind, but not widely held outside Cape Town itself.
Mr. GROSS:Sir, à propo sf that point of the Coloured as distinguished
from other members of the population, according to the book by Horrell,
cited previously ...
Mr. RAUTENBACHT :hat is the scholarly one?
Mr. GRoss: A Decade of Bantu Education it is called. It states at
page 132, that "of the 489 students"-this is 1959-"of the 489 students
only 38 percent. were of Khosa or Fingo origin".
Mr. RAUTENBACHK : hosa, yes.
Mr. GROSS:Is that the Ianguage which is accompanied by the click,
Sir?
Mr. RAUTENBACHA : number of clicks. The Bushman language consists
of clicks entirely.
Mr. GRoss: "Thirty-eight per cent. wcre of Khosa, or Fingo, origin,
34 per cent. came from other African groups, 14 per cent. were Coloured
and 14 percent. were lndian." Now, Sir, with respect to that distribution
of ethnie groups at that College at that time, would you regard this as an
advantage or a disadvantage from the point of view of the educational
system?
Mr. RAUTENBACHI: would not consider this in the best interests of
the groups and it was not unknown that Fort Hare had had various con
flicts onits campus from time to time, prior to 1959.
Mr. GROSS:And yet, Sir, it îs true, is it not, that it was precisely this
distribution of ethnie groups, if I may call them that, that joined in a
resolution of October 1959, to which I have rcferrcd and rcad into the
record?
Mr. RAuTENBACHI : beg your pardon?
Mr. GROSS:I say, Sir, is it not a fact that it is precisely this group of
students, distributed as they wcre, who joined together in the adoption
of the resolution of October 1959, from which I have previously quoted?
i\fr. RAUTENBACHY : es. One can very well unclerstand that.
Mr. GRoss: Would you please elaborate your opinion concerning the
reason for their having crossed ethnie lines, if one may put it that way,
in the resolution?
Mr. RAUTENBACHW : eil, knowing students as I do and student nature
as I do, after ail these years of association with them, I would, in the
first place, associate their activitics with their propensity towards holding
meetings and so on and passing resolutions. And this was a delicate stage
in the whole matter. This was a delicate stage. I would have been dis
appointed, to tell you the truth, if they had not done so. There was also
the loyalty to their colleagues at Fort Hare. Now, over against that, there
are over 1,000 Indian students in the new Indian College at Durban,
which is something very different from the slight 14 percent. there and
the small number in the open universities. One thousand-that is where
the proof of the pudding lies.
l\Ir. GRoss: Sir, do you have any basis for the factual nature or any
other kind on the basis of which you could testify that the students who
adopted this resolution in 1959 didnot mean exactly what they said?
Mr. RAUTENBACHN : o, I cannot. I can just say that in the further
course of events so many Indian and Coloured people and Bantu came
forward to enlist astudents of the other colleges that this seems to have
had no effect on the growth of university education for these various
groups. WITNESSES A::-lDXPERTS 421
l\fr. GROSS:But they were prohibited by law from doing otherwise,
were they not?
Mr. RAUTENBACHT :hey were prohibited by law, but the fact that the
increase is 100 per cent. over five years whereas previous to 1959it had
only been 60 per cent.~that shows greater popularity of these colleges
than any other institutions I have been to.
[Public hearing 0/ 7 OctoberI965]
Mr. GROSS:Dr. Rautenbach, at the proceedings yesterday, 6 October,
in the verbatim record at pages 405-406, supra, in response to a certain
question addressed by me to you, Sir, on page 405, you responded as
follows, among other things.In the first paragraph you said:
"The reason why I think there should be enforced segregation at
this stage is to prcvent that and not only for the sake of law and
order, but it is an attack, it is offence to the dignity of a man who
has been invited toa dance ... "
Now, that referred to the incident which you had described previously.
Then, later,toward the middle of the page, again referring to the subject
of inter-racial harmony and understanding in terms of whether or not
there is segregation of universities, you said, again among other things
(toward the middle of p. 406):
"I hope ... we will become more mature and overcome that, but
bringing people together from varions backgrounds may lead to
conflict, and particularly as soon as the numbers become more or
less equal. [And you continued] When there is a small minority on
one side theytend to withdraw, but when the numbers become larger
the possibility of conflict becomes very great if you have more or less
two equal groups, or if the situation a1ises where a group begins to
think it is not getting its full share and, in the case of people who are
of various colours, of various ethnie relationships, on the same
campus at the present time there is such strong sense of the rights
of groups that I really do think it would not be very advisable, by
law or by custom, to re-introduce so-called open university systems,
particularly in these two universities which I have mentioned where
there is integration inthe classrooms, but outside of that segrega
tion."
Is that, Sir, your testimony as reflected in the verbatim and do you
accept it as correctly stated there?
Mr. RAUTENBACHT :hat is correct, Mr. President.
Mr. GROSS:Now, Sir, may I ask you if you would be good enough to
tell the Court what, if any, practical persona! experience you yourself
have had in the administration of an open university?
Mr. RAUTEl>.BACH I:have had no experience, Mr. President, in the
administration of an open university where there were people of more
than one colour. May I explain that prior to the Act of 1959 all universi
ties wereopen universities,my university was an open university too, but
the University Council decided who could or should not enter and that
is why I have experience of the administration of an open university, but
not of an open university where people of more than one colour are on
the campus.
Mr. GROSS: The fact is then, Sir, that your own experience in the422 SOUTHWESTAFRICA
education field, that is, from the practical point of view of your own
participation in the administration or teaching ina university, has been
confined, has it not, to the University of Pretoria which has been all
White and the University College of the North which has been all non
White? Is that correct, Sir?
Mr. RAUTENBACHY : es. My closest and most direct contact has been
of such a nature as describcd by Mr. Gross.
Mr. GROSS:Now, Sir, upon what would your opinion as, for example,
reflected in the testimony which I have just read be based? What ex
perience would your judgment be based upon?
Mr. RAuTENBACH:My judgment is based upon the experience which
was shared by the university principals who were in charge of open
universities where people of more than one colour were present on the
campus. I was in contact, from time to time, in the usual course of events
twice per year, with Dr. E. G. Malherbe, the Principal and Vice-Chancel
lor of the University of Natal because the Committee of Principals has
a meeting twice per annum. Outside of our ordinary meetings and agenda
we mingle socially and discuss matters and the one man complains about
his problems, and so on. Also a great friend of mine was the late Dr.
Raikes who was, for more than 20 years, Principal and Vice-Chancellor
of the University of Witwatersrand. Our Universities are 40 miles apart
which, in South Africa, is considered a very short distance and we were
in contact with each other at a monthly meeting of certain bodies to
which we belonged and often compared notes; he often discussed these
matters with me. Dr. Raikcs was an Oxford man-a don-who had corne
to South Africa in 1928 and was Principal of the University of Wit
watersrand for 20 years.
Thirdly, my youngest son was a student at the University of Wit
watersrand, an open university. He was a student of engineering and, as
happens in families, the experiences of the week and other things are
brought forward. Then I read whatever I could Jay my hands upon, if I
could find the time, in connection with this whole matter. I have had a
long interest inthis matter because the University of which I am Princi
pal, as long ago as 1934 approached the Government by petition to
provide more adequate facilities and more facilities for the training of
Bantu students. That was as long ago as 1934. I knew about that and I
was interested in a step forward, or a leap forward, which would prove
satisfactory.
Furthermore, as member of the Council of the University of South
Africa, that University had been approached by a new institution which
was in the course of being established in Basutoland and Basutoland was
one of the Protectorates under the British Crown. This was the Pope
Pius College. I was a member of the Executive Committee of the Univer
sity of South Africa and a member of a sub-committee dealing with this
whole matter of establishing a special relation between this contemplated
Bantu college and the University itself. I met together with the Principal
of the University of South Africa and other people; I met the delegates
with them and, as I say, I had this interest in my neighbours, since I was
born in close proximity to what was then known as a Native Reserve and
my people had been dealing with the Bantu for over roo years up
North, I was always interested in the development of the Bantu.
Mr. GROSS:Thank you, -Sir. Incidentally, with respect to your refer
ence-is it called the University of Basutoland? WITNESSES ANDEXPERTS 423
Mr. RAUTENBACH t has now become the University of Basutoland,
taken over by the Government of Basutoland, but it was established as
the Pope Pius College by Catholic Fathers coming from Canada.
Mr. GRoss: Itis true, is it not, Sir, that the University of Basuto
land ...
Mr. RAUTENBACHI: am sorry. It has now become the University of
Basutoland, Swaziland and Bechuanaland.
Mr. GROSS:Thank you. Is it true that the University of Basutoland,
etc.,has been and is _nowan open university and that Whites and non
Whites are in regular attendance there?
Mr. RAUTENBACHY : es. I am under the impression that it is now an
open university.
Mr. GRoss: Thank you. Sir. Now, if I may revert to the question of
the basis of your experience, you have testified and made clear your
interest in this subject. With respect to your experience, would there be
any other experience in addition to what you have mentioned in terms
of your discussions with gentlemen of the sort to whom you have referred
and family discussions? Is there any other expcrience upon which your
judgments or opinions are based in this matter of segregation of university
educa tian?
Mr. RAUTENBACHN : o. Outside of that experience which I mentioned
yesterday, that is of the two language groups of the \Vhites, we were
faced with this problem ... Must I continue, Mr. President? We were
faced with this problem for a long time: whether to have separate schools
for English-speaking pupils and Afrikaans-speaking pupils or parallel
classes on the same campus, or the dual medium. I was a member of a
school board, and a school board deals with primary schools and to some
extent with secondary schools. I was a member of the Pretoria City
School Board from 1937 to round about 1950 and we often had to deal
with this. \Ve would establish a new school, whether it would be a school
where teaching takes place in·the mother tangue, a separate school for
English-speaking boys and girls, separate school for Afrikaans-speaking
boys and girls, or a school with parallel classes, because by then the idea
of the dual medium, which means some of them have subjects taken
through one language, some taken through the other, had been dropped
in the Transvaal. There I had this experience of often hearing com
plaints, as amember of a school board, coming from the principal of a
school that unpleasantness had taken place on this or that day and
parents had been complaining that they were not getting theirproper and
due share of matters, and that is then the experience of having language
groups of the same closely related race on the same campus. At that stage
it often led to conflict and the word I used advisedly yesterday was I
hoped my people would become more mature, they have become more
mature and then that would be lcft.
Mr. GRoss: Thank you, Sir. Now, were you a member of the School
Board of Pretoria City from 1937 to 1950?
Mr. RAUTENBACHY : es.
Mr. GRoss: How large a group is that School Board?
1\Ir.RAUTENBACHT :hat School Board consisted of nine members.
Mr. GRoss: Sir, how many were non-White, if any?
Mr. RAUTENBACHN : one of these were non-White. We did not deal
with the Bantu, we only dealt with the Coloured schools at that time.
Mr. GROSS:How many Coloured members were there, if any, Sir? SOUTHWESTAFRICA
Mr. RAUTENBACHT :here were no Coloured members on the School
Board.
Mr. GRoss: Was that a matter of policy, Sir?
Mr. RAUTENBACHY : es, I think it was a matter of policy. I was under
that impression.
Mr. GROSS:With regard to the question of the attitude of the two
officialshat you have mentioned, do you recall, Sir, whether or not in
your discussions with them they indicated a point of view with respect to
enforced segregation?
Mr. RAuTENBACHY : es.
Mr. GRoss: What was their opinion, Sir?
Mr. RAUTENBACH1: have already quoted Dr. E. G. Malherbe, and his
most recent publication on this subject was round about October r964
in one of the magazines devoted to the study of race relations. And he
wrote that he is in favour of an open university subject to certain limita
tions and in this· case the limitation is that there should be separate
classes within the precincts of that university for the various groups for
reasons which he has given and gave-! am not going to mention them
now. The late Dr. Raikes and I visited Natal University on the occasion
of its proclaimed date for becoming a separate full-fledged university and
that was in the South African autumn of 1948.
Mr. GRoss: Would it be accurate to say, Sir, that Dr. Malherbe is
opposed-has cxpressed his opposition-ta enforced segregation of
universities?
Mr. RAUTENBACHY : es, he has continually opposed that, but that is
only half the story .
.l\frGRoss; Well, Sir, you mean that he is only half opposed toit? I
am not sure I understand your qualification.
Mr. RAUTENBACHH : e is opposed to compulsory segregation but, in
his latcst article hcid "I can find no objection in principle against the
establishment of ethnie colleges".
Mr. GROSS:I see, Sir. In addition to the open or mixed colleges?
Mr. RAUTENBACHH : e is a qualified opponent.
Mr. GRoss: Yes, Sir, Now with respect to the other gentleman you
mentioned, the other official ...
Mr. RAUTENBACH D:r. Raikes.
Mr. GRoss: Sir, on the basis of your discussions with him, would you
express to the Court, to the best of your recollcction, his views on the
subject of open versits closed universities?
Mr. RAUTENBACH W: eil, I was telling about this visit we paid to Natal
and he invited me to return with him by motorcar-it is a distance of
about 350 miles. He was discussing various matters.
On the occasion of these celebrations in Natal the then Minister of
Education, Arts and Science, the late Dr. Stals, announced that the
Government had decided to establish a separate medical faculty in the
University of Natal for the training of medics, non-White medics. He
had announccd that, and, as a result of that, it was a subject of dis
cussion on the part of Dr. Raikes because his university had been training
Bantu and Indian and Coloured students. In the course of this discussion
be said: \Vell, I am keen now to advise ail newcomers to my university
to go to Natal because I think it is a right thing that has been done.
He also told me this, which I found rather interesting. There are
certain subjects in which Bantu students do exceptionally well and WITNESSES AND EXPERTS 425
there are also certain subjects in which they do not do so well; they have
difficulty.He mentioned one subject and please do not ask me why it
should be so-it is just what he said-and that is the subject in the third
year of medical study, pathology; it is also called morbid anatomy. He
said that the experience at the University of Witwatersrand had been
that this was a very difficult subject for Bantu students, whereas the
anatomy, as such, was a subject in which they did very well.
Mr. GROSS: Sir, I would like to be as brief as possible both in my
question and in your response, ifyou wiH, Sir, consistent with your full
explanations. Did Dr. Raikes express an opinion with regard to the en
forced segregation or did he not, Sir?
Mr. RAvTENBACHN : o, on that day he did not express an opinion.
Mr. GROSS: So you do not know what his views were?
.Mr.RAUTENBACHN : o, Sir.
Mr. GROSS:Now, I should like to turn to the statement issued by the
Executive of Convocation of the University of Witwatersrand in 1955 ...
Now, Sir, are you familiar with the fact (or is it a fact of which you
are aware, Sir) that the Executive of Convocation of the University of
Witwatersrand gave testimony to the Holloway Commission?
Mr. RAUTENBACH:Yes, to the Holloway Commission and to the
Government Commission appointed in August 1957.
Mr. GROSS: Now, Sir, with respect to the evidence before the Holloway
Commission. The following statement is derived from the memorandum
of evidence of the Convocation at page 2. I should like to read it and
ask a few questions of you with regard toit. Itis two sentences:
"It is our firrn belief that segregation in the universities is most
undesirable for many reasons ... The fact that the juxtaposition of
European and non.European studcnts has,occurred in our university
without friction and without the disturbance of racial peace has
provided a most valuable example of inter-racial co-operation under
the most favourable conditions.''
Now, Sir, with respect to that evidcnce, would you have any know
ledge, on the basis of your experience, on the basis of which you would
agrec or disagree with the accuracy of that evidence?
Mr. RAUTENBACH :have not the knowledge either to agree or disagree
in this particular instance, that is first-rate knowledge from persona!
experience in this particular case.
i\lr. GROSS:\Vith respect to the history of the racial relationships
which the Convocation statement sets forth at the University of Wit
watersrand, have you in any discussions with other officiais of the
university been advised of a different point of view with respect to this
evidence?
l\Ir. RAUTENBACHN : o.I only heard students discussing this and not
discussing this with me, but discussing it amongst themselves-students
of the University of Witwatersrand. That is Madam Rumour, the lying
jade.
Mr. GROSS: Now, Sir, the Holloway Commission, was I think entitled:
The Holloway Commission on University Apartheid. Was that the title?
Mr. RAUTE:>l"BACY He:s, Sir, there were two Holloway Commissions.
This was the Commission round about 1954, consisting of Dr. Holloway,
Dr. Wilcox, and a third member.
Mr. GROSS: Yes, Sir, unless you wish to put his name in the record it is
not necessary for my question, Sir. SOUTH WEST AFRICA
Mr. RAUTENBACH: Yes, we just want to be ad idem on which Com
mission. There was also another Holloway Commission.
Mr. GRoss: This is the one, Sir, 1954-1955. Now, in 1954 the Senate
of the University of Cape Town in its ev1dence to the Holloway Com
mission was quoted in the newspaper Cape Argus of 23 November 1954
as stating as foliows:
"In a country with racial problems it is obvious that the more the
groups know of and understand each other the better chance is there
of amicable settlement of differences and of co-operation and trust."
Pausing there, I take it you would agree with that statement as amatter
of principle, would you not, Sir?
Mr. RAUTENBACH: Yes, one has to gct understanding.
Mr. GRoss: That is right, Sir. The evidence goes on as follows:
"Such know]edge and understandfog undoubted]y accrue from
the daily academic contacts in open universities such as Witwaters
rand or Cape Town."
Pausing there, Sir, on the basis of your own experience, would you have
a reason to disagree with that conclusion?
Mr. RAUTENBACH: Yes, I have a sound reason to disagree with that
conclusion.
l\lrGROSS: That you do not believe, Sir, do not agree, that "such
knowledge and understanding accrue from daily academic contacts";
you disagree with that, Sir?
Mr. RAUTENBACH: No, I think it has been over-estimated-the signifi
cance of contact on a university campus. There is something artificial
even about that and that is somewhat removed from everyday life. I
think it has been over-emphasized that that form of contact is the ideal
form of contact. There are other forms of contact which are much more
valuable. I would, then, say I would accept that with qualifications. I
disagree with it as an absolute truth.
Mr. GROSS: The evidence goes on as follows-this time it is only one
sentence, although a lengthy one:
"Experience in other parts of the world, as also the present
attitude of the non-European students at Fort Hare, have shown
that to separate young human beings into two camps, in which one
group believes it is being discriminated against,asagainst the other,
isto foster discord and to breed suspicion and hatred to such an
extent as to invalidate any daim to a satisfactory state of practi
cability."
Specifically with reference to the evidence I have just quoted concerning
the present attitude of the non-European students at Fort Rare (this of
course in November 1954, you will understand, Sir), did you have any
experience on the basis of which you can express agreement or dis
with that conclusion?
agreement
Mr. RAUTEN'BACH: Yes, Sir, I have some experience on the basis of
which I can entirely disagree with that conclusion, very recent and very
apposite, and that is the approach which was initiated by the Students'
Representative Council of the Bantu College of the North to establish
contact with the students of so-called White universities, and with the
students of my own university. The Students' Representative Council of
my university decided to meet them on an ad hoc basis, face to face. The
A.S.B. (these words standing for Afrikaanse Studente Bond, meaning WITNESSES AND EXPERTS 427
Afrikaans Students Association) published a declaration of policy about
two years ago expressing the wish to have contact as between the
Representative Council and Council and not contact, as they said at that
time, where one man sits in one room and uses a telephone and the other
in the other room replies, but where they sit together around the same
table dealing with the same subjects.
Now, I think that proves that, under this new system, or new organiza
tion, which has eventuated spontaneously on both sides, instead of
hatred arising there is a yearning or a desire to meet and to discuss.
Mr. GRoss: Thank you, Sir. Now, with respect to the evidence to which
I have referred,that is to say relating to the experience at Fort Rare-the
attitude of the non-European students at Fort Rare to which this evi
dence of the University Senate referred-would you, Sir, on the basis of
your own expert opinion, explain whether or not you consider that this
analysis of the attitude of the non-European students at Fort Rare is or
is not confirmed by the resolution adopted in r959 by the students at
Fort Hare to which we referred yesterday, Sir?
Mr. RAUTENBACHI:f I understand you correctly-1 am not sure if I
do follow your question-! think the events subsequent to that declara
tion which I have just mentioned tend to do the very opposite and that
is to confirm it was a case of mistaken diagnosis.
l\fr. GROSS:This resolution, Sir, in 1959, you will recall (I will be very
brief about this, just to refresh your recollection, Sir), was a resolution
adopted by the students at Fort Rare strongly condemning and express
ing opposition to the segregation or apartheid system. That is the resolu
tion to which I am referring. My question was, on the basis of your own
understanding and appreciation of this subject, whether you regard that
resolution as confirming or otherwise the analysis presented to the
Holloway Commission in 1954.
Mr. RAUTENBACHN : o, these are in line with each other.
Mr. GRoss: Yes. Now, Sir ...
Mr. RAUTENBACHB : ut reality is another question, you see. "Con-
firming" means two things in this case.
Mr. GRoss: Yes, Sir, but they are in line with each other.
Mr. RAUTENBACHT :hey are in line with each other.
Mr. GRoss: Yes, Sir. Now then, in 1954, at the time these studies were
under way, Dr. T.D. Davie, who was then Principal of the University of
Cape Town-1 presume you knew him, Sir... ·
Mr. RAUTENBACHW : e were very good friends.
Mr. GROSS: He, in an address on I May 1954, which is set forth in a
publication entitled The Idea of a University, stated as follows:
"In the open universities, the great majority, though by no means
all, ofhe non-European students become keen on co-operation with
the Europeans for the general good of both races. The tendency in
the segregated (non-European) institutions towards "anti-White"
and other subversive activities and organizations is real and be
coming steadily more obvious."
Now, since those are two fairly long sentences, may I break it down
and read the first sentence:
"In the open universities, the great majority, though by no means
all, ofhe non-European students become keen on co-operation with
the Europeans for the general good of both races." SOUTHWESTAFRICA
On the basis of your experience, Sir, would you express agreement or
disagreement with that conclusion?
Mr. RAUTENBACHI:doubt that conclusion. I doubt it even on the very
words used, because I do not know whether he took a poli or an opinion
poll on this matter: it is his opinion over and against mine. He was an
honest man, there is no dishonesty about him, I knew him very well, but
every man looks at the matter through, takes on the co1ourof, the glasses
he wears.
Mr. GROSS:Yes, Sir. Now, I should like to turn, if I may, to just one
more expression of view, this time on the part of students. I refer to a
very brief excerpt from a resolution adopted by the Students' Represen
tative Council of the University of Cape Town, of 23 February 1953, and
this is one sentence which reads as follows:
"As a highly successful experiment in race relations, academic
non-segregation has stood the test of years and has led to nothing
but a better racial understanding, tolerance and harmony."
Now, Sir, again I should like to ask you, on the basis of your persona!
experience, would you express agreement or disagreement with this
excerpt from the resolution of the Students' Representative Council of
the University of Cape Town?
Mr. RAUTENBACHI:f I knew what is meant by "personal experi
ence" ...
Mr. GROSS:Not necessarily "personal" if you wish-any experience,
Sir.
Mr. RAUTENBACHI;f by that is rneant what I saw with my own eyes,
then I must return to what I saw in Natal, the information which I got
of the University of Natal, that it had this trouble, which I mentioned
yesterday, at the dance, and the other trouble about the graduation
ceremony, the commencement exercises. And, of course, anybody who
reads literature and magazines from other countries knows what has been
happening in the United States of America, where people have been
coming together: it has often led to bloodshed. But that is their business
and I wish to rcfer to rny own country and my own experience then, in
this sense of hearing a man who has had a lot of experience, the head of
a university, in favour of the open university, and saying that there were
points of conflict, there were difficulties,re wcrc problems, and I doubt
whether the inte 9atcd university solves as many problems as it creates
in the long run, m South Africa as it is at the present time. As I say, I
do not wish to refer to other countries but the bringing together of people
isan experience, a common experience of our generation, and the bringmg
together of people, instead of waiting for better understanding, has led
to tension and conflict.
Mr. GROSS:So, Sir, on the basis of that analysis you do, I take it,
disagree with this resolution.
Mr. RAUTENBACHY : es, Sir-I question it.
l\Ir. GROSS:You do not question its existence, I take it, Sir? .
Mr. RAUTENBACHN : o, its existence on paper, no, but of course 1ts real
existence.
Mr. GRoss: Yes, Sir. Now, I would like to turn to your own testimony,
and I refer to that of 4 October, at page 340, supra. You testified, Sir,
according to page 340 of this verbatim record, in the form, inter alia, of
a quotation from A. M. Carr-Saunders. The quotation from which you WITNESSES ANDEXPERTS
read an excerpt appears on page 12 of what you describe. as a brochure
entitled StaffengA/rican Universities. 1t is in the transcript as "Starting"
-that is an error, is it not, Sir?
nir.R.A.UTENBACY H:s, it should be "Staffing".
Mr. GROSS:So that we are referring to the document StaffengA/rican
Universities by A. M. Carr-Saunders-that is the document to which
you referred. Now you quoted from page 12 of that document. Had you
read the rest of the document, Sir?
Mr. R..\UTE:-lBACH :es, at least a dozen times.
Mr. GROSS:\Vell, Sir, immediately following the passage from which
you quoted there is the following set forth on the same page:
"However, certain African countries which do not have institu
tions of higher education at ail, or which have such institutions but
not in all fields, or which have institutions which are limited in
certain fields, will have to continue sending their undergraduates
abroad for as long as necessary."
For the sake of completeness of your testimony on this point, would
you agree that this is relevantothe matter to which you drew the Court's
attention in what you quoted, Sir?
Mr. RAUTENBACHN : o, that is not relevant to what I quoted. What I
quoted was relevant to what I as a rule call the social service aspect of a
university, service of the community. That is relevant to communities
where there is no university, like South West Africa, for instance, the
mandated Territory.
l\Ir.ROSS:You would not agree then, Sir, that the reference in this
article to institutions which are limited in certain fields ...
Mr. RAUTENBACHT :here are two parties 'there. One is with no institu
tions and the other is where the institutions are limited in certain fields,
like the Bantu Colleges of the Republic, and in that scnse it is apposite.
Mr. GROSS:In that sense thcn, Sir, what I have read would be relevant
to what you have referred to?
Mr. RAUTENBACHI:t would be relevant, yes.
Mr. GROSS:Now, also on the same page, in connection with graduate
study. as distinguished from undergraduate study, which is the only
study you have referred to in what you have read to the Court, I read
the following two sentences, again on page 12 of the publication Staffeng
African Universities by A. 1i. Carr-Saunders. After the portion from
which you have read your excerpt he states as follows:
"It is quite otherwise in respect of gracluates study. Graduates
study overseas can be a most stimulating and memorable experience;
for a future university teacher it is of special value. For an African
this is markedly the case, because African universities are usually
isolated and a university teacher should know something of the
academic world outside the confines of the institution where he
graduated."
\Vould you want me to repeat this sentence by sentence, or do you get
the drift of it?
Mr. RAUTENBACHN : o, I could almost quote it myself.
Mr. GROSS:Now, Sir, that being the case, would you express your
agreement or disagreement with it?
l\Ir.RAUTENBACHI: am in agreement with this, that the academic
picture to which he refers, chieflyat the end, that it is to his advantage430 SOUTE{ WEST AFRIC,_\
to visit other universities, and that is whI,as Chairman of the Bantu
College of the North, was in complete agreement when Professor Kgnari,
to whom I have often referred, was invited to the United States, that he
should go. My opinion was asked and I thought it was a very good op
portunity for him to get experience, that kind of experience. But that
passage refers to two matters.
Mr. GRoss: Yes, Sir, but sticking to the one, if I may pursue that for a
moment or two, with respect to the considerations which you have just
mentioned, is it, if you are aware, the policy of the Government of the
Republic, either with respect to South West Africa or with respect to the
Republic itself, or both, to encourage or discourage travel abroad by non
White students as scholars for graduate studies?
Mr. RAuTENBACHW : here provision is made in South Africa, it appcars
to be that the Government does not encourage study abroad. But I have
corne up against cases where students were granted visas to study
abroad. In the course of my sojourn here I came across something pub
lished in one of the American papers, where a student had arrived in
America for advanced study in divinity, from South Africa, and he had
not fled South Africa, he had corne there in a fit and proper way as a man
studying divinity ought to do.
Mr. GRoss: Sir, I believed you testified that you were not personally
familiar with the, shall we cal! it, visa policy of the South African
Government with respect to this question. Therefore, have you, sincethe
previous testimony on that point, had occasion to look into that matter?
Mr. RAUTENBACH I:have reflected on that matter and I have corne to
the conclusion that there arc good grounds for saying that the same
policies are applied to White and non-White as regards visas.
l\fr. GRoss: The basis for your ...
Mr. RAUTENBACHB :y that I mean that I remember that there were
cases where visas were refused to \Vhite persons, and there were cases
where Bantu persons or Coloured persons received theseI remember that
of the men nominated by that one body on which I served, that is the
Advisory Body of the British Council, that visas had been granted to
some.
l\ir. GRoss: Now, Sir, with respect to this matter, do you know how
many applications, for example, during the past year, or five years if you
wish, were made by \\'hites for visas to study abroad as distinguished
from non-Whites applying for the same purpose?
Mr. RAUTENBACHN : o, Mr. President, it was outside my sphere of
interest.
· Mr. GRoss: Do you know, Sir, of your own knowledge, approximately
-perhaps I have asked this before, if so I will apologize to the Court
how many non-White students are outside South Africa without the per
mission of the South African Government?
Mr. RAUTENBACHN : o. I know there are students: one reads about
them, one hears about them, and some daim to be students, but I do
not know the precise number.
Mr. GRoss: And do you know, Sir, how many students are outside,
how many non-White students are pursuing studies outside of South
Africa with the permission of the South African Government?
l\Ir. R..i.uTENBACN:o, but I think there are a considerab!e number ...
l\fr. GRoss: Of non-Whites?
Mr. RAUTENBACH : ell, now that raises doubts in my mind, because WITNESSES AND EXPERTS 431
the other day you mentioned a brochure and I had an opportunity of
looking into that report. and where you told me, Mr. President, informed
me that there were so many Black post-graduate students of agriculture
in the United States. I have in the meantime looked at that brochure and
there is no proof whatsoever that these arc Black students. They are
called South African students and African students, and for ail I know
they may be White. and that is why, as l say, from the sources at my
disposai at the present moment I cannot reply to that question.
Mr. GROSS: The publication to which you refer is entitled A/rican
Students and Study Programmes in the United States?
M.r.RAUTENBACH: That is the one.
M.r. GRoss: Published by the House Foreign Affairs Committee. The
report ...
Mr. RAuTENBACH: I have seen that.
l\frGRoss: The report on African students and your study of this
document, which was made available to you, Sir, following the testimony
which was brought out, has left you in doubt as to whether the term
"African student" refers to Whites as well as non-Whites?
Mr. RAUTENBACH: It has left me in doubt as to the correctness of your
assertion that these do actually refer to Black students. In the record
somewhere Mr. Gross used the words twice about Black students and now
from that brochure I cannot make that inference. The possibility is that
they are White students. The Americans seem to call all people from
Africa, Africans, and I rather Jike that at times.
l\frGRoss: Perhaps did you, in studying the document, or perhaps
you did not have suffi.cient time to peruse it carefully, corne across, Sir,
the testimony of the Deputy Assistant Secretary of State, Arthur Hum
mell, Jr., with respect to this matter?
Mr. RAuTENBACH: Mr. President, no. I simply attended to what had
been stated and mcntioned here, just to checkup on that, because I was
rather disappointed at my own ignorance in not knowing that there were
four post-graduate Bantu students in the United States of America, when
I had rather pricled myself on knowing something of what was happening.
Mr. GRoss: Now, Sir, you referred to the graduate students in agricul
ture and those vou recalled were Iisted from South West Africa?
Mr. RAuTE~BACH: I was informed they were listed with South West
Africa.
Mr. GROSS: On the basis of your reading of this report, you are under
the impression that one or more of these South West African students
may be White?
Mr. RAUTENBACH: I am under thè impression that, on the basis of
dealing with that report, they are probably all White.
Mr. GROSS: The South West Africans?
Mr. RAUTENBACH: Yes.
Mr. GROSS: Then, Sir, could I call your attention to the testimony
which I have identified, which is at page 145 of the report. which refers
to the scholarship programme-this is paragraph 8-from Southern
Africa which includes, of course, South West and South Africa, and, in
addition, other countries:
"The special scholarship programme for students from Southern
Africa-this is surely, one of the most significant student program
mes being conducted by the Department [that rneans the Depart
ment of State). It involves mostly, but not exclusively, young432 SOUTH WEST AFRICA
African refugees who have been leaving the White ruled areas in
Southern Africa in increasing numbers in recent years. Several
reasons, including political oppression,nd denial of opportunity for
education motivate their travel. Many are students who are des
perately seeking education and training in preparation for respon
sible leadership positions when their countries achieve majority
rule."
This, incidentally, was clipped when the copy was given to counsel and
the clip was, if I may say so, Sir, deliberately left at that pJace. I was
hoping that your attention might be called toit. Would you say, on the
basis of your listening to this section, that the term "African" applies to
Whites as well as non-Whites?
Mr. RAUTENBACH: I am in doubt as to what is meant there and I am
stiU in doubt as to whether the post-graduate students mentioned by
Mr. Gross are Blacks or Coloured people and I will remain in doubt until
such time as I see their names. I may infer from that to which group they
belong, but unless I have seen photographs of them-1 am very sorry
but I cannot accede to that indirect way of making me compromise
myself on that point.
Mr. GRoss: Yes, Sir. The sum and substance of the testimony, Sir, is
that you are ignorant of this fact either as to White or non-White
students, is that correct?
Mr. RAuTENBACH: Yes, I am in the same position, Mr. President, as
Mr. Gross is.
Mr. GROSS:Therefore, when you testified-which I did not, Sir, and I
do not want to argue with you-concerning studying at overseas in
stitutions and the problems presented by university separatfon, you did
not have in rnind any facts with respect to the number or character of
students from South Africa overseas. Is that correct, Sir?
Mr. RAUTENBACH: I did not have in my mind, as I testified here,
recent figures. J informed this Court and it is on the record, that in 1959
a report had corne through either the British Council or the Common
wealth University Association showing the number of students coming
from various parts of the Commonwealth and I mentioned the figure of
r,200in the case of Nigeria. I get reports from time to time from American
institutions (there is something with a title of I.A.U.), thcy corne in and
I just browse through them as regards the number of students from
various countries, but I make no particular study of that.
Mr. GRoss: Sir, just one more aspect of this-the United Nations
General Assembly adopted a resolution No. 1705, 16th Session (this is in
the documents of these proceedings), the 1083rd Plenary Meeting,
19 December 1961, in which, arnong other things, the following is set
forth in the preambular provisic,ns:
"Recognizing in particular, the urgent need to ensure the educa
tional advancement of South West Africans beyond the limitations
imposed by the Bantu educational system in force in South West
Africa and South Africa, and to prepare them for service in the
administration of their countrv.
"Recognizing that the indigem,us inhabitants of South West
Africa, whose country can appropriatelv be designated as being
economically underdeveloped, have a légitimate right to receive
benefits from the United Nations programmes of technical co
operation but, owing to the rdusal of the mandatory power to co- WITNESSES ANDEXPERTS
433
operate and receive such assistance on their behalf, have not so far
benefited from such programmes."
I pause there, and ask you whether you interpret or have doubts con
cerning whether this resolution refers to \Vhite as well as non-White
Africans and South West Africans?
Mr. RAUTENBACH:I did not know what question was coming sa I
paid no particular attention to that passage and, Mr. President, I would
be very pleased ta hear that passage once more; what is relevant.
Mr. GROSS:I will just read the first paragraph:
"Recognizing in particular the urgent need to assure the educa
t~onal advan~ement of South West Africans beyond the limita
t10ns ... etc.
Mr. RAUTENBACHS :outh West Africans means all South West Africans.
Mr. GROSS:And you do not know and you do not have an impression
whether this resolution refers ta Whites as well as non-Whites?
Mr. RAUTENBACHI: would say in a general way, I would expect it to
refer to the non-Whites because the word "undeveloped" country is used
and in thinking of the undeveloped I also think of the part of the people
who have, as yet, lacked and in that respect then, taking the whole
together, my analysis would be, it is meant to refer to the non-Whites,
even if it seems South Africans at the beginning. It is just an impression,
Mr. President.
.Mr.GROSS:But you are making a reasonable inference from the context
are you not, Sir?
Mr. RAUTENBACHI: hope so, Sir.
Mr. GROSS:With respect to the policy to which this resolution refers,
that is to say, the policy of the mandatory power in terms of the refusai
of the Mandatory-perhaps you had not paid attention to this either?
l\Ir.RAUTENBACHI: registered that.
l\Ir. GROSS: "That owing to the refusai of the mandatory power to
co-operate and receive such assistance on their behalf, etc."-in your
studies, Sir, in the work of your Advisory Commission, of which you are
Chairman, and in your testimony as an expert and witness here, what
knowledge, if any, do you have with respect to United Nations resolutions
or policies on the subject of university apartheid or any other aspect of
education in the Republic or in the Territory?
Mr. RAUTENBACHI: paya good deal of attention to bodies concerned
or bodies working under the United Nations which pay particular
attention to education and particularly education in Africa, and I find
these documents most useful. I have already quoted from some of them
and I have another number of quotes here which are relevant to the
whole of Africa and to South Africa, and to the African people of South
Africa, but for the remainder I do not take much note of these. I cannot
and I have not the time. I hold down many jobs and I regret that I
must say that I read what the ordinary newspaper reader reads-things
like the Sunday Times and this type of paper, and its opposite numbers,
too, the Sondagnews, that is, the Afrikaans-speaking paper, and I make
no special study of the United Nations activities-I simply have not got
the time.
Mr. GRoss: Do vou have the time, Sir, in connection with the advice
which your CouncH, and you, as its Chairman, give with regard to co
ordinating the educational policies and secondary levels of the Republic SOUTH WEST AFRICA
434
as a whole, to learn what, if any, United Nations General Assembly
resolutions, for example, have had to say with regard to the matter of
apartheid, or educabonal apartheid, specifica11y?
Mr. RAUTENBACH: No, I pay more attention to, as I say, for example
the conference under the United Nations in Geneva in 1963 on the topic
of Higher Education and Technology as Applied to the Underdeveloped
Countries. I pay attention to what was published on 16 May of this year
as regards the use of the vernacular. I pay attention to many of these
reports because they are very useful. Educational planning was one of
the reports issued by United Nations. I have great respect for these
reports because they draw on the expertise of many countrics of the world
and I learn from them.
Mr. GROSS:Do any of these reports to which you refer express judg
ments or conclusions with respect to the system of university apartheid?
Mr. RAUTENBACH: No, I don't remember having seen that in these
reports by education bodies, those which I have read, for instance, on
primary education. I have read one on primary cducation, and I have
read various others on educational planning; in fact, the first draft was
sent round the world for advice, whether certain suggestions could be
made on educational planning, and it chiefly referred to educational
planning in under-developed communities. I was very interested in that.
Mr. GRoss: \Vas there any reference in that document in any sense
regarding the policy, cnforced or otherwise, of segregation in the educa-
tiona1 system? .
l\frRAuTENBACH: No; I will not say this undcr oath, but I remember
something of a more positive nature, and that is the equality of al!
people, or the common humanity~that was a point made in more than
one of thesc, that that should be part and parce! of education in this
present-day world; I remember that sicle, though that 1 think would be
the opposite side of the coin to which you are referring.
Mr. GRoss: You mean that would imply support for separation?
Mr. RAUTE!sBACH: Sorne would regard it as being support for inte
gration.
Mr. GRoss: \Vith respect to another organ of the United Nations-!
refer to the United Nations Security Council-are you familiar with, or
have you heard of, a report by a so-called group of experts which was
appointed by the Secretary-General pursuant to a Security Council
resolution of 4 December 1963, S/5741, which is in the documents of these
proceedings?
Mr. RAUTENBACH: No-1 have been shaking my head horizontally ever
since the word was raised-1 do not know anything aboutit.
M:r.GRoss: You do not know anything aboutit?
Mr. RAUTENBACH: No, I don't.
Mr. GROSS:In connection with the United Nations studies which you
have made, and as to which I believe you have testified that you have
corne across no direct references t9 the question of university segregation
in South Africa ...
Mr. RAUTENBACH: I would say there was not that prominence given to
it that thatstruck me as one of the outstanding points in the documents
I had before me; it may have escaped my notice because I browse through
many of these things-thcy are huge volumes-eight-volume reports, for
instance, and I have got to browse through them.
Mr. GRoss: It might perhaps refresh your recollection then if I cite a WITNESSES AND EXPERTS 435
brief excerpt from page 30 of S/5658 of 20 April r964, the United Nations
Security Council document which is the report of the group of experts.
Paragraph 76 {/) on page 30 states as follows:
"It is in higher education that most rapid reforms can be im
plemented both to provide training in the professions and otherwise
to provide the leaders whom South Africa will so much need. We
recommend that the Convention [they propose an inter-racial con
vention, as you may know] should at once consider the early and full
removal of the recently imposed restrictions in the univcrsities of
South Africa."
Does this refresh your recollection as to the pages through which you
browsed?
:Mr. R..,UTENBACH: No, it does not refresh my recollection, because I
do not read what refers to the Security Council, soit cannot refresh what
I have not·read.
Mr. GROSS:I agree with that. \.Vith respect now to one more citation
to which you referred and began to quote with approval, that is to say a
by Sir Eric Ashby to whom you referred in the verbatim record of
work
4 October at page 342, supra--do you have that?
Mr. RAUTENBACH: No, I remember that.
Mr. GRoss: Sir Eric Ashby is the person, is he not, whose wrriculum
vitaeand experience you set forth at page 342?
Mr. RAUTENBACH: Only partly.
Mr. GROSS:His distinctions exceed those to which you referred?
Mr. RAUTENBACH: Oh. by far.
Mr. GRoss: I should Iike to read from a writing of Sir Eric Ashby
which appeared in the publication Minerva to which you rcferred, in
Volume I,No. r, of Autumn 1962. I believe, incidentally, that you are
familiar with this paper and have actuaHy written concerning it, is that
not so?
Mr. RAUTENBACH: Yes, this is my pamphlet on that.
Mr. GROSS:Sir Eric Ashby was, was he not, invited to give the first
Chancellor's lecture delivered in the Great Hall of the University of
Witwatersrand on 4 April 1962, is that correct?
Mr. RAUTENBACH: Correct.
Mr. GROSS:And is it correct, as set forth in the head-note to this piece,
that the Chancellor's lecture was established to commemorate in every
third year the following dedication, which was affirrned by the General
Assembly of the University on 16 April 1959-are you familiar with
whether the Chancellor's lecture was established to commemorate in
every third year this following dedication?
Mr. RAUTENBACH: Yes.
Mr. GROSS:The dedication reads as follows: ·
"We are gathered here today to affirm in the name of the Univer
sity of the Witwatersrand that it is our duty to uphold the principle
that a univcrsity is a place where men and women without regard to
race and colour are welcome to join in the acquisition and advance
ment of knowledge and to continue faithfully to defend this ideal
against ail who have sought by legislative enactment to curtail the
autonomy of the university. Now thercfore we dedicate ourselves to
the maintenance of this ideal, and to the restoration of the autonorny
ofour University." SOUTHWESTAFRICA
That is the end of the dedicatory plaque. Would you agree that this
dcdication is a clear indication ofhe viewpoint of the General Assembly
of the Universitv?
Mr. RAUTENB:4..CH O:f the General Assembly?
Mr. GRoss: Yes, the dedication which was affirmed by the General
Assembly of the University on 16 April 1959.
Mr. RAUTENBACH:I don't know, I have never heard the words
"General Assernbly" used in connection with a university in South Africa.
Mr. GROSS: Isee. That is the expression used here.
Mr. RAUTENBACHB : ut that has no standing in law or in the statutes.
Mr. GRoss: So that you do not know to what body that phrase refers?
Mr. RAUTENBACHN : o, I have nevcr hcard those words used before.
The convocation, yes, I know what that is, and a congregation, but I
don't think the words "General Assembly" ...
Mr. GROSS:\Vould you agree that, irrespective of-1 am afraid I cannot
enlighten the Court with respect to what the "General Assembly" referred
to here is-would you agree that this dedicatory plaque and statcment
represents the view of the University asan institution?
Mr. RAUTENBACH:Yes, I think it represents the opinion of the
majority, and the opinion of the majority is regarded as the opinion of
the University, of its staff and of its studcnts.
l\fr.GRoss: And of the Chancellor?
l\Ir.RAUTE~BACHO : f course, and the Chancellor, who is a figure-head.
)fr. GRoss: Who is what?
Mr. RAuTE~BACH:A figure-head-he is a titular head, he is no active
participant in university mattcrs.
Mr. GROSS:Who is the active head?
Mr. RAUTENBACHT :he active head is the Vice-Chancellor.
Mr. GRoss: And is this true of his view as well?
.Mr.RAUTENBACHY : es, the present Vice-Chancellor, certainly.
Mr. GROSS:And he is not a figure-head?
Mr. RAUTENBACHP :rofessor Macronen, no-he is the man who is my
opposite number, the Rector; he bears the heat of the day and the cold
of the night.
Mr. GRoss: Now in the text of his speech Sir Eric Ashby stated as
follows, and I quote from page 23 of the pamphlet under discussion:
"As a guest in your country I shall not comment on whether
apartheid in general is right, butIdo condemn without reserve the
shallow assumption that even if apartheid were right for the Post
Office and the railway station, it would automatically be right for
the classroom."
I will go back and read this sentence by sentence with pleasure.
Mr. RAUTENBACHN : o, I know that, I could almost quote it myself.
Mr. GROSS:
"It is difficult to see any relevance at ail between a segregation of
Black and White and the sale of stamps an<ltickets."
Mr. RAuTENBACH:And the sale of ... ?
Mr. GRoss: And the sale of stamps and tickets.
Mr. RAUTENBACHT : he sale of staffs .?.
Mr. GROSS:Yes, because, if I may refresh your recollection, he says:
"... I do condemn without reserve the shallow assumption that WlTN'ESSES AND EXPERTS 437
even if apartheid were right for the Post Office and the railway
station, it would automatically be right for the classroom."
Then he goes on to talk about what happens in Post Offices and railway
stations, and says: "It is difficult to see any relevance at all between a
segregation of Black and White and the sale of stamps and tickets."
Mr. RAUTEN'BACH: Isn't the phrase "by staffs of tickets", because the
sale of staff-how can you sell a staff?
Mr. GROSS: Sel! stamps.
Mr. RAUTENBACH: Oh, stamps-I thought you said staffs-! am very
sorry.
Mr. GROSS: Is it the fact that there are different lines for White and
Black in the purchase of stamps at Post Offices?
Mr. RAUTENBACH: Yes,
Mr. GROSS: And is it a fact that there are differcnt entrances for Whites
and Blacks in railroad stations?
M.r. RAUTENBACH: No, not different entrances always, but different
coaches, I think; it aU depends on the size of a station-! am not sure.
Mr. GROSS: With respect to the sale of tickets, is it or is it not the fact
that Whites and Blacks form different lines to buy tickets?
!\IrRAUTENBACH: Yes, they form different lines.
Mr. GROSS: This, then, is probably what, no doubt, Sir Eric Ashby
was referring to, but then he goes on now, pertinently to the university
question directly, and says as follows:
"But the very purpose of a university, the faith it lives by
requires it to reject any basis of segrcgation save intellectual merit.
Therefore the only justification for University apartheid would be
convincing evidence for the assertion that Black men are inferior
intelkctually to White men. In fact there is a convincing evidence
against this assertion." ·
I pause there.
Now, may I ask you Sir, with respect to Sir Eric Ashby's judgment as
reflected here, that the only justification for university apartheid would
be convincing evidence for the assertion that Black men are inferior
intellectually to White men-do you agree with that judgment by this
person?
Mr. RAuTENBACH: No. There are other grounds and it would be un
acceptable moraUy, to me, if the present system is based on a theory of
inferiority ofany group.
Mr. GROSS: But it is a fact, Sir, is it not. that the admission or the
admissibility of the members of the community, and I refer to the com
munitv of South Africa and of South West Africa, is under the enforced
segregation system of 1959 and onwards, based on ethnie classification
rather than on intellectual merit? Is that a correct statement, Sir?
Mr. RAUTENBACH: That is a correct statement, but that is something
other than what you have been asking me to say, that the only justifiable
basis is that of intellectual inferiorityIt would help me a great deal if
you would keep these matters apart.
Mr. GRoss: I am not attempting to characterize Sir Eric's opinion, I
am putting it forward to you, Sir, in his own terms for your own reaction
and analysis, and agreement or disagreement. Very briefly, I would like
to refer for one or two specific purposes to the publication to which I was SOUTHWESTAFRICA
referring yesterday,The Open Universities in South A/rica, which is the
publication as you are aware of ...
Mr. RAUTENBACH T:hat Cape Town meeting.
Mr. GRoss: Yes, Sir.
Mr. RAUTENBACHO : f r956.
Mr. GRoss: Yes, that is right, Sir. Now, yesterday we were discussing
the essence of the case as they expressed it andr would like to place in
the record, for your agreement or disagreement, the conclusions reached.
On page 17, the report states:
"The attack on the open universities does not emanate from
within these institutions, which alone have practical experience of
the association of White and non-White students at the university
level."
Do you have any basis of experience or other basis for an opinion as to
whether it is a correct analysis that the attack on the open universities
does not emanate from within these institutions?
Mr. RAuTENBACHI: am under the impression that the attack did not
emanate from inside those universities-the Universities of Cape Town
and Witwatersrand.
Mr. GROSS:Then, in the same context, the second sentence of this
excerpt:
"On the contrary, the Councils, Serrates and staff and student
organizations of both the open universities, have recently by over
whelming majorities re-affirmed their faith in the present system."
On the basis of your experience and knowledge, would you agree with
that characterization of the position of the bodies and groups concerned?
Mr. RAuTENBACHY : es. with emphasis on the word "majorities".
Mr. GRoss: Overwhelming majorities?
Mr. RAUTENBACHI: would not even use the word "overwhelming".
l\.fr.GROSS:You would not, Sir?
Mr. RAuTENBACHN : o, because matters have changed since then.
Mr. GROSS:This refers to the ...
Mr. RAuTENBACHT : hat is historical.
Mr. GRoss: This necessarily refers to the situation as analysed in
February 1957, when this report was made, Sir.
Mr. RAUTENBACHY : es, I think as a diagnosis of the situation then I
could agree with that.
Mr. GRoss: Now, Sir, they go on to say:
"Neither does the attack emanate from the public which supports
these institutionsnor yet from non-Whites anxious to withdraw
from contact with the Whites."
Do you agree with that conclusion?
Mr. RAuTENBACH:No, Icannot say, because what is meant by the
words "public which supports these institutions"-there are two ways of
supporting an institution: one is by providing funds by way of gifts and
donations and the other is by sending children. boys and girls, young
men and women to these institutions. If by that is rneant the first, namely
those who have made financial contributions of a considerable nature, I
think that would be correct, but not the second, because the agitation
against the University of Witwatersrand and Cape Town very often
through medium of the papers-came from people who claimed to have WITNESSES AND EXPERTS
439
children on these campuses. So, it is difficult for me, by a simple yes or
no, to reply to a question which involves too much.
Mr. GRoss: Thank you Sir. I want to call to your attention the further
judgment of these two universities expressed through the Joint Con
ference. Parenthetically Sir, I do not intend toDrdo I invite a discussion
of a political nature. Im reading this in the context of the report of the
universities involved:
"The attack on the open universities emanates from a political
party which at present happens to control the govemment. lt has
been a sustained attack continued since 1948 in the party press, at
party congresses, and in parliament."
\Vould you agree, Sir, with that as a statemcnt of fact?
Mr. RAUTENBACHN : o, I would not agree.
Mr. GRoss: In what respect is it erroncous in your judgment, Sir?
Mr. RAuTENBACH:In that very period, I received a telegram from a
Member of Parliament representing a Natal constituency and Natal, as
I previously said, is chiefly populated by South Africans of English
descent. Now I had a telegram asking me whether it was thought possible,
and that was about a week after the universitv had started, to accom
modate a young girl, an English-speaking girl from Natal, who had gone
to the University of Witwatersrand but had never realized what the
situation was in the Witwatersrand campus and he no longer saw his way
clear, this parent, tolet his daughter stay therifwe could accommodate
her at the University of Pretoria. Now, from the man's name, etc., I
would not think he was a supporter of the government which has been in
power for so many vears; it was an English name and she was English
speaking and the question asked was also whethcr we could give her some
assistance with her lag in the Afrikaans language which is the medium
of instruction. So that the opposition did not came entirely from that
political party, but I would say chiefly and ovenvhelmingly, to use the
other word; there were also people outside the Nationalist Party, who
very clearly indicated they were not pleased with the state of affairs.
Mr. GROSS:May I ask one more question, with your permission, prior
to the recess-it finishes this.
The PRESIDENT:Certainly.
Mr. GROSS:And then finally the report sets forth the view that:
"Now that it has become clear that this attack has failed to induce
the open universities of their own accordto close their doors to non
White students, the Government has decided to resort to coerciôn."
Sir, do you agree that it had become clear that the open universities
could not be induced of their own accord to close their doors to non
Whi te students?
Ilfr. RAUTENBACHI: know that was the contention.
The PRESIDENT:I did not catch the answer.
i\ir. RAUTENBACHI: know that was the contention of the represen
tatives of these universities.
Mr. GROss: Now Sir, they were making a contention with respect to
their own policy and objectives?
Mr. RAUTENBACHT :he contention was that ithad now become clear
that these universities would not of their own accord close their doors
now the compulsion was brought about.
Mr. GRoss: I did not ask that question, Sir, I asked you whether you440 SOUTHWESTAFRICA
agreed with the statement, the first part of this dual thought. Rad it in
fact, as they assert, become clear that the open universities had not been
induced to close their doors of their own accord-would you agree with
that, Sir?
Mr. RAUTENBACHI:f the other statement is accepted, the majority
having expressed itself in favour of retaining the system, then I take it,
it had become clear by then.
Mr. GRoss: Then fmally Sir ...
Mr. RAUTENBACH lt is their opinion, you see. You are asking me to
give an opinion on other people's opinion on other matters.
Mr. GROSS: Itis their opinion but it is theiruniversitySir, is that not
so?
Mr. RAuTENBACH:Yes, and different people have different opinions.
l\frGRoss: Now Sir, I am talking about the opinion of the people
whose university it is and who are responsib1e for its affairs.
Mr. RAuTENBAcH:Yes, that is opinion but that is what the Greeks
call doxa and not episteme-it is a difference.
Mr. GRoss: Now may I just, without understanding fully the sig
nificance of the last Greek phrase, ask you whether the conclusion that
the Government had decided to resort to coercion under those circum
stances would in your view be an accurate and realistic reflection of the
reason for the adoption of the legislative coercion as a method of univer
sity segregation.
Mr. RAUTENBACHI: think, with ail honesty, I must say it would prob-
ably have been.
Mr. GRoss: The reason?
Mr. RAuTENBAcH:Yes.
Mr. GROSS:Dr. Rautenbach, there has been some testimony with
respect to persans classified as Coloured. There has been, has there not,
a succession of studies made by various commissions with respect to the
educational system and regarding the persons who are classified as
Coloureds, Sir?
Mr. RAuTENBACHB : y variqus commissions and researchers.
Mr. GROSS:Researchers. And was one of those the Holloway Com
mission, to which reference has been made this moming?
l\fr. RAUTENBACHT :he Holloway Commission dealt, as far as I know,
with non-White education and, the Coloured people being a group in that
category, dealt with that.
Mr. GROSS:Sir, a public address was made by former Justice Centlivres
who, I believe, became Chancellor of the University of Cape Town, did
he not, Sir?
Mr. RAUTENBACHH : e did.
Mr. GROSS: In this address entitled "Blundering into University
Apartheid", in Cape Town, 5 February 1959-are you familiar with this
address by any chance, Sir?
Mr. RAVTENBACH: I think I saw a report in the paper. Was it on the
occasion of a graduation ceremony?
Mr. GROSS: It was before the Institute of Citizenship.
Mr. RAUTENBACHN : o, I think I saw a summary report of that.
Mr. GROSS:Chancellor Centlivres made the following ...
Mr. RAuTENBACH:Now I remember about it.
Mr. GRoss: He made the following reference to this matter in respect
of the Commission report. He says at page 3 of the pamphlet which was WITNESSES ANDEXPERTS
441
issued by the so-called Academic Freedom Committee of the University
of Cape Town, published by the Standard Press Limited, in Cape Town,
that:
"The Commission dealt specially with the position occupied by the
Coloured people in our society. It said:
'Due to many centuries of contact with the European. cultural
affinity between the Coloured and the European is much doser
than between him and the Bantu.' "
May I pause there to say, Sir, whether you would agree with that
comment of the Holloway Commission as quoted by Justice Centlivres?
Mr. RAuTENBACHI : would emphatically agree with that.
Mr. GROSS:Justice Centlivres goes on to say:
"lt [again the Commission) expressed the opinion that [now
quoting from the Commission] 'unless many Coloureds are to Jose the
opportunity of acquiring a university education, the Coloureds
shoulcl be allowed, as at present, to continue their non-separate
studicsat the universities, especially at the University of Cape Town
which is prepared to admit them'.''
Now, Sir, I should like to ask you whether the Coloureds are, since
1959, permitted to continue their education at the University of Cape
Town?
1\:1.r.AUTENBACHY : es, but, Mr. President, they are subject to the
Minister giving them permission and there are, I think; over 300 or just
under 300-let us settle at 300.
Mr. GROSS:All of these pursuant to permission granted by the Minister,
Sir?
Mr. RAUTENBACHS :orne were carry-overs from the pre-1959 Act, I
think. Because the medical training is over six years and many may have
failed and, you know, the new system has only been in effect since 1960.
We are now in the sixth year. So I think some would be carry-overs and
some would have been granted special permission.
Mr. GROSS:You do not know, Sir, or do you, how many Coloureds have
been admitted to Cape Town pursuant to special exceptions made by the
Minister?
Mr. RAUTENBACHY : es. I have a document in the hotel ...
Mr. GROSS:You do not know now, Sir?
Mr. RAUTENBACHN : o. Numbers were given of Ban tu, Coloured and
Indians to whom the Minister had given permission to study at open
universities.
Mr. GROSS:There are numbers of them. Now, Sir, on the premise that
there are considerable numbers of Coloureds at the University, would
you express an opinion to the Court whether the system of mixed educa
tion, if Iay call it that, has produced tension or frustration or disorder,
or any other anti-social symptoms?
Mr. RAUTENBACHI: have this knowledge from Press reports that the
Principal and Vice-Chancellor of that University has been at loggerheads
from time to time with his Students' Representative Council. The
Students' Representative Council does want certain social amenities open
forail students in that campus and the Principal again sticks to what he
calls"tradition" and the result is that they have been at Ioggerheads for
a long time. So that there is at least an unpleasantness between the
Principal and his students and I realise what that means on the campus.442 SOUTH WESTAFRICA
Mr. GROSS:1s it your opinion, Sir, as an expert or otherwise, that the
attendance by Coloureds in these considerable numbers to which you
refer is a desirable or undesirable phenomenon from the aspect of, let us
say, promoting harmony between races?
l\Ir. RAUTENBACH W: ithwhat I have just said in mind, I would be
inclined tosay that wherever they are together on one campus sooner or
later you get somc form of trouble because what I have just mentioned
contradicts what has been read this morning from the pamphlet about the
Cape Town meeting. That was not mentioned in the pamphlet but I
mentioned it.
Mr. GRoss: Do you agree, Sir, with the Holloway Commission report
as quotcd by Justice Centlivres that many Coloureds would lose their
opportunity for acquiring a university education if they were not ad
mitted to the White universities?
Mr. RAUTENBACHW : ith a certain qualification, thaifthey were not
admitted to the White universities then they would lose their opportunity
of qualifying in that subject or profession for which the Coloured Univer
sity of the Western Cape does not as yet make provision and that is the
reason why 300 are still at Cape Town University because, as a more
developed community, they study in many more branches of learning
than the Bantu at prescnt, owing to the fact that there are more matri
culants, there is a greater urge in varions directions.
Mr. GRoss: Sir, I would like to ask, as we approach now the conclusion
of this cross-exmnination, whether you would be prepared to agree to
the proposition that the educational system of segregation is of the
essence of the official policy of apartheid in ail aspects of the social order
in the Territory and in South Africa? Would you agree to that succinct
proposition?
Mr. RAUTENBACH It seems to be a very important question. I would
like to hear it again.
Mr. GROSS:Would you agree to this as a succinct formulation, that the
system of educational segregation-specifically university apartheid-is
of the essence of the official policy of apartheid in all aspects of the social
order in the Republic and in the Territory?
Mr. RAUTE~BACHE : ducation as conducted in South Africa at present
is a facet of the policy of separation-othe programme of separation.
Mr. GRoss: You would, then, Sir, agree-would you or would you not
-to the proposition as formulated succinctly.by the Prime Minister in a
statement quoted in the Rejoinder, V, page 252, as follows: "There was
no doubt whatsoever as to the attitude of the National Party: The White
man will govern his country and the Bantu will govern his people, bis
arcas ... " Would you say, Sir, that the educational system which prevails
in South Africa and represents the higher education of South West
Africa is geared to the proposition that the White man is to be educated
to govcrn bis country and the Bantu is to be educated to govern his
people?
Mr. RAUTENBACH M: r. President, it is my sincere conviction that that
is the objective of the programme of separation.
Mr. GROSS:And, Sir, would you, then, agree or disagree that this
educational division, so to speak-the dual system, ifImay call it that
would not be relevant or applicable if the policy were to prepare the
citizen regardless of colour or race for life in a common society, a common
economy? WITNESSES ANDEXPERTS
443
Mr. RAUTE~BACHV : arious questions are being asked at the same time
-a common society and a common economy.
Mr. GROSS: Would you break down the two? Idid not rea.Iize there
was a distinction, Sir. May I, then, break it down and ask a question with
respect to a common society in which the various races work together
and share common problems of a social, or economic, or political nature?
Mr. RAUTE~BACH:Now, that explanation in between has somewhat
removed the question from my mind. I am very sorry.
Mr. GROSS:Would you say, Sir, that the dual aspect of the educational
system would be relevant and appropriate if the objective were to educate
both White and non-White for a common society in which economic,
political, social objectives were shared?May I put the question in that
fonn?
Mr. RAUTENBACH I: still think that separate education at this stage,
even if an integrated future was envisaged, would be the best way to
further that objective. Even as in the case of the two language groups
amongst the Whites, the fact of giving each of them their own school,
teachers'training college, and university, through their own language,
has removed dissatisfaction and has contributed towards national unity.
Parallelstreams can join.
Mr. GROSS:Does the system which you have just described visit hard
ship or involve sacrifice on the part of individual non-Whites who are
not granted the same opportunities as Whites in the educational field?
Mr. RAUTENBACHI:f they are not granted the same opportunities then
that is an injustice but that is, as you say, suppositions.
Mr. GROSS:Suppose, Sir, that an individual (let us think of this, if I
may invite you to do so, in human terms), a gifted non-White individual,
in pursuing a study of physics or engineering or music, regards that a
faculty at a certain institution has more to offer him than one at another
institution and he is denied admission because of his ethnie or group
background, do you regard that as a sacrifice which he is asked to make
for the objective which you have set forth?
Mr. RAUTENBACHY :es, I think there are occasions when the individual
must sacrifice something for the greatest happincss of the greatest num
ber, but I doubt whether that would be such a very serious sacrifice
because the very gifted individual finds his own way wherever he is.
Mr. GRoss: Despitc the obstacles, Sir?
Mr. RAUTENBACHD : espite the obstacles.
Mr. GROSS: Ihave no further questions.
The PRESI]}ENT:Thank you, Mr. Gross. Sir Gerald Fitzmaurice desires
to put certain questions to the Professor. Sir Gerald.
Judge Sir Gerald FITZMAURICED ; r. Rautenbach, I am sorry to keep
you here any longer aftcr your considerable ordeal, but you could help
me in one or two ways. Severa! times during the course of your evidence
you have mentioned (I think these were your words) "integration in the
classroom and segregation outside". Perhaps I might read one or two
passages from your evidence. I am looking now at the verbatim at page
404, supra, and then, Jater on, page 4ro.
On page 404 you said, near the middle of the page, "that the so-called
open universities never at any time in their existence were in the fullest
sense ofthe word 'open' universities-only the classrooms were open but
not the other aspects of university life."
Then, on page 4ro you said: SOUTHWESTAFRICA
444
"His [that is to say, the Bantu student) relationship to the White
students who comprise the totality of the student part of that
university is that of a man who attends the same classes, the sarne
lectures, works in the same laboratories, and his physical presence in
a geographical sense is on that same campus, but he is deprived of
quite a number of amenities, quite a number of privileges, which
form part and parcel of the extra-curricular contribution towards
education."
Now, ail that gives me a certain impression but it does not forma very
clear picture. Would one be right in saying that it means this, that in all
matters appertaining to the actual work of the university-the courses,
the classes, and everything else, the tuition, the supervision-the Bantu
student at an open university, or at any university, is in the samc position
as the White student, but that in other matters, that is to say in what
you might call the social life of the university, then he is as if he were not
there and lives bis own private life? Would that be about correct?
.Mr.RAUTENBACH i.frPresident, that is precisely what I meant.
Judgc Sir Gerald FITZMAURICET : o take a particular matter, where
would he live? Would he live on the campus?
Mr. RAUTENBACHN : o.
Judge Sir Gerald FITZl\IAURICEN : o. Are these open universities, that
are in question here, all situated in towns?
Mr. RAUTENBACHY : es, in bigger and smaller towns. There are open
universities in Johannesburg, that is our largest city in South Africa; the
second largest is Cape Town, but the White population of Cape Town is
more or Jessthe same as that of Durban and Pretoria. The co-called open
universities of Johannesburg (Witwatersrand). and Cape Town are
situated in cities but Natal university has a double seat, a double-seated
university-there was a university in Britain of the same type, Durham
and Newcastle-on-Tyne, something of this kind-it is situated both in
Pietermaritzburg and Durban.
Durban is a city with a White population of about 200,000, and with
Indians and others more than that; I suppose the whole would be towards
600,000. \Vell, I have mentioned all of them now. Pietermaritzburg is
smaller-the capital city but very much smaller; pcrhaps it is 20,000
people.
Judge Sir Gerald FnzMAURICE:\Vell, what it cornes to is this then; he
would live in lodgings outside the University campus. Would those be
university lodgings found for him and allotted to him by the university,
or would he fi.nd his own accommodation?
Mr. RAUTENBACHN : o, in the case of the University of Natal, which I
do not, in an unqualified way, call an open university, because it has
segregated classes, residential facilities are provided, have been provided,
by the university with Government aid for students of medicine. That is,
then, a university dormitory or hall of residence for both men and women
students, but, to my knowledge, the University of Witwatersrand, that
is an open university, and the University of Cape Town, have notas yet
or did not provide residence.
Judge Sir Gerald FITZMAURICES :o in those cases the Bantu students
find their own accommodation?
Mr. RAUTENBACHT : heir own lodgings, coming from the Ban tu resi
dential areas chiefly.
Judge Sir Gerald FnzMAURICE: This morning, Dr. Rautenbach, in WITNESSES ANDEXPERTS
445
answcr to a question of Mr. Gross, you said that you did not think that
the contacts which might be made between White and Black students on
the campus were of the most advantageous kind, and you said you could
think of several more favourable methods. Had you any particular
methods in mind?
Mr. RAl;TEN"BACH M: r. President, I had a method in mind which is
now being exploited by the students of the Bantu College of the North
and students of White universities, and that is to wait for a weekend and
have an agenda, prepared beforehand, so that there could be some con
centration on a subjcct of interest and just not talk, talk and talk. I
forgot to mention that my university campus had a visit from a number
of stu<lents from the Divinity Training School at the Bantu Collegc of the
North about three weeks ago. They came to my university campus but
were received by students of divinity. There is a doser contact between
the students of divinity there and at my university than, for instance,
the students of politics at my university and those of divinity in the
North, and that type of contact I regard as a very good type of contact
an ad hoc type of contact.
J udge Sir Gerald FITZMAURICE W: ell, does it corne to this, that in a way
you think that arranged contacts are perhaps more fruitful than spon
taneous ones?
l\lr. RAUTEN"BACI Hn: certain respects, ycs, in certain spheres, but there.
is a possibility ofhe other also being fruitful, but it is not always the
best. There are times when other forms may be more suitable.
Judge Sir Gerald FITZMAURICE n any case, if the student does not
live on the campus I imagine that the opportunities for spontaneous
contacts would be relativcly few.
.Mr. RAUTENBACHT :hey woul<lbe more limited; there is, of course, the
refectory, where they may meet or sit at the same table, or in the sun
shinc, or during our winter <lays in South Africa. The University of
Witwatersrand's building has a number of steps facing north: we live in
the southern hemisphere and these students sit and loll there on the steps
and they are usually half asleep--they are not nry active at that time
sitting inthe sun. But I have seen them sitting there, I have visited
Witwatersrand University and I have seen sitting there people of various
groups.
Judge Sir Gerald FITZMAURICEN : ow Dr. Rautenbach, referring again
to your statement that the open universities never at any time wcre, in
the fullest sense of the word, open universitics, that means really, does
it,that the chief differcnce between the situation as it existe<lsomc years
ago and the situation as it exists now is that the open universities chose
their own Ban tu students, or granted them admission themselves, where
as now it has to be done bv the Minister under the Act?
l\Ir. RAUTENBACHT :hat "isso.
Judge Sir Gerald FITZMAURICEO : therwise, you would say that there
is no real difference betweenhe two situations in the open universities?
Mr. RAUTENBACHN : o, in that respect there is no real difference.
Judge Sir Gerald FrTZMAURICE\:Vell, now I want to turn to something
else, Dr.Rautenbach. I want to recall that part of your evidence which
you gave a couple of days ago, I think it was, in which, quoting the Prime
Minister,Mr. Verwoerd, you said that the ultimate aim of apartheid was
complete political independence of the groups but economic inter
dependence. In connection with that, in your evidence yesterday, when SOUTH WEST AFRICA
the question of voting was being discussed (I am looking at p. 418, supra),
in answer to a question by Mr. Gross, who said:
"Now, Sir, with respect to those taxpayers who pay the piper,
what raie, if any, do they have in the selection of the Government
which decrees their university apartheid system?"
And your answer was: "No, they have no say. The Black people have
no votes for the members of Parliament. I think that is well known."
Now, supposing that this aim of complete political independence for
the groups should ultimately be realized, would the Black people, as they
were called in your answer, then have votes in their own areas? Or what
kind of political rights are contemplated for them?
Mr. RAUTENBACH: Mr. President, I think I can refer to the Transkei,
where they have votes and where they voted for the members of their
Iegislative Council; and I think they had a second election, that is the
beginning of that independence-a responsible government, home rule
and then, what the Prime Minister called, political independence.
Judge Sir Gerald FITZMAURICE: They would have their own legislature?
Mr. RAUTENBACH: Yes.
Judge Sir Gerald FITZMAURICE: Their own organs of government?
Mr. RAUTENBACH: Yes, their own organs of government.
Judge Sir Gerald FITZMAURICE: So would it be correct to say that what
is contemplated is something like what obtains inside a federal State?
Mr. RAUTENBACH: Yes, in a ferlerai State, because the phrase used by
the Prime Minister in London in rg6I was "a commonwcalth of nations
of southern Africa".
Judge Sir Gerald FITZMAURICE: I see. \Vell, now, just one more thing:
on the same subject, that is to say with reference to the ultimate situation
when apartheid is completely realized, looking at page 381, supra, you
s~aidthis in answer to a question of Mr. Gross:
"That question cannot be answered without some qualifications,
because with Whites in one area, in absolute separation, and others
in another area, in absolute separation, that means there will not
even be people who corne from the one and work in the other.
Mr. GROSS: That is right, that would be exactly what would
follow. Is that envisaged as a part of the doctrine of apartheid or
separate development?''
Then you said:
"No, what I seem to remember about this is that we will always
have people coming from over the border to work in the White area,
as far as human vision stretches."
Mr. Gross then said:
"Then, on the basis of that response which you have so clearly
stated, how, if at all, would you explain the Prime Minister's
reference to the limitations imposed on the freedom of people falling
away as soon as everybody can enjoy his own freedom in his own
terri tory; what relevance, if any, does that statement have with
respect to the non-Whites who will always be, from time to time or
their life long, working,iving_a!ongside the Whites-what relevance
does it have, if any, this statement?"
And then you said "I still cannot get the gist of your", and then, following WlTNESSES AND EXPERTS
447
on an intervention by the President, I seem to detect that Mr. Gross
passed away from that point, so that you never fully deve1oped, I think,
your answer to that question.
But what do you envisage exactly as regards the working on the part
of one section of the population, say the non-vVhites, in White sectors, or
Whites in non-White sectors, when apartheid is completely achieved?
\Vould it be very much the same as it is now or rather different?
Mr. RAUTENBACH : think there would be this difference, that there
would not be, or I think very few, Whites still working over the border,
because the expectation is that as soon as Bantu people have been trained
they will take over. May I again mention the case of the Transkei at
present. The Chief Minister and his Ministers all are members of the
Xhosa and related tribes, but the heads of departments, the Secretary
for Education, or for Justice,or for the other, is still a White. The Minister
of Justice is a brother of the Chief Minister, he is a trained lawyer, but
as soon as a .Bantu becomes available for that kind of office, then it is the
untlerstanding that the White man willretire. There are very few vVhites
still involved in the education system of the Transkei, to my knowledge,
and I have an idca that there will be fewer Whites over the border than
there wi!l be Black people, Bantu people or Native people, coming to
work in White areas.
Judge Sir Gerald FITZMAUIUCE Q:uite so. \Vould you still contemplate
that there will be a considerable number of Bantu coming to work in the
White areas?
Mr. RAUTENBACHM : r. President,I think that is a realistic approach.
If demographers state 1978, from then onwards there will be a decline,
but by the year 2000 we willbe more or less where we were in 1946, or
something of that kind. To my mind, as far as human vision takes us, I
think we coultl as well say by the middle of the following century there
will still be many people, unless automation takes over to such an extent
that fewer workers are needed. But I think even then, for the econornics
of South Africa, automation should not be introduced at too great a
speed, because that cou1d mean many people being out of work.
Judge Sir Gerald FITZMAURICEW : eil, leaving automation out of it for
the moment, Dr. Rautenbach, do you then envisage a situation rather
similar to that which exists in other parts of the world? For instance, in
this country, Rolland, you have a large number of foreign workers. You
ha\·e the same in France and in Switzerland, and, to go across the At
lantic, I think I would be right in saying that considerable numbers of
persans from Mexico, for instance, corne over the border and ,vork in the
United States. Those people do not have full political rights, of c9urse
they have ordinary human rights, but they remain essentially foreign
workers in another country. Npw, is that the sort of situation that you
have in mind?
Mr. RAUTENBACH: That is preciselyl\Ir.President, the sort of situation
which I have in mind, and, ifI may mention this, I was informcd by
people from the farming community in the northem part of this country,
Groningen, that long before the European Economie Community was
established, as far as this lady knew for centuries, at the times of harvests,
workers from Germany had always corne into that province of Rolland
and returned again after the harvest. It is, of course, now a much more
prominent matter here, but I know about l\foxican people going to the
United States; there is now, of course, a limitation imposed upon the SOUTHWESTAFRICA
numbers who can corne in. I have just read that the Californian farmers
cannot bring in their fruit harvests because they lack the hands.
Judge Sir Gerald Fnz:o.tAURICE:Yes, well of course ail the different
cases vary in their details, but that is the kind of situation. Thank you
very'much, Dr. Rautenbach.
The PRESIDENT: Sir Louis,I understand you desire to ask a question.
Judge Sir Louis MBANEFO:You were asked at page 379, supra, of your
evidence on 5 October:
"... these limitations will, to use his term, fall away as soon as
everybody can enjoy his own freedom and his own territory, do you
agree with that evaluation of the ... ?"
Then there was an interruption and you said "yes". Further on you were
asked:
"Would you have any estimate at all, or basis for an estimate, as
to when, if ever, the vision will be off the drawing board, so to
speak?"
And you replied:
"I am very pleased with that question, Mr. President, because in
the sphere in which I am active I set my target at not later than
1980. By then, the Bantu university colleges will be full fledged
universities."
So that when you talk of the target of 1980, you were thinking of the
time when the Bantu universities would be fully established?
Mr. RAUTENBACHN : ot only that, Mr. President, but also when the
members of staff will be Bantu people to such an extent that the next
stage can then emerge, and that is that the Advisory Serrate becomes the
Senate and the former Senate, if a few Whites are left, becomes the
Advisory Senate and the Council the same and then with ail the officiais
of the University-that is, not only will the size be of such a nature and
the maturity be of such a nature, but the stafling will also be of such a
nature, that overnight the change could be effected.
Judge Sir Louis :MBA:-;EFO B:ut the limitations on individual freedoms
-would they fall away in 1980? It is the beginning of the question.
Mr. RAUTE~BACH:Yes, Dr. Verwoerd's expression-! take it that his
successorsin office will carry out his wish.
Judge Sir Louis MBANEFO:At that point, that is the point when you
have your cornmonwealth of tribes?
Mr. RAuTENBACH:Commonwealth of tribes, yes. \Vell, we are ail
tribes. Ithink they should coincide and run parallel and one may corne
later than the other but they arc part and parcel of the future which I
hope will emergc.
Judge Sir Louis MBANEFO: And does itenvisage common citizenship?
Mr. RAUTENBACHN : o, it does not envisage common citizenship. I am
of the impression that in the old Commonwealth there was not common
citizenship because for years by Iegislation I was a Union national
whereas formerly I had bcen a British national. To my knowledge, and
I am not knowledgable, the Commonwealth does not imply Common
wealth citizenship, perhaps a common federal parliament, some common
body.
Judge Sir Louis MBANEFOA : nd it would also imply instituting customs
barriers between the different States?
Mr. RAUTENBACHC : ustoms barriers? If you have a Commonwealth WITNESSES ANDEXPERTS
449
they would probably be there but would be lower than as between foreign
countries-that is my idea.
Judge Sir Louis MBANEFO:You said yesterday at page 406, supra, of
the verbatim record:
"I hope in due time we will become more mature and overcome
that, but bringing people together from various backgrounds may
lead to conflict ... "
Itake it you are speaking there of bringing thcm together in the social
fieldand not generally?
Mr. RAuTENBACH:I was thinking here, Mr. President-I mentioned
up above the two language groups amongst the Wllites, that bringing
them together on a school campus as often as not led to conflict. I ex
pressed in the course of what I said the sincere hope that we would corne
to greater maturity than we have corne, and I would also sincerely hope
that in the future South Africa there will be forbearance and more ap
preciation of each other. We will see the human-being first and not the
colour.
Judge Sir Louis MBANEFON : ow, comingback to your apartheid policy,
you said it is political separation with economic interdependence. That
principle means that somebody has got to control the relationship in the
economic field-is it envisaged that that should be shared between the
W'hites and the Blacks?
Mr. RAUTENBACHI: have an idea, I am not sure because I used the
phrase used by Dr. Verwoerd but he has never expanded on that and I
am far removed from being anything of an authority on constitutional
issues, but I should just think that in some way or other, like the Euro
pean economic community, there should be a community. That means,
at some place people should meet each other, agree and put their approval
on certain plans or arrangements-a federal form-it could also be very
much Jike the Commonwealth.
Judge Sir Louis MBANEFO:If you cannot meet socially, do you think
that you could have an atmosphere in which you could discuss objectively
any issues on economic matters.
Mr. RAUTENBACHI:f by socially is meant that wherever the meeting
is the people will be in hotels, visitors to tha1: part, whether it is the
Black or the White part, and they will have the opportunity of dining
together and wining together-I think that is part of it. They could dine
together and speak together and visit together and attend the same
opera together-I envisage that. At least I dream that, but it is my dream
and I do not know what the Prime Minister dreams.
Judge Sir Louis MBANEFO:Then the answer is that really nobody can
say yet what would eventually evolve from thi,;?
l\Ir. RAUTENBACHN : o, it is just a general indication, but which steps
will be taken, how long it will take is not known but that is what is en
visaged as a vision of the future.
Judge Sir Louis MBANEFOS : o that when you speak of apartheid bein.g
a programme, a means to an end, you do not really know what the end 1s
going to be?
Mr. RAUTENBACHN : o, we do not know where it is going to end
excepting with this idea-it should end in astate of justice for all and to
use the phrase again "political independence and economic inter
dependence".
Judge Sir Louis MBANEFO:Now, one more question, you stated that 450 SOUTH WEST AFRICA
"admission to open universities for students from South \Vest Africa
_ depended on the Minister giving consent in writing".
M.r. RAUTENBACH: Yes.
Judge Sir Louis MBANEFO: Why is it necessary for a Minister to inter
fere with admission of students?
M.r. RAUTENBACH: It is his duty under the Act of 1959.
Judge Sir Louis MBANEFO: Why was it necessary to make that provi
sion?
Mr. RAuTENBACH: As I say, Mr. President, to put the Act into effect,
to irnplernent the Act he has that duty, that task to do so, to decide
where the students should be placed.
Judge Sir Louis MBANEFO: Can you give the Court any explanation,
any reason why that is necessary?
Mr. RAUTENBACH: No, it is the general reason lying in the programme
of separation.
Judge Sir Louis MBANEFO: Don't you think that it is an unwarranted
interference in the independence of a university?
Mr. RAUTENBACH: If I had been in another country with another
situation, I would have agreed to that, but with South Africa, in its own
peculiar situationand in its problems, it has to seek a kind of programme
or solution where peaceful co-existence from day to day is more or Jess
guaranteed.
Judge Sir Louis MBANEFO: Why wasn't he given the same power in
respect of White students?
Mr. RAuTENBACH: I do not know. The penalty attached to entrance to
Bantu universities by White students is the same as the opposite. I only
know that, but I do not know why particularly he was not given the
power but the implication is, of course, that the White students are by
law excluded ... Now I understand it, White students have all the
opportunities but Bantu students do not have all the opportunities at
Bantu colleges so that in certain cases their opportunities should be given
in the White-the one is more privileged at the present moment than the
other, and the under-privileged has to get his privilege somewhere else.
The one measure is necessary, the other is not necessary. There is training
in u faculties for \Vhites and there is training in five faculties for Bantus
at Bantu institutions so that outside of that in the other six faculties,
provision had to be made to enable the l\linister to allow students to
enter open universities. I don't know whether that answers the question
of the learned judge, Mr. President?
Judge Sir Louis M.BANEFO: Thank you.
The PRESIDENT: Any further questions, Sir Louis? Does any other
Member of the Court desire to put a question to the witness? (There being
no response the President continued.) There is just one partkular subject
matter on which I would like to ask you one or two questions. In answer
to Sir Gerald and also in the course of answering certain questions putto
you by Sir Louis, you spoke about envisaging a federal system as the
ultimate position which would be reached when the policy of apartheid
had in itself been completely served. In answer to that question, you
ventured an opinion that in the case of a federal system, there would be
no common citizenship---is this venturing an opinion of your own or have
you any foundation for so thinking from anything which has been issued
as amatter of polky by the Prime Minister or in any other way by the
Govemment of South Africa? WITNESSES ANDEXPERTS 45I
Mr. RAUTENBACHM : r. President, it was just my own opinion I was
expressing.
The PRESIDENT:Are you aware that in federal systems, where different
states agree on a federal union, under conditions which they, themselves,
work out before the union is established, it is cornmon to have a common
citizenship for the whole federal union?
Mr. RAUTENBACHM : r. President, I had to learn history and that is
yearsago-well, I know that is so. I also know, Mr. President, that in the
case of the Commonwealth, we had certain privileges over outsiders but
we did not have common citizenship.
The PRESIDENT: I know, but in speaking about the Commonwealth
you were using rather a figure of speech, when you compare it with a
federal union-that is an example of the danger of reasoning by analogy.
Mr. RAUTENBACHI: must apologize. My knowledge of these terms is
very limited and I may rnix them up.
The PRESIDENT:Anyhow you are simply venturing your own opinion?
Mr. RAUTENBACHY : es, I am venturing my own opinion.
The PRESIDENT:That is all I desired to ask you.
Judge Sir Louis MBANEFO:Mr. President, may I just ask a question?
The PRESIDENT:Pray do.
Judge Sir Louis MBANEFO:The British Commonwealth of Nations
consists of the rnother country and countries that have developed from
colonial statusto full independence.In South Africa, they have common
citizenshipwith equal rights and they should have equal rights under the
constitution-or are there second class people who have to be helped to
corne up to independence before they can be given self-government?
Mr. RAUTENBACHI:f I follow the question ...
Judge Sir Louis MBANEFO:Now in South Africa ...
The PRESIDENT:Do you want an answer to that question, Sir Louis,
or is it a statement you are making? ·
Judge Sir Louis MBANEFO:I want to make myself clear so that ...
The PRESIDENT:Please put your question.
Judge Sir Louis MBANEFO:I would like to get his comment. Develop
ment of the Commonwealth in the British Commonwealth of Nations, as
you know it, was a process which began with the mother country and
colonial countries who have no right in the mother country and who were
brought up to a state where they were considered fit to govern thern
selves. In South Africa, you have two peoples-you have the Whites
and the non-Whites-who at the moment have a common citizenship.
Mr. RAvTENBACH:No, they have common domicile in one country.·
Judge Sir Louis MBANEFO:At the moment?
Mr. RAUTENBACHY : es.
Judge Sir Louis MBANEFO:Have they not got common citizenship in
South Africa?
Mr. RAUTENBACHI: am not sure what the tenn "common citizenship"
means.
The PRESIDENT:If you do not know, you cannot express an opinion.
The witness is an expert and he has been asked a large number of ques
tions in my opinion, not by you, Sir Louis, but in the course of the case,
which did not seem to fall within his competence as a witness, but that
is a matter for the Court to decide and if you are asking the witness for
an answer, are you asking him as an expert in the field of your question
or are you asking him as a question of fact which he can depose to? SOUTHWESTAFRICA
452
Judge Sir Louis MBANEFO:What I am getting at is, would the
development of the conunonwealth you had in mind be different from
the way the other commonwealth was developed.
Mr. RAuTENBACH:Yes, it would be different in this respect, that
within the borders of the one South Africa, geographically you would
have various nations, each one coming to nationhood. That is so--that
is the difference. In the case of the British Commonwealth, the mother
country is geographically on an island or two (one-and-a-half islands)
and then there is India and others, and Nigeria and other countries
coming in, geographically very separate. In South Africa we also have
homelands which, from time immemorial, have been the home country
of, let us say, the Xhosa people, in the Transkei, and where I was born,
the Bahurutsi people (that is the west of Transvaal) who, when the first
v\'hites came there, had their country; it later was called the Reservation
and they still had that; they have been living and farming there ever
since they came to South Africa, so that in South Africa one has em
bryonic states, like you have in Europe on the one continent next door to
each other. So that you have no guarantee that if you have a common
wealth from this background, you develop in the same way as the British
Commonwealth. No, I have no guarantee and I could not express my
idea on that.
The PRESIDENT:Are there any further questions at all by any Member
of the Court? If not, Mr. Grosskopf, do you desire to put any questions in
re-examination?
Mr. GROSSKOPF:Yes, Sir, Mr. President, just one or two. Professor
Rautenbach, you were asked questions about this publication by the
American Sub-Committee on Africa, of the Committee on Foreign Affairs
of the House of Representatives. Is that so?
Mr. RAUTENBACHT :hat is correct, Mr. President.
Mr. GROSSKOPFI: would just like, as a setting of this case for these
questions, to read what questions were put to you by my learned friend,
Mr. Gross, and I shall read fi.rst from the verbatim record at page 367,
supra, where he referred to the number of South African students men
tioned in this book, and the question was then asked ifthe presence of
these students: "indicates a desire on the part of a certain number of
non-White students from South Africa to study abroad." That was the
question, was it not?
Mr. RAUTENBACHT :hat was the question. ·
Mr. GROSSKOPFT : hen, I should wish to refer you to page 368 of the
same record where you were asked:
"Now, Sir, thistable to which I have referred, being an official
publication of the Congress of the United States, the House Foreign
Affairs Committee, sets forth that there are six students, non-White
or 'African' students from South \Vest Africa, who are at the present
time studying in the United States."
That was the question putto you, was it?
Mr. RAUTENBACHT :hat was the question put to me and the situation
which was sketched to me.
Mr. GROSSKOPFN : ow, this morning you expressed the view that this
report did not indicate whether these students were White or non-White,
isthat so?
Mr. RAUTENBACHT :hat is so, Mr. President. After my perusal of the
booklet ... WITNESSES AS"DEXPERTS 453
Mr. GROSSKOPFI: am going to put this booklet to you, ifI may. W'hat
is the title of the booklet appearing on the outside?
Mr. RAUTENBACHT : he outside is A/rican Students and Study Pro-
grammes in the United States.
Mr. GROSSKOPFI:s the word "African" qualified at all there?
Mr. RAUTENBACHN : o, the word "African" is not qualified.
Mr. GROSSKOPFW : ill you look at the map right in the front of the book.
What does that map indicatc?
Mr. RAUTENBACHT : he map indicates here where there are certain
parts coloured in like Spanish Sahara, Angola, South West Africa,
Bechuanaland, Southern Rhodesia and Mozambique ...
Mr. GROSSKOPF :t is a map of Africa?
Mr. RAUTENBACH It is a recognizable map of Africa.
l\Ir. GROSSKOPF:Now, the legend at the bottom-what do you find
there?
Mr. RAUTENBACH:That the varions countries are mentioned in
alphabetical order, beginning with Algeria, Angola, Basutoland, Bechu
analand, Burundi, Cameroon ...
Mr. GROSSKOPFI: do not think you need rea<l them all.
Mr. RAUTENBACHT :o Zambia, including South Africa-the Republic
of South Africa.
Mr. GROSSKOPFA : nd in respect of each country, what information is
given?
Mr. RAUTENBACHP :opulation and studcnts in the United States.
Mr. GROSSKOPFS :o you look at South Africa-what is the population
figure given?
Mr. RAUTENBACHS:outh Africa, Republic of, 1910 (I don't know what
that means), population 16,640,000; students in the United States 390.
Mr. GROSSKOPFN : ow, dealing first with the population figure, to your
knowledge does that include all groups?
Mr. RAUTENBACHY : es, not only from what is before me, but from
what I know of people of varions groups being there.
l\Ir. GRossKOPF:Looking at South West Africa, what is the population
figure given there?
l\Ir. RAuTENBACHP : opulation 544,000; students in the United Sta6.s
Mr. GROSSKOP:F . Now, from your knowledge, the population figure
given, does that include \Vhites?
Mr. RAUTENBACHY : es, according to Professor Wellington's article I
read in Optima, it includes Whites.
Mr. GRoSSKOPF:This morning, you referred to a certain passage at
page 145 of that pamphlet. Have you had a look at that passage again?
Mr. RAuTENBACHY : es, I have had a look at this passage here.
Mr. GROSSKOPFD : oes that deal at all with the question of whether the
number of students in the United States from South Africa and South
West Africa are White or non-White?
Mr. RAUTENBACHA :s far as I can make out, it has no bearing on that_
l\fr. GRoSSKOPF:Now that was a passage, l\fr. Gross said, by a Mr.
Hummell of the State Department. Will you look at page 152 of that
same publication, where l\Ir. Hummell was asked a question, or a number
of questions? Is there anything on that page which indicates to you
whether the South African students in the United States were all non
White?
Mr. RAuTENBACH:And here Mr. Fraser asked the following: "You SOUTHWESTAFRICA
454
mentioned earlier we are teaching, or we had here students from South
Africa. That is separate from the refugee programme." Mr. Hummel said:
"The students from South Africa who were brought here under our
programme are White South African students, chosen and brought to
this country with the concurrence and with the participation of the
South African Government, Mr. Fraser."
Mr. GROSSKOPF: I do not think you need to continue· any further,
Professor.
Mr. RAUTENBACHA :lthough it is possible to bring non-Europeans from
South Africa under thîs programme, etc., ...
Mr. GRossKOPF:As regards the comment you made this morning that,
as far as you read this pamphlet, it refers both to non-White and White
students. Do you have anything further to add to that?
Mr. RAuTENBACH:No, nothing has so far corne forward which has
made me change my rnind, namely that it is doubtful whether the
situation skctched some two days ago here to me is not subject to very
serious doubt.
Mr. GROSSKOPF:Now, Professor, it was suggested to you that the
presence of South African students in the United States was an indication
of lack of facilities or lack of quality of facilities in South Africa itself.
Will you look attabler of that document, please? What does that table
indicate?
Mr. RAUTENBACHA : frican students shown in the home countries: 6;
year the study in the United States began; financial support; acadernic
status.
Mr. GROSSKOPFW : ill you tell the Court, are there any students from
Liberia rnentioned in that table?
The PRESIDENT:What is the relevance of the question you are putting
to the witness, whether there are students from Liberia, Mr. Grosskopf?
Mr. GROSSKOPFM : r. President, I am really getting to the point whether
any inference can be drawn from these figures?
The PRESIDENT:Any inference?
Mr. GROSSKOPFA : s to the quality of facilities available-thatis the
point to which Iam directing this re-examination. '
Mr. RAuTENBACHT : he numbers given here-the total students from
Liberia is 315.
Mr. GRossKOPF:And, Professor, also of most other countries in Africa?
Mr. RAUTENBACHY : es, there seems to be quite a number of them.
Mr. GROSSKOPF:Do you consider that any inference can be drawn
from those figures as to the nature of the educational facilities available?
The PRESIDENT:Mr. Gross.
Mr. GRoss: This has to be pursued. I would like to know, if the Court
pleases,to what implications arising out of what question or statement I
made is counsel referring. He has cited none, but has characterized my
question or statement, as the case may be. Secondly, I do not know what
kind of inference he is talking about, Sir. Inference as to what?
The PRESIDENT:Mr. Grosskopf, you are only entitled tore-examine in
relation to a particular matter which was raised in the cross-examination
of Mr. Gross. Where was anything said by him which would make the
subject-matter of your question one for re-examination?
Mr. GROSSKOPF :f I may refer you, Mr. President, to the record at
page 367, supra, where the suggestion is made to the witness that the
presence of a certain number of students from South Africa would indi- WITNESSES AND EXPERTS
455
cate a desire on the part of these students to study els~where than in
South Africa, with the implication that there was something deficient or
lacking in the facilities available in their own country, and the only point
I wish to come to is whether such inference would be a justifiable one.
The PRESIDENT: In other words, an inference has got to be drawn,.
so you say, from something Mr. Gross said, that these men had sought
education in America because of a deficiency in education in South West
Africa or the Republic of South Africa, is that the point?
Mr. GROSSKOPFY : es, Sir.
The PRESIDENT:Mr. Gross.
Mr. GRoss: Mr. President, merely asking a question, it seems to me,
with respect, does not justify the assumption that an inference is sought
to be drawn; l asked a question for an opinion and an answer was given,
Sir. I donot believe, Sir, with respect, that it is appropriate for counsel
to suggest that a question I ask is intended to carry an inference. It is
an attempt to elicit information for the benefit of the Court, Sir.
The PRESIDENT:Mr. Gross, I think it is important from time to time
to determine whether questions are put for the J?Urposeof asking the
Court subsequently to draw an inference. Ifyou mdicate to the Court
that you do not propose to ask the Court to draw any such inference, then
I think the matter concludes there, but do you or do you not intend to
ask the Court to draw the inference that because these students are
found in America, the inference is or may be that it is due to deficiency
of educational opportunities in the Territory or in the Republic?
Mr. GROSS:At page 367 of the verbatim record under discussion-!
believe, Sir, this is with respect to your question-! asked the witness:
"This, you will agree, would you not, indicates a desire on the part of a
certain number of non-White students from South Africa to study
abroad?" I was referring, Sir, toa certain nurnber, unspecified. Subse
quently, on page 369, I referred to the "six students, non-White or
African students from South West Africa", and asked:
"Would that fact have any significance in your mind with respect
to the choice of institution available in South Africa as distinguished
from abroad?"
The only inference that I would respectfully request the Court to draw
would be the validity and the credibility and the weight to be attached
to the response given by the witness, and anything else in the 1ecord or
in permissible comment relevant thereto.
The PRESIDENT:If that is so, Mr. Grosskopf, it does not seem tome
that your re-exarnination is relevant.
Mr. GROSSKOPFA : s you please, Mr. President.
The PRESIDENT:ls that the final question?
.Mr.GROSSKOPFT :hat concludes my re-examination, 1\frPresident.
The PRESIDENT:\Vell, Professor, you will be released, you will be
glad no doubt to hear,'from further attendance, unless you are informed
to the contrary during the course of the day; so you are released from
further attendance. Mr. Grosskopf?
Mr. GROSSKOPFM : r. President, the next witness will be Mr. Dahlmann
who, with the Court's leave, will be introduccd and led by my learned
friend Mr. Muller.
The PRESIDENT:Mr. Muller, I think we mayas well call the witness
now, and have him make whatever declarations you desire him to make. SOUTHWESTAFRICA
Mr. MULLER:As the Court pleases. Mr. President, before the declara
tion is made, may I indicate that the evidence of Mr. Dahlmann concerns
the issues raised under Applicants' Submissions Nos. 3 and 4. We have
notîfied the Applicants that the points to which his evidence will be
directed will be the following: the nature, programmes and activities of,
and the extent of support for, non-White political parties in South West
Africa, the relations between such parties, and the circumstances and
conditions in South West Africa which materially influence political
developments amongst the non-White inhabitants of the Territory. May
I explain, Mr. President, the particular respects in which this evidence is
regarded as relevant by the Respondent are basically on two main as
pects? The first is that the witness will indicate the support which there
is for political parties amongst the indigenous people of South West
Africa, whether that support is on a territorial basis, or whether the
parties are divided on ethnie lines. Secondly the witness will indicate the
connection between some of these parties and certain persons at the
United Nations whom we have described in the pleadings already as a
body of professional petitioners. This is relevant, Mr. President, when we
corne to deal later on in argument with the so-called law-creating
processe5 or norm-creating processes referred to by the Applicants, that
is, resolutions and reports of organs and agents in the United Nations.
\Ve will then submit and argue that to a very great extent the rcsolutions
as well as the reports are based upon or largely influenced by statements
made by this body of political petitioners. We have indicated already our
treatment of this matter in later argument, and I refer the Court in this
regard to the record, X, at page 77 and at pages 83 and 84.
The PRES IDEST: Mr. Gross.
Mr. GROSS:The letter to which reference has been made by counsel,
dated 2 October 1965, is as read by him and as reaffirmed in the record.
Sir, the points to which the evidence of the witness is intended to be
directed do not include any reference whatever to connection between
petitioners and United Nations processes, or anything with reference to
law-creating processes (I think the phrase used by counsel) in respect of
the Applicants' submissions. The question raised by the Applicants and
which, Sir, accounts for this intervention, is doubt concerning the ap
propriatc procedure for the reservation of rights in connection with the
field of expertise of this witness, the relevance of the points to which coun
sel now asserts that his evidence, or certain of it, will be directed, and
the Applicants' position that the field to which reference bas now been
made by counsel, that is to say, specifically with respect to individual
persons or their relationship with parties or with each other, would in
itself be a question upon which factual statements as a witness rather
than as an expert would be pertinent. I am talking now about whether
references are proposed to be made for good or ill, for purposes of praise
or condemnation-that is irrelevant to my point that with respect to the
protection of individuals from opinion testimony concerning their charac
ter or their relationship, this would be an area as to which the Applicants
would feel it their duty to reserve full righto object to testimony being
p1aced in the record except on a factual basis with respect to the informa
tion and knowledge of the witness rather than to any so-called expert
opinion derived from the publication of a newspaper, Sir.
The PRESIDENT:I appreciate that, Mr. Gross. I think it might be
better if the witness makes the declaration, and then we will receive bis WITNESSES ANDEXPERTS
457
qualifications, and then the objection might be taken in relation to a
question asked the witness which would put in issue the matters which
you have addressed the Court upon.
Mr. GROSS:Thank you, Mr. President. With your indulgence I merely
wish to assure the reservation of the position, and I understand, Sir, your
point and will follow it.
The PRESIDENT: I understand. Proceed, Mr. Muller.
Mr. MULLER:May I also indicate that the witness is German-speaking;
he does speak English, but is not very fluent in that language, and if he
goes rather slowly in answering questions, will the Court please bear
with him? May I ask that the witness make both the declarations which
are provided forin the Statu te?
The PRESIDENT:Let the declarations be made.
Mr. DAHLMANNI:n my capacity as a witness I solemnly declare upon
my honour and conscience that I will speak the truth, the whole truth,
and nothing but the truth. In my capacity as an expert I solemnly
declare upon my honour and conscience that my statement will be in
accordance with my sincere belief. '
Mr. MULLER:Mr. Dahlmann, your full name is Kurt Dahlmann, is that
correct?
Mr. DAHLMANNT :hat is correct.
Mr. MULLER:What is your occupation?
Mr. DAHLMANNI: am the Editor of the Allgcmeine Zeitung in Wind-
hoek.
Mr. MULLER:Is that a newspaper circulating in South West Africa?
Mr. DAHLMAN:-1 T:hat is a daily newspaper in South West Africa.
The PRESIDENT:Is that published in German?
Mr. DAHLMANNP : ublished in German.
Mr. MULLER:Since when have you been the Editor of this paper?
Mr. DAHLMANNI: am the Editor of this paper since 1960.
Mr. MULLER:How long have you been in South West Africa?
Mr. DAHLMANNS :ince 1958.
Mr. MULLER:Did you hold another position with this particular paper
before you became Editor?
Mr. DAHLMANNI: was the whole time with this paper.
Mr. MULLER:What are your academic qualifications?
Mr. DAHLMANN : have a law degree at Kiel University.
Mr. MULLER:Were you a joumalist before you went to South West
Africa in 1958?
Mr. DAHLMANNY : es, that is correct.
Mr. MULLER:Where?
Mr. DAHLMANNA : t Kiel, at the Kieler Nachrichten.
Mr. MULLER:What is your special field of study relative to your
occupation as the editor of a newspaper?
Mr. DAHLMANNP :olitics in general, and African trends and movements
of policy,in particular of course in South West Africa.
Mr. MULLER:Now can you tell the Court, briefly, how you gain your
knowledge of the political activities in the Territory?
Mr. DAHLMANNT : he political leaders of the various organizations use
the newspaper the Allgemeine Zeitung as their forum for propagating
their ideas. They transmit information in connection with their activities
tome personally, they corne to my office or they corne to my home; then
I travel extensively throughout the whole Territory by car and by air,458 SOUTH WEST AFRlCA
and I have discussions with the leaders of the political parties and also
with the tribal authorities. I introduce the political leaders in South
West Africa to visitors from abroad, and I arrange meetings for the
politically interested visitors from abroad with the non-White politicians
in South West Africa. I attend the meetings of the different political
organizations whenever it is possible, and I study the publications of
these organizations, for example Freedom, which is published for the
South West African National Union in Cairo, Solidarity, published for
the South West Africa People's Organization in Dar-es-Salaam, South
West A/rica Today, Namib Today, and also irregular publications in
South West Africa, and circulars. I must also mention that I get the
publications from the United Nations in which one finds many state
ments of the political leaders in South West Africa, and also statements
from the political leaders who are living abroad.
[Public hearing o/ 8 OctoberI965}
Mr. MULLER:Mr. Dahlmann, before the adjournment yesterday you
explained to the Court in what manner you gained knowledge of the
political activities of the non-White inhabitants of the Territory. Now,
will you tell the Court whether there are certain factors which influence
the existence of and support for political parties amongst the indigenous
population of the Territory?
Mr. DAHLMANNT : here are a number of factors, Mr. President. One
has tofind one's way between seemingly impossible contradictions, and
without keeping in mind certain basic facts and forces it is practically
impossible to understand the attitude, activities and antagonisms which
manifest themselves in the political sphere in South West Africa.
I would regard the following as the main factors and forces which
interact with or counteract against each other in the political field.
There is: ·
(1) The existence of the large number of different population groups.
(2) The nature of the traditional and historie political organization of
the groups and the degree of political interest and consciousness on
the part of the members of these groups.
(3) The measure of political group identification, finding its expression
in group nationalism.
(4) The factor of Black nationalism or Pan-Africanism.
(5) The measure of econornic well-being in the Territory.
Mr. MULLER:Would you briefly explain to the Court how these factors
affect the political situation in the Territory?
Mr. DAHLMANNT : he factors themselves are not unduly complicated
but the interaction of these factors and others makes the situation in
South West Airica rather confusing, the situation in the field of the
political parties. I think, Mr. President, it is common knowledge that
there are large nurnbers of different population groups in South West
Africa, which differ widely from each other as regards culture, social
organization, language, general way of life and level of development.
I think itis also common knowledge that the vast majority of the non
Whites favour their traditional and historie political organization, and
they are totally unfamiliar and far removed from the system of par!ia- WITNESSES ANDEXPERTS 459
mentary democracy known in the western world. Traditionally, the
members of the different groups follow the lead of their chief and head
men. The level of real political interest is very low.
The third factor I mentioned, the group loyalty, is a very important
one. The loyalty of the vast majority centres on their individual popula
tion groups. There is not only a tribal loyalty. Sorne of these population
groups consist of a plurality of tribesnd they can be regarded rather as
a nation. There is a desire to active self-determination within the frame
work of such groups.
Another factor is, as I mentioned, the Black nationalism in Africa.
That is, of course, a force behind certain political movements in South
West Africa. The central idea is, Africa for the Africans. The leaders of
certain political organizations in South West Africa who are living abroad
are trying to import these ideas to South West Africa.
Another important factor is the economic wcll-being or economic
stress. Economie stress leads to political dissatisfaction with the govern
ment in power, and economic well-being leads to satisfaction with the
government, and in South West Africa we experience prolonged periods
of drought-they are not unusual-and dunng these periods the dis
satisfactionwith the govemment might increase; and during these times
people have an open ear for politicians who promise them a better and
easier life, or even golden days.
Those are certain explanations of the five factors which I have men
tioned.
Mr. MULLER;When you arrived in South West Africa in 1958, Mr.
Dahlmann, were there any non-White political parties existing in the
Terri tory?
Mr. DAHLMANNI:n 1958, Mr. President, there was no real political
party in South West Africain existence. The political matters were dealt
with and discussed by the traditional tribal authorities. Only in 1959
were the first political parties organized.
Mr.MULLER:Will you briefly indicate to the Court under what circum
stances the :first non-White political parties were formed in South West
Africa?
Mr. DAHLMANNT : he first political parties were formed mainly as a
result of instigationby certain petitioners at the United Nations. One of
the prime movers was Eric William Getzen, also known as Mburumba
Kerina. He left South West Africain 1953 under bis name Eric William
Getzen, and be bas appeared since 1956 regularly as a petitioner before
the United Nations.
Kerina felt that in order to strengthen bis ...
The PRESIDENT:Mr. Gross.
Mr. GRoss: Mr. President, I respectfully objcct to the testimony con
cerning what Mr. Kerina felt unless, Sir, there is some basis laid for
persona! knowledge, and I would respectfully request the right to file a
general objection to any similar comment concerning the state of mind
of any ind.ividual, Sir.
The PRESIDENT:Mr. Muller.
Mr. .MULLER:Mr. President, the witness will within a few minutes
indicate to the Court how he cornes to know of the part played by
Mr. Kerina in the formation of these parties. He will refer to documents
written by Mr. Kerina, documents which are public knowledge and docu
ments which have been admitted by the Applicants. SOUTHWESTAFRICA
The PRESIDENT:Yes, Mr. Gross.
Mr. GROSS: Mr. President, I believe, Sir, that this would be the
necessary foundation for the opinion evidence which is proferred, and I
would respectfully request that if there is information within the know
ledge of the witness, that the witness be requested to state the basis of
the information as well as the information itself.
The PRESIDENT'W . ell, Il.fr.Gross, sometimes is not easy to establish
the knowledge of the witness in relation to each factual position before
hand in the presentation of the case. If counsel says that he will connect
it up then, normally, the Court accepts the statement that he will do so.
But I will suggest to Mr. Muller that ifhe can establish the factual basis
first beforethe witness seeks to depose, that would be perhaps the better
course to pursue. Mr. Muller.
Mr. MULLER:As the ComLpleases: I wi11do so.
J\fr.GROSS:Thaiik you, J\irPresident.
J\fr.MULLER:Mr. Dahlmann, you have indicated that the formation
of the first non-White political party was brought about by instigations
from people in America, and you mentioned the name Kerina. How do
you corne to know of the facts stated by you?
Mr. DAHLMANNM : r. President, that came out during the sitting of
the Commission of Inquiry into the occurrences in the Windhoek location
on the night of 10-u December 1959. I was present at that Inquiry. A
number of letters written by Kerina and other pctitioners at the United
Nations to their associates in South West Africa were handed in as ex
hibits. The letters were read and the contents made public. The letters
were referred to by the Chairman of the Commission of Inquiry, J\fr.
Justice Hall, in his report. Then again part of the letters are also quoted
in the report.
The PRESIDENT:l\fr. Gross.
Mr. GROSS:Mr. President, the letters in question are indeed in the
record. They are, among other things, contained in a document which
has been filed by the Applicants, the 1960 Report of the Committee on
South West A/rica. The Applicants would respectfully request the
honourable President to establish, or permit the Applicants to establish,
whether the Respondent has personal knowledge of the letters, the actual
source, whether wrüten by Kerina or written by somebody else, the cir
cumstances under which they came into the bands of the Commission of
Inquiry, and any other relevant circumstances, rather than having the
witness read into the record or refer to what is already in the documenta
tion, that is the Commission of Inquiry report which contains reference
to certain letters purportedly written by Mr. Kerina, who himself was
not present, Sir.
The PRESIDENT:Mr. Gross, there is a large amount of evidence which
has been introduced into this case which is evidence the reliability of
which depends upon circumstances. Normally, of course, in a municipal
court the objection which you take would be well-founded. This Court is
not bound by the strict rules of evidence applicable in municipal courts
and if the ev1dence established by the witness does not sufficiently convey
to the Court a moral certainty that the evidence is reliable in point of
fact, then the Court, of course, deals with it accordingly when it cornes to
its deliberations.
I think the better course is to note your objection and for Mr. Muller
to proceed, and then the Court will determine later on, if necessary, on WITNESSES AND EXPERTS
further objection; whether the witness is competent to speak to the facts
to which he deposes.
Mr. GRoss: Yes, Sir. Thank you, Mr. President.
Mr. MULLER:May I, at this stage, explain that the witness has copies
of these letters, and he has studied them. He wîll indicate to the Court
how certain instructions in those letters were carried out. I think that,
with respect, Mr. President, the witness will be entitled to say what the
instructions were in the letters which are before the Court and have been
admitted, for the purpose of indicating how those instructions were
carried out, or otherwise. With respect Mr. President, I could indicate
to the witness what the instructions in those letters were because they
have been admitted, and the witness could then reply.
The PRESIDENT: l\frMuller, you must take your own course. At the
moment, there is no limitation placcd upon your right ta put your ques
tion to the witness. I have indicated to Mr. Gross, the approach that is
made by this Court generally to evidence and, if you fail to connect it up,
then it will mean that the value of the witness's evidence may fall to nil
or fall to little.
Mr. MULLER:I just thought, Mr. President, that it was my duty to
explain to the Court how I am going to proceed from now.
The PRESIDENT:I understand.
Mr. MuLLER:.Mr. Dahlmann, you have in your possession copies of
the letters to which you have referred, have you not, Sir?
Mr. DAHLMANNY ; es, that is correct, Mr. President.
Mr. MULLER:Now, will you indicate whether instructions were con
tained in the letters with regard to the formation of the spccifi.cpolitical
parties in South West Africa?
Mr. DAHLMANNT :here were instructfons given mainly by Kerina and
also by another petitioner, but mainly by Kerina. Kerina urged Toivo
to form the Ovamboland People's Congress at the beginning of 1959. On
14 February 1959, he wrote a letter to Toivo in Ovamboland. Toivo is an
Ovambo. 1 know him personally. He is a shop-owner and is living in the
vicinity of Ondangua. On 14 February 1959, Kerina wrote to Toivo:
"Please Toiva, do this, organize an OVAMBOLAND PEOPLE'S
CONGRESS, make all the Chiefs of varions tribes the Vice-Presi
dents. In other words make them First Vice-President, Second Vice
President, Third Vice-President, etc., etc., etc., thiswillbreak the
inter-tribal rivalry that may corne about."
Mr. GROSS: Mr. President, the only reference to a letter which bas
been made (this is simply for the information of the Court, in principle,
witness may be able to supply some other basis) in the Commission of
Enquiry report, is at page 61 of the 1960 Report of the Committee on South
West A/rica, General Assembly Document, 15th Session, Supplement
No. 12, A/4464. The text of the letter, from which, I bclieve, the witness
is reading, if I understood him correctly, does not contain the language
which he has just quoted, which is apparently in a portion that is in
dicated here by three dots. It would be appreciated, Sir, if the President
would be gracious enough to request the witness or counsel to indicate
the source of the text which bas been read, since it is not available to the
counsel. ·
The PRESIDENT:Mr. Muller, this is one of the documents to which you
referred on 4 October, is itnot? SOUTHWESTAFRICA
Mr. MULLER:Yes.
The PRESIDENT:At the moment, I haven't that document and I do
not think any Member of the Court has that document.
Mr. MULLER:I can assist the Court, Mr. President ...
The PRESIDENT: For the purpose of understanding the objections
raised,I would be very glad if a document could be handed to me.
Mr. MULLER:These documents are before the Court and they are
referred to, and quotations given, in the Counter-Memorial (IV). IfI
may assist the Court with regard to this particular letter, it is referred to
in the Counter-1\Iemorial.IV, at page 40.
The PRESIDENT:Thank you very much.
Mr. GROSS:Mr. President, I thank counsel; this is the source that I had
overlooked.
The PRESIDENT:Would you proceed, Mr. Dahlmann, please?
Mr. DAHLMANNM : r. President, I continue to quote from this Jetter:
·"Be the General-Secretary of the Congress. Be very shrewd. Work
with the nominated Chiefs very carefully. Pretend as if you are with
them. But also take into serious account the other promising young
people and Elders and please make Father Hamtumbangela the
President of the Congress. The first task of the Congress should be a
petition to the Prime Minister of South Africa with copies to the
Windhoek Advertiser, New Age, United Nations, Cape Times, and
a copy tome, the American Committee on Africa, Africa Weekly,
Rev. M. Scott, etc. This petition should ask four things. Of course a
copy should be sent to the Chief Native Commissioner. These four
things should be as follows: Ask for
(a) Direct African and Coloured People representation in the
Government of South West Africa.
(b) Introduction of universal suffrage in South West Africa irrespec
tive of Colour, Creed, Religion and National Origin.
(c) Immediate liquidation of South West African Representation
in the Parliament of South Africa.
(d) Immcdiate placing of South West Africa under the United
Nations Trusteeship System.
Toivo, I urge you not to accept part of these demands. Tell the
Prime Minister of South Africa that you want all four to be granted
and no compromise whatever."
Mr. MunER: Now, Mr. Dahlmann, you can stop there. Will you tell
the Court whether the Organization referred to in that letter was, in fact,
formed and, if so, when? .
Mr. DAHLMANN:This Organization was formed in April r959 under
the namc "Ovamboland People's Organization".
Mr. MULLER:What was the Organization referred to by abbreviations?
Mr. DAHLMANN;OPO.
Mr. MULLER:Who were the principal figures in this Organization?
Mr. DAHLMANNS :am Nujoma, an Ovambo living in Windhoek, became
President, and he still is the President of this Organization, although this
Organization exists now under a different name. Jacob Kuhangua is also
a very prominent leader within this Organization, who is living abroad;
Herman Toivo, also a prominent politician with this Organization living
in Ovamboland, and Mburumba Kerina was the Chairman of this
Organization until r962. WITNESSES AND EXPERTS
Mr. MULLER:Did Kerina, in the letters which you have with you,
indicate what his objectives were in having an organization of this nature
formed?
Mr. DAHLMANNM : r. President, from bis letters it is clear that Kerina
wanted African rule for South West Africa, no multi-racialism and no
partnership.
Mr. GROSS:This expression of opinion is entirely unfounded. The letter
read by the witness refers to introduction of universal suffrage in South
West Africa, irrespective of colour, creed, religion and national origin.
This is a purely spontaneous, unsupported allegation made by the witness
and it would clearly be beyond the range of any expertise.
Mr. MULLER:My question to the witness was whether in the letters-1
did not refer to the particular one. I was going to deal, as I have indi
cated, with another lctter in which this will came out. If I may ask the
witness-1 was going to ask him to indicate the letter in which a particu
lar passage indicates what he has said. now.
The PRESIDEN'f:Mr. Muller, ifyou undertakc to the.Court to connect
it up with a letter on each occasion which supports the statement made
by the witness, I think you may proceed.
Mr. MULLER:As the Court pleases. Having indicated the objectives of
Kerina, wtll you state in which particular letter you find any evidence
toit?
Mr. DAHLMANNO : n 4 March 1959.
The PRESIDENT:Will you look again?
Mr. DAHLMANNl:t is 5 March. 1 am sorry.
The PRESIDENT:If you could, as you proceecl, give a reference to the
Counter-Memorial, it would ...
Mr. MULLER:I can do this straightaway. I refer, at this moment, to
the Counter-Memorial, IV, at page 39. :The letter is quoted in the first
half of the page.
Mr. DAHLMANN:On 5 March 1959, Kerina wrote to Muundjwa.
Muundjwa is an Herero, also a prominent politidan, living in Windhoek:
"Let the stupid Africans and Coloured agitators such as Kloppers,
etc.,etc. encouraged by deceptive White settlers stop preaching
multi-racialor partnership in South West Africa at the expense of
the African people. We have had enough of these nonsense. Our
position should be made clear to the \Vhites. We want South West
Africa back no more no Jess."
Mr. MULLER:Did Kerina, in any of the letters, indicate what should
be clone with rega_rdto petitions to the United Nations?
Mr. DAHLMANNM : r. President, in some of his letters, Kerina urged
for a combined action to strengthen his position at the United Nations.
He urged his associates in South West Africa to send petitions to the
United Nations and he indicated that he was prepared to draft them for
them.
Mr. Mm.LER: Will you refer to letters beforc you in which such in
structions or suggestions were made; I think the first letter is one dated
14 February 1959? I may indicate to the Court that that is referred to,
and portions quoted from, in the Counter-Memorial, IV, page 40.
Mr. DAHLMANNT :here is a letter written by Kerina to Toivo:
"Please remember Toivo, I will play this up here at the U.N.O.
But to make it effective, the Congress [that means the Ovamboland SOUTH WEST AFRICA
People's Congress] should petition the President of the United States
Government and the Prime Minister of Russia for immediate military
action against South Africa collectively or individually to enforce
the decisions and authority of the United Nations. Boy this will
make the British to even force South Africa at the U.N.O. to place
South West Africa under the Trusteeship because they are afraid of
Russia.But if you want me to draft this petitions please inform me,
because they have to be legal and specific and also non-committal on
our part. I can consult with some of my legal friends here. A copy
shall be sent to the U.N.O. and other sources for a world-wide
publicity." [And in the sarne letter Kerina says to ToivoJ "Listen
the two petitions to the big boys should be timed. They should reach
them just a month before the U.N.O. Assembly starts so that the
matter could become a world wide one."
Mr. illULLER:Are similar or like instructions or suggestions made in
other letters? .
Mr. DAHLMANNY : es. On 21 April 1959 Kerina wrote to Toivo ...
Mr. MULLER:May I indicate there, Mr. President, that the letter is
quoted and extracts cited in the same volume of the Counter-Memorial,
at page 41?
Mr. DAHLMANN":I am working hard on the z Big Boys petitions. I am
sure we'llget them through ... "Andin another letter written by Kerina
to Kapuuo, Kerina writes .. .
Mr. MULLER:On what date?
Mr. DAHLMANN3:0 April 1959.
Mr. MULLER:Mr. President, that letter is referred to and portions
quoted in the same volume of the Counter-Memorial, at pages 41-42.
Mr. DAHLMANNM : ay I explain that Mr. Kapuuo is the right band of
Hosea Kutako? Hosea Kutako, whatever bis official title is, can be called
the leader of the Herero nation. Mr. Kapuuo, a former teacher and now
a shop owner in Windhoek was and is, the right hand of Hosea Kutako,
and he calls himself Chief Designate. On 30 April 1959 Kerina wrote to
Kapuuo "Mr. Toivo requested me to draft few petitions for the Ovambo
land People's Congress", and later in this letter:
"I am arranging for Kozongwizi and Ito meet with (no va Russa)
privately to see as to whether they could help us. But, please if we
take a stand in that direction here, stand firm ail of you at home and
support us. Your position should be very simple e.g.
'Your petitioners to the UNO are the only one authorized to take
measures that would help to solve the question and that you have
nothing to say publicly until you hear from them'."
On 16 September 1959 Kerina wrote to Sam Nujoma ...
Mr. MULLER:Before you read, may Iindicate to the Court-the same
volume of the Counter-Memorial, at page 42.
Mr. DAHLMANN S:am Nujoma was at that time, in September 1959, the
President of the Ovamboland People's Organization. Kerina in his letter:
"Please send cable to United Nations expressing your opinions,
not air letters. Address them to the Chairman, Fourth Committee,
United Nations, New York."
And on 9 December 1959 Kerina writes again to Sam Nujoma ... WITNESSES ANDEXPERTS
Mr. MULLER:Before you read I will indicate to the Court the letter is
referred to and extracts quoted in the Counter-Memorial, IV, page 43.
Mr. DAHLMANN:
"Severa! hundred petitions should flood the U.N. immediately!!!
We leave the rest to you-please also inform the people at Walvis
Bay to follow this same course. As many petitions as possible should
be despatched to U.N. as soon as possible ... "
Mr. MULLER:Mr. Dahlmann, I shall deal later with the nature of the
petitions which were in fact sent, but will you at this stage indicate
whether Kerina and his associates at the United Nations also urged
further or other action to be taken by people in South West Africa?
Mr. DAHLMANNI :n a number of other letters the petitioners at the
United Nations urged for further action; for example, public demon
strations should be organized and the South African Government should
be defied.
Mr. MULLER:Will you refer to the letters which you have, and indicate
to the Court where you find what you have just told the Court in passages
in the letters?
Mr. DAHLMANNI : have a letter before me written by Kerina to Mr.
Sam Nujoma dated 25 Scptember 1959.
Mr. Mm.LER: Mr. President, that letter is referred to in the same
volume of the Counter-Memorial, at page 42.
Mr. DAHLMANN" :Mr. Nujoma, continue to attack the Government
openly in public. Do not stop." And in the same letter: "Also try to
organize Mass Public Meetings every Saturday."
Mr. MULLER:Is any further action suggested?
Mr. DAHLMANN:There are also further actions suggested. On I4
February 1959 Kerina writes to Toivo in Ovamboland:
"Just teU our peop1e in Ovamboland tokeep together and not to
say anything. If those nominated Chiefs say a word tell our people
to burn their places at night secretly of course."
Mr. MULLER:Mr. President, that letter is in the same volume of the
Counter-Memorial, at IV, pages 40-41.
Mr. DAHLMANNI:n another letter dated 21 April 1959 Kerina writes
to Toivo ...
Mr. MULLER:Mr. President, may I indicate before the witness reads,
in the same volume of the Counter-Memorial, at IV, page 4r.
Mr. DAHLMANN":Do not talk·in public, talk behind the scenes. Be
friend thosenominated Chiefs, pretend as if you like them." Now I have
another letter written by Jariretundu Kozonguizi. Kozonguizi is the
President of the South West Africa National Union. On 14 September
1959 Kozonguizi writes to Sam Nujoma ...
Mr. MULLER:Mr. President, may I indicate, the same volume of the
Counter-Memorial, at IV, page 44.
Mr. DAHLMANN:
"Please try to organize people at home:
(r) Against the Removal to the Location;
(2) Hold a big S.W.A. Day to coincide with our petitioning the
U. Nations."
And again Kerina, on 25 September 1959, writes to Nujoma .. SOUTH WEST AFRICA
Mr. MULLER:Mr. President, that letter is referred to and portions
quoted in the same volume of the Counter-Memorial, IV, at page 42.
Mr. DAHLMANN:
"Refuse fo move to the new location. Tell the people not to move.
I will send you a statement which· you should read to them and
translate it into Ovambo, Herero, Nama, etc."
And on 17 October 1959 Kerina writes_againto Sam Nujoma ...
Mr. MULLER:Mr. President, at page 43.
l\Ir. DAHUIAN:"Do not move from the to·cation. Refuse completely."
Mr. MULLER:Mr. Dahlmann, can you tell the Court whether to your
knowledge trouble eventually did arise with regard to the proposed
removal from the old location at Windhoek to the Katutura Township?
Mr. DAHLMANNY : es, trouble did arise. The inhabitants of the location
in Windhoek created a disturbance which gave rise to a riot onthe night
of 10-n December 1959. ·
Mr. MULLER:As a result of the riots, was a commission of enquiry
appointed?
Mr. DAHLMANNY : es, that is correct.
Mr. MULLER:Can you tell the Court what the finding of the commission
was with regard to the riots?
Mr. DAHLMANNI:have got the report here. ln paragraph 26 the report
says:
'_'The,letters from which quotations are set out in paragraph 24
form only a small part of the letters and documents which came froni
New York to South West Africa, and many of the exhibits are in the
same strain. It is clear that the occurrences in the location on the
night of 10-n December must be viewed in the light of these letters.
Kerina, or Getzen, by which name he is better known in South
Africa; had always been closely connected with the Reverend
Michael Scott and the other people and societies whose aim and
object it is to ensure that the control over South West Africa should
be taken out of the Union's bands. It would appear that Kerina is
the mouth-piece of these people. lt appears from the letters to Toivo
that it was his advice which led to the formation of the 0.P.O. [that
is, the Ovamboland People's Organization]. He repeatedly incited
the offi.ce-bearers of both these political organizations ·to defy the
Union Government and to oppose the removal of _the Windhoek
location. He suggesfed to the O.P.O. that it should petition Russia
and America to attack the Union, and by force of arms to make it
submit to United Nations demands. From September 1959 he
continually urged the leaders of the Native population in South
West Africa to oppose in every possible way any attempt to remove
people from the old location to Katutura."
And in paragraph 27:
"To my mind these letters prove that the opposition to the
removal from the existing location to the new one was organized by
the Hereros in Windhoek at the instigation of their protagonists in
New York. The passages which I have quoted from these letters
urged repeatedly that opposition to the removal was to be made a
cardinal point.inthe campaign of resistance which was to be set on
foot.The letters establish too that the opposition to the location WITNESSES ANDEXPERTS
removal must be maintained with the object of strengthening the
hands of those who were endeavouring to achieve their political aims
through the intervention of the United Nations.Itwas for this latter
purpose that the Administration of South West Africa was to be
forced to use violenceand to shed African blood."
Mr. MULLER:Mr. Dahlmann, toget back to the,Ovamboland People's
Organization, the OPO, as you have called it, what was the membership
of that organization at the time, that is, in 1959?
Mr. DAHLMANNI:nitially this organization enjoyed very limited sup
port. This organization was almost unknown at that time in Ovambo
land. I_twas created in Windhoek and spread to Walvis Bay.
Mr. MULLER:Does this party or organization still exist?
Mr. DAHLMANNN : o, it does not exist any more under that name. The
name has been changed to South West Africa People's Organization.
Mr. MULLER:How did it corne about that the name of the organization
was changed?
Mr. DAHLMANNA : gain, Kerina was well acquainted with the situation
in South West Africa-he could not expect that, to give an example, the
Hereros would support an Ovamboland people's congress or an Ovam
boland people's organization. He realized that a number of organizations
had to be formed for the different population groups. On the other hand,
he was obviously interested not to give the impression abroad that these
organizations were formed on a tribal basis.
Mr. GROSS:I wonder if the witness could give the source of the opinion
concerning Mr. Kerina's state of mind?
Mr. MULLER:I have already undertaken that the witness will give that
and he will proceed to do so immediately.
The PRESIDENT:Very well. Proceed Mr. Muller.
Mr. MULLER:Will you complete your answer Mr. Dahlmann, I do not
know whether you have completed it.
Mr. DAHLMANNN : o, Mr. President, not yet. He was obviously inter
ested not to give the impression abroad that these organizations were
formed on a tribal basis. He therefore urged associates in South _West
Africa: (r)to forma Herero party under the leadership of Hosea Kutako;
(2) that the name of the Ovamboland Peoples Organization should be
changed.
Mr. MULLER:Now will you indicate to the Court where you find that
in the letters which you have before you?
Mr. DAHL!llANNM : ay I refer to the letters concerned-itis again the
letter written by Kerina on 5 March 1959 to Muundjwa in Windhoek.
l\fr. MULLER:Mr. President, may I connect that with the Counter
Memorial, IV, page 39, it is to Mr. John Muundjwa in Windhoek:
Mr. DAHLMANN:
"John, please help to organize an African \National Congress in
South West Africa which should be represent of all the tribes of
the country. In order to break the tribalistic element that is coming
to South West Africa, first, make Chief Kutako the President, and
thcn the rest of the other Chiefs from other tribes should bccome:
First ·vice-President, Second Vice-President, Third Vice-President,
etc., etc."
Mr. GROSS:Mr. President.
The PRESIDENT:Yes, Mr. Gross. SOUTHWEST AFRICA
Mr. GROSS:I beg the Court's indulgence but I have tried to follow the
letter on page 39 of the Counter-Memorial and regret to say I do not
fmd the language just quoted. Did I misunderstand the page number?
The PRESIDENT: I expect the explanation is that the extract on page 39
is not the full letter but what is the position, Mr. Muller?
Mr. MULLER:That is correct, Mr. President.
The PRESIDENT:Of course, it does connect up with certain parts of it,
Mr. Gross.
Mr. GRoss: Yes Sir, it does. I just did not know ...
Mr. MULLER:The witness is quoting from the letter itself.
l\fr.GROSS:And that is in evidence is it, Mr. President?
Mr. MULLER:The whole letter has been handed in and the whole letter
has been admitted.
Mr. GROSS:Thank you, Sir.
Mr. MULLER:Would you proceed please, l\fr. Dahlmann.
l\fr. DAHLMANN:
"If we must have our freedom we must be strong and be well
organized, the Whites in South West Africa are in constant fear
because of what is happening in other parts of Africa. They know
that South West Africa is next ... Look at the Mau Mau today, they
are represented in the Government and soon they will govern their
own country." (IV, p. 39.)
Mr. MULLER:Have you any other letters in which the suggestion you
mentioned earlier, the question of changing the names of parties, is
mentioned?
Mr. DAHLMANNl:n regard to the Ovamboland People's Organization,
Kerina writes to Nujoma, President of the said Organization, on 16
September 1959.
Mr. MULLER:May I mention the same volume of the Counter-:Memo
rial, page42.
Mr. DAHLMANN:
"After careful and thoughtful consideration of our situation I
think it is advisable for you Mr. Nuyoma and your friends to think
about the possibility of turning your organization into a full fledge
national organization representing every body inthe whole terri tory.
I further suggestthat it would be to our advantage if you can change
the name of the Ovamboland People's Organisation to THE SOUTH
WEST AFRICAN NATIONAL CONGRESS. This can mean that we
who are representing you at the United Nations now have power behind
us. Itwas very good to start with a regional organization but now
your tactics should be geared to the achievement of something grea
ter for South West Africans. Other African states would support us
stronglyif we can have such a national organization. Please do inform
the United Nations if you change the name of the present organiza
tion to that of South West African National Congress, this is very
important for our position here. I am sending you under separate
cover a copy of a constitution for the Congress that I have proposed
and a manifeste to be distributed widcly if you approve of the idea."
And then Kerina writes to Toivo on 17 November 1959.
Mr. MULLER:At page 43, Mt. President.
Mr. DAHLMANN: WlTNESSES ANDEXPERTS
"Toivo, listen. I have been urging Mr. Nujoma to change the
name of the Ovamboland People's Organization into the South West
African National Congress. This will give the organization a national
character which can be of great use to our position here. I have also
drawn up a draft constitution for him for this purpose. He informed
me recently that this Congress will be formed next year. Would you
please get in touch with him and tell him that he should try to see
that you Toivo or Him be the president. Or one of you the President
and a Herero a Vice-President etc. You sec what I want to say is
that do not allow the OPO when it is changed into South West African
National Congress to be dominated by other groups. Be very carcful
about this very much. But please even if other groups do not want
to co-operate with the OPO to form the Congress just go ahead and
change the OPO to the new Congress. Please write or talk to Mr.
Nujoma about this and keep it very secret do not tell any one of this
idea it should just between you two." (IV, p. 43.)
l\Ir. MULLER:Now after these suggestions were made was the name of
the OPO changed?
Mr. DAHLMANN:Yes, Mr. President, that is correct. The name was
changed in June 1960.
Mr. MULLER:What is the new name of that organization?
Mr. DAHLMANNT :he new name is-South West Africa People's Orga-
nization.
Mr. MULLER: Is it very often refcrrcd to in an abbreviated form?
Mr. DAHLMANNS :WAPO.
Mr. MULLER:Now, did any other non-White organizations corne into
existence after these two that you have just referred to, or the one which
had its name changed?
Mr.DAHLMANNY : es, Mr. President. A large number of other organiza
tions were formed. SWAPO could not hope to attract wide support from
other population groups, it was an Ovambo organization. Group identifi
cation was and is strong in South West Africa and as was clear from the
last letters quoted, it was also the intention to keep the South West
Africa People's Organization under Ovambo contrai. Other parties were
therefore formed on a tribal basis to seek the support of the respective
non-White population groups. Later attempts to achieve unity led to the
creation of a number of further organizations.
Mr. MULLER:Will you, Mr. Dahlmann, mention the different political
organizations and tell the Court, when you mention the name, what the
abbreviation is of the party to which you refer? Just name them first
of all.
Mr. DAHUIANN:The following are the political organizations which
came into being, directly associated with or opposed to the campaign
against the Government: (r) Ovamboland People's Organization, OPO
(already mentioned); (2) South West Africa Peoples Organization,
SWAPO (already mentioned); (3)The South West Africa National Union,
SWANU; (4) the so-called Chiefs Council-theChiefs Council I must say
had existed before as the Council of Hosea Kutako but I think one must
mention this Council in this connection because it is a driving force on
the political field in South West Africa; (5) The South West Africa
United National Independencc Organization, SWAUNIO; (6) The
South West Africa Democratic Union, SWADU; (7) The Caprivi African
National Union, CANU; (8) The Damara Tribal Executive Committee,470 SOUTHWESTAFRICA
no abbreviation; (9} The South West African Coloured Organization,
SWACO; (ro) Die Volksorganisasie van Suid-West Afrika; (n) The
Burghers' Association-this organization is a semi-political organization,
it existed also before 1959.
Mr. MULLER:1 am sorry, are you going to explain further?
Mr. DAHLMANNY : es. This organization, Mr. President, is limited to
the Rehoboth Gebiet.
The PRESIDENT:This is the Burghers' Organization?
Mr. DAHLMANN:The Burghers' Association. (12} The South West
Africa Natfonal Liberation Front, SWANLF; (r3) The National Con
vention Independence Party, NALIP; (14) The United Namib Inde
pendence People's Party, UNIPP; (15) The National Unity Democratic
Organization, NUDO.
Mr. MULLER:Now except for the Chiefs Council, referred to amongst
the Hereros and the Burghers' Association, were all of the others formed
after 1959?
Mr. DAHLMANNA : Uthe other ones were formed after 1959.
Mr. MULLER:Now, I want you to deal very briefly with each one of
these parties to indicate whom they represent, whether they are stiU in
existence and what their aims are.
Mr. DAHLMANNM : r. President, I have already mentioned SWAPO
and the purposes for which it was created. In spite of the change of name,
it remains an Ovambo organization. 1961-1962, it gained a foothold in
Ovam~oland. At that time, the whole territory experienced a long period
of drought and in 1962 SWAPO was at its strongest in ûvamboland.
However, the vast majority of the Ovambos followed the traditional
chiefs and headmen who never supported SWAPO. Since 1962, the mem
bership of SWAPO is decreasing, I think one of the main reasons is the
economîc well-being in Ovamboland and general progress in the whole
tenitorv.
The éhiefs and headmen in Ovamboland support, more or less, the
Government. The chiefs and headmen even asked for the implementation
of the political part of the Odendaal Plan. A number of chiefs and head
men toured the Republic and the Transkei at the beginning of this year
and they came back very enthusiastic about what they had seen. The
result of this trip to the Republic was that, on]y a few weeks ago, 145
teachers, ministers and nurses of the Kuanyama tribe wrote to the Prime
Minister of South West Africa and indicated that they were highly
interested in a similar tour to the Republic of South Africa. I might
mention here that the Kuanyama tribe is the biggest tribe in Ovambo-
land. ·
Under these circumstances the support for the South West Aftica
People's Organization has weakened and the support for the chiefs is
widespread.
Mr. MULLER:Mr. Dahlmann, would you deal next with the Chiefs
Council of the Herero, that was the fourth on your list?
Mr. DAHLMANNM : r. President, the Chiefs Council is an undoubtedly
very important political organization within South West Africa. Gener
ally speaking,the Herero, constituting 8 percent. of the total population
of South West Africa, can be regarded as a separate nation. They call
themselves also the Herero nation. Their traditional political system
centres around their headmen. Their tribal tradition and the discipline
are very strong. The majority of headmen follow Hosea Kutako, who WITNESSES AND EXPERTS 471
can be regarded, as I have said already, as a leader of the Herero nation,
although there are some headmen who are in opposition to Hosea Kutako
and who have their own supporters.
The so-called Chiefs Council of Hosea Kutako is the strongest non
White anti-government group in South West Africa. The most outstand
ing personalities in this Council, as I mentioned already, arer. Kapuuo,
the right band of Hosea Kutako, and the Rev{:rend Kanaera, whom I
regard as the chief idealogist of the Chiefs Council.
The Chiefs Council is striving primarily for a greater role for the
Herero nation. The fact of group nationalism among the Hereros is
paramount. They claim the central part of South West Africa for them
selves and they are trying to underrnine the Govemment whenever and
wherever it is possible. They are mainly responsible for the interna!
campaign against the Government. They have transmitted a large·num
ber of petitions to the United Nations and Michael Scott, Mburumba
Kerina and Kozonguizi appeared before the United Nations as petitioners
for the Chiefs Council of Hosea Kutako.
i\frMULLER: Next, will you please deal briefly with the South West
Africa National Union, the abbreviation being SWANU?
Mr. DAHLMANN: The South West Africa National Union was supposed
to serve the same purpose as the Ovamboland People's Organization or
SWAPO. It was supposed to be the political party of the Hereros. It was
formed in September 1959. Clemens Kapuuo presided at the inaugural
meeting, which took place in September 1959 at the location in Windhoek
and Kozonguizi was elected President. He was a petitioner together with
Kerina at the United Nations. The President of the Ovamboland People's
Organization becamc a committee member of the South West Africa
National Union at this inaugural meeting. SWANU could possibly have
gained substantial support amongst the Herero if it had retained the
backing of Hosea Kutako and the Chiefs Council, but Kozonguizi's ideas
did not coincide with the views of the Chiefs Council. Kozonguizi was
dedicated to a militant African socialism, he was opposed to the tradi
tional tribal system and group loyalties. Within a few months' time after
the creation of SWANU, a total split occurred between the SWANU
leadership and the Chiefs Council.
The tribal discipline amongst the Hereros is very strong. The Chiefs
Council retained the support of the majority of headmen and, due to this
tribal discipline, the support of the majority of the Herero nation.
SWANU carried on as a small group with strong and vocifcrous leader
ship overseas but very little popular support. It is the only non-White
political party in South West Africa which, in truth, is opposed to tribal
loyalties and SWANU propagates militant revolution and pan-African
ideas. Its support in South West Africa is numerically negligible.
Mr. MULLER: The next party mentioncd by you was the South West
Africa United National Independence Organization-SWAUNIO, as you
referred to it in abbreviation. Would you kindly deal with that very
shortly? '
Mr. DAHLMANN: SWAUNIO, the South West Africa United National
Independence Organization, was created to advance the campaign during
the years 1960 and I961 against the Government and it was intended to
get the support of the Nama. Ithas not succeeded in gaining any real
support and it is at present inactive. One can say that the influence of
SWAUNIO on the political field of South West Africa is negligible. The472 SOUTHWESTAFRICA
Reverend Markus Kooper appeared before the United Nations as the
petitioner of SWAUNIO.
Mr. MULLER:Would you kindly next deal with the South West Africa
Democratic Union-SWADU?
Mr. DAHLMANNT : he South West Africa Democratic Union was also
created to advance the anti-Government campaign, but this was an
organization among the Damara people in the north of the Territory. It
had, and still has insignificant support and membership. This organiza
tion is politically completely inactive.
Mr. MULLER:I did not quite understand. You say that this organiza
tion was intended for the Dama population?
Mr. DAHLMANNT :hat is correct. For the Damara people.
Mr. MULLER:You also mention the Caprivi African National Union
CANU. Would you kindly indicate what association that is?
Mr. DAHLMANNT : he Caprivi African National Union was formed in
I963 in the Eastern Caprivi. 1t was, as prominent members confirm,
influenced from across the border by Zambia. A strong attempt was made
from the other side of the border to support the Caprivi African National
Union by means of intimidation and boycotts. At present, the Caprivi
African National Union enjoys very little support. The people inastern
Caprivi, belonging to two different tribes, more or Jess follow the tra
ditional chiefs so the party is completely inactive.
The PRESIDENT:Mr. Muller, boycotts against whom?
Mr. MULLER:Yes. Will you kindly explain? You referred to "boy
cotts". Would you kindly indicate to the Court against whom those
boycotts were?
Mr. DAHLMANNT : here is only the Zambesi between Zambia and the
Eastern Caprivi. The people cross the Zambesi and the people from
South West Africa, from the Caprivi strip, sell cattle and other goods in
Zambia. The people in Zambia indicated that they were only prepared
to accept these goods from South West Africa if the people from the
Eastern Caprivi strip could produce their CANU membership cards.
Mr. MULLER:You also mentioned the Damara Tribal Executive Com
mfüee. Would you kindly deal with that?
Mr. DAHLMANNT : he Damara Tribal Executive Committee is, as the
name indicates, a tribal organizationIt is primarily concemed with the
attempt to consolidate the Damara people. Due to !historie reasons, the
tribal discipline amongst the Damaras is very weak. The vast majority
of the Damaras show very little interest in political matters. There is not
much co-ordination between the different groups. There are a number of
headmen and one chief. The Damara Tribal Executive Committee is in
opposition to the Damara Chief, to the Government and most outspoken
in opposition to the Hereros and the Chief's Council.
It is very difficult to assess at the moment what the influence of the
Executive Committee is at present. The Damara population is divided
into different groups and only the future can establish whether the
Committee will succeed in what it wants. .
Mr. MULLER:l\lr. Dahlmann, you mentioned two parties, or organiza
tions, representative of the Coloured people in South West Africa, namely
the Suid-West Afrikaanse Kleurlings Organisasie (SWAKO) and the
Volksorganisasie van Suid-West Afrika (VOSWA). Will you deal with
those two?
Mr. DAHLMANNY : es, Mr. President. There are two organizations, the WITNESSES AND EXPERTS 473
South West Africa Coloured Organization is semi-political with Coloured
membership. Its main purpose is to advance the weH-being of the
Coloured people. In the main it supports the Government and one can
say it is the strongest organization amongst the Coloured people.
There is another organization-VOSWA-Volksorganisasie van Suid
West Afrika, created to seek support among the Coloured and Baster
population.
The Volksorganisasie van Suid-West Afrika is in opposition to the
Government. 1t has not succecded in gaining any real support and it is
at present completely inactive.
Mr. MULLER; And then there is the Burghers' Association of the Reho
both. Kindly just tell the Court very bricfly what that organization is
and how it operates.
Mr. DAHLMANN: The Burghers' Association is also a semi-political as
sociation because each Baster burgher of the Rehoboth Gebiet with
Burgher citizenship is perse a member of this organization. TheBurghers'
Association isan organization for the discussion of local affairs of the
Rehoboth Gebiet. As I have mentioned, the Rehoboth Burghers' Associa
tion is only for the Rehoboth Gebiet and it advises the Advisory Council,
the Basterraad, of the Rchoboth Gcbiet.
Mr. MULLER: Thank you, Sir.
Mr. Dahlmann, you have indicated to the Court that certain political
parties were formed amongst some of the population groups. \Vere there
attempts also to form political parties representative of the Territory as a
whole, or of more than one of the population groups?
Mr. DAHLMANN: Yes, l\fr. President, I mentioned a number of organiza
tions which came into existence on tribal lines. At a later stage, one can
say since :r963, vigorous attempts have been made to create unity
between the different anti-government organizations. I wiH now proceed
with the discussion of the united front and parties which were intended
to bring all the anti-government organizations togcther. This movement
was necessary because the liberation committee of the Organization of
African Unity had indicated that no financial aid should be given to
splînter groups or tribal organizationsbut only to a united front.
Under these circumstances, SWANU (the South West Africa National
Union) approached SWAPO (the South West Africa Peoples Organiza
tion), the Chiefs Council, the South West Africa United National In
dependence Organization, and VOSWA to be members of one united
front. The name of this front was supposed to be the South West Africa
National Liberation Front. This front came into existence in October
1963, but only SWANU and SWAPO members served on the committee.
Within a few wecks'time it became dear that the Chiefs Council rejected
this front completely and in April 1964 the SWAPO President, living
abroad, and other SWAPO leaders abroad disassociated themselves from
this front. A rather confused situation arose. The SWAPO and SWANU
committee members of SWANLF stated that they were prepared to
continue to co-operate.
Since the middle of 1964 nothing has been heard from this front. As
mentioned before, the Chiefs Council was not prepared to co-operatc
within the South West African National Liberation Front. Therefore it
is quite understandable that the Chiefs Council tried to create a unity
party under Herero control or Hercro leadership in order to get outside
support.474 SOUTH WEST AFRICA
I must mention that Kerina who was at that time in Bechuanaland
had broken with SWAPO in 1962. He issued a press statement that he
resigned as Chairman and he left the party.
A new attempt tocorne to a co-operation with SWAPO failed. Within
South West Africa, Kapuuo, the Chief designate of the Hereros, tried to
organize a national convention. As many non-White personalities as
possible should participate. The national convention was supposed to
take place in May 1964. The convention had to be postponed. Never
theless, Kerina issued a presstatement in June r964 that a united front
of ail population groups had been formed and the name of this united
party was NACIP-National Convention Independence Party. In fact
this party had never been formed and, consequently, never existed except
on paper and one did not hear any more about this party.
The PRESIDENT: \Vhere was the press statement issued, Mr. Muller?
Mr. MULLER:Will you tell the Court, Mr. Dahlmann, where the press
statement was issued?
Mr. DAHLMANNT :he press statement was issued in Bechuanaland and
sent to papers in the Republic, that I know. I do not know whether it
was sent to papers in London; I WruJtold so, but that l cannot prove.
ln August 1964 two Ietters ,vritten by Kerina to the United Nations
and by Kapuuo to the Liberation Committee of the Organization for
African Unity announced the creation of United Namib Independence
Peoples Party. In South West Africa this organization was completely
unknown. In his Jetter Kapuuo strongly attacked the South West Africa
National Liberation Front, SWAPO and SWANU. May I quote from this
letter ...
Mr. MULLER:Before you quote from the letter, Mr. Dahlmann, will
you tell the Court how you came into possession of the letter, or a copy
of the letter?
Mr. DAHLMANN:Moses Katjihuangua, the Director of SWANU
Foreign Mission in Dar-es-Salaam, wrote tome, a press statement, which
shou1d appear in the Allgemeine Zeitung as soon as possibleIn this letter
Katjihuangua refers to the letter written by Kapuuo to the Assistant
Secretary of the African Liberation Committee in Dar-es-Salaam.
According to Katjihuangua the letter was dated 14 August 1964, and
it was (the whole letter) written by Kapuuo to the Assistant Secretary of
the African Liberation Committee, and there Kapuuo said:
"Our Party, the United Namib lndependence Peoples Party, is
composed of progressive elements drawn from ail previously existing
political groups dedicated tothe non-tribal unification of our people
and it is the only organization which has already achieved a degree
of popular support from all sections of the African population. lt is
now our urgent responsibility to organize and mobilize our people
for a discipline and militant struggle."
Mr. MULLER:Was the letter published as requested?
Mr. DAHLMANNT : he letter and the comment were published as re
quested.
Mr. MULLER:Did that draw any reaction?
Mr. D AHLMAN:NYes, 1fr. President, the letter drew most violent
reaction especially from SWANU and the Damara Tribal Executive
Committee; and from United Nations documents I learn that another
letter has been written to the United Nations in the name of this party, WITNESSES AND EXPERTS 475
the United Namib Independence Peoples Party. This party has di.s
appeared completely.
Mr. MULLER:You also mentioned a party by the name of NUDO
National Unity Democratic Organization. Can you tell the Court briefly
something about this party?
Mr. DAHLMANNY : es, Mr. President, this party, the National Unity
Democratic Organization, still exists. In September 1964, Kapuuo issued
a press statement announcing the formation of the National Unity
Democratic Organization. He gave us a list of the Committce members
and there appear a number of leaders of tribal as well as political organi
zations in South West Africa. But ail prominent non-Hereros mentioned
as Committee members of the National Unity Democratic Organization
subsequently denied rnembership not only of the Committee but also
mernbership of the party. The Nama Chief, Hendrik Samuel Witbooi,
quoted as assistant party leader, denied that he had been informed about
the formation of the party and asked that his name be removed.
May I explain, Mr. President, that Hendrik Samuel Witbooi is not the
Nama Chief in South West Africa. He is the Chief of the Krantzplatz
Namas: Krantzplatz is a small spot a few miles away from Gibeon. Chief
Samuel Witbooi, whom I know personally, said h1mself that his tribe
consists of500 people altogether. Though Witbooi denied that he was a
Committee rnember, the same applicd to Allan Louw-Allan Louw is the
Chairman of the Rehoboth Burgher Association. The same applies to
David Gertze; Gertze is a Nama and he is the President of the South West
Africa United National Independence Organization, SWAUNIO. And
the same applies to Chief Frederick Izaak; Chief Izaak is also a Nama
Chief, living at Berseba-I also know him, and I know Allan Louw and
Gertze.
Mr. MULLER:Did any of these people to whom you have now referred
indicate that they were not members or office bearers of this party,
NUDO?
Mr. DAHLMANNY ; es, Mr. President, they did so by means of press
statements and Chief \Vitbooi and David Gertzc wrote a letter to the
United Nations on ro October 1964, that is United Nations document
A/AC.109/Pet. 368 of 13 April 1965. Ina letter to the Secretary-General,
Witbooi and Gertze state:
"Re: The National United DemocraticOrganizatio1~.
S.W.A.
Information is hereby given that we do not know anything about
the above-named Organization. Viz. "NUDO" witch came into
existence recentlv.
Someone may ·send you reports of how it came to establish such
an organization. But without consulting the Nama people. Even the
names of the people were used and undersigned who were not present
at the meeting and when the constitution were composed.
We thus beg to state that the establishment of this 'NUDO' is not
approved by us.
Such method is for our Nama people catastrophious.
Bear this in mind that we cannot be used as tools.
We shall not tolerate this treatment any longer.
And we cannot be regarded as members of the said 'NUDO'. SOUTH WEST AFRICA
In the hope that this will find your favourable consideration.
Sincerely yours,
(Signed) H. S. Witbooi
(Signed} J. D. Gertze
President South West Africa National Independence Organisation."
Mr. MULLER:Now, what has happened to NUDO: does it still exist?
And what support has it?
Mr. DAHLMANN:NUDO does still exist. The Damaras are strongly
opposed to NUDO. No prominent Damara is serving on the NUDO
Committee. SWAPO, SWANU and SWANLF are also strongly opposed
to NUDO. Actually, NUDO is nothing else but the Chiefs Council under
a different name. NUDO is working in collaboration with Kerina, who
is Chairman of NUDO and who has, as I mentioned, with the exception
of small periods, acted as petitioner on behalf of Herero at the United
Nations.
The result is that NUDO is a pure Herero party. The reason might be
that the tribal and party leadership is identical-thetribal leadership of
the Herero and the party leadership of NUDO. Hosea Kutako is the party
leader and Klemens Kapuuo is the paity president.
Nevertheless, this tribal discipline within the Herero nation and the
combined tribal and party leadership make NUDO the strongest non
White political party within the Territory.
Mr. MULLER:Just to sum up, Mr. Dahlmann, you have dealt with
various political parties. Can you tell the Court whether these parties or
organizations enjoy the support of more than one of the different popula
tion groups or are they representative respectively only of one population
group?
Mr. DAHLMANNT :hey represent mainly one population group with the
exception of SWANU and, to a certain extent, SWANLF.
But, Mr. President, I wonder whether it is advisable to stress the
NUDO programme a little bit further, because it is the most important
organization in South West Africa?
Mr. MULLER:Yes, please do, if you think it is important, but very
briefly, please.
Mr. DAHLMANNT : he Hereros are faced with the difficulty that they
are a small minority group and it is quite understandable that they fear
the overwhelming numerical strength of the Ovambos. Kapuuo has
therefore, in his interviews, explained that tribalism in South West
Africa has got to be accepted as a reality for a long time to corne. The
Chief's Council, NUDO, thus wishcs to divide South West Africa into a
number of regions with regional parliaments and a federal government.
The number of regions is not quite certain. At the time of the Carpio visit
in 1962 the Hereros suggested three regions, today they (NUDO) suggest
four to fivc regions. These will be Ovamboland, in the north, Damaraland
for the Damaras, Hereroland, which means the whole central part of
South West Africa for the Hereros, Basterland as it is, for the Rehoboth
Basters and Namaland in the South. NUDO docs not envisage any region
for the Whites.
They are in favour of a federal government in which each region shall
have equal representation irrespective oftheir numerical strength. This
would, of course, neutralizehe threat of Ovambo domination. WITNESSES AND EXPERTS 477
A new rift within NUDO seems imminent. Kerina personally is strongly
opposed to tribalism and group loyalty. As Chairman of NUDO, he
indicated in his latest petition the United Nations that he is in favour
of a scheme which is totally different from the NUDO policy at home. He
wants to create one single political union on the basis one man one vote,
with 80 constituencies in South West Africa. This could have the result
that the Hereros would be swamped by the Ovambo numerical strength.
When I asked Kapuuo to comment on this petition to the United
Nations he stated that he had no knowledge of it. He had not received a
copy.
l\Ir~fuLLER: Now, if we can get back to the question which I asked
-I interrupted you then~as to whether, in summing up, any of thesè
political parties are representative of more than one of these population
groups in South West Africa?
I\Ir. DAHLMANNM : ost of the parties are formed on a tribal basis. AU
attempts to achieve unity proved a failure. There is one exception-that
is the South West Africa National Union-which has only a small
following. Neither the leaders nor the followers are able to rise beyond
the borders of group nationalism and therefore SWANU consists only of
a small number of intellectuals,but from various population groups. You
find there Ovambos. Hereros (especially Hereros) and a few Damaras.
Mr. Muu.ER: What are the relations between the various parties?
Mr. DAHi.MANI\" M: ost are extremely antagonistic towards each other.
The leaders accuse each other of being traitors. The Chiefs Council and
NUDO especially are violently accused of attempting to achieve Herero
domination over other population groups.
Mr. MULLER: How representative are the different parties of the groups
amongst which they do seek support?
Mr. DAHi.MANNM : ost of the political parties and organizations com
mand very little support within their own population groups. The only
exception is NUDO, the Herero organization. I mentioned this before,
because of the tribal and party leadership being identical and, duto the
tribal discipline, they enjoy quite a lot of support within the Herero
nation.
SWACO-the South West Africa Coloured Organization-enjoys quite
remarkable support within the Coloured community of South West
Africa. The Burghers' Association in Rehoboth is, of course, not a real
political organization. Eachand every burgher is per se a member of this
organization. Itreflects various trends in the Rehoboth community. The
Damara Tribal Executive Committee does not reflect the situation
within the Damara tribe at present. SWAPO-the South West Africa
People's Organization-enjoys at present only smalt support from the
Ovambos. SWAUNIO-the Nama organization-has no significant
support and is more or less inactive.ANU, the Caprivi African National
Union, enjoys only negligible support. SWADU, the South West Africa
Democratic Union, is, I think one can say, not existent any more.
VOSWA, the Volksorganisasie van Suid West-Afrika, enjoys also very
littlesupport and is inactive. SWANU, the South West African National
Union, does not seek support on the group basis.
I may add that in the Okavango there is no political party. The
population follow the traditional chiefs and headmen and there is also no
political organization whatsoever amongst the Bushmen.
Mr. MULLER: Mr. Dahlmann, I want you to divert now to the SOUTH WEST AFRICA
478
petitioners at the United Nations. Do they still play a leading role in the
various parties in South West Africa?
Mr. DAHLMANNY :es, Mr. President, I think one can say yes. Although
Kerina broke with SWAPO, or SWAPO with him, in 1962, he was still
the co-founder of NACIP, UNIPP and NUDO. He is the prcsent NUDO
Chairman.
Kozonguizi is the SWANU President. Sam Nujoma is still the SWAPO
President. Kuhaungua is still a leading personality within SWAPO.
Although he is abroad he is the Secretary-Gcneral. Markus Kooper
appears for SWAUNIO, the inactive Nama organization, and Chief
Witbooi; Michael Scott, who has not been in the Territorv since the late
forties, appeared inthe past for the Herero Chiefs Council. There are a
number of other petitioners overseas who are also connected with the
organizations within South West Africa.
The petitioners overseas are actually continuing withtheir campaign
without much reference totheir associates in South West Africa, and the
majority of cases these party leaders have brought are apparently in
dependent from their respective parties in South West Africa.They are
issuing often policy statements which are unknown in South West Africa.
One example, as I have already mentioned, is the Kerina petition to the
United Nations about the political programme of NUDO. Kerina is in
favour of oneunit and Kapuuo, the party President in South West Africa,
stated that hc is in favour of a federation, in favour of regionalism, and
he said that his party knew nothing about this petition and had not
received a copy.
Mr. MULLER:May I just ask you there-you have referred to this
petition-have you a copy of the petition there?
Mr. DAHLMANNY : es, I have got a ...
Mr. MULLER:Would you give the Court the number of that particular
petition and the date?
Mr. DAHLMANNT : he number: A/AC.109/DEB.371, Add./4, I4 Sep
tember 1965.
Mr. MULLER:\Vas that petition circulated as a United Nations docu
ment?
Mr. DAHLMANNY :es, Mr. President, that is correct. A special commit
tee on the situation with regard to the Implementation of the Declaration
of the Granting of Independence toColonial Countries and Peoples.
Mr. MULLER:Now, in that petition, is there any reference to this
particular Court action?
Mr. DAHLMANNY : es, Mr. President.
Mr. MULLER:On what page?
Mr. DAHLMANNP :age number 5.
Mr. MULLER:Will you read what is stated there?
Mr. DAHLMANNM : ay I mention that Kerina asks in this petition for a
Security Council meeting in orderto discuss the situatiorrin South West
Africa? I quote from the document:
"It will similarly have a great psychological effect on the Inter
national Court of Justice and to hasten the proceedings in regard to
the rendering of the judgment. Meanwhile, we in South West Africa
are embarking on a nationwide positive-action campaign in defiance
of the South African Government."
Mr. MULLER:Now the "it'' referred to in that passage ... Does that
refer to the suggested resolution of the Security Council? · WlTNESSES ANDEXPERTS
479
Mr. DAHLMANNE :xcuse me, I did not understand the question.
1Mr. MunER: You read a paragraph which starts with the word "it".
Now, it is not clear what the "it'' means. Would you not rather read the
whole of it, starting off with the paragraph which precedes it and makes
it clear?
Mr. DAHLMANN:
"... convening of the United Nations Security Council on the
question of South West Africa at this moment before the General
Assembly will help to highlight the situation in South West Africa
and to mobilize the international public opinion."·
Mr. MULLER:Read on.
Mr. DAHLMANN:
"It will similarly have a great psychological effect on the Inter
national Court ofJustice and to hasten the proceedings in regard to
the rendering of the judgment. Meanwhile, we, in South West Africa
are embarking on a nationwide positive-action campaign in defiance
of the South African Government."
Mr. MULLER:Now, will you just look at the front page of the petition
and tell the Court on whose behalf the petition was supposed to have
been?
Mr. DAHLMANNT :his petition ..The United Nations document says:
"Two petitions from Mr. Mburumba Kerina, Party Chainnan and Chief
Hosea Kutako, leader, National Unity Democratic Organization, Nudo,
concerning South West Africa."
Mr. MULLER:I think you have indicated to the Court that when this
petition came to be known to you, you contacted Kapuuo. Is that
correct?
Mr. DAHLMANNT :hat is correct, Mr. President.
The PREsrnENT: Yes, Mr. Gross?
Mr. GROSS:I regret the interruption, but for the sake of accuracy at
this point, Sir, the document to which the witness is referring is entitled
"Two petitions from Mr. Kerina and Chief Kutako." The first petition is
signed by Mr. Kerina and that is the one to which reference is made in
the second petition, which is attached to the document, is signed by
Chief Kutako and is unrelated to the first petition, Sir.
Mr. MULLER:Mr. Dahlmann, you have alreacly indicated what the
heading of this petition islt reads as follows: "Two petitions from Mr.
Mburumba Kerina, Party Chairman, and Chief Hosea Kutako, leader,
National Unity Democratic Organization. Now, ...
The PRESIDENT:Does that description coincide with the official copy,
Mr. l\Iuller?
Mr. MULLER:Mr. President, I have the official copy circulated in the
United Nations and I am reading from that. Concerning South West
Africa, now, just to get this clear, who is the Party Chairman of NUDO?
Mr. DAHLMANNT : he Party Chairman, Mr. President, is Mburumba
Kerina and the party leader is Hosea Kutako, but there are two petitions
in this document. The first cornes from Kerina, from the Party Chainnan
and another, different one cornes from Hosea Kutako, in bis capacity as
party leader.
Mr. MULLER:Now, I am going to make the position clear. Will you
turn to page IOof the document and see on whose behalf Mr. Kerina signs
this document? SOUTHWESTAFRICA
Mr. DAHLMANNM : r. Kerina signs this document in his capacity of
Party Chairman of NUDO.
Mr. MULLER:Now you say you contacted somebody in the NUDO
organization at Windhoek?
Mr. DAHLMANNM : r. President, yes, wheI learned about this petition
by means of a press agency report, I 'phoned immediately Mr. Kapuuo
and ...
Mr. MULLER:Who is Mr. Kapuuo?
Mr. DAHLMANNM : r. Kapuuo is the Party President of NUDO. I asked
him whether he would like to comment on this statemcnt made by the
Party Chairman, Kerina, and he stated he had no knowledge of this
petition. He had not received a copy.
Mr. MULLER:Mr. Dahlmann, generally speaking, are you aware of the
contents of petitions that are submitted to the United Nations by
petitioners? Do you generally corne to hear of them or read them?
Mr. DAHLMANNY : es,I am aware of the contents of many petitions.
Ireceive copies of many of them from the senders, also from the United
Nations and of course, also, from press agency reports. We regularly
reportthe contents of these petitions in our newspaper.
Mr. MULLER:Do the allegations in these petitions always reflect the
truth of situations in South West Africa, as you know them?
Mr. ÜAHLMANNT :ous in South West Africa, it is sometimes very hard
to understand these petitions. Many of them, whether they corne from
within South West Africa or from abroad, contain false statements and
serious distortions and exaggerations of the real situation. Only to name
a few which are made very often. for example, that there is a large scale
of militarization in South West Africa, there is a missile tracking station,
that the non-Whites within theTerritory live in conditions of slavery, that
genocide is committed against the non-Whites, that they are being ex
terminated or murdered, that they have no schools, no hospitals. On one
occasion, one petitioner was Mrs. Appolus, who gave evidence to the
effect that the infant mortality rate amongst the non-Whites exceeded
99 percent. and I think these allegations mentioned are unfounded.
Mr. MULLER:One final question, Mr. Dahlmann. From your experience,
can you state as your opinion whether the different non-White political
parties will be able to co-operate and form, or work in, a single political
party unit?
Mr. DAHLMANN I: would like to associate myself with Mr. Kapuuo,
who said, in an interview with Mr. Christian Herter, Jnr., in Windhoek,
that tribalism and group loyalties are things which you have to take into
account in South West Africa for many years to corne. So I cannot see
any possibility for a unification within the foreseeable future.
Mr. MULLER:Thank you. Mr. President, I have no furüier questions
to putto Mr. Dahlmann. ·
The PRESIDENT:Thank you, ;\fr. Muller. Mr. Gross?
Mr. GRoss: M.r. President, :..have rather full notes, here, Sir, with
many names, some of which I got and some of which I did not get. I
could, if the Court pleases, begin without being able to organize my notes
on certain qualifying questions,but in justice to the Applicants' case, I
hesitate to get into cross-examination at this moment respecting the
many aspects of the political organizations which have been named,
described, and from which inferences have been drawn. With exception
to that, Sir, if it pleases the CouIshould lik;~to begin by asking what WITNESSES ANDEXPERTS
might be described as questions regarding the witness' qualifications, Sir.
The PRESIDENT:Mr. Gross; you may proceed to do so. It is now half
past twelve, if you reach the stage when you would prefer to have an
adjournment until Monday, the Court will accede to that, since you state
that you wish to organize your cross-examination on what is a detailed
presentation of the political situation in SoutWest Africa.
Mr. GROSS:Thank you, l\lr. President.
The PRESIDENT:Very well, proceed.
l\lr. GROSS:l\fr. Dahlmann, would you please state when you were
born, Sir?
Mr. DAHLMANN4 : March 1918.
Mr. GROSS:You have testified. Sir, that you were born in Germany
and you left for South West Africain 1958?
Mr. DAHLMANNI:n 1958.
Mr. GROSS:At the age, then, of 40, I take it, Sir?
àlr. DAHLMANNY : es.
Mr. GROSS: Did you attend schools in Germanv throughout your
educational career? •
Mr. DAHLMANNI:n the frec city of Danzig.
Mr. GROSS:In Danzig. I think you said you qualified for a lawyer's
degree at the University of Kiel, is that correct?
Mr. DAHLMANN:No, that is not correct, Mr. President, I got a law
degree at the Kiel University, that means that I completed my studies
and passed the final examination.
The PRESIDENT:Having done the preparatory work elsewhere? Is
that correct? Did you do ail your course in law at Kiel?
ML DAHLMANNA : il my courses in Kiel, yes.
Mr. GROSS: Mr. Dahlmann, then was it after graduation from the
University of Kiel that you entered the profession of journalism?
Mr. DAHJ,MANNY : es, Mr. President, that is correct.
Mr. GROSS:Had you engaged in any other occupations or professions
other than journalism in Germany?
Mr. DAHLMANNI: was the editor for politics at the Kieler Nachrichten
in Kiel. ·
Mr. GROSS: Were you in any respect active in poiitical affairs in
Germany?
Mr. DAHi.MANN:I was not a member of any party, Mr President.
Mr. GROSS: \Vere you affiliated with any organization of a public
nature?
Mr. DAHL'IIANNN : o, !\Ir. President.
Mr. GRoss: \Vere you a member of the Hitler Youth for exampie, Sir?
The PRESIDENT:What has that to do with the case, Mr. Gross?
Mr. GROSS:I would stress the relevance of questions which might fairly
be related to bias, as an expert, Sir.
The PRESIDENT:Bias?
Mr. GROSS:Bias, Sir, yes.
The PRESIDENT:In what way would it establish bias if he were a
member of the Hitler Youth?
Mr. GROSS:I think, Sir, for the information of the Court, I should
like ...
The PRESIDENT:Psychoiogical bias?
Mr. GROSS:Psychological bias, since the heavy race aspects of this
case ... SOUTHWESTAFRICA
The PRESIDENT:\Vell, this Courtis removed from psychological bias,
Mr. Gross.
l\frGRoss: Sir, may I pursue the line of enquiry with respect to other
than possible Nazi party affiliation?
The PRESIDENT:Please do so. You may ask him, if you wish to, having
said that, if he is a member of the Nazi party or if he is a member of the
Hitler Youth, if you think it is going to help the Court.
Mr. GROSS: \Vell Sir, naturally if the witness does not wish to
answer ...
The PRESIDENT:No, he has not said that at ail.
Mr. GRoss: I mean I do not wish to press it if he does not ...
The PRESIDENT:You may press your question.
Mr. GRoss: Would you answer the question, Sir?
Mr. ÜAHLMANN:Yes, Mr. President, I was a member of the Hitler
Youth between 1934 and 1936.
Mr. GROSS: Did you ever make any public statements on racial
questions?
Mr. ÜAHLMANNI: did not make any statements but I wrote many
a1ticles in which I condemned most violently racialism in Germany, if
you refer to that time, and I have not changed my mind.
Mr. GROSS:Were these articles written, Sir, during the period when
you were a member of the Hitler Youth?
Mr. DAHLMANNN : o. Mr. President, of course not, because at the age
of 15 or 16 years, I did not write any articles .
.Mr. GROSS:The articles towhich you referin which you expressed
your convictions and sentiments on racial questions, were written when,
Sir, forthe first time?
Mr.DAHLMANNM : r. President, that was only aItjoined a newspaper.
Mr. GROSS:And that was after ... excuse me, Sir, please continue.
Mr. ÜAHLMANNA : nd that was then 1948.
Mr. GRoss: And that was after the war, Sir?
Mr. DAHLMANNI:t was after the war.
Mr. GROSS: Incidentally, would you have any objection to stating
whether you served in the German Armed Forces during the war?
The PRESIDENT:Would that also be relevant to his testimony, do you
think, Mr. Gross?
Mr. GRoss: Sir, if it were ia political capacity, I thought ...
The PRESIDENT:Well, why don't you ask him in a political capacity?
Mr. GRoss: I did not want to assume that he had so served, Sir.
The PRESIDENT: I see. \Vell, witness answer---did you serve in the
German Army during the war?
Mr. DAHLMANNY : es, Mr. President, I did.
Mr. GRoss: In what branch, Sir?
Mr. DAHLMANNI:n the Air Force.
Mr. GROSS:With what rank, Sir?
Mr. DAHLMANNA : t last as a major.
Mr. GROSS:That was in the Luftwaffe, Sir?
Mr. DAHLMANNY : es, Mr. President, that is correct.
Mr. GROSS:And as a major in the Luftwaffe, Sir, did you have occasion
to participa te in political discussions or organizations?
Mr. DAHLMANNN : one whatsoever.
Mr. GRoss: You left Germanv in 1958 to reside permanently in South
West Africa. Sir? • WITNESSES ANDEXPERTS
Mr. DAHLMANNN : o, Mr. President, actually notIt was not my in
tention at the beginning to reside there permanently, it was more or less
to gain more knowledge in African affairs and to gain more knowledge
of world aHairs.
The PRESIDENT:Mr. Gross, have you finished your questions in relation
to his association with the German Army, etc.?
Mr. GROSS:Yes, Mr. President.
The PRESIDENT:Will you be suggesting to the Court in any way that
that bears upon the reliability of the witness's testimony or his expertise?
Mr. GROSS:I would suggest to the Court, Sir, that it might be taken
into account by the Court in weighing the credibility or degree of ex
pertise,in connection with certain questions which I might pose in the
cross-examination and which I should then try to connect up, Sir.
The PRESIDENT:Very well, Mr. Gross, continue.
Mr. GROSS:Will you state, Sir,what the circulation ofyour newspaper is?
Mr. DAHLMANNT :he circulation is limited-5,000 copies-that covers
the German population of South West Africa. The German-speaking
population amounts roughly to 20,000 and that means one newspaper for
every four people.
Mr. GROSS:How large an editorial staff do you have on the newspaper?
Mr. DAHLMANNF :our altogether.
Mr. GROSS:Do you, Sir, yourself, if I may put it this way, handle the
political coverage of the paper in journalistic terms?
Mr. DAHLMANNY : es, Mr. President, I do.
Mr. GROSS:In your investigations or coverage. as a journalist, do you
have occasion, Sir, to visit the northern territories?
Mr. DAHLMANNY : es, .Mr.President.
Mr. GROSS:When were you in Ovamboland last, Sir?
Mr. DAHLMANNI: think it was in June-July this year.
Mr. GROSS:And how long did you stay there, Sir?
Mr. DAHLMANNA : t that time, only one day, but I paid quite a number
of visits to Ovamboland as well as to the other Reserves in South West
Africa and the north as well as in the south .
.!\frGROSS:With respect to Ovamboland, on what other occasions,
besicles this one day that you have just mentioned, were you there?
Mr. DAHLMANN:Once I went to Ovamboland in 1962 shortly after
Mr. Carpio had gone there and since then I went, I can say, regularlto
Ovamboland, sometimes for a period of two or three days, sometimes
shorter and whenever I go to these places, I am trying to have discussion
with the tribal authorities as well as with the political leader there.
Mr. GROSS:Sir, in your discussion with the tribal authorities, what
language do you speak?
Mr. DAHLMANKT :hat depends whether the tribal authorities are able
to understand English or Afrikaans or German If they understand one
of these languages,then I use these languages, othcrwise I must ask for
an interpreter, who is always non-White. I never use a White interpreter.
Mr. GROSS:Has it been your experience, Sir, that the majority, roughly
speaking, of the persons with whom you converse in Ovamboland do
speak either English, German or Afrikaans?
Mr. DAHLMANNM : r. President, that is a difficult question because I
discuss matters more or less with the more e<lucated people. I am mainly
interested in discussing matters with them and not all of them speak
Afrikaans, English or German, but a number of them of course speak SOUTH WEST AFRICA
English or Afrikaans and I must say that the political leaders, that does
not apply only to Ovamboland that applies to the wholeTerri tory, prefer
to speak English.
Mr. GROSS:Sir would it be your opinion as a political observer that the
facility in a cornrnon language in Ovarnboland, let us say specifica11y,
would be of help to a political organization of a mature nature?
Mr. DAHLMANN: Mr. President, the Ovambos understand each other
and although they speak different dialects, they have their Ovambo
language which is the common language there and I think no Ovambo
would get the idea to speak to another Ovambo in Afrikaans or English
and that applies to Ovamboland.
Mr. GRoss: Now Sir, with respect to my question on a somewhat
broader scale-as a political observer would it be your opinion, Sir, that
the knowledge of only one of the dialects of Ovambo would impede, let
us say, discussions between Ovambo political leaders and political leaders
of other tribes?
Mr. DAHLMANN: Mr. President-number one, the Ovambos are more
or less able to understand a Herero, although it is a different language
but they can make themselves understood. The Ovambos do not under
stand the Namas and the Hereros also do not understand the Namas,
but the political leaders also speak the other tribal languages or under
stand them at lcast, this applies especially for the Ovambos and Hereros.
Mr. GROSS:Would you say, Sir, again as a political observer or analyst,
that the use of a common language by various ethnie or tribal groups
would facilitate understanding among them in the sense of political
organiz~tion and discussion?
Mr. DAHLMANN: A common language is always useful, Mr. President.
Mr. GROSS:Would you regard the absence of a common language as
an obstacle or hindrance to political consultation and correspondence
among various groups?
Mr. DAHL!IIANN: As I said before, that is not actually the case because
this correspondcnce takes place more or less between the political leaders
and the political leaders understand each other.
Mr. GRoss: In the political system prevailing in South West Africa are
there political leaders without political followers?
Mr. DAHLMANN: There are political leaders without political followers
or with a very limited number of followers.
Mr. GROSS:Now Sir, with respect to those political leaders with more
than a limited nurnber of followers, would it, in vour opinion, be impor
tant that the followers be able to understand those who speak different
languages in other tribes and other areas?
Mr. DAHLMANN: \Vell, that might be useful but as far as I heard this
question never arose and I attended a lot of political meetings and the
procedure is as follows: on some occasions there was a Herero speaker, or
one speaker used the Hercro language, another one Nama, a third one
-Coloureds-prefer Afrikaans, and there are always interpreters and
therefore it is not difficult for the followers to understand what a respec
tive speaker is talking about; that is the procedure existing.
Mr. GRoss: Just one more question on that point: from the point of
view of political analysis would you regard the necessity, or the practice,
or the procedure of using interpreters as facilitating or impeding under
standing and cc-ordination of a po1itical nature among political organiza
tions, leaders and followers? WITNESSES AND EXPERTS
Mr. DAHLMAXNI :t is of course casier if an interpreter is not ncces
sary.
l\Ir. GROSS:Do you find, in terms of political analysis, whether the
tribal languages contain the words and phrases which correspond to, let
us say, abstract political ideas?
Mr. DAHLMANNI: do not speak any Native language. I can deduct the
answer from the fact that if you listen to the interpreters you find vcry
seldom, in Afrikaans or English, words in their interpretation, so there
must be terms and words within the Native Ianguages which cover al!
these terms and expressions.
Mr. GRoss: Have you ever heard it asserted as an argument against
granting votes on a qualified or other basis to non-Whites that they have
not yet reached the stage of developmcnt in which they should be per
mitted to participate in the franchise?
Mr. DAHLMAN)[T : hat is a vcry scrious problem. If one refers to the
level of development of a whole group, then of course one must say they
have a cornpletely different political organization and, as I stated in my
evidence, they are far removed from the idea of parliamentary demociacy
known in the western world.
l\.fr. GROSS: During your sojourn in South West Africa, analysing
political problerns and developments, have you encountered non-White,
let us say, persons classified as Natives in the census whom you rcgardcd
as of requisite politicalmaturity and sophistication to be entitled to vote
on a merit basis?
Mr. DAHLMAN'.Y ''l"s:, I must say I could think of a few political leaders
who would be capable, I would say, to sit in the Legislative Assembly of
South West Africa. If you take into consideration only the so-called
Police Zone without the Reserves there are roughly 150,000 non-Euro
peans or non-Whites and roughly 70,000 \Vhites; there are 18 seats in the
Legislative Assembly. I really do not think that there are rz non-Whites
who would be capable to sit in this Legislative Assembly, according to
their number roughly, and who woulcl be able to govern the country, but
I can think of course of a few individuals who are capable to sit there or
to take part in the administration of the country, regardless of what their
educational qualifications might be. Iwould not hesitate to say that a
man like Hosea Kutako, for example, who is illiterate-he belongs to that
gencration, and he is almost roo ycars of age-could sit in the Legislative
Assembly, or a man like Kapuuo or Karnaera or, to mention one of the
leaders abroacl, Kozonguizi, whom I regard as highly intelligent, whatever
his political ideas are; but these people are, in my personal opinion, reaHy
mature, but the great problem and greatest difficulty is these people do
not want to sit in the Legislative Assembly under the qualifiecl franchise
system. They have stated again and again that they only accept majority
rule-that means one man, one vote-nothing less, and they are so
dedicated to their own nation or to their own group and to group Ioyalty
that they do not think of this qualified franchise. On the other hand,
their respective nations or groups would regard them as traitors. I might
mention one name again, and that was Kozonguizi; and Kozonguizi is of
course for multi-racialism and against group loyalties and tribalism in
any form, but he is even more outspoken against participation within, if
I may say so, White-led parliarnent, and he went so far as to say that he
is against any sort of co-operation with the White liberals within the
Terri tory. SOUTH WEST AFRICA
Mr. GRoss: Vou say 1\:1.r. ozonguizi has made that statement?
Mr. DAHLMANN: Yes.
Mr. GROSS: Can you cite the occasion on which he made the statcment?
Mr. DAHLMANN: Yes, it was, if I remember correctly, an article written
by Mr. Kozonguizi himself which appeared in Freedom, the international
organ of the South West Africa National Union. This article appeared in
November 1964 under the heading "National Liberation Struggle in
South West Africa", and I ,vould like to be very short because there is
a long chapter about the White liberals and the Iiberals:
"Another important development in the politics of South West
Africa which may have caused the downgrade of the once powerful
SWAPO Council opposition ta SWANU had been the raie of the
White liberal and Iiberals.
Toda y the truth of reality is that the excesses of White nationalist
extremism in South West Africa can only be checked by an orthodox
policy based on aggressive nationalism initiated and guided by
Africans themselves, nothing in between. The Whites in South West
Africa must remember that it is their own saying that one cannot
have one's cake and eat it. The choice is between the White nationa
lists on the one hand and the African nationalists and socialists on
the other; no room for liberals, or liberals be they White, Yellow or
Black. That is the political situation inside the country, having
considered that we shall now turn our attention to the politics of
South West Africans abroad ... ",
and so on.
Mr.GROSS: You have testified, have you not, that this same gentleman,
1\:1.. ozonguizi, is Chairman of SWANU?
Mr. DAHLMANN: He is President of SWANU, the South West Africa
National Union, yes, that is correct.
l\frGROSS: And is it your testimony that this organization does not
favour co-operation with \Vhites, or whatever the phrase you used was,
with respect to Kozonguizi's alleged beliefs?
M.r.DAHLMANN: This organization, as I have mentioned, is most out
spoken against White rule, and it favours a militant, revolutionary way.
Mr. GROSS: My question was whether it is your testimony that the
SWANU organization, of which Mr. Kozonguizi is President or Chairman,
is opposed to co-operation with the Whites.
Mr. DAHLMANN: SWANU within the Territory is opposed to co
operation with the Whites.
Mr. GROSS: In achieving a political system in which the non-Whites
have participation?
Mr. DAHLMANN: They want African rule-one man, one vote.
Mr. Gnoss: With respect to the description you have just given of the
SWANU programme in terms of the asserted policy not to co-opcrate
with \Vhitcs, could you cite any specific examples by way of declarations
or statements of SWANU in that respect? Do you know whether you
have any with you of that category?
M.r.DAHLMANN: Yes, I most certainly have statements like that.
l\frGROSS: Could you readily find one that you regard as represen
tative, or more if you wish, so that the Court may evaluate your analysis
or appraisal of their language? WITNESSES ANDEXPERTS
[Public hearing of II OctoberI965]
Mr. GROSS:Mr. Dahlmann, at the conclusion of the proceedings on
Friday, 8 October, you will recall that we were discussing the position of
SWANU with respect specifically to the question of co-operation with
the Whites, and, if I may refresh your recollection on that, and the
honourable Court, on page 486, supra, of the verbatim record the follow
ing colloquy took place. My question was whether it was your testimony
that the SWANU organization, of which Mr. Kozonguisi is President or
Chairman, is opposed to co-operation with Whites, and your reply was:
"SWANU within the Territory is opposed to co-operation with the
Whites."
Iasked "In achieving a political system in which the non-Whites have
participation?"; and you answered, "They want African rule-----oneman,
one vote". And I think the colloquy paused there. If I may ask, have
you, over the weekend, had sufficient time to search the files for the type
of statement or position of SWANU which you had in mind, and if so, do
you care to present it to the Court, Sir?
Mr. DAHLMANNY : es, Sir. Mr. President, I have a statement to that
effect; that means SWANU is opposed to co-operation with the Whites
within the framework of qualified franchise.
The PRESIDENT:That was the actual point which you asked him, Mr.
Gross. You asked hirn:
"With respect to the description you have just given of the
SWANU programme in terms of the asserted policy not to co-operate
with Whites, could you cite any specific examples by way of declara
tionsor statements of SWANU in that respect?"
Mr. GRoss: Yes, Sir; quite so.
Mr. DAHLMANN:Mr. President, am I allowed to rnake a few other
remarks in regard to the policy of the non-White political organization?
The PRESIDENT:No, Mr. Dahlmann, if you will produce the particular
items that you are asked by Mr. Gross, but subject to that you ...
Mr. DAHLMANNT : here is one statement issued by the South West
Africa National Union, issued by the national conference held at Wind
hoek from 30 May to r June 1964. If I may read the statement:
"This national conference rejects the Odendaal Commission
Report, the blueprint for apartheid in South West Africa, engineered
and to be implemented by the fascist Government of South Africa
and the most unwelcome central administration in South West
Africa; approves the decision of the national Executive Cornrnittee
to expose the hollowness of the evil document which is nothing but
a colossal fraud, intended to sabotage the development of our
country and pervert the movement for national independence;
authorizes the external mission to prepare its reply to this subversive
piece of misinformation; reiterates that it will accept nothing less
than complete national independence under majority rule as a first
step towards socialist reconstruction; resolves to leave no stone
unturned to achieve this goal; dedicates itself to destroy the evil of
tribalism and racialism which breeds fascism; applauds the accession
to independence of many African countries; registers its achievement
of work for true principles African unity as a means by which the
socialist evolution in Africa'will be achieved and the development of
the African Continent and the well-being of the people promoted." SOUTHWESTAFRICA
And there is another document-that was a press statement which I
received in my capacity as cditor of the Allgemeine Zeitung: it has been
published, as far asI know, in two newspapers in South West Africa.
Mr. GROSS:May I ask, Mr. President, was it a press statemcnt by
SWANU, Sir, and if so, by which office? Would you mind idcntifying the
document, with the President's permission?
The PRESIDDIT:You arc only asked the question, Mr. Dahlmann, to
identify the document-by whom was it issued? Is there anything to
indicate, on the document you received, by whom it was issued?
Mr. DAHLMANNT : here is a name-"Nathaniel", something like that,
that is the first name and the surname is unreadable.
Mr. GROSS:Sir, I have no objection to continuing the reading of the
document, although it is not attributed to SWANU, as I understand from
the witness. If you wish to read it, subject to connecting up, I would have
no objections.
The PRESIDENT:Is there anything to indicate on the document that
it emanatcs from SWANU?
Mr. DAHLMANNF :rom SWANU.
The PRESIDENT:Where does that appear on the document?
Mr. DAHLMANNI:n Windhoek.
The PRESIDENT:No, where does it appear in the document?
Mr. DAHLMA~..N H:ere, Sir.
The PRESIDENT:\Vould you indicate, by reacling it, where it appears
in the document that it emanates from SWANU.
Mr. DAHLMANN" Y:es, Sir, it is the letterhea"South West Africa
National Union: Main and Basic Resolution. This national conference
held at Windhoek from 30 May to 1 June 1964 rejects ... [and so on]".
Mr. GRoss: Thank you, Sir.
Mr. DAHLMANNA : nd then may I refer to a United Nations document,
A/AC.rog/Pet. 215, 13 April 1964. It is acombined petition from SWANU
and SWAPO, and at the end of this petition the authors say:
''Our recommendations-
1. Recommend that the Secretary-General U Thant should now send
the United Nations Police Force, composed of military personnel
drawn from the Afro-Asian States, immediately, whose tasks will
or should be the following:
(a) to disarm all European mercenaries who have moved into
the Territory, inclucling all White settlers and civilians, most
of whom of course are South African;
(b) to repatriate all South African citizens;
(c) to save and protect the lives and property of ail the inhabi
tants in the Tcrritory until a duly elected African majority
peoples government is elected."
M-,.GROSS:Is that ali, Sir? Now, in the document to which you have
just referred, the Petiti215 which you have cited, is it not correct, Sir,
that on page 8 of that same joint Petition the following statement ap
pears:
"We urge every western country which is opposed to apartheid to
join the United Nations call, to end South Africa's Mandate over
South West Africa, in support for an African non-racial democratic
government, that would be voted for by all peoples of the Terri tory WITNESSES AND EXPERTS
without distin;,tion on the basis of colour, but on the basis of one
man one vote.
That is in the document to which you have referred, is it not, Sir, on
page 8?
Mr. DAHLMANN: I have not seen it, but I assume that it is perfectly
correct.
Mr. GROSS:· Is it your interpretation of the failure or refusai of an
organization in the Territory not to co-operate with Whites, that declara
tions orstatements are made by the organization or individuals which
centre upon the policy of apartheid, and the call for one man one vote?
Is that the basis upon which you frame your analysis, that these organiza
tions, this onein particular, is not prepared to co-operate with Whites,
to use your expression?
Mr. DAHLMANN: lVlr.President, most of these organizations are pre
pared to co-operate with Whites under one condition, and this one con
ditionis majority rule. Certain organizations advocate qualificd franchise
for Whites, and others are going so far, they advocate to kiU the Whites.
IIIrGRoss: Now, Sir, would you consider, and I will not prolong this
point beyond this question, unless you wish to add to it, the failurc or
refusai on the part of the Whites to deal with the non-Whites on a basis
other than denial to the non-Whites of a franchise, to be a refusal to
co-operate with the non-\Vhites?
Mr. DAHLMANN; No, Mr. President, attempts have been made especi
ally to consultthe political leaders. That has been the case with the Oden
daal Commission. The Odendaal Commission invited everyone in the
Terri tory to have discussion with the Commission, and the Administrator
of South West Africa wrote twice to Hosea Kutako, who is the leader of
the biggest opposition group, and invited him, for discussion, to the ad
ministration. The first invitation was refused by Hosea, he said he was
not prepared to corne, and to the second invitation the Administrator did
not get any reply.
Mr. GROSS: Now, Sir, I would likc to know, just for the completion of
this story that you have just reported, whether you are familiar with the
reasons which were given by Chief Kutako for refusa! to participate in
the consultations on the basis proposcd?
l\IrDAHLMANN: On the first occasion, that was in January 1964,
Hosea Kutako said that he did not have time enough to discuss this
matter with his headmen; and the second rejection of the invitation I
cannot judge because there is no reaction whatsoever from the side of
Hosea Kutako.
Mr. GROSS: You are not aware of any imposition of restriction based
upon the pass laws and the length of time for which he was offered op
portunity to stay for consultations? Are you aware of that?
Mr. DAHLMANN: No. He is entitled to stay as long as he wishes in
"Windhoek as he is, as far as I know, exempted from the pass laws, and
he is entitled to stay as long as he wishes in Windhoek, and the same
applies to his driver and, I think,to his cook, ind it might be to one or
two of his servants, but I am not sure of that; but I am pretty sure that
it applies to him pcrsonally, to his cook and to his driver.
Mr. GROSS: One more question-would you have information con
cerning whether Chief Kutako made clear in writing to the Administrator
that the Hereros were opposed to the proposed Bantustan or homeland
proposai?490 SOUTHWESTAFRICA
Mr. DAHLMANNI: am not quite sure whether he wrote a letter to that
extent to the Administrator, but he issued a number of press releases,
and it isI think well known in the Territory that he is opposed to these
Odendaal plans. Although I know he has received a wrHten invitation
from the Odendaal Commission to appear before the Odendaal Com
mission and to discuss matters with the Commission, he refused to
appear before that Commission.
Mr. GROSS:I will turn now to your testimony on Friday last in the
verbatim record to which I have referred at page 474, supra. You
referred there at that page, Mr. Dahlmann, to what I may fairly charac
terize, may I not, as abortive attempts on the part of SWAPO and
Kapuuo of the Hereros to organize a national convention. Perhaps it
might be clearer if I read the two or three sentences to which I refeIn
response to a question by learned counsel you stated as follows:
"A new attempt to corne to a co-operation with SWAPO failed.
Within South West Africa, Kapuuo, the Chief desîgnate of the
Hereros, tried to organize a national convention. As many non
White personalities as possible should participa te. The national con
vention was supposed to take place in May 1964. The convention
had to be postponed."
Then you went on with reference to a statement issued by an individual.
Now the postponement of the convention was occasioned by what cir-
cumstance, if you know? .
Mr. DAHLMANNY : es, I am aware of that. The first convention was
supposed to take place in Rehoboth, and the organizers did not get per
missionto hold this convention in Rehoboth. I was told by the authorities
that the Basterraad-that is, the local authority there-had objected to
this national convention being held at Rehoboth; and then the second
convention was supposed to take place some weeks later in Okakarara,
in the Waterberg East Reserve, and on that occasion the magistrale in
Otjiwarongo issued only permits for Hereros because it is an Herero
Reserve; and then the Hereros said "Under these circumstances we are
not prepared to hold this convention in Okakarara". At a later stage, as
I said in my evidence, Kapuuo, I think it was in August-September,
issued this press statement that this certain meeting had taken place in
Windhoek, and after that NUDO came into existence. He was attacked
by one of his opponents, by Kozonguizi, and Kozonguizi said "Why
didn't they have this meeting in Windhoek?" because, round about the
same time, SWANU had its annual national conference in Windhoek-it
was actually exactly at the same time, at the end of May-beginning of
June.
Mr. GROSS:So that is it not correct to say that the reason for the post
ponement-in fact, it was a double postponement-was denial of per
mission on the part of the Government in both situations?
Mr. DAHLMANNN : o, that is not quite so-Isaid the postponement of
the first meeting was due to the fact that the Basterraad in Rehoboth
objected to that meeting, and I think one of the rcasons was the possi
bility of trouble there because another national liberation front was
already in existence at that stage-that was the South West Africa
National Liberation Front, this combination of SWAPO and SWANU,
and the Chiefs council refused to co-operate with this National Libera
tion Front, although be was invited to participate; and so one could have WITNESSES AND EXPERTS 491
expected some disturbances, or something like that, in Rehoboth.
Rehoboth is only 60 miles south of Windhoek, and it would have been
possiblethat these SWANLF people would have been interested in
disturbing this meeting.
Mr. GRoss: Do you wish the Court to infer from your testimony on
this point, Mr. Dahlmann, that the organization had diftîculty in or
ganizing a national convention because of any reason other than difficul
ties of findinga suitable place and time and requisite permission, for
whatever reason?
Mr. ÜAHLMANN It isa fact that the magistrate in Otjiwarongo, or the
assistant magistrate, as it was actually, only allowed Hereros ta take part,
and it is also known that I personally was not in agreement with this
restriction, and you will find in our paper a leader to the effect thaI
was of the opinion that permission should have been granted.
Mr. GROSS:\Vas one of the reasons, perhaps, why you objected toit
that you considered that it encouraged or fostered inter-tribal unity-is
that the reason you assigned for your opposition to the ruling?
Mr. DAHLMANNN : o-why shouldn't they have their meeting?-that
is my attitude, and I did not expect any difficulties, although I was of the
opinion that not many tribal or political leaders would attend that
meeting, but why shouldn't they try that?
Mr. GRo.ss: You know of no reasons why they were not allowed to do
so, then. Did you receiveany response to your communication, or was it
a communication? This was an editorial, was it?
Mr. DAHLMANNT :hat was an editorial, yes.
Ilfr. GROSS:I see. Did you at that time, or shortly thereafter, corne
across in your study of the petitions filed with the United Nations, as
to which you have testifted, a communication from Chief Kutako, Chief
Witbooi and Mr. Louw (the Chairman of the Rehoboth Burghers), a
letter ofII May 1964 to the Secretary-Gencral of the United Nations
this is in document A/AC.rn9/Pet.2II/Add.r? Are you familiar with
this Ietter to which I call your attention?
Mr. DAHLMANNN : o,Iam not.
Mr. GROSS: In that petition or communication to the Secretary
General, these three gentlemen-is it not correct, incidentally, to say that
Chief Kutako is an Herero, the Herero Chief?
Mr. DAHLMAN!> Y.'e:s, correct.
l\lr. GROSS:Chief H. S. Witbooi is of what tribe?
Mr. DAHLMANNN : ama, Krantzplatz Nama.
Mr. GROSS:And Mr. Louw, as it appears here, is Chairman of the
Rehoboth Burghers?
Mr. DAHLMANNC : hairrnan of the Rehoboth Burghers' Association.
Mr. GROSS:And how are they classified under the census classification,
the Rehoboth Burghers-what race or ethnie grouping are they under
the census classification-arethey Coloureds, or Basters, or ... ?
Mr. DAHLMANNN : o, they are Basters.
Mr. GROSS:Yes. Now, these three gentlemen who signed this petition
were not all of the same party or racial group, I take it. Is that correct?
The PRESIDENT:Do you know at ail, witness? Can you give an answer,
one way or the other, ta the question which is put: wcre they of different
tribal or of different political associations?
Mr. GROSS:These three gentlemen.
Mr. DAHLMANN A:t that stage Hosea Kutako had no political organiza-492 SOUTH WEST AFRICA
tion behind him except the Chiefs council. NUDO was not in existence
at that time. Allan Louw was the Chairman of the Burghers' Association
-that is a semi-political organization, and each Rehoboth citizen
belongs to that Burghers' Association; and Chief Hendrik Samuel Wit
booi is the Chief of500 Krantzplatz Namas.
Mr. GRoss: Would you say, as a political observer and analyst, that
this represented an attempt on the part of these chiefs or leaders to form
an inter-tribal political organization in the form oa convention? Would
you agree to that statement?
M1. DAHU.IAXN:Many attempts have been made to form a united
front, one party, to which ail the other organizations should belong-that
was SWANLF and again NUDO-and may I add that I have said it in
my evidence: later, after NUDO had been formed, Chief Witbooi wrote a
petition to the United Nations that he had nothing to do with NUDO,
although he appears on the committee member listas the Assistant Party
Leader.
Mr. GROSS:I am sure that if you misunderstood my question you
would wish to answer it directly, if possible, although as fully as you
wish; my question was whether as a political analyst you regarded this as
an attempt on the part of these three gentlemen to form an inter-tribal
political movement through a national convention-can you answer that
yes or no?
Mr. DAHLM.urn: Yes, they were trying to do that.
Mr. GROSS: In this letter to the Secretary-General to which I have
referred, these three gentlemen whom we have now identified said as
follows, and I quote from the document, beginning on page 2-this is to
the Secretary-General of the United Nations, II ~lay r964:
·"We have the honour to inform you that the people of South West
Africa decided to hold a National Convention at Rehoboth, South
West Africa, on May 7 1964 to bring about political unity among the
people of South West Africa. The administrator for South West
Africa refused to allow the holding of a convention saying that he
would not allow 'White ants' to assemble at Rehoboth. After the
administrator had refused to allow the people to convene at Reho
both, the people asked to be allowed to hold the National Conven
tion at Okakarara in the \Vaterberg Native Reserve but the Govern
ment replied that only the Hereros would be allowed to hold a
meeting at Okakarara (see endosures). As the convention was in
tended for all the people of South West Africa and not for the
Hereros alone, the Hereros refused to hold a meeting for the Hereros
alone. The South African Government is fond of making the pro
paganda that the tribes in South West Africa are hostile towards one
another and that is why the Government is dividing them to prevent
war. To prove that this propaganda is false is that the tribes them
selves called for a national conventionand it was the South African
Government which refused in order to <lividethe tribes.
A national convention in South \Vest Africa is abso[utely neces
sary and we ask the United Nations to intervene so as to enable the
people of South West Africa to hold the said National Convention
soon."
And then it was signed by these three gentlemen. Now the enclosures to
which the letter refers-to complete the record here-is a telegram to WITNESSES AND EXPERTS
493
the Magistrate at Otjiwarongo from Chief Hosea Kutako and Chief
Samuel Witbooi-"Kindly give us permission to hold national conven
tion at Okakarara \Vaterberg Native Reserve :\fay 7 to ro 1964''. The
answer, enclosure I in the document, Windhoek, I May 1964 addressed
to Kutako-"Permission granted to Hereros only, report Magistrate
Otjewarongo", signed, "Magistrate Fig".
Now Sir, would you regard this, in your capacity as an expert, political
analyst and observer, as an attempt on the part of the Government to
prevent a meeting at which more than one tribc would be present?
Mr. DAHLMAKN:Mr. President, may I refer to certain parts of this
document. Iam convinced ...
The PRESIDENT:Do you have the document in front of you?
l\frDAHLMANNN ; o.
The PRESIDENT: You must have a very good memory if you can
remember it. What did you want to say?
Mr. DAHLMANNT : he administrator has been quoted in this document
as having said "White ants"-that he does not allow "White ants" to
meet there. I think it is more or less impossible because the administrator
is trying to get the co-operation of the different groups and I think it is
not the policy of the Government to prevent the different parties from
uniting because there is one example-SWAPO and SWANU have
formed the National Liberation Front. Although the leaders abroad,
SWAPO and SWANU leaders are highly antagonistic towards each other
and I think it is not fair to say that the Government is always trying to
<livide the different tribes because then one should think that the leaders
abroad would be united but we are far away from that situation, they are
even more hostile towards each other than the leaders within South West
Africa. I would not like to refer to or rely on statements made on the
occasion of political meetings-there is always an emotional effect or the
politicians are excited-I would only rely on written statements to the
United Nations or within their publications and statements to the press.
Mr. GRoss: Now Sir, I would like to call to your attention another
petition. This is likewise from Chief Kutako and Chief Samuel Witbooi
and is in document A/AC ro9 Petition No. zrr, dated 13 April 1964. In
this Petition is included the following exchange on page 4: There is an
enclosure in the form of a letter dated 30 January 1964 from Chief
Kutako to the Administrator which I will read:
"His Honour the Administrator,
Government Buildings, Windhoek.
Sir, I hereby wish to apply for permits for myself and fifteen
other persans to go to Ovamboland, Kaokoveld and Okavango
Native Reserves for the purpose of propagating the idea of one
political party for South West Africa. Our aim is to leave Windhoek
on 15 February 1964 and to return on 15 March 1964. Yours faith
fully, Hosea Kutako."
Enclosure 3 in the United Nations document which I have cited is dated
Windhoek, 4 February 1964, and is addressed to Senior Headman Hosea
Kutako, Windhoek-
"Sir,
Subjcct request for permits for yourself and fifteen others to visit
Ovamboland, Kaokoveld and the Okavango Bantu areas.
In reference to your letter of 30 January 1964 addressed to: His SOUTH WEST AFRICA
494
Honour the Administrator for South West Africa, a copy of which
has been referred tome for attention, Iregret to have to inform you
that your request cannot be acceded to. Yours faithfully, Chief
Bantu Affairs Commissioner for South West Africa."
Now Sir, do you have any reason to question the authenticity or veracity
of the exchange?
Mr. DAHLMANNN '.o, l\Ir. President. One explanation is that before a
permit is granted to go to any Reserve the authorities within the Reserve
are consulted-that means the Black authorities, the Chiefs and Head
mcn. From my persona! observations I know that these Chiefs and Head
men are highly opposed to the party of Hosea Kutako and that applies
also to the political organization which exists in Ovamboland with minor
support at the moment-this organization had quite remarkable support
in 1962. The SWAPO organization is highly opposed to Chief Hosea
Kutako's NUDO. So there is the possibi1ity that the Chiefs and Headmen
were consulted-the Government is consulting them regularly if these
occasions arise-and they might have been opposed toit.
Mr. GRoss: Is this purely conjecture on your part, Sir, or do you have
any information 01 ...?
Mr. DAHLMANNN : ot about this specific case. I only know about the
general attitude and that applies to al] the Reserves. These decisions are
only taken after consultations with the local non-White authorities.
Mr. GRoss: So that Sir, on the basis of your knowledge of the Territory
and the distance, speed in communications and the like, your assumption
would be, as an expert or otherwise, that between the letter dated 30
January and the response dated 4 February, in that interval the Chiefs in
Ovamboland, Kaokoveld and the Okavango Native Reserves have been
consulted and have advised the Administrator of their objection to this
proposed visit. Would that be your understanding, on the basis of your
knowledge of the Territory, as a probable situation?
Mr. DAHLMANNI:t is technicaHy possible.
Mr. GROSS:I would like now to tum to a broader line of your testimony
and would like to tie it in with what we have been discussing-t«;> which
Ipropose to return-that is, the attempts to form inter-tribal or national
political organizationsand the reasons why they have aborted. I should
like first, however, sothat you and the honourable Court may follow
more closely the line and purpose of my questions, to refer to your
testimony in the verbatim record on page 458, supra, and thus your
analysis as a witness and/or an expert concerning what you described as
the factors behind the political developments in South West Africa
obviously a matter of great concern in this case. On page 458 of this ver
batim record, you testifi.ed as follows:
"... without keeping in mind certain basic facts and f01ces it is
practically impossible to understand the attitude, activities and
antagonism which manifest themselves in the political sphere in
South West Africa".
And then later on at the same page, you referred among other things to
"the factor of Black nationalism or Pan-Africanism". Sir, as related to
that, on page 459 you stated as follows in, I believe, the same context:
"Another factor is, as I mentioned, the Black nationalism in
Africa.That is, of course.,a force behind certain political movements
in South West Africa. The central idea is, Africa for the Africans. WITNESSES ANDEXPERTS
495
The leaders of certain political organizations in South West Africa
whC?ar~,living abroad are trying to import these ideas to South West
Afnca.
That is a correct version of your testimony as you recaH it, Sir? Then
specifically with respect to certain aspects ofe situation, you testified
on page 470, supra, of the same verbatim record that the Chiefs and
Headmen, you were referring to Ovamboland at that point-"even asked
for the implementation of the political part of the Odendaai Plan". Then
on page 471, you referredto the Chief'sCouncil of Hosea Kutako and you
testified:
"The so-cailed Chief's Council of Hosea Kutako is the strongest
non-White anti-government group in South West Africa ... They
are mt;fnly responsible for the internai campaign against the Govern
ment.
I put to you, if I may, Sir, the following questions: in the first place,
could vou advise the Court what is the civil status of Natives in South
West Àfrica? Are they citizens so far as you are aware, Sir?
Mr. DAHLMANNM : r. President, for non-\Vhites we have different, as I
explained in my evidence, nations in South \Vest Africa, for example the
Herero Nation, the Ovambo Nation and the Namas are more or less
divided into different tribesnd the same applies to the Damara. If you
ask one of the non-Whites in South West Africa: what are you. they say
I am a Herero, I am an Ovambo, m I am Damara, or sometimes they say
I am a Kaffir or I am a Rehoboth Burgher. That is actuaUy the answer
you get from the non-Whites themselves.
Mr. GROSS:Can you answer my question whether by law the non-
Whites are citizens in South West Africa, or do you not know, Sir?
Mr. DAHLMANNN : o, definitely not.
Mr. GROSS:They are definitely not citizens?
Mr. DAHLMANNN : o South West African citizenship exists. lt never
existed.
l\Ir. GROSS:Now, Sir, are the non-Whites of South West Africa citizens
of South Africa?
Mr. DAHLMANNW : henever non-Whites from South West Africa leave
South West Africa and need travel documents, as far as I know, they get
a South African passport.
Mr. GROSS:Sir, are non-Whites resident in South West Africa citizens
of South West Africa or do you not know, Sir?
Mr. DAHLMANNI: can only repeat what I said.
Mr. GROSS:But do you know what legislation, if any, governs this
subject, as part of your political studies of the situation, Sir?
Mr. DAHLMANNT :he Minister for Bantu Affairs in South Africa.
Mr. GROSS:I beg your pardon, Sir. Let me talk about a persan, a non
White person in South West Africa, who has not appiied for a passport
to South Africa, has no intention of going there, but wants to find out
whether or not he is a citizen of the Republic of South Africa. Couid you
answer that question, on the basis of your own knowledge, Sir?
The PRESIDEKT:What is that question, Mr. Gross?
Mr. GRoss: Pardon me, Sir?
The PRESIDENT:I did not follow the question.
Mr. GROSS:Yes, Sir. I beg your pardon, Sir. I will try to ciarify it. If a
non-White, himseif resident in South West Africa, does not apply for a SOUTH WEST AFRICA
passport, but merely wishes to know what his status is in South West
Africa, do you, or do you not know, whether he is, or is not, a citizen of
the Republic of South Africa?
l\fr. DAHLMANNM : r. President, he himself knov,,s what he is and he
knows: "I am a Nama, I am a Herero, I am Ovambo", and I have never
heard that this question arose.
Mr. GROSS:Do you regard it as-I ask you as a political expert and
anaJyst-a factor in an individual's relationship to the political life of his
community to know whether or not he is a citizen?
Mr. DAHLMANNH : e is part and parcel of his own nation, in the fi.rst
instance, and there are these close tribal and national links, however one
wants to call them, within this community and he cannot regard himself
as anything else than he is.
Mr. GROSS:Sir, you, I believe, have testified that you yourself came to
South West Africain 1958 from Germany. Is that correct?
Mr. DAHLMANNT :hat is correct.
Mr. GROSS:Now, Sir, have you acquired citizenship since your arrival
in South West Africa?
Mr. DAHLMANNY : es, Mr. President, I have.
Mr. GRoss: Do you know, Sir, then if you are a citizen of the Republic
of South Africa? You obviously do.
Mr. DAHLMANNY : es, I know that.
Mr. GROSS,Now, in the case of a non-White, who, let us say, was born
in Windhoek, has lived there all his lifc-Iam taking that as a hypothet
ical example-and he wishes to know whether he is, or is not, a citizen
of the Republic of South Africa, how can he find out and what will he be
told-if you know, Sir?
Mr. DAHLMANNH : e can find that out from the Department of Bantu
Affairs.
Mr. GROSS:And what would the Minister of Bantu Affairs tell him-if
you know, Sir?
Mr. DAHLMANN : do not know.
1\11. Ross: You do not know, Sir, what he would be told?
Mr. DAHLMANNN : o.
l\'lr. GRoss: Are the non-Whites regarded as, to use a phrase that has
been used in the tcstimony, sojourners, or temporary residents in the
southern sector irrespective of the length of time which they have lived,
or may live, in that scctor?
Mr. DAHLMANNM : r. President, that applies especially, doubtless, to
the Ovambo, to the migrant labour and that is nota Government law,
that is a tribal law. The Chiefs are interested in keeping these tribal or
national links. They, therefore, donot allow families to leave Ovambo
land, only the men are allowed to go to the southern sector and the men
have to go back to Ovamboland to look after the family after a certain
period. The length of this period is discussedith the tribal authorities
and so he regards himself as an ûvambo, as belonging to his nation, to
his Ovambo nation.
Mr. GRoss: Now, Sir, during the period after you had arrived in South
West Africa and prior to your obtaining citizenship of South Africa-that
was, incidentally, for how long a period? For how long a period prior to
the conferment of South African citizenship?
l\Ir. DAHLMANNF :ive vears.
Mr. GROSS:During that period of five years, what rights-let me WITXESSES AN'D EXPERTS 497
exclude voting, if I may-if any, were you denied because you were not
a citizen of the Republic of South Africa?
Mr. DAHLMANN: Voting rights, of course, and some other rights, but
the same restrictions apply also to South African citizens. For example,
I cannot go, no White is allowed to go to the non-White townships with
out a permit. Although the non-Whites are entitled to corne to my office
or to my house without a permit. I am not allowed to go to the Native
Reserves without a permit.
Mr. GRoss: You are not allowed to go as a \Vhite or is the fact that
you are not allowed to go without a permit because you are, or were not,
a citizen? I am not certain, Sir, that I understood the point of your
response.
Mr. DAHLMANN: I said that applies also to South African citizens.
Mr. GRoss: Yes, Sir. Can you, for the benefit of the Court, indicate
what, if any, rights,other than voting, you were denied by reason of the
fact that you were nota citizen during those fi.ve years? .
Mr. DAHLMANN: For example, when I was supposed to leave Wmd
hoek, I had to go to Immigration and tell them: "Now I am going to
Cape Town", for example. I could not take another employment for a
certain period. Iwas not a!lowed to do that; I think for three years I had
to stay in this employment. At the moment, that is all I can think of.
Mr. GROSS:With respect to the requirement, for example, of remaining
in that employment for three years, is that a rule of general application
to Whites and non-Whites alike, if thcy were not citizens? Did you
understand rny question, Sir?
Mr. DAHLMANN: Yes, I understand it. That applies only to foreigners.
l\Ir. GROSS:To White foreigners?
l\fr.DAHLMANN: I think to \Vhite foreigners.
î\Ir. GROSS:Alone, Sir?
l\lr.DAHLMANN: 1 think so.
Mr. GROSS:\Vith respect to the rights which pertain to, let us say,
owning or leasing of land or rights pertaining to advancement or promo
tion, you were not subject to any restrictions because you were not a
citizen, were you, Sir?
Mr. DAHLMANN: No, there were some restrictions, as I mentioned.
Mr. GRoss: Of the sort I have indicatcd, Sir?
Mr. DAHLMANN: One could not be promoted, because you had to re
main in the same job and you had to get permission, for example, when
I bccame the editor ... I came to South West Africa and was Assistant
Editor and after a short time I had to become Editor because therc was
nobody else any more and so we had to apply for that.
Mr. GRoss: This is what I was lcading to. I think you testified that
when you came to South West Africa, you came as Assistant Editor?
Mr. DAHLMANN: Correct.
111r. ROSS:And I think you testified that in about two years, that is to
say, whilc you were still a foreigner, a non-citizen, you were promoted to
Editor?
l\IrDAHLMANN: Yes.
Mr. GROSS:There was obviously, then, no obstacle placed to your
promotion by reason of your non-citizenship, Sir? It would follow, would
it not?
Mr. DAHLMANN: The authorities had to be informed aboutit.
Mr. GROSS: But there werc no restrictions placed upon it? SOUTH WEST ,\FRICA
Mr. DAHLMANNT :hey did not refuse permission.
Mr. GROSS: I am interested in the aspect of your testimony which
relates to what you described, on page 470, supra, of your testimony,
as the "political part of the Odendaal plan" and the factor which you
apparently had in mind, Sir, in connection with the attitude of the Chiefs
in Ovamboland to whom you referred and of the Hercro Chiefs, to whom
you referred, as, inthe one case apparently favouring the plan, and in the
other case strongly opposing it. This is your testimony, is it not, Sir?
Wîth respect to the attitudes toward the political part of the Odendaal
plan-again·touse your words-would you say, Sir, that such attitudes
are properly to be regarded as materially influencing political develop
ment among the non-White inhabitants of the Territory?
Mr. DAHLMANNY : ou mcan the attitude of the Ovambos?
Mr. GROSS: Let me clarify my question. Mr. Muller, at page 465, supra,
of the verbatim record asked you a very broad question which included
your comments-your testimony. The reference which I have in mind is
that the points to which your testimony would be directed would include
the circurnstances and conditions in South West Africa which materially
influence political developments amongst the non-White inhabitants of
the Territory. Then, as I believe I have read before, in the testimony of
Friday Mr. Muller asked you, at page 458, supra:
"Now will you tell the Court whether there are certain factors
which influence the existence of and support for political parties
amongst the indigenous population of the Territory?"
Now, my question to you, and I think I can state it quite simply, is
would you say, Sir, that the attitudes for or against the political section
of the Odendaal plan, as you called ît, would be one of the factors which
materially influence politicalattitudes in South West Africa among the
non-White inhabitants? .
Mr. DAHLMANNN : o, I think that they are completely diffcrent sub
jects.
Mr. GROSS: Sir, the attitudes toward the Odendaal plan, to which I
shall invite your attention shortly-do they, in your expert opinion,
materially or otherwise influence political movements, political activities,
politicalattitudes in the Territory?
Mr. DAHI..MANN: As far as the parties which are in opposition are con
cerned, yes.
Mr. GROSS: As far as the parties are concerned who have any attitude
toward the plan, for or against, was my question. Do you regard this as a
material and relevant factor in connection with political attitudes and
developments in the Territory?
Mr. DAHLMANNI: think I mentioned in my evidence that most of the
political parties are against the implementation of the Odendaal plan.
The only semi-political organization in favour ofhe Odendaal plan is the
South West Africa Coloured Organization. I also mentioned that al] these
parties, except NUDO, do not enjoy the support of the majority of the
respective groups which they represent.
Mr. GROSS: Now, Sir, with respect to the petition to which you have
referred-the A/AC rng Petition 215, 13 April 1964, which is a petition
from the South West Africa National Union and the South West Africa
Peoples Organization and was addressed to the Special Committee at the
United Nations. That is the document to which you referred is it not, Sir,
in your testimony today? WITNESSES AND EXPERTS
499
Mr. DAHLMANNT :hat is correct.
Mr. GRoss: Now, Sir, is itnot a fact that the joint petition by these
two organizations stated in very strong terms the common opposition
of both of these organizations to the implementation of the political
sections of the Odendaal plan?
Mr. DAHLMANNY : es.
Mr. GRoss: Is it correct to say that on page2 they said, after referring
to the plan in the report, the following:
"The report of this prejudiced Odendaal Commission has caused
expectedly serious tension among the African population of South
West Africa. The fondamental reason for this Verwoerd South Africa
Commission has been to further intensify apartheid policies, en
trench the position of the White settlers, the majority of whom corne
from South Africa. They have remained South African citizens and
to regularize their position of dual citizenship they are encouraging
their South African Government to annex our motherland South
West Africa into South Africa, by force if that should ever become
necessary.''
I pause there, Sir. I am not asking you to comment, unless you wish
to, on whether this is a correct Iegal, political or practical statement, I
am addressing it to you for my subsequent question as a statement of
attitude, right or wrong, on the part of these organizations.
The next sentence is, isit not, Sir-Iwill go back to read each of these,
ifthe President permits me to do so?
The PRESIDENT:Has the witness got a copy of this petition in front
of him?
Mr. GROSS:lt is the one he cited.
The PRESIDENT:You have it?
Mr. DAHLMANNY : es.
Mr. GRoss: To complete the thought, I will go back over it. There will
be plenty of opportunity to comment, Sir, if you wish.
"It was further to pave the way for the introduction of the most
abhorrent Bantustan programme, or partition scheme, that will
followtheir trail. The sketching of the country into Bantustans has
one result: promoting a racial war between the indigenous peoples
and the White settlers. The Odendaal Commission scheme, de
scribed as the Five-Year Plan, is just a five-year plan of apartheid to
introduce Bantustan apartheid programme in South West Africa
much against the wishes of the African majority peoples in the
Territory."
Now, Sir, I will break this down for you if you wish and the President
permits-1 take it that you would agree that this is a strongly worded
and rather emotional statement concerning the attitude of these party
leaders toward the plan? You would agree to that, Sir, would you not?
Mr. DAHLMANNY : es, Mr. President, that is _correct. Many of these
petitions are very strongly worded and I could refer to a petition with
even stronger wording where it suggests that the White settlers should be
killed,but I think I also said that SWANU and SWAPO enjoy very
limited support in South West Africa and I only want to mention one
example. When thesc chiefs and headmen of Ovamboland wrote to the
Prime Minister and the contents of the letterwere published, there was
no reaction from SWAPO within the Territory. The Acting President of500 SOUTH WEST AFRICA
SWAPO in South West Africa, Nathaniel Mahuiriri in Walvis Bay, wrote
at that very stage to me and he complained about the behaviour of the
Superintendent of the Walvis Bay Location.
Although I admit it is completely impossible to say how many mcm
bers these organizations have, because one should have access to the
membership lists, if they exist, these political leaders of course claim that
the majority of their respective people are behind them. If I may stress
that point a little, to show what support they claim to have: if you take
only three organizations, that is SWAPO, SWA:.~U and UNIPP, which
is unknown in South West Africa and which does not exist any more, but
for all practical purposes one can say NACIP-National Convention
Independence Party-UNIPP-United Namib lndependent Peoples
Party-and NUDO-National Unity Democratic Organization-are the
same. Then you corne to the fantastic figure that these three organizations
have support of 345,900 members. The General Secretary ofUNIPP, for
example-SWANU says that this pcrson does not exist at ail, but he
daims in a pctition to the United Nations that UNIPP has 245,000
members.
If I may quote this petition to the United Nations (Doc. A/AC 109
Petition 279 Add. 3), a petition from Izilima Sokokoina, Secretary
General of the United Namib Independent Peoples Party (UNIPP) con
cerning South West Africa.
".Pleasc allow me to explain the information of UNI PP to your
estecmcd organization. In every colonially oppressed country in
Africa the liberation movement of the indigenous masses has always
needed a spark of life which can only be inspired after contact with
a great national leader-a leader with a love for the soi! of his
mother-country. ln this country, South West Africa, here after to
be called the land of Namib, such a leader has at least succeeded in
gaining the recognition of his people. At last the people of Namib
have acclaimed as a great shining star that illustrious, beloved son
of the land Dr. Mburumba Kerena. Tous our mighty Kerena is as
Nkrumah of Ghana, the Banda of Malawi, he is our redeemer, forced
to a lonely exile in the desert of Bechuanaland; our leader has
incessantly pleaded with his countrymen to stop the age-old bic~er
ings and suspicions inherent in his strife-torn tribal country.
With his great know]edge of international and human affairs, our
leader could see that freedom would corne to Namib onlv after aII
rival political parties had disappeared and one liberation movement
formed. In vain he pleaded with the leader of SWAPO, S\VANU,
and different tribes, to stop being sectional and to form only one
national movement ... "
The PRESIDENT: Mr. Dahlmann, what is the purpose of quoting this in
all the detail in answer to the question which was put to you by Mr.
Gross? What is the inference or the conclusion you are seeking to draw
from all this?
Mr. DAHLMANNT :o give an impression of how the other parties, also
the United Front, were thinking about the support of SWAPO and
S_WANU.Mr. Gross referred to these two organizations and their opposi
tion to the Odendaal plan, and I said in my evidence that I am of the
opinion that these two organizations, SWAPO and SWANU, enjoy only
limited support-numerically limited support. WITNESSES AND EXPERTS 501
The PRESIDENT:What do you rnean by limited support numerically?
Have you got any figure in your mind at all?
Mr. DAHLMANNT : his organization, which does not exist any more,
and that is why I quote it from this document, the Secretary-General of
this party later makes the statement that his party represents 245,000
people.
The PRESIDENT:Is that, in your opinion correct?
Mr. DAHLMANNT :hat is completcly incorrect. SWAPO claimed to have
90,900, according to a statement made by the Acting President of
SWAPO, in 1962; at the beginning of this year, he claimed that SWAPO
had a membership of only 60,000. His opponents, the same people who
are co-operating with S\VAPO within SWANU, deny that and ...
Mr. GROSS:Mr. President, I have no objection to this response of
question, ifthe Court please. lt is completely unresponsive to the intent
of my question, Mr. President, and if I could reframe my question to
clarifyit, it would save a lot of time.
The PRESIDENT:The great difftculty, Mr. Gross, is that you ask a
witness to comment upon a long statement. well then he gives a comment,
and Ido not think it assists the Court to give great detail on the strength
of it, but nonetheless, if I may be forgiven for saying so, it is because you
do not put your questions specifically to him, you invite a comment and
you get it, that is why I am seeking to find from the witness what his
conclusion was.
Can you not fmish what you have got to sayon this particular matter
fairly quickly, Mr. Dahlmann?
Mr. DAHJ,MANN:Yes, very quickly, Mr. President, I only want to
quote one sentence from Freedom. S\VANU international organ, June
August 1965, page g:
"SWAPO is fighting. It bas 90,000 members-bigger and older
than SWANU. One can now safely sa.y that all this hypocritical
nonsense was and is merely for journalistic and outside financial
1
backers' consumption purely and simply.'
The PRESIDENT: I suppose it ail adds up to this: the daims by various
parties as to the numbers of adherents they had, are in your opinion
unreliable and not correct.
Mr. DAHLMANNT : hat is correct, Mr. President.
The PRESIDENT: Weil, that could have been said in very simple
language.
Mr. GROSS: Mr. President, may I revert to my intended question? I
have observcd the admonition and respect it deeply, Sir, because I get
myself into difficulty otherwise. Ihad not realized that I had asked for
comment, I thought that I had learnt better, Sir. I thought I had asked
the witness, and now intend to pursue it in this form, to express agree
ment or disagrcement, or indicate in what respects, if any, information
is wrong.
I will now refer to a second petition which relates tothe opposition to
the Odendaal Commission report and the political plan to which you
referred in your testimony, Sir, at the page I have cited. I refer now to a
petition from members of the tribal" committee of the Damaras, con
cerning South West Africa, A/AC.ro9/Pet.217. 13 April 1964, and at
page 6, this is a very brief excerpt which I shall read:
"\Vith reference to the communication that the Damaras [p. 4],502 SOUTHWESTAFRICA
by means of Chief Gorseb, gave their approval with the intentions
for Bantustans as resumed [I think that means as summarised] in
the Odendaal Report, and as explained by the Minister to Vet Nel
at Okombahe, the tribal committee of the Damaras wished to
declare as follows:
I. The Darnaras are against the procedure which was followed
beforeand during the meeting of the named Minister at Okorn
bahe on 24 February 1964, and declare that meeting to be non
official."
It goes on to say:
"... at the meeting there was no occasion for question or discussion
with members of the tribal committee which consists of IO members
who unanimously were against the Bantustans ... ".
Now, Sir, do you have any information which would indicate that these
ten members of the tribal committee did not send this petition to the
United Nations?
Mr. DAHLMANNM : r. President, I have no doubt that these members
of the committee did send this petition to the United Nations, and I
know some of them personally and I know their attitudes; I also know
that they cannot daim to represent the whole Damara tribe. I have said
quite clearly inmy evidence, I think, that they are in opposition to the
Government and the ûdendaal plan (the Damara Tribal Executive Com
mittee) and also in opposition to the Damara chief in Okombahe; but
they cannot daim that they have a majority support of the Damara
tribe, they are trying to re-organize the Damara tribe which is scattered
and the tribal links are not very strong due to the history of this specific
tribe.
The PRESIDENT:\Vell, if they cannot daim a majority support, can
you give the Court some indication as to what support they can daim?
Mr. DAHLMANNM : r. President, it is difficult to establish because they
are travelling from place to place-from Windhoek to Tsumeb to Walvis
baai-wherever Damaras are living, to the whole of the Territory to have
discussions with theirpeople, and are trying to persuade them in two
directions: (1) against NUDO, against the Herero dominated NUDO;
(2)against the Government and against the Odendaal plan. There is no
doubt about that. ·
Mr. GROSS:Mr. Dahlmann, would you say that there is any political
party, regardless of its size or daims, among the Natives which has ex
pressed support for the Odendaal Commission's political plan, as you
describe it?
Mr.DAHLMANN T:here isonly one political organization which supports
the Odendaal plan, that is the South West Africa Coloured ...
l\Ir. GROSS:1 said other than Coloured ...
Mr. DAHLMANNN : o other organization but, as I explained, all these
organizations except NUDO enjoy a very limited support among their
group.
The PRESIDENT:I think you have told us that before, Mr. Dahlmann.
Mr. GRoss: Ithink you have made that contention very clear, Sir.
With respect to the question I asked you, I take it that the answer is, no.
There are no Native groups, political organizations, which have sup·
ported or express support for the Odendaal plan?
The PRESIDENT:Mr. Muller. WITNESSES ANDEXPERTS 503
Mr. MULLER:With respect, Mr. President, I think it should be clear
whether he refers to political parties, political organizations or groups.
He has mentioned ail three now in one sentence.
Mr. DAHLMANNP :olitical organizations, yes; political parties, no-no
political parties except SWACO support the Odendaal plan; but I would
say the political authorities, the traditional chiefs and headmen of the
different groups, support the Odendaal plan and that applies especially
to the greatest nation in South West Africa, to the Ovambos.
Mr. GRoss: Yes, Sir. Now, would you say, Sir, that in the testimony
which you have given, in which you have referred several times to anti
government as a description of the objectives or policies of political
parties,that the phrase "anti-government", as you use it, refers, among
other things, to whether or not the party is against the Odendaal Com
mission plan?
Mr. DAHLMANNT :hese parties are against the Government and against
anything the Govemment is doing; for example, this applies to NUDO
they are even against economic development. Kapuuo said in an interview,
for example, and the interview 1 refer to is an interview with Christian
Herter, Jnr., that he is against the Kunene Scheme, against this hydro
electric power scheme near the Ruacana Falls, because that cornes from
the South African Govemment.
Mr. GROSS:Sir, is the opposition to the Odendaal plan based upon the
policies of the political parties, opposition to the apartheid policy
generally?
Mr. DAHLMANNI: did not get that quite clear.
Mr. GROSS:Is the political opposition, to which you referred, to the
ûdendaal plan related to, or an aspect of, the general opposition of poli
ticalparties to the apartheid system generally?
Mr. DAHLMANNT : he opposition is against the denial of African major
ity rule.
Mr. GRoss: Is that the extent of your answer to my question? You
would not say, Sir, or would you agree, that there is a general opposition
of the political parties that do exist to the apartheid policy?
Mr. DAHLMANN t amounts to this effect, that ail these parties are
against anything except African majority rule.
Mr. GROss: Now, Sir, with regard to the Odendaal plan itself, and the
basis of the opposition felt toit and expressed toit, would you advise the
Court, on the basis of your knowledge of the ûdendaal plan, which I
assume you have studied, have you, Sir?
Mr. DAHLMANNY : es, I have.
Mr. GROSS:How many Natives would be moved in order to accomplish
the recommendations of the plan?
The PRESIDENT:"l\foved" in what sense?
Mr. GRoss: How many Natives would be moved to accomplish the
homelands recommendations of the plan? Shall I be more specific, Mr.
President?
The PRESIDENT:Mr. Muller.
Mr. MULLER:With respect, Mr. President, I would abject to that.
There is nothing in the Odendaal Commission plan about people being
moved, as far as I know. ·
Mr. GRoss: Well, I will attempt to enlighten counsel, Mr. President.
Mr. DAHLMANNM : y answer, Sir-nobody.
The PRESIDENT:Is there anything in the report, Mr. Gross, which SOUTHWESTAFRICA
says that there is a certain number, or that a number will be moved?
Mr. GROSS: No, Sir, there is not. My question was related to the
witness's knowledge-how many people would be moved if the political
recommendations of the Odendaal plan were to be accomplished, Sir.
The PRESIDENT:Moved, or resettled, or would themselves transfer?
Mr. GROSS:However they might be physically moved, relocated or
persuaded, or otherwise, Sir. My question was directed to the accomplish
ment of the Odendaal Commission recommendations, to which I shall
now turn to clarify my learned friend's analysis of the report. I refer to
an article by Mr. Gordon Laurie, published in African Studies, Volume
23, Nos. 3 to 4 of 1g64, Do you know who Mr. Laurie is, Sir? You have
heard of him?
Mr. DAHLMANNY : es.
Mr. GROSS:.Mr. Laurie is Director of the South African Institute of
International Affairs in Johannesburg, according to the head-note in this
article. He has analysed the plan, and has a heading "Population l\fove
ments Implicit in the Homelands Proposal". He states that "the Report
does not expliciUy state how many persans will need to move if its re
commendations are fully implemented"-that is a correct understanding,
is it, of the report, so far as you know? It does not explicitly state how
many persans will need to move if its recommendations are fully im
plemented?
Mr. DAHLMANN:No, I think a different thing has been stated-that
nobody (that applies to Whites and non-\Vhites) will be forced to go to
another place.
Mr. GROSS:Will you please, if Imay invite you, answer my questions
"yes" or "no" where possible? The statement is "the Report does not
explicitly state how many persans will need to move ifits recommenda
tions are fullyimplemented". Is that correct, or is it not?
Mr. DAHLMANNT : hat is correct.
Mr. GRoss: That is correct. Now then, his analysis goes on to say:
"Part D, which deals with homelands, gives 1960 population
figures for each ethnie group, but these figures refer [and he has this
in italics] not to the actual population of the proposed homeland
area, but to the total membership of the group concerned, irrespec
tive of where individuals are at present living."
I will pause there to ask whether you have heard it complained of, or the
view expressed in your consultations and conferences, that there is a
potentially misleading aspect of the way the Odendaal Commission report
sets up the population figures? Have you ever encountered that question
or qucry?
Mr. DAHLMANNN : ever.
Mr. GRoss: You never have. Now let me take as an example, at
page 95, with respect to Hereroland.
The PRESIDENT:l\Ir. Dahlmann, would you look at the report which is
before vou there?
Mr. GRoss: Page 95, paragraph No. 6 on the left-hand column
Chapter 6-is headed "In Respect of Hereroland" and states "Herero
population 1960: 35,354". It is a fact, is it not, that this actually refers
to the entire Herero population throughout the Territory? Is that not
correct, at the present time?
Mr. DAHLMANNT : hat is correct. WITNESSES ANDEXPERTS
505
l\fr. GROSS:In order to avoid any possible confusion by the editorial
form in which this is placed and to which attention is called by Mr. Laurie
in his study, the actual fact is, is it not, that in the proposed Hereroland
there is at the present timc a population of approximately rr,ooo? Is that
correct, so far as you know?
Mr. DAHLMANNI: am not familiar with that figure.
Mr. GROSS:That will be found in the Odendaal Commission report in
table XX and is undisputed by the Applicants. I would prefer, i\Ir. Presi
dent, with your indulgence, to make the exact citation-tables XIX and
XX on page 4r tell the whole story. It will be found in table XX that
there are in home areas 15,000 Hereros. Table XIX shows that in the
urban areas there are 9,000 Hereros and in the rural areas rn,ooo. There
fore, by a simple process of deduction, is it not so, that by subtraction,
which is the method used by Mr. Laurie, there are I1,000 only out of the
35,000 Hereros that are presently living in what is to be the new Herero
land-is that correct, or would you have any rcason to dispute the figure?
The PRESIDENT:How do you arrive at that, Mr. Gross? At the moment
Idon't see it.
Mr. GROSS:Sir, the figures are broken down this way: there is set forth
in table XIX on page 41 the number of Hereros living in the urban
areas, and that totals 9,192; there are rn,606 Hereros living in the rural
areas. Then when you move over, so that you subtract those approxi
mately 20,000 Hereros from the total population, you have a balance
of ...
The PRESIDENT:15,000.
Mr. GROSS:15,000. We are dealing with these 15,000; now I am coming
to the demonstration that of these 15,000, 4,000 live outside what is now
the proposed Hereroland. That demonstration arises from still another
table in another portion of the report which shows the present Herero
population in threc of the Reserves from which they would be expected
to depart and go to the new Hereroland. That is shown at table XX,
page 41, with respect to the three home areas in which Hereros now live
which they would be persuaded to leave. These arc at the top of page 97
-Aminuis. Otjohorongo and Ovitoto---those three Reserves would no
longer be occupied by Hcrero who now live in them if the new recommen
dations were adoptcd. With respect to those three Reserves there are,
according to table XX on page 41, in Aminuis 1,9II Hereros, in Otjo
horongo 1,840 Hcreros and in Ovitoto 1,000 Hereros; that group totalling
something of the order of 4,000 do not now live in what will be Herero
land, Sir,and this lcaves the figure of u,ooo.
The PRESIDENT:Thank you-that is the way in which you arrived at
this figure ?
Mr. GRoss: Thal is right, Sir.
The PRESIDENT:Then perhaps you might direct your question to the
witness along those lines.
Ilfr. GROSS:Yes, Sir, and I apologize for the difficulty of building it up,
or extrapolating it, but this is the derivation.
The PRESIDENT:Does the witness agree with that?
Mr. DAHLMANNS :hall I answer the question? No. 1,no one is forced
to go to these future homelands, and No. 2, 1 am sorry to say so,
but this is a bad example, to my mind, because as I mcntioned before the
Hereros were not prepared to discuss things with the Odendaal Com
mission, so there was no common ground for consultations; and the506 SOUTHWESTAFRICA
Odendaal Commission could not possibly leave the Hereros out of their
plan and of their recommendations, so they had to propose something
after consultations with all the other groups, and I think the door for
consultations about this future Hereroland is still open.
Mr. GROSS:Now Sir, we turn to Damaraland. \Vith respect to Damara
land as to which there were some consultations-! think you are aware
of that, are vou?
Mr. DAHLMANNY : es, Sir.
Mr. GROSS:Now with respect to Damaraland, on the basis of the same
tables, and first with referenceto the Odendaal Commission report, to
avoid any possible confusion by the editorial format which has been said
to occasion some confusion, there is on page 89, Section V, of the Oden
daal report,the following under the heading of paragraph 5-" In respect
of Damaraland, Population 1960: 44,353. From the format, Sir, it might
be inferred or implied that the population of Damaraland is 44,353 but
is it not the fact, Sir, that the 44,353 set forth here as the population of
Damaraland in fact represents the population of Damaras widely scat
tered through South West Africa in the southem sector? Is that not
correct?
Mr. DAHLMANNT :hat is correct, Mr. President.
Mr. Gnoss: And do you know, Sir, whether it is a fact that despite
the impression that might be created that 44,000 more Damaras live in
what is called Damaraland here, that when the analysis is made of the
health section of the Odendaal Commission report, which is at page 183,
paragraph 794, it is found that there are a mere 5,000 people living in the
whole of the proposed new Damaraland? Is that correct so far as you are
aware, Sir?
The PRESIDENT:Do you know one way or the other, witness?
Mr. DAHLMANNI:do not know exactly. Shall I refer only to this figure
or to what shall I refer?
Mr. GROSS:May I simplify it,with the Presîdent's permission, and
ask you whether you have taken irito account, in your analysis of the
factors underlying the indigenous political movements and attitudes, the
result in terms of movement of population which would be in Mr. Laurie's
phrase, "implicit in the accomplishment of the Odendaal recommenda
tions"? Have you taken this factor into account in your anatysis, Sir?
llfr. DAHLMANNI: have taken different factors into account.
The PRESIDENT:Have you taken this one, that is the point.
1\fr.DAHLMANNI:ncluding this one.
Mr. GROSS:And have you thought it significant enough tomake any
sort of study or analysis of the number of persons who would be removed
voluntarily or otherwise in the accomplishment of this plan?
Mr. DAHLMANNM : r. President, that will depend on the opportunities
offered to these people within the future Damaraland, whether they will
be attracted by these opportunities or not and they are free to choose
whether they will move or not.
Mr. GROSS:That is the extent of the answer to my question of whether
you considered the factor of the numbers of people who would be moved
m the accomplishment of this plan?
Mr. DAHLMANNB : ut they will not be moved, they are free to do
whatever they prefer.
Mr. GRoss: Now Sir, we turn to Namaland. With respect to the
proposed Namaland, the Odendaal Commission report at page IOI in this WITNESSES AND EXPERTS
507
same editorial format, sets forth ·that-"In Respect of Namaland, Nama
population 1960: 34,806". Now, Sir, by reference to another and ap
parently unrelated section of the Odendaal report, which is page 187,
at paragraph 818, you will find, Sir, that the proposed Namaland
presently carries a population of only 4,roo. Do you have any reason to
doubt the accuracy of that figure, Sir?
Mr. DAHLMANN: I do not know personally the exact figure of Namas
living in future Namaland.
Mi. GROSS:Thank you, Sir. Let us take another illustration-Tswana
land. You wiil find, Sir, in the Odendaal Commission report, page 99. in
this same format, section 8-"ln Respect of the Tswana. Population
1960: 2,632." Now, Sir, in paragraph 378 on page 99, you will find that
there are 425 Tswanas. These, Sir, are not in what would be Tswanaland
at all but in the adjacent terri tory of Aminuis, which is not to be included
in the new homeland of Tswanaland. Do you have any basis for dis
agreeing with or questioning those figures?
The PRESIDENT:Mr. Gross, it is quite obvious that you draw certain
conclusions from the figures and those conclusions may be perfectly cor
rect but it is a little difficult to putto a witness, when it takes you some
time youn,elf to find out how it is arrived at: have you any reason to
disagree with those figures? I have no reason to disagree, and nobody
else has because they have not been checked precisely yet but they will
be checked. In each particular case, it will be seen that when reference is
made to Namaland it is the future Narnaland, or when to Hereroland it
is the future Hereroland, and the total figure given in respect of each
coïncides precisely with the figures given on table XIX. The point which
is being putto you, l\Ir. Dahlmann-I think there is some cross purposes
between you-in each of these cases, there is involved the carrying out of
the scheme of the various homelands in the report, the movement of
substantial numbers of people to get to the homeland which is to be
marked out for them. The question, Mr. Gross I understood was directing
his attention to was-did that create any political opposition and was it
one of the reasons why the people of South West Africa or a number of
them objected ta the Odendaal report. That is really the question, isn't it?
Mr. GROSS:Yes, l\Ir. President.
Mr. DAHLMANNl:\lr. President, a number of people within South West
Africa objected against the Odendaal report but as far as the different
groups are concerned and the homelands-some of them are existing and
others will be or are supposed to be created-the vast majority of the
non-Whites in South West Africa are not in opposition with the Govern
ment because of the future implementation of the Odendaal plan. There
are small groups which are definitely in opposition and which are, as I
explained, in opposition to any plan which this Government is going to
introduce.
Mr. GROSS:With respect to the Natives who reside in the urban areas
of the southern sector, which is described as the modern or exchange
economy of the southern sector, is it your understanding, as an analyst
and political expert, that the Odendaal Commission plan contemplates
that those Natives residing there will be persuaded or urged to go to the
homelands physically? ·
M.r.DAHLMANN: l\fr. President, ail these non-\Vhites who are living in
the so-called Police Zone have their links and relations with people in
their Reserves, most of them own cattle or have their families there and508 SOUTHWEST AFRICA
they arc very closely connected to the present Reserves. That does not
only apply to the migrant labour to the Ovambos, but also to those who
permanently earn their living in the Police Zone. Thcsc people are free
to stay there, or they might find it more attractivetogo to the Reserves
or to their homelands, because these homelands might offer much better
opportunitics than they had under the present situation where they have
to face the competition from the Whites. I think the Odendaal plan
makes it more or less clear, and I can only repeat, that these individuals
or groups will not be moved, they can stay there or, if they think they
have better possibilities in their homelands then they are free to go to
their homelands. It is, of course, important that the parts are of South
West Africa which are not very highly deveioped. At present only this
nucleus, this centrepart is further dcveloped than the other areas, and it
is quite obvious that the Government is interested in developing further
parts of the country. Therefore, the Govemment might be interested and
might persuade those who are living in the Police Zone to develop
underdeveloped areas.
Mr. GRoss: Sir, you referred to as one of the possibly motivating factors
the desire, I am paraphrasing loosely, to avoid the risks or disadvantages
of economic competition with the Whites. Are you aware, from yoür
studies and political observation, of the nature and cxtent of the limita
tions imposed upon the freedom of economic opportunity in the case of
Natives in the urban areas?
Mr. DAHLMANNI: am aware of certain restrictions, certain Iaws, which
Imust say arc not very important in practice.
Mr. GROSS:You mean, Sir, that the limitations upon a Native ob
taining jobs in certain industries, or certain positions abovehe rank of
common labourer or semi-skilled labourer are not important? Is that
what you mean?
The PRESIDENT:Not important in practice he says.
Mr. DAHLMANNN : o, Mr. President. The factual position is that many
jobs are offered and only a few non-Whites are qualifi.ed to apply for these
jobs. That is actually the position.
Mr. GROSS:Yes, Sir. There has been repeated testimony on this point
and jn fairness to you 1 wjJJ make that clear and, to spare the Court's
time, I will not press you to elaborate that particular answer. I would
like to ask you, Sir, if you can explain toe Court why it is necessary to
impose job restrictions upon non-Whites if there are too few applicants
to fi.Ilthe demand?
l\Ir. DAHLMANNM : r. President, there might be some reasons for that.
First, I know only of a few restrictions and within not only the Native
area, the homelands and Reserves, but also within the townships the
non-Wbites have almost urilimited opportunities and itis sad that only
a few are taking these chances and opportunities which are given to
them. But we have already one doctor in Windhoek and in Katutura
there are butchers, shop-owners, garage-owners and so on.
Mr. GRoss: Katutura being the so-called Native township I take it?
Is that correct?
.Mr.DAHLMAN:N K:atutura is ...
Mr. GRoss: That is the Native township is it not, Sir?
l\frDAHLMANNW : ell, it is one Native township, one can sayIt is the
modern Native township.
Mr. GROSS:Yes, Sir. With respect to the economy, and I am now WITNESSES AND EXPERTS 509
rcferring not merely to the Native township but to the economy as a
whole in the southern sector in the urban areas, would you (or do you
consider that you have answered this question already) explain to the
Court why there are restrictions imposed upon non-Wbites in respect of
employment and jobs-job reservations-if they would suffer from com
petition with the \Vhites?
Mr. DAHLMANN: Mr. President, that might be to avoid social friction,
for example. On the other side there are also restrictions imposed on the
Whites and the reason, 1think, will be more or less the same-to keep the
peace and to avoid social friction.
Mr. GRoss: Sir, would you testify that the "social friction" to which
you refer would be that friction which would be created by Whites bcing
concerned with non-White competition for jobs?
Mr. DAHLMANN: It can happen on both sides and there might be
another reason, i\Ir. President. For example, the Government policy
might be to discourage certain non-\Vhites from taking certain jobs or
getting the qualifications for certain jobs because there is no demand for
these jobsat the present time or in the near future. That might also be a
possibility.
Mr. GRoss: So that if there is a limitcd deman<l is it your analysis that
the \Vhüe achieves and is entitled to the automatic priorit_y for the
Jimited number of jobs available, Sir?
Mr. DAHLMANN: No, Mr. President, that is not quite correct. The aim
is to develop further parts of the country, that is the big aim, and you
need, for example, bricklayers, people who are able to build roads, who
are able to drive engines or these road construction machines, and so on.
We have these people, trained and skilled labour.
The PRESIDENT: Are you speaking of non-\Vhitcs?
Mr. DAHLMANN: Yes, of non-Whites. Only of non-Whites at present.
There might be other professions-teachers, of course. \Ve desperately
need teachers in these territoriesand in the whole of the Territory. But,
to give you an example, we do not necd historians or professors of art or
anything like that. We only need motor mechanics on a limited scale
because there are not very many cars driven by non-Whites in the whole
Territory. So I think it is the policy of the Government to get trained
people for ail the jobs which will become aYailable within the near future.
Mr. GRoss: Sir, has your newspaper-I believe it is called the Allge-
meine Leitung, is that correct?
Mr. DAHLMANN: Yes, that is correct.
Mr. GRoss: You are the editor, are you not?
Mr. DAHLMANN: Yes.
Mr. GRoss: And that bas a circulation among an important element of
the White population, does it not, Sir?
Mr. DAHLMANN: It is a German Janguage papcr, as I have stated.
Mr. GROSS: I assume that you would agree that the persons to whoI!1
the paper circula tes are important members of the community econom1-
callyand otherwise and among the leadership in the community? Would
you agree, Sir?
Mr. DAHLMANN: I think so.
l\Ir.GRoss: Now, has the editorial policy of your newspaper been
directed, at any time during the last two or three years for example,
toward the question of job reservation on a racial basis?
Mr. DAHLMANN: No, Mr. President. I have already exp]ained to you SOUTHWESTAFRICA
sro
that in practice this question is not important in South West Africa.
There are so many jobs offered and we would be very happy, especially
under the present conditions, if we could have qualified people for the
jobs offered.
The PRESIDE::-l'TW:hat kinds of jobs are they that you are speaking
about?
Mr. DAHLMANNC : lerical jobs, drivers, nurses, teachers, people who
are able to handle road construction machinery and so on.
Mr. GRoss: Now, Sir, would there be any reason for the limitation of
opportunity to the type of jobs you mentioned or what would be the
reason for not advocating, in the case of your newspaper for example, a
wide-open unrestricted opportunity to ail on the basis of merit and ir
respective of race?
l\fr. DAHLMANNM : r. President, the main task at present is to en
courage these people, the non-Whites, to get any training at all and only
at a later stage, when we have quite an amount of semi-skilled and
skilled labour, then we can goa step forward and we can say, right, now
we need doctors and professors, university teachers and so on.
Mr. GROSS:And you think that is an explanation for these reservations
and restrictions being applied on a racial or ethnie basis?
Mr. DAHLMANN~ :fr. President, I have testified already and I cannot
add much to what I have said, that it is to avoid friction because, as far
as I know (it was before my time), there was some friction along that
line. ..
Mr. GROSS:Now; Sir, having made clear the extent of population
movement which would be implicit in the carrying out of the Odendaal
Commission homelands recommendations, I should like, by way of a brief
summary on that, Sir, to read from the study to which I referred by Mr.
Gordon Laurie-a South African study-in which he says:
"If we, as it were, set population movement against gain in land
area we find that:
74 per cent. of the Herero population will move and Herero
land will increase inrea by about 45 percent.;
87 per cent. of the Namas will move and Namaland will be
more than doubled in area;
. 94 per cent. of the Damaras and 95 per cent. of the Bushmen
will move, but each will, for the first time, have a homeland of
their own."
Now, Sir, with respect to the percentage of the various populations
that would be moved in implcmentation of this plan, may I corne back
again and specifically now to the Herero, Nama and Damara residing in
the urban areas and ask you, Sir, whether you regard it as a policy of the
Government and of the Odendaal Commission report to encourage a
large-scale movement of these people from the urban areas to the new
homelands?
Mr. DAHLMANNM : r. President, the future will prove that. I can only
state that, from my own observation, I think we should leave Hereroland
out because, as I have said before, it is a rather bad example since the
Hereros refused tobe consulted. As far as the other future homelands are
concerned, I can only state from my own observation that these future
homelands-I refer only to Damaraland and Namaland--offer, I would
not say unlimited possibilities and opportunities, but they are, agricul- WIT:NESSEA SNDEXPERTS 5II
turally speaking, the two best areas we have got within the Police Zone.
There might be one other area which you could compare with the future
Damaraland and Namaland as far as agriculture is concerned and that is
the Rchoboth Baster Gebiet. But Namaland and Damaraland are, from
the point of view of agriculture, extremely good areas.
The PRESIDENT:How do the new Namaland and Damaraland compare
in terms of quality, carrying capacity and productive capacity, with the
Reserves from which thcy would have to move to go to them?
Mr. DAHLMANNM : r. President, if I might give you one example: it is
said in the Odendaal plan that the people from Warmbad should go to
the future Namaland, I think that is correct, and this future Namaland
cannot be compared because it gives a much better opportunity than this
dry place in the south of South West Africa-the Warmbad area, where
you have no grass sometimes after these prolonged periods of drought
and the future Namaland offers these people, especially from the Warm
bad area, much better opportunities, much better farming opportunities.
Mr. GRoss: Sir, with respect to the honourable President's question,
looking again at tableXIX on page 4r and referring to Damara, there
are, are there not, 18,499 Damara in the urban areas and 20,260 in the
rural areas? That is a total, Sir, is it not, of approximately 38-39,0In?
the Reserves or home areas on that same table, there are only 5,285? Is
that correct, Sir?
Mr. DAHLMANNY : es.
Mr. GROSS:My questions, Sir, have been directed and are directed
stiil, first of ail to18,500 Damaras in the urban areas-I am referring
now to Damaras-I had before been referring to Damaras, Namas and
Hereros-but let us take one at a time. Now with respect to this sizeable
population of Damaras in the urban areas, did I understand your answer
to my question with regard to political policy and objectives of the
Government to be that these 18,500, approximately, would be encouraged
to move to the proposed homeland from the urban areas?
Mr. DAHLMANNY : es, there is no reason why they should not be en
couraged to develop this area of the country, wlùch is also a very good
area from the agricultural point of view and there is a mine in that area
already. I cannot say much more than that, only the future can prove
that and it would be only too good if the non-White could keep the pre
sent development which has already taken place, or if they could develop
these parts of the country better in future.
Mr. GROSS:What, Sir, would you feel would be the economic con
sequences in the economy of the urban area ifthe 18,500 Damaras should
leave the urban areas for their bright prospects in that homeland?
Mr. DAHLMANNM : r. President, I would not know all these implications
at present, I cannot tell.
Mr. GROss: Do you think, Sir, that by reason of automation, or other
wise, the urban area economy will be able to get along without Native
labour, or doesthat take you into the field of economics and beyond your
ken, Sir?
Mr. DAHLMANNI: am not an expert in the field of economy and only
one thing I can say-the urban areas would be able to survive or to live
with much less non-White than we have there at present. You see, the
position is t.hat as such we employ much more non-White than we have
to,to give them the opportunity to earn some money. It is not necessary
to employ as many as that. SOUTH WEST AFRlCA
512
Mr. GRoss: Sir, are there any non-\Vhite employers in the southern
sector, in the urban areas?
Mr. DAHLMANNY : es of course, ;'.!.resident.
Mr. GROSS:Outside of Katutura and, let us say, in the case of the
Windhoek area?
i\Ir. DAHLMANNA : lso outside of Katutura. That applies to the whole
Territory. V,lehave, for ex.ample, boat-owners in Walvis Bay, I think that
is a job of aemployer-a good one because they earn ... I cannot givc
you any figures but they earn a terrifie amount of money.
Mr. GRoss: Sir, when you say "we", meaning the Whites, employers
offer more opportunities than the demand or requirement, that is a
paraphrase of your testimony, is it?
Mr. DAHLMANNW : hen I said "we", at present, I meant South West
Africa.
Mr. GRoss: Now, Sir, would you say that, from a political point of
view, the political parties and organizations such as they are, and may
exist, are influenced, and even perhaps deeply affected, by the uncertainty
conceming the future of their place of residence and their status? Would
you say this was a factor, in your expert analysis, which would account
for some agitation or emotion in their position?
Mr. DAHLMANNN : o, definitely not. Mr. President, I think the outside
world takes these organizations a littlet too seriously. As I tried <j.lteady
to point out, they have very limited support and people-as we say, the
man on the street-are not much interested in these political parties and
organizations. As I said in my cvidence, they are much more closely
linked to their different tribcs and there is no uncertainty whatsoever,I
think the prescnt good cconomic conditions are the main factor why
these organizations enjoy so little support.
Mr. GROSS:With respect to the lack of uncertainty to which you have
just testified, would you say, l\Ir. Dahlmann, that you could indicate any
projection over what you \\rould regard as a realistic nature, from a
political point of view, of the method and time by which this major
development may take place. First taking the question of time, when do
you envisage this programme being accomplished?
Mr. DAHLMANNl:\Ir. President, that depends on the people thcmselves
and we, and I rnean now political observers,. in South West Africa are
sometimes of the opinion, or they ask themselves, whether this develop
ment is not even too fast at present, whether the non-Whites can under
stand ail these things which are going on at present, but I cannot say or
judge how long that will take.
Mr. GROSS:Are you, Sir, also able to express an opinion from the
political point of view as to what methods of persuasion have bccn used
or may be used to accomplish this move?
Mr. DAHLMANNN : othing has been used so far but I think it is common
knowledge that the implementation, of the political part, of the Odendaal
plan has been set aside.
Mr. GROSS:It would be purely speculative to make an estima te as to
type of persuasion which would be necessary to accomplish the move,
I take it? .
l\fr. DAHLMANNI: think the Government is very serious about saying
they do not want to force anybody.
Mr. GROSS: Yes, I have no doubt, Sir. In the Hansard House of
Assembly debates, to which reference has been made in earlier proceed- WITNESSES ANDEXPERTS 513
ings, No. 15, 4i'.\Iay-8May 1964, which is the Third Session of the Second
Parliament, at column 5516, the Deputy Minister for South West Africa
Affairs,in the debate on the Odendaal Commission report, stated as
follows:
"The honourable leader of the opposition said in his speech at
Windhoek that they werc opposed to moving people by force. Is
there one word in the Report to suggest that thos'epeople should be
forced to go to those homelands?It says the opposite. They must be
persuaded to go there. Im convinced we should be able to persuade
those people to go."
Now, Sir. I am not asking you to read the mind of the Deputy Minister,
but from your own observation, let us say, of the Katutura events, would
you express an opinion concerning the methods by which persuasion
would be exerted?
Mr. DAHLMANNW : hat do you mean by Katutura events, may I ask?
Mr. GROSS:Yes, indeed, with the President's permission, I would be
glad to clarify my question to you.
The PRESIDENT:By all means.
Mr. GROSS:Thank you, Sir. The Katutura events have been referred
to by you in your testimony, Sir, in connection with the report of the
Commission of Enquiry, have they not?
Mr. DAHLMANNY ":ou mean the occurrences at the old location?
Mr. GROSS:I mean the incidents in which several persons were killed,
yes, Sir.
Mr. DAHLMANNY : es.
Mr. GROSS:And the December 1959 occurrences.
Mr. DAHLMANNY : es.
Mr. GROSS:And you testified, did you not, that you were familiar
with the circumstances attending that matter and the report of the
Commission of Enquiry?
M.r.DAHLMANNY : es. I am familiar with it. I did not know what you
meant by "Katutura events".
Mr. GRoss: I am attempting to explain, Sir, with the President's per
mission. The question relates to the methods of persuasion which have
been used in respect of the attempt to obtain the removal, by persuasion,
of some thousands of persons from the old quarters to the Katutura
township. Does this enlighten you, Sir, with respect to the intent of my
question?
Mr. DAHLMANNY : es, but I could not understand your question be
cause at that time there was no persuasion whatsoever, because removal
was, at that timc, completely impossible because there was not a single
house completed at that stage. You see, the disturbances took place on
the night ofro-II December and at that time nota single house had been
completed in the ncw township of Katutura, and only a few weeks later,
when the people from the old location-they were intimidated and they
were afraid of future disturbances-urged the town council to complete
the houses, and only then a small number of houses had been completed,
and only then it was possible to allow the first number of non-\Vhites to
go to the new township.
The PRESIDENT;By whom were they intimidated?
Mr. DAHLMANNB : y the other non-\Vhites, by the so-called political
leaders,and I think, too, a small number of huts had been set on fire. SOUTH WEST AFRICA
Mr. GRoss: Sir, are you, or are you not, familiar with the methods, if
any, of persuasion, which have been employed at any time in connection
with the move of some 6,000 persons to Katutura from the old location?
Are you familiar with any efforts made by anybody to persuade them to
move?
Mr. DAHLMANN: Yes, of course, :llfrPresident, many employers have
persuaded their employees to move to Katutura and the reasons are quite
obvious. I think in the old location we had only nine latrines for, I think,
14,000 people. No, that is not truc, 200 seats,200 latrines and g water
taps and no water toilets, and it is in the interests of the employer that
his employees are living under normal living conditions-are living in
better living conditions-in hygienic living conditions-and they urged
them, of course, and they asked them, "why do you not go to Katutura"
and the employers shared part of the rent for the bouses and they are also
paying bus fares. The second thing was that the town council evaluated
the huts of the old location.
The PRESIDENT: The what?
Mr. DAHLMANN: The huts.
The PRESIDENT: Yes, but what did they do to the huts?
Mr. DAHLMANN: They evaluated them .
.Mr.GRoss: Appraised them, I suppose, for purchase or condemnation.
Mr. DAHLMANN: The non-Whites who left the old location got are-
ma1kable amount of money for the old siums.
Mr. GRoss: Now, Sir, in the context in which we are discussing the
political aspects of the attempts at persuasion which would be necessary
to accomplish the move, or a move, and I refer to the Katutura in this
respect for your clarification, with respect to tessons which may be
learned for an expert political analyst interested in the future of this
terri tory, Sir, from the Katutura experience, I would like to ask you, Sir,
for your evaluation, and I wiU be more specific in my question when I
have read this paragraph 455 from page ug of the Odendaal Commission
report, in which the Commission recommends:
"That, in regard to the residential areas of non-Whites in Wind
hoek (excluding the Coloureds, Basters and Nama), the authority
concerned should do everything in its power to persuade the ap
proximately 6,000 non-\Vhites still resident in the slum area to
move, on the grounds of obvious health reasons and for their general
benefit, to Katutura with its excellent amenities ... "
Now, Sir, from the standpoint of your political analysis, why is it
necessary at this stage for the Odendaal Commission to be recommending
that the authority "should do everything in its power to persuade the
approximately 6,000" to move, and so forth. What, Sir, on the basis of
your experience accounts for their reluctance and failure to move so far?
Mr. DAHLMANN: Mr. President. it is very hard for me to understand,
Icannot understand why a pcrson who is in opposition to the Government
cannot live in a decent house. Nobody has anything against the opposi
tionto the Government, they are entitled to do that, they are entitled to
have their parties and meetings, and so on, but why cannot they do it
under normal living conditions, because I think the living conditions in
the old location are terrible?
Mr. GRoss: Sir, they are concededly slum areas. Does this not make it
ail the more surprising that these6,000 persons have not movcd and that WITNESSES ANDEXPERTS
the recommendation is now made in the sensc and form in which it is?
Mr. DAHLMANN;Mr. President, that is one thing that one cannot
understand-at least, I cannot understand it-and many visitors to the
Territory cannot understand it either.
The PRESIDENT:Is there a political reason behind it?
Mr. DAHLMANNT : here is tribal discipline and the objections of the
Herero against Government policy.
Mr. GRoss: Are you familiar, Sir, with the reason which was assigned
in the same debate in the House of Assembly by the Deputy Minister for
South West Africa Affairs?
Mr. DAHLMAN:>W I:hich statement was it?
M.r.GRoss: The statemcnt with respect to the difficulty and the reasons
why the move had not been accomplished, despite the fact that it was
from a slum area to an obviously more satisfactory area from a living
point of view. Are you familiar with the reason assigned by the Deputy
l\il.inisterin that debate?
Mr. DAHLMANNN : o.
Mr. GROSS:You do not recall it, Sir?
Mr. D AHLMAN:NNO.
Mr. GRoss: At column 5516 of the Hansard, to which I have referred
and cited, the Deputy Minister for South West Africa Affairs said:
"The Leader of the Opposition yesterday asked 'what about
Katutura, the people are still in the old location'. I shall tell him why
they are there, they are still there because they have been incited by
Whites not to move; they are being incited hy the opposition not to
move."
Would you agree with the analysis of the Deputy Minister as to that
being a reason for the failure to move?
Mr. DAHLMANNM : r. President, I do not have all the information that
the Deputy Minister has; I can say that a number of Whites were in
terested that the non-Whites should not move from the old location to
Katutura; a few shop owners, to give you an example, where the shops
were in the vicinity of the old location, but I cannot state from my own
experience whether there were also some politicians who supported the
attitude of the non-Whites in the old location.
Mr. GROSS:I shaU cite to you, if I may, Mr. President, a reason assigned
by the people themselves concerned before the Commission of Enquiry,
which reason is set forth in the report of the Commission of Enquiry, to
which you referred in your testimony on Friday. I refer to the report as
it is printed in the United Nations document, Report of the Committee on
South West Africa, Official Records of the 15th Session of the General
Assembly, Supplement No. 12 (A/4464). At page 61 of this document, the
following statements are made by the honourable Commissioner of the
Enquiry.
I quote paragraph 20, and I shall be glad to go over it but I wish to be
sure the honourable Court and you understand the context in full.
"On the part of certain of the occupants of the old location, chiefl.y
the Hereros, there has existed for some considerable time dissatis
faction over the proposed removal; that this dissatisfaction devel
oped into general opposition to the move only became evident in
September 1959, when it first came to the knowledge of the municipal
officiaisn charge of the location ... "516 SOUTHWEST AFRICA
I will pause there to ask you whether it is not correct that this Septem
ber 1959 is some months prior to the occurrences which are the subject
of the enquiry? That is correct, is it not, Sir? Can you answer yes or no?
Mr. DAHLMAN:N M:r. President, that is correct. Before that time there
was no opposition.
Mr. GRoss: I have not asked about prior to that time, Mr. President.
The PRESIDENT:Just answer the question, witness.
Mr. GROSS:Now, to go on from there.
"A meeting of the Advisory Board was then convened, and it was
attended by some 200 Natives, and three grounds of objection to the
removal to Katutura were advanced: (a) that it would be impossible
for the inhabitants to pay the rent which would be charged for the
houses there, and also for the increased bus fares to Windhoek;
(b) that the proposed regulations were too strict; and (c) [and to
this I invite your attention particularly, although you might com
ment of course on any other aspect of this] that the proposed removal
was really apart of the general segregation policy (apartheids beleid)
of the Union Government, which is totally unacceptable to ail non
Europeans."
Now, Sir, with specific reference to this Iast reason brought forth in
these hearings to which the Commissionor refers, what, ifany. is your
opinion or analysis, from a political point of view, concerning the role, if
any, played by this factor of total unacceptability of apartheids beleid as
a reason for deterring the move to these better quarters from the sium
areas?
Mr. DAHLMANNA : t that time, Mr. President, when the disturbances
happened, the rent of the houses had not been fixed.
Mr. GRoss: Mr. President, I do not know whether I am obfuscating
the issue; I am referring to statements made in September 1959, several
months prior to the events in question, and Iam anxious, if possible, for
the witness to address himself to the context of time, unless he mis
understands my questions.
The PRESIDENT:Do you understand the questions put to you?
Mr. DAHLMANNY : es, I understand.
The PRESIDENT:Weil then, answer the questions, if you can. Please
proceed.
Mr. DAHLMANNT :his question that certain non-Whites are in opposi
tion against the apartheid policy is admitted, and opposition still exists
and that is why there is no other obvious reason why the minority is not
prepared to go to Katutura, but in the meantime Ithink it is also clear
that the majority of the inhabitants of the old location have moved to
Katutura.
The PRESIDENT:Could I ask, Mr. Dahlmann, when you say that there
was opposition to the apartheid policy, do I understand it to mean that
the non-Whites were in opposition throughout the territory, or was it
limited to the 6,000? You had better give the proper picture to the
Court, whatever it is.
l\IrDAHLMANN\:Ve are only talking about the Windhoek location,
I think.
Mr. GROSS:It is difficult for me to interpret the full intention of the
author of the report of the Commission of Enquiry, but according to the
Summary it is stated that one of the reasons assigned by this group that WITNESSES A:-l'DEXPERTS • 517
met in September 1959 in opposition to the move, on the part of a sub
stantial number of the persons concerned, was that "the proposed re
moval was really a part of the general segregation policy of the Union
Government which is totally unacceptable to all non-Europeans". This
is not in terms limited to the 6,000 persons in the situation.
The PRESIDENT:No, but the comment as I understand you reading it,
Mr. Gross, is that it is "one of the reasons given", he does not say, or
does he, that as a fact it is wholly unacceptable to all non-Europeans?
Mr. GRoss: No, l\fr. President,I appreciate very much the chance to
clarify my question, because I thought I had asked, and intended to ask,
for the witness's expert opinion concerning the validity or otherwise of
that statement with respect to the unacceptability or total unaccepta
bility to ail non-Europeans, and I was anxious, Mr. President, with your
indulgence to attain the witness's analysis of that as a conclusion.
[Public hearing of I2 Octoberr965]
Mr. GROSS:Mr. Dahlmann, yesterday at the conclusion of the pro
ceedings we were discussing the possible reasons for the failure or refusai
of a certain number of the Natives to move to the Katutura Township,
and my questions concerning that were in respect of, generally, the ana
lysis from a political point of view of the reasons for the refusai to move
and of the methods of persuasion, as a possible indication of the shape of
things to corne in connection with what the Odendaal Commission report
calls the great migration as contemplated in the implementation of the
Odendaal plan. In that context I should like to draw your attention to
the political analysis and the political factors entering into the political
attitudes, anti-Government or otherwise, in respect of the Odendaal plan.
With further reference to the matter of political attitudes and political
actions, I should like to draw to your attention an article in the Manches
ter Guardian of 3 April 1965 by a political correspondent reflecting his
observations on the basis of a visit to the Terri tory and interviews there.
I read as follows:
"The political consciousness of the Africans may be partly
measured by their boycott of the new African township of Katutura,
near Windhoek. Built in 1959 to house about 10,000, Katutura is
stillnot fully occupied in spite of official efforts. Many Africans [I
will go over this if you wish,but to get it in full context], particularly
the Herero (the most politically conscious tribe since they were
decimated by the Germans at the tum of the century) insist on
staying in their old and comparatively insanitary location. \Vhatever
thcir reasons, the duration and effectiveness of the boycott are im
pressive."
Now, with respect to this political correspondent's report to which I have
just referred, do you agree that the boycott of the move to Katutura,
despite Government pressures or persuasion, is a fair symptom of their
political consciousness, their consciousness of the necessity or purpose of
politicalactivity?
Mr. DAHLMANNI: think there are many questions involved. As far as
the attitude of the non-Whites generally is concerned, I must briefly deal
with the different population groups, with their political consciousness
and with their attitude towards the Government. SOUTHWESTAFRICA
518 '
I can be very brief with the northern part of the Territory ...
Mr. GRoss: Mr. PresJdent, may I respectfully request that the answer
be in terrns ofthe Katutura context?
The PRESIDENT:Mr. Gross, you read a long statemcnt from a corres
pondent, a grcat deal of which contains allegations of fact. Idon't know
to what extent you might later suggest that the witness did not answcr
the allegations of fact and therefore the facts might be taken to be correct.
You asked him a very general question, and I think the witness is entitled
to answer it in his own wav.
Mr. GRoss: Thank vou, Sir. ·
Mr. DAHLMAN~T : he northern territories, especfa.lly Ovamboland, the
Okavango and the Caprivi Strip represent the majority of the non-White
population of South West Africa, and these three terri tories are in favour
of co-operation with the Government, and they are also in favour of the
implementation of the political part of the Odendaal plan. I mentioned
already the attitude of the chiefs and headmen who wrote to the Prime
Minister, and 1 also mentioned the attitude of the r45 teachers, nurses
and ministers who also wrote to the Prime Minister. In the Kaokoveld it
is scarcely populated, but there you feel certain opposition towards the
Government because there are a number of Hereros living there, and it is
quite clear, and always admitted, that the Hereros are in opposi
tion to the Government and also in opposition to the Odendaal plan. As
far·as the Damaras are concerned, the Damara tribal executive commit
tee is against co-operation with the Government and also against the
Odendaal plan. The paramount chief of the Damaras is in favour of the
implementation of the Odendaal plan, and is also for co-operation with
the Government, and I am very sure that the Damara tribal executive
committee does not enjoy the support of the majority of the Damaras,
because as the committee itself admits, the Damaras are not so group
conscious as the othcr tribes of South West Africa.
Coming to the Bushmen, that is also a small group, and they are en
tirely dependent on Government protection.
The Rehoboth Basters, as I have explained already, have their own
citizenship and are very proud of their own citizenship, although I must
state that leaders of the Baster community expressed their opposition to
the Government, and in the Rehoboth area you have this peculiar situa
tion: on the one hand they are against the Government and also against
the implementation of the Odendaal plan, but on the other hand they want
to keep and ta safeguard their identity as Baster burghers, Baster citizens,
within their own area.
As far as the Namas are concerned, Chief Witbooi, it is quite clear, is
against the Government, against the implementation of the Odendaal
plan. Chief \Vitbooi is, as I also explained, the chief of 500 Namas
altogether, that is, men, women and children. Other Nama chiefs and
headmen are in favour of co-operation with the Government, and even
Chief Dederic Isaak, who appeared for a short period on the list of the
Committee Members of Herero-dominated NUDO, indicated just a few
days before I left South West Africa that he had changed his mind and he
is now prepared to co-operate with certain other chiefs and headmen who
are in favour of co-operation with the Governmcnt.
The Colourcds-the vast majority, I think I can say-are defi.nitely in
favour of co-operation with the Government and also in favour of the
Odendaal plan; they have cxpressed their views to that extent very often. WITNESSES AND EXPERTS
Coming back to the last population group, the Hereros: the Hereros,
there is nodoubt aboutit, are against co-operation with the Government,
are against the Odendaal plan and are trying everything possible to make
the situation for the Government difficult. The Hereros are dominating
this NUDO party, and that is a nucleus of the opposition to the Govern
ment; and the Hereros are the driving force behind the boycott of the
removal from the old location to the new township, Katutura. Those who
refuse to go to the new township are in the majority Hereros, with a
littleit of Damara and very limited Nama support within the location
of Windhoek. And then one must ask, what are the plans of the Hereros
and of NUDO, and they are not far away from the plans of the Govern
ment at all because, under African majority rule, NUDO favours re
gionalism-that means at the latest stage they are in favour of five
different regions, one for each population group---the whole north for the
Ovambos, Darùaraland I think will be in the same region as the Odendaal
Commission proposed, and the whole centre of the Territory they claimed
for themselves, that should be Hereroland, and Namaland in the south,
and the Rehoboth Basters should keep their present territory.
These are their own plans and they want to have a federation within
this regionalism.They favour a federation in which each region should be
represented equally; that means that the 245,000 Ovambos should have
the same number of representatives within the federal Government as,
for example, the Rehoboth Baster with, I think, n,ooo people. I ex
plained already in my evidence that there is no region envisaged for the
Whites.
Coming back to the last part of the question, the refusal to go to the
new township from the old location does not reflect at aU the attitude of
allthe non-Whites of the Territory and not even of the majority of non
Whites of the Territory. Even in Windhoek itself, it is clear that the
majority has already gone to the new township Katutura, and only a
minority, with the Hereros as the driving force behind it, refuses to go
to the new township and is still in the old location.
The PRESIDENT:May I interpose just one question, Mr. Gross? What
is the approximate population of people who are located in Katutura?
Mr. DAHi.MANNM : r. President, there are about 9,000 at present who
are living in Katutura and about 6,000-7,000 in the old location.
Mr. GROSS:Now Mr. Dahlmann, you recall perhaps, Sir, that my
question was whether you agreed or disagreed with the political obser
vation that the refusal to move to Katutura indicated political conscious
ness. Would you agree, Sir, that it is a fair summary of the activities you
just described in detail, and would you agree to the characterization of
those many political activities you describe as amounting to a substantial
degree of political consciousness among those concerned?
Mr. DAHLMANNI: explained, I think, in my evidence that there is a
political consciousness amongst the leadership of the Hereros, there is
no doubt about that. They are politically very conscious but that applies
more or Jess to the leadership of the Hereros and is due to their tribal
discipline-I think that is the most important factor. Within the Herero
nation the politically conscious Herero leadership is definitely in a
position to show strcngth.
Mr. GROSS:Now, Sir, again specifically-1 am trying to confine my
questions for the moment but you may roam where you will, Sir, ifyou
could be responsive-but specifically with respect to Katutura and the520 SOUTHWESTAFRfCA
reasons underlying the failure to move, have you met in the course of
your stay in South West Africa, Mr. J. D. Du P. Basson, who was a
member of the House of Assembly?
Mr. DAHLMANNN : o, I cannot remember.
Mr. GRoss: You have not encountered his name, Sir, in your political
studies of the Territory?
Mr. DAHLMAN!' i':cannot recoliect the name.
Mr. GROSS:\Vell, perhaps it might refresh your recollection to know
that l\IrJ. D. Du P. Basson is from Bezuidenhout.
Mr. DAHLMANNB : asson. Yes,I know him very well.
Mr. GRoss: Yes, it was my pronounciation that misled you. I apologize
to the Court, Sir. You have met Mr. Basson, Sir?
Mr. DAHLMANNY : es, I have.
Mr. GROSS:He was, was he not, a Member of Parliament of the South
Africa Assembly in 1964 during the debate on the White Paper on the
Odendaal Commission report?
Mr. DAHLMANNY : es,I was also present therc.
Mr. GRoss: You were present at those debates, Sir?
Mr. DAHLMANNY : es.
Mr. GROSS:l\Ir. Basson was, was he not, a resident of South West
Africa atone time?
Mr. DAHLMA!'l'Y Ne:s, that is correct. He was a resident of \Vindhoek.
Mr. GRoss: For approximately how long, do you happen to know?
Mr. DAHLMANNF :or a number of years-1 do not know where he was
born but he was living in Windhoek for a number of years.
Mr. GROSS:Now. Sir, I refer to his statement in the House of Assembly
debates in Hansard, the Third Session, Second Parliament, 4 May to
8 May 1964. This was during the course of the debate on the Government
White Paper with respect to the Odendaal report. Ishould like to remind
you of the following statement by Mr. Basson at column 5526:
"In respect of only these four states-to-be [and he mentions
Damaraland, Hereroland, Tswana1and and NamalandJ more than
97,000 people will have to be persuaded in terms of this Commission
to settle in these artificially created homelands."
Do you have any reason, Sir, to disagree with the figure of 97,000 ap
proximately, to which he refers in that connection?
Mr. DAHLMANN:Mr. President, I cannot check this figure at the
moment-it sounds rather high.
Mr. GRoss: Now, Sir, this will no doubt be clarified in the context of
yesterday's session in which the precise breakdown was put into the
record. Passing on from that, Mr. Basson goes on to say in column 5526:
"Let the Minister tell us how we are going to persuade them. They
[that is presumably the authorities] failed with the removal scheme
in Windhoek to Katutura and fared as badly with the removal
Hoachanas to Utzawisis."
Now, Sir, pausing there again, sincehis is the first mention of this latter,
could you as briefly as possible, Sir, describe what you know about the
removal of Namas from Hoachanas to Hzawisis to which Mr. Basson
refers?
Mr. DAHLMANN l:frPresident, I can briefly say that I am very familiar
with these things, I have been thereat the end of 1958 and beginning of
1959, when the Namas, the Red Nation, in Hoachanas complained about WITNESSES ANDEXPERTS 521
the idea of going to another Reserve in Hzawisis and I am very familiar
with the background ...
The PRESIDENT:Mr. Dahlmann, you were asked to give the picture in
respect of it, I think. Is that so, Mr. Gross?
Mr. GROSS:I asked the witness to tell us as briefly as possible whether
he could explain the circumstances accounting for the difficulties in
connection with the removal?
Mr. DAHLMANN: Mr. President, there were some people in Hoachanas,
the so-called Red Nation, who did not want to go to the new proposed
reserve Hzawisis, and the Government tried to persuade them because at
that time it was the impression that they would have better grazing
grounds at Hzawisis and later on during the prolonged period of drought
they did not have enough water there. But the Government was trying
to persuade only a part of these members of the Red Nation to go to
the new Reserve and especially the younger people, the older people had
from the beginning, the right to stay there as long as they wished. There
is, of course, always the factor of reluctance and suspicion against new
schemes, that is the same thing all over the world, and some people have
gone to the new Reserve and some others have not and they are free to
stay there and that is a very limited number.
The PRESIDENT:How many went and how many stayed approxi
mately?
Mr. DAHLMANN: Mr. President, I cannot give you the exact figure but
I would say fifty-fifty .
. Mr. GRoss: Now, Sir, Mr. Basson, after referring to the removal prob
lem connected with the removal of the persans you have just described,
goes on to say as follows and he is refening to the Minister, who has
spoken:
"Now he blames 'agitators'. For years they have been struggling
to move the people from the old location in Windhoek to the new
one, and there are still7,000 people in the old location. Itis not a
question of agitators but the problem is this and I was one of the
few who, at the time, warned the Prime Minister and it is on record
inthis House, that when you do something in the name of apartheid,
then whatever you do, whether it is good or bad, they resist it and it
is turned clown." (Columns 5526 and 5527.)
Sir, would you agree with Mr. Basson's analysis that a reason for the
refusai to move is that it is, as he said, clone in the name of apartheid?
Mr. D. .\HLMANN: Yes and no, Mr. President. As far as the Hereros are
concerned, I am of the same opinion as l\frBasson but as far as the other
tribes are concerned, I am not in agreement with M.r. Basson and the
Herero population consists of only 8 percent. of the total population of
South West Africa.
Mr. GROSS:Now, Sir, we will corne back to your testimony with respect
to the Hereros and their political activities. But first, we began with
referring to the Katutura removal problem as possibly relevant to the
greater migration as it is referred to in the Commission report. I refer to
the reasons given by the persans concerned, or representatives of them,
in opposition to the removal. I had referred vesterday, if I ma.y refresh
the witness's recollection, Mr. President, to the summary contamed in a
Commission of Enquiry report of a memorandum which had been sub
mitted in September 1959 to the Advisory Committee concerning this
problem. You recall that, Sir? SOUTH WEST AFRICA
Mr. DAHLMANNT : o the Advisory ... ?
Mr. GRoss: Yes, Sir, I referred yesterday to the summary~Advisory
Board it is called.
. Mr. DAHLMANNT : he Advisory Board of Katutura.
Mr. GROSS: Apparently so, Sir. The reference-and I wanted to get
this clear in your recollection-is to paragraph 20 of the Commission of
Enquiry report, to which I referred yesterday, and I believe you testified
you were familiar with these proceedings?
Mr. DAHLMANNY : es,I referred to paragraph 20.
Mr. GRoss: Now, paragraph 20 states as follows-this is the Commis
sion of Enquiry report, that this dissatisfaction, and it relates to previous
sentences: "On the part of certain of the occupants of the old location,
chiefly the Hereros, there has existed for some considerable time dissatis
faction ... "; then, if you notice, Sir, reference is made to the general
opposition to the move, which are the words used by the Enquiry Com
missioner:
"genera1 opposition to the move only became evident in September
1959, when it first came to the knowledge of the municipal officiais
in charge of the location. A meeting of the Advisory Board was then
convened, and it was attended by some 200 Natives, and three
grounds of objection to the removal to Katutura were advanced."
Isummaiizecl them yesterday as reflected, here. Do you recall, Sir, the
testimony, at this point?
Mr. DAHLMANN:Yes, I recall that. .
. Mr. GRoss: Now, this is to refresh your reco11ection, Sir. In the report
of the Committee on South West Africa (this is the General Assembly
Offecial Record, Fifteenth Session, Supplement No. 12 A/4464) there is a
lengthier summary than the one given in the Commission of Enquiry
report, which is headed "Reasons for the Opposition to the Removal",
and that appears on pages 21 and following of the report of the South
West Afiica Committee.
Now, among the reasons for the opposition to the removal are the
following:
"Chief Kutako, the OPO, [that is the Ovamboland People's ûrga
nization] and SWANU [all threc, if you recall, had joined in this
evidence] also contested the allegation that the old location was too
small for expansion and expressed their opinion that the reason for
the removal to Katutura was the fact that 'European' houses had
been built right to the borders of the old location, which stood in the
way of further European expansion in the area, and that the
authorities regarded it as undesirable for Europeans and non
Europeans to live dose to each other."
Do you have any reason to question the accuracy of the sumrnary,
which I have just read, that this was indeed one of the reasons assigned
by the Natives for the refusal to move?
Mr. DAHLMANNI: do disagree with the contents of this statement.
Mr. GROSS: You disagree. Do you have any reasons, Sir, to disagree
with the accuracy of this summary as to their reasons, quite apart from
the merits or demerits of their reasons?
Mr. DAHLllfANN:Yes, I do have.
Mr. GROSS: You disagree with this as an accurate summary?
Mr. DAHLMANNI: do. WITNESSES ANDEXPERTS 523
Mr. GRoss: Now, Sir, have you yourself ...
The PRESIDENT:\Vhat about your reasons? You were asked for your
reasons.
Mr. DAHLMANN:Mr. President, there wefe negotiations between the
town council and the Advisory Board for years and years and it was quite
obvions, if you see the site of the old location in Windhoek and ifyou
know the population figure, that something had to be done because the
site was too small and there was no extension possible. There was a rail
way line, an industrial area and it was impossible to extend this old
location, so some other plan had to be drawn up and all these things were
in agreement with the Advisory Board and the Advisory Board had the
opportunity to talk to the different people whom they represented. After
long discussion, it was finally agreed to build this new township at the
present site. The Advisory Board had the choice between three sites, as
far as I remember correctly, and they decided that the new township,
Katutura, should be built on the present site. You cannot build a town
ship from today to tomorrow, or from Septcmber to December, soit was
very well known to cverybody in Windhoek that this township was under
construction, and not only in September 1959. The township was sup
posed to be completed-the first part-in May 1960, and it was supposed
to be fully completed somewhere in the middle of 1961. Only in Septem
ber 1959, suddenly, there was a movement against the removal. At that
stage, 1Ir. President, may buts had been evaluated already.
The PRESIDENT:Revaluated.
Mr. DAHLMANN:Valuated, yes; and the people living in these huts
were satisfied with the valuation and only then started the agitation
against the valuation, the removal and, finally, it culminated in the
complete refusai to go to the new township and in the disturbances.
Mr. GRoss: Now, Sir. Were you finished?
Mr. DAHLMANN: I would like to mention one other thing, Mr. Presi
dent. Mr. Gross quoted part of the report of the Commission of Enquiry,
but it was of course only the allegation from the witnesses and not the
findings. Ido not know whether it is advisable to ...
The PRESIDENT:What was the finding of the Commission?
l\Ir. DAHLMANN:If I continue to read paragraph 20, Mr. President:
"According to the ... " .
Mr. GROSS:l\Ir. President, I would like to say that I am, Sir, with ail
respect, trying to keep, to the best of my competence and wit, my
questions to a narrow compass. We are losing sight of the question. I have
lost sight of the question in this discursive answer.
The PRESIDENT: I have not, Mr. Gross. Your suggestion was, to the
witness, that the only rcason, or a reason, for removing the people from
the old site tothe new site was to make way for White homes or White
buildings and you asked him if he had any reason to disagree with that.
He is now giving you his reasons and since you have, in the course of the
last half hour, refcrred again to the report and the reason which was
advanced at that particular time, and you seek to connect it up with
Mr. Basson's statement, it seems tome that if the witness now concludes
by saying what was the finding, then the Court knows precisely how the
matter was viewed then by the Commissioners. I think the witness
should reply to it. Then that concludes your statement on the matter,
Mr. Dahlmann.
M1. DAHLMANNl:lfr. President: I continue to read paragraph 20: SOUTHWESTAFRICA
"According to the evidence of the Presidents of the two Native
political organizations, namely the Ovamboland Peoples Organiza
tion and the South West African Union (which will be referred to
again as the 'OPO' and the 'SWANU'} these are still the only factors
upon which the present opposition is being based. There is, too, the
position which Advocate Kotzé has urged the Commission to accept
as correct."
And, again, Advocate Kotzé was a representative of the non-Whites.
The PRESIDENT:What is the conclusion?
Mr. DAHLMANNT : he conclusion?
"The first of the grounds upon which the opposition to the removal
was based by Advocate Kotzé, i.e., that an increase of rent to f2 a
month was beyond the means of most of the Natives, is, in my
opinion, not sound. Mr. de Wet, the location superintendent, stated
that the bouse rent had not yet been fixed and that it had been
decided that rents wouid be determined according to each family's
earning capacity. He said, too, that the bus fares would not be in
creased to any appreciable extent. Asto the second factor, i.e., that
the proposed regulations are too strict, I am not in a position to
judge. The regulations were not put before the Commission nor were
any specific instances in which the regulations operated harshly
referred to. \Vhere, however, one and a quarter million pounds are
being spent upon Native housing it can well be understood that
provision must be made in the regulations for the maintenance of
law and order in the location and some degree of strictness is inevi
table.
I am of the opinion that the evidence which was adduced before
the Commission has proved beyond any question that the riot in
Windhoek Location on the night of the IOth to the nth December
must be regarded as part of the propaganda which those who claim
to be the representatives of the Herero tribe have been making with
the object of disparaging the Union of South Africa in the eyes of
the United Nations. lt is clear that the removal of the inhabitants
of the old location to Katutura was to have started at the end of
May 1960, and it would have been at least another year before the
Hereros would have been required to move, and no other logical
reason for opposing the removal at this point of time would appear
to exist."
The PRESIDENT:How much more is there of it, Mr. Dahlmann?
Mr. DAHLMANNO : nly a short paragraph; the last paragraph:
"The reasons for the opposition put fonvard by the self-appointed
leaders of the Native population are not acceptable, for the letters
sent from New York to those same leaders show clearly that the riot
and the violence of which it formed part were exactly what the team
which claimed to represent them at the United Nations was hoping
for.They wanted it to happen and, when African blood was shed,
they were, as Kerina so naively put it, prepared 'to make the most
of it'."
Mr. GROSS:l\Ir. President, I should like to state for the record that it
is not the purpose of these questions-this line of enquiry-to suggest
in any way that this honourable Court should review or reconsider the
findings of the Commission of Enquiry. My sole purpose, Sir, and my WITNESSES AND EXPERTS
questions have been intended to be directcd solely to this end, was to
establish inthe record the rea.sons aclvanced by certain of the people and
leaders concerned, the expression of their views and their reasons, Sir.
When I asked the question of the witness, which I shall ask him again,
with your permission, concerning another reason assigned by the persons
themselves, my question, I believe the record will show, Sir, was whether
the witness had any reason to question the accuracy of the fact that thesc
reasons wcre assigned by these people. And, Sir, it is in that contcxt .and
for that purpose that I reacl the following reason assigned by the OPO,
the South West Africa National Union, and the Chief of the Hereros, as
distinguished from their motives or incitation by others, to which you
have testified repeatedly, and ask whether you have any reason to doubt
that, in their testimony bcfore the Advisory Board, they assigned the
following as a reason for the opposition to the move.
i\lr. DAHLMANXM : ay I intcrrupt before the ...
The PRESIDE~T:No, answer only questions putto you, i\Ir. Dahlmann.
l\IrGROSS:In fairness to the witness, whom I may have misled, I just
want to make the purpose of my question clear, Mr. President, that any
thing relevant to the answer, in your judgment and discretion, of course
you may refer to, but I want the question clea~ly understood, Sir. Is it
correct to say that they advanced the followmg as a reason for the
opposition to the move? .
I will read now from page 65 of the report of the Committee on South
West Africa, to which I have referrcd:
"It has been said that the olcllocation site is too small for expan
sion; your petitioners contest this a\legation. Any observer exa
mining the area of the old location would not agree that there is no
land for expansion; possibly some Europeans' land would have to
be expropriated to facilitate such expansion, but surely this is
preferable to moving a whole African community? In any event, if it
is true that no further land is available, this does not necessarily
imply that the present location should be removed; further land in
other parts of Windhoek could be made available for the use of non
Whites, in addition to the old location."
Do you have any reason to bclieve, Sir, that that was not a reason
assigncd to the Advisory Board by these groups?
Mr. DAHLMANNM : r. President. I do not doubt that these reasons have
been forwarded to the Committee on South West Africa, but I cannot
agree with these reasons because I know that they are not true-that is
the only thing I can say.
Mr. GRoss: Now, Sir, I should likc to put into evidence, with respect
to my cross-examination and solely for purposes of the cross-examination,
refcrence to Annex 6 of the report of the Committee on South West
Africa.
The PRESIDENT:Is this in evidence alread y, ]\frGross?
J\IrGROSS: It is in the documentation; ves, Sir.
The PRESIDENT:Then it is in cvidence. •
Mr. GROSS:That is correct, is it not? I wanted to confirm that, Mr.
President.
The PRESIDENT:Yes, thank you.
Mr. GROSS:Annex 6 is entitled "Memorandum submitted to the Com
mission of Enquiry on behalf of Chief Hosea Kutako, the Ovamboland SOUTH WEST AFRICA
526
Peoples Organization, and the South West Africa National Union", and
what I have just read from page 65 of the report of the Committee on
South West Africa is, in fact, from Annex 6, which is the memorandum
itself.
Now, Sir, you have testified that you were present during the pro
ceedings before the Commission of Enquiry-have you not testified to
that effect, Sir?
Mr. DAHLMANNT :hat is correct, Mr. President .
.llfr. GRoss: And that you are fami1iar with these proceedings?
Mr. DAHLMAN~:Yes, Mr. President.
Mr. GRoss: And that you have stated, not merely by reference to the
finding of the Commission of Enquiry, but on the basis of your own ob
servation and analysis, you have given testimony with respect to so
called incitation of the Natives from certain persans in New York? Is
that correct?
Mr. DAHLMANNT :hat is correct.
Mr. GROSS:When you responded to my question concerning whether
or not these reasons were assigned to the Advisory Board and referred
to in the Commission of Enquiry, would you now wish to amend your
response to me that these reasons might have been advanced to the
Committee on South West Africa but were not given to the Advisory
Boa1d or known tothe Commission of Enquiry?
Mr. DAHLMANNl:\lr. President, these reasons were known to the Com
mission of Enquiry, and the Commission of Enquiry referred also to a
meeting with the Town Council, attended by the Mayor, the Town Coun
cillors, the Chief of Police, the Native Commissioner, and approximately
200 non-Whites; there was freedom of speech and everybody could say
what they Iiked, and these reasons were forwarded at that special
meeting; I can remember it very well.
Mr. GROSS:And, Sir, was this not another reason assigned, and a rather
important reason, for the refusa! to move, and I quote again from the
memorandum submitted to the Commission of Enquiry:
"(i) The proposed removal to Katutura is a further reason for the
insecurity of the non-Whites. lt is always the non-Whites who are
moved tosuit the convenience of the Whitcs. Your Petitioners fear
that ifWindhoek expands further the non-Whites will once more be
moved. At one time the Hereros in Windhoek lived where the 'Native
Hospital' is today. The Namas in Windhoek once lived where the
Government buildings stand. They were ail moved to the Old
Location,
Similarly Hereros occupied Augaikas and Furst Enwalte when the
South African Government took control of South West Africa. They
were forced to move to Orumbo in 1921,and to Aminuis Reserve in
1925.
Katutura means 'We have no permanent resident'. All these
removals without their consent make the African people feel aliens
in their own lands." (P. 65.)
This is the end of this reason, letter (i). Do you, Sir, now that I have read
from the memorandum submitted to the Advisory Board, recall that this
was, indeed, a reason assigned for the refusai to move?
Mr. DAHLMANNM : r. President, I recollect these things very well; that
was a reason given, and I also remember that all these reasons were dealt WITNESSES ANDEXPERTS
527
with at this public meeting. I do not know whether I am allowed to
explain these things further?
The PRESIDENT:No, apparently Mr. Gross only wants you to answer
whether that was one of the reasons given, and that all appears in the
evidence.
Mr. DAHLMANNT : hey were defi.nitely reasons given.
Mr. GRoss: Now, Sir, are you aware of the reason given with respect to
the opposition to the so-called policy to establish buffer zones between
White and non-\Vhite areas? Does that phrase "buffer zones" in this
context mean anything to you, Sir?
Mr. DAHLMANNI: have heard this phrase.
Mr. GRoss: Now, Sir, would it then be correct todescribe the policy as
it is described in the General Assembly resolution 1567 of the 15th
Session, Deccmber 1960, in which the General Assembly resolution,
dealing with the Windhoek problem, states as follows, in the preamble,
among other things:
"Noting with regret that the construction of the new Location at
Katutura is part of the plan laid down by the present Prime Minister
in his former capacity as Minister of Native Affairs tohe effect that
Native Locations in urban areas, based on a policy of apartheid,
must be situated in such a manner that a permanent 'buffet strip of
at least 500 yards' on which 'no development at all is allowed' is
maintained 'between the Native residential area and that of any
other racial group'." (P. 32.)
The citation to this in the General Assembly resolutions of the 15th
Session is to the Union of South Africa, Senate Debates, 1956, No. 15,
Columns 3884 and 3885.
Now, with respect to this "buffer strip", which is a no-man's land, if
one may call it that, the buffer strip of 500 yards-can you explain, or
first ofail may I ask, do you know of your own knowledge whether this
policy of a bufferstrip is objectedto by non-\Vhites as a fac.et of apart
heid?
Mr. DAHLMANNY : es, Mr. President, I have heard that there is op
position against this so-called buffer zone, but I think that as far as
Windhoek and Katutura are concerned it is rather immaterial because
there are other buildings for other non-Native population groups which,
to my mind, are doser than 500 yards away from the border of Katutura;
there was also the allegation that Katutura has been fenced in, but this
is alsonot true~there is no fence whatsoever.
Mr. GROSS:During your testimony, Sir, Iwas passed a message of a
rather urgent nature and I am afraid I did not quite hear. Was it your
testimony that the buffer zone does not exist in this situation?
Mr. DAHLMAN:-l I: can think of buildings of other population g10ups
which are doser.
Mr. GROSS:This would be an exception to the buffer zone policy, then?
Mr. DAHLMANNI: can only refer to Windhoek, Mr. President; I am
not familiar with ail the townships.
Mr. GRoss: Yes, Sir.
Mr. DAHLMANNI: know that there are other townships in South West
Africa which are very closely situated to the townships of other popula
tion groups.
Mr. GRoss: Now, Sir, with respect to the buffer zone, or if I may call SOUTH WEST AFRICA
it no-man's land policy, of 500 yards in which no development at all is
allowed, have you, in your political observations and tours, ever corne
upon such buffer strips or buffer zones?
Mr. DAHLMANN: I have heard about it, Mr. President; I have also
heard complaints aboutit; it has also been said that a buffer zone exists,
or is supposed to exist, in Katutura; but, as I have said already, the
buildings of other population groups are in very close vicinity of the site
of Katutura.
Mr. GROSS:Finally, with respect to the general reasons assigned by
these petitioners in the memorandum from which I am quoting, the
major heading under paragraph 31 is "The proposed removal is primarily
motivated by the apartheid policy which they bitterly oppose". Sir,
perhaps you feel that you have answered this general question adequate
ly, or to the best of your satisfaction, bui would you agree or disagree
that the persans and organizations here quoted and represented do
bitterly oppose the apartheid policy?
Mr. DAHLMANN: I have already stated that these organizations are in
opposition to the apartheid policy and all these political organizations,
except the Herero dominated political organization, do not enjoy
majority support.
Mr. GROSS:In your references to anti-Government activities, which is
the general phrase you used a number of times in your testimony, did
you mean by anti-Government activities or anti-Government position to
include opposition, bitter or otherwise, to apartheid?
Mr. DAHLMANN: Yes. These organizations are opposed and I think the
anti-Government activities, which I also mentioned, are very limited and
actually the only thing I can think of is at present the refusai to go to
Katutura by the Hereros and the unwîllingness to co-operate with the
Government on the part of the Hereros.
Mr. GROSS: Now, with respect to the Hereros, to whom you have
referred, have you not, specifically, for example, in yçmr testimony in the
record at, page 471, supra, referred to the Chiefs Council as the "strongest
non-White anti-Government group in South West Africa". Is that cor
rect?
Mr. DAHLMANN: That is correct.
Mr. GRoss: And you referred to the discipline of the Hereros, did you
not?
Mr. DAHLMANN: That is correct.
Mr. GRoss: And you referred to tli.eir political consciousness and
political activity, did you not?
Mr. DAHLMANN: I do not think so. I have said that the leaders are
politically very conscious and, due to the tribal discipline, they have of
course the support of the majority of the Herero nation and I said that
the reason for the support is, to my mind, that the political leadership
and the tribal leadership are identical. This applies only to the Herero
nation.In other political organizations there is no identity between tribal
and political leadership.
:tlfGROSS:Now, with respect to the tribal or chieftain leadership and
the discipline of their followers, would you say, Jooking at it broadly if
you wiU, that the Government has encouraged political activities and
fostered political advancement on the part of the Hereros, leaders and
followers alike?
Mr. DAHLMANN: The Hereros are completely free to express their WITXESSES AND EXPERTS
opm10n. They have their political party. Actually they had quite a
number of political parties. They supported SWANU, SWAPO. Then
they formed their first party-NACIP-then their second party, which
was called UNIPP, and now another party which is called NUDO. So the
political activities within the nation are unlimited or unrestricted.
Mr. GROSS:I think my question was, or was intended to be, would you
say that the Government encourages and fosters political activity, or
discourages it, or somewhere in between?
Mr. DAHLMANNT :he Govemment encourages the political organization
within the different groups to go ahead with the development of the
nations and of the respective territories. But I think it is not the policy
of any government to support or to encourage the formation of so many
political parties. That is to the people themselves to form parties; they
can do this and they have done so.
Mr. GROSS:And would you say-apart from what we have already in
the record with respect to the denial of permission to Chief Kutako and
his advisers to procced to other parts of Africa-that apart from that
incident, the Government does foster and encourage political movement
and political activity by facilitating the movement of political leaders
throughout the Territory?
Mr. DAHLMANN:I can only state that many political meetings have
taken place within the whole of South West Africa and the most violent
accusations have been made in the speeches against the Government. To
mention only one example: "Verwoerd and his criminal gang or band."
I have said already that I do not want to refer to these emotional state
ments, but it is only to give you an idea that these political meetings are
possible within the Territory and the leaders of the parties travel
throughout the country very extensively. I cannot deny that sometimes
permission has not been granted for them to go to certain places or to
hold meetings at certain places. This is true. But, on the other hand, you
find, for example, Mr. Kapuuo in Tses or in Krantzplatz or in Berseba.
These aie 350 miles away from Windhoek. He is free to go and he nor
mally goes by car. There are certain restrictions sometimes, but on the
other hand it is possible to hold these meetings and I have attended many
meetings already.
?11r.GROSS:These places to which you have just referred are ail so-
called Reserves or home areas, are they?
Mr. DAHLMANNS :orne of them are and some of them are not.
Mr. GRoss: \Vhich of those you named are not?
Mr. DAHLMANNT : hose I have named are home areas: Krantzplatz,
Berseba, Tses. He is, of course, interested in meeting the leaders in the
Reserves, but he also goes to Gibeon. Gibeon is nota Reserve.
Mr. GROSS:Docs the same freedom of movement which you have
described also relate tohe urban areas such as Windhoek, where Natives
work?
Mr. DAHLMANNM : any of these political meetings have taken place in
Windhoek. I cannot think of any political meeting in Katutura but I can
think of many political meetings in the old location.
Mr. GROSS:In respect of the areas outside the so-called dormitory
towns or locations, are political activities of non-Whites permitted in the
so-called White areas where non-Whites work?
Mr. DAHLMANNI: have never heard of such a meeting and never hcard
of any restriction; I have never heard that a political meeting was not530 SOUTH WEST AFRICA
permitted. I think there was no limitation whatsoever. The normal place
wherc they have these meetings is a Pepper tree, in the old location; and
they normally take place on a Sunday afternoon where definitely all the
White political meetings would not be permitted.
l\lr. GRoss: This tao refers ta the location, I think you said, Sir.
Mr. DAHLMANN: To the location in \Vindhoek.
Mr. GRoss: Now, Sir, with respect to the White areas, as they are
constantly referred to although the majority of the people who work
there obviously are non-\Vhite, as the record shows, you testified, in
yesterday's proceedings, at page 489, supra, in rcsponse to my question
"whether you are familiar with the reasons given by Chief Kutako for
refusal to participate in the consultations on the basis proposed":
"On the first occasion, that was in January 1964, Hosea Kutako
said that he did not have time enough to discuss this matter with his
headmen; and the second rejection of the invitation I cannot judge
because there is no reaction whatsoever from the side of Hosea
Kutako."
Now, Sir, may I ask, parenthetically, did you or did you not testify
that the Chiefs Council has a policy of non-co-operation with the Whites?
Is that a correct version of your testimony?
Mr. DAHLMANN: The Chiefs Council follows the policy of non-co-
operation with the present Government.
l\lr. GROSS:With the present Government, Sir?
Mr. DAHLMAN::-S: Yes, l\Ir. President.
Mr. GRoss: Now, Sir, with respect to the present Government, as
distinguished from non-co-operation with Whites generally, if that is the
distinction you seek to draw, I should like to refer toA/AC.rog/Pet. 2r3,
a letter from Windhoek, 13 January 1964, frorn Mr. Kapuuo, the chief
designate, for Hosea Kutako-it is signed "for Hosea Kutako"-and
which relates to the problerns in connection with the consultations which
had been proposed. I should like to read the letter, since it is apparently
the circumstance to which you referred in your testimony on a page cited,
in which you said that Hosea Kutako said he did not have tirne enough
to discuss this matter with his headmen. The letter is as follows-it is
addressed to "His Honour the Administrator, Government Buildings,
Windhoek"-
"Sir,
Your invitation to have talks with us on 30 January 1964 reached
me while I was in the Aminuis Native Reserve. I invited some Head
men and prorninent men frorn the Native Reserves with whom I
was to have corne to you. On our arrivai in Windhoek we went to
the Chief Native Commissioner at bis invitation, who said that we
should give him our grievances in writing so that he could send them
to you before we corne to you. At the same tirne, all the men from
the Native Reserves with whom I was to corne to you were given
three days to stay in Windhoek.
In Windhoek I needed more time to dîscuss with the headrnen and
to write down the items which were to be brought ·to you.
My cook, driver and men from the Reserves were given up to
lO January 1964 to stay in Windhoek.
When we protested to the Chief Native Comrnissioner that three
days were a very short period, our pennits were extended to another WITNESSES ANDEXPERTS 53I
four days, ending on ro January. The Chief Native Commissioner
told us to go back to the Native Reserves and to return to Windhoek
on 28 January 1964. \Ve told him that we were not rich people and
to go and corne back on 28 January would entail much expenses.
When we asked him why the Government did not want us to stay
longer, he replied that the towns were European areas where the
Africans could be allowed to stay temporarily, and he could there
fore not allow us to stay as long as we pleased.
He suggested that we should rather cliscuss the items to be
brought to the Administrator in one of the Native Reserves where,
in his words, we could stay as long as we pleased.
We replied that Windhoek was in the centre of the territory and
was also the seat of the Administrator.
\Ve conclude from this impolite attitude of the Government that
there was no real desire on your part to have talks with us. No self
respecting people treated in that way can be expected to accept an
invitation, and we have therefore decidecl not to have talks with you
on 30 January 1964."
Now, Sir, this Ietter-was this, so far as you understand, the situation
that you were characterizing when you testified at page 489 that Kutako
said that he did not have time enough to discuss this matter with his
headmen? Or were you referring to another incident, or event, or com
munication?
Mr. DAHLMANNN : o, Mr. President, Ireferred to that incident.
The PRESIDENT:Mr. Gross, you read a long letter. I do not know what
it is suggested the function of the Court is in relation to the statements
therein. Is the function of the Court to note that these statements were
made, or is the Court to inquire into the truth of the allegations made in
those statements?
Mr. GRoss: No, Sir. With ail respect, I intend to connect up with my
next questions now, Sir. This bears on the question of the witness's
testimony with respect to the freedom of movemcnt and restrictions
imposed, to which he has again referred in his testimony just now in
response to my question.
The PRESIDENT: I understand.
Mr. GRoss: And, Mr. President, if I may presume to elaborate one
more sentence, the Court, in my own respectful submission, would indeed
find it difficult to evaluate whether or nota particular letter or a state
ment in a particular letter is true or not true, to the extent that the
authenticity of the letter itself is concerned as a statement by the indivi
dual and as to which there has been no impeachment. It would seem, Sir,
then, that it would be of significance with respect to the political con
sciousness, the political attitudes, the state of mind as expressed by the
individuals concerned and generally the reactions to such restrictions as
may be imposed. And it is in that respect that I proceed now, with your
permission, to my next question to the witness, which I believe may
connect up with the matter of restrictions and limitations.
You testified, on page 489, supra, of the samc verbatim record, and I
am still refcrring to this specific instance, when I asked you-
''You are not aware of any imposition of restriction based upon
the pass laws and the length of time for which he [that is Kutako]
was offered opportunity to stay for consultations? Are you aware of
that?"532 SOUTH WEST AFRICA
And your response was:
"No. [I said 'are you aware of that' and you said 'No'.] He is
entitledto stay as long as he wishes in Windhoek as he is, as far as
I know, exempted from the pass laws, and he is entitled to stay as
long as he wishes in Windhoek, and the same applies to his driver
and, I think,to his cook, and it might be to one or two of his servants,
but I am not sure of that; but I am pretty sure that it applies to
him personaily, to his cook and to his driver."
Now hc being, as you have testified, Sir, the respected Chief of the
Herctos and thcir political leader, would you now, in the light of this
letter which I have read, indicate what basis, if any, you had for your
testimony, which I have cited, on page 489?
Mr. DAHLMANNY : es, Mr. President, I can produce another Ietter in
which Hosea Kutako asks for permission to erect a new house for himself
in Windhoek, in the Windhoek location; and, Mr. President, Chief Hosea
Kutako, is, I think, living more in Windhoek than in Aminuis. As far as
I know these statements, or alleged statements, by the municipal Native
Commissioner have nothing to do with Hosea Kutako himself, because
I think it is at least common knowledge in Windhoek that he spends most
of his time in Windhoek. He is an old man, he needs medical treatment,
so sometimes, of course, he is in Aminuis, but most of the time he is in
Windhoek.
Mr. GRoss: By Windhoek you mean the Native location, Sir?
Mr. DAHLMANNI: mean the location, yes; and the town council has
offered him a four-roomed house in Katutura.
J\IrGRoss: Now, Sir, do you have any reason to doubt the accuracy of
the reference in this letter to the reply which he received when he asked
"why the Government did not want us to st_aylonger, he replied that the
towns were European areas whcre the Africans would be allowed to stay
temporarily", and so forth? ls this, from the point of view of your ob
servation and knowledge, a fact,that Africans may not stay in European
areas, except by permit and for a duration fi.xed by the authorities?
Mr. DAHLMANN(:r) Mr. President, non-\Vhites from the Reserves must
have a permit if they want to stay in the urban area. I think the reasons
are obvions. (2) I do not think that this statement alleged ta the Native
Commissioner does reflect actually the attitude of the Government. (3)
The Admînîstrator was and is highly interested ta corne together wîth
Hosea Kutako and ta have discussions. Actually, this first meeting
was proposed only ta meet each other, sa that Hosea Kutako should know
the Administrator, and it was a courtesy visit, nothing but that. And,
Mr. President, the Administrator tried to create-1 do not know whether
he did but he tried ta create-a very nice atmosphere for this fi.rst
courtesy visit by paying a visit to the grave of the old Herero Chief,
Samuel iUaharero, in Okahandja. On his way back from Swakopmund to
Windhoek he stopped at Okahandja and paid a visit ta the grave of the
former Herero leader. lt was only a few weeks before this first meeting
between the Administrator and Kutako was supposed to take place.
Mr. GROSS: Mr. Dahlmann, during the comse of your testimony
yesterday, you made one or two comments with respect ta the agricul
tural potential of certain homelands. Knowing of course that you are not
an agricultural expert, and not professing ta be, nevertheless, in order to
appraise the possible political attitudes and actions of the people who WJTNESSES AND EXPERTS 533
would be involved in a move toward homelands, it may, Sir, be helpful
to the honourable Court to have information conccrning the actual
situation in these proposed homclands from the standpoint of agriculture,
let us say, since you have referred to that in your testimony. Sir, are you
familiar, or have you heard of Professor Wellington, whose name is
J.H. Wellington?
l\Ir. DAHLMANXN : o,l\fr.President, I have not heard of him.
l\frGROSS: Professor Wellington was, as the record shows since he is
cited inthe pleadings, a Professor of Geography for many years at the
University of Witwatersrand and he is, I think, also according to the
publication to which I shall refer, Doctor of Science of Cambridge Univer
sity.In an article on South West Africa Professor Wellington, in the
publication Optima of March 1965, which is published in South Africa as
a quarterly review "in the interests ·of mining, industrial, scientific and
economic progress", described as follows on page 46 the proposed Herero
land:
"To the east of the hardveld the Herero homeland [it is 1efening
here to the proposed Herero homeland] is also of immense size; its
5.9 million hectares includes the four home areas [which he proceeds
to name] together with some additional government land and a
small black of white farms around Rietfontein or Buitepos, near the
Bechuanaland border. In the western part of the homeland, bo1e
holes go down here and there into the sub-sand rock formations, and
the omurambas [and then he names theml provide service water
sporadically, but at least three-quarters of the area is waterless.
cxcept for pan water here and there for a few weeks after the rains.
The Herero asked for some hardveld land in the Gobabis locality,
but they were informed that such land was already occupied."
And then I cal], particularly, Sit, your attention to the following state
mcnt by Professor Wellington, also at page 46:
"The Herero homeland is almost entirely on the sandveld they
once scorned and drcaded. Aminuis, mostly hardvcld, and the one
reserve they really valued highly, will be taken over by the Govern
ment."
Now, Sir, on the basis of your knowledge and observation, if any,
would you, Sir, express agreement or disagreement with Professor Wel
lington's analysis of the agricultural potential in these terms?
Mr. DAHLMANN:Mr. President, when I referred yesterday to the
agricultural potential of future homelands, I only referred to Namaland
and Damaraland. As far as the future Here1oland is concerned, I said
already there are negotiations possible with the Govcrnment and, as far
as the water position in the future Hcreroland is conccrned, I think the
Odendaal plan makes it also clear that a pipeline is supposed to be built
from Okavango, one of the six water carrying rivers in South West
Africa, of which five aresituated in non-White areas. From this Okavango
the pipeline is supposed to be built to the future Hereroland, but I do
not want to argue about the agricultural possibilities of the potential of
Hereroland. I know the present Reserves in which the Hereros are living
but I do not know very well the part which they are supposed to occupy,
and I think that this matter is open for discussion between the Hereros
and the authorities. That is ail that I can say.534 SOUTHWESTAFRICA
Mr. GROSS:Now, Sir, with reference to the proposed Damaraland to
which you testified, Professor Wellington also has this to say at page 46
of the same article in Optima:
"The new Damaraland, which absorbs the present Okombahe and
Otjohorongo reserves involves an unprecedented development. In
creased from the Okombahe area of 446,000 hectares to 4.8 million
hectares, the new homeland [and I will call your attention to this
next sentence, Sir) will include among other additions r.9 million
hectares of white farmland in the inner or transitional Namib zone,
which, against expert advice, had formerly been sold to settlers by
the administration and had subsequently been found unsuitable for
white farming." ·
Now, Sir, with reference to your testimony yesterday at pages 510-5u,
supra, that Damaraland as well as Namaland, are, from the point of view
of agriculture, extremely good areas, did you take into account, Sir, the
fact, if it is a fact, that the r.9 million hectares which would be part of the
Damaraland, had formerly been sold to settlers by the Administration,
and subsequently becn found unsuitable for White farming?
Mr. DAHLMANNT : hat is not the fact, Mr. President. According to my
knowledge, the large majority of this part has not bcen sold to any farmer.
That applies especially to the Welwitschia area. The history cithat part
of the country is as follows. Sorne parts of South West Africa experience
prolonged periods of drought. Fa1mers from these areas were allowed to
go with their cattle or with their sheep to that completely undeveloped
part of South West Africa. I think from now on it was round about ro
years ago, and these farmers found that this area is very suitable and they
did not want to go back, and the Government was prepared to let them
land, on the basis,ifthey wish, that they can after ro years time, if they
develop their farms properly (they had to start from the very beginning,
there was nothing, there were not even roads at that time), be entitlcd,
ifthey could prove that they had developed this country into a farming
area, to buy this land from the Government.
The :first farmers who came to this part of South West Africa have
already bought their farms, but I must say that the major part of these
farmers came only eight or nine years before the White Paper was issued
(the White Paper on the Odendaal report) and so at that time they did
not have their title for buying their farms. But I have been to that area
and I cannot remember correctly, but it is a karakul sheep breeding area,
and I think the annual turnover of these farms, only in the karakul
sector, is over2 million rand per year.
Mr. G1wss: Sir, after stating that 1.9 million hectares of White farm
land have been sold to settlers against expert advice, and had sub
sequently been found unsuitable for\Vhite farming, Professor\Vellington
goes on to write as follows at the same page:
"The administration is now buying back these farms in the western
parts of the districts of Outjo and Karibib, allowing generously for
improvements and adding verdrietgeld(sorrow money) to soften the
blow of having to relinquish the land. Of the R. 17 million (that is
8! million pounds Jearmarked by the Government for this repurchase
of 158 farms, some R. 8 million has already been paid out and the
farmers have been allowed to remain on thcir farms at a nominal WITNESSES AND EXPERTS 535
rental until the land is required by the Government for the possible
implementation of the homelands scheme."
Do you have any reason to doubt the accuracy of Professor Welling
ton's statement that of the 17 million rand earmarked by the Govern
ment for the repurchase of these farms, some 8 million rand has already
been paid out, including "sorrow money", as he describes it?
Mr. DAHLMANN: I am not familiar with thcse figures; they were
published in an official sü1tement of the Administrator a few weeks ago,
but I am not familiar with whether these figures are correct. If Professor
Wellington refers to the amount envisaged by the Odendaal plan for
purchasing these farms, I can only state the actual price is much higher
than the Odendaal Commission envisaged.
Mr. GROSS:Finally, with respect to Damaraland, as to which you
testified yesterday on pages 5ro-5n, supra, of the verbatim record, Pro
fesser Wellington, describing the topography of the proposed Damara
Jand, statcs as follows at page 46 of his article:
"Its sub-rectangular outline extends south-westwards to the
border of the barrcn coastal Namib, wherc the annual rainfall is less
than two inches. For the homeland as a whole, a mean rainfall of
about six or seven inches would probably be a fair estimate."
Pausing there, do you have any reason to doubt the accuracy of Professor
Wellington's statement in this respect? ·
The PRESIDENT:In what respect?
Mr. GROSS:That a mean rainfall of about six or seven inches would
probably be a fair estimate for the homeland as a whole.
The PRESIDENT:Why is it necessary, Mr. Gross, in putting a question
such as that, to quote at the great length you are from varions sources?
Is it, in the present context, to persuade the Court that what is said by
Professor Wellington is correct, or is it for the purpose of merely getting
the view of this witness?
Mr. GROSS: Itis, Sir, for enabling the Court, in mv submission, to eval
uate testimony put forward as expert testimony" by the Responc!ent,
and in which the witness makes general characterizations or statements
concerning matters of concern in this context to the political attitudes,
political movements and the political aspirations of the individuals
concerned. Professor Wellington has written in a sense which I am
anxious to present to the Court, lengthy though it may be, for fear of
otherwise doing disservice to the Court by quoting shott sentences here
and there out of context.
The PRESIDENT:Normally, Mr. Gross, in my view, if you are seeking
to persuade the Court that the picture painted by Professor Wellington
is the correct picture and that the witness has given testimony which is
unreliable, then one deals specifically with each particular allegation
which is made. If you are not, I do not understand why you are quoting
at such great length for the purpose of asking questions which relate only
to a very small portion of the statements you quote.
Mr. GROSS:I certainly will do my very best to observe the admonition,
Sir. The statement which I had in rnind, so that the record may be
crystal-clear in terms of my intention, which is of course to observe the
President's admonition, is that the witness had stated that Namaland
and Damaraland are, from the point of view of agriculture, "exhemely SOUTH WEST AFRICA
good areas". This was an unsolicited testimony on his part, and my
intention is to place into the recmd, for the witness's evaluation and
agreement or disagreement, the analysis by a professor of geography of
South Africa who writes on this subject.
The PRESIDENT: If you put to him the specific allegations made,
Mr. Gross, therc is no objection-! thought I had made my view on this
clear.
Mr. GROSS:Now, just to complete the sentence, Professor Wellington
at page 46 concludes the excerpt of which I have given only part and
therefore wish to complete so that thcrc will be no possibility of distortion
out of context:
''Under such conditions the sub-desert grasses in years of good
rain are vcry nutritious, but in the many droughty years the grazing
over most of the area is excessively sparse."
\Vould you agree or disagree with this in terms of your testimony that
Damaraland is, from the point of view of agriculture, an "extremely good
area"?
Mr. DAHLMANNI: cannot say anything as far as the figures of Professor
Wellington are concerned, I am unaware of that. Itis a phenomenon of
the karakul breeding areas that they have a low rainfall; therefore the
farmers are breeding cattle in areas with higher rainfall, and karakul
sheep in areas with lower rainfall. If you want to breed cattle there,
Damaraland and also Namaland are not suitable, or less suitable, for that
purpose, but I think the farmers in the Welwitschia bloc in the future
Damaraland and the White farmers in the future Damaraland and in
the future Namaland have proved already that they are very suitable
places for karakul breeding, for nothing but that; and the topography,
as far asthat is concerned, of these karakul breeding areas, of course that
is semi-desert or sometimes even desert.
Mr. GROSS:Do the Damaras breed karakul?
Mr. DAHLMANNT :hey normally breed small stock, but of course they
should not remain at this stage of development, and they are also herds
men on farms with karakul, and that also applies to the Namas. The
Damaras living in the southern part, let us say south of Rehoboth, where
the karakul breeding area begins, and also those who are living in the
Welwitschia area and in the vicinitv of Okombahe and $0 on, are of
course familiar with karakul breeding because that is their daily job, to
look after the karakuls in that area, although they are not the employers
there.
Mr. GRoss: I would like to draw your attention to the Odendaal
Commission report on page 31 under the heading of "The Damara", and
with specific reference to paragraph IIJ:
"With the arrivai of the Whites, resulting in increased persona!
safety and greater development, the Damara were able to evolve a
totally new way of life. Large numbers were absorbed in the economy
of the Southern part of the country and displayed exceptional
aptitude as employees."
I call your attention particularly to the following sentence, Mr. Dahl
mann:
"In the home area of Okombahe the cstablished community has
concentrated mainly on animal husbandry, while in recent times WITNESSES t\ND EXPERTS 537
considerable numbers have found a good liveEhood at the Uis mine
situated in their own home area."
Pausing there, in your testimony with respect to the proposed homeland
being an extremely good agricultural area in the light of the rainfali
figures and so forth given by Professor Wellington, was your testimony
directed at the prospect of Damaras continuing concentration on animal
husband1y, or changing their form of agriculture?
Mr. DAHLMANNI: think in the light of the future <levelopment of the
whole country they should change their attitude, and they should be
more productive.
Mr. GROSS: Jn respect of your comment conccrning the change of
attitude which they should indulge in or aspire to, may I refer to table
XIX on page 41 of the Odendaal Commission report and call to your
attention the fact that, on the second line of the table, there are 18,499
Darnaras in the urban areas of the southern sector. Do you fmd that?
Mr. DAHLMANNY : es.
l\frGROSS: With respect to those approximately 18,500 Damaras in
the urban areas, is it part of the contemplated change of attitude on
their part that they will go, or be persuadcd to go, to the homelands to
take up karakul breeding or other pastoral pursuits?
Mr. DAHLMANNT : hat is not necessary-therc is a town in the future
Damaraland, We1witschia, and a1sothe Uis tin mine, so that all of them
have to become karakul farmers is not what I said, for they have other
possibilities within their future Damaraland-they can be garage owners,
there are shops-the facilities are already there.
Mr. GROSS: Yes. And it is contemplated from the standpoint of your
political ana1ysis, iit,that these 18,500 or a substantial portion of them
will be approached and persuaded in due course to take up their residence
in the proposed homeland? Is that, as you umlerstand it, the political
prospect?
i\frDAHLMA,S"N A:s far as I see the future, I see it in a different light.
I see it Iike this: in each community arc progressive and aggrcssive
elements who are interested in development, and I am sure that applies
also to the Damara people, and I think a few of these progressive ele
ments will go and will occupy these places, that means farms and the
hotel, garages and so on, and they will run them; and the other, 1ess
progressive elements, some of thern wiU work with them, with the family
or othcr families known to thcm, and so in the Longrun I think quite a
number of people will be attracted ifthe füst newcomers to Damaraland
are doing well. I think that is the procedure I can envisage.
Mr. GROSS: With respect to what a previous witness has refened to
as a "vision", how would you characterize the end result envisaged in
terms of what has been referred to as "po1itical independence" whcn the
vision is accomplished? What is the nature of the political independence
which is envisaged for these homelands?
Mr. DAHLMANN:I am unablc to say that~that is in the far future.
There is already a sort of self-government, all these different tribes or
nations have their own political systems, and it is envisagcd that this
system should follow more and more the pattern of democracy.
Mr. GROSS: Now, Sir, there has been testimony with respect to federa
tion or commonwealth relationships which may be envisaged in the un
specified future time after these homelands have been established and
requisite numbers have been persuaded to go there. Now, with respect538 SOUTH WEST AFRICA
to the political analysis, both in terms of your understanding of the
Odendaal Commission report and of your own expert observations and
analysis, what would you envisage with respect to a federation or a
commonwealth or somc other relationship among these independent
homelands in the words of the Odendaal Commission report at page
107?
Mr. DAHLMANN: Many solutions are possible and I would not say what
the best one will be at a later stage in the future. That will depend on
the people themselves. To my mind, nothing can prevent them from
forming a commonwealth, federation or even one united South West
Africa but at the present time, we are, I think, even far away from
federation because, may I go back into history-four to live years ago,
it was impossible to bring the eïght Ovambo chiefs and headmen together.
They were not prepared to cross the border of thcir respective tribes and
they have been persuaded by the Government, mainly by the Chief Bantu
Commissioner, to corne together and to discuss and, if possible, to solve
common problems. lt is not possible at the moment to bring the Chiefs
of Ovamboland together with the Chiefs of the neighbouring Okavango
and the same applies to the Chiefs of the Kaokoveld. So I think it is
envisaged that these parts, Ovamboland for example, also Okavango and
Kaokoveld, being developed at a later stage and the people living in
these parts are free to say: right, now we wilI have a federation or now
we will have one unit.
Mr. Gnoss:. Sir, would you agree that the question of what they will
be allowed 01 encouraged to do, whichever you prefer, is a factor in
respect of their political aspirations, their political activities, their poli
tical attitudes.Do you agree, Sir, that this is an important factor in
respect of their politicalttitudes and actions?
l\frDAHLMANN: Not at the moment. Their political activity centres
around their chiefs ànd headmen and around their own political tribal
organization. 1 do not mean the political parties, I mean the group, the
interest of the members of the different groups centred a10und their
chiefs and headmen.
Mr. GRoss: When you say, Sü-"at the moment"-would you as a
political analyst and expert project that moment in terms of predictable,
foreseeable history? Is the change you envisage possible in one hundred
years or lesser time from the point of view of your political analysis?
Mr. DAHLMANN: Mr. President, I think it is very difficult to give any
figure here on how much bme itwill take tocorne to a fede1ation or one
unit but I would say the sooner the bettet. One cannot do it without
developing these different communities and they really want to be
developed on their traditional pattern and that also applies to the
Hereros. They do not want to mix with the Ovambos and they are afraid
to a certain extent of Ovambo domination and the Ovambos are also
afraid of Herero domination because in the system which the Herero
envisage, they themselves are living in the centtal part of the Territory
which is highly developed and the other parts are much less developed.
One example that I have mentioned already is that if Hosea Kutako
sends a letter to Mr. Kama, then he signs ''Leader of the Herero Nation".
So they regard themselves as sepaiate entities, as separate nations, with
national loyalty and national pride.
Mr. GROSS: With respect to the question I asked in terms of the
ultimate objective of federation, commonwealth or otherwise, are you WITNESSES ANDEXPERTS
539
familiar, Sir, with the officially announced policy of the Mandatory with
regard to the objective in question?
Mr. DAHLMANNT : o which ...?
.Mr.GROSS:Are you familiar with the announced policy of the Govern
ment of the Republic of South Africa with respect to the objective of a
federation, commonwealth or otherwise, which is contemplated for the
homelands?
l\IrDAHLMAN)!C : an you indicate where it is announced?
l\fr. GROSS:Weil, I take it that your answer is that you are not aware
off-hand at least of any official pronouncements on the subject, Sir.
Mr. DAHLMANNT : here are several pronouncements on this subject.
One, for exarnple, that these homelands are free to forma federation, and
I think the Odcndaal plan says that the Hereros might be willing to form
a federation, if ail the people agree, with the Hereros outside South
West Africain Bechuanaland. I think that is in the Odendaal report.
Mr. GRoss: You testified, did you not, Sir, that you had followed the
proceedings in the House of Assembly with respect to the debate on the
Odendaal plan White Paper?
Mr. DAHLMANN: That is correct.
Mr. GRoss: Are you aware of the statement by Prime Minister Ver
woerd specifically on this matter of the objective in which, in the Hansard
already cited at Columns 5460 and 5461, the Prime Minister, referring in
the context to proposais made by the opposition leadership for federation
as an objective, had this to say, Sir?
"And then the federation jokc has to be carried further because
that federation has to become part of another federation, that of the
Republic of South Africa."
And then he goes on to say, after characterizing the fedcration proposai
as a "joke":
"If there is anything which can be disastrous for South West
Africa and for the prosperity of the Blacks as weH as the Whites
and for the possibility of developing the whole of South West Africa,
as well as for White rule in its part of South West Africa, it is this
little jokeor experiment of the Leader of the Opposition which he
wants to carry out as an alternative course for South West Africa."
Were you present when this speech by the Prime Minister was made?
Mr. DAHLM.ANN Y:es, 1ir. President. I can only say that it has nothing
to do with the question that we are discussing at present. The Prime
Minister referred to a completely different fcderation, he referred to the
federation envisaged by the leader of the opposition based on the Basson
plan. The Basson plan was completely diffcrent. You said in the question,
the plan of the leader of the opposition, Sir de Villiers Graaff. This plan .
envisaged the division of South West Africa; the northern part should
be given away and should become Ovamboland and the southern part
should be one unit. I am not quite sure whether it was on a qualified
franchise or one man, one vote. I think the Coloureds should be in
corporated in the electorate and that was the way to have a combined
White-Coloured majority within the Southern sector of South West
Africa. Ithink Mr. Basson mentioned a few figures and came to the con
clusion that if the Whites, the Coloureds and the Basters came together,
they can fonn the majority and they can out-rulc African majority rule. SOUTH WEST AFRICA
540
I am not quite familiar with this anymore as I did not think it would
corne up, but I know that this federation, which the opposition envisaged,
was complctely different from the federation idea I was referring to.
Mr. GROSS: Now, Sir, would it refresh your recollection as to the actual
context of the Prime Ministcr's remarks to quote to you the following
excerpt from his statement which is quoted in the Rejoinder as well, V,
page 272:
"Further, we have adopted the standpoint that there must be
economic co-operation, but in addition we make provision in our
policy for the possibility of political co-operation. However, we do
not seek this by means of a federation in which there will be a domi
nant group and in which a majority group will rule a minority group.
Our principle is that in the highest body there should be a con
sultative body, that for political co-operat10n with one another there
must be consultation in regard to common interests on an equal
footing, as in a commonwealth."
Do you recall, Sir, this statement by the Prime Minister as to his defini
tion of the future goal and objective of the homelands to be installed?
Mr. DAHLMANN: Yes.
l\lr. GROSS:And does this have any relationship whatever with any
specific type of plan of federation, or does it, as it appears from the
words, refer to the course toward a consultative commonwealth-type
relationship as distinguished from a federation-type?
Mr. DAHLMANN: I think l was actually asked how I myself envisaged
the future of thcsc territories or their co-operation, and I think I also
mentioned that at the present time there is not much room for a federa
tion, but at a later stage there might be. At present I think I agree with
the statement of the Prime Minister that it is evcn difficult for the differ
ent groups to form a fedcration, so there is no reason to envisage this
federation at present, but why should we not become one unit, if all these
communities are prepared to do this and do not follow their present lines
where they are suspicious of each other?
Mr. GROSS:Sir, for the record, I believe the record will show that my
question was not a request for your view, which no doubt the Court is
glad to have, but it was whether you are familiar with the Government
policy on that subject.
Now, with respect to the political independence, which is the term used
inthe Odendaal Commission report, would you be prepared, for example,
as a political analyst or expert, to venture an opinion or an estimate
concerning an approximate time, let us say in a period of decades if you
will, in which, let us say, the independent state of Tswanaland-popula
tion 2,632, none of whom now live in the proposed Tswanaland-enters
the cornmonwealth alongside, let us say, Kaokoveld-proposed popula
tion,9,000? As a political analyst, looking toward the accomplishment
ofthe objective of the homeland proposa!, do you envisage any period of
time, decades or centuries or whatever you will, in which Tswanaland,
as one of the proposed homelands, Kaokoveld as another, will be in
dependent political members of a commonwealth of South ·west Africa?
Do you envisage a time for the accomplishment of that vision?
Mr. DAHLMANN: In this question I cannot put the extremes together.
Twsanaland and the Kaokoveld are far away. The Odendaal Commission
actually planned that the different groups, or nations, should have WlTNESSES AND EXPERTS
54r
common borders, espedally as far as Hereroland is concerned. Herero
land should have a common border with the Okavango and Damaraland
will have a border with the Kaokoveld and it does not apply to Namaland
nor to the Rehoboth Gebiet.
But let us give them the opportunity to corne together. One should not
think that it is a commonwealth like the British Commonwealth at
present, that is not the question. The main thing is that one discusses
common problems together and that was not possible a few years ago
within the Ovambo nations, and it is not possible at present between the
leaders of the Ovambos and the Kaokovelders and the Okavangos and
the Caprivians. We have to follow this pattern to bring the leaders of the
different groups together.
Mr. GROSS: Would you regard it as a matter or factor relevant to the
political activities,attitudes, aspirations of the people concerned to
evaluate whether the proposais with regard to the homelands, as stated
by the Commission and confirmed in principle by the Govcrnment, are
seriously intended or a hoax? Do you regard that as a relevant question
for considerationby the persons in the Territory in connection with their
political activitiesnd attitudes?
Mr. DAHLMANNY : es.
Mr. GROSS: The evaluation of the proposais, their seiiousness-would
that be correct? A factor in the analysis of their political attitudes?
Mr. DAHLMANNY : es.
Mr. GRoss: Now, with respect then to the talk from official sources
with regard to the objective of a commonwealth, an objective of political
indepcndence, let me, if I may, call your attention for example, as a
matter of evaluating the attitudes of the political parties and personalities
inSouth West Africa, to page 87 of the Odendaal Commission report,
paragraph J:29,with reference to the Kaokoveld, which is said to have a
population of 9,234.
Now, paragraph 329 states the following goal and vision:
"That the Legislative Council [this is of Kaokoveld] gradually
take over from the Department of Bantu Administration and
Development the legislative authority and administrative functions
which are to be entrusted to the said Department for the time being,
as recommended in paragraph 222, that is eventually al! functions,
excluding Defence. Foreign Affairs, Internai Security and Border
Control, Posts. Water Affairs and Power Generation, Transport
(with reasonable protection of the development of local transport
undertakings). and that al! legislation be subject to the approval
and signature of the State President of the Republic of South
Africa."
As a political analyst, would you say that this goal, this objective, this
plan, as you callit-a political plan-is consistent: with a concept, from a
political analyst's point of view, of political independence?
Mr. DAHLMANNF :irst, I do not call the Odendaal plan a political plan.
Mr. GROSS: You said political plan, Sir, but the record will show that.
Mr. DAHLMANN1 : regard the Odendaal plan as a development plan,
but of course the political side is a part of it. As far as the Kaokoveld is
concerned, I think that the present situation there is known and the
proposals for the Kaokoveld, scen with our eyes, look very limited. In
fact, they contain great possibilities for advancemcnt and for develop-542 SOUTH WEST AFRICA
ment and it would be good if the people themselves, living in the Kaoko
veld, would take the chances and opportunities of developing their area
because the Kaokoveld is rather undeveloped.
Mr. GROSS: Do you regard, from a political point of view, political
independence, a phrase so often used in the Odendaal Commission report
and in the Prime Minister's speeches to which reference has been made,
in any real sensc of the word as envisaging such matters as control over
citizenship policy, for example, Sir?
Mr. DAHLMANNI:f I go through all the restrictions, if I may so call
them, I think the Kaokovelders are not prepared to defend themselves
and ...
JI.frGROSS: I am talking about citizenship policy. Do you regard the
concept of political independence as envisaging or including control by
a sovereign, politically indepcndent, government of its immigration and
citizenship policy?
Mr. DAHLMANNT :he Odendaal plan is only the first step towards this
development to self-government and maybe indepcndcncc or maybe not;
maybe at a later stage the different groups will not be interested any
more in independence as they are now and they will be in favour of a
greater unit, maybe the whole of South West Africa as one unit.
Mr. GROSS:As a political analyst, would you say that the objective
which, if I may say, the founding fathers of the new system in South
West Africa aspire to and which they plan, largely determines the form
and structure of the system in its formation and evolution? Is that not,
from a political point of view, a vitally important part of the present,
rather than the remote undated future?
Mr. DAHLMANNU : ndoubtedly. The first stcp is to establish a more
democratic system than the one in existence and I think, as far as the
Government is concerned, you can see the way very clearly. In the past
you had these autocratie and despotic chiefs-some of them, not all of
them-and now you are coming more and more to a rather dcmocratic
way of life. Now, the people already elect-rather, I would not say the
people because the election system is quite diffi.cult to explain-but the
clans, or the heads of the families, elect the headmen and the councils of
the headmen which are the local political authorities within these nations.
The next stcp is to give more people the right to take part in these
elecbons and to give them freely elected representatives within the
leadership of the differcnt tribes or nations. This is actually the pattern
to which this development plan leads and if one follows this democratic
pattern I think there are many possibilities in the future of their coming
together within the framework of democracy. I must cmphasize first that
these different groups, or nations, are proud of their group identity so
the first step is to creatc a democratic system within their groups and I
think it should be easy to corne to a common understanding between
different democracies.
1\IrGROSS: I have listened carefu11y to your answer. I do not know
whether you have referred at all to the question of White rule. If so, I
will not pursue it. On the assumption that you 1eferred only to democracy
on one side of a colour or ethnie line, I should now like to invite your
attention to the question I asked with respect to the importance of the
objective in terms of the method and time of evolving a political system,
that is, whether starting from Mr. Verwoerd's reference to White rule,
whether it is or is not correct, according to your understanding, that the WITNESSES AND EXPERTS 543
system envisages and predetermines a division of the Territory between
White and non-White in each of which areas, White and non-White
respectively, democracy, as you callit, will be encouraged, but only with
respect to those ofthe same colour and from the same area?
Do you understand my question, or would you like me to simplify and
clarify it, which I will be glad to do?
l'l!r. DAHLMANNN : o, Mr. President, I understand the question, but I
cannot follow one phrase, and that is "not between Whites and non
Whites" this separation or whatever one wants to call it; there is a
separation between the different existing nations within South West
Africa-we arc talking about South West Africa, I think?
Mr. GRoss: Yes, Sir.
Mr. DAHLMANNT : hat is not actually meant between the Whites on
the one hand and the non-Whites on the other.
Mr. GRoss: Whcn the Prime Minister, if you know, Sir, uses the ex
pression in column 5461 in these Assembly debates, and I quote: "White
rule in its part of South West", what part of South West is "its part", if
you know, Sir? What is meant by that expression?
.Mr.DAHLMANNI: think it is the White part of South West Africa for
which the Legislative Assembly has jurisdiction. ·
Mr. GROSS: Now, Sir, there is a White part of South West Africa over
which the Legislative Assembly has jurisdiction. ls it your understanding
that that White part of South West Africa includes the urban areas and
the rural areas of the southern sector outside the Reserves?
Mr. DAHJ.MANNY : es, Mr. President, that is correct.
Mr. GRoss: Now, Sir, in determining what shall be for the indefinite
future the White part, as distinguished from the presumably non-White
parts, would you say whether the decision with respect to that matter is
made with any representation on the part of the non-Whites as a group
or groups?
· Mr. DAHLMANNY : ou mean within the ...
l'lfGROSS: I mean for any purpose whatsoever, Sir, in setting up the
system which you describe as a White part and various non-White parts.
Is the determination with respect to the establishment of the system, and
the allocation of the parts, made by a body in which the non-White
group or groups have a voice or participation?
l'lfr. DAHLMANNT :he Whites have the franchise that is envisaged ...
Mr. GROSS; I am talking about the present time.
Mr. DAHLMANNA : t the present time, only Whites are entitled to send
representatives and to take part in the elections for the Legislative
Assembly.
Mr.GROSS: Soit would follow, would it not, Sir, that the determination
of the distribution or the division of the Territory into these projected
indcpendent homelands, White and non-White respectively, would be
made under the direction of and by control of an all-White legislature,
which is not elected in whole or in part by non-White electors? Is that
correct, Sir, or is that too complicated a thought to follow?
Mr. DAHLMANNT :he thought is not complicat,~d, but I think it does
not reflect the right idea, because I do not know of any statement that
the non-White homelands should be governed by the White Legislative
Assembly in Windhoek.
Mr. GROSS; I had attempted to request whether you understood my
question. Is the division of the Territory between White and non-White544 SOUTH WEST AFRICA
detennined by an ail-White legislature, which is not elected in whole or
in part by non-Whites? Can you answer that yes or no?
Mr. DAHLMANN:Mr. President, I am sorry but I did not understand
the ...
Mr. GROSS:That is a difficult question, is it, Sir? Do you understand
the question or the answer? Is the division of the Territory between
Whites and non-Whites dete1mined and controlled by an all-White
legislature, which is not elected in whole or in part by non-Whites? Is
that truc or false?
Mr. DAHLMANNB : ut there j5no division.
l\frGROSS:There is no division contemplated or in process or approved
by the Government as a target?
Mr. DAHLMANN:Yes, l\fr.President, a division is envisaged by the
Parliament of the Republic.
Mr. GROSS: And is the Parliament of the Republic an all-White
Parliament, Sir?
Mr. DAHLMANNI:t is an all-\Vhite Parliament.
Mr. GROSS:And are any members elected by non-Whites, Sir?
Mr. DAHLMANNN : o, M.r.President, they are not.
Mr. GROSS: N ow, Sir with respect to the decisions made as to the
homelands, the proposed homelands, I asked you before whether you,
Sir, as a political expert and analyst, would venture an estimate in terms
of years, decades, or centuries, whichever you prefer, as to the accom
plishment of the political independence which is envisaged acc01ding to
the Odendaal Commission report?
Mr. DAHLMANNM : r. President, I am unable to give any figure.
Mr. GROSS:Now, Sir, you could not even estimate it within terms of
centuries?
Mr. DAHLMANNI: hope as soon as possible.
Mr. GROSS:And that is ...
Mr. DAHLMANN:I hope that the development of the whole country
goes as fast as possible-that I can say; Ican also state that a lot has
been done and is being done to develop South West Africa as a whole. If
one takcs into consideration the vastness of the country and the small
population-a little more than half a million people-then I would say
that South West Africa is, at least economically, one of the highest
developed countries in Africa or I could go even further.
Mr. GRoss: Sir, this may be a hypothetical question, but it is serîously
intended: supposc-I ask you as a political analyst and as an expert
for the Respondent on political activities, attitudes and developments in
the Territory among the non-Whites-you were asked by a non-White,
whom you werc persuading, or the Government was seeking to persuade,
to move to Hereroland or Damaraland, and if in part of the persuasion
procedures back and forth that individual should ask you: "When can
I expect that the homeland will be politically independent, and if I
become a citizen of it, when can I exercise citizenship rights in any
meaningful sense other than to become a foreigner in the White-ruled
area?", would you think these questions pertinent to a consideration by
an individual as to whether he should be pcrsuaded to move to a proposed
homeland?
Mr. DAHLMANN:Mr. President,'that question is, of course, of impor
tance, but the greater issue is to offer now opportunities for better living
to the individual. WITNESSES AND EXPERTS 545
Mr. GROSS:I take it then, Sir, that you would not be prepared to
answer in terms of timc factors? I think you have already indicated
that-is that not so, Sir?
Mr. DAHLMANN: I cannot do that, it depends on the people concerned.
Mr. GRoss: Now, Sir, with respect then to the improvement of econo
mic opportunities, what wouid yom answer be if the individual said: I
have Iived in the mban area, my father before me has lived here, and I
would likc to know what my future opportunities arc here, where I reside
and work, as distinguished from this prospect in the homelands to which
you are persuading me to move. Would you, Sir, be in a position to
exp1ess your view as to whether it is contemplated by the Government
that his economic opportunities where he lives and wmks now, and may
wish to stay, will be improved in the sense, let us say, of lifting or elimi
nating restrictions on promotion, or elimination of job.1estrictions or job
reservations? Would you say that this enters into the possibilities as the
Government foresees the plan?
Mr. DAHLMANN: Mr. President, I said yesterday that the question of
job reservation is practically completely unimportant in South West
Africa, and I think that nobody suffers under that law; on the contrary,
I said yesterday that many jobs and opportunities are offered and we do
not have the people qualifying foi these jobs but I think that the in
habitants-the non-White inhabitants-of the White aiea have also
good opportunities for the future-for example, they can acquire know
ledge which they can use in their homeland or, if they prefer, they can
use in the White area.
[Public hearing of IJ October I965]
Mr. GROSS:Now, at the conclusion of the testimony yesterday, you
responded to a question regarding improvement of economic opportuni
tiesand so forth and you said:
"I said yesterday that the question of job reservation is practically
completely unimportant in South West Africa and I think that
nobody suffers under that law; on the contrary, I said yesterday that
many jobs and opportunities are offered and we do not have the
people qualifying for these jobs, etc."
Unless the honourable President wishes, I will not read the rest of the
paragraph. I think that what I have quoted is in reasonable context.
Now, with regard to your testimony as to the "practically completely
unimpottant" aspect of job reservations, I wanted to ask you more
specifically whether yoür judgment or testimony in this respect was
intended to apply to restrictions, let us say, in the mining industry?
Shall we pause there for your answer? \Vould you answer yes or no?
Mr. DAHLMANN: ln my answer yesterday I gave a general survey. I
did not refer to any specific industry or to any specific part of the
economy. I have corne to this conclusion bccause, firstly, many jobs
have been ...
The PRESIDENT: That is not the question, Mr. Dahlmann. The question
iswhether in the general answer which you gave to Mr. Gross's question
yesterday you intended to include the reservation of jobs in the mining
industry?
- SOUTHWESTAFRICA
Mr. DAHLMANNG : enerally speaking, yes, Mr. President.
Mr. GROSS:Did you also intend to include specifically the reservations
in the railways and harbour administration with respect to firemcn, etc.?
Mr. DAHLMANNY : es, there are certain restrictions, that I must admit.
On the other hand plenty of opportunities are offered.
Mr. GRoss: To these jobs? When you say "plenty of opportunities are
offered" do you mean to these jobs?
Mr. DAHLMANND : iffercnt opportunities offered.
Mr. GRoss: You mcan to jobs of equivalent rank?
Mr. DAHLMANNH : igher rank.
Mr. GROSS: In these industries?
l\fr. DAHLMANN:Not in these industries but in other fields of th~
economy.
Mr. GROSS: In the industrial field?
l\frDAHLMANNY : es, in the industrial field.
Mr. GROSS:Could you give the Court an illustration?
Mr. DAHLMAN~:One example: in the fishing industry, in the road
building industry. I must saythat we do not have much industryin South
West Afr.icaexcept the mining and the fishing industry, but, as I already
said yesterday, some non-Whites are boat owners, they own quite a
number of boats. They are captains, or navigators of these boats and I
think these are quite rcasonable jobs, higher jobs.
Mr. GROSS:I take it that we can assume that there is no fishing
industry in the urban or rural areas of the southern sector? I suppose
that that is obviously so; that there are no large lakes, or are there?
Mr. DAHLMANNN : o.
Mr. GROSS:Now, with respect to industries or occupations in the
southern sector, just to clarify the question, are there any opportunities
offeredto Natives to serve in posibons in which they exercisc supervisory
authoritv over Whites?
l\fr. DAHLMANNI: cannot think of any at the moment, unless you say
that a clerk who works in an office and has a book-kecper has certain
supervisory fonctions, but otherwise no, I cannot think of any at the
moment.
Mr. GROSS:Is that, so far as you are aware, Sir, a matter of Govern
ment policy?
Mr. DAHLMANNI: think that in the first instance there is the matter of
qualification because...
Mr. GROSS:May I ask respectfully for a response to my question before
the qualifications?
The PRESIDENT:Sometimes though it is not your fault, Mr. Gross-,--
1 have noticed on more than one occasion-the witnèss, who is not
speaking his mother tongue, misunderstands the point of the question.
Mr. GROSS:I am sorry.
The PRESIDENT:Mr. Gross will put the question to you a.gain, Mr.
Dahlmann, listen to the question, and if you can, give a direct answer
to it. If you have to qualify it, then you must qualify it, but if you are
capable of giving a direct answer, particularly whether a certain position
is correct or not, then please answer briefly in accordance with the
question and be responsive to the question. Do you follow what I mean?
Mr. DAHLMAN;1Y .:es, :Mr.President.
Mr. GRoss: Sir, would it help if I rephrased the question?
The PRESIDE:ST:Would you mind? Yes. WITNESSES A:ND EXPERTS
547
Mr. GRoss: Is it, ifyou are aware, a matter of Governrnent policy
that no non-White may occupy a position in which he has supervisory
authority over \Vhitest
Mr. DAHi.MANNY : es. I think one can say that it is more or less Govern
ment policy.
Mr. GROSS:Is your qualification now relevant, because I did not want
to eut you off from qualifying your answer ifyou wish to?
Mr. DAHLMAN~:Not in this particular field.
Mr. GROSS: When you testifi.ed in the verbatim record at page
458, supra, you testified that among the basic facts and forces
relevant to (I am paraphrasing) political attitudes, activitiesand
antagonisms-those were the words you used-and then on page 459,
you said that one of these factors, as I understood you, is econom1c
well-being or cconomic stress. You went on to say, on page 459, that the
latter, economic stress, leadstopolitical dissatisfaction with the Govern
ment in power and economic well-being leads to happiness or satisfaction
and so forth. That is a correct summary of your testimony, is it not?
Mr. DAHLMANNT :hat is correct, yes.
Mr. GROSS:I should like to ask you, in connection with economic
stress and economic well-being or otherwise, is it, so far as you are aware,
a factthat for many years the leaders and organizations in South West
Africa have voiced strongly expressed grievances conceming the adverse
effects of restrictions inhe economic field arising from the apartheid
polîcy? Is that a statement of fact, irrespective of the merits or demerits
of their position?
Mr. DAHLMANNI:must say I cannot think of any speciftc complaint or
statement to that effect.
Mr. GROSS:You have, in your political studies and analysis, never
encountered any expressions, strongly voiced or otherwise, of dissatis
faction or grievance with the econom1c conscquences of apartheid?
Mr. DAHi.MANN:When I referred to the economic well-being as an
important factor I did not think of this question. I mainly thought, as I
mentioned, that during prolonged periods of drought the whole country
experiences bad times and this is the dissatisfaction I meant in my
evidence.
The PRESIDENT:I think the Court understands that, Mr. Dahlmann,
but the question which was put to you is quite a different one. It does
not bear upon speciftcally the truth or otherwîse of that statement .
.Mr.Gross's question is whether you can recollect whether any political
leader, at any particular time, has exprcssed, either in strong language
or otherwise, criticism or objection to the economic conditions in the
Territory resulting from a policy pursued by the Governrnent of the
Republic of South Africa?
Mr. DA1ILMANNM : r. President, I can think of complaints about low
wages, yes. There are a few complaints and of course wages have in
creased ...
The PRESIDENT:And that is your answer to .Mr.Gross?
Mr. DAHLMANNY : es.
Mr. GROSS:I take it then that you cannot recollect any statements of
grievance or objection to job restrictions or reservations?
Mr. DAHLMANNN : o, only about the low wages.
Mr. GROSS:Only the low wages?
Mr. DAHLMANNO : nly the low wages, that I can remember.54-8 SOUTHWESTAFRICA
Mr. GROSS:I See, Sir. You have not encountered any statements by
leaders of SWAPO or SWANU, for example, in respect of the economic
apartheid policy?
Mr. DAHLMANNT : hey might have said something during their meet
ings, I wouldnot deny that. But I cannot think of any specific statement
at present.
Mr. GROSS:I do not want to tax your recollection, Sir. I think that
you are familiar with petitions, I believe you testified, Sir?
Mr.DAHLMANN : es.
Mr. GROSS:And in petitions that you have studied have you seen
references to economicapartheid and objections voiced thereto?
Mr. DAHLMANNA : gainst the Odendaal plan in general but not actually
against job reservation,r something like that.
Mr. GROSS:I said, Sir, the consequences of economic apartheid, of the
different treatment meted out to non-Whites as distinguished from
Whites.
Mr. DAHLMANNN : o, 1\1.r.President.
Mr. GRoss: You do not recall any such statement, Sir?
Mr. DAHLMANNN : o.
Mr. GROSS:Now, in your interviews with political leaders, that you
have referred to in your testimony, have you derived the impression
that they are satisfied with, they are content with, the discriminations
in the field of job employment?
The PRESIDENT:Does this refer to political leaders or non-Whites
generally?
Mr. GROSS:I am referring to the political leaders, with whom I believe
the witness testified he had consultations.
The PRESIDENT:Yes.
Mr. DAHLMANNT :he leaders of the political parties reject the Govern
ment policy as a whole.
Mr. GRoss: lncluding economic apartheid?
Mr. DAHLMAN'N In:cluding everything, even including, as I have stated
already, economic development plans.
Mr. GROSS:lncluding economic apartheid, Sir?
Mr.DAHLMANNI:said including economic developmcnt plans.
Mr. GROSS:1 know you did, Sîr, but I say, do these comments include
economic apartheid as well as economic development, to which you refer?
Mr. DAHLMANNY : es, Mr. President; evcrything.
Mr. GROSS:Now, Sir, with regard to the appraisal of the economic
stress or economic well-beingin respect of the Natives in the economic
field, arc you familiarith any reports or conclusions of United Nations
Agencies or bodies with respect tothat matter?
Mr. DAHLMANNN : ot at the moment.
Mr. GROSS:Have you engaged in any study or analysis of United
Nations resolutions or reports of committees concerned with South West
Africa?
Mr. DAHLMANNY : es, Mr. President.
Mr. GROSS:And in any of those reports or conclusions you say that
you do not recall having encountered any analysis, or findings, or
conclusions with respect to the economic apartheid consequences?
Mr. DAHLMANNW ; eJJ, there are definitely conclusions.
Mr. GROSS:And are they favourable or unfavourablc, Sir?
Mr. DAHLMANNU : nfavourable. WITNESSES A~D EXPERTS 549
Mr. GROSS: And, Sir, for example, would the following be what you
would regard from your study as a, shall we say, typical exarnple, this
document being in the record: GeneralAssembly OfficialRecords,Sixteenth
Session, Supplement 12A, document A/4926, which is the Report of the
Committee on South West A/rica Concerning the Implementation of General
Assembly Resolutions I568 (XV) and I596 (XV), and I refer to two
relatively briefparagraphs from pages 20 and 21 of the report.
Paragraph 154 states:
"South Africa is the only State in the world today to practise
racialism as an official policy, not only within its boundaries but
throughout the Mandated Territory of South West Africa. This
form of racial segregation and discrimination known as apartheid
has been repeatedly condemned by the United Nations, by world
public opinion and by all those who appeared before the Committee
during its·visit to Africa."
And then specifically, in this context, and I have read this to give the
context, paragraph 155 (b):
"In the economic life of the country, the Native peoples have no
share in the profits of trade, commerce and 1ndustry, or in the utili
zation or exploitation of their agricultural, fishing or rich minerai
resources, their only role being as a cheap source of labour for the
benefit of the Whites, with no right to own land, which has been
alienated to the extent that only 26 percent. of the total land area
of the Territory has been reserved for the Non-European majority.
Neither have the Natives the right to practise the professions or to
engage in general trade, commerce and industry, nor even the right
to organize themselves into trade unions to protect the legitimate
rights of labour."
Now, Sir, if I may, with the President's permission, call to your
attention, in that paragraph I have just read, certain specific statements
under the heading "Conclusions of the Committee", and ask, Sir, whether
it is correct, on the basis of your knowledge and information, that the
Natives, the non-\Vhites are denied-1 will refer to the language here
"the right to organize themselves into trade unions to protect the
legitimate rights of labour". Now, Sir, specifically with respect to that,
are you familiar with the registration limitations with regard to non
White unions?
Mr. DAHLMANN: Mr. President, I am not an expert in this field. As far
as I know they are allowed to form trade unions. No provision has been
made for the registration of these trade unions.
Mr. GRoss: Now, Sir, when you say that no provision has been made
for registration,I take it that you mean, do you not, that non-White
trade unions, if formed, may not be registered under the prevailing laws?
Is that correct, Sir, so far as you know?
Mr. DAHLMANN: That might be correct, Mr. President; I am not
completely familiar with this field.
Mr. GROSS: Now, Sir, with respect to the reference to the right of
Natives to practise the professions, it has been testimony that there are
indeed persans engaged in professions in the Native Reserves or in Native
townships: is that correct?
Mr. DAHLMANN: Yes.
Mr. GRoss: Now, Sir, are there any non-vVhites engaged in professions550 SOUTHWEST AFRICA
in the so-called White areas outside the Native Reserves, or outside the
Native townships or locations?
.Mr.DAHLMANNY : es, Mr. President.
Mr. GROSS:Could you give an illustration, Sir?
Mr. DAHLMANN : did not quite follow the question. Which kind of
jobs?
Mr. GROSS:I said professions, Sir.
Mr. DAHLMANNP :rofessions?
Mr. GRoss: Yes, Sir. Do you have a doubt as to the meaning in English
of the word "profession", because I would be glad to clarify that.
Mr. DAHLMANNT : hey are working, as I said already, as clerks, as
operators of machinery, as captains, as boat owners, as navigators.
The PRESIDENT:Do you call those professions?
Mr. GRoss: Shall I be more specific, Mr. President, to aid the witness
and to save the Court's time?
The PRESIDENT:I think you had better, yes.
Mr. GROSS:Let us take, for example, without meaning to be exclusive,
Iawyers, doctors, teachers, doctors of divinity, or ministers of the
Gospel-let us stop there. Are there any non-White persons, within
those categories of professions, who practise their profession or calling
in any but the Native locations, or the Native Reserves or home areas?
Mr. DAHLMANNN : o.
Mr. GRoss: Now, Sir, I believe that the testimony which you gave in
the verbatim record at page 473, supra, in which you referred to "vig
orous attempts have been made to create unity between the different
anti-government organizations": and on page 458, if I may-1 am
anxious to get the context here-that:
"... without keeping in mind certain ba~ic facts and forces it is
practically impossible to understand the attitude, activities and
antagonism which manifest themselves in the political sphere in
South West Africa".
I pause there;that is on page 458, do you find that, Sir? ·
Now, with respect to the attempts to create unity between the differ
ent, what you describe as "anti-government organizations", and the
basic facts and forces which are necessary to understand the attitudes,
activitiesnd so forth which manifest themselves in the political sphere,
would you say, Sir, that the Odendaal plan recommendations, with
respect to the political structure of the projected homelands, would be a
fact relevant to an understanding ofthe attitude, activities, antagonism.
I referto the political aspects of the plan, particularly the organization
contemplated for the new homelands? Would you accept that as a major
fact in connection with the political activities and attitudes of the
people in South West Africa?
Mi. DAHLMANNM : r. President, the proposais of the Odendaal plan
are based on the fact of this disunity, this antagonism and this suspicion,
and therefore the Odendaal Commission came to the conclusion that at
the present stage it might be better to develop the different nations, or
communities, or groups, within their own field-it is supposed to be a
group or a nation development. And that might lead, at a later stage, to
better understanding between the political units, and also between the
different political organizations.
Mr. Gnoss: And, Sir, this project, I be1ieve you have testified, is WIT~ESSES AND EXPERTS
551
determined by the Government in which the non-Whites themselves are
not represented? I believc you have testifiedto that; that is undisputed
in the record, is it not, Sir?
Mr. DAHLMANNM : r. President, I have testified that the non-Whites
are not represented in the Parliament of the Republic, but that does not
mean that they have not been consulted. The procedure was as follows.
The Government appointed this Corrunission of [nquiry; it was the duty
of the Commission of Inquiry to approach all the different groups and
all people who wanted to give evidence before the Commission were
invited, sothat applied to the different political organizations and also
to the political leaders. Then the Commission produced a report, and
this report went, of course,to the Government, and that was the basis
for the Government decision and was tabled in Parliament.
Mr. GROSS:As a political analyst and observer, Sir, do you consider
that consultation is equivalcnt to participation in the decision-making
process, direct participa tian?
Mr. DAHLMANNU : nder the present circumstances I think there is not
much other choice.
Mr. GROSS:The present circumstances being what-would you clarify
that, if you don't mind?
Mc DAHLMANNT : he present circurnstances are as I explained. The
individual is not much interested in politics at ail, and the groups centre
round their headmen and chiefs; that is the main thing to my mind, that
the national authorities are consulted, because they are the representa
tives of their respective people. Of coursehey consult their own people;
they have their meetings, and they discuss certain things with the heads
of the families and with the Advisory Board members, and so on; but I
think under the present conditions it is the proper way, at least first, to
consult the local political authorities.
Mr. GROSS:Would you say that the local political authorities, for
example, are sufficiently interested or mature enough to be consulted
but not quite enough to be allowed to participate in the decision-making?
Mr. DAHLMANNI: am definitely of the opinion that they are mature
enough to be consulted, and I have said already that they might also be
mature enough to take a decision; actually, they have taken decisions,
especiallyas far as the Odendaal plan is concerned-many of them have
taken decisions. The other question is, I presume, a question of a qualified
franchise,and I think I have explained ...
Mr. GRoss: I did not ask about a qualified franchise-if you wish to
speak about a qualified franchise ...
Mr. DAHLMANNN : o.
Mr. GRoSs: I have not asked about a qualified franchise. May I
continue, Mr. President? Idon't want to eut the witness off. The question
which I should liketo ask you, however, is whether the reasons which you
assign fornot permitting (ithis is a correct paraphrase of your testimony)
non-Whites to participate in the decision-making process as distinguished
from the consultation process pertain to ail non-Whites in the Territory;
whether the reason which you assign for distinguishing between limitation
to consultation as distinguished from participation in the decision-making
process applies to all non-Whites in the Territory, every individual non
White in the Territory?
The PRESIDENT:Do you understand the question, Mr. Dahlmann?
Mr. DAHLMANNN : o, I am sorry. SOUTHWESTAFRICA
552
Mr. GROSS:I don't want to take too much of the Court's time with
this-let me, if Imay, rephrase it in a different way. My point is simply
this: you do not deny, do you, that there are non-Whites in the Tcrritory
who would be capable and qualificd to serve in governmental bodies and
participating in governmental decisions-there are such persons, are
.there not?
Mr. DAHLllfANNY : es.
Mr. GROSS:And the law and structure of the Government is such that
those persans, irrespective of individual qualifications, are not entitled
to participate-is that correct?
Mr. DAHLMANNT : hat applies to the central Government and to the
Legislative Assembly, to the Administration, in Windhoek, although
there are also non-White officials within the Administration, but it does
not apply to any body within the framework of the different nations.
Mr. GROSS:lt applies then, does it not, to the legislative bodies which
make the decision, for example, with respect to the implementation or
otherwise of the Odendaal plan, is that not correct-that is either yes or
no, I am either right or \\Tong?
Mr. DAHLMANNT :hat is correct.
Mr. GROSS: With regard to the political recommendations in the
Odendaal plan itself, there has bccn tcstimony concerning both the
objective of political independence as stated by the Commission and by
the Prime Minister and others as well as reference to the nature of the
legislative organs, or govemmcnt organs, which are contemplated for the
homelands. This, you would concede, would you not, is a factor relevant
to political attitudesand actions with regard to opposition or support
for the Odendaal plan-you would regard this as a relevant factor, would
you not?
Mr. DAHLMANNY : es.
Mr. GROSS:Now, with respect to the proposals in the Odendaal plan,
which I think you have characterized as the political part of the plan, we
have in the Odendaal plan, do we not, three interrelated factors: one
relates tothe legislatures, or organs of government proposed; the second
relates to citizcnship policy;and the third relates to franchise-would
you agree that that is a fair statemcnt of the major elements of the
governmental structures proposed?
Mr. DAHLMANNY : es,
]\fr. GROSS: I will attempt very briefly to get your expert opinion
whether or not this is to be interpreted as the words seem to indicate,
let us take proposed Hereroland, for example, and you will I think agree,
would you not, that the structure proposed is fundamentally the same
for all of the proposed homelands?
Mr. DAHLMANNM : ore or Jess the same.
Mr. GROSS:More or less the same. Soif we take Hereroland, just as an
example: page 97 of the Odendaal Commission report, let us turn to
paragraph 357, and I think you will find that the contemplation is that
·all legislation should be subject to the approval and signature of the
State President of the Republic of South Africa-that is correct, is it
not?
Mr. DAHLMANNT :hat is conect.
l'lfr. GROSS:That pertains to legislation-thisis of course in the future
when at some unspecified time these homelands corne into being with
these legislatures, but dealing with them now notas facts but as prospects WITNESSES AND EXPERTS 553
for political consideration by political leaders and others; with respect
to the legislatures proposed, is it not correct that in paragraph 356
on page 97-it is the provision with regard to the structure or composition
of these organs-is, among other things, that "elected members shall
not constitute more than 40 percent. of the Legislative Council"-is that
a correct rcading of that section?
Mr. DAHLMANN: That is correct.
Mr. GROSS:And is it further provided in paragraph 358 on page 97:
"That the executive powers of the Legislative Council be vested
in an Executive Committee consisting of the senior headman or his
autho~ized ~.eputy and four members to be elected by the Legislative
Council ... -
is that a correct reading?
Mr. DAHLMANN: That is correct.
Mr. GROSS:And that would mean, would it not, that the Executive
Committee in which the executive powers would be vested would be
elected by a Legislative Council 60 per cent. of whom are composed of
non-elected members-is that correct?
Mr. DAHLMANN: That is perfectly correct.
Mr. GROSS:Further, with reference to the powers projected for the
Legislative Council and the Executive Committee as its delegated arm,
is it not correct that paragraph 364 provides that the Executive Com
mittee ... paragraph 364, do you have that? I don't want to go too
quickly-do you have it before you?
Mr. DAHLMANN: Yes.
Mr. GROSS:I read the last clause:
"... that the Executive Committee or a citizen shall not have the
right to alienate any land to a non-citizen except with the approval
of both the Legislative Council and the State President of the
Republic of South Africa".
That is a correct reading of it, is it not?
Mr. DAHLMANN: That is correct.
Mr. GROSS:Would you. as a political analyst and observer, and an
expert proferred here in the political field, express an opinion whether
these-1 refer now to the limitations upon the power contemplated for
the legislative organs of government-would be consistent with political
independence in the normal political usage of the phrase?
The PRESIDENT:The witness hardly needs to be asked that question,
does he, Mr. Gross? The Court itself can make determinations by reading
the paragraphs themselves, without any assistance from any witness.
Mr. GROSS: I was anxious lest the record indicates that the witness
might have implied or testified that this would be consistent with political
independence as the phrase is used frequently by the Prime Minister and
the Odendaal Commission report; I will be glad to withdraw the question,
Sir.
The PRESIDENT:No, Mr. Gross, if you think it is going to be of assis
tance to the Court.
Mr. GROSS:I would not press the point, Sir-I will withdraw the
question. With regard to citizenship, so that we can hurry this along, I
refer to paragraph 362 on the same page, 97, and call to your attention
the paragraph reference to the foJlowing language specifically: SOUTH WEST AFRICA
554
"That, as soon as is practicable, the Legislative Council by
legislation institute for the homeland a citizenship of its o,,rnand
that every Herero born in or outside Hereroland but within South
West Africa ... [etc., forgetting the other clause] but now per
manently resident in Hereroland and not declared a prohibited
immigrant ... rr now stress these words] shall be entitled to such
citizenship ... "
Is it your understanding of this recommendation that the exercise or not
of this entitlement to citizenship is an option given to the Herero in this
case? Is it an option which he can exercise or is it intended, so far as you
are aware, to confer citizenship by operation of law through the Legis
lative Council or otherwise?
Mr. DAHLMANNI: think that is only a confirmation. ,
l\fr. GRoss: It is a confirmation? This language "shall be entitled to
such citizenship" sounds, does it not, as if it were to be an option, an
election, on the part of the Herero who, let us say, is living or was born
in the southern sector, in any area you wish outside the proposed Herero
land; is he, or is he not, if you know, under this proposai to be entitled
to refuse citizenship, is this an option or an election or is it, or do you
consider that you do not know the proposai?
Mr. DAHLMA~N:l\fr. President, I think the difficulty is established
that is not a law here, that is a proposai ...
Mr. GROSS:This is a recommendation.
Mr. DAHLMANNA : recommendation and I do not know what the future
lawin this regard might be. As far as I see it for all practical purposes, the
Hereros living in South West Africa wîll have the opportunity to say
"yes" or "no" to the question whether they want to participate-that is
the practical point-on the elections for this legislative body.
Mr. GRoss: Sir, if you do not know, I am sure the Court would wish
you to say so and I will not press you further. Do you know whether it is
or it is not the intent of the recommendation, in your understanding,
that the Herero, let us say born in Katutura township, to take a place
arbitrarily,would have the option to say: 1 do not elect to become a
citizenof Herero land when it iformed finally?
Mr. DAHLMANNT : hat might be possible.
Mr. GROSS:Now if it is possible for him to reject the option, if that is
thesense of your testimony that it is an option, what would his citizenship
status then be, if you know?
Mr. DAHLMAKNM : r. President, I cannot judge on these points. They
are far in the future and are recommendations and one cannot say what
the final result of these recommendations will be.
Mr. GROSS:So that, Sir, if a person should corne to you, or having
heard that you have testified here as an expert on this subject on the
political problems or otherwise, and ask you whether or not he should
allow himself to be persuaded to go, you would not feel in a position to
advise him whether or not he would be a citizen in the, let us say,
Southern sector, if he refused citizenship in the other territory?
Mr. DAHLMANNM : r. President, the recommendations of the Odendaal
plan are, of course, to encourage the non-Whites living in the southern
sector within the White sector to develop their homelands and to take
their citizenship of their respective homeland in order to be able to elect
their democratic organizations.
Mr. GRoss: Would it be fair to say, Sir, that in order to encourage him WITNESSES AND EXPERTS
555
to do so, he is kept in the dark concerning his citizenship status if he does
not elect to take up citizenship in Hereroland?
Mr. DAHLMANN: Mr. President, I think that is a more legal than
political aspect, although they are sometimes very close together, but it
rs very difficult to judge at the present time from the recommendations
what the (uture possibilities and solutions might be.
Mr. GROSS:Sir, again as perhaps this might also be regarded by you
as a legal rather than a political question-that is the question of the
civic status of the individual-but I refer to page 107, paragraph 4r3,
just to test this point out in the case of the young Herero who was sought
to be persuaded to move to Hereroland, in a hypothetical case. In
paragraph 413, you will note, Sir, the reference to:
"That all citizens of the homelands, with the exception of those
who have been declared prohibited immigrants." (Odendaal Com
mission report, p. ro7.)
Now Sir, as a political analyst and observer, are you able to clarify the
apparent contradiction between referring to a persan as a citizen and the
same time as a prohibited immigrant?
The PRESIDENT:Mr. Gross, I wonder whether this carries the matter
any further so far as the Courtis concerned? If the suggestion is, and it
is a matter for you to comment in respect of it, that having regard to
362 and 413 there is contemplated some pressure upon those who are
outside the homeland to go to the homeland, and if they do not, it will
be at the expense of being without citizenship. Weil, that is a matter
surely which can be spelt out of the report itself without asking the
witness for his view or his interpretation of it. On the question of citizen
ship, 1 should have thought that the Court is in an even better position
than any witness that might be called to determine what is the meaning
of the Odendaal report.
Mr. GROSS:\Vell, Sir, I certainly with respect fully agree. I am con
cerned, if the Court pleases, with another aspect of the question and I
shall not pursue the point, but, if I may, Sir, explain, without anticipating
comment unduly, that the confusion engendered with respect to the
civic status of an individual would be, in fact, relevant to the character
of the plan itself, which is here under examination, through this witness
as a political analyst.It would seem to us, respectfully, to bear upon the
attitude, confusion or uncertainty of an individual regarding just what
is contemplated, in determining whether this plan is or is not a hoax or a
serious proposai. This is a subject for comment, of course subsequently,
Sir,but this is the aspect which I had intended to press. I will only now,
Sir, refer to one more aspect of this proposai which is on page 97, para
graph 363. I will attempt very briefly to bring out the point: do you
know, Sir, and if you do not that is the end of the question, whether the
intention of the prnposal in paragraph 363 is that to exercise the franchise,
either by way of registering or casting the ballot, the individual con
cerned, in this case the Herero, would have to be physically present in
Hereroland either to register or vote or both? Do you know one way or
the other about that, Sir?
Mr. DAHLMANN: Mr. President, paragraph 363 says-"provided that
they are resident in South West Africa and registered as voters in
Hereroland".
Mr. GRoss: Yes, Sir. Now the phrase "may be" and I will not press556 SOUTH WEST AFRICA
you on this if you do not know, and the phrase "voters in Hereroland"
if you understand, Sir, does this refer to register in Hereroland as voters
or register as voters in Hereroland? Do you happen to know, Sir? The
phrase is ambiguous and I wondered whether you happened to know?
Mr. MULLER:I must object to asking the witness questions concerning
a legal interprctation of paragraph 363.
Mr. GRoss: I asked whether he knew, Sir, I did not ask him for an
interpreta tion.
The PRESIDENT:How can he know except by interpreting unless the
members of the Commision told him something which throws some light
upon the words they used. \Vhy then don't you ask him-if he knows
from the Commission what was intended by the particular clause, and
if he does not that concludes the matter. He cannot be asked to inter
pret ...
Mr. GROSS: I have not asked him to interpret, Sir.
The PRESIDENT:Weil, you came very close to it, Mr. Gross.
Mr. GROSS:Do you know, on the basis of any information you have
from consultations with members of the Commission, newspaper releases,
statements by the Prime i'lfinister or any other source, Sir, what the
intended policy is here, Sir?
Mr. DAHLMANNN : o, Mr. President.
Mr. GRoss: With respect to another major aspect of the Odendaal
Commission plan, I am not asking you now, Sir, for interpretation of the
plan, and if you do not have knowledge from which to form an answer,
we will dispose of the matter. but in connection with the non-Whites in
the \Vhite urban areas, this relates, doejt not, so far as you know, to the
status of the non-Whites who elect not to go to the homelands when, and
if, they are established? This would be correct, would it not, Sir? This
would relate to those non-Whites who may elect not to go to the home
lands if and when the latter are established-is that not correct?
Mr. DAHLMANN:Yes.
Mr. GROSS: Now Sir, with respect to the paragraph 441, page n7,
reference is made there and I will read the context, if I may:
"The Commission is of the opinion that the considerable expan
sion of educational and hcalth services and the accelerated rate of
development in the homelands, as rccommended elsewhere in this
Report, ,vill create greater opportunities for employment in the
homelands in the Southern Sector and result in a great migration
to those areas."
Now, Sir, if you feel it is within the realm of your expertise or competence,
would you statc whether in the event of such a "great migration" to the
proposed homelands if, and when, they are built, there would be a
requirement for substantialnumbers of those persons for labour in the
so-called White area or White economy-have you a basis for answering
that question or giving an opinion with respect toit?
Mr. DAHLMANN:Mr. President, qualified people will be needed in the
homelands and Ithink also within the White area,
Mr. GROSS:And Sir, are you familiar, I am not asking for an inter
pretation, I am asking you whether you are familiar with what, if any
thing, in the ûdendaal Commission report, pertains to recommendations
in the field of labour? Are you familiar with anything in the Odendaal
Commision report on the question of the problem of labour in the
Territory? WITNESSES ANDEXPERTS
557
Mr. DAHLMANNN : o, not at the moment.
Mr. GROSS:Sir, I caH to your attention, paragraph 1518, page 487.
Now, Sir, according to a study to which reference has been made and
which has been cited previously, the stucly by Mr. Gordon Lav.rrie, the
Director of the South African Institute of International Affairs, the
article to which I have previously referred, Mr. Lawrie comments under
the heading of "Labour" in his analysis of the Odendaal Commission
report referring to this paragraph: ''This appears to apply to industrial
workers only-what the position of farm labourers is to be or where
labour for farms is to corne from is nowhere mentioned in this report."
On the basis of your study of the report, can you state, Sir, whether that
is a correct statement or do you not know, Sir, this being a lengthy
report? Do you know, Sir, whether this is a correct statement?
Mr. DAHLMANN:The report is very lengthy, as you said, and the
question of labour is mentioned.
Mr. Gnoss: Of farm labour? Yes, Sir, well, the answer to my question
is that you do not have a basis of knowledge whether this is or is not a
correct statement.
Mr. DAHLMANNN : o, I am not familiar with all the details.
Mr. GRoss: Now, Mr. Lawrie also says, on page II5 of the same
work ...
l\IrMULLER:I object, here, to questions of this nature. Other people
have been called to testify as experts on matters of economics in South
West Africa. Now, a ,vitness, who has bcen called in as an expert in an
entirely different field, is being asked a question in regard to labour.
Passages are read from documents criticizing the report which have not
been putto the witness before to study at all.
The PRESIDENT:I appreciate that, Mr. Muller, but the Court is not
desirous of putting limitation upon cross-cxamination. The witness is an
expert in political matters. He bas bis attention drawn to Article 1518
of the report; he has not time to read it; somebody else bas a view that
it seems to result in a certain thing; I do not know how the witness can
give evidence which is of any great assistance to the Court, but I do not
think the Court will interfere with the cross-examination that Mr. Gross
is directing.
i\lr. GROSS:Thank you, Sir. If I may, Mr. President, with respect,
point out that in the Applicants' respectful submission, there is no
possible line which can be drawn, from a realistic point of view, between
political activities, political organization, politicaltitudes, as to which
this witness bas testified on direct, and exprcssed opinions, within the
economic field. The proposed policies, or lack thereof, with respect to
labour, with which these individuals will be ...
The PRESIDENT:Nobody has suggested that, Mr. Gross, one must
consider the objection in relation to the questions you are putting. It is
a different matter altogether.
Mr. GROSS:I misunderstood Mr. Muller and I apologize if I did, Sir,
I thought he sought to draw a distinction between politics and the labour
of the people.
The PRESIDENT:Not at all, polîtics cover all fields of activity of a
State.
Mr. GRoss: Now, Sir, I would like to conclude with the one further
reference, which I was on the point of making, to ask you, on the basis
of the study you have made of the Odendaal Commission report, which SOUTHWESTAFRICA
558
you have testified you have studied, whethcr you know, Sir, whether it
1scorrect or not, as Mr. Lawrie says:
"It is strange that labour questions are dealt with in a single
paragraph (r5r8), near the end of the Report, which reads as
follows :.
I simply am asking you, Sir, whether, on the basis of yourstudyofthe
Odendaal Commission report, you know, or do not know, whether labour
questions are dealt with in any other paragraph of the report. Do you
know, Sir, or do you not, offhand?
Mr. DAHLMANN:I cannot give you any specific paragraph, but if one
thinks of all these developments, projects, within the territory, within
the non-White territory as well as in the White part, then the question of
labour is included.
Mr. GROSS:Sir, I would now like to refer, once more, to the recom
mendations---the proposed plan-with regard to the non-\Vhite in the
\Vhite urban areas, which is the heading of the plan of this section, on
page rr5. At page 63, in paragraph :23r, reference is made, if you will
turn to that page, Sir, to the following:
"That the control and administration of the White population
and their area, as wellas the non-\Vhite groups in the area concerned,
be entrusted in respect of ail the remaining fonctions to an Ad
ministrator, to be appointed by the State President . . . and an
executive committee of four members to be elected by the Legislative
Assembly."
On the basis of your study of the plan, on the basis of any sources which
may be available to you, Sir, do you understand this provision to mean
that in the urban areas, such non-\Vhite groups or individuals as elect
not to go to a homeland, if and when created, will be under the control
and administration of a body appointed by the State President? Do you
understand that to be the intention?
Mr. DAHLMANNO : nly the Administrator is appointed, as far as I see it,
by the State President and, as far as I understand it correctly, the four
members to be elected by the Legislative Assemblv.
Mr. GROSS:Yes, Sir. Now, the next paragraph, paragraph 232, im
mediately follov.':ing,recommends:
"That the Legislative Assembly of eighteen members elected by
the registered White voters be retained and exercise legislative
powers ... "
Now, Sir, is it your understanding, on the basis of any information
available to vou, that the recommendation then cornes down to this:
that with respect to the non-\Vhites in the urban areas who elect not to
go to a homeland, if and when established, but to remain where they live
and work ...
The PRESIDENT:Witness, have you any information, other than the
text of these two paragraphs, to form any judgment upon?
Mr. DAHLMANNN : othing but the text of these paragraphs.
The PRESIDENT:It surely must be a matter for the Court, Mr. Gross,
as to what the paragraphs mean?
Mr. GROSS:Yes, Sir. I would Iike to ask you, Sir, as an expert, whether
you do, or do not, regard this entire plan as a plan to partition or divide WITNESSES AND EXPERTS 559
the Territory on the basis of an ethnie or colour line? Would you have
an opinion with respect to that, Sir, as a political expert?
Mr. DAHLMANNM : r. President, it is diflicult to sa.y what the future
brings.At present, this plan is designed to develop underdeveloped, or
even undeveloped, areas of South West Africa and to develop the
different communities. That can lead, as I explained yesterday, to a
commonwealth, or to a federation, or to a unit, or even to integration.
What the future might be, nobody can say at the moment.
Mr. GRoss: You are aware, are you not, Sir, that there are, according
to the Odendaal Commission report and undisputed fact I believe, some
12,700 persans classified as "Coloureds" in the Territory?
Mr. DAHLMAN:'Y .':s.
Mr. GROSS:Is it proposed, Sir, or recommended, by the Odendaal
Commission or anyone else, if you know, that there will be a homeland,
so-called, for the Coloureds?
Mr. DAHLMANNN : ot actually a homeland, a settlement.
Mr. GROSS:Is it proposed, Sir, that the Coloureds shall be persuaded to
move to three locations, or townships, which will be established in
accordance with the Odendaal plan? Do you know whether that is
correct, Sir,and I refer, so.that your recollection will be refreshed, to
paragraph 420, at page 109.
Mr. DAHLMANNY : es, I mentioned this settlement.
Mr. GRoss: Now, Sir, in paragraph 420:
"That in due course the Coloureds be settled in the three above
mentioned towns in properly planned and proclaimed Coloured
Townships where they shall enjoy the right to own property."
Do you know, Sir, whether or not the Coloureds, as they are classified,
enjoy the right to own property where they reside now?
Mr. DAHLMANNY : es, they are entitled to own property.
Mr. GROSS:Then, of course, I take it you have no basis for an opinion
or otherwise as tothe reason for this reference to "where they shall enjoy
the right to own property"; I take it that you do not have any basis for
an appreciation of the significance of that sentence.
Mr. DAHLMANNM : ay I add, just for clarification, that they are entitled
to own property already, and not only in that proclaimed area.
l\fr. GRoss: With respect to the Coloureds, would you say, Sir. as a
political expert and analyst, that they do indeed represent a very special
case, a very special type of problem, in the Territory because of the fact
that they do not fit into the so-called homelands plan-is that a correct
appreciation from the point of view of political analysis?
Mr. DAHLMANKT :hey do not fit in, that is perfectly correct, and I can
only say that the Coloureds or the majority of the Coloureds are support
ing this plan and the Government policy.
Mr. GROSS:Do they have a vote, Sir, in the State Legislature or in-any
organ of Government to express their preferences?
Mr. DAHLMANNN : o, Mr. President, at present they have the Coloured
Council which is supposed to become an elected Council, and that is their
representation.
Mr. GRoss: Now, Sir, is it not correct to say that the proposai is ..I
understand, Sir, by the way, that your answer to my question was that
the Coloureds do not have the franchise in the central organs of Govem
ment, including the Legislative Assembly. That was the answer to my
question?560 SOUTHWESTAFRICA
Mr. DAHLMANNT : hat is correct.
Mr. GRoss: Now, Sir, with respect to the Coloureds as, shall we call
them, a "special problem", it is statedin paragraph 45:2,at page rr9:
"That, where Coloureds, Basters and Nama who are the respon
sibility ofhe Department of Coloured Affairs are resident in urban
areas, the said Department should persuade them in their own
interests,and to enable them to have a say in theit own affairs, to
move to their respective urban residential areas ... "
Would you have any basis on anything which is known to you, or
which is refl.ected in your studies or consultations or otherwise on the
subject, as to whether the expression "persuade them" and "to enable
them to have a say in their own affairs ... "
The PRESIDENT:You are asking the same type of question again,
Mr. Gross. Has the witness any knowledge outside the text of the
document in front of him?
Mr. GROSS:Do you have any knowledge of anything in the Odendaal
Commission report on the basis of anything outside the text of the
document, Mr. Dahlmann?
Mr. DAHLMANNI: can only say that the attitude in the past was that
the Coloureds, regardless of where they were living, should have a say or
be entitled to elect the Coloured Council; that is ail I can say.
Mr. GROSS:So you do not know, Sir, whether, in any sense of the word,
the Coloureds have a say in their own affairs when they live in the urban
areas outside of townships; you do not know, Sir?
Mr. DAHLMANNN : o.
Mr. GROSS:Is there any basis, other than race or colour, for the planned
segregation into townships to be proclaimed?
Mr. DAHLMANNM : r. President, in the past this problem never arose
because the Coloureds are living all over the country and, as I understood
the policy, they were supposed to elect their council wherever they live.
Mr. GRoss: That is the answer to my question, Sir?
Is there any basis other than race or colour which, so far as you are
aware as a political analyst, accounts for the plan to segregate the
Coloureds into the townships to be proclaimed?
Mr. D..\HLMANN:Mr. President, there are, of course, always these
problcms on this question of community development, and the Coloureds
and the Basters are actually, and especially the Basters, proud of their
own identity and regard themselves as a group, and want to develop
their group to promote their well-being within their group, education,
and qualification, and so on.
l\Ir. GROSS:I will not press the same question again, perhaps you have
answered it in the best way you know how; but, with respect to the
Coloureds, is it true, Sir, that the Coloureds, as the Odendaal Com
mission report states, in paragraph 121,page 33:
"... have a strong Caucasian strain and for the most part maintain
a Western culture and way of life. Their language is chiefl.y Afri
kaans."
From your own knowledge of the Territory, is that a correct descrip
tion?
l\Ir.DAHLMANNT :hat is correct.
Mr. GROSS: Do they work in urban areas outside of townships reserved
forthem alone? WITNESSES ANDEXPERTS 561
Mr. DAHLMANNT :hey do.
Mr. GRoss: And is it projected that they will continue to do so,ifand
when they are persuadecl to move to segregated townships?
Mr. DAHLMANN t will be possible that they remain in the areas where
they live.
Mr. GRoss: And, Sir, if they remain in the areas where they live-1am
not certain that we understand each other at all-my question was: is it
contemplated, if you know, that Coloureds, so-called, who may live in
townships to be reserved or proclaimed for them, will, as heretofore, be
working in the urban areas outside of their proclaimed township?
Is that contemplated, so far as you are aware, Sir? Would you contem
plate that, as a political analyst?
Mr. DAHLMANNI: am not aware of that.
Mr. GRoss: You are not aware that they would work outside of the
town?
Mr. DAHLMANNO : h yes, that is possible.
Mr. GROSS:That is possible?
Mr. DAHLMANNT : hat is possible.
Mr. GRoss: Now, with respect to that portion of their lives which is
spent in and at work for the so-called White economy, are they to be
given,in the words of the report, "a say" in those affairs of thcir lives,
so to speak?
Mr. DAHL:MANN N:o, the Coloured Counci1-that is the proposaJ of the
Odendaal plan.
Mr. GRoss: The Coloured Council, if I am not rnistaken, Sir, and
correct me if I am wrong, relates to affairs pertaining to the township
itself-is that not correct, Sir?
Mr. DAHLMANNI: think that is not correct.
Mr. GROSS:What is the jurisdiction of the Coloured Council, if you
know, Sir?
Mr. ÜAHLMANNA : il Coloured affairs.
Mr. GROSS:AUColoured affairs?
Mr. DAHLMANNY : es, I cannot give you the exact limitation, but it
goes far beyond the border of administration of different townships.
Illr. GRoss: I will not press you because this would entrench on legal
questions, and that is of interpretation;I would merely refer to what I
had previously referred to concerning the non-\Vhites in urban areas,
with reference to the control and administration over non-\Vhites who
are in those areas,and I will not press you further on that as it is a legal
intcrpretation point.
I would like, Sir,o turn to the question of petitions and petitioners.
The PRESIDENT:I think at this stage, Mr. Gross, the Court will recess,
but before I do so, could I ask you a question for clarification?
You directed a number of questions to the witness in relation to
paragraphs 356 and 357 of the Odendaal report, that is the establishment
of a legislative council and an executive council. As I understood it, and
would you check with my understanding, they were directed to the
witness on the basis that this suggested legislative council and executive
council were transitional stagesnd not ultimate stages in the programme
of the Republic of South Africa.
Mr. GROSS:Mr. President, with respect, that was not my intention or
understanding; there is, of course, if I may say so, something of an
ambiguity, according to my understanding, of just what is transitional SOUTHWESTAFRICA
562
and what is ultimate in this whole affair. When questions are asked, it
frequently becomes transitional, and there are aiso at other times refer
ence to ultimate objectives; so far as these sections are concerned, Sir,
according to my understanding and analysis, they stand as ultimates
in the sense that there is nothing proposed or recommended to succeed
them.
The PRESIDENT:It is because I wanted to be sure of that, Mr. Gross,
I sought clarification. I draw attention to paragraph 357, which has a
reference to paragraph 222-perhaps you might give paragraph 222, at
some time, your consideration.
Mr. GRoss: Yes, Sir, I have indeed, Sir. Thank you very much.
Mr. MULLER: 11lr.President, can I ask my learned friend ,•,;hether he
can give any indication as to whether he will complete bis cross-exami
nation of the witness today, because I have to make arrangements with
regard to another witness who has been waiting for two days now, and I
have indicated that he need not corne until I let him know, and I can
then, ifI can have some indication, advise him to corne or not.
The PRESIDENT:Mr. Gross, are you able to give any indication to the
Court when you expect to finish your cross-examination?
Mr. GROSS:Sir, that would require consultation with the witness, in
ail seriousness.
The PRESIDENT:Consultation with the witness?
Mr. GRoss: It would indeed, Sir, because I think that the answer, with
aJIrespect, depends very largely on the nature of the witness's answers.
The PRESIDENT:If you cannot givc the answer, Mr. Gross, that is all
there is to it.
11fr.GROSS:Well, Sir, I thought I owed an explanation of why I could
not; it had been my intention, and is, to finish today, Sir, and I will do
my ve1y best, 11fr.President.
The PRESIDENT:The Courtis entirely in your bands in that respect,
Mr. Gross.
Mr. GRoss: I just regret that I cannot answer Mr. Muller's question
because it is a two-sided equation, Sir, as I think counsel will realise.
Mr. President, with respect to the comment made by the honour
able President regarding paragraph 222, would it be the pleasure of
the Court, Sir, that the Applicants reserve comments until another
occasion, or would the President wish to have their comment at this
stage?
The PRESIDENT:Since there are portions of the evidence of the witness,
)Ir. Gross, which have been directed to specific particulars in the Oden
daal report, that, I think, would fall within the provision which bas been
made that when the oral evidence has been concluded, and the Respon
dent has finishcd its address, it will be open to you to comment on the
evidence, and it would be permissible to make reference to this particular
matter on that occasion.
l\Ir. GRoss: Thank vou, l\Ir. President. Would it be out of order, in
the Iight of what the President bas just said, to briefly state, Sir, that
the problem presented to the Applicants, Sir, arises out of what, with
respect, we find ambiguous in the report? The lines of enquiry which
the Applicants have been addressing to this witness, put forward as an
expert in the political field, are designed, among other things, Sir, to
show that the very ambiguities and difficulties of understanding and
interpretation of this report are matters of political consequcnce in the WITNESSES ANDEXPERTS
Territory. That, Sir, I felt duty-bound to explain that I was not asking
this witness for legal opinions or for anything outside his knowledge,
except as a political expert dealing with a report which he has testified
that he has studied.
The PRESIDENT:I appreciate that, Mr. Gross, and there is no criticism
of the way in which you have cross-examined. My only observation is
that when the Court has a ,vritten document in front of it, it is of no
assistance to ask a witness whathis viewis on what it means. Thatis almost
èlementary. It is for the Court to determine what is the meaning of the
document..
Mr. GROSS:Sir, without meaning to carry the colloquy on, if the
witness does testify as an expert, but it is not within the range of his
professed or proffered expertise to deal with this document or the
political implications thereof, I would, of course, have an entirely
different view with respect to my method of cross-examination in regard
to these concededly difficult, somewhat abstruse and interrelated
provisions in this lengthy report.
The PRESIDENT:They may be so and they may not be. That is a
question of interpretation.
Mr. GRoss: That is my contention, Sir, of course. May I continue, Sir?
The PRESIDENT:Please do.
Mr. GROSS:With respect to the petitioners, I should like, with the
Court's permission to refer to a statement made by learned counsel,
Mr. Muller, in introducing this witness and proffering his testimony,
and I refer, Sir, to the verbatim record of 7 October, at page 456, supra.
I am referring to i\frMuller's statement of a sentence which l will read,
I believe, in context, in which Mr. Muller explained the purpose of
proffering this witness, among other things.
"We will then submit and argue that to a very great extent the
resolutions as well as the reports [that is of the United Nations
bodies] are based upon or largely influenced by statements made by
this body of political petitioners."
This was asserted by Mr. Muller by his statement to the Court, Mr.
President, and by way of explanation of the particular respects in which
the witness's testimony is regarded to be relevant by the Respondent,
basically on two main aspects and then Mr. Muller went on from there.
Now, Sir, I call this to your attention, Mr. Dahlmann, and I would like
to ask you whether in respect of any of your testimony to the Court you
have, or seek to,or sought to have the Court infer on the basis of any of
your testimony, that United Nations resolutions or reports are based
upon, or largely influenced by, statements made by this so-called body of
political witnesses?
Mr. l\luLLER:Mr. President, with respect, I indicated that that would
be our argument. I did not say that we would envisage any evidence on
that aspect from the witness.
The PRESIDENT:But you did lead certain evidence on specific matters.
Mr. l\IuLLER:Asto whether the contents of the petitions were true or
not, l\frPresident.
The PRESIDENT:Asto whether they were true or not?
Mr. MULLER:Yes, Mr. President, not farther, as to whether the
resolutions my learned friend says were based or not based on them.
That I did not elicit from the witness. SOUTHWEST AFRICA
Mr. GRoss: Sir, obviously Mr. President does not wish me to engage
in a colloquy with the counsel on this point. I would simply call the
Court's attention, if I may, to the statement, which is relevant rcferring
to testimony to be proffered, "when we corne to deal later on in argument
with the so-called law-creating processes or norm-creating processes
referred ta by the Applicants, that is, resolutions and reports of organs
and agents in the United Nations".
Now, Sir, I am asking the question of the witness, with the Court's
permission, whether any testimony he gave he considers relevant, and
wishes the Court to infer from any of this testirnony, in any respect that
is germane to the question, whether or not resolutions and reports of
organs and agencies of the United Nations are based upon, or largely
influenced by, statements made by this body of political petitioners.
It is a question addressed to the witness, wîth the Court's permission,
so as to examine the purport and intent of his testimony in this regard.
The PRESIDENT: Mr. Gros.s, I think that is perfectly permissible.
When a witness is called to testify on questions of fact, or as an expert,
the range of cross-exarnination is not limited hy the facts to which he
deposes or the expert evidence he gives in chief. Soit would be perfectly
open to you to ask that question.
Mr. GROSS:Sir, may I then ask the question if the witness understands
it. Would you like it repeated or do you understand it?
Mr. DAHLMANN:Mr. President, man y petitions have been sent to the
United Nations frorn South West Africa and from political leaders
outside of South West Africa, and one finds that some resolutions have
more or less the same wording as the petitions or refer to the petitions.
Mr. GRoss: Now, Sir, were you in your studies of the United Nations
resolutions and reports of agencies, aware, or came across, Sir, the
proceedings of the Trusteeship Council in the 1947-1949 period with
respect to South West Africa. Are you familiar with those, Sir?
Mr. DAHLMA:-.~:I am not familiar with ail the particulars, but I am
more or less generally aware of what was going on, speaking in general
terms.
Mr. GROSS:Do you know, Sir, of your own knowledge, whether or not
thesc petitioners, the ones you have cited and liberally quoted from
documents already in the record, werc before the Trustceship Council in
that period?
Mr. DAHLMANN:No, Mr. President, definitely not Kerina, definitely
not Kozonguizi, also not Kuhangua, Nujoma and so on, nor Michael
Scott at that time. No.
Mr. GRoss: None. The answer is no, Sir. I think that will be brought
out by the record, Sir. Now with respect to the proceedings at that time,
are you aware of, or familiar with, the resolutions adopted and the
recommendations made by the Trusteeship Council with respect to
South West Africa policies, including racial policies?
Mr. DAHLMANN:Mr. President, I have read quite a lot about the
proceedings and also about certain resolutions, some adopted by small
majorities, some adopted by greater majorities, that is true, but I cannot
give any details about the resolutions.
Mr. GROSS:But you can say, Sir, can you, without qualification, that
those resolutions and reports could not have been influenced by anything
these petitioners, who are called professional petitioners by the Respon~
dent, had to say at that time? WITNESSES AND EXPERTS
Mr. DAHLMANN: Those petitioners I have quotcd had nothing to do
with, or, Iwould say, at that time they did not appear aspetitioners.
I\fr.GROSS: And, Sir, do you know, for example, when any of the
gentlemen that you mentioned firstappeared as petitioners before the
United Nations or any of its organs?
Mr. DAHLMANN: I said in my evidence that Kerina appeared as a
petitioncr since 1956. He left the country in 1953. Michael Scott appeared
before that time as a petitioner. I am not quite sure sincc when, but he
was in the Territory I think in the late 194os-1947 or so-which was his
last visitto the Territory.
Mr. GROSS: ln your testimony, Mr. Dahlmann, did you read into the
record any correspondence from Mr. Michael Scott to the United Nations?
Mr. DAHLMANN: No I did not.
Mr. GROSS: Now, with respect to the petitioners whose correspondence
you did read into the record in detail, do you know them personally,
some of them? 1 believe you have testified.
Mr. DAHLMANN: Sorne of them, yes.
Mr. GROSS: Could you state, just generally, for example, one or two,
let us say Kozonguizi or Kerina, what their age was approximately at
the time of say 1956?
.Mr.DAHLMANN: They were in their twenties. I think Kozonguizi was
born in 1922, and Kerina a little bit later, but more or less around that
time.
l\lr.noss: And they were students, were they, Sir? \Vas Kerina
studying at Lincoln University in the United States?
Mr. DAHLMANN: That is correct, Mr. President. And Kozonguizi was
studying before that time in the Fort Hare University.
Mr. GROSS: And he is now studying in London, is he not, Sir, do you
know?
Mr. DAHLMANN: I do not think that he is studying any more, but he is
living in London.
Mr. GROSS: Incidentally, Sir, do you know of any other petitioners
from South West Africa who are studying in the United States and
filing petitions at the same time?
Mr. DAHLMANN: Mr. President, quite a number of petitioners from
South West Africa appear bcfore certain United Nations bodies. For
example, Mr. Ngaviruc, Mr. Kuhangua, Mr. Nujoma ...
Mr. GROSS: Sir, may I darify my question. I asked, Sir, whether you
know whether any other petitioners are studying or have studied in the
United States?
Mr. DAHLMANN: Yes, I think that Bassingthwaite ...
Mr. GRoss: And how about J\fr.Nathanicl, Sir? I. G. Nathanie1.
Mr. DAHLMANN: No, definitely not, 1.G. Nathaniel is, to my mind,
the Acting President of SWAPO in South West Africa. He is living at
Walvis Bay. He never went to the United States.
llfr. GRàss: Sir, I will not pursue this point other than to refer to
document A/AC109/Petitioners 219, 13 April 1964, which is signed by
Mr. I. G. Nathaniel, as Acting President of SWAPO and is dated Brook
lyn, New York, 16 March 1964. As a matter of information, since the
question had·come up with an earlier witness, just for the clarification of
the matter and for the assistance of the Court, can vou state that this
indeed is an error and I am misinterpreting this petition? So far as you
know, he was not in New York when he wrote this letter?566 SOUTH WEST AFRICA
Mr. DAHLMANNI: cannot prove that, of course, but I have here in my
file a letter froI. G. Nathaniel Maxuirili and he is the acting SWAPO
President. That is perfectly correct and, to my knowledge, he was never
in the United States. Actually he is living in Walvis Bay now, that is a
fact.
Mr. GROSS:That is all I want to know. I have no persona! knowledge
of this matter and make no representations, nor am I testifying with
respect toit, Mr. Dahlmann, but I wanted to know whether you know of
any other South vVest Africans, non-Whites, who are studying in the
United States, or who have studied there, other than Mr. Kerina. You
mentioned one other person I believe?
Mr. DAHLMANNT :here are a few of them.
Mr. GROSS:They are non-Whites?
Mr. DAHLMANNN : on-Whites, that is correct.
Mr. GRoss: From South West Africa?
Mr. DAHLMANNF :rom South West Africa.
Mr. GROSS:With respect to the Trusteeship Council recommendations,
is it your recollection that those Trusteeship Council recommendations
were accepted or referred to or adopted in General Assembly resolutions,
do you know?
Mr. DAHLMANNY : es.
Mr. GROSS:With respect to the sources of information, if you know
from your studies, available to the United Nations bodies and agencies
and used by them, are you familiar with reports of the South \Vest Africa
Committee, generally speaking?
The PRESIDENT:I did not follow that question, Mr. Gross.
Mr. GROSS:Mr. President, I asked the witness whether he was generally
familiar with the reports of the South West Africa Committee.
The PRESIDENT:I thought you referred also to the sources of infor
mation.
Mr. GROSS:I am leading up to that, Sir. I am connecting up, Sir, to
that, but I have to Jay this foundation first, Mr. President, in fairness to
the witness.
Mr. DAHLMANNT :here were, Ithink, at least two committees.
Mr. GROSS: WeH, rwould refer specifica11y,for example, to the report
of the Committee on South West Africa to the General Assembly, the
roth Session, Supplement No. 12, A/2913, 1955. Are you familiar with
that report, Sir, have you read it recently or at all?
Mr. DAHLMANND : efinitely not recently.
Mr. GROSS:You do not, then, know from your own study or:knowled e 9
whether this would or would not be a typical or illustrative report m
respect of the statements of the Committee concernin~ the sources of its
information? Perhaps I may simplify it, Mr. President, 1fI should indicate
what the statements were?
The PRESIDENT: I think the first thing is, before he can give any
evidence of value, Mr. Gross, that he should be acquainted with that
particular document which you say is illustrative of a particular subject
matter.
Mr. GRoss: Yes, Sir. Esscntially, the paragraph to which I refer is
paragraph No. 2 on page 8 ...
The PRESIDENT:Have you got that before you, Mr. Dahlmann?
Mr. DAHLMANNN : o,I have not.
Mr. GROSS: Itis a very brief statement, Mr. President. WIT:-IESSEA SNDEXPERTS
The PRESIDENT:Let the witness be given a copy so that he can see it.
He may identify it and say he is aware of it and knows of it.
l\lr. GROss: Very good, Sir. The paragraph I have in mind is at page 8,
paragraph 2. Do you see it, Sir?
"On the basis of this information [which refers to information
generally referred to in the preceding paragraph] taken from the
official documentation issued by the Govemment of the Union of
South Africa and, under its authority, by the Territory of South
West Africa, and on the basis of some other relevant information,
such as Press reports, the Committee has drawn up the prescnt
report concerning conditions in the Territory of South West Africa."
I refer specifically the statement by the Committee that it has drawn
up the present report, among other things, on the basis of information
taken from the official documentation issued by the Government of the
Union. Have you, in studying this report, made any conclusions with
respect to the extent to which its findings and conclusions refl.ect the
official documentation of the Government?
Mr. DAHLMANNY : es. At that time no petitioncrs were admitted to the
United Nations and the Trusteeship Council or the Committee on South
\Vest Africa had, of course, to use other sources. I am not quite sure, but
I think only after 1954 or 1955 were petitioners allowed to appear before
the United Nations.
l\lr. GROSS:With respect to the period prior to the dates you have just
mentioned, are you familiar, on the basis of your own study, with
General Assembly resolutions dealing with South West Africa?
Mr. DAHLMANNY : es. ·
Mr. GRoss: And would those resolutions reflect statements made by
petitioners which, as you say, had not then yet appeared? That would
be self-evident, would it not, that those resolutions could not have been
affected by their statements?
Mr. DAHLMA:-IN N:o, they could not.
Mr. GROSS:Also with respect to sources used by the Committee, there
is, in the documentation, United Nations document A/5212, and I refer
specificallyto Addendum 1,20 September 1962, which is Annex XI
report of the Special Committee for South West Africa-which is a record
of the hearings held by the Chairman and Vice-Chairman of the Com
mittee in South \Vest Africa. Now, I do not propose to burden you or the
Court with an examination of the contents of this, but are you aware, do
you know about this, are you familiar with the document? Are you
familiar with the fact that such a report is in existence?
Mr. DAHLMANNY : es, I am familiar with that.
Mr. GROSS:And would it be a fair characterization of this report that,
again without referring toits merits or demerits, it sets forth in summary
form the records of interviews held in South West Africa by these
gentlemen with various groups, individuals and organizations?
l\.lrDAHLMANNI: remember the visit of the Chairman and the Vice
Chairman of this Committee very well and they held discussions. But
before I answer all the questions involved I must study the report and I
must say that this does not reflect the true situation or it does well
reflect the situation.
Mr. GROSS:My question does not go into that matter at ail. The
question is whether it is a fair summary of the contents of this report, in568 SOUTHWESTAFRICA
order to save the Court's time, which I am trying to do, that it reflects
the record in summary form of meetings held by these two gentlemen in
South West Africa with individuals, organizations and other persons?
ls that a correct summary of what this report contains?
The PRESIDENT:Do you understand the question?
Mr. DAHLMANNI:t is rather difficult to say whether that reflects the
situation ...
The PRESIDENT:No. The question is: does the summary indicate that
it is based upon information gleaned by the Committee from various
interviews with various people in the Territory?
l\fr. DAHLMANNY : es, I think so.
The PRESIDENT:Whether the summary be right or wrong, that is
what it does?
Mr. DAHLMANY : es.
Mr. GRoss: ln order to ciarify, this, docs it, for example, include a
summary of a meeting with Chief Kutako, with deputations from the
Waterberg East Native Reserve, with a deputation from SWANIO,
with a deputation of Hereros and Damara, with three German residents
at Tsumeb, etc.? Is this a fair reflection?
Mr. DAHLMANNT :hat is correct.
Mr. GRoss: This, then, is a summary of hearings, or meetings, held in
the Territory which was put out as a report of the Special Committee
forSouth West Africa. That is correct, is it not?
Mr. DAHLMANNT :hat is correct.
Mr. GRoss: And are you farniliar with the report of the Committee
itself, to whichhis is an annex, in which reference is made to this annex?
Mr. DAHLMANNI: am familiar with both of these.
Mr. GROSS:Mr. President, the report will, of course, speak for itself,
but I just wanted to know whether the witness was familiar with it.
The report is document A/5212.
I wanted to ask you whether you regard, as a political analyst and
expert, the right of petition as a fundamental or important right with
respect to the mandates system?
The PRESIDENT:Mr. Gross, I do not think that however you stretch
the expertise of this witness that he could be asked that question.
Mr. GROSS:May I then ask a question, Sir, whether, in your expert
testimony, with respect to what Respondent calls professional petitioners,
in referring to statements or petitions submitted by these petitioners or
others, you are seeking to have the Court infer anything in any way
derogatory to thesc individuals as petitioners in exercising their right of
petition?
Mr. DAHU.lANN:No.
Mr. GROSS:Now, you recognize, as a political analyst who has been
testifyingwith respect to the existence of these petitioners, that you have
characterized, in response to leading questions by counsel, that their
petitions are erroneous and, perhaps, I think you used the phrase
"misleading"?
Mr. DAHLMANNY : es.
Mr. GRoss: You do not mcan by that testimony, or do you, to seek to
have the Court infer that these petitioners are deliberately telling
untruths, do you?
Mr. DAHLMANNM : r. President, it is difficult to say which motive is
behind this. I can only compare the petition and the true facts. That is WITNESSES AND EXPERTS
the only thing I can say. What their motives are and whether they do
this deliberately, or as proiessionals. i think this is too persona} a view.
:M:rGRoss: But you have no knowledge, Sir?
The PRESIDENT: He says it is too persona! a view.
Mr. GRoss: You have no knowledge with respect to their motives,
that is what I understood you to say?
Mr. DMIU.fANN: No, I would not judge on that. I only see what they
write and on the other hand i see the facts.
Mr. GRoss: Now, would you also see, or perceive, difficulties in the way
of communication between them and persons in South West Africa?
l\IrDAHLMANN: Icannot see any difficulty bccause it is a fact that all
the petitions sent from South West Africa reach the United Nations.
For example all the petitions sent by Hosea Kutako or Kapuuo or other
personalities within the Territory arrive at New York and I think they
also arrive in other parts of the country. Mr. Kapuuo told me, just a few
days before I left, that he is in contact with Mr. Kerina, for example. so
there is a possibility of communication, I think one could say regardless
of the contents of certain telegrams. The Post Ofliceofficialreads what the
sender says and I am not quite sure whether those telegrams would be
accepted in other countries, but here in South West Africa thcy are
accepted by the Post Office and the contents are not altered or changed
and they are sent to New York or any other place.
There might be one difficulty at present, as far as communication
between South West Africa and certain other African countries are
concerncd, becausc of the boycott. 1 think it is at present impossible to
send a Ietter from South West Africa to Dar-es-Salaam, but that, is of
course, because of the boycott of the African States and South West Africa.
i\IrGROSS: Sir, does the Government of South Africa transmit petitions
to the United Nations?
Mr. DAHLMANè'l': No, Mr. President, not the Government. The peti
tioner himself is free to write or send petitions to the United Nations.
Mr. GROSS: Does the Govcrnment of South Africa, so far as you know,
Sir, send comments to the United Nations with respect to petitions?
l\frDAHLMANN: I cannot remember anv. I know that the South
African representative sometimes makes speeches on this subject.
Mr. GROSS: Now, Sir, with respect to the exercise of the right of
petition, would you say, Sir, that the transmission of petitions as contem
p1ated by the League-do you know, Sir, are you familiar with the
League of Nations rules regarding petitions? Are you familiar with this
subject at all, Sir?
11r. DAHLMAN:-1: You mean petitions according to the Mandate?
Mr. GROSS: Yes, Sir.
Mr. DAHLMANè'l': I know what the Mandate says.
:Mr. GROSS: Now, Sir, with respect to the transmission of petitions, do
you as a political analyst regard it as an important aspect of the super
vision of the mandates system, or is this a question beyond your ken as a
political expert?
The PRESIDENT: Yes, IHr. Muller.
Mr. MULLER: Mr. President, surely the witness is asked to deal with a
question as to whether that is a necessary part of supervision. Now he
implies by that, supervision of the United Nations, and therefore that
there is an obligation tosend it, or a connection, in any event. Ido object
to that type of question.570 SOUTHWESTAFRICA
The PRESIDENT:Mr. Gross, how do you justify, in terms of relevance
of the witness's evidence, a question directed to him by merely producing
the phrase "as a political analyst"? That does not make him an expert
upon whethcr it is or is not important to have the right of petition. Surely
that is a matter for the Court.
.i\Ir.GROSS:\Vell, I tried seeking for the information, and I would hope
for the benefit or value of the Court to elicit his opinion.
The PRESIDENT:\Vell, I do not think that von can elicit it from a
witness such as this, nor do Ithink it is a matter for a witness to express
an opinion upon, unless you propose to attack his credit. Ifyou propose
to attack his credit then the question will be allowed.
Mr. GROSS:Sir, I am seeking to attack his crcdit in the sense of
presenting what seerned to be relevant facts regarding his opinions,
attitudes and understandings with respect to the question about which
he has testified, specifically the question of the role and activities of the
petitioners in the United Nations.
The PRESIDENT:Very well, .i\Ir.Gross. If you say you propose to ask
the question on the basis of knowledge he has or any view he wants to
express, or on the basis that you are challenging his credit, the question
will be admitted; but you must understand that any answer given by any
witness, as to whether it is important or not, is a matter for the Court.
You will not be assisted by what any witnesses ...
Mr. GROSS:Oh, indeed, Sir. The sole purpose, I need hardly assure the
honourable President, in all of this testimony is the hope that it will
elicit information and views which may be of benefit to the Court. I.
really, Sir, have only one more question with respect to the matter of
petitions and petitioners, and that will conclude my cross-examination
of this witness.
The PRESIDENT:Very well, Mr. Gross.
Mr. GROSS:And that is with respect to the petitioners, the role of
petitioners inthe mandate process. Is it your view that the system would
be strengthened by the transmission of petitions and the commenting
thereon by the Government of the Union?
Mr. DAHLMANNM : r. President, the question of petitions is for the
League of Nations, the Lcague of Nations jurisdiction, and since the
death of the League of Nations it is a matter of argument between the
two parties-the United Nations and South Africa are arguing about
this issue, and I think I cannot go into this matter. Generally speaking, I
do not want to refer specifically to petitions, any means of communica
tion is always a good thing.
Mr. GROSS:I have no further question, Mr. President.
The PRESIDENT:Thank you. Judge Jessup desires to ask certain
questions of the witness.
Judge JESSUP:I do not have to ask any questions now, Mr. President.
The PRESIDENT:Thank you. Does any other Member of the Court
desire to put any question to the witness? If not, Mr. Muller, do you
desireto put any questions on re-examination?
Mr. MULLER:Yes, please, Mr. President.
The PRESIDENT:Proceed, please.
Mr. MULLER:Mr. Dahlmann, this moming my learned friend Mr. Gross
read to you passages from a report of the Committee on South West
Africa. It is a report Supplement No. r2A (A/4926} and he read from
paragraphs r54 and r55. WITNESSES AND EXPERTS 571
Mr. President, may I for convenience, I have one copy here, ask my
learned friend for his copyto give to the witness?
The PRESIDENT:I am sure that Mr. Gross will not mind, unless, of
course,it has counsel's marks on the side.
Mr. MULLER:Mine is, I think, clear, if I could use ...
The PRESIDENT:Have you any objections at all, l\fr. Gross?
Mr. GRoss: Paragraphs 154 and 155 (b).
The PRESIDENT:Thank you.
Mr. MULLER:Having read the passages, my learned friend dcalt with
only two matters concerned in those passages; the first was with regard
to the question of professionals practising their professions in South West
Africa, and the second was the question of trade unions. Now I wish to
deal with the allegations made by the Committee of South WestAfrica in
this document, and ask you for your comment thereon.
In paragraph 155 the allegation is made that the Native population is
not allowed to organize themselves into political parties. Is that correct
or not?
Mr. DAHLMANNN : o, Mr. President, that is not correct. The Native
population is allowed to form political parties.
Mr. MULLER:It is further stated in the document:
"ln the economic life of the country, the Native peoples have no
share in the profits of trade, commerce and industry."
Is that correct, or not?
Mr. DAHi.MANNN : o, that is also not correct.
Mr. MULLER:
"... in the utilization or exploitation of their agricultural, fishing
or rich mineral resources, their only role beingas a cheap source of
labour for the benefit of the Whites".
Is that correct, or not?
Mr. DAHLMANNT :hat is also not correct; they are also in higher posts
within these industries.
Mr. MULLER:There is also the statement in this that they have no
right to own land. Is that correct, or not?
Mr. DAHLMANNN : o, that is not correct and that applies not only to
the Coloureds, that they are entitled to own land, it also applies to. the
Natives.
Mr. MULLER:With regard to land, they say-
"... which has been alienated to the extent that only 26 per cent.
of the total land area of the Territory has been reserved for the Non
European majority".
Can you express an opinion on that, or not?
Mr. DAHLMANNl\:Ir. President, I can only express an opinion as far as
the quality of the land is concerned, allocated to the Natives.
The PRESIDENT:That is not the question. The question is percentage
of land.
Mr. MULLER:The percentage of land-can you express any opinion on
that?
Mr. DAHLMANNT :he percentage, 27 percent.: I do not know the exact
figure offhand.
Mr. MULLER:Well, if you cannot I leave that. It goes on to say,572 SOUTH WEST AFRICA
"Neither have the Natives the right to practise the professions or to
engage in general trade". Is that correct, or not?
Mr. DAHLMANNN : o, that is not correct.
Mr. MULLER:"... or ta engage in ... corrunerce and industry": is
that correct, or not?
Mr. DAHLMANNI:t is not.
Mr. MULLER:" ... nor even the right to organize themselves into trade
unions"~is that correct, or not?
Mr. DAHLMANNT :hat also is not correct; they are entitled to organize
themselves into trade unions.
Mr. MULLER:Now, I want to refcr to certain questions putto you on
Montlay, by my learned friend, l\lr. Gross, in the record. First of ail at
page 515, supra: have you got the verbatim record, Mr. Dahlmann?
l\Ir. DAHLMANNY : es.
Mr. MULLER:Now, on that page you will :findthat Mr. Gross read to
you from a Hansard Report, an extract from the speech of the Deputy
Minister for South \Vcst Africa, a speech which was made on 6 May 1964,
the portion quoted reading as fo1Iows:
"The Leader of the Opposition yesterday asked 'what about
Katutura, the people are still in the old location'. I shall tell him why
they are there, they are still there because they have been incited
by Whites not to move; they are being incited by the Opposition
not to move."
Have you studied the speech of the Deputy rrlinister?
Mr. DAHLMANNY : es, I have studied the report.
Mr. MULLER:Did he explain in which particular way he meant that
the Whites had incited the Natives not to move from Katutura?
Mr. DAHLMANN:The Deputy Minister for South West Africa
states ...
Mr. MuLLER:Will you give the page; where does that follow in the
speech itself?
Mr. DAHLMANNI:t is in columns 5516 and 5517.
Mr. MULLER: What did he say in the particular portion you have in
mind?
Mr. DAHLMANNT :hat is at the bottom of 5516:
"What about Katutura, the people are still in the old location?
I shall tell him why they are there. They are still there because they
have been incited by Whites not to move, they are being incited by
the Opposition not to move. Today they are sitting there just to make
things difficult for us. They want us to force them; they want an
incident.They want the outside world to have a reason to act and
to force us. Let me give examples. Recently the organizer of the
United Party in South West Africa held a meeting at Marienthal,
and one of the farmers asked this question: 'My farm falls in the
area earmarked for a Bantu homeland. What must I do-must I
move or not?' The organizer replied: 'My advice to you is not to
move, stay there. Stay there for five years, then another five years,
then another five years.'y saying that, they are setting an example
to the non-Whites, because if the White man is told not todoit, the
non-White also says 'Why should I doit?' That is agame that they
are playing there. I can tell you that you are doing those people a
disservice." WITNESSES ANDEXPERTS 573
Mr. MULLER:Thank you. Mr. Dahlmann, also at page 498, supra, of
the record of Montlay, my learned friend, Mr. Gross, dealt with a petition,
No. A/AC.109/Pet.215 of 13 April 1964, and he quoted a passage from
the petition dealing with opposition to the Odendaal Commission report.
Have you got that petition with you, or a copy of it?
Mr. DAHLMANNY : es, I have got a copy of the petition.
i\Ir. MULLER:Will you tell the Court by whom that petition was
signed?
Mr. DAHLMANNT :he petition is signed by Jacob Kuhangua, National
Secretary, South West Africa People's Organization and Moses Katjihu
angua, Representative, South West Africa National Union.
Mr. ~1ULLER:Where did the petition emanate from?
Mr. DAHLMANNT :his petition cornes from Dar-es-Salaam.
Mr. MULLER:Do you know the two people referred to in that docu
ment, whose names you have just read?
Mr. DAHLMANNT :heir names are familiar to me, I do not know them
personally.
Mr. MULLER:Do you know whether they are in South West Africa?
Mr.DAHLMANNT :hey are not in South West Africa.
Mr. MULLER:Have you any information where thcy are?
Mr. DAHLMANNA : s far as I know Moses Katjihuangua, the SWANU
representative,is living in Dar-es-Salaam and Jacob Kuhangua-1 do not
know where he is living; sometimes he is in the United States, sometimes
in Africa.
The PRESIDENT:\Vere they ever, to your knowledge, in recent years in
South West Africa?
Mr. DAHLMANNI: cannot say when they left South West Africa; to
my knowledge they left South West Africa during the late fifties or early
sixties.
Mr. MULLER:Mr. Dahlmann, another matter which I wish to clear up
is: my learned friend, Mr. Gross, on the same day, that is Montlay,
dealt with a request madeby Chief Hosea Kutako-it is at pages 493-494,
supra-and I think 15 of his people, Hereros, to visit Ovamboland for
certain political purposes, and that request was refused. Will you look
at his question at page 494, which reads as follows:
"So that, Sir, on the basis of your knowledge of the Territory and
the distance, spced in communications and the like, your assumption
would be, as an expert or otherwise,that between the letter dated
30 January and the response dated 4 February, in that interval the
Chiefs in Ovamboland, Kaokoveld and the Okavango Native
Reserves have been consulted and have advised the Administrator
oftheir objection to this proposed visit. Would that be your under
standing, on the basis of your knowledge of the Territory, as a
probable situation?"
And your answer was "It is technically possible". I want to clear up the
"technically possible". Do you know what mcans of communication
there are between Windhoek and Ovamboland?
Mr. DAHLMANN:There is radio-telephone between Windhoek and
Ovamboland, and also between Windhoek and the other Reserves.
Mr. MULLER:Arising from that, do you know whether any meetings
of different political parties were held in South West Africa at any
place?574 SOUTHWESTAFRICA
Illr. DAHLMANN:Many meetings have taken place in South West
Africa-political meetings of one party and also joint political meetings
of different parties.
Mr. MULLER:Thank you. Those are all the questions I wished to put,
Mr. President.
The PRESIDENT:Thank you, Mr. Muller. Mr. Gross, do you desire
Mr. Dahlmann to remain in attendance?
Mr. GROSS:No thank you, Sir.
The PRESIDENT:The witness will be released from further attendance,
if you receive no other corrununication during the course of the day,
Mr. Muller.
Mr. MULLER:I thank you, Mr. President.
The PRESIDENT: You are released from further attendance, Mr.
Dahlmann, subject to my observation.
Mr. MULLER:Mr. President, the next witness will be General Marshall,
and I just wish to know whether he is here-may I just ask whether he
has arrived? I have given instructions that he should corne. Yes, Mr.
President, he is here, and with your permission I will proceed ...
The PRESIDENT:Please do proceed.
Mr. MULLER: May I, in the meantime, indicate, llfr. President, that
General Marshall's evidence will be directed at the issues arising under
the Applicants' Submission No. 6, that is relative to militarization in
South West Africa, and the particular point to which his tcstimony will
be directed as notified to the Applicants is the following: whether the
facilities in South \\'est Africa which are described by Applicants as
military bases can be regarded as such. May I ask that General Marshall
be permitted to make both the declarations provided for in the Statute,
that is as witness and as expert?
The PRESIDENT:Let the dec1arations be made. General Marshall,
will you corne to the podium?
General MARSHALLI:n my capacity as a witness I solemnly declare
upon my honour and conscience that I will speak the truth, the whole
truth, and nothing but the truth. In my capacity as an expert I solemnly
declare upon my honour and conscience that my statement will be in
accordance with my sincere belief.
The PRESIDENT:Yes, Mr. Muller?
Mr. MULLER:May I proceed, Sir?
The PRESIDENT:Please do.
Mr. IllULLER:General Marshall, your full names are Samuel Lyman
Atwood Marshall, is that correct? You are a citizen of the United States
of America, is that correct?
General MARSHALLT :hat is correct.
Mr. MULLER:May I read your academic qualifications, and you can
tell the Court whether what I state is correct? You hold a degree of
Doctor of Humane Letters of Wayne State University, is that so?
General MARSHALLT :hat is correct.
Mr. MULLER:And a Doctor of Law degree of St. Bonaventur Univer·
sity, is that correct?
General MARSHALLT :hat is right, but I would point out that those are
honorary degrees.
Mr. MULLER:Good. Did you see service during the First World War?
General l\fARSHALL:I joined the Anny of the United States, Mr.
President, inMay 1917, and was sent to Europe early and spent two WITNESSES AND EXPERTS
575
years over there, fi.rst as a Sergeant of Enginecrs, and when I returned
in late 1919 I came back as a Lieutenant and Company Commander, and
then I returned to my studies at Texas College of Mines.
Mr. Muu1m: Did you join the Army again after that period?
General MARSHALLI : was briefly with the Regular Army in 1922, for
about seven months.
Mr. nIULLER:Can you describe to the Court what your position and
occupation were in the period 1922-1942?
General MARSHALL:In 1922, while with the Army, I found that I
could write and do professional writing. I lcft the Regular Army, resigned
my commission, and from that time on began specializing in military
studies on my own, working however as a newspaperman, principally as
a war correspondent and foreign correspondent.
Mr. Mm.LER: In that period did you, as a correspondent, cover certain
revolutions in the world?
General MARSHALL:I covered two revolutions in Mexico, one in
Nicaragua and the war in Spain in 1936.
Mr. MULLER:What military experience did you have after the year
i94z?
General MARSHALLI: was called back into service shortly after Pearl
Harbour as (the title said) Expert Consultant to the Secretary of War,
Henry L. Stimson; then after serving in that capacity for three months,
I was asked to go back into uniform to establish the orientation course
for the United States, which is our name for indoctrination, and I was
its Director for one year. I was then one of three General Staff Offi.cers
who were set up to establish the historical division of the Army for the
purpose of that war, and I served briefly in the Pentagon in that capacity,
and then was sent out as the main field hand ta establish our methods of
operating under battle conditions. I first had ten months in the Pacifie
in that capacity during 1943 and the early part of 1944, and just before
Normandy I was pulled out of the Pacifie and sent to Europe on a sort
of a crash mission to reconstitute the historical effort there. I was still a
General Staff Offi.ceron the \Var Department General Staff, but after I
had been there for some months my status was changed, and I was
made Chief Historian of the European theatre for the duration, and I
remained in that capacity, not just having responsibility for American
forces in the theatre, but also responsible for the co-ordination in the
Allied effort, that is to say I was dealing with the British Army, French
Army and the Canadian Army, and so on. and l continued until May of
1946 when I again left the Army.
Mr. MULLER:After 1946 did you have any further connection with the
Army during certain particular periods?
General MARSHALL:Between 1946, when I was separated, and the
Korean War I was called back to dutv 47 times by the \Var Department,
or Department of the Army as it ·became, and these were missions
extending sometimes two or three days-the longest one was for six
months.
l\Ir. MULLER:\Vere those missions to any particular war theatres, or
did they include any missions of that nature?
General MARSHALLT : hey included missions overseas, but they were
mainly General Staff missions in the Pentagon.
Mr. MuLLEICWhen were you promoted to the rank of General?
General MARSHALL1 :95r. SOUTHWESTAFRICA
576
Mr. i\1ULLERD: id you after that date have further connection with the
Army, in America or overseas?
General MARSHALLI: was sent for service in Korea in the fall of 1950,
and stayed there until the spring of 1951 as Operations Analyst of the
Eighth Army, and then I went back to Korea in 1953 as a civilian corre
spondent, and within four days after getting there I was given a military
mission by the Commander of the theatre, General Mark Clark, and I
continued on military duty for four months at that time.
Mr. MULLER:Did you have anything to do with the Suez campaign in
Israe1?
General MARSHALLI: went to Israel shortly after the action started
and joined the lsraeli Army in the Sinai Peninsula, and stayed with them
for the duration of the campaign; and my work was mainly to find out
how they had conducted their operations.
Mr. MuLLER: Did you have anything to do with the civil war in
Lebanon?
General :MARSHALL I: was in Lebanon for three months covering the
civil war there in, I think it was the year that folJowed that.
Mr. MuLLER:Later in the Congo, in the year 1961?
General MARSHALL:I was in the Congo for approximatcly three
months. Again I was working as a correspondent, but I was also carrying
out work for the Senate of the United States at the same time.
l\Ir. l\lULLER:Did you have any official duties relative to the war in
Viet-Nam?
General MARSHALLI:n 1962 I was sent there on a mission for the
Department of Defence, along with AJlan Dulles, the Dircctor of CIA,
and Mr. Carl Bendetson, the former Under-Secretary of the Army.
Mr. MuLLEic Do you lecture on military matters at different military
staff colleges?
General MARSHALLI: lecture at all of them in the United States with
the exception of the Naval Staff College. I have never appeared there.
I lecture at Camberley in England, at the NATO Staff College in Paris,
the Israeli Command and General Staff College outside of Tel-Aviv, at
the Nationalist Chinese Command and General Staff School not far out
of Taipeh and at the Canadian Command and General Staff School at
Kingston, Ontario.
Mr. MULLER:Are you the author of any works on military matters?
General MARSHALLT : wenty-six, which are published books, that is,
books published for the public, and, I would say, somewhere between ro
and 14 manuals, or studies that are circulated only within the Services.
Mr. MULLER:Are they service manuals?
General MARSHALLY : es, Sir.
l\fr.MULLER:Do you contribute also to Collier's Encyc!opaedia and
Encyc!opedia Britannica, on military matters?
General MARSHALLI: write on military categories for the Britannica
and for Collier's Encyc!opaedia and also on military terminology for
Random House Dictionary.
Mr. MULLER:Now, General, are you conversant with the provisions
of Article IV of the Mandate of South West Africa?
General t1fARSHALLI: have it before me; yes, I am familiar wHh it,
Mr. President.
l\Ir. MULLER:May I just quote the last sentence in that? "Furthermore, WITNESSES ANDEXPERTS
577
no military or naval bases shall be established or fortifications erected in
the terri tory."
General :i\lARSHALL I:have that.
Mr. MULLER:Do you consider that, with your knowledge and exper
ience of military matters, you could assist the Court in expressing an
opinion relative to the question as to whether a particular facility is a
military base or not?
General JL.\RSHALLI: believe I can, Mr. President.
Mr. MULLER:Have you visited the Territory of South West Africa?
General MARSHALLI: have visited it twice. I was there in April, the
latter part of April.
1\lr.:i\luLLER:April of which year?
General }IARSHALLA : pril of this year, for a period of eight days, and I
returned in September of this year. I was there for four-and-a-half
days.
Mr. MULL,ERN : ow, in your first visit to the Territory, which portions
of the Territory did you paya visit to?
General MARSHALLA : fter arrivai in Windhoek, I flew first to the
Caprivi strip, then to Runtu on the Okovango River; and then to
Ondangua in the Ovambo country; and then to the Uis mining country,
west of Windhoek; and then down to Oranjemundi, to see the operation
of the diamond fields. Then I visited various Reservations-the Herero
Reservation, outside of Windhoek, and Rehoboth, the Baster Reserva
tion, and met people there. I visited, to the limit allowed by my tiine, the
schools in those areas that I passed through.
l\Ir. MULLER:On your second visit, what particular places did you go
to? That was the visit in September, I think you said, of this year?
General MARSHALLS :tarting at Windhoek, we flew to Ohopoho, and
then flew from there to Tsumeb, and then back to Windhoek.
l\fr. MULLER:Will you describe to the Court what Ohopoho consists of,
what is therc at Ohopoho?
General MARSHALLO : hopoho is a remote station in a very desolate
area. \Ve flew 370 and some odd miles from Windhoek to get there, with
no stop in between. We were travelling in a Piper Aztec. Over those 370
miles, we saw no fiat ground until we got directly above Ohopoho and
there was not a vallcy, but a cleared area-a generally cleared area
I would say, roughly, about three or four miles across, surrounded by
small hills and relatively fiat. The main airstrip that we came in on was
3,000 feet long,not very well tended-there wcre bumps in it-the cross
airstrip was approximately 1,500 feet long, and beyond the airstrip,
approximatcly 250 yards, was a collection of houses-five main houses,
as I rccall, and two or three small shedlike affairs.
\Ve visitcd the Commissioncr, wc checked into the facilities, I found
out the size of the staff therc, etcdo not know how much I am wanted
to go on?
Mr. MULLER:First of al!, will you tell the Court: the landing strip
that you have referred to, with the smaHer cross-strip, what does that
consist of? ls it tarmac, bitumen or ...
General MARSHALLN : o, it is just relatively cleared sand. It is some
what widcr than this Courtroom and it is only in the centre that we found
it well-maintained. Itis slightly downhill, The air there seems to be very
difficult. In taking off in the Piper Aztec, we needed 2,000 feet ofthe
3,000 feet to get airborne. SOUTHWESTAFRICA
Mr. :11-IULLEC Ra:n any but a small plane land therc? Could big planes
land on this airstrip?,
General MARSHALLI: would judge that you could get a Dakota or a
C47 in there. I do not believe it would be at all times a safe venture, that
is ail.
Mr. MULLER:Now, would you just explain to the Court what a Dakota
is, and a C 47?
General MARSHALLA : Dakota is a small military carrier-type plane.
It was the plane that we used principally in flying the Hump in World
War II, in carrying supplies in to ChinaIt is still a standard carrier with
civilian airlines. You wiil see it all up and down the airiields of Africa. I
think it is the principal vehicle.
The PRESIDENT:You see them all over the world, do you not, General?
General MARSHALLY : es, indeed, they are ail World \Var II relies, but
they holdup very well.
Mr. MuLLEH:Are there any facilities at this particular airstrip, or at
Ohopoho, as a whole, of a military nature?
General l\1ARSHALL N:o facilities whatever, of a military nature.
Mr. MuLLER:Did you inspect the logbook kept by the Commissioner
at Ohopoho, relative to the use of the landing strip?
General MARSHALLT : he logbook actually is not kept by the Com
missioner. The Commissioner has been there only two weeks and his
European Deputy Commissioner, Mr. Roberts, has been there for a year
andahalf and thelogbookwas inhishands. Itiswith him that I saw the log.
Mr. MULLER:Can you give the Court an indication of the use of that
landing-strip, according to the log, for a period o12 months preceding
your visit?
General MARSHALL E:ight planes had used the field, of which one was a
military plane. That is to say it belonged to the South African Air Force,
but the party was Mr. Botha, the Deputy Commissioner for Bantu
Affairs, and a group of politicians. That was all that was identifi.edin the
logbook.
Mr. MULLER:Having regard to the strip itself ...
The PRESIDENT:Could I ask a question of General Marshall? How far
did the logbook go back, General? Did you notice that at ail?
General MARSHALLI:t went back for four years.
The PRESIDENT:Did you have a look at what appeared in the logbook
over a period of time?
General MARSHALLY : es, Sir.
The PRESIDENT:Can you give the Court sorne indication about the
logbook during this time?
General MARSHALLT :his was the average traffic. The year before that
it had been seven. Mr. Roberts had had nothing to do with the logbook
beforethat time and I talked to the Bantu deputy, who was the hold
over person, and I think there was one visit of II planes--one year
showed II planes-another seven, and the Bantu deputy told me that
that had been about standard during the years that the field had been in
operation.
Mr. Muller: Would you say, General Marshall, that the landing strip is
a miliary base?
General MARSHALLN : o, I would not.
Mr. MULLER:Did you visit any other airstrips in the area similar to
that at Ohopoho? WITNESSES AND EXPERTS
579
General MARSHALLW : e did not visit any in that area. On the way up,
I kept track of airstrips along the way. There were two. One was four
miles off-line,the other was somewhat doser to us, that is two in 380
miles and these were ail smaller airstrips, one with a single runway. They
would be good for light planes but for nothing else.
The PRESIDENT:Mr. Muller, I think it might assist the Court if we had
some information about the types of building and what they were used
forand how far removed they were from the airstrip.
General MARSHALLM : r. President, the buildings at Ohopoho?
The PRESIDENT: yes.
General MARSHALL T'. ese are the buildings where the staff live.
The PRESIDENT:Which staff?
General MARSHALL:The staff is composed of the CommissioneI';
i\frRoberts, the Deputy Commissioner; and the Bantu Deputy Com
missioner; and besicles these, a veterinary surgeon, two stock inspectors
and four policemen, one of them a European sergeant, one a European
constable and two Bantu assistant policemen. The buildings in which
they live: the main building is the residence of the Commissioner; the
Bantu also live in this collection of houses. One thing that I failed to say,
which I think should be made clear; I found that nobody took respon
sibility for this airstrip. Asas explained, the planes corne in so seldom
that they do not bothcr with maintenance until they get a message that
a plane is coming in. The Commissioner and Mr. Roberts told me that it
had been on this basis, that whoever happencd to be on station at the
time among the three, the Bantu sub-Commissioner, or Mr. Roberts or
the Commissioner, would take responsibility for the clearance. There is
no crew working it, there are three Bantu-I took their pictures while I
was there-who had worked it over before our coming.
[Public hearing ofI4 OctoberI965]
Mr. MULLER:General Marshall, just before the adjournment yesterday,
you were dealing with certain faci!ities at Ohopoho, you had described
the landing strip as well as certain accommodation at Ohopoho. Now, did
you find any military personnel in attendence?
General MARSHALLN : one.
l\fr. MULLER:\Vere there any indications that there had ever been a
military base at Ohopoho?
General MARSHALL : o, Mr. President. There were no indications
whatever. To what I said yesterday, I should add that the general area
where the field is located is of such a nature that, in my judgment, any
plane that can land in that field could also put down safely in the Bush.
It would be a littlc rough Iandingbut the field does not add much to the
safety of the area. There is no drainage at tlûs field, no drainage system;
there is no apron to this field; the fuelling system is rudimentary, it
consists of a cart which is manhandled and kept among the houses and
brought out-1 think it probably has about a 500-gallon tank on it.
There is nothing around there to indicate that the military have ever
been interested in it because it would be mme secured, better policed and
under militaI'y guard and as far as I could see, 1:herewas no indication
that the field had been changed--<:attle roam the field thJ.'OUghoutthe
day and when the field has to be cleared, it is Jargely a matter of tearing
down the ant hills, which grow to a great size in that area, and of clearing580 SOUTH WEST AFRICA
the cattle away. The cattle had to be cleared away before we could take
off.
Mr. ~1ULLER: You also told the Court that in April of this year, you
had visited the Caprivi, the Okavango and Ovamboland. Did you then
also travel by plane?
General MARSHALL: Yes, Mr. President, we travelled by plane during
that entire passage except for the visit to the Herero Reservation and to
Rehoboth. We made the Caprivi by plane and the strip in service there is
more rudimentary than the one at Ohopoho because it is largely over
grown with grass. The one at Runtu is even more primitive, you cannot
·see it when you are directly above it because of the depth of the grass.
Mr. MULLER: And in Ovamboland?
General MARSHALL: In Ovamboland, the same way. There is a new
field going in alonghe runways but the one we had was quite bumpy and
I would say about 2,000yards long off to the edge of where the new strip
was going in.
Mr. MULLER: In your opinion, would any of these three facilities that
you have now mentioned, that is at the Caprivi, Runtu in the Okavango
and at Ovamboland, be a military base?
General MARSHALL: No. ·
Mr. MULLER: In your last visit to South West Africa, that is in Sep-
tember, did you also inspect certain military facilities at Windhoek?
General MARSHALL: I did.
Mr. MULLER: Would you tell the Court what those facilities consist of?
General MARSHALL: There are four installations altogether. \Vhen I
went there I thought that the primary object of the search was to look
up Regiment Windhoek and as soon as I got there, I found that there
were other things that nceded to be considered and I dealt with the
South West Command. I went first toits Headquarters. I had arrived on
aThursday and I met the Commander of the South West Command and
I told him that I wanted his entire staff to be present on the Saturday.
We started at his administration building, the men were present, I
checked that according to their duty roster-there were altogether 5
officers and 15 other ranks. \Ve went first to the administration building
which was a modem two-storey building approximately three blocks from
the centre of Windhoek. It is not protected except by a light wire fence
with three strands; it is right off the street; there is no sentry at the gate.
The building is a normal administration building for the handling of
military affairs and it is taken up mostly by the executive officers-that
of the Commander, his Adjutant and so on. There is a file room, records
room and there is a communications centre or a message centre and
beyond these offices and the archivai room îs the only other feature of
the building-a supply room. The supply room is probably a third of the
size of this chamber as to floor space and it is given over almost wholly
to quartermaster supply-1 would say that thcre are about 60-80 bins
there,the bins being not more than two feet by two feet by about four
feet in depth. There are normal quartermaster items including even
some items for navy personnel, which are supplies to navy cadets going
to high school there. This is all clothing, canteens or first aid packs, some
thing of that kind, except for one rack, which would be large enough to
hold about, I would estimate, 50 rifles. In the rack there were 47 rifles,
43 of them were mode! 4, old-style, World \Var II rifles, they were not
cleaned, and three of them were the modern Belgian full-autornatic rifle. WITNESSES AND EXPERTS 581
1\Ir.MUI,LER: \Vhat other facilities did you see at \Vindhoek?
General MARSHALL: We went next to the camp at Windhoek, which is
just off the edge of the town on the way to the airport. The reservation
is approximately 500 yards by 500 yards. It too is surrounded by a simple
wire fence of threestrands, no barbs, and it is not guarded during the day.
There is a parade ground in the reservation, about IOO yards by too
yards. The rest of the section of land-it is approximately a section, is
rough ground, rocky and too uneven for drill purposes. Now, within
that reservation are five permanent houses, which are used by the married
personnel, officers and N.C.Os. of the South West Command-the
families live therc. There is also a tent camp of 13 tents, rather dilapi
dated-looking tents, which isup close to the parade ground and these tents
are occupied by 22 trainees from Walvis Bay, who corne in there and do
their six rnonths training, gctting credit for it, by guarding this camp:
that is their sole duty. I rneasured this out with22 men and on a reserva
tion of the size 1 have described, 500 yards by 500 yards, you would have
at least four picket posts at night or simply posts with men going two
hours on and two hours off, that would mean the employment of 12 men
every night, so there would not be much time for them to do anything
else except do guard duty.
Now, beyond that there is a store room, which is given over altogether
to re-supply for the motor facilities, that is to say it is a spare-parts room,
a very small one, I would say about 10 feet by 30 feet in length, with at
least two hundred bins in it because of the great variety of vehicularization.
Then there is a motor shed, which is roofed over but has no walls to it,
where they keep their transportation and there is a small pre-fab build
ing, metal, which is used as a kind of a mess and club room by the
personnel of South West Command. The entire camp is under the charge
of a Sergeant-Major, who is part of the staff of South West Command.
I believe that completes the description of the second facility.
Mr. MULLER: What other facilities did you see in and about Windhoek?
General MARSHALL: The third facility·is a hangar, right next to the
airport.
Mr. MULLER: Would you describe which airport?
General MARSHALL: The Windhoek airport-the civilian airport. lt is
a large hangar and in that hangar are weapons. The hangar is surrounded
by two fairly high fences, they are not barbed-wire fences but simple wire
with a space of about ro yards in between them, and the door is covered
by one sentry. We got into the hangar and I found in there 12 Ferrets
-Ferrets are a small armourcd car, standing about as high as I do, built
somewhat in the shape of a small tank, they are a reconnaissance
vehicle-8 of thesc mounted a 30 calibre machine gun. They open and
close as does a tank, that is, the driver is either driving "buttoned up" so
that he is looking through a periscope or else he is in the open air. They
travel at around 30 m.p.h. These were the modern vehicles in the place
and then, behind these there were six Mark 4 armoured cars and six
light tanks, ail of them World \Var II material, and half of them were
out of commission-a little more than half were out of commission. Sorne
did not have their tracks on, others had their turrets off. Then, there
were 16 miscellaneous vehicles, World War II jeeps, trailers, three
quarter ton trucks and, besicles these items which I have described, there
was a six-pounder gun, which they told me was used for ceremonial
purposes. SOUTHWESTAFRICA
Mr. MULLER:Now, was there any other facility in addition to what
you have described?
General MARSHALLT : here was a rifle range about three-and-a-half
miles out of Windhoek, amid the hills. It is a very ordinary rifle range
with ranges running from 100 to r,ooo yards but this is not strictly a
military facility although it is used, at times, by the military. 1t is
owned by the munidpality and at the time that I was there it was the
site of a meet of the South West Rifle Association. There were 84 civilian
competitors on the range and their wives were there preparing the meal
for them.
Mr. MuLLER: Now, do you consider any of these facilities, either
singly or collectively,.to constitute a military base, or bases?
General MARSHALLN : o, I do not.
Mr. MULLER:Before you Jeft on your Jast visit to South West Afrka,
was your attention drawn to certain allegations made in the United
Nations relative to an atomic facility in the Tsumeb area of South West
Africa?
General MARSHALLM : y attention was drawn, though in a very vague
way. I did not know exactly what it was that I was looking for. I was
told that this had been stated and that I was to pay a visit there if I
could-and the word atomic was used; there was also some reference to
gas. I went out of my way, not exactly knowing what it was.
Mr. MULLER:Did you go to the Tsumeb area and inspect the area?
Mr. GROSS:Mr. President, I have waited, thinking that counsel would
specify what these "certain allegations" were-to be more specific, Sir,
with respect to "United Nations" allegations, as I believe he described
them. Could it be requested, Sir, that there be some clear indication of
what these alleged atomic installations were, or whatever they were,
and by whom the allegations were made, and in what context?
The PRESIDENT:So that l\frGross may be able to follow the reference,
Mr. Mu11er,would you please explain to the Court?
Mr. MULLER:Yes, Sir, I will. I referred to United Nations document
A/AC.109/SR.345 of r4 July 1965. Itis a document of the Special Com
mittee of the Situation with regard to the Implementation of the De
claration on the Granting of Independence to Colonial Countries
and Peoples. It records statements by certain petitioners, inter alia,
Mr. Make of the Pan African Congress, at page 8 of this document, to the
effect that: "As part of its military activities, South Africa was now
building nuclear reactors in its own country and in South West Africa."
The PRESIDENT:Is this document part of the evidence? 1t is difficult
to keep track of all the documents, Mr. Muller.
Mr. MULLER:No, Mr. President, I do not think it is yet part of the
record. Then, l\frPresident, in connection with the same matter, United
Nations document DC/PV.82, 17 May 1965. It is a provisional verbatim
record of the 82nd meeting of the United Nations Disarmament Com
mission in which, at page 48, the allegation is made that: "the South
African Government has established an atomic testing centre at Tsumeb
in the Kalahari Desert in South West Africa."
The PRESIDENT:Do you propose to tender those documents at any
particular stage?
l\fr.MULLER:Mr. President, our intention is, as I have indicated
before, to deal in argument with various documents relative to petition
ers,statements made by petitioners, in the course of considering what
...._,
--~. WIDIESSES AND EX~ERTS
I refer to as the law-creating, or norm-creating, processes relied upon by
the Applicants.
Mr. GROSS:Mr. President, with respect to the last allegation-1 believe
counsel used that term-may the record show. Sir, the document not
being available to Applicants at this time, whether that allegation was
made by a petitioner or by a United Nations Agency, Sir?
Mr. !'.IULLERT:he allegation in the last document, Mr. President, was
made by Mr. Malecela of the United Republic of Tanzania.
Mr. GRoss: I see, Sir, and may I point out, for the record, Mr. Presi
dent, with your permission, that there are no allegations made by the
Applicants, no issue is drawn by the Applicants, in this case with respect
to any atomic installations or nuclear capabilities in the Territory?
The PRESIDENT:I observe that, Mr. Gross. Mr. Muller, the allegations
which you have referred to have ncver bccn put forward by the Appli
cants as bcing connected with, in any sense, a breach of the Mandate.
What is the relevance of the evidence which you seek to obtain from
General Marshall?
Mr. MULLER: l\fr.President; it is quite correct that the Applicants
have never named this as one of their specific complaints but the Court
will remember that, whereas they started off with three so-called military
bases in their Memorials, which were Walvis Bay, Ohopoho and the
Regiment Windhoek, their later allegations in the Rejoinder became very
wide. Then it was contended, in thcir Reply, at IV, pages 563-564, that
there was general military activity throughout the whole of the Territory
and that South West Africa must be regarded as in itself being a military
base-the whole of the Territory.
The PRESIDENT:Would you give a specific reference where that is
stated?
Mr. l\IuLLER:At pages 563-564 of the Reply (IV). There it was con
tended . . . I shall read at 564- It is a long paragraph which refers to
various matters and then at page 564 it was stated-
"... at worst, where the Territory itself and its 'V>/hite'inhabitants
have become armed and co-ordinated to the extent that the Territory
has been transformed into a 'military base' ... ".
Now, with respect, Mr. President, we will argue later that these allega
tions refer back to reports of certain Committees and other organs of the
United Nations and we will demonstrate how those reports were in
fluenced by statements, of the nature that I have just referred to, of a
pctitioner, relativeto conditions in South West Africa.
The PRESIDENT:Mr. Gross, have you the references to which Mr.
ùfoller is referring?
Mr. GRoss: Yes, I do, Sir, and-mav I continue?
The PRESIDENT:y es. .
Mr. GROSS:I was about to object to the reading of a clause in a para
graph without the reference to the context, l\fr.President, and I think
that if the clause is to be read into the record at this point, perhaps the
paragraph might also be read into the record.
The PRESIDENT:That is the paragraph from the Rejoinder?
Mr. GROSS:From the Reply I should have said.
The PRESIDENT:From the Rcply?
Mr. GRoss: Yes, Sir, from which counsel has quoted a clause.
Mr. MULLER:I have already indicated that, in their pleadings, they SOUTHWESTAFRICA
do not mention this matter, the atomic centre, or alleged atomic centre,
at Tsumeb. All I do indicate is that they made an allegation that as a
result of-and I can read the whole of the clause-general military
intelligence throughout the whole area, the whole of South West Africa
must be regarded as a military base.
The PRESIDENT:\Vhy do you not read the whole clause, Mr. :Muller?
Then we will know what it is all about.
Mr. MULLER:It starts off at IV, page 563, and after quoting, I think,
three resolutions of the General Assembly of the United Nations, the
passage starts as follows:
"Consequently, Applicants contend that Respondent's admitted
practice of maintaining an indeterminate number of 1anding strips
which may be, and are, used by military aircraft of the South
African Air Force, coupled with the increasing build-up of military
strength in Walvis Bay, taken together with the apparently cver
increasing amount of military activity by cadet corps and 'Comman
do units' in the schools, communities and countryside of the Terri
tory, joined with Regiment Windhoek, have created a situation
where there is the equivalent of a se1iesof military bases or potential
military bases in the Territory, or, at worst, where the Territory
itself and its 'White' inhabitants have become armed and co-ordi
nated to the extent that the Territory has been transformed into a
'military base' ... "
The PRESIDENT:I think the evidence had better be taken, Mr. Gross.
Your objection will be noted and the relevance of the evidence and the
weight of the evidence will be determined by the Court in its deliberations.
Mr. GROSS:Thank you, Mr. President.
Mr. MULLER:General Marshall, did you then go to the Tsumeb area?
General l\IARSHALLY : cs, l\Ir. President, we wcnt to the Tsumeb area.
\Ve flew on a direct west-east line from ûhopoho, approximately 170
miles. as I recall it. On that flight, we saw one other airstrip and that was
servicing the tourist home at the Etosha Pan game reserve. When we
got to Tsumeb, we circled the general territory three times to get an idea
where the building was and also to get a general idea about whether it
was possible to conceal anything in that territory that may escape the
eye. It is relatively fiat land. There are small kop1es there but it is quite
barren country and wc had no difficulty seeing this building on the out
side of the community bccausc it is quite conspicuous. I tis out there, very
close to a collection of Bantu farms and a few kraals. .
We landed at the Tsumeb airstrip, which is the one good airstrip that
I ran into in South \Vcst Africa. It has a tarmac surface and it has an
apron. I think it is owned by the American coppcx company that operates
in Tsumeb. The assistant to the magistrate took us out to this building.
\Ve found it located just seven miles from the edge of town. The building
is unguarded. It is about 100 yards off the main road. There is no fence
of any kind. There is no sentry there. I walked into the building and was
halfway through it before I raised anybody. The building was a three
sided structure about the size and shape of an American ranch-house for
an oversized family. It has two wings, no basement; ail is in this one
storey. In one wing, I found, after we were joincd by the German tech
nician, J. Jung, who is in charge of the place, that there are seven small
rooms, two of them not being larger than closet-size, and each one of WITNESSES ANDEXPERTS
585
these rooms contains electronic instruments of varying kinds. Therc are
small instruments, standing no higher than a man, none of them are
"hot". The rooms were ail unlocked on that wing. \Ve moved from room
to room. I was able to open the instruments at will, where there were
knobs, I could touch them, I observed the oscillations of the machines.
I am not an expert in the electronics field, so I had to take J. Jung's
word for their significance, what their fonction was. In the other wing,
we found a dark-room for the devcloping of motion-picture film, with
three tanks and one drying area and they were running film through it
at the time we were there. Beyond the dark-room there were three guest
rooms and then, on the base of the building, there was a large, airy
recreation room and a large library without any books in it.
The PRESIDENT:How can you have a library without any books in it,
General?
General MARSHALLM : r. President, I exaggerated slightly there. There
were r3 books but they looked as if they had corne from the last century
and had apparently been put there just to impress the visitors. He told
me that they would get some books in time.
The only fi.xtures outside were a swimming pool-that is, immediately
outside-a small swimming pool about 6 feet by 16 feet that did not have
any water in it and a concrcte rack for the servicing of motor cars. Then,
a little morethan a quarter of a mile away from the building, were four
towers, one of them, the tallest one, obviously being a radio-sending
towcr and the others were antennae. This was the Max Planck Institute
for Agronomy of Lindau, Germany. It was one of 200 such establish
ments that are fixed pretty well ail around the world, according to
]. Jung.
The permanent personnel of that establishment consist of two German
technicians and four Bantu. The Bantu are given landscaping and house
keeping outies. The purpose of the station, asJ. Jung tried to explain it
to me, although I could not understand many things that he said, was
the taking of beamings, sensings, from the atmosphere primarily for the
purposes of pure science and secondly for long-range weather forecasting
over the next 30-day period for the use of airerait and ships at sea.
The PRESIDENT:These electronic instruments which you described
before, are they, as you understand the position, connected with these
functions?
General :MARSHALL H:e told me that this was their sole fonction.
The PRESIDENT:Did it look as if they had any military fonction?
General :MARSHALL N:one whatever. I asked him why it was that the
dark-room was the only room that they kept locked and he said that it
was because the people in the neighbourhood were afraid of the other
rooms so there was no danger there, but he said that with the dark-room
there was always a chance that they might go in and ruin the film at the
wrong timc, so that was the reason why that was the only place they
kept secured.
The PRESIDENT:I think you saicl that you went into the dark-room,
did you?
General MARSHALLY : es, Mr. President.
Mr. MULLER:Can you, General Marshall, in your own opinion, state
whether this facility is a nuclear reactor station or not?
General MARSHALLI:t is not. lt couId not possibly be.
Mr. MuLLER: Gcnerally speaking, did you see anything in South586 SOUTHWESTAFRICA
West Africa which you wou1d regard as a mi1itary base or fortification?
General MARSHALLI: did not.
Mr. MULLER:In addition to the armarnents which you have described
in the hangar at Windhoek and in the administrative building at Wind
hoek, did you see any other armaments in the whole of the Territory of
South West Africa?
General MARSHALLT : he only armaments I saw, apart from those at
Windhoek-and I am speaking of heavy weapons-were the hulls of
three Sherman tanks in the C.D.M. property, the diamond property at
Oranjemund. They had stripped them clown and they were using the
matar mechanisms ta run the elevator shafts in some of the clearing
operations.
Mr. MULLER:Is that a private company or not, operating at Oranje
mund?
General MARSHALLI:t is a private company.
Mr. MULLER:Naw, I will read to you a portion from the Reply of the
Applicants at IV, pages 563-564- Mr. President, this is the portion I had
read and I would like just to read it again to the witness ta put one spe
cific questionto him.
It is there stated, General Marshall, that:
"... Applicants contend that Respondent's admitted practice of
maintaining an indetenninate number of landing strips which may
be, and are, used by military aircraft of the South African Air Force,
coupled with the increasing build-up of military strength in Walvis
Bay, taken together with the apparently ever-increasing amount of
military activity by cadet corps and 'Commando units' in the
schools, communities and countryside of the Territory, joined with
Regiment Windhoek, have created a situation where there is the
equivalent of a series of military bases or potential military bases in
the Territory, or, at worst, where the Territory itself and its 'White'
inhabitants have become armed and co-ordinated to the extent that
the Territory has been transformed into a 'military base' within the
meaning and intent of the Covenant and the Mandate".
Now, having travelled throughout South West Africa and bearing in
mind that Walvis Bay, which is referred to in this document, is not part
of the Territory of South West Africa, wnat is your comment on this
allegation?
Mr. GROSS:Mr. President?
The PRESIDENT:Yes, Mr. Gross.
Mr. GROSS:The ailegation referred to would, on the witness's part, it
is submitted, call for a legal conclusion. This sentence which has been
read, as counsel has brought out now, ends with the clause "within the
meaning and intent of the Covenant and the Mandate", and it is sub
mitted that the request to the witness in the form of the question put
would call for a legal conclusion in the form of a comment regarding this
statement in the Reply.
The PRESIDENT:Mr. Muller, I think the objection is properly taken. It
is not for the witness to say whether this or that installation, or together,
were a military base or made the Territory a military base within the
meaning of the Mandate. The witness gives his expert testimony in
relation to facts seen. He is not entitled to express a Iegal conclusion.
That is a matter for the Court. WITNESSES ANDEXPERTS
Mr. MULLER:Mr. President, may I then put my question differently,
without reference tothis allegation, in just asking him whether whatever
he had seen in South West Africa indicated that there was any military
base, or whether the Territory, as such, constitutes a military base?
The PRESIDENT;In his opinion?
Mr. M UI,LER:Yes, in his opinion.
The PRESIDENT:Omitting the words "within the meaning of"?
Mr. MULLER:Yes. Thank you, Mr. President. General Marshall, will
you indicate whether there is anything which you saw in South West
Africa which you could regard as being a military base, or whether the
Territory as such is a military base, in your opinion?
General MARSHALLM : y answer is no. May I add that the Terri tory is
less militarized and more under-armed than any territory of its size I
have ever seen in the world.
Mr. MULLER:Mr. President, that is my last question to the witness. I
thank the Court.
The PRESIDENT:Mr. Gross.
Mr. GRoss: Mr. President. General Marshall, in addressing questions
to you, it will be assumed by the Applicants, and I am glad to state in
the record, Sir, that you are indeed a recognized military authority and
widely read as such in our native country.
I should liketo refer to one or two statements in your testimony so as
to refresh your recollection. Yon were asked during the proceedings
yesterday, 13 October, at page 577, supra, by counsel for Respondent,
Mr. Muller, this question:
"Do you consider that ... you could assist the Court in expressing
an opinion relative to the question as to whether a particular facility
is a military base or not?"
and you answered on the same page "I believe I can".
Toda y, Sir, according to my notes, you have, several times in response
to questions put by counsel, stated both specifically and generally your
opinion as to whether a certain facility or installation is a military base
or is not, and the same generally with respect to the Territory as a whole.
This is according to my notes. Is this a fair summary of your testimony
in this respect ?
General MARSHALLI:t is a fair summary.
Mr. GROSS:Now, as to the Rejoinder, VI, page 370, may I ask whether
you have had occasion to read the sections of the pleadings or any of
them with respect to the matter of the militarization or otherwise of the
Territory?
General MARSHALLI: have read it but I do not have it with me and I
would have to have my memory refreshed somewhat .
.Mr. GROSS:I should be glad to do that, General Marshall. I do not
intend to read lengthy excerpts, Mr. President. If the witness, however,
wishes to have a copy of the pleadings before him, if it pleases the Court,
I would certainly have no objections.
The PRESIDE~T:\Vell, it might assist, Mr. Gross, and it may also avoid
having to read lengthy excerpts.
11r. GRoss: Yes, Sir. I understand the admonition, Sir.
In the Rejoinder, VI, page 370, you will notice at the bottom of the
page, specifically in the context of discussion of the Regiment Windhoek,
the last sentence says:588 SOUTHWESTAFRICA
"The issue turns on the question whether the complex of what has
been established and what is being donc at the establishment con
stitutes a military base: Article 4 does not introduce the agency or
command through which the establishment and activities are con
ducted as a relevant factor at ail."
Now, of course I will not ask you questions which will involve a legal
judgment or conclusion or inference. However, I should like to ask you
two questions in relation to your expertise on this sentence.
First,the reference in the sentenceto "Article4 does not introduce the
agency or command through which the establishment and activities are
conducted as a relevant factor at all". You have testified as to your in
spection (and I may say this is the first inspection of which the United
Nations will have heard and this information will be transmitted to
them), but with respect to your testimony with regard to the command
as a relevant factor, did you, in your discussions with the command,
consider that relevant to your inspection trip?
General MARSHALL I: did.
Mr. GRoss: Thereforc you would say, as a military expert, that the
agency or command through which the establishment and activities are
conducted is a relevant factor with respect to military capability?
General MARSHALLV : ery definitely so.
Mr. GROSS:Now, with respect to the beginning of that sentence-and
this is a broader question-the issue turns on the question whether the
complex of what has been established and what is being donc at the
establishment constitutes a military base. Calling your attention to the
expression "what is being done", that would, would it not, refer to what
is being done at a particular moment of time?
General MARSHALLP :reciscl v so.
Mr. GROSS:Therefore with respect to "what is being done" at a given
moment of time, would that, or would it not, from a military point of
view, have relevance to what may be done at another point of timc?
General MARSHALLl:t would.
Mr. GROSS: Therefore your testimony with respect to what you saw
being done, if I may use the Respondent's expression, refers to the mo
ment of your visit, or inspection, whichever you choose to cati it. That
is correct, iit not?
General MARSHALLT :hat is correct.
Mr. Giwss: Now, with respect to the more general question of the
military nature of a base or installation, or the non-military nature as
the case may be, would you accept as valid, from a military point of
view, the dictionary definition of a military or naval base which is cited
and quoted in the Respondent's pleadings in the Counter-Memorial at
IV, page 50, which defines a military base or naval base as follows:
"The locality on which a force relies for supplies or from which it
initiates operations ... "
Would you say, Sir, that that is a tenable definition, or acceptable
definition, of amilitary or naval base in terms of military expertise?
General MARSHALLN : o, I would say it is a rather narrow definition.
The definitions that have been submitted in the case all add up pretty
much the same way in different Ianguagc, but that is an exceptionally
narrow definition.
i\Ir. GROSS:And, Sir, with respect to the further comment or conclusion W!TNESSES AND EXPERTS 589
drawn by the Respondent, in the same volume of the Counter-Memorial,
at IV, page 50, I read as follows:
"A common feature of these defmitions [and that, incidentally,
refers to the definitions in the several dictionaries from which the
quotations were takcn] is that a base is something utilised by a
force or an army for the purposes of operations or a campaign."
Do you regard that as an acceptable definition of a base?
General MARSHALL : think that is an acceptable definition, .!\:Ir.Presi
dent.
Mr. GROSS:With respect, then, to the interpretation of what is or is
nota military base, would it follow, Sir, that the use to which it is put
and first should I say that the use to which it is put is a relevant factor:
you would clearly agree with that, would you not, Sir?
General MARSHALLI: would.
Mr. GRoss: Would you say, Sir, that the potential use to which it may
be put is also a relevant factor in determining its chara,ctcr?
General MARSHALLI:would say, Mr. President, that this would depend
altogether on the circumstances. The potential use might be true in one
case and in another case not.
l\fr. GRoss: My question simply was whcther, from the standpoint of
military expertise, and analysis, as a recognized authority, Sir, whether
or not you consider the potcntial use of an installation is relevant to the
characterization or conclusion as to whether it isa military base or not.
General MARSHALL It has a certain relevancy, that is as far aI could
go.
Mr. GROSS:And there again, would you agree, Sir, that the relevancy
involves (may I call it) the temporal question what exists at a particular
point of time-would you agree to that, Sir? Do I make my question
clear, General Marshall? l am not sure that I did, Sir?
General MAHSHALL : am afraid you do not. ln other words you arc
saying that conditions may change and therefore this would be a con
ditional factor with respect to judging whether or not a military base
exists?
Mr. GROSS:WeU, I think that is a fair paraphrase of my question, Sir,
but in fairness to you, to clicit your expert opinion let me, if I may,
broaden the question. In respect of current military science or technology.
it is true, is it not, Sir, that within a very short range of time-perhapa
matter of hours or days-the character of an installation may be radically
changed?
General MARSHALLW : ithout a doubt, Mr. President; that is true.
~fr. GROSS:And if it is inspected as of a given point of time, does this
then reflect upon its potcntial usability, in terms of the language used by
the Respondent, Sir?
General °MARSHALL M:r. President, it docs.
Mr. GRoss: As of that time?
General :MARSHALL I:t does.
Mr. GRoss: And at that time only, Sir?
General MARSHALL: It docs, but this same thing may be said of any
tract of ground.
Mr. GROSS:Sir, may I ask you when you were invited to make this
inspection visit, was it, as you understood it, for the purpose of putting
yourself in a position so that you could submit to this honourable Court SOUTHWESTAFRICA
a first-hand, authentic and undoubtedly correct factual statement con
cerning what you saw, Sir, as a result of your inspection?
General MARSHALLM : r. President, should I state the circumstances
under which I made the trip?
The PRESIDENT:You are certainly invited to, so you may.
General MARSHALLI: made my first trip with no particular idea in
mind, except that I got a call from my brother ,,.,howanted to know if I
would join him on a trip to South West Africa and South Africa; and
when that trip was completed I had no idea in mind that I would be
brought before this Court as a witness. The change came about several
weeks ago when I received a letter asking if I knew anything about Regi
ment Windhoek and the situation at Ohopoho, and I wrote back and
said no, that I had not seen these because when I was in South West
Iast Ihad not been under any instructions or stricture as to what I should
see and how I should spend my time.
I was then asked, would I be willing to go to South West and look into
the situation of Regiment Windhoek, which, incidentally, we have not
touched upon at all, and also go to Ohopoho, and I replied that I would.
And that is how I happened to make the trip.
Mr. GROSS:I realize that this is rather an obvious question, but would
you, Sir, feel that you were in a position to testify on this matter unless
you had made a careful survey and inspection of the facilities yourself?
General MARSHALLI: would not at all be ready to do that.
Mr. GROSS:Now, Sir, and I address this question to you again as a
military expert, with regard to an objective of demilitarization, or
neutralization, of a territory, would you, in the light of what you have
testified or otherwise, regard supervision as an essential element in the
determination of the potential military nature of a given facility?
General MARSHALLC : ommand supervision?
Mr. GRoss: Supervision in 1espect of any-1 do not want to lead you
into a legal issue regarding the Mandate, I know you are not here as a
lawyer, Sir-but with regard to the necessity or otherwise of supervision
or inspection of a dernilitarization plan of any kind, let me take that
generally, would you regard supervision of compliance with an under
taking of demilitarization as an essential prerequisite to the, let us say,
assurance against use for military purposes?
The PRESIDENT:Mr. .Muller.
Mr. MULLER:With respect, Mr. President, my leamed friend should
make clear what he means by demilitarization plan, before the witness
canin any way answer the question.
The PRESIDENT:Well, I suppose the witness will know something
about demilitarîzatîon, as to what îs învolved init,and he will also know
something about what he understands by supervision. If you clarify your
question as to what you mean by demilitarization, in relation, for example
to South West Africa-how you would demilitarize what he describes.
Mr. GRoss: Yes, Sir. I am referring, Sir, in my characterizationto the
so-called military clause of the Mandate, Article 4, second paragraph,
which you have stated in your testimony you have read and and have
before you (during the proceedings yesterday). You aie familiar, I believe
you testified, withthat clause: that is what I am referring to.
General MARSHALLI: have it before me.
Mr. GROSS:And specifically with reference to-1 do not wish to engage
in a verbal exchange on this-my word "demilitarization", would you WITNESSES ANDEXPERTS 591
then transpose for my word "demilitarization'' the military objectives of
that article, and consider this purely in military terms?
The PRESIDENT:I do not know, Mr. Gross, whether he can do that,
because if you ask him to do that are you not asking him to forma legal
conclusion as to what the meaning of the Mandate is?
;\frGRoss: No, I am not, Sir. I am merely trying to avoid that by
confming this to military potential, the potential usability or usefulness
of a given facility,in military terms, and the connection, if any, of in
spection or supervision with regard to that military question. That is the
purpose of my question, Sir. And I would like to invite you, General
l\farshall, if I may, express your opinion, if you care to, with regard to
the relationship, if any, between inspection or supervision of a provision
which calls for,or which prohibits, the installation of military or naval
bases or fortifications.
General MARSHALLM : r. President, I cannot answer that question in
this form, I really do not get it.
Mr. GRoss: You have testified that except for your persona! visit of
inspection, if Imay call it that, you would not have felt in a position to
state facts to this honourable Court or express an opinion as to whether
or not these identified facilities were; or were not, military installations.
That is correct, is it not, Sir?
General MARSHALLT :hat is correct.
Mr. GRoss: Now in that sense, and arising out of that testimony, then,
I would like to ask you, Sir, whether you would apply the same reasoning
to the matter of inspection generally. Would you say, Sir, that just as
you had to inspect in order to be able to verify facts and to report on
them to this honourable Court, that it would be possible for anyone to
understand the military nature or military potential of a facility without
some measure or capability of an inspection and or supervision? Do you
understancl my question, Sir?
General MARSHALLI: get it now, Mr. President. I would reply ta that
that it is perfectly possible for neutralization ta take place without there
being an accompanying inspection, but on the other hand, there can be
no guarantee that it has taken place unless there is an inspection.
Mr. GR03S: And would you say, Sir, that in connection with disarma
ment proposais, I do not mean to get too general about this, or de
militarization proposais or agreements, would you regard verification
and inspection in principle as an important element of any such plans?
The PRESIDENT:Is your question at large, Mr. Gross?
Mr. GROSS:As large as I can make it, Mr. President.
The PRESIDENT:I think you are making it very large, if I may say so;
we are getting back to Geneva, are we not?
Mr. GROSS:We are getting back, Sir, I hope, to the basic question, if I
may put it that way, of what is really necessary in order to achieve the
objective of demilitarization in any form.
Now, Sir, the witness has testified in a very general, broad way with
regard to whether a particular facility is or is nota military base, without
definition or specification of what the words mean to him. I am now in,
I think, a more general sense, attempting to elicit from the witness his
expert opinion, if he has one, with respect to the relevance, if any, of
inspection or supervision with regard to the military nature or mihtary
potential of a facility, Sir.
I do not know, Sir, whether you have answered my question or not, SOUTHWESTAFRICA
592
but I would like to renew it because I am not certain whether you have
given me an answer. Would you regard inspection as an essenhal or, let
me put it first, relevant element, in a plan for disarmament, demilitari
zation or neutralization?
General MARSHALLR : elevant, certainly.
Mr. GROSS:Now would you regard it as, in any degree at ail, impor
tant?
General l\IARSHALLY : es, important.
Mr. GRoss: I think, Sir, that you have testified, have you not, that
under conditions of modern technology and modern military science,
heavy equipment-you have not mentioned heavy equipment, but I
think on the basis of what you have testified-that heavy equipment can
be moved rapidly in modern contemporary conditions. Would you agree
to that, Sir?
Gencral MARSHALLW : ould agree readily-yes.
Mr. GRoss: And with respect, for example, to landing strips or cleared
areas, you have not been asked and questioned with respect to techno
logy, for example, such as helicopters. You have testified in response to
the leading question that a C 47 or a Dakota might, with some difficulty,
make an approach and landing at this particular airstrip. Would you
describe, Sir, on the basis of your military expertise, in a very general
way, to the Court, as briefly as possible, the nature of the current military
technology with respect to helicopters or other methods of vertical en
velopment?
General MARSHALL n the simplest terms, l\frPresident, if you have
a piece of fiat ground anywhere on earth, this can be made a military
base if you want to strain the meaning of the term, bccause you can put
a helicopter down on a pad of that size and it can fight from that ground,
so there would be scarcelv a bit of South West Africa that could not be
thought of as a military base ifone wants to argue that point of view.
Almost any piece of ground there will accommodate a helicopter.
Mr. GRoss: Now, Sir, you arc aware, are you not, that this Mandate
was written and undertaken in 1920?
General MARSHALLY : es, I am well aware of it, I have written about
the Mandates.
l\fr.GRoss: Yes, Sir. And now, military science and technology as it
has devcloped since 1920 has, has it not, changed the nature of military
bases and fortifications as known and thought of in 1920? Is that correct,
Sir?
General MARSHALLT :here have been changes and may I add that as I
read the Mandate, some of those changes were anticipated in the language
of the Mandate.
Mr. GRoss: And, Sir, you would agree, would you not, that new in
stallations can be created or movcd by speedy and perhaps-I am not
making an allcgation-but they could be moved by secret mcans through
the application of modern military science and technology? You would
agree with that, Sir?
General MARSHALL:There is no question, Mr. President, but that
military material can be moved at tenfold the speed today than was
possible when the Mandate was written.
Mr. GROSS:Now, Sir, the allegations made in the Memorials which
were filed in April 1961 were made specifically on information and belief
because of lack of inspection facilities. Soh respect to allegations made WIT!\"ESSEA SNDEXPERTS 593
in 1961, would you say that they are necessarily relevant to the situation
which you saw in September of this year?
General MARSHALL:I would have to go back over the allegations,
but ...
Mr. GRoss: But whatever they are, Sir, would you say that they are
neccssarily relevant to the situation, not ...
General l\faRSHALL:I would not so regard them?
Mr. GRoss: You would not so regard thcm.
Gcneral MARSHALLN : o.
Mr. GRoss: Now, Sir, going back again to the question of time as an
element, and the point of time as an element in determining the use
fulnessor use, or potential usefulness of a facility, would you say that you
can be confident of what the situation is today with respect to any of
the installations you saw in September?
General l\IARSHALLP : ardon me, but I reallv do not understand the
question. ·
Mr. GROSS:I said, Sir, would you say that you could state with assur
ance to the honourable Court what the situation is as of today, this
moment, in the installations which you saw in September.
General MARSHALLI:n other words, am I certain that they could not
have been changed overnight?
Mr. GROSS:If you put the question that way, yes, Sir. I will accept
that brief formulation.
General MARSHALLN : o, I could not be certain. To the limit possible
I chccked through to find out by looking at muster rolls and Jooking at
duty rasters whether the data I was getting from the South \Vest Com
mand and from Regiment Windhoek was correct, and also by interview
ing personnel, because while I find it possible for one or two individuals
to fabricate a story, if you check ail up and down the line fabrication
becomes impossible. That is the reason that I had the muster there on
the Saturday. I wanted to check with N.C.Os., also to find out if there
was any difference in the story. Yes, the situation I have described could
change overnight, just as an emergency may arise overnight. Inspection
is concerned only with what is seen at that time. An inspection does not
guarantee that the situation will be continued, but one does look for
fixes in such a situationto see whether this is the norm in the establish
ment.
Mr. GROSS:Sir, just by way of illustration, and in no sense implying
fabrication or otherwise, for example, with respect to the complement of
the staff at Regiment Windhoek, in the Counter-Memorial, IV, page 56,
which was fi.ledin 1963, it is stated, and I will read this one sentence:
"Only a small permanent force, administrative staff, consisting
of three officersnd sevcn other ranks, is permanently stationed at
Windhoek."
Now, without inviting your comment as to whether this is a big or a small
staff,just as a matter of fact, Sir, in your testimony did you not say
that when you met with the South West Africa Comrnand at \Vindhoek
that you met with 5 officers and 15 other ranks?
Gencral MARSHALLT :hat is correct, Mr. President.
Mr. GROSS:Now this would, I suppose, would it not, Sir, indicate that
situations do change from time to time with respect to the nature of the
installations, or the number of persans there, without regard to whether
it is a minimal change or not? SOUTH WEST AFRICA
594
General MARSHALLR : ight, but I would Jike to point out one area of
confusion here. I think that we are talking about two different things.
You are talking about Regiment Windhoek and I am talking about the
South West Command, and these are not the same.
Mr. GRoss: I was talking, Sir, about the permanent force, administra
tive command, and I understood you to say that you met with them.
General MARSHALLB : ut this is hardly concerned at all with Regiment
Windhoek.
Mr. GROSS:\Vell, what is the relationship, Sir? My notes may be faulty
on this.
Gencral MARSHALL:South West Command is from the standing
establishment, and it bas only an administrative relationship to Regiment
Windhoek, and that is limited to simply making sure of the personnel
programming-moving people to Regiment Windhoek and moving them
out, and also issuing them equipment when they go to their homes. South
West Command is not an operational Comrnand. In terms that we use in
the United States this is a headquarters which is set up primarily for the
induction of personnel and for processing to get the young men of the
Territory into military service. They start monitoring them when they
are 17 years of age, then move them up for medical examination, and
then after they get their medical examination and go into training; from
that time on this headquarters has to keep track of these men.
For instance, if a man goes to South Africa instead of staying in South
West, they still monitor that individual to make sure that he is fulfilling
his obligation, and their only relationship to Regimcnt Windhoek is in
this same capacity, just making sure that the individuals in there are
doing their duty, and making sure that the regiment gets its numbers,
and that it returns its equipment when the men have finished their
obligation. These rifles that I saw in their store-room were rifles that had
been brought in from men who had finished their obligation, and they
would in turn be passed on to men who were being assigned to Regiment
Windhoek. They would take their rifles with them to their homes, f?r
Regiment Windhoek does not train in the Territory, and it does not tram
under this headquarters.
l\lr. GROSS:Just to avoid any possible confusion which I may have
engendered arising out of your testimony as to the nature of the South
West Africa Conunand, it is stated in the Rejoinder, VI, at page 373:
"The said headquarters [this is in connection with the administra
tive headquarters of Windhoek, 1 believe], known as the South West
Africa Command, consists of a Permanent Force staff of three
officers and seven other ranks permanently stationed at Windhoek."
Just for the sake of clarity, is this the group to which you refcrred in your
testimony?
General MARSHALLT : hat is the group to which I am referring.
M.r.GROSS:Consistini:.:, ow, when you saw it, of 5 officers and 15 other
ranks?
General MARSHALLF : ive officers and 15 other ranks.
l\lr. GROSS:With regard to the Command structure as distinguished
from the administrative structure, did you in the course of your enquiries
and analysis and inspection look into the nature of the Command struc
ture of the Regiment Windhoek, and to what higher echelons they report
in the line or chain of command? Would you state that to the Court? .WITNESSES ANDEXPERTS
595
General MARSHALLT : he Regiment throughout the year is embodied
mainly in its Commander, its Adjutant and its Quartermaster; otherwise
the Regiment does not meet at any time, because it is scattered through
the Territory; it is not based on Windhoek really, though some of its
individuals live in Windhoek, but the law requires that if a man lives
ro miles beyond the point at which he is to appear for temporary drill,
for periodic training, he need not comply, and the dispersal of the
Regiment makes it impossible for them to form cluring the year, and they
get together for three weeks in summer, that is, two-thirds of the Regi
ment, every year, goes to summer camp in Bloemfontein and there takes
its training, and it is under South Africa Command, not under South
West Command.
Mr. GROSS:In other words, the Adjutant reports to what commanding
officer, do you know? ·
General MARSHALLT :he person?
Mr. GROSS:No, the rank, and the place in the table of organization.
General MARSHALLF : or administrative purposes, again where he is
dealing with personnel or equipment, he does deal with South West
Command, but where it is a matter of dealing with training, this is
scheduled from Army Headquarters, South Africa.
l\fr. GRoss: In South Africa?
General MARSHALLY : es.
Mr. GROSS:And on the basis of your observation and study in a
military operational sense-if you can answer this question-would
deployment of personnel, movement of logistical equipment, for example
in case of emergency, be under the command and direction of South
Africa Headquarters?
General MARSHALLT :hat would be under South Africa Headquarters.
Mr. GROSS:Would you then from a military point of view regard
Regiment Windhoek on the basis of its place in the scheme as an adjunct
of South African military forces in any sense of the word?
General MARSHALLD : efinitely so.
Mr. GRoss: You have not testified, I think you have not been led by
counsel, in respect of Walvis Bay-am I correct in that? My notes do not
show that you have testifi.ed on that subject-am I wrong in that?
The PRESIDENT:No, you are quite right.
General MARSHALLM : r. President, I went to Walvis Bay ...
The PRESIDENT:You went to Walvis Bay, but you did not testify
aboutit.
General MARSHALLI:went to Walvis Bay because, before I undertook
this mission, I toldthe authorities that I would go only provided I was
permitted to sec what I pleased.
l\fr.GROSS:Since you have not testified with respect to Walvis Bay
I could not, I think. with propriety cross-examine you on this subject
which you did not open up. I would, however, in connection with the
South \Vest Africa installations or facilities as to which you have testified
and their military use, ask you, did you encounter in your inspections any
infonnation with respect to whether aeroplanes, say jet planes, from
Walvis Bay overfly South West Africa on any missions?
The PRESIDENT:"Overfly on missions" has a peculiar sense, Mr.
Gross; "overfly" alone is probably suflicient.
Mr. GROSS:Overfly, yes, Sir. I was thinking of reconnaissance or any
other missions of a military nature, including training.596 SOUTHWEST AFRICA
General MARSHALLN : o, I did not run into it, and I saw none.
Mr. GRoss: As a military analyst could you say whether, on the basis
of your own visit to Walvis Bay, planes taking off from the airfield there
would have to either fly over the water or over South West Africa?
General l\L-\RSHALLT :hey would certainly be going around by Robin
Hood's barn ifthey didn't travcl over South West.
l\Ir.GRoss: One other question, with regard to the fo!lowing conclusion
or statement by the Respondent in the Counter-.Memorial, IV, page 50-
do you have that? The bottom third of the page, following the sentence
which I have already read, beginning "A common feature of these
definitions" and so forth, on which you have cornmented. The sentence
to which I should now like to call your attention reads as follows:
"Consequently, failing the purpose of utilization for operations or
a campaign, actual or prospective, by a force or an arrny, a place
cannot be said to be maintained as a military or naval base."
Would you regard that as an accurate or fair description or characteriza
tion of a military or naval base?
General MARSHALLI: would consider that a fair definition, yes.
Mr. GRoss: The question of whether such an installation or facility,
present or as itmlght be revised,is properly to be called a military or
naval base depends, does it, on the "purpose of utilization for operations
or a campaign, actual or prospective, by a force or an army"? That is
what you say you agree with as a fair characterization of a defmition of
a military or naval base?
General MARSHALLI: would agree, yes.
Mr. GRoss: In your answer to the questions led by counsel as to
whether or not a particular installation or facility is a military or naval
base, when you testified that it was not in the cases in point was that
answer based in any respect upon your analysis or understanding of what
a prospective use might be?
General .MARSHALL It was based rather upon the nature of these in
stallations and of the force-levels in the force-relationships. For one
thing, you cannot think of Regiment Windhoek as a field force, because
it is not in action, it is nota standing force, it has no being except when
it is in training. In our country speaking of reservists as a field force
would be considered a misnomer-1 think it would anywhere in the
world~that they constitute a field force simply because they have a
military obligation. There is no Conunand structure over Regiment
Windhoek, and Regiment Windhoek does not have the material outside
of its rifles that would enable it to campaign even if it were a standing
force. One of the sources of confusion, I believe, in this discussion is in
including automatically naval bases and military bases in the same con
text, because a naval base is a very definite object, it is not just any
naval installation, it is a port or a harbour facility.
The PRESIDENT:You cannot change a naval base very much overnight.
General MARSHALLN : o, Sir, it is a hard establishment, prepared for
one purpose-to service, supply and support the fleet or some part there
of, whether it be the Navy Air Arm or submarines, but it is a hard
establishment, and I cannot conceive of a sentence in which a naval base
is referredo as such and a military base is spoken of and this latter would
referto any kind of camp, post or station. It seems to me that this would
be absurd, that there must be a consideration of equivalents here, that WITNESSES AND EXPERTS
597
a military base is an establishment that is set up and prepared man
powerwise and as to equipment to support forces in the field.
Mr. GROSS:Would you say that, as distinguished from a naval base,
a military base is, as you have, I believe, already testificd, readily sus
ceptible ofvery speedy conversion, expansion or change of character?
General ThL-\RSHALY L:es, indeed I would, Mr. Gross, though now I
would not say that this is true of a naval base, nor is it true afmilitary
base if we consider the history of the time when this ~Iandate was written,
when thcy must have been thinking about the rise of air power and there
fore defi.nedt as a military base rather than strictly an Army base. One
cannot make a real air base overnight; one may make an airfi.eld, a
landing strip, but asfor being a main base, no.
Mr. GRoss: A main base, Sir?
General MARSHALLA : main base in the sense that it would be able to
fieldair power in the way that a naval base can float and support the
fleet.
Mr. GROSS:With respect to the character of a military base in con
temporary conditions, would the question of whether a particular in
stallationor facility, as it exists from time to timc, or may be converted,
taking it whichever way you wish, does the character depend upon the
terrain which it occupies, the nature of the country in which it exists
and, if Iay add, the potential use to which it may be put? Are all these
relevant factors in the event?
General MARSHALLT : o a certain extent this is true, for one cannot
imagine a military base-a base supporting field forces-being put other
than at the hub of a road network. For examplc; it would invariably be
so placed at the point where it could cover the grcatest radius of opera
tion. I was just going to make another point, adverting to what I said a
minute ago, that the other word in this prohibition that interests me is
the word "fortification", because this means only one thing: it does not
mean any armed place; whereas the word "fort" has corne to have a
loose mcanin~ in our time this is not truc of "fortification". "Fortifica
tion" mcans 'where man-made works have strcngthened the position";
you can have roo soldiers on a hill and have them armed-it would be
an armed position, but it would not be a fortification until they had done
so~e work to strengthen it; and so fortification is a very, very definite
thmg.
Mr. GROSS:Would you say, à propos of your testimony just now with
regard to fortification, that from your experience, let us say in Korea or
elsewhere, concrete emplacements or fortifications can be erected very
speedily?
General MARSHALLY : es, even ro yards of trench is a fortification.
l\lrGRoss: If I may revert for just one moment tothe question which
I asked you earlier and to which I do not recall having had a response.
With respect to the Respondent's comment or conclusion or definition,
whatever it may be, on page 50 of the Counter-l\fomorial, IV, where one
of the elements which is referred to is actual utilization for operations or
a campaign. actual or prospective, I believe I asked you whether in your
investigations and enquiries you had had occasion to discuss with any
officiais the general question of prospective use of facilities?
l'vir. President, I believe the pencling question, ifmy mcmory serves
me, is my question to General Marshall with respect to whethcr or not
during the course of his visit did you, Sir, have discussions or consul-598 SOUTHWESTAFRICA
tations with any Government officials concerning any prospective
utilization of these installations or facilities?
General MARSHALLB :y Government officials,does the question include
army officers?
Mr. GROSS:~Iilitary or civilian officiais of the Government.
General .MARSHALL N:ocivilian officialI;talked to the commanders.
l\lr. GROSS:At what level, Sir?
General MARSHALLA : t the South West Command level, but none in
Pretoria.
Mr. GRoss: So, there was no occasion,I take it, was there, Sir, for you
to discuss or enquire into the question of contingency planning for the
possible utilization of any facilities in South West Africa?
General MARSHALLM : r. President, a visiting officer from abroad does
not enquire into this kind of matter when in foreign territory, it is
indiscreet. J
Mr. GROSS:No further questions, Mr. President.
The PRESIDENT:Does any Member of the Court desire to ask the
General any questions? If not, Iwould like to ask you one or two ques
tions.
General MARSHALLY : es, Mr. President.
The PRESIDENT: I think you said that you had written upon the
Mandate-written some articles upon the Mandate: had you?
General MARSHALLN : ot any articles, Mr. President; two years ago I
wrote for the American Heritase Company A History of World War I,
and that got me into the Mandate.
The PRESIDENT:Oh, I see.
I am interested in your description of fortifications; I do not wish to
challenge your expertise, General, but I understood you to say to Mr.
Gross that if there are establisheIO yards of bunkers, that would be a
fortification.
General MARSHALLY : es, Mr. President.
The PRESIDENT:ls that the meaning you would say is to be given to
the word fortification, as it was used in 1921?
General MARSHALL I: would give it that meaning.
The PRESIDENT:So that a foxhole is a fortification.
General MARSHALLA : foxhole would be a fortification. Any man-made
work, no matter what it is ...
The PRESIDENT:No matter what it is?
Gencral MARSHALLC :orrect, Sir; it is a fortification.
The PRESIDENT:So that if troops operating over training ground dig
themselves foxholes, for the purpose of obscuring their party, then that
is a fortification?
General MARSHALLY : es, indeed, Mr. President, they have fortified
the ground, and these must be regarded as "fortifications" even if they
were used within a training frame.
The PRESIDE~T:I see; and in the context of when you speak about
naval and military bases or fortifications, as a military man, do you sa.y
thatwould be the meaning in 1921 of the word fortification?
General MARSHALLR : ight, Mr. President.
The PRESIDENT:Can you quote any authority at all, apart from your
own view, that a fortification would include any man-made bunker or
foxhole?
General MARSHALLA : ny authority? WlTNESSESANDEXPERTS
599
The PRESIDENT:Yes.
General MARSHALLT : he French-English Military Dictionary and the
dictionary which is in use in our services.
The PRESIDENT:\Vhat is the name of the dictionary?
General MARSHALLI : think it is Jensons.
The PRESIDENT: Jensons Dictionary?
General MARSHALLI : think that is it.
The PRESIDENT:The military dictionary?
General MARSHALL:The name has been given in the paper that I
wrote, and I do not have access to that at this moment.
The PRESIDENT:Wcll, may I just follow it a Iittle bit further?
If, for example, you have troops in training, cadets in training-1.6-year
olds, to take for example-and they are part of the military establish
ment where they are being compulsorily trained, and in their training
ground they throw up bunkers, trenches ro or 15 yards long, and then
they are exposed to the weather: once having been dug, it remains a
fortification?It is a fortification and remains a fortification for ail time
thereafteri
General MARSHALLM : r. President, it would remain a fortification, even
ifit is on an old battlefield, until it bas finally eroded.
The PRESIDENT:Until it has finally eroded? So, when you see through
out the world even old gun-pits which coulcl not be used at all for modern
military purposes, would you still call them, in modern terms, fortifica
tions?
General MARSHALL : 1.President, vou would call them fortifications,
antique it is true, but they would stilf be fortifications.
The PRESIDE!'IT:Even if you could not use them at all for military
purposes?
General MARSHALLR : ight.
The PRESIDENT:1 see, that is all I wantcd to ask you, Sir.
Yes, Mr. Muller, do you want to re-examinc?
Mr. MULLER:No further questions, i\frPresident.
The PRESIDENT:Would you call your next witness, please.
General, you are released from further attendance; I do not think you
wiH require him, will you, Mr. Muller?
Mr. MULLER: No, Mr. President.
The next witness will be Professor Manning, and, with the permission
of the Court, Dr. Rabie will introduce the witness and put certain
questions to him.
Mr. RAB!E: Mr. President, Professor Manning's evidence will relate to
Applicants' Submissions Nos. 3 and 4.
In July, Mr. President, the Deputy-Registrar and the Applicants were
informed that Professor Manning's evidence would be directed to the
following points-I quote from the letter which was sent at the time:
"(1) Group relations generally.
(2) The advisability of applying measures of differentiation be
twe~n gopulation groups in countries such as South West
Afnca.
Subsequently, Mr. President, the Respondcnt 'sAgents sent a further
letter to the Applicants, in which Professor Manning's evidence was set
out more specifically, and I propose to read from a copy of that letter,
which was dated II October 1965:600 SOUTH WEST AFRICA
"Points to which evidence will be directed:
On the basis of Professor Manning's studies and reflections in the
sphere of International Relations, he will testify as to the importance
of the sociological phenomenon of group personality, particularly in
the case of ethnie and tribal groups, and particularly in relation to
promotion of the wcll-being of such groups and their members.
He will illustrate the theme with reference to practical examples
pertaining, inter alia to the Polish nation, British Guiana, Mauritius,
India, Pakistan, the former Ruanda-Urundi, Cyprus, Canada, Bel
gium, the United Kingdom, and South Africa. Against this back
ground he will consider the effects of the application of a suggested
rule of non-differentiation in South West Africa."
It was then stated that in the course of his testimony Professor
Manning would refer to certain publications, which are set out in the
letter.
The PRESWENT: l\fr. Rabie, will you now call Professor Manning?
Mr. RABIE: Yes, may I now introduce Professor Manning?
The PRESIDENT: Mr. Gross?
Beforc you call Professor Manning, Mr. Gross desires to be heard.
Mr. GROSS:Thank you, Mr. President.
Very briefly, Sir,the Applicants would wish respectfully to reaffi.rm
objections, both specific and general, previously made with respect to
testimony given or proffered on the basis of a formulation similar to that
now stated in the letter just read into the record:
"Against this background he [that is, the witness] will consider
the effects of the application of a suggested rule of non-differentia
tion in South West Africa."
Sir, if I may just refer, by citation without comment or discussion, to
the verbatim records of 21 June, X, pages ro3-108 and 122-124; 22 June
1965, X, pages 131-133 and 138-139; and finally 7 July, X, pages 335-336,
341-342, and pages 348-349. Sir, in conclusion to the general objections
already laid and which are reaffirmed respectfully, the Applicants would
contend that the confusion and the ambiguity to which thcy referrcd in
the previous formulations, is now compounded by reference to a "sug
gested rule of non-differentiation", which is a meaningless phrase in the
Applican ts'understanding or comprehension, and therefore the objection is
reaffirmed and specifically made applicable to this formulation as wcll, Sir.
The PRESIDENT: l\Ir. Gross, the general objection is noted, and your
specific objection is noted.
The practice I think the Court will follow i;; that which we have
followed before, and \vhen the question is put to which you specifically
desire to take objection, which involves the submissions which you have
made to the Court, it can then be taken and the Court can consider it,
but until the question is put, sometimes the problems which are foreseen
do not really occur; so, the question will arise only when objection is
taken to a specific question.
Mr. GRoss: l\fr.President, may I say, Sir, with respect, that because
of the very ambiguity of the expression used as the point to which the
evidence will be directed, the Applicants' complete inability to com
prehend what is intended by it, it will be difficult, if not impossible, for
the Applicants toraise specificobjections with respect to specific questions WITNESSES A:-l"EXPERTS 601
because we do not know what any of those questions will be actually
directed to, sincethis formulation is not understood by us.
Therefore, with the President's permission, I should Iike, on behalf of
the Applicants, to state and reserve a general objection to all questions
and ail answers which may be asked on this foundation, rcserving also
the right, with the President's permission, to raise specific objections, if
it is guessed or estimated that a specific question is directed any more
than any other against this foundation, Sir.
The PRESIDENT:Whatever right you are seeking toprotect, l\fr. Gross,
will beprotected by your general objection and, as I have indicated be
fore, inthe case of evidence which is given by any witness, the Court
itself, ifere is any question of relevancy, will have needto determine it
when it proceeds with its deliberations. So, having taken a general
objection, you may rest assured that that course will be followed. How
ever,the normal way in which an objection is taken to the evidence of a
witness is when a question is put.If it is then taken that it is not relevant
toany issue in the case, at that time the objection oughtto be taken and
it ought not simply to be dependent upon a general objection.
Mr. GROSS:Then, if staccato objections are filed then I hope the
honourable Court will ...
The PRESIDENT:By ail means, you have complete right, Mr. Gross, to
object to any question, if you think that the question is not relevant to
anv issue beforc the Court. Mr. Rabie.
Mr. RABIE: Mr. President, may I ask that the witness make first the
declarations provided for in the Rules of Court-that is, both as a witness
and as an expert.
The PRESIDENT:Let the declarations be made.
Mr. MANNING:ln my capacity as a witness I solemnly declare upon
my honour and conscience that I will spcak the truth, the whole truth,
and nothing but the truth. ln my capacity as an expert I solemnly
declare upon my honour and conscience that my statement will be in
accordance with my sincere belief.
Mr. RABIE: Professor Manning, your full names are Charles Anthony
Woodward Manning, is that correct?
Mr. MANNING:Quite correct.
Mr. RABIE: Are you a South African?
Mr. MAN::--!INYGe:s, I am a South African. I was born of British parents
in what was then the Cape Colony. I have since then lost my British
nationality and so now I am simply an English-speaking citizen of the
Republic of South Africa.
Mr. RABIE: Where do you live, Professor Manning?
Mr. MAN::--!INA Gt: present, I live in England. I came from South Africa
in 1914 and since then I have had four jobs, two of which were in Switzer
land and two of them in England. I have not yet returned to South Africa.
Mr. RABIE: You have been back toSouth Africa on various visits?
Mr. MANNING:I have been back nine times, four times in the last
15 years for periods of two to three months at a time.
Mr. RABIE: You stated that you were an English-speaking citizen of
the Republic-do you attach any special signiftcance to thfact that you
are English-speaking?
Mr. MANNING:Yes, Mr. President, I would say that it is of interest
that I was formerly a warm admirer of General Smuts.
The PRESIDENT:I don't think this really matters, does it, Mr. Rabie?602 SOUTHWESTAFRICA
In what way does this go to the qualification of Professor Manning as an
expert witness?
Mr. RABIE: Mr. President, only in this way, it seems tome that the
witness would like to state just where he stands and how he sees things.
Politics are involved in thisand he would like to say that, although he is
English-speaking, things have happened in South Africa which have had
an influence on him, and he is going to tell the Court ...
The PRESIDENT:I don't think you can tell us at the moment precisely
what he was about to tell the Court.
Mr. RABIE: Mr. President, he is also going to refer to conditions in
South Africa as part of his thesis and I think the witness rather thinks
that he would like to say this to make that more clear to the Court.
The PRESIDENT:I do not think it is admissible at ail, Mr. Rabie. The
question whether he has a bias one way or the other does not arise at all
unless he is cross-examined along those Iines by l\fr. Gross. The oniy
evidence that you can direct yourself to at the moment is his expertise
and what evidence he is going to give as an expert and as a witness of fact.
l\Ir. RABIE:As the Court pleases, I shall proceed tothe next question.
Professor Manning, will you tell the Court what academic training you
have had? .
Mr. MANNINGB : efore the First World \Var, throughout which I served
in the British Army, I had one year at what is now the University of
Cape Town. At Oxford after the war, I studied philosophy and law and
I attained the degree of Bachelor of Arts in what is called Greats, Literae
Humaniores in the official designation. I took a degree in Jurisprudence
and I took the degree of Bachelor of Civil Law. I was called to the Bar in
1922 and later, for a time, I held a Fellowship at Harvard University
where I laid the basis for my subsequent thinking on the problems of the
organization of peace and the prevention of war.
Mr. RABIE: Professor Manning, have you published anything on the
tapies to which you have teferred?
Mr. MANNING:Over the years I have published some articles and in
1962 a book The Nature of International Society.
Mr. RABIE: That is the name of the book?
Mr. MANNING:Yes.
Mr. RABIE:Would you tell the Court what posts you have held in the
course of your career?
Mr. MANNING:On completion of my studies at Oxford, I served for
a short while in the diplomatie division of the International Labour
Officein Geneva and then for a little over a year I was Persona] Assistant
to the Secretary-General of the League of Nations. Then, for over six
years, Itaught legalsubjects in Oxford, mostly Roman law, jurisprudence
and international law and then, for more than 32 years, I held the Chair
of International Relations in the University of London. I should just add
that it is not correct, as is said in the Respondent's Rejoinder, that I was
ever a Professor of International Law. Twice, during the absence from
Oxford of Professor Brierly, Idid deliver courses of lectures in his stead,
and on the second of these occasions, I was formally gazetted Deputy
Professor of International Law, but I never held the Chair, so there has
been some confusion there.
Mr. RABIE:What did your teaching of international relations involve?
Mr. MANNINGI: must try to be brief with this, Mr. President. From the
outset, I saw my subject not so much as a branch of history or of con- WITNESSES ANDEXPERTS
603
ventional political science but rather as a spccies of political sociology,
focused, as it was, on human society in its widest dimension, its world
\vide dimension. I saw it in principle and in fact as a kind of sociology of
the social universe, a cosmology of the social universe perhaps.
Mr. RABIE: Could you explain that a little further, please?
Mr. MAN~ING:Perhaps I can best reply to that question by recalling
my continuing interest in international law, the very existence of which
seemed tome to presuppose the idea of a society of sovereign States. In
this idea there is, at least for diplomatie purposes, a society of States, and
it was \vith the way of life in general, as opposed to its specifically legal
aspects, in that society, that the subject of international law relations
would, I judged, be suitably concerned. Basic, therefore, to the study
of international relations, was the understanding of the characteristics of
that society, or as I rather prefer to call it that quasi society, of sovereign
States. lt is the milieu in which international happenings occur. Among
other matters coming within the purview of the subject are the workings
of international institutions, including, for example, the mandate and
trusteeship systems, and such developments in the domestic affairs of
States as have an impact upon international issues.
Mr. RABŒ: Professor Manning, in what ways do you consider yourself
to have furthered the development of your subject?
Mr. MANNING:One of my first concerns was to stress the importance
of an exploratory approach to the interprctation of social phenomena as
opposed to an ideological one. Later, I came increasingly to insist upon
the need for an essentially philosophical treatment of certain sorts of
issue as, for instance, the basis and nature of the binding force of law,
questions of international morality, and the elucidation of concepts such
as group personality, nationhood, world opinion, self-determination,
sovereignty and the like.
I also found myself emphasizing the relevance to an understanding of
politics and especially perhaps of international politics of what is somE,
times termed the sociology of knowledge, though I prefer to call it the
sociology of appreciation. I drew attention in this regard to what I have
called the iron law of partisanship, meaning thereby, the influence of
men's political sympathies upon what they see and what they say and,
in general, I found it necessaty to stress the role of prejudice, of fashion
and of public and private expediency in the determining of what men
believe and what they disbelieve of what they read and what they hear.
The purpose of it all is, I suppose, to make a man a connoisseur as far as
possible of what are sometimes called world affairs. Necessary to a
connoisseurship of international situations is the clear perception of the
alternative courses effectively open to political decision makers at any
given point. Dispassionate enquiry into the nature of these alternatives
demand an everlasting awareness of the differcnce between two angles of
mental vision, the angle on the one hand of the detached investigator and
the angle of the man of political affiliations on the other. Appreciation of
this distinction can be helpful.
Mr. GROSS:Mr. President.
The PRESIDENT:Mr. Gross.
Mr. GROSS:Forgive the interruption, Sir, but if the witness is being
sought to be qualified as an expert on ail of the concepts, doctrines, etc.,
to which he has now been referring, Sir, there would, I think, be an ob
jection in respect of this statement, if it is intended as a basis for qualifi- SOUTHWESTAFRICA
tion as an expert to testify with regard to the general range of matters
he has covered. If this is a statement of personal credo and if the Court
wishes to hear it on that basis obviously, Sir, the Applicants would have
no objection to that.
The PRESIDENT:It is a Iittle unusual, the way in which you are quali
fying Professer Manning as an expert. It is perfcctly permissible for him
to indicate that he has pursued the course of the study and personal
investigation in respect of these particular matters, but so far it has very
largely been an expression of his own philosophical approach to certain
matters of world affairs.
Mr. RABIE: With respect, Mr. President, opinions will be expressed in
the light of these studies. My next question will be whether the norm, if
I may call it that, and I will quote from the Applicants' own replies so
that therc can be no misunderstanding of what is intended, whether his
subject has any relevance to the issue raised in the formulation of that
norm, and Professer Manning will then say whether he regards his subject
as being relevant to that issue.
The PRESIDENT:You may, as I have said, qualify him by indicating
the extent of his expert knowledge, but that is something different,
Mr. Rabie, from the witness stating some of the things that he believes
in, or some of the things which have interestcd him, unJess he has
pursued his studics, which I presume he has. It can be covered very
simply by a question to Professor Manning: have these things of which
he has spoken been the subject of special study on his behalf, and, ifso,
what has becn the nature of that study. Why do you not put a question
such as that to Professor Manning? ·
Mr. RABIE: With respect, Mr. President, he has said what sort of thing
he has studied-what his studies have taught him. I now propose to ask
him whether his studies have any relevance to this norm.
The PRESIDENT:Very well, the question of the value of his testimony
as an expert will depend upon the extent to which you qualify him and
you must take your own course, Mr. Rabie.
i\Ir. RABIE: As the Court pleases.
Mr. GROSS:Mr. President, the Applicants specifically abject to any
question basecl upon the reference to "this norm" or any similar language
characterizing the purpose of the questions.
The PRESIDENT:I think we must first wait for the question, l\frGross.
l\.fRABIE: Mr. Manning, my question to you is this: It has been
contended in this case that there exists an international norm or standard
which prohibits the official-and nowI quote from the Reply, IV, page 493-
allotment of "rights, duties, privileges or burdens on the basis of member
ship in a group, class or race rather than on the basis of individual merit,
capacity or potential". Now, I would like you to say whether your subject
has any relevance to this issue-ta the issue as defined?
The PRESIDENT:Yes, Mr. Gross?
I\Ir. GROSS:Mr. President, objection on grounds stated previous1y,
specifically reaffirmed to this question, to which there is added the
further objection that the question calls for a conclusion of law, an inter
pretation of the Applicants' pleadings and, even in that context, the legal
argument of the Applicants is not fairly set forth in the Respondent's
out-of-context summarization.
The PRESIDENT:Mr. Gross, the quotation, if my memory serves me
correctly, istaken from your Reply, IV, page 493. WITNESSES ANDEXPERTS 605
Mr. GROSS:l\Ir. Rabie quoted one sentence.
The PRESIDENT:\Vell, after ail, the value of the question will be deter
mined by the Court. If ?!IrRabie does quote out of context, or not fully,
then the value of the evidence will be judged accordingly, but I do not
see that ;\frRabie can be prevented from putting the question to the
witness as to whether any words-using words taken directly from the
Reply-have been the subject of a study of the witness.
Mr. GROSS:lt is the Applicants' respectful submission that the quota
tion of this sentence does not fairly reflect the context and legal basis of
the Applicants' arguments. That is one added basis for my objection, Sir.
The PRESIDE~T:That w:illbe judged by the Court.
Mr. GROSS:Thank you, Sir.
The PRESIDE~T:Continue, Mr. Rabie.
Mr. RABIE: Professor Manning, would you say whether your subject
has any relevance to the issues so defined?
J\IrMANNING:Yes, Mr. President, I consider especiall y relevant my
analysis of the long-debated problem, and, for the sociologist, the crucial
problem, of the nature of groups and the group personality.
Mr. RABIE: \Vould you be a little more spccific, if you can, please?
Mr. MANNING:The first thing I would say about group personality is
that it matters. Group personality matters. It is a trcmcndously impor
tant element in that reality which it is the political sociologist's particular
business to explore. The next thing is that, while group personality is
sufficiently realto be tremendously important, the question is in what
sense is it real? It is to this question that I try to give an answer. Man's
membership of various groups is, of course, a mat ter of common observa
tion and everyday language takes it for granted. A group is, of course,
composed of its individual members. lt is thus a human aggregate. The
question is whether it is that and nothing more? And if it be something
more, in what sense is it more? The answer I would offcr to this question
of the nature of the group, and of group personality, hinges upon a
distinction I have leamt to draw betwccn threc stages, or levels, in man's
apprehension of social phenomena.
In stage one, he uncritically accepts, without reflecting upon just what
is involved, the imputing of personality to an endless variety of groups,
from the family and the tribe to the nation and even to "the world".
This stage I am disposed to label the stage of primitive imprcssionism
because that is how I think things tend to strike us at first.
Next, cornes the attitude which insists that the only persons are in
dividual human beings. Adolescent scepticism is what I call this, or naive
realism.
The third stage is one which I think of as that of sociological maturity,
or sophisticated realism. It is the stage which cornes to terms with
sociological reality, in other words, with the way in which matters are
viewed in practice in social life. This stage perceives that while the family,
or the committee, as distinct from its sevcral members, is indeed not
objectively a persan, it nonetheless is a person in effect. For socially
important purposes, it is as if the family, or the sovereign people, or the
electorate, were indeed a person, so, though it is not in the literai sense of
the term a persan, not, that is, a person in point of fact, it may yet be a
person in point of theory, whether it be legal theory, or constitutional, or
diplomatie theory or, what I would like to refer to as socially prevalent
social theory, theory prevalent in society about the nature of society.606 SOUTH WEST AFRICA
Perhaps the term "theory" in this context may be misleading for, as I
have said, the personality of the group is a sociological reality. What I
am talking of is the body of largely unverbalized, largely unarticulated
assumptions in the light and on the basis of which the affairs of com
munity life are ordinarily conducted. One finds in this sphere certain
socially indispensable notions, whose value lies in their social utility
irrespective of their literal truth, for it is not merely by a fiction of the
law that a college,for instance, may be said to be a person. Man's propen
sity for the personifying of abstractions, organizations, institutions and
groups is, I think, more deeply rooted in him than the mere conventions
ofthelaw.
The attribution of personality to the group is thus socially prevalent,
the group being indeed, for important purposes, socially viewed as a
person. Society sees the individual, and he sees and feels himself, not just
as one of a number, but as part of awhole, a-social whole. The individual
becomes aware of himself as participating in the colJective selfhood of his
family, his tribe, his fraternity.e has his image of himself, his image of
the group, or groups, to which be belongs, and his image of his social
cosmos as a whole. His image of his group is held by him in common
with those others who, with him, are the members of that group. Their
collective self-image is a part of what gives them their cohesion, their
solidarity, as a group.
Mr. RABIE: Mr. Manning, is what you are saying now true of every
group?
Mr. MANNING: It is true, but not everywhere and always in equal
measure. The cohesion, the solidarity, of the group, be it the family,
or the nation, is a matter of more or less; a question of degree, depending
on the circumstances of the moment and of the particular situation.
In 1948, for example, when Mr. Winston Churchill called upon Europe
to arise, had Europe been collectively a self, she might perhaps have
clone so.
1\fr.RABIE: Mr. Manning, I really interrupted you when I put my last
question to you. You were suggesting that group personality had a
bearing on the issue to which I have referred. Will you continue with
that, please?
Mr. GRoss: Mr. President, I object to the question for reasons already
mentioned and, if I may, in order to preserve the Applicants' rights, Sir,
with your permission, also confess to a dilemma as to how best to
preserve the Applicants' rights. I feel it is not cleato the Applicants as
to what issue, to what point, this statement, or this type of testimony is
really directed. Therefore, it is difficutoknow whether to reserve rights
of possible cross-examination or whether to object, on grounds of rele
vance, in connection with statements made. References are made that
group personality matters, that group personality is important. The
Applicants consider and conceive that group personality matters and
that itis important. If the witness is addressing himself and his testimony
to a justification of the policy of apartheid with respect to South West
Africa, which is the issue drawn in these proceeclings, with all respect, it
would be helpful to the Applicants to know that that is the case, and
therefore determination could be made, subject to the Court's permission,
as to what should be reserved by way of objection and what should be
reserved for cross-examination, if any, Sir.
The PRESIDENT:All I can say to you, again, at the moment, Mr. WITNESSES ANDEXPERTS
Gross, is, that if you object to what is being said now, then the objection
must be ruled upon in the sense that the Court must indicate to you the
course it will pursue.
lt seems tome that what isabout to take place in thewitness'sevidence
is that it is about to be directed to the norm, upon which you have
directcd a great deai of your argument to the Court, and, reading the
statement which was contained in the letter addressed to you, as Agent
for the Applicants, the course which Respondent is now about to engage
upon is to consider the norm in relation to the welfare of the people of
South West Africa, and it seems tome that the direction of the evidence
is designed to establish that if such a norm were applied it would be
inconsistent with the welfare, the social progress and the development of
the people of South West Africa. That seems to me to be the direction
which the evidence is taking.
:Mr.GROSS:Mr. President, thank you, Sir. At the risk of repetition, and
subject to your indulgence, the norm for which the Applicants actually
contendis not properly characterizcd as a suggested rule of non-differen
tiation. The A;pplicants believe in differentiation, and they believe in
group personahty. The norm for which we contend, Sir, and to which this
evidence apparently is not being directed, is our alternative contention
that an international rule does exist which prohibits official discrimina
tion.
If the witness is attemP,ting by his testimony to support official dis~
crimination on a basis of race, the Applicants would like to know that
with clarity, Sir, if it is possible.
The PRESIDENT:Weil, I think we will have to be a little patient. I
understand the reason why you take objection, Mr. Gross, but whatever
the norm is which you are contending for, the Court will be able to deter~
mine that. And ifthe evidence does not direct itself to that norm, then
the evidence may be quite worthless, so at the moment we must wait to
see to what extent the evidence is connected up with the norm which the
Applicants have put before the Court.
Mr. GRoss: Thank you, Sir. Any objection is noted, is it, Sir?
The PRESIDENT:Oh, by all means, and whatever rights you have will
be protected, Mr. Gross.
l\fr. RABIE:If the Court pleases. Professor Manning, will you continue
with what you have been saying with regard to group personality.
l\fr. MANNINGI: think you asked me whether it had any bearing on the
issue to which you had referred. Yes, I think it has ...
The PRESIDENT:Can I ask Professor Manning this question, it may
clarify it.
Professor Manning, have you read the Reply, at IV, page 493, where
there is set out a norm by the Applicants in full?
Mr. MAN;s;rnGI : believe I have, I have not the page with me now.
The PRESIDENT:Well, I think perhaps it might be shown to the witness
sa that there can be no doubt aboutit; and ask the witness if what he is
about to say is directed to that particular norm, not to any particular
part of it at the moment.
Just take your time and read it, Professor.
Mr. MAN;s;INGP :age 493?
The PRESIDENT:That is right, page 493; it's at the top of the page on
the left-hand side.
l\fr. GROSS:Mr. President, may it be respectfully suggested that page608 SOUTHWESTAFRICA
493 begins with an incomplete sentence and it might be fairer to the
witness, Sir, if it is agreeable to the President, that he start reading from
page 492, where the context actually begins, to the conclusion on
page 493?
The PRESIDENT:Would you commence at the bottom of page 492,
Professor, and read it through until the end of the first main paragraph,
I think, on page 493. That is correct, is itnot, IHr. Gross?
Mr. GRoss: Actually, Sir, it is the third sentence on page 492 and then
down. There are three asterisks and then begins the context in which this
statement appears.
Mr. MANNING:\Vell, Iunderstand it, Mr. President.
The PRESIDENT:You have read it?
1\Ir.MANNING: I had read it some time ago.
The PRESIDE:-:TI :t is just being brought to your notice at the moment,
Professor, so as to lay the foundation for the question which Mr. Rabie
will now ask you. Having read that, is what you are about to say directed
to the norm as stated in what you have read?
Mr. MANNING:I believe it to be, Mr. President.
The PRESIDENT:Well. that is the best you can do at the moment, I
expect.
Mr. GRoss: Excuse me, Sir, for the repcated interruption, but would it
be permissiblc, and perhaps necessary, for the witness also to state wheth
er he has studied the Oral Proceedings, which are of extreme importance,
in the Applicants' respectful submission, and the development and ex
planation of the legal analysis in issue here, Sir.
The PRESIDENT:Mr. Gross, I should hope that the fact that he had
not would not disqualify him from being an expert. If every expert had
to read all that has taken place in this case he would have to take a couple
of years off, I think.
i\Ir. RABIE: Mr. President, may I make my position clear. With
respect, the witness's evidence is being directed to a certain point;jfour
understanding of what the norm or standard is is wrong, the Court will
obviously know how to judge the evidence. Until such time, Mr. Presi
dent, as we are completely agreed as to precisely what my learned friend's
norm is, I would submit, with the greatest respect, that we are entitled
to lead our witness on the Applicants' case as we understand it to be. We,
with respect, have little doubt as to what it means: my learned friend,
on the othcr side, does not agree, but, Mr. President, in my submission,
that does not disentitle us from leading the wit.ness on the Applicants'
case as we understand it to be.
The PRESIDENT:Yes, Mr. Gross.
Mr. GROSS:Mr. President, it is utterly irrelevant what the Respondent
thinks. The Respondent is not testifying, Mr. President. lt is a question
of what the witness understands as to the points to which his testimony is
directed. The basis of our objection, Sir, does not relate to the Respon
dent's understanding or misunderstanding of our contention: that would
be before the Court and has been placed and will undoubtedly be further
discussed, but the question does not arise as it is expressed by the
Respondent's counsel. It is not the Respondent's understanding or mis
understanding, it is whether the witness knows what he is directing his
testimony towards, Sir.
The PRESIDENT:Mr. Gross, my rccollection is that in the transcripts
which are numbered from 31 to 36, on more than one occasion you WITNESSES AN'D EXPERTS
indicated to the Court that the norm and or standards that you were
relying upon were stated at IV, page 493 of your Reply. That is said more
than once. That is what you have stated in your argument. Now, on my
recollection of it I think that it is quite sufficient to show to the witness
what is stated on page 493 to make the evidence admissible, because it is
based upon precisely the norm as stated by you, more than once, over a
period of about five days in those transcripts.
The eviclence will be admitted.
Mr. RABIE: Will you continue please, Professor r..Iannîng.
Mr. MANNING: In this case, Mr. President, one is concerned with the
importance or unimportancc of ethnie groups, and within them of tribal
groups, as well as with the idea of the advanced nation, and the idea of
the people which is not yet able to stand by itse\f. It makes a difference,
and this not merely in philosophical analysis but in administrative
practice and in constitutional planning, whether one thinks of the
mdividual as the only reality, or, of the groupas equally real, or whether
one is prepared to accommodate and embrace within one's social picture
both the primordial reality of the individual and"the social reality, or:
qttasi rcality, of the group: for you fine! two competing dispositions or
tendencies, the one stressing, the other seeking to minimize, the differ
ences between various ethnie groups-the one accepting and paying
respect to the diversity of cultures within the confines of a given terri tory;
the other tending to disregard the multiplicity of lesser communities
within the totality of a country as a whole.
On the one band, thcre will be those who think of the advanced nation
as being jnst a plura\ity of advanced individuals, and a less aclvanced
people as just a collection of individuals who are individually not yet
able to stand bv themselves. That, of course, is what I refer to as "ado
lescent scepticism". Others will think of the nation and the people as
social wholes, and will understand the descriptions "advanccd" and "Jess
advanccd" as attaching to those social wholcs and only in an indirect
and derivative sort of wav to the individual members.
Sorne will think of the" right of self-determination as residing in the
nation as an entity in itself. Others, as something to be claimcd and
exercised by the individual members of the nation. But not even this
latter school of thought, who conceive of sclf-determination as being an
individual's right, will be heard to interpret the expression "a self
governing people" as meaning a multiplicity of individuals, each of whom
governs hirnself. For the institutions and practices o( self-government are
those not of the individual but of the people as a social whole. The "self"
hcrc in question is a collective self:the relevant selfhood is a potcntial
nationhood.
l\fr.RABIE; Professer Manning, what, if any, importance is involved
in the f~ct that personality in the sense you have indicated is ascribed to
an ethmc group?
11Ir .ROSS: Objection, Mr. President, on the grounds previously stated.
The PRESIDE:n: The objection is noted, -1\fr.Gross.
1\Ir.MAr-NING: I think the big point about personality is that no two
personalitics are identical. Personalitics are not interchangeable. They
arc not even commensurable. For every pcrsonality is unique. Persons
arc in no senseto be thought of or treated as fongible things; so conceiving
of groups as persons involves seeing thcm as if they were each one an
individual and possessed of an irreplaceable inclividuality.No two610 SOUTHWESTAFRICA
nations are in ail respects alike; neither are any two tribes, nor any two
ethnie groups. This means that if peoples are to be able ta stand by
themselves in the modern world, it may well be that different sorts of
assistance will be needed by each, and it may be that it is through differ
ent sets of institutions that they will best be led to self-awareness, self
esteem, self-fulfilment, and a capacity for self-maintenance and self
assertion.
Mr. RABIE: Professor Manning, can you give examples from modern
history to illustrate what you have been saying.
Mr. GROSS:Objection, Mr. President, on the grounds previously stated.
The PRESIDENT:Objection noted .
.!\Ir. MANNING:Mine, Mr. President, is in no sense a historian's ex
pertise.I have no acadenùc qualifications in history, but there are certain
situations in the world involving relations between groups and peoples
which are matters of fairly common knowledge, and in view of the
bearing which they have on the subject-matter under discussion Ihave
given thought to them. I therefore feel justified in referring to them as
illustration ofand support for what Ihave been saying.
My contention is that it can be confirmed from history, for anyone
anxious to cornprehend and to make sense of the development of events
in the field of human co-operation and conflict, that collective selfhood is
no mere administrative fiction, but partakes of that kind of quasi-reality
which the political sociologist cannot afford to ignore.
We may not believe in a volksseele, in the soul of a nation, but often
it is asif a nation had, indeed, a soul. Had the British people not been
possessed of something very like a soul, it is doubtful if in the crisis of
1940 they could so confidently have been called upon to pursue the
struggle, "if necessary alone". And the British are not peculiar. What
nation, I asked myself, would admit that it lacks a soul. Be that as it
may, the nation, I maintain, has a collective "self". Nationhood is a form
of collective selfhood. One thinks of the Polish nation, which was deprived
by the Third Partition in 1795 of the last territorial symbol of its nation
hood, yet it remained emotionally and spiritually self-aware under the
inspiration of a shared collective self-image, until on the ruins of three
empires, Poland returned in 1918 to the map as a united and sovereign
State.
1\frRABIE: Mr. Manning, is every country or population of a country
collectively "a self" in your view?
Mr. GROSS:Objection on the grounds previously stated.
The PRESIDENT:vVhat is the meaning of that question, then, Mr.
Rabie? Ido not follow it myself. We mayas well know what you mean.
Mr. RABIE: Mr. President, with respect, it means whether every group
of people necessarily has such an image or a pcrsonality as the witness
has spoken of.
The PRESIDENT: Is the Professor qualified to express that view on his
expertise?
Mr. RABIE: \Vith respect, yes, Mr. President, from his study of inter
national affairsand how people react, I would submit that he is entitled
to express his opinion.
The PRESIDENT:Proceed, Mr. Rabie, that will be a matter for the
Court ta judge.
Mr. RABIE: As the Court pleases.
Mr. MANNING:If the question concems a country as such, I think I WITNESSES ANDEXPERTS 6n
can answer it, Mr. President. In point of diplomatie theory I would say
that it can be said that, for some purposes at least, every country, that
is every State of which diplomatie theory has cognizance is, in principle,
a collective "self".ut for sociology the·position is less clear-cut. Under
certain conditions, it has been said, the only possible form of government
is some kind of oligarchy, as for instance when the people are deeply
divided bv racial, ethnie or caste differences. I think there is truth in that.
SometiÎnes again, peace and order may be maintained among a number
of collective selfhoods through the mechanism of the one-party State. Or
again, there may be government by some external power, such as an
imperial, or colonial, or quasi-colonialist authority. It is when a colonial
authority makes ready to withdraw that the question arises: Who hence
forth shall rule? \Vhat shall be the constitutional architecture of to
morrow's new independent State? Current examples of what I have in
mind are British Guiana and Mauritius. In both of these territories one
fmds the Co-existence of two strongly differentiated communities, being
in British Guiana the rural East Indian and the urban Negro communi
ties, and in Mauritius the Hindu-led working-class majority, and the
general population represented by the Parti Mauricien. In both cases
this co-existence presents the prospect of a struggle for ascendancy,
whether at the conference table in the negotiation of independence, or
subsequently in the working of a constitution which leaves this issue
undetermined.
In the case of Mauritius it appears that it is the Hindu community
which has now prevailed. In the words of the London Times, 25 Septem
ber, even the rnany safeguards that have bcen \\TÎtten into the new
Constitution, leave the general population at a disadvantage if the Hindu
Party does not show quite remarkable humanity and restraint. I have
the quotation here:
"The Parti Mauricien have won a record nurnber of minority
safeguards ... Only time will show if paper safeguards will protect
the minorities frorn the economic discrimination which they allege
would follow the rule of a mainly Hindu Party. In the long run,
minorities anywhere get a fair deal only if the majority which elects
and controls the government is humane and restrained."
The PRESIDENT:Professor, could you tell the Court who are the two
main ethnie groups in Mauritius.
Mr. MANNING:There is on the one hand an Indian majority of some
66 percent., I believe, and the rest are rather a composite community,
rnany of them rniddle-class, propertied, people, rnake up what is called
the general population.
The PRESIDENT:But what ethnie groups are they? Do you know any
thing about Mauritius itself?
Mr. MAKNING:I am not sure whether one would call them ethnie
groups, but there are categories. There are English, there are French,
there are Chinese, I believe, and they make up what feels itself to be a
cornmunity as opposed to the majority community in a "we/they"
situation. "We" the general population, "they" the Indian majority.
The PRESIDENT: In that particular case the general population is made
up of a number of different groups. Small groups some of thern.
Mr. MANNINGI: would think so-yes, Mr. President. But you have the
"we/they" situation. There is not a common "we" which ernbraces the
whole population of the island.612 SOUTHWEST AFRICA
Mr. GROSS: l\Ir.President, it appears from the letter which has been
cited by counsel into the record, that, if I may put it this way, with
respect, that the honourable Court is about to be lcd on a wide tour of
a discussion analysis of agonized social tensions and cultural and racial
problems. The question, therefore, which I raise is in addition to the
general objections already made, as well as the specific ones with respect
to the formulation, the ground, the foundation to which this witness's
testimony is being directed and for which it is being proffered, and is the
question of relevance of, and the reason for, the Respondent's apparent
contention that it is relevant for the witness to circle the globe with
problems of social agony and tension, which apparently is contemplated
in terms of the letter which has been put before the Court.
The PRESIDENT: i\frRabie, the Court will adjourn shortly. I think it
is necessary for you to harness Professor Manning's evidence more
dircctly to the norm which you have quotcd from IV, page 493, of the
Reply. It does not present the Applicants with a proper opportunity to
abject to the relevancc of evidence when you simply give a very general
question and then, in effect, permit the Professor to engage in a long
presentation of vicws, a great deal of which is based upon the views of
othcr people that he has read. So between now and tomorrow I would be
grateful if you would seek to put more direct questions to Professor
Manning in relation to the specific matter of the norm.
[Public hearing of Ij October I965]
rifr. RABIE: Professor Manning, at the adjournment yesterday you
had referred to British Guiana and Mauritius. My ncxt question to you
is this: do you say that when there is more than one ethnie group, each
with its own sense of identity, in a particular country, one must neces
sarily and always have differential arrangements?
Mr. MANNING: I would say not necessarily.
The PRESIDE:-.'TI:s that the question?
Mr. RABJE: Yes, Mr. President.
Mr. GROSS:Mr. President.
The PRESIDENT:Mr. Gross.
Mr. GROSS:Excuse me, I did not understand that. that was the ques
tion, but now that I understand it is, may I note the objection on grounds
previously stated?
The PRESIDENT:Yes, certainly. Did you want to develop the objection
at the moment, Mr. Gross?
Mr. GRoss: Sir, the objection is that the foundation upon which the
testimony is laid, and in this spccific context, with respect to this ques
tion, the doubts concerning the relevance of the question to. the issues
framed, the ambiguity which is implicit in the question in terms of its
relationship to any issue drawn by the Applicants, in view of the fact
that "differentiation" as such is not in issue, and this would seem to the
Applicants to be a specific illustration, justifying the general objection
which has been previously made and noted.
The PRESIDENT:Mr. Rabie, vou first drew the attention of Professor
Manning to what appcars on ÏV, page 493 of the Reply commencing
from the bottom of page 492; then, from there on, the witness was in
effect allowed to take his own course, to give the indication of his studies
and his general views upon the question of groups. Is it not possible to WlTNESSES AND EXPERTS 613
get back again to the norm as stated at page 493 of the Reply, ask him
in relation to that particular norm the necessary questions to base his
opinion, and then for him to express the reasons why he reaches that
opinion? What you are doing is simply saying "Weil, last time when we
finished you were speaking about this-now, will you just go on?"
kind of thing. But the correct way to present evidence of an expert, if I
may be forgiven for saying so, is, normally, first to ask his opinion in
relation to a particular issue which is in dispute, and then seek his reasons.
Is this not possible with this witness? I drew attention to that yesterday,
but no attention appears to have been givcn to it overnight.
Mr. RABŒ: 1Ir. President, with respect, we take the Applicants' case
to be that there is to be no differentiatio)ly learned friend said yester
day that they believed in differentiation-1 forget his exact words, but
that was the import of it. We do not understand their norm to be that,
and what the witness is trying to say, .Mr.President, as I understand him,
is that when you look at what bas happencd in various countries one will
observe that differences make it necessary to differentiate, and the
examples to which he has referred are cases in which there have bcen
difficulties because of differences between various groups: and what I am
trying to get from him is to refer to countries whcre diffcrcnces have
either led to differentiation or wherc, in bis view, there ought to be
differential measures.
The PRESIDENT:That I understand, Mr. Robie, but ifyou look at
page 493 it would appear, that is all I need say at the moment, that the
norm upon which the Applicants rely and which they stated they relied
upon during the course of the Oral Proceedings, particularly referred to in
the transcript and to which I drew attention yesterday; they anchored
themselves, if I may use that term, upon the norm as expressed at page
493-that, they said, is the norm. If you prescnt evidence in respect of
some other norm, or if you misconstrue the norm which the Applicants
are relying upon, then that is a mat ter which is foryou alone to determine.
It is difficult for a court at this stage, before it proceeds to deliberation,
to say certain evidence is quite irrelevant, but if you misconceive the
norm which is relied upon by the Applicants, then whatever the conse
quences are is a matter entirely for yourself. That is all I need to say to
you.
l\Ir.RABIE: l\Ir. President, after having dealt with some more examples
I am going to take the witness to South West Africa and ask him what he
knows aboutit, the different groups there, and then having doue that he
will proceed to say what in his view would be the effects if one were to
apply this suggested norm.
The PRESIDDIT:That may of course be directly tied up with the norm
as stated at page 493 of the Reply. Mr. Gross, your objection is noted
and, as I indicated yesterday, whatever your rights are they are pro
tected.
Mr. GRoss: Thank you, Sir.
The PRESIDENT:Proceed, Mr. Rabie.
Mr. RABIE:Mr. President, are you permitting me tolet the witness say
what he wishes about these examples before wc get to South West?
The PRESIDENT:You just ask him the questions, Mr. Rabie.
Mr. RABIE: Yes, Sir. Professor Manning, will you be brief about this,
and just say what you wanted to say about the other examplcs to which
I refer? SOUTH WEST AFRICA
614
Mr. l\lANNING: I would say not necessarily, but in some cases it may
be necessary; one may simply say it is always a possibility that where
there is more than one ethnie group, differential arrangements will be
required.Each situation demands its own analysis. So long as an extemal
authority retains responsibility for an area wherein co-exist a plurality
of self-hoods, thesemay continue together in comparative peace. So it
was in British India until in 1947, when the decision was announced in
London that power would be transferred at a date not lateÎ than June
1948; then it was that it was found necessary not simply to think in
terms of safeguards but to envisage the creation not of one new State
but two. In Ruanda-Urundi too, as is well known, it was the United
Nations itself that decided upon partition as the indispensable concomitant
of independence. A single territory while under Belgian mandate, the
area was now divided into the two States of Rwanda and Burundi. The
question arises whether even so they went far enough. In the case of
Cyprus it is evident that since the almost complete withdrawal of British
sovereignty the formula has not yet been discovered for ensuring
a peaceful co-existence ofthe Greek and Turkish sections of the popula
tion.
Mr. RABIE: Professor Manning, could you give us an example, or what
you consider to be an example, of what may happen when sufficient
recognition is not given in constitutional arrangements to the existence
of different ethnie groups in a country?
Mr. MANNING: Where the population of a country is a single people
with a single, all-inclusive self-hood and a single collective self-image,
there is naturally no problem. The difficulties arise when within the
ambit of a single polity there are included one or more less dynamic
collective self-hoods whose presence and potentialities are not sufficiently
allowed for in the given constitutional scheme. Examples of this are not
hard to find, and they all provide an object-lesson for the political
sociologist, Imay say. In Canada, for instance, where the constitution
reflects no positive recognition of a distinct and irrepressible self-hood
within the compass of the projected all-Canadian nationhood, there is
now at work a Royal Commission on Bilingualism and Biculturalism.
According to its recently published preliminary report Quebec as a
whole is showing a very clear determination to achieve "liberation". The
report cites a French-Canadian lawyer who declared (p. 99) that
"When we French-Canadians speak of equality we do not mean civil
rights at all, we mean collective national rights"; and I have other
quotations in the same vcin from that report. Here is an example of a
collective self-hood inadequately allowed for in the constitutional system,
and so confronting contemporary statesmanship with a challenge.
Mr. RABIE: You refer to Canada as an example-are there any others
you wish to mention?
.Mr. MANNING: I would like to cite briefly three other cases, each in its
way, to me, very instructive. In Belgium, under the Constitution of
1831, the two communities of the Flemings and the Walloons were
grouped together into one. In. particular the self-hood of the Flemings
seems since then to have proved increasingly unassimilable. At this
moment there is under consideration a proposed revision of the Belgian
Constitution in such a sense as to reguire the support of two-thirds of
the Deputies from each linguistic group for the passage of any new
legislation seen by either group as capable of affecting the balance as WITNESSES AND EXPERTS
between them of the present constitutional structure. This matter is
referred to in a recent report of a Belgian commission, Senate Commission
Report No. 278 dated 30 March 1965.
In the United Kingdom again experience has given proof of what may
happen when an unassimilable, lesser collective self-hood is sought to
be retained without special recognition within an otherwise sufficiently
homogeneous national community. At a time when the differences
between Scots and Welsh and English had dwindled to the dimensions
of a kind of family joke, the collective self-hood of the Irish so asserted
itselfthat in the end, after bloodshed, the British and Irish peoples came
to a parting of the ways. One may wonder whether under sociologically
more appropriate constitutional arrangements this outcome might not
have been averted.
There is a furthercase, i\:lPresident, that I feel warranted in referring
to, as belonging within my own experience, and so entitling me to daim
some undcrstanding of what this problem I have been discussing can
mean. In South Africa, too, where we have the English and Afrikaans
speaking communities standing very near to each other in standards of
civilization,manner of living and so forth, our attempt since 1910 to
build a nation has been affected by the presence of at least one collective
selfhood not envisaged in the original plan-1 refer to the Afrikaner
people. There have been, at times, considerable strains and stresses,
sometimes affecting one group, sometimes the other. Although progress
is being made along the road of nation building, it has taken a long time
and we are not at the end of the road yet. The essential point, however,
as I see it, Mr. President, is that the enterprise was initiated by the two
groups working together. Itwas not something prescribed for them from
outside. And this, inmy view, is a major reason why we are already so far
along the road to full success in our undertaking.
Mr. RABIE: Now, Professor Manning, in the light of what you have
said so far, I am going to ask you what you think of the applicability in
South West Africa of the Applicants' suggested norm to which we
referred before but, before doing that, will you flrst indicate to the Court
on what factual basis you intend to proceed as far as South West Africa is
concemed?
Mr. MANNING:I ought perhaps to begin by saying that I do not daim
first-hand knowledge or expertise about details of conditions in South
West Africa. But I have read a fair amount about the Territory induding
the descriptions in the Respondent's Counter-Memorial and in the
Odendaal Commission report of the composition of the population of
South West Africa. I assume the correctness of these descriptions for
the purposes of the views I am about to express. The Territory would
appear to me to be a veritable continent in miniature, inhabited by a
diversity of peoples not in general yet able to stand by themselves in the
world. Even so, they are, I would gather, fully conscious each of its own
distinctness from the others. Individuals in general do very well know of
what group they are a part. I do not assume that the group consciousness
of these scveral communities is as yet in the nature of a national con
sciousness. In some cases it may well be. For instance, with the Ovambo.
But that is nota necessary part of my theme. My concem is simply with
the diversity of these ethnie groups and the unmistakably separatè
identity of each.
Mr. RABIE: Now, Professor Manning, I now ask you what, in your616 SOUTH WEST AFRICA
opinion, would be the effects of the application of this nonn in South
West Africa?
li.IMANKISG: I would likc to look at this matter from two related,
but independent, points of view. The first concerns the present, and the
conditions for the development towards full maturity of the various
ethnie groups; the second concems the future, and the desirability of
ensuring to the various peoples, as they reach the necessary stage of
theirdevelopment, the fuIIest opportunity to make their own independent
choices in respect of their own political future.
Mr. RABIE: Now, what do you say about the present-would you first
deal with that please?
Mr. MANNING: Had there been in South West Africa an ethnically
homogeneous population, ail at a more or less identical level of develop
ment, I can conceive that the application of a rule of non-differentiation
in the regulation of their lives might well have been propitious.
Mr. GRoss: .Mr.President, the reference to the "rnle of non-differentia
tion", with respect, Sir, is counter to what is understood to be the point
to which the evidence is directed, as has been clarified by counsel-the
point is simply noted to avoid confusion and to make it unnecessary to
cross-examine on this point.
The PRESIDEXT:I appreciate that, Mr. Gross, but whether you cross
examine or not is a matter for your own choice. The Court expresses no
view. Mr. Rabie, the words "norm of non-differentiation and non
discrimination" sometimes did not appear to be, at least to me, clear;
whether it rneant group differentiation or whether it mean the differentia
tion between individuals or whether it meant a combination of both,
and then fi.nally, it appeared for the first time, defined at IV, page 493,
of the Reply. Is it not important that in seeking to make Professer
Manning's evidence as an expert relevant, you avoid the mere use of that
phrase unless it means precisely what is stated at page 493? If Professor
Manning says: when I use that term I have in mind the defi.nition given
at page 493, well, that then is ticd clcarly to the norm as so stated. If
you simply leave it at large then much will depend upon the details of
his evidence, whether it is relevant to the norm stated at page 493-do I
make myself clear? .
Mr. RABIE: Yes, .Mr.President. I have taken the witness so far to refer
chiefly in any event to differentiation between different ethnie groups.
He will later answer the question on differentiation between individuals.
The PRESIDE:-:T:\Vell then proceed, li.Ir.Rabie.
Mr. R,rnIE: \Vill you proceed please, Professor î\lanning?
.Mr. MANNING: What I cannot subscribe to, Mr. President, is the
app1icabi1ity of such a rulc where one is dealing not just with one com
munity but with several togethcr. The concept of non-differentiation is
tome the concept of non-recognition, non-recognition, that is, of relevant
differences. To treat ail the peoples alikc might perhaps be administra
tively quite convenient, once you had decided whose needs and aspira
tions were to be taken as typical of the needs and aspirations of all;
once you had decidcd, that is, whcthcr to trcat the \Vhites as ifthey were
Bushmen or the Bushmen as if they were Whites or both as if they were
neithcr. But I fi.ndit hard to believe that it would provc conducive to the
spcedy development and greater well-being and progress of ail. My
difficulty about the suggested rule is much the same difficulty as I would
fcel about any other essentially ideological or doctrinaire approach to WITNESSES AND EXPERTS
this problem of promoting the we11-being and social advancement of
relatively under-developed peoples. This task of promoting their well
being seems to me to be one of social gardening rather than of social
engineering. The advancement of peoples cannot be blue-printed in detail
beforehand on a drawing board. What it calls for is a tentative, clinical,
sociologically pertinent treatment.
Mr. RAnIE: \Vhat do you mean when you say "sociologically perti
nent"?
Mr. MANNING:Given the composition of the population of the Terri
tory and the duty of the South African Government to promote well
being, it would seem ta me only logical to look at the needs of each group
separately and sa far as possible to deal appropriately with each one's
important needs. Only sa will one be able ta give to each groupa height
ened scnse of and a more Iively pride in its own idcntity, enabling it
through the modernizing of its own traditional institutions ta move
forward towards a genuine self-determination in a world and a South
West Africa made safe for diversity. How, I ask myself, can the well
being of these variously significant peoples be promotcd if their individ
uality as peoples is not made for them the basis of their expanding se1f
esteem? How shall the Ovambo, the Nama and the rest of them continue,
without a sense of frustration, to insist on being authenticly themselves,
if administratively they are treated as if ail interchangeable. At the
prescnt time, it is, of course, between the European and the non-Europ
ean groups that the widcst diffcrences in levels of civilization and ways
of life obtain: but, even where there is no European element in the
Territory, my view would still be the same. For it is by giving to each
ethnie group its indcpendent opportunity to flourish and ta grow that
the stage will be soonest reachcd when, with due undcrstanding of the
choice that it is making, it may decide what path ta follow in the further
pursuit of its own ideals.
Mr. RABIE: Now, Professor l\fanning, you have been speaking of the
devclopment of the groups up to now, what have you to say about well
being and development of the individual?
Mr. l\L.\NNING: It is true that what one has been considering sa far is
how far it is conducivc to the well-being of an ethnie group or people to
further the development of its corporate feeling, its group consciousness,
its sense of being not just a human aggregate but a community, with
traditions, with a culture, ,,.,ith a future of its own. ln my vicw it is
salutary to do this, not merely for the advancement of the group, as
distinct from its members, but also, and perhaps more importantly, for
the sake of the maturing personalities of the individual members of the
group. Though there could no cloubt be exceptions, it is, I take it, a
truism that in general, it is in community that human personality finds
its earliest and most spontaneous fulfilment. The persona! self-image of
the individual has its most natural development if vitally tied in with
the collective self-image of the social whole. One might almost suggest
it as a maxim-take care of the dignity, the maturity and the self
assurance of the group and the clignity of the individual will take care of
itself.
Mr. RABrn: I am now coming to what you describecl earlier on as your
second point of view-that is the one concerned with the future. What
have you to say about that?
Mr. MANNING: This follows immediately, itr. President, from what I6I8 SOUTH WEST AFRICA
have been saying about the dignity both of the individual and of the
group. It is, in my view, necessary to the dignity of every ethnie group
that it be given the right of self-determination. Indeed it is as much for
this reason as for any other that I have such doubts about the suggested
rule of non-differentiation, for a rule of non-diffcrentiation seems to be
radically incompatible with the essential idea of self-determination as
this should, in my opinion, be understood. In fact, I can see three distinct
stages or contexts in which, in one's promotion of the process of self
determination, one might find oneself embarrassed by such a rule.
Mr. RABIE: Will you deal with those stages in turn, please? Take your
first one.
:i\fMANNING:The first takes a Jittle longer than the second and the
third, I think.
What I have referred to as the incompatibility of the two philosophies,
the philosophies of self-determination and of non-differentiation, is not,
I think, generally acknowledged. Indeed, it is, I suppose, in the name of
self-determination that the suggestion is sometimes made that the
question of the eventual destiny of the territory should be referred for
decision to the population, or to the spokesman for the population, as a
whole. The inhabitants of the territory would, on this basis, be treaterl
as if ail alike,their membership of different communities being ignored,
and the combined membership of all the different communities being
lumped together and treated as if together composing one single com
munity only. And this in the name of self-determination!
But that, I am afraid, Mr. President, is not at aII my understanding of
what self-determination essentially means. The idea of self-determination
presupposes, I should myself have thought, the existence of a given self,
or selves, whose possible aspirations to self-rule are to be ascertained and
given effect to. But when two or more communities are lumped together
into one, what happens to their respective self-hoods and their daims to
self-determination and the opportunity for self-mie? In their stead, there
is erected a new svnthetic unit, an artificial self; and it is to this sociolo
gical monster that the opportunity for a so-called self-determination is
accorded. Thus is there made a mockery of the very principle of self
determination as I would think it should properly be understood. The
fact' is that for a group to be joined with other groups before it has
achieved the needed understanding of itself and its situation will not
necessarily conduce toits well-being. For the result may be to land it in
the predicament of those who, having no developed self-hood of their
own, find themselves at a disadvantage in their association with others
who, in the strength of a mature collective self-hood, know precisely what
they want and how they mean to get it.
If groups for whose well-being a Mandatory is responsible are to be
launched in more or less indissoluble union with others, onto the waters
of independence, I think it should be as a result of their own uninhibited
choosing and not in consequence of a decision made on their behalf when
they are not yet mature enough to be,fully party to what is being done.
There is ail the difference in the world between a marriage between
partners who have freely chosen one another and the kind of child marriage
that is, I believe, still the custom in certain parts of the world.
?lfrRABIE: Will you proceed there to what you call the second stage
of context?
Mr. MANNINGT : his stage is reached if self-determination, in the sense WITNESSES AND EXPERTS 619
of self-deterrnination for the several ethnie groups, is not precluded at the
first stage.
Suppose then that it is accepted that until the day when any given
community will be qualified to participate, in full awareness of what is at
stake, in the determination of what its future is to be, the ùnique and
independent self-hood of each community must be respected and
maintained. Suppose that this principle, for me axiomatic, is conceded,
what for any given community is to signalize the arrivai of that day?
And is the rule of non-differentiation to preclude the application of
different measures for the speedier advancement of the several com
munities and their preparation for constitutional change? Is the entire
convoy to move with the slowest ship? Is self-deterrnination for com
munity A to be delayed until community B is prepared for it as well, or
is self-determination ta be thrust upon community B because the time
has corne for community A to have it?
Mr. RAsrn: Now, finaUy, Professor Manning, your third stage of
context.
Mr. MANNING: The third possibility arises, Mr. President, in the event
that ships are not required to move in convoy, and that, whether simul
taneously or at different moments, self-determination is being accorded
to each of several communities in its own independent right. What
happens then? Self-deterrnination, if it means anything, means for me
the free exercise of a choice; and, if free, a choice may go one way or it
may go another. This means that with self-determination different
groups might go different ways. I wonder how such a result could, under
the regime of a rule of non-differentiation, be endorsed and implemented?
If the mandatory power is to be debarred from differentiating, how is it at
one and the same time to give effect to the choices of more self-deter
mining cmrununities than one? We cannot assume that the choices they
make will turn out to be all the same.
Mr. RABIE: That, Mr. President, concludes my examination.
The PRESIDENT: Mr. Gross?
Mr. GROSS: Mr. President. Mr. Manning, in accordance with the
procedure, I shall attempt to cross-examine you on the basis of your
testimony. With regard to hastily scratched notes here I may misquote
or distort-but if I do, Sir, will you please correct me. Any such mistakes
will be unwitting.
First of all, Sir, may I ask you, Professor Manning, whether, in your
study of the Applicants' contentions, particularly as set forth on IV,
page 493, in the context of the arguments to which that page refers,
would you please be good enough to statc whether, in the first place, you
consider that your evidence relates to both branches of the Applicants'
case and, if I may, Sir, specify that for ease of understanding. Do you
consider that your evidence relates to that major branch of the Appli
cants' case which poses the theory that Article II of the Mandate should
be interpreted in the light of certain standards to which page 493 refers
or, secondly, that your evidence also is intended to relate to the alter
native and cumulative contention that such standards have, by reason-of
general applicability, achieved the status, legally speaking, of a rule of
international law quite apart from the question of the interpretation of
the Mandate as such? Do you understand the Applicants' contention to
be that, Sir?
Mr. MANNING: I have been tempted, Mr. President, to remind myself620 SOUTH WEST AFRICA
that I once had some legal training and to interest myself in the strictly
legalistic aspects of the case now before the Court, but it was in relation
to the possibility of appearing as a witness that I really addressed myself
to these problems and, perhaps, it is over-simplified but I did indeed
address myself to the question of whether a norm of non-differentiation
would be in the interests of the well-being of the peoples of South West
Africa. This, I would claim, is the point to which my evidcncc relates,
and is germane, and is relevant. It is not for me to judge whether I am
right in this, or what the value of my evidence is, but I have understood
my task to be to do some thinking about what would happen in South
West Africa if a rule of non-differentiation was sought to be applied.
Mr. GROSS: Sir, of course I think the honourable Court will fully
undcrstand, as I myself do, that it is not appropriate to engage in a
colloquy of a legalnature with a witness as distinguished a lawyer as you
are, Sir, as I know, for many years, but my question is what your under
standing is of the point, or your intention with respect to the point, or
points, to which your evidence is directed, what you wish the Court to
infer your expert opinion to relate to. In referring to what I describe as
the two major alternative branches of the Applicants' case, I was simply
asking you, Sir, without reference to the merits, or validity, or otherwise,
of either major branch of the Applicants' case in this respect, whether
your evidence was intended by you to relate to the first major branch,
which is expressed and clarifi.eclin the Applicants' pleadings, the standard
which we asscrt-the Applicants assert-should be applied by the
honourable Court in interpreting the obligations of Article II of the
Mandate? \Vas your testimony intended to be clirected toward that
branch of the Applicants' case, in your understancling, Sir?
Mr. MANNING: I think I shoulcl be more comfortable in trying to
answer that question if attention could be drawn to particular statements
I have made. J might address my own mind to the question whether they
were relevant.
Mr. GRoss: \Vell, Sir, may I ask you whether, generally speaking, in
any statement you have made, that you can recall, and I am sure you
can recall them better than I can from my scribbled notes, was it your
intention to relate to, by refutation, or othenvise, that aspect of the
Applicants' case which rests on the contention that Article II of the
Mandate should be interpretecl in the Iight of certain standards which
are referred to on page 493 (IV)?
Mr. MANNING: I have thought of this case as one of what sometimes is
called mixed fact and Jaw and I have not myself been addressing my
mind to the legal side of this question. I have seen the point as arising in
this shape: supposing it were deemed incumbent upon the Mandatory,
or had been deemed incumbent upon the Mandatorv, to avoid differen
tiation as between groups, what would have becn the consequence and
would it have been for the wcll-being of the peoples? If this was not
germane, then I would judge that my evidence had been of very little
value.
Mr. GROSS:Sir, for the sakc of clarity, clidI understand the phrase you
used to be "differentiation between groups"; is that what I understood
you to say? I am not trying to put words into your mouth, I am not
sure that I got your wording. \Vould you mind repeating it, if you can
and ifthe President permits?
Mr. i\IANNIKG: I think I referred to differentiation in the allotment of WITNESSES AND EXPERTS 621
rights, burdens, etc., on the basis of the fact that there are a multiplicity
of groups and they are not ail interchangeable. This is the way I perhaps
rather crudely formulated the question for myself.
Mr. GROSS: Now, Sir, in connection with the description of the content
of the standards for intcrpretation and the norm which is asserted by the
Applicants, alternatively and cumulatively, to have developed in the
international community, in connection with the paragraph to which
the honourable President called your attention and to which you testi
fi.ecl,at page 608,Supra, of the verbatim of yesterday that you had read
and that what you are about to say was directed to the norm as stated
in what you had reacl-1 refcr to the colloquy between the honourable
President and yourself at page 608 of yesterday's verbatim, and your
answer was "I bc1ievc it to be, Mr. President". Did you, Sir, in that
reading, consider, in the context of the honourable Presidcnt's question,
the foliowing: that, in addition to what was read by learncd counscl
yesterday ... Would the witness care to have a copy of the Reply, :\'Ir.
President?
The PIŒSIDENT: Yes, l think it would be more convenient, ilfr. Gross.
Perhaps you might read him his answer to my question.
Mr. GROSS:I beg your pardon, Sir, I thought I had; I apologîze.
The coiloquy to which I make reference is on page 608 of the verbatim
of ycsterday, and the President said:
"Having rcad that [I believc I am correct in saying that the
reference was top. 493], is what you are about to say directed to the
norm as stated in what you have read?"
Your answer was: "I believe it to be, M.r. President."
Does the honourable President wish any more to be read?
The PRESIDENT: No, that is sufficient, tha.nk vou.
~fr. GRoss: Now, the passage, to which I called your attention, reads:
"In the following analysis of the relevant 1egal norms, the terms
'non-c.liscrimination'or 'non-separation' are used in their prevalent
and customary sense: stated negativc\y, the terms refer to the
absence of governmcntal policies or actions which allot status, rights,
duties, privileges or burdens on the basis of membership in a group,
classor race rather than on the basis of individual merit, capacity
or potential: [and now I call your attention to what was not read
aloud yesterday] stated affirmatively, the terms refer to govern
menbtl polkies and actions the objective of which is to protect
equality of opportunity and equal protection 9f the laws to indivi
dual persans as such." (IV, p. 493.)
Now, pausing there, Sir, with regard to the affirmative context, would
you say that your testimony was directed or intendecl to be directed to
establish that in anvthing, let me say, in any respect, the protection of
equality of opportunity and equal protection of the laws to indiviclual
persans as such, would in any sense be im,llid or not customary or not
applicable to South West Africa?
Mr. MANNING: I should imagine that if this norm, as worded thus, had
been incorporated in the .'.\'landate,there might on some occasion have
been conflict between the requîrements of the normand the requirements
of Article 2 as at present worded, and my testimony related to Article 2
as at present worded, and to whether non-differentiation would always
serve the purposes of Artic1e 2.622 SOUTHWESTAFRICA
Mr. GROSS:Sir, with respect to the use of your term differentiation, do
you use that as synonymous with, let me take the word, discrimination,
or non-discrimination as used in the quoted passage?
Mr. MANNING:I have seen both these terms used in a variety of
contexts with a variety of meanings, but my cursory study of the antece
dents of these proceedings Ied me to the view that non-differentiation
was a less invidious term to use, in that non-discrimination seems to
sug~est that there might be detriment to those who were differentiated
agamst, whereas non-differentiation is completely neutral on this point,
and it was to that that I addressed mv mind because I understood that
that term had been used. •
Mr. GRoss: By whom, Sir?
Mr. MANNING : understood that it had been used at some stage by the
Applicants.
Mr. GROSS:And you understood, Sir, that this was the basis upon
which the Applicants based their contention? ls this what you were
advised by Respondent, Sir?
The PRESIDENT:You cannot ask him that at ail, Mr. Gross.
Mr. GROSS: Iwithdraw that question, with your permission, Sir.
\Vas that your understanding, Sir?
Mr. MANNING:My understanding was that it would be relevant to
testify, in the light of such expertise that I have, on the question whether
it was desirable to avoid differentiating in one's attempt to fulfil the
requirements of Article 2 (2)of the Mandate.
Mr. GROSS:Sir, would your understanding go so far as to say that you
had comprehended or understood the Applicants' case towards the
question whether, for example, differentiation between minors and
persons of age was not permissible under the Mandate-did you consider
that that type of differentiation, to use your phrase, would be intended
by the Applicants to be not permissible?
Mr. MANNING : would not myself have thought so, because I thought
that the issue was really between the groups as such-the groups being
described in such a manner as not to invite attention to this problem of
the minors.
Mr. GROSS:So that the question or the point to which your testimony
is intended to be directed does not, asIunderstand you now, Sir, proceed
from the premise that the Applicants consider or contend that any differ
entiation among individuals is in itself not permissible?
Mr. MANNING:I have no doubt in my mind that these issues might
perhaps be very important in this case, but they were not the issues to
which I directed my mind for the purpose of this testimony.
Mr. GRoss: Now, Sir, would you say that discrimination, if I under
stood your answer to my question correctly, had an invidious connota
tion-was that the point of your comment in your response to my
question, Sir?
l\IrMANNING:No, I think the point of my response was that I had
understood that the term differentiate had corne to be preferred.
Mr. GRoss: By the Applicants, Sir?
l\frMANNINGW : cll, in the course of discussion and presumably by the
Applicants.
Mr. GROSS:I see, Sir, so that was your understanding, Sir?
Mr. MANNING:I understood that it was germane to discuss differen
tiation as such. WITNESSES AXD EXPERTS
l\lr. GROSS:I see. Now, Sir, may I invite your attention to the remain
ing paragraph or two on page 493 which are relevant to the context:
"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 defi.ned in the preceding para
graph. Such a norm is evidenced by international undertakings in
the form of treaties, conventions and declarations, by judicial
dccisions, the practice of States and constitutional and statutory
provisions by which such a norm is incorporated into the body of
laws of States." (IV, p. 493.)
Now, Sir, was it your intention in anything you tcstificd to, or concern
ing which you made comments or expressed opinions, to relate it to this
paragraph and specifically the second sentence thereof?
J\Ir. l\fANNINGI:n so far as I referred to my distaste for any doctrinaire
or ideological approach to a problem which seemed to me to be one of
social gardening, in that sense perhaps I was indirectly referring to this
sort of paragraph. But this related to something which was not my
concern; I knew that the Court would be concemed with this question,
but I did not feel that I was.
!\fr. GROSS:Do I take it from that response, Sir, that your testimony
was not intended by you to be directed towards establishing or otherwise
the correctness or not of the statement, the obligation or conclusion which
is set forth inthe second sentence of the paragraph I have just read?
The PRESIDENT:That is the sentence beginning: "Such a norm ... ",
so you are only being asked whether your evidencc was directed to the
sentence reading: "Such a norm is evidenced hy international under
takings ... ", etc., down to the words "... laws of States".
Mr. GROSS:That is right, Sir.
Mr. MAJ\"NING :o, not at all, Mr. President.
Mr. GROSS:Now, Sir, the next sentence:
"The existence and virtually universal acceptance of the norm of
non-discrimination or non-separation, as more fully described
below, gives a concrete and objective content to Article 2, paragraph
2, of the Mandate." (IV, p. 493.)
Wjth reference to the phrase" ... more fully described below", did you
in your testimony intend to direct your comments to the material which
is ". . . more fuliy described below . . ?"
The PRESIDENT:That is the "sources", is it not?
!\fr. GROSS:That is right, Sir.
The PRESIDENT:So you understand, Professor, that l\fr.Gross is
referring to the varions sources which are described in the pages following,
commencing at the bottom of page 493, and the question is whether your
evidence was directed to the existence and virtual acceptance-the
universal acceptance-of the norm of non-discrimination or non
separation as described in those pages which commence to run from the
bottom of page 493. Is that clear?
Mr. MA~'NINGI: can be quite categorical about that, Mr. President.
My testimony was not in any sense directed to that question.
Mr. GROSS:Sir, the next paragraph: SOUTHWESTAFRICA
"Such a norm of non-discrimination is, moreover, generally
accepted as a minimum norm of official policy and practice on the
part of the government toward persons subject to its jurisdiction."
\Vas any of your testimony, Sir, intended to relate to that comment,
cither to refute it or to affirm it or otherwise?
Mr. MANNING:I think this answer which I am now giving is a reiter
ation of what I have said already.
l\lr. GRoss: Which is what, Sir?
Mr. MANNING\:Vhich was that I have not been directing my attention
to this theory of there having been established an international norm
which was legally binding upon anybody.
Mr. GROSS: Would you say, Sir, that with respect to the general
question or questions to which your evidence was directed you took as a
point of departure, or would be prepared to agree, that in connection
with any norm, in the sense in which it is defined by the Applicants,
specificallyin this case a rule of international law which is stated as an
alternative contention, as I have made clear, there are at least the three
elements: the content, the source and the application? Would you agree
generally that that is the correct description of the major elements of
the norm to which your testimony was intended to be directed?
Mr. MANNING:It sounds to me the sort of thing one might say about
anv rule of law.
~1r.GROSS:Now, Sir, with respect to your testimony, would you advise
the honourable Court whether your testimony was intended to be directed
in any respect to the source of the rule contended for?
!\Ir. 1'IANNINGN: ot at ail.
l\1r. GRoss: And with respect to the content of the rule, or norm, as
described by the Applicants, is your testimony intended to raise a ques
tion about the validity or othcrwise of the description by the Applicants
of the content of the norm?
The PRESIDENT:The validity in terms of law?
l\lr.ROSS:ln terms of anything to which his evidence was sought to
be dirccted, Sir. If my question is not dear ...
The PRESIDExT:\Vell, validity rather assumes that it is a valid norm
at law.
Mr. GRoss: I beg your pardon, Sir. I think I may say with respect
that the President is quite right. By "validity" I meant to say the
accuracy from the standpoint of content, that is, whether or not this is,
from the expertise of the witness. an accurate way of describing a rule or
norm of non-discrimination. Would you disagree with that as a descrip
tion from the point of view of political science?
The PRESIDENT:That is the fust paragraph on page 493 of the Rcply,
IV, Professor. Did you regard, in your approach to your evidence, the
definition of the norm of non-discrimination or non-separation as set
out in that paragraph as being, in substance, an accurate way to describe
content? That is the question, is it not, l\Ir. Gross?
l\lr. GROSS:Yes, Mr. President. Thank you, Sir.
l\fr. MANNIXG:As being accurate?
l\fr. GROSS:Yes, Sir. Did you raise any question concerning its accuracy
or, if I may add with your permission, Mr. President, a~curacy may
possibly not convey my full meaning, so I would like to say: from the
point of view of political science, would you express a view as to whether
this is or is not a valid or acceptable method of describing a norm of WITNESSES ANDEXPERTS
non-discrimination, if you have a view on this point? I do not mean to
force a view, Ilfr. President.
The PRESIDENT:Mr. Gross, I think it is a little confusing perhaps.
Would you permit me to put a question to the witness?
Mr. GROSS:Yes, if you please, Sir.
The PRESIDENT:You will sec, Professor, tha1: the paragraph starts as
follows:
"The following analysis of the relevant legal norms. the terrns of
'non-discrimination' or 'non-separation' are used iri their prevalent
and custornary sense: ... "
and then they are stated negatively and positively, and that is the
definition which the Applicants givc to the terrns non-discrimination or
non-separation. You are not asked to express a view as to whether there
exists in law such a norrn. As I understand the question, it is: when you
refer to non-discrimination or non-scparation, as you did in your evi
dence, did vou refer toit in the same sense or in another content?
Mr. GROSS:That is very good, Sir, thank you very much.
Mr. MANNING: I think I was more conscious of the first branch than the
second bra.nch of this definition in the thinking I gave to this problcm,
and I ought, I believe, to admit that I accepted, for the purpose of my
thinking, the relatively simplificd parnphase of this, which is reflected in
the term "non-differentiation", which l have kept on using. I thought of
this as the question on which 1 ought to testify: namely what would be
the effectif the norm was to be observed, whether it was indispensable
that groups should not be differentiated bctwecn.
Mr. GROSS: I should like to ask you whether you consider that your
testimony, and the theories and points of view to which your evidence
was led, which you have given to the honourable Court, reflects, or is
based upon, objectively determinable standards, irrespective for the
moment of the merits or soundness or othcrwise of anv such standards,
let us say in a political science sense? "
Mr. 11:ANNING1 :1:y disposition would be to differentiate between
standards which have, and those which have not a legal status, the
demonstration that they had this legal status being strictly a technical
matter for lawyers. Alternatively, they might be standards which had
what one might call a moral status, in that they were an element in the
social philosophy of particular individuals, and a matter for discussion,
which could go on indefinitely, among those who adhered or subscribed
to these standards and those who had doubts about them. I am not sure
that political science would tell me very much about this, but philosophy
might tell me a good deal.
i\fr.GRoss: \Vell, whether it is based on one discipline or another, you
are, of course, are you not, testifying here as an expert with regard to
these questions and the judgments you have expressed with regard to the
norm, irrespective of the definition of the norm~would you agrce that
your testimony as an expert was based upon or reflected certain objec
tively determinable standards from political science, philosophical or
sociologicalor any other sense, or wcrc thcy purely subjective expressions
of vicw?
Mr. MANNING:I am afraid that I will not accept that dichotomy, thcse
two alternatives. I would say what my testimony had been about. I saw
mysclf as tcstifying as a purportcd expert in the field to which I have626 SOUTHWESTAFRIC:\
devoted my thought for a good many years, and which I have defincd as
the field of political sociology. Now, sociology is not a branch of philo
sophy and the evaluation of social values is something which lies in the
field rather of social philosophy than of political sociology. It is as a
political sociologist,in my own view, that I have appeared before this
Court, in the belief that political sociology is comparable to economics in
that it is a field in which, when issues arise on which experts may differ,
anybody testifying as an expert can do no more than give the position
which he himsclf has reached and be prepared to try to defend that
position. That is ail that I have corne here to try to do and I hope my
testimony has been appropriately guided by this conception.
Mr. GROSS:I am sure that it has been as helpful as it has been interest
ing but, with reference to political sociology, would it then follow, or
would it not, that your testimony with regard to the relationship between
the individual and the group and the social order-if you will accept that
simplified phraseology-that your testimony with respect to this range
of subjects, which are included under what you describe as "differen
tiation", reflects objectively determinable standards in the field of
political sociology? Would you agree with that or not?
l\fr.MANNING:I would not daim that. I am not sure that I had
allegedly objcctively ascertainable standards in mind in addressing
myself, in what I called an exploratory spirit, to the question of what
would be the effect of applying the norm, as I conceived it, in the condi
tions of the Mandate, governed as the Mandatory is by Article 2,para
graph 2, of ,the Mandate.
Mr. GROSS: But, testifying as an expert on these matters for the
enlightenment of the Court, and referring to the expertise which has
been established in the qualifying questions addressed to you by learned
Counsel, would you say that your testimony (I ask you this as a political
scientist or sociologist or whatever) proceeded in no respect from what
you regarded as, scientifically or politically, standards which could be
objectively determined by you as a basis for your expert testimony?
Mr. MANNINGI: am not sure that I would daim to be able to establish,
scientificallyand objectively, moral standards.
Mr. GROSS: I am not talking about moral standards in this context,
although I would be glad to include those if you wish, but 1 was referring
to standards which a scientist, a political scientist, or an expert in the
field of political sociology, would conclude, on the basis of his studies,
represent certain generally accepted political, sociological standards
which are, letus say, accepted by the fraternity. There are such standards
are there not, Sir, or conclusions reached in your disciplines?
Mr. MANNING: I think in every culture you get fashionable views.
Mr. GROSS:You think that with respect to the disciplines which you,
Sir, represent with such distinction, there are no conclusions ofa gener
ally accepted nature, which may be referred to as standards or principles,
in respect of which specific opinions are formed in a particular context?
Mr. MANNING: I would certainly say that prima /acie one does need to
consider with great respect any views which prevail widely among
thinking people; but in relation to this particular problem, I should have
thought that what one was concerned with was the specific obligation to
promote well-being of the peoples, and this was not something, it seemed
tome, that could be fulfilled by any doctrinaire approach.
Mr. GROSS:Sir, I am sure that was not intended by my question, and I WITNESSES ANDEXPERTS
am trying to simplify the matter, addressing my questions to you as a
political scientist, political sociologist and, generally,n expert in the
fields for which you have been qualified: and I am simply asking you,
Sir, whether, and Iwould have thought, with frankness, that this was
an axiomatic question, but apparent1y I am not addressing it to you in
clear enough terms, whether it is not true that in the social or behavioural
sciences there are generally accepted standards or conclusions, reflecting
the best judgment or thought of the science or discipline concerned, upon
the basis of which an expert would express his vie,vs and reach his
conclusions in a particular context-is that not axiomatic, Sir?
Mr. MANNING:It is not axiomatic to me that an expert could express
views other than his own, however widely they were held.
Mr. GROSS:Weil, Sir, I will not quarre} with you about that. I just
would like to ask one question-how does an expert then safeguard, or
assure the honourable Court that he is safeguarding, against the inevi
table human consequences of emotional bias or other personal predilec
tions or prejudices? I am not accusing you of anything of that sort, Sir,
but how is one to assure against that, again as a matter of behavioural,
or social. or science, or just human affaîrs-how does one safeguard
against that?
Mr. MANNING:WeH, I think, as I said yesterday, that it is very hard
always to bear in mind the difference between the two angles of mental
vision-of the detached investigator on the one hand and of the man of
sympathies on the other. But one has to try, if one is really looking at
such a question as you are now putting to me, which is not the sort of
question I was discussing in my evidence ...
Mr. GROSS:\Vell, Sir, I was referring not to what you were discussing
in your evidence but the basis upon which you consider your testimony
to have been presented in terms of your expertise, or proffered expertise.
Now, I will not press that point any further, unless you wish to add to
what you have already said, Sir, except to ask you one question. When
you say "detached": how does one detach oneself from the purely
subjective or possibly charged emotionaI or psychological involvement?
How does one detach oneself without reference to objective standards
for the purpose of expert testimony, Sir?
Mr. MANNINGI:t all depends what question one is trying to understand
and answer.
Mr. GRoss: \Vell, let us saythat the question is one of racial relations,
separation, or discrimination; take that as an example, Sir.
The PRESIDENT:How would you detach yourself from any suggestion
-one which has not been made against you, but the question is-how
would you detach yourself, Professor, from any racial or emotional
bias? If you have none you have got nothing to detach yourself from, but
if you had any how would you detach yourself?
Mr. GROSS:If I may add, Sir, unless by reference to some objectively
determinable standard.
The PRESIDENT:But that was not the question which you put, Mr.
Gross.
Mr. GROSS:Weil, Sir, may I reserve the right to rephrase my question,
to put my question more clearly?
The PRESIDENT:Yes, certainly.
Mr. GROSS:And now, with respect, I believc 1 have done so by taking
the liberty of adding to your ...628 SOUTH WEST AFRICA
The PRESIDENT; That js the reason why you and the witness were at
cross purposes.
Mr. GRoss: Thank you, Sir. Now, do you understand this question,
after this colloquy, Professor Manning?
Mr. MANNING: l would like to answer the question as it was formulated
by the honourablc President ...
Mr. GROSS: That is your privilege, of course.
î\IrMAN~IXG: I would have thought that it was a good thing to bear
in mjnd that ifwe say that we have no bias we deceive ourselvcs, but
that does not prevent us from having the ideal in mind of bcing as
detached as wc can be. Cleanliness is somcthing which we nevcr achieve,
but we aim at it. Wc are always aiming at dcanliness, but perfect clean
liness is never achieved. And perfect objectivity is never achieved. But if
people are not conscious of the conflict, bctwccn the ideal of objectivity
and the orientation given to a man by his sympathies, then they will not
be able to make evcn the necessary attempt to detach themselves.
I would not say at all that my views are dctached, but I would certainly
claim that I try to make them detached.
Mr. GROSS: Sir, applying this more generally now with respect to the
issue in band, and that is with respect to the racial or ethnie policies
which are implicit, indeed explicit, in the doctrine or policy of apartheid
-and l am referring specifically to the Territory but if you wish to
include the Republic as a cognate problcm, of course, I would have no
objections if the Court had none-but with regard to the elements
involved in the issue of apartheid, would you say, Sir, and I am speaking
now about South West Africa, that the question of detachment from self
interest, from bias, from anv motivation, would be difficult, at best, in
the case of the application" of certain policies or practices by official
action of a dominant or ruling group?
Mr. i\lA:>:NING:I would sav, Mr. President, that detachment in these
matters is as difficult for défenders of apartheid as it is for critics of
apartheid. Defenders of apartheid are quite commonly members of the
privileged society into which I was born. and it is notorious amongst
sociologists that privileged people find it difficult to be detached in
thinking about their own situation. This does not preclude me, as a would
be political sociologist, fromtrying to address my mind as objcctively to
the question of what is being donc, in what circumstances, and for what
reasons, in a given country, even ifit is my own country, as I do when 1
try to understand the policies of the governments of other countries.
Mr. GRoss; Yes, Sir: thank you. Would you say, however, in further
amplification of my question to you with regard to the difficulty of
detachment, of objectivity, on the part of a ruling or dominating group
in respect ofthe application of policies which relate to those which are not
in the ruling group, would you say in that context of difficulties of
detachment and objectivity, that it would be relevant to inquire whcther
the methods by which, the areas in which, the time when. movements
towards political inclependence, as it is callcd in the record herc by the
Respondent and by the Odendaal Commission, do you believc, Sir, that
they will be determined or are likely to be determined objectively and
with detachment by the ruling or dominant group?
M.r.MANNING: Responsible statesmanship, in my view, i\Ir. President,
can never be detached and it ought not to be detached. A statesman has
responsibilities, hc bas objectives, he bas ideals, and he has to look, in W!TNESSES ANDEXPERTS
any given situation, at the desirabilities and feasibilities and do the best
he can, as the doctor has to do the best he can in the presence of a sick
patient, because ail societies are in some respect sick, and I think states
manship is a task in social therapeutics and this is a matter which is
guided by the desire to make the patient better, but there are all sorts
of inhibitions inany of us in trying to do good in the world, and it may
be that particular statesmen on particular occasions are affected by a
number of different considerations. But I am concerned as a political
sociologist, looking at the thing from the outside in no matter what
country, to see what was the situation in which these people found
themselves, what were the possibilities, what were the considerations
that must have borne upon their decision. and only so do I judge whether
thisis the kind of decision which I could endorse.
This isthe question I address myself to; but I do not attribute to any
statesman, in the field of practical action, that quality which we call
detachment. It is not possible for a statesman in the field of action to be
detached. He has to be influenced by his \'alues at every step.
l\Ir. GROSS:Sir, may I ask one more question; perhaps the witness will
be good enough to think about it during the break.
The PRESIDENT:You do not want his answer now?
Mr. GROSS:No, Sir, but I would like a considered answer, if he is
willing to give it.
The PRESIDENT:By all means: give him the considered question and
you will gt~ta considered answer !
Mr. GRoss: The question is this, Professor l\lanning. \Vould you care
to express a view to the honourable Court as to methods or procedures
by which responsiblc statesmanship, in a context of the sort we are
discussing here, would seek to assure itself against being motivated by
interests, by self-interests, competitive interests, or other subjective
emotions or attitudes?
The PRESIDENT:You are not called upon to answer the question now,
Professor. The only question I ask you-do you understand the question
that you are to cogitate upon over the next 20 minutes?
Mr. MANNING:I should like to be sure, Mr. President, whether I have
understood it. As I sec it, it asks me to consider whether statesmanship,
addressing itself to practical problems, is able to assume an attitude of
detachment.
Mr. GROSS:No, Sir.
The PRESIDENT:Apparently not, if any human is able to do so in any
given circumstances. Mr. Gross will put the question again before we
reccss.
Mr. GRoss: Very briefly, Sir. Thank you, Mr. President.
From a political science, or a political philosophy, or sociological point
of view, what safeguards, what methods, if any, would responsible
statesmanship adopt, or install, or follow, in order to assure to the
maximum extent against decisions taken out of self-interest or other,
shall we say, subjective, or, if I may say, unworthy motives (if I may
use that phrase, which I will withdraw if you do not like it)? Do you
understand the question, Professor?
The PRESIDENT:You understand it now, do vou Professor?
Mr. MANNING:I hope I do, Mr. President, I -ivillthink about lt.
The PRESIDENT:Do you remember the question that was putto you,
Professor? Weil, as best you do remember it, what is your answer?630 SOUTHWESTAFRICA
Mr. MANNING :t would suit.me better if it were repeated, Sir. I should
be quite sure that I was answering ...
The PRESIDENT: I am sure that you would not get the same question.
Mr. MANNING:Weil, Mr. President, shail I answer the question I
thought I was asked?
The PRESIDENT:Yes, you can give your answer that way.
Mr. MANNING:I thought I was asked the question about what safe
guards statesmanship could properly bear in mind, and hav;e available,
to ensure that the bias arising out of their material and other interests
would not unduly affect their judgment on what circumstances called
for as being social prudence. "Social prudence" is the term I would use
for the criterion by which the actions of statesmen should be judged.
Mr. GROSS:Excuse me, Mr. President. May I enquire whether this
is part of the question or part of the answer.
The PRESIDENT: Ithink he is trying to restate the question that you
putto him, although he bas not used the same words. I suppose if you
put the question again you would not use the same words.
Mr. GRoss: Weil, Sir, I am sure it would be as unintelligible as before.
The PRESIDENT:Weil I think it might be well to get the answer of
the Professor which generally raises the issue which you putto him, and
then I think that, perhaps, we could discontinue this philosophical
penetration of his mind.
Yes, Professor, proceed.
Mr. MANNING:Weil, Mr. President, I realize that statesmen do
sometimes find themselves in a situation of great perplexity. I know of
one instance in which one of them wrote about one of his colleagues who
had resigned over a moral issue, "no such luxuries for me". He felt that
his sense of responsibility required him to stay at his post and to do what
was feasible in the situation in which he found himself, regrettable
though it might be that he should have to do this. And I should have
thought the statesmanship is fettered by all sorts of factors, including,
of course, the need to retain the support of the public that has entrusted
them with the tasks of statesmanship, including also the conscience with
which they wake up in the middle of the night to think about what they
have been doing and what they are going to do, and including that
decent respect for the opinion of mankind which is due from all statesmen,
in ail circumstances. But I would certainly contend that the old saying
securus fudicat orbis terrarum is an overstatement. It is a simplification.
It is by no means necessarily true that whatever the world thinks is
right is inherently and necessarily intrinsicaily right, and the statesman
must obey his own conscience even though he be in a minority of one-if
he is a man.
Mr. GRoss: Sir, in your reference I will now observe the honourable
President's admonition and not attempt to probe your philosophical
processes, but with regard to the very practical aspect of the problem, at
least as the Applicants would view it, would your response, with reference
to the support of the electorate in the specific situation in South West
Africa refer to the persons who are, by reasons of colour or otherwise, or
non-colour, entitled to participate in the franchise in the central govem
ment? Would this be the kind of support which you had in mind
when you referred to the necessity of statesmanship having the support
of the people, the electorate, the populace, or whatever phrase you
used? WITNESSES AXD EXPERTS 631
Mr. MANNING:Are you asking me for a technical definition of what an
electorate is?
Mr. GRoss: No, Sir, I am asking you for an elaboration or clarification
of your response in which you, l think, referred to one of the elements or
safeguards in respect of responsible statesmanship, the maintenance of
the support of, did you say parenthetica11y, electorate, or populace or
some other phrase? Ido not recall your phrase.
Mr. MANNING:I do not think I put the electorate as a safeguard. I
thought the demands of the electorate were a limitation on freedom
rather than a safeguard.
Mr. GROSS: \Vell, Sir, which elements of your response were intended
to be responsive to the question with respect to safeguards? I had mis
understood you. Were any elements in your response intended to relate
to the question I asked, other than conscience of course?
Mr. MA1'"NING \: ell, why other than conscience?
Mr. GRoss: Because I wanted you to know that I had understood that,
Sir.
Mr. MANNING:But why other than conscience?
Mr. GRoss: I just explained, Sir, without engaging in a coiloquy any
further.
Mr. MANNING:There is also a sensc of responsibility ...
Mr. GROSS:Yes, Sir. \Vere there any other safeguards which you
intended to imply or refer to in your response?
Mr. MANNING:I did intend to mention the decent respect for the
opinions of mankind.
Mr. GRo3s: I see, Sir. As interpreted by the responsible statesmen, no
doubt, Sir?
Mr. MANNING:Weil, I would say that sometimes those opinions are
quite clearly available. The question is whether they have to be deferred
to.
M.r. GRoss: Are they available, Sir, in the fonn of, in any sense,
objectively dete1minable standards, would you say?
Mr. MANNING:Sometimes there is pretty clear evidence as to what the
opinion of mankind is.
Mr. GRoss: Would you use this as synonymous for standards or are
you ...
Mr. MANNING:No. I do not need the word "standard".
Mr. GRoss: I see, Sir. You do not, do you, reject it in this context, Sir?
Mr. MANNING:I think it is a matter of taste whether one uses a
particular terminology.
Mr. GRoss: Yes, Sir. Now with regard to the question of the electorate
to which you did not refer, would you say, Sir, that the attitudes of the
electorate (I am using the phrase and not attributing it to you, Sir} are,
as a practical matter, in terms of political science, or behavioural science,
or political sociology, or whatever-would you say that a safeguard
against biased or self-interested action on the part of statesmanship is
the existence of an electorate?
Mr. MANNING:When you speak of bias are you speaking of persona!
bias, persona] interest?
Ilfr. GRoss: Well, I am speaking of people as individual human beings,
not as mernbers of groups. I am not referring to statesmen as a group,
I am referring to individual officiais who, from time to time, may be
in office. May I clarify my question Sir, by reference to an article which632 SOUTH WEST AFRICA
you wrote for Foreign A/jairs in October r964, Volume XLIII, No. r,
published in the United States by the Council on Foreign Relations
entitled "In Defence of Apartheid". Now, you recall this article, Sir.
At page 140 you wrote, did you not, the following:
"The apartheid programme is the programme of a particular
Party-the National Party-and it is germane to reflect in what
circumstances that Party had its birth."
And then you proceeded, did you not, to explain the origins, in a very
interesting fashion, if I may say, of the Party. Now, Sir, is it still your
view (this was October Ig64) that the apartheid programme is the
programme of a particular Party-the National Party. Is that still your
view?
M.r.:MANNING T:his was meant to be an historical statement.
Mr. GROSS:\\Tell, is it still your view as an historical statement?
M.r.MANNING:As I understand it, the Party has not abandoned that
policy.
Mr. GRoss: And, Sir, did you not say also on page 141, and if this is
out of context you may wish to bring this out, but I think it is in context
but I may be wrong:
'Thus, 111the context of any discussion on alternatives toapart
heid the raison d'êtreof the National Partv needs to be seen and
appreciated for what it is, and if apartheid is to be understood it
should be studied in terms of the assumptions on which it is practised
by the National Party rather than simply in the light of those
prejudices which ensure its acceptance by enough of the voters to
permit its resolute application."
Do you still adhere to these views, Sir?
M.r. MANNING:I think in all, the analysis of any policies pursued by
democratic govemments one can differentiate between the considerations
in the light of which a given policy was thought appropriatc, and the
sentiments of the electorate which make it possible for the Government
to pursue such a policy without losing power in the process.
Mr. GROSS:And, Sir, if the electorate were opposed to such a policy,
would that not be a safeguard in respect of the pursuit of that policy by
the leaders of the day?
l\IrMANNING:One could almost say that if the electorate was flatly
against a particular policy it would be a guarantee that the policy would
not be pursued by any party.
Mr. GROSS:Would it then follow, Sir, that the composition of the
electorate and the eligibjJity to participate in the franchise would be a
very important aspect of the decision-making fonction of the Govern
mcnt?
Mr. MANNING:I am not sure if I understand the question.
Mr. GROSS:Would it follow, Sir, that the composition of the electorate,
the determination of those eligible or not to participate in the franchise,
would be an important aspect in the decision-making process and the
pursuit of particular policies, whatever they may be. Would you say
that this is an axiomatic statement, Sir?
l\Ir. l\IAN'.'IN:o, I am afraid that I do not understand the question.
l\fr. GROSS:Do you think that the composition of the electorate has
anything to do with the decisions taken by the Government, Sir? WITNESSES AND EXPERT3
Mr. MANNING:I think the theory of dcmocracy is that the electorate
speaks for the people and the sovereign people rule.
Mr. GROSS: Could I take it that the answer to my question is yes, or
no, or any other qualification?
Mr. MANNING:No, I am afraid I did not sufftciently understand the
question.
Mr. GROSS: Is the composition of the electorate of importance in
respect of the question whether agovernment pursues a certain policy or
not?
Mr. MANNING:lt would be very difficult to answer that one, Sir.
Mr. GRoss: I see, Sir. ln respect of the situation in South West Africa,
isit true or is it not, Sir, that the non-\Vhites are not pennitted by reason
of their ethnie origin, or any other reason, to participa te in the franchise
forcentral government?
Mr. MANNING:I am not sure that one talks about permitting people
to participate. People either have the franchise or they have not, and
those who have it can exercise it.
Mr. GROSS: Who determines whether the y have it or not in particular
instances?
Mr. MAKNING:I should usually consult the law on that.
Mr. GROSS: Who writes the law, Sir?
1\frMAKNING:If you mean literally writes, you don't mean literally
writes, you mean who enacts the law.
Mr. GROSS: I said who writes the law. Ifyou would rather say who
enacts the law, I will rephrase my question. Who enacts the law?
Mr. MAl'CNING T:he procedure is very familiar to students of parlia
mentary government.
Mr. GROSS: Sir, you would not deny-and I am sure you do not
attempt to evade what I think are axiomatic questions and I even
apologize for asking them-is it or is it not true, Sir, would you say, as a
political scientist,or otherwise, that (I will be more specific now) in
South West Africa the non-Whites do not have the right to vote in the
elections for a central government? Is that a fact, or is it not; is it a law, ·
or is it not, Sir?
Mr. MANNING:I believe it to be the case.
Mr. GROSS: Now, who makes the determination? Is it the central
government which makes the determination as to who is eligible for
participation in voting?
Mr. MANNING:I should have thought the officers at the election.
Mr. GROss:The what, Sir?
Mr. MANNING:The officers, the polling officers. These are the people
who judge whether the would-be voter is eligible to vote.
Mr. GROSS: You mean, Sir, that if a law states, or provides, that a
non-White may not vote, then it would be the registering officcr or the
polling officer who would have any discretion with respect to allowing
him to vote? Surely you do not mean that, Sir.
1\fr.MAK.\IINGI: should be astonished at any system where there was
discretion given to vary the law.
Mr. GROSS: That's right, Sir. I am just trying to ask an obvions
question, but not getting a response, I don't think I should press this
any more than perhaps to make sure that you have not misunderstood
me. Do you know or do you not know, Professor Manning, whether in the
Terri tory of South West Africa there are Iegal inhibitions upon the right SOUTHWESTAFRICA
of non-Whites to participate in elections for the central Government?
Mr. MANNINGT : hese are not the words I would use; I would simply ask
myself who under the existing law is eligible to vote, and we know that
in this particular case the authority over South West Africa was vested
in a government which is answerab]e to a parliament which sits in Cape
Town, which is answerable to an electorate, .the membership of which is
defined in the law of South Africa·.
Mr. GROSS:The electorate as defined in the law of South Africa, does
it exclude non-Whites, so far as you know, from voting in the central
Government?
Mr. MANNINGT : he word "exclude" does not appeal tome ...
Mr. GROSS:You used it, Sir.
Mr. MANNINGW : hat does it include? is the question, surely?
Mr. GROSS:\Vhatever word you choose-I thought I was using your
word-1 will not pursue this line any further, unless you wish to elaborate
your answer. You consider that you have answered my question?
Mr. MANNING:I am quite \villing to answer your question.
Mr. GRoss: Do you have anything to add to what I have already asked
you? '
Mr. MANNING:Yes, I have something to add.
Mr. GRoss: Please, ifyou don't mind, Sir-1 certainly do not want ...
Mr. MANNINGI: should have thought it was very well known that the
Mandate had been conferred upon a country whose governmental system
was a parliamentary oligarchy, and that this is still the case.
Mr. GRoss: I sce. Now, with respect to the excerpts which I have taken
the liberty of reading from your article in Foreign A{fairs titled "In
Defence of Apartheid", to get back to my question and the reason why,
the context in which, I read these excerpts: what safeguards against the
possible consequences of policies pursued by the National Party in respect
of the Mandate, the Territory of South West Africa, if any, other than
the conscience of the Mandatory or the officiais composing the National
Party or any other party in power from time to time ...
The PRESIDENT:Mr. Gross, is this in relation to his knowledge as an
expert or his knowledge as an individual?
Mr. GRoss: Sir, I have, with respect, frequently found a difficulty to
distinguish between these two, and I recall at an earlier phase when this
question came up that it was pointed out, as I understood it, that there
were very considerable difficulties in distinguishing between testimony
proffered as a witness and as an expert. I have observed that distinction
difficulto follow as well. The intent of my question is to obtain from the
witness his views as an expert, if he has such views, regarding the
safeguards against self-interest, self-dealing, or the possibilities thereof in
respect of the Terri tory of South West Africa; this is really the sole
purport of my question ..
The PRESIDENT:Very well.
Mr. GRoss: Could you answer that question, Sir?
l\lr. MANNDIG:You have asked me not to refer to the sense of respon
sibility of the statesman?
Mr. GROSS:No, I have not asked you not to refer to anything, I wanted
tolet you know that I understood your answer in that respect; I am glad
you say whatever you do say.
Mr. MANNINGM : y quick answer to that is that in the first place there
is a sense of responsibility of the statesman who knows what the Mandate WITNESSES AND EXPERTS
says, and there is also the conscience of the public, which is also in a
position to acquaint itself with what the Mandate says; and there are
always those in a country governed under the parliamentary system, who
are interested in having the Government turned out, discredited; and
anyhandle given by the action of the Government to those who would like
to discredit it would be seized by those who are canvassing the case for the
supersession of this Government by another party, and this I would say
was quite an effective safeguard in a country where the public have
some sense of the difference between right and wrong.
l'llr. GROSS:Professor Manning, you have studied the Mandate, have
you not, from tune to time and over the years, and you are familiar with
1ts provisions regarding administrative supervision, or Article 6 in
particular?
Mr. MANNINGI: would like to be asked a particular question.
Mr. GROSS:My particular question is whethcr you are familiar with
Article 6-are you familiar with the terms of Article 6 of the Mandate,
would you like to have it read?
Mr. MANNING:I would like to have it read, please.
Mr. GRoss: Yes, Sir:
"The Mandatory shall make to the Council of the League of
Nations an annual report to the satisfaction of the Council, contain
ing full information with regard to the territory, and indicating the
measures tak ,n to carry out the obligations assumed under Articles
2, 3, 4 and 5.7
Article 2, as you are certainly aware, is, the article with respect to the
promotion of the welfare, etc. And are you familiar with Article 22 of the
Covenant of the League of Nations?
Mr. MANNINGF : airly.
Mr. GROSS:And paragraph 7 thereof, which reads:
"In every case of mandate, the M.andatory shall render to the
Council an annual report in reference to the territory committed to
its charge."
You will recall that. And in connection with Article 22, paragraph I, do
you recall that, or would you like me to refresh your recollection about
its terms? Perhaps I can read it to you, if you wish?
Mr. MANNrnG:I have it here.
Mr. GROSS:Tell me when you have read it, if you will, if you wish to
read it again. Have you read it?
Mr. MANNINGI : have read Article 22.
Mr. GRoss: I call attention particularly in the context of my questions
to the phrase:
"... there should be applied the principle hat the well-being and
development of such peoples form a sacred trust of civilization and
that securities for the performance of this trust should be embodied
in thisCovenant".
You have read those words, have you not? With respect to the prob
lems we have been discussing and to which you have referred in respect
of the safeguards, securities, or-1 used the phrase assurances or guaran
tees-against actions inspired by self-interest, as an example, would you
express an opinion as an expert or on the basis of your knowledge or SOUTHWESTAFRICA
study of the mandates system and the Covenant of the League, as a
professor of international relations for some years, whether or not the
system of supervision envisaged in the Covenant and the Mandate is an
essential part of the system as a security, is one of the securities for the
faithful performance of the trust?
The PRESIDENT:Mr. Gross, that type of question has been dealt with
before: that is a mattcr for the Court to determine, not for anv witness
to express his vicw at all.It is one of the very questions which the Court
has to determine, and it cannot be put, unless of course you are seeking
to challenge bis credibility as a witness-if you are not, it cannot be
put.
l\lrGROSS:I understand very well, Sir, the admonition, but I had
thought that in the examination of the witness's view, as distinguished of
course from such view or conclusion as the Court itself may ultimately
reach, with respect to these very broad and important matters to which
he has testified on direct in connection with the norm, his view regarding
the nature, structure and important elements of the mandates system
would go to the question of the weight to be attached to his expert
testimony, cither as to credibility, not in the veracity sense of course but
in the terms of the weight to be attached toit; this was my intention, but
I will not press the point.
The PRESIDENT:If that is the sole purpose of your intention, then the
question may be put, direct to the witness's credit, it being understood
that whatever reply he gives will be of no value whatever to the Court in
terms of the question it itself has to decide; it can only go to the weight of
his evidence.
Mr. GRoss: That was my sole purpose, Mr. President, not in any way
to suggest or imply usurpation of the Court's function or prerogative.
The PRESIDENT:Very well, you may put the question to the witness.
Mr. GRoss: Would you care to answer that question-your own view?
i\lrMAN};'IXGI: think the question was whether this obligation to
report to the Council was an essential part, an essential element, in the
mandates system.
Mr. GRoss: Whether in your view the obligation of reporting or inter
national accountability was an important part of the mandate structure.
Mr. MANNING:An important part of the mandate structure was the
obligation to report to the Council.
Mr. GROSS:Are you now voicing or implying a legal conclusion?-this
is just for information.
Mr. MANNING: Ithought you were asking me a legal question.
Mr. GROSS:No, Sir, that's the point. I am asking your opinion as a
political sociologist, a political scientist, a professor of international
relations, a student of the mandates system and the Covenant of the
League, whether it is your opinion or not that the principle of interna
tional accountability, and I say '\vas" because I do not want to prejudge
the issue before the Court of whether or not the Mandate is still in exist
ence, was an important part of the mandates system.
Mr. )1ANNING:A specific accountability to the Council was provided
for in the Covenant and the Mandate; that was an important part of it.
Mr. GROSS:You have no comment you wish to make with respect to
the principle of accountability as such? I am not trying to extract one
from you if you do not wish to answer the question.
)fr.MANNING:I am very happy to answer if I am allowed simply to WITNESSES ANDEXPERTS 637
repeat that that principle, as embodied in that provision, was certainly
an essential part of the system.
Mr. GROSS:Now I would like to ask a few quick questions, and will try
to assure their brevity in terms of the question asked. \Vith respect to the
countries you enumerated, for example Canada, Cyprus, Belgium and
the United Kingdom, would you say that in any or all of those States
the respective Governments, through official action or policy, allot
status, rights, duties, privileges or burdens on the basis of membership
in a group, class or race rather than on the basis of individual merit,
capacity or potential?
Mr. MAN::,/ING I: should have to make a special study before I could
answer that question, it requires research.
Mr. GROSS:Would you say, then, that in your testimony with respect
to these conntries that I have mentioned it was not intended by you to
imply, nor did you seek the Court to inter, that in these countries which
you mentioned in the context of the reference to the norm, the practice
in these countries was by official policies or actions to carry out the policy
which I have just read?
Mr. MANNING:The whole point of my allusion to these countries was
to reveal my view as to how far it was compatible with the well-being of
ethnie groups to put them in a situation in which they would fi.nd them
selves, as it were, with political bed-fellows that they might not have
chosen. I brought attention to the fact that there are countries in which
there are collective self-hoods, dynamic and limited, which are difficult
to accommoda te within the scheme of what was meant to be a relatively
homogeneons nationhood, and when you have this situation you can
have tension, you can have unhappiness, you can have discontent, and I
was discussing whether anxiety on this score should be present in the
mind of a manda tory in envisaging the ultimate future for the peoples of
such a country as South West Africa. I gave warning as to what might
happen to peoples who were not put in the position to make their own
mature and independent choice on their own ultimate destiny by finding
themselves instead in a situation which they would never have chosen
had they been sufficiently sophisticated, sufficiently politically aware, to
appreciate what the choice was.
Mr. GROSS:I think you have testifi.ed, if I am not mistaken~correct
me if I am wrong, please, Professor Manning-that you do not yourself
daim fi.rst-hand knowledge or expertise about conditions in South West
Africa-is that a correct rendition of your testimony?
Mr. MANNING : have only spent one week in the country in my life.
Mr. GROSS: I mean is this a correct rendition of your testimony? The
record will show, I just did not want to misquote you.
Mr. i\1:ANNING Y:es, these were my words.
Mr. GROSS: With respect then, however, to the reading which you
have done to which you have referred, would you have any knowledge of
the situation with respect to the persons classified as Coloured in the
Territory as distinguished from Natives, or Whites, or Asiatics?
Mr. MANNING:I have to confess, Sir, when we get down to detail, I
am afraid I have reached a time of life when I read a lot which I do not
remember. I have read the documents and I have read the Odendaal
Commission report but I do not retain the details in my mind. If you
would like to put a specific question tome, I will tell you whether I can
answer it. SOUTH WEST AFRICA
l\Ir.GRoss: Yes, of course, that would be only fair. Do you recall, Sir,
from the Odendaal Commission report, that it is stated that there are
some 12,700 Coloureds in the Territory?
Mr. MANNING:"Coloured" meaning?
Mr. GROSS: Coloured is the defi.nition of the census classification
which has previously been read into the record and it means according to
the census classification as follows:
"(a) Whites.-Persons who in appearance obviously are, or who
are generally accepted as white persons, but excluding persons who,
although in appearance are obviously white, are generally accepted
as Coloured persons.
(b) Natives.-Persons who in fact are, or who are generally
accepted as members of any aboriginal race or tribe of Africa.
(c) Asiatics.-Natives of Asia and their descendents.
(d) Coloureds.-All persons not included in any of the three
groups mentioned above." (1,p. rng.)
So that to clarify the point raised by your question, Coloured are persons
who "although in appearance are obviously White, are generally accepted
as Coloured persons" and "all persons not included in any of the three
groups mentioned above", specifically Whites as defined, Natives as
defined and Asiatics as defined-does this clarify what is meant by
Coloureds, Sir?
Mr. MANNING: It sounds to me like the classification which obtains in
the Republic of South Africa.
Mr. GROSS: Does this clarify your question about what is meant by
Coloureds, Sir?
l\Ir. MANNINGY : es.
11r.GROSS: The Odendaal Commission report, 1have asked you whether
you are familiar with it regarding Coloureds, and I believe that you said
that you would appreciate having the specific references called to your
attention, is that not correct, Sir?
Mr. MANNING:\Vell, I understand the question better.
Mr. GROSS: The ti.rst reference I would have in mind is page 33,
paragraph 121:
"The Coloureds, numbering 12,708 and constituting 2,42 percent.
of the population, also have a strong Caucasian strain and for the
most part maintain a Western culture and way of life. Their language
is chiefly Afrikaans. A considerable number bail from the Cape
Province. The Coloureds are found mainly in the larger towns such
as Windhoek, Walvis Bay, Luderitz and Keetmanshoop, where they
are employed or have their own businesses in industry. Many are
artisans in the building trade. A small proportion make a livelihood
as stock-farmers."
Do you know, Sir, from the basis of your own reading or study of the
Odendaa] Commission report or otherwise, whether it is proposed in the
Odendaal Commission report recommendations to have a separate
homeland for the Coloureds, Sir? Do you happen to know?
Mr. MANNING:I ought to say that I am hazy about that. My re
collection is-no I am not quite certain-! think not.
Mr. GROSS: Actually Sir, I did not mean to.tax your recollection. It is,
I think, undisputed in the record that there is no such plan. The plan, WITNESSES AND EXPERTS
Sir, is it not or do you know, is tha t three Coloured townships or locations
will be proclaimed at some unspecified date and that the Coloureds will
be persuacled there in terms of the Odendaal Commission report so as to
have a say in their own affairs-that was the language that has been
placed into the record. Are you familiar, Sir, with those contemplated
provisions?
Mr. l\fANNI:-.G:I should like to look at the specific passage.
I\1rGROSS: I will try to find it as quickly as possible. I did not have it
in my notes because I did not antidpate that this question would arise.
I do not have my own copy of the report with me.
The references begin at page ro7 and fol!owing paragraph 4r6, where
it says "12. In Respect of the Coloureds ... The Coloured of South West
Africa are distributed over the whole White area, etc." I won't read it
unless you wish me to, Sir. Then, it goes on, paragraph 418, paragraph
419 and then at the top of page rog, paragraph 420:
"That in due course the Coloureds be settled in the three above
mentioned towns in properly planned and proclaimed Coloured
Townships where they shall enjoy the right to own property."
In any event, there is no question, I take it, that the Odendaal Com
mission report does, as this indicates, recommend or envisage the
establishment of Coloured Townships to which it is expected that the
Coloureds, as classified in the census, will be persuaded to go. Just to
complete the picture, therc is, in paragraph 422, reference to a rural
irrigation settlement for Coloured farmers, that, of course, I did not
mean to exclude for the sake of completeness, I mention it so that there
will be no confusion on it. Now, Sir, with respect to the persans classified
as Coloured, my question relates to your evaluation if any, as an expert,
with regard to problems of what you call differentiation, whether the
problem of the Coloureds, for whom no homelands are contemplated,
are an exception to any of your testimony regarding the relationship
between the White and the Native groups. \Voulclthe problems presented
by the Coloureds in the society of South West Africa, if you have an
opinion on this, be definable and analysable on the same terms as
your analysis would apply in your own view to the relationship between
the White and the Native groups?
Mr. MANNING: In so far as I have corne here as an expert, I have
testified to the broad principle on the applicability or non-applicability
of the norm of non-differentiation. lt would be quite improper for me
to pose as in any sense an expert on the detail of the way in which this
philosophy is being applied. lt may be that if I knew more about it, I
could give an adequate explanation for everything that has been done,
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 clone in the fulfilment of a policy which seems to me to be the
wise policy in its basic philosophy.
:1-.f. Ross: And, Sir, in considering the validity or otherwise of its
basic philosophy, I take it from what you testified that, for any reason
satisfactory to yourself, you did not regard it as of significance to consider
the problem of the Coioureds either as a special problem or otherwise-is
that fair to say so?
Mr. MANNING: Yes, I should think the Coloureds are a special problem,
as are the Hereros, and as are the Ovambo, and so forth. They are indeed
a special problem. SOUTH WEST AFRICA
Mr. GRoss: Would you say, Sir, that the Whites are a special problem?
Mr. MANNING: lshould have thought policy in relation to the \Vhites
was again a problem.
Mr. GRoss: Now, Sir, that leads to the following question, if I may,
Mr. President. I believe you testified that, in expounding your philosophy
or expertise, various groups could not achieve their, I am paraphrasing
from my notes, aspirations, and I have in quotation marks "if they were
all administratively to be treated as if they were interchangeable"-is
this a fair rendition of your testimony?
iir. iL.\NNrnG: I certainly said that if groups were treated as inter
changeable it implied that the uniqueness of each group was being
overlooked.
Mr. GROSS: Now, Sir, I was interested and thought possibly the
honourable Court might be, as to what the significance is that you seck
the Court to draw from the word "interchangeable" in that context?
Mr. MANNING: I am tempted to quote the writer who said that the
doctrine of human equality was the convenient mcthodological fiction of
the administrator, pointing out that, in the Christian view at any rate,
every individual is unique, no two people are interchangeable or com
mensurable-! am tempted to quote that. î\Iy point is, when I use the
word "interchangeable", that if you do not recognize the difference
betwecn the different groups, you will feel it won't matter very much
which of them you are dealing with when you apply particular policies.
Mr. GRoss: Then, with respect to the interchangeability aspect of your
testimony-would that relate to individuals as well as to groups?
Mr. MANNING: Within a group there might for some purposcs be
matters in respect of which the individual mcmbers of that group could
be treated as intcrdmngeablc.
Mr. GROSS:Do you regard, Sir, in the sense in which you use this term,
I will not press this, I think, beyond this question, all Whites as inter
changeable?
l\IrMANNING: No, that was not the purport of my ans\'.rer.My answer
was that there are situations in which all Whites might be interchange
able. For example, if therc was a law determining where \Vhites might
reside, it might be necessary to see whether a particular candidate for
residence in the area concerned was White, but if hc were White, it would
not matter which White man he was.
ifr. GROSS:So that you are really speaking in the context that the
,vord "interchangeable" referred to those practices and policies which
reflcct the concept of apartheid-is that what yon meant by the word
''interchangeable''?
Mr. l\L.\NKING:I spoke of the non-interchangeability of ethnie groups.
Mr. GRoss: Did you understand, Sir, that the Applicants were con
tending in respect of their rule that groups were not or were interchan
geable as the case may be?
Mr. MANNING: I certainly did understand, at least on one interpretation
of a principle of non-differentiation, that groups would not be differ
entiated between and would be treated as interchangeable.
l\Ir. GRoss: I see, Sir.at is as far as you care to go or do you wish to
go further in.clarifying what the concept or term "interchangeable" is in
that connect10n?
Mr. MANNING: No, I think in that context I have explained what I
meant by the tcrm. WITNESSES AND EXPERTS
Mr. GROSS: Then, with respect to anothcr point of your testimony, I
think you said, did you not-you expressed a maxim which, if I caught
it correctly, was-"Take care of the dignity of the group and the dignity
of the individual takcs care of itself". ls that substantially correct?
Mr. MAN":S-INIGt:hink I said one might almost suggest it as a maxim.
Mr. GROSS: Now, do vou think it could be turned around as well and
put almost as a maxim "that: "take care of the dignity of the individual
and the dignity of the group takes care of itself"?
Mr. MAN)!ING:I feel very doubtful about that one.
Mr. GRoss: You would question that?
Mr. MANNING:Yes, I think I would call it adolescent scepticism.
Mr. GROSS: That is what you referred to, then, when you said, at page
605, supra, of the verbatim record of 14 October:
"... the attitude which insists that the only persons are individual
human beings. Adolescent sccpticism is what I call this, or naivc
realism.''
Is this what you were referring to just now-that testimony?
Mr. MANNING:I used the term "adolescent scepticism" also at another
point in my evidence, when I was speaking of the attitude of those who
thought that the uplifting of peoples unable to stand by themselves was a
matter of enabling individuals to stand by themselves.
Mr. GROSS: I see, Sir. And, this is my final question, Professor Manning,
would you consider that, in determining the relationship between the
individual, the group and the social order, in the context of South West
Africa, the role and freedom, specifically limitations of freedom, upon
persons because of colour or race, are based upon and reflect a higher
priority being given to the group than to the individual? Would you
agree with that proposition?
Mr. MAN~ING:With ail respect, I am afraid I find very great diffi
culty in answering the question so worded. I do not think in terms of
"limitations" imposed upon people because of their colour or race. I do
not think of it in these terms. I think of the Mandatory as having to have
an over-all policy for trying to advance the well-being of ail the peoples,
and then I would go and see what are the implications of this policy, and
what opportunities can be given, in what places, and to whom. I do not
think of limitations being laid upon people, I think of opportunities
being provided.
Mr. GROSS: This, I am afraid, does require a footnote question. Are
you aware, from your readings about South West Africa, of limitations
placed upon economic freedoms and freedom of movement in South West
Africa on a non-White basis?
Mr. MANNING:I would agree that in South West Africa, as in all
countries, there is legislation which does determine what people are free
to do and what they are not free to do, and this legislation can be de
scribed as imposing limitations on their freedom, in so far as there are
limits.But I would not say that therc was anything particularly special
in the case of South West Africain this regard. I would say that there
are people who are classified in categories and there is legislation which
determines what are the opportunities for these several categories.
Mr. GROSS: And the limitations of frcedom in South West Africa, so
far as you are aware, do they or do they not reflect, and are they not
based entirely on ethic classification, specifically, for example, to the SOUTHWEST AFRICA
limitation in the job reservation acts with regard to employment in the
mining industry?
Mr. MANNINGI: should have thought that the regulations in any given
area were determirn:d by which comrnunity was seen as paramount as
regards its interests inhat area. But I would also have thought that the
over-all scheme of what was best for the country as a whole might affect
the question of what opportunities particular categories of the population
had in particular places.
ilfr. GROSS:And by reference to what group is paramount, do you
mean that the limitations or restrictions upon job opportunities or
promotion are, in the case of the specific question to which I have
referred, based upon the fact that the Whites, being paramount in the
modern economy, seek to protect themselves from the competition of the
non-Whites by restricting the jobs to which they may hope to aspire?
Would you agree to that?
Mr. MANNING:I am afraid that I expressed myself badly. I tried to
say that those whose interests are paramount-not they who are para
mount, but those whose interests are paramount in a given area-and I
was thinking more particularly of the areas of the undeveloped peoples,
areas in which the opportunities are reserved for them ...
I know the situation is rather more complex in the area which is
described as the White area, but I would not have thought that the basic
principle was different in this case. I should have thought that in this
case, equally, the policy of the Mandatory was to do what is best for the
country as a whole, which involved in this particular case providing a
source of revenue from which to finance the development of the country,
which meant encouraging European enterprise to establish itself in that
part of the country in the interests of ail. This might have implications
and it might, in some cases, involve limitations upon the freedom of
particular individuals, but on the over-all pictureI would say we have,
in the kind of law I have studied, a maxim called "hard cases make bad
law". You ask yourself: Is this a wise law? And then you go on ta say:
What can we do about the hard cases, if any? But you do not necessarily
modify the law merely because there are some individuals who find it
operates to their disadvantage.
Mr. GROSS: I have no further questions, Mr. President.
The PRESIDENT:Thank you, Mr. Gross. Does any Member of the
Court desire to put any questions?
Mr. RABIE: I have no re-examination, :Mr.President.
The PRESIDENT:Is it desired that the Professor should remain in
attendance, Mr. Gross?
Mr. GROSS:No, Mr. President.
The PRESIDENT: In those circumstances I think the Professor will be
released from further attendance. Thank you, Professor, you are released
from further attendance.
Mr. MANNINGT : hank you, Mr. President.
The PRESIDENT:?\fr. Rabie, who is your next witness?
Mr. RABIE: Mr. President, unfortunately we have no other witness
available today. It was not anticipated that this witness would be
disposed of before lunch. We rather regret it, but it would be impos
sible ...
The PRESIDENT:That is understandable, Mr. Rabie. Perhaps it is not
so unfortunate with the weekend just about to commence. WITNESSES AND EXPERTS
Mr. Gross, I wonder whether you could assist me. When you spoke
about the Coloured people, at page 420, I cannot at the moment find
the reference whcre you said that the Coloured were to be persuaded to
move to the Coloured townships. ·
Mr. GRoss: I am sorry, Mr. President. Could I supply it on j\fonday
moming?
The PRESIDENT:Yes, that would be quite suflicient. Thank you very
much. I cannot find it myself at the moment.
Mr. GROSS: It is in a section different from the one that I have referred
to, Sir. May I detain the Court, Sir, just for a few minutes because I think
I am on the trait of it.
The PRESIDENT:Yes, certainly.
Mr. GROSS:Yes, it is page ng, paragraph 452.
[Public hearingof I8 OctoberI965)
ilfr. !'.IUJ.LERl:\fr. President, we have the last witness today, that is,
Professor Possony, whose evidence will also relate to the Applicants'
Submissions Nos. 3 and 4. The points to which his evidence will be
directed were indicated in a Ietter of I4 October 1965 to the Applicants
as being the following:
(a) the absence of a general practice of a suggested norm and/or
standards of non-discrimination and non-separation as relied upon
by the Applicants;
(b) that the attempted application of such a suggested norm and/or
standards would in manv instances have an adverse effect on the
well-being and progress of the persons concemed; and
(c) that on the basis of the facts conceming South West Africa as on
record from other cvidential sources, the Territory falls within the
instances mentioned in (b).
However, Mr. President, in a letter of subsequent date, 16 ûctober1,
the Applicants wcrc informed that Professor Possony will no longer deal
with the third mattcr mcntioncd in the earlier letter, and, that is, he will
not deal with the situation in South West Africa.
Imay indicate to the Court that Professor Possony's eviclence will fall
mainly into three groups. The first is a brief historical development of
group relations in the world; the second, an analysis of certain situations
regarding differential treatment, or otherwise, of population groups in
various parts of the worlcl; and the third, attempts in the international
sphere to formulate uniform objectives with regard to the treatment of
individuals and ethnie groups .
.M:r.President, this eviclence, as the Court will appreciate, covers a very
wide fieldand Professor Possony would have to refer to many documents.
He has. however, for convenience, recorded his documentary sources by
way of notes, although the documentary sources are also before the
Court.
:May I ask that Professor Possony corne forward, Mr. President, and
make both the declarations provided for in the Rules.
The P:'ESIDENT:Certainly. 1\:1.rG. ross.
1 See XII, PartIV. SOUTH WEST AFRICA
Mr. GROSS:Mr. President, perhaps it would be the preference of the
honourable President to have the witness make his declarations before
making comment?
The PRESIDENT:Yes, Mr. Gross. Let the declarations be made.
Mr. PossONY: In my capacity as a witness 1 solemnly declare upon
my honour and conscience that I will speak the truth, the whole truth
and nothing but the truth. In my capacity as an expert I solemnly
declare upon my honour and conscience that my statement will be in
accordance with mv sincere belief.
The PRESIDENT:-Mr.Gross.
Mr. GROSS:Mr. President, reserving the right to abject, the Applicants
respectfully urge upon the Court to apply, with regard to the evidence
proffered for this witness, the procedure indicated in the statement
regarding procedure announced by the honourable President on 24 ]'Ilay
1965 1• Specifically, Mr. President, the Applicants refer to paragraph 3
thereof, as follows:
"3. ln cailing any wîtness or expert the Respondent would in
dicate in .Court, with reasonable particularity, the point or points
to which the evidence of each witness or expert'will be directed, and
the particular issue or issues to which such evidence was said to be
relevant."
The Applicants submit, Mr. President, that the statement of the point
or points to which the evidence of this witness and expert is said to be
directed, far from being indicated with reasonable particularity, are
obscure, and that the Respondent has not indicated, in Court or other
wise, the particular issue or issues to which the evidence of this witness
is said to be relevant.
In respect of paragraph (a) of the letter of 14 October, which has been
read into the record by Mr. Muller, learned counsel, it is not clear, to
the Applicants at least, what is meant by the juxtaposition of the
phrases "general practice" of "standards". It is understood, Sir, and the
Applicants, as bas been previously indicated in Court, have no objection
in principle-if the Court wishes, subject to the will of the Court-if
Respondent deems it desirable or necessary to continue its legal argument
concerning the sources of international law, with respect to the Appli
cants' alternative contention under Article 38, paragraph (b)-to con
tinue such argument through a witness or expert, the Applicants have
indicated no objection to that course. However, with respect to the
question of the testimony proffered regarding standards, this point to
which the testimony is said to be directed is indeed obscure and un
intelligible tothe Applicants, in view of the fact that in their pleadings,
the Applicants have sought to make clear the sources of standards, in
cluding the United Nations Charter and other sources set forth at length
inthe Reply and elaborated in the Oral Proceedings, the sources upon
which the Appiicants rely in support of their conten6on that Article 2
of the l\fandate should be interpreted in the light of standards which
concededly and undisputably exist, in the form of the United Nations
Charter, resolutions, other international instruments and so forth.
Therefore, it is not clear to the Applicants, with respect, what point,
if any, is reallythe point to which the evidence is sought to be directed
1 See Minutes. VIII, p. 46. WITNESSES AND EXPERTS
in respect of the "standards" branch of the Applicants' major argument,
as distinguished from the alternative branch of the argument with tespect
to the international ]egal norm.
Secondly, Sir, the obscurity, in our submission, is deepened not only
by the tenns in which the proffered evidence is cast, but also by the
formulation of paragraph (b) of the letter, which sets out as a point to
which the evidence of this witness is to be directed-
"That the attempted application of such a suggested normand/or
standards would in many instances have an adverse effect on the
well-being and progress of the persons concemed."
Now, this would seem also, with respect, Mr. President, to call for some
elaboration or specification, some reasonable particularity, as to what is
intended to be established for paragraph (b) as formulated.
This confusion, finally, is compounded by the deletion from the
points of sub-paragraph (c) which, in accordance with the letter received
by the Applicants on 16 October 1,seems to be the culminating point to
which the testimony was to have been directed, the issue with regard to
South \Vest Africa. Now this has, by letter received 16 October, been
deleted. In the Applicants' submission the deletion of sub-paragraph (c)
further obscures the intent of paragraph (b).
Therefore, for these reasons, Mr. President, and reserving the right to
object, it would be the Applicants' respectful submission that the Court
might well see fit to request from the Respondent a statement of reason
able particularity with regard to the actual point or points to which the
evidence is directed, other than-unless the Court pleases to have it
othenvise-the sources of international custom in the sense of Article
38 (1) (b) of the Statute of the Court. if that isregarded by the honourable
Court as a fit and appropriate subject for testimony, rather than for
argument. Tapologize for the length of this but I did want to make my
problems clear, with respect, Mr. President.
The PRESIDENT:Mr. Gross, are you making an application that the
Court should adjourn until you obtain further particulars of the evidence
to be given?
Mr. GRoss: Sir, I would not venture to do that, nor, with respect, do
I think it necessary. If, howcver, it would be possible for counsel to
indicate with more particularity than is done in this formulation of the
remaining two paragraphs of the letter which has been read into the
record, it would, at the very Jeast, Sir, aid the Applicants to the better
understanding of the evidence as it is led, and in preparing for cross
examination or comment, or other appropriate action thereafter.
The PRESIDENT:The procedure which the Court indicated was that
before a witness was called Respondent would state with reasonable
particularity the point or points to which the evidence of each witness
would be directed and the issues concemed. The issues have been made
quite clear; they are directed to the issues which are involved in your
Submissions 3 and+ Asto whether the Respondent has indicated with
reasonable particularity the point or points to which the evidence of this
witness is directed, depends upon a reading of paragraphs (a) and (b)
of the letter to which vou refer.
The Applicants' case is that there is a norm or standard which has been
1 See XII, Part IV. SOUTHWEST AFRICA
defincd in its Reply. It is statcd in the oral argument by the Applicants
that the norm or standards are in content the same. In its legal effect,
however, the distinction was made by the Applicants that the standard
did not have the same effect as the norm, but it would nonctheless have
the same content as the nonn.
The Rcspondent seeks to cstablish that there is no such norm, and part
of its case is to show what the practice is in respect of non-discrimination
and non-separation in different countries throughout the world. At the
same time it seeks to establish that since the Mandate demands of the
Mandatory that it shall promote to the utmost the well-being and social
welfare and development of the people, that any alleged norm which is
inconsistent with the discharge of that duty can have no application, or,
alternath·ely, that such evidence would go to establish that there is no
such norm at ail. It seems that paragraphs (a) and (b) do, in generality,
indicate that that is the general course which the evidence is to follow
and the purpose for which it is to be adduced.
If, at any time, you fear that you are prejudiced by the nature of the
evidence which is led then, Mr. Gross, you may rest assured that the
Court will listen to any application that you have to make and, of course,
as the evidence is led you will be entitled to make whatever objections
you think to any particular question or the response to any question
which is put. I do not think that the Court can do more than indicate
that, at the moment. 1\Iorethan once the Court has said that if evidence
is led,and if there is any substantive question of relevance in respect of
the same, that relevance will be detennined bv the Court itself when it
proceeds to its deliberations. I think that in â case such as this that is
the wisest course to pursue and not to seek to make any rulings upon
evidence when it is of such a substantive character as is involved in the
objection or in the application which you are making.
I shall ask Mr. Muller whether he is able to indicate with more partic
ularity the general scheme of the evidence of the witness in ordcr to
enable Mr. Gross both to prepare for cross-examination and, at the same
time, to determine what objections hc should makc to any particular
part of the evidence as it is led. Mr. Muller.
.!\Ir. .MULLER:As the Court pleases. Mr. President, the evidence will
indicate, as very broadly stated in the letters to the Applicants, that
there is no practice or usage in the world observing a norm of non-dis
crimination or non-separation as contended for by the Applicants. For
that purpose the witness will dcal with positions in various countries in
the world. He will indicate to the Court certain situations wherc one has
different population groups that have to be treated diffcrcntly. He will
indicate what measures are operated in such countries for differential
treatment of different population groups. That evidence, Mr. President,
we contend, will show that there is no usage in the world observing the
norm of non-discrimination or non-separation as contendcd for by the
Applicants.
The PRESIDEXT:Mr. Gross.
Mr. GROSS:Mr. President. ln deference to the comments made by the
honourable President. I had started my comments with the reservation
of the right to abject, but I did not object, Sir.
\Vith regard, however, to the statement just made and without
prolonging the colloquy, which I am sure the Court will appreciate my
not doing, the response of Mr. Muller, if I may say, highlights the diffi- WITNESSESANDEXPERTS
culty. His reference was solely to the matter of the international legal
norm which, of course, is, as the Courtis well aware, an alternative and,
in effect, a subsidiary argument-an alternative and cumulative argu
ment. No reference has been made to the question of whether or not
anything in this witness's testimony is intended to relate to the Appli
cants' main argument with regard to the conceded existence of inter
national conventions and so forth, which are contended by the Applicants
to result in standards which should be applied in the interpretation of the
Mandate. No reference has been made .to the major branch of the
Applicants' case in respect of anything to which this witness is now said
to be directing his testimony. This, I think, illustrates the difficulty which
the Applicants perceive in this formulation, Mr. President.
I will not, however, press the objection and will attempt to take
advantage of the President's indication that the objection can be made
in respect of any particular questions.
The PRESIDE.NT:I only have to add, Mr. Gross, that the sources on
which you rely to establish the norm are the same sources on which you
rely to establish the standard. That is clear from IV, pages 493 of the
Reply omvards, and if evidence is led to the norm it may well have a
relevance to the existence or the content, if not the existence then the
content of any standard. I think the proper course is to allow the evidence
to proceed and to take your objections as you think fit as the evidence
is led.
Mr. GROSS:Mr. President, may I then, respectfully reserve the right
also to make appropriate comment at a suitable occasion with regard to
the relevance ...
The PRESIDENT:Certainly, Mr. Gross. That right has been reserved to
you-to make comments upon the evidence. Obviously, comment as to
relevance of evidence falls within the permission which has alrcady been
accorded.
l\lr.GROSS:Thank you, Mr. President.
The PRESIDENT: Mr. Muller, will you proceed?
l\Ir.MULLER:As the Court pleases. Professor Possony, your full names
are Stefan Thomas Possonv?
l\IrPossoNv: Yes, Sir."
l\frMULLER:You are a citizen of the United States of America?
l\frPOSSONY:y es.
Mr. Mu1,um: What are your academic qualifications?
l\fr. PossoNY: I am a Doctor of Philosophy of the University of Vienna
and I hold an honorary degree of Doctor of Law.
Mr. MUl,LER: What are your fields of study?
l\lr. PossoNv: I studied anthropology and ethnology as minors at the
University of Vienna, psychology and philosophy as majors, and I wrote
my doctor's dissertation in sociology.
l\Ir. MULLER:Arc there any special fields in which you have done
research and teaching?
l\1r. PossoNY: I have donc research and teaching in the fields of inter
national relations, sociology, modern history and comparative con
stitutionals. I have clone research in economics.
The PRESIDENT: I wonder whether the witness could speak a little
louder.
Mr. MULLER: I am sorry, Mr. President. Mr. Possony, would you
please speak a little louder? SOUTH WEST AFRICA
Have you, in the course of your studies, rcsearch and teaching, made a
particular study of management provisions of different population groups
in the world?
Mr. PossoNY: For many years I have worked on the subject of ethnie
problems and the relevant constitutional and legal provisions for the
management of ethnie groups in multi-national societies.
Mr. MULLER:What is your present position?
Mr. PossoNY: I am Director of the International Political Studies
Programme at the Hoover Institution for War, Revolution and Peace
at Stanford University, California.
Mr. MULLER:What previous positions have you held?
Mr. PossoNY: I was Special Adviser to the United States Air Force,
consultant to other United States Government Agencies, including the
\Vhite House, for many years on politieal sciences, including handling of
natural science data for the purpose of policy formulation. I was also a
member of a research group, many years ago, working for President
Roosevelt on migration and population problems. I held the position of
Carnegie Fellow at the Institute for Advanced Study in Princeton, New
Jersey. I was Professor of International Politics at the Graduate School
of Georgetown University. I was, and still am, an associate of the
Foreign Policy Research Institute at the University of Pennsylvania. I
was also Visiting Professorat the University of Cologne, Germany.
Mr. MULLER:Have you made a study of the importance, or otherwise,
of ethnie group differences?
Mr. PossoNY: Yes, I have studied this problem rather extensively for
many years.
Mr. MULLER:Do you consider it important to recognize ethnie group
differences in pluralistic societies?
Mr. PossONY: The diversity of mankind rests upon ethnie differences.
The great progress which mankind has been able to make in the last five
to ten thousand years in many ways was conditioned by this diversity.
The great ideal is to preserve that diversity as one of mankind's greatest
assets and no group or nation aims to abandon its distinct identity. At
the Eame time, diversity and ethnie differences have been the cause of
much internai and international conflict. Most struggles which have
arisen have ostensibly or really been related to ethnie factors. Within
States that comprise different ethnie groups, ethnie conflicts or, as they
are also called, national struggles are a foremost and frequent experience.
Unless such struggles can be prevented or kept under control, multi
ethnic political structures tend to break up.
Multi-ethnie societies presuppose the explicit recognition of ethnie
difference. Such societies require institutions that are based upon and
manage the ethnie diversity. In addition, an effective organization ta
ensure the collaboration of different ethnie groups is needed to bring
about mutually beneficial economic progress and to provide for each
individual an intact social community of his own. If such communities
are disrupted, or if the relationship between the individual and his
community is disorganized, man becomes psychologically alienated, that
is, he no longer belongs ta his group.
In summary, ethnie differences demand recognition. If multi-ethnic
societies areta function well such differences must be handled through
institutional arrangements.
l\lr. MULLER:From your studies and experience, can you say whether WITNESSES AND EXPERTS
different population groups generally tend to rnerge or to develop
separatel y?
Mr. PoSSONY:In most instances population groups differ from each
other in one or more characteristic. Sorne of these traits are natural in
the sense that they do not evoke a particular attitude, like language when
its usage is not threatened. Others may be meanin~ful and evoke value
attachrnents, like religion. The urge to a separate hfe is strong if differ
ences are conceived more sharply. On the other hand, ifthere are close
contacts differences, which so far were ignored, may be identified. Ethnie
groups tend to have their own territories, their own econornic systems
and interests, their own political structures and their own history. Even
if there were no distinct psychological make-up or a cultural distinction,
and even if there were religious unity, many factors would militate for
separateness and have always done soin the past, except in those periods
when continuity was broken.
However, catastrophes may also lead to the strengthening of ethnie
self-consdousness.
A great deal of the inter-ethnie political struggle, including war, is
derived from fear about ethnie extinction or from a desire to preserve an
independent set-up. The struggle itself strengthens ethnie consciousness.
The struggles within the group often are concerned with the problem of
separating the group from another.
Mr. MULLER: Now, is separation, as mentioned by you, striven for as
between groups only, or are there examples of separation also within a
larger group?
J\frPossONY: In one way or another. sometimes formally, sometimes
not, even highly uniform groups tend to have internal separation. Sep
arations are almost routine if, in a group that is not uniform, that has
kept together because of geographical or political conditions, there occur
strong differences, for example, of a religious or racial type.
The rnost durable of such systems has been the Indian caste system
which was referred to for the first time in the year 1500 B.C. This system,
it seems, was more or Jess fully dcveloped along the basic principles of
professional separateness and strict endogarny more than 2,000 years
ago. The origins of the system are still obscure. Whether or not the origi
nal castes were distinct racial or ethnie groups is a moot point because,
under the existing system, castes did becorne breeding isolates. Through
serological analysisit has been determined that, on the whole, endogamy,
or matrimonial separateness; was preserved rather strictly and effectively.
The caste system exists above all in lndia, but also in Pakistan, Ceylon
and Burma. Between 350 million and 400 million people are involved.
The Constitution of Pakistan, in Article 29-this is printed in the
Inter-Parliamentary Union, Constitutional and Parliamentary Informa
tion, 1956, pages 137 ff.-which deals with the promotion of social and
econornic well-being of the people, stipulates that such well-being be
secured "irrespective of caste, creed or race". l\foreover, the "basic
necessities of life" are to be provided to all citizens "irrespective of caste,
creed or race". Castes are recognized also by Article 204 of the Pakistan
Constitution. This is quoted in Human Rights Yearbook, 1956, on page
181.
The Indian Constitution makes far more substantial references to
castes, and this will be discussed later.
Mr. MUI.LER: Yes. Now, has the caste system not been abolished? SOUTH WEST AFR!CA
Mr. PossoNY: llfr.President, there is a misconception that the caste
system has been abolished. The caste system, in fact, is deeply embedded
in the social reality. It may or may not disappear in the process of long
evolution, but it cannot be ''dis-established" because it is, if nothing else,
a frame of mind and a pattern of behaviour.
However, untouchability, which is one of the manifestations of the
caste system, and is based largely on the notion of cleanliness and purity,
has been abolished. For example, Article 20 of the Pakistan Constitution
says that the practice of untouchability "in any form is forbidden and
shall be declared bv law to be an offence".
What this means'is clarified in the Indian Untouchability Offences Act,
of 8 l\fay 1955, which is quoted in lnter-Parliamentary Union, Constitu
tional and Parliamentary Information, 1955, pages n9-r24. This Act, in
essence, forbids that the caste system be practiscd by preventing mem
bers of the so-called untouchablc castes. inter alia, to enter and pray in
places of worship of their own religion, to enter shops, restaurants, hotels
and places of public entertainment, and to stop those other practices
which, in previous legal language, for example, in an Act of 1950 in
Travancore and Cochin, are referred to as "social disabilities".
This Act on untouchability is only ro years old, hence the condition
which it outlaws must have existed until 1955. But even if the practice
had disappeared within the last ro years, it was stark reality for hundreds
and possibly thousands of ycars in one of the most populous and plural
istic societiesn the world. India's internai developments have generally
been very peaceful, however.
The system, in my view, has been one of effective internai separation,
but it was not successful in terms of devclopment. Both the Indian and
Pakistani Constitutions now envisage support to the scheduled castes in
order to promote the socio-economic development of their mcmbers.
The PRESIDENT:It is difficult, I know, when a person has a habit of
speaking quickly, Profcssor, to alter the habit, but you do speak rather
rapidly and it is not always easyto catch both the words and the sentence
which you are addressing.
Mr. PossoN"Y:I apologise, l\Ir. President, and will speak very slowly.
The PRESIDEKT: Not at ail, but if you could speak more slowly, it
would be appreciated.
Mr. MULLER: Professor Possony, does one find separation in the world
along religious lines?
l\fr. PossoNY: There has been in Europe a long and highly relevant
history of separation along religious lines. The problem that arose after
the Reformation was to separate the Catholics from the Protestants. The
edict of Nantes, in1598, combined features of separation with features of
non-discrimination. ln 1648, the right to cmigrate was confi.rmed, to
gether with the equality of Catholic and Protestant States within the
Roman Empire. During the rgth century, religious separation was
gradually implemented in the Ottoman Empire. Due to the drying up of
religious beliefs,he issue lost signifi.cancein Europe, but remained potent
in Asia-for example, the separation of India from Pakistan was largely
upon a rcligious basis. Conflicts likethat between the Negro and Arabie
provinces of the Sudan may or may not have a racial foundation, they
certainly have very strong rcligious overtones.
Mr. MULLER: Has there been any significant separation along ethnie
lines? WIT~ESSES AND EXPERTS
llir. PossoNv: Yes, there certainly has been such separation. Of all the
causes of separation, the ethnie factor is the most important; for exam
ple, the problem can be studied in the history of such peoples as the
Armenians and the Basques who, in the face of a turbulent history, have
maintained their identity for several thousands of years.
To savc time, I shall discuss the problem through the history of the
Jews: Jewish history can be traced back for almost 3,000 years. Separate
identity was preserved in the face of three major diasporas and a con
siderable number of subsequent exodus cases. Time and again the Jews
lostpart of their population due to mass conversion, and there has been
a steady strean1 of individual conversions. Croup conversion to Judaism
added new ethnie components. There arc, therefore, differences in what
may loosely be called the "purity" between the Jewish groups living in
different geographic locations.
Adherence to the Jewish faith during periods of persecution created
many difüculties and dangers, and may have meant death. In those
periods, when assimilation to surrounding ethnie groups was easy and
sometimes encouraged, Jews had a chance to eliminate themselves,
through painless methods, as a distinct group. In view of the long dura
tion of Jcwish history, it is therefore remarkable tha t investigations,
carried out with the most modern means-this means the analysis of
blood groups and fi.ngerprint patterns, both of which are strictly heredi
tary-ha\'e proved that the Jews managed to a considerable extent to
preserve their ethnie identity.
At one timc, Mr. President, the ghettos reflected a Jewish desire for
separate dcvelopment, at other times, of course, this was a result of the
similar clcsire on the part of the non-Jcws. Time and again the Jews
either obtained autonomy or practised autonomous self-government of
their own.
In the modern period, the desire of the Jews for separate development
was most strongly manifested in thcir wish for their own territory. This
wish resulted in the establishment of Israel as the framework in which
the separate development of a Jewish nation could be pursued. The
establishment of Israel was accompanicd by the separating out of Jews
from other ethnie groups, and the division of Palestine into an Arab and
a Jewish part-ail this was donc under United Nations aegis.
The desirc for territory also was manifested within the Soviet Union,
where the autonomous province of Birobidzhan was establishcd some
30 years ago. Jcwish history proves that the will for separate develop
ment and separate existence has been cxtremely strong and persistent,
despite the fact that there was no common territory, and that even corn
mon Ianguage was lost. except in ritual. The Jewish historian, Simon
Dubnov, who was killed by the Nazis in Riga during 1941, was correct
when he spoke about a "natural instinct of national preservation".
l\Ir.MULLER: Now, in the light of these examples mentioned by you,
can you say whether in history there has been a general trend towards
separation of population groups?
Mr. PossoNY: Mr. President, all world history is tied together with the
desire of peoples to be by themselvcs, not to be subject to foreign do
mination, and not to be dispersed by conquerors. I do not argue that the
urge for ethnie separateness was the only important factor. But the desire
for self-rule wasconstant in most populations.
In the 16th century, during the Rcformation, which in some ways was SOUTH WEST AFRICA
religious separatism, the religious movement and ethnie consciousness
merged, and a new age of nationalism was born.
Using the term "nationalism", it is important to differentiate it from
politicaland aggressive nationalism, which is an idcology of expansion;
in its sociological meaning the term merely signifies that there are nations
and that they want to run their own affairs. In this sense, nationalism is
the opposite to imperialism, it is self-limiting and not expanding.
The modern European nations, as we know them, had arisen by the
turn of the 16th century, and resulted in the graduai political unification
of ethnically and linguistically closely related political groups; nation
soon became a democratic concept.
Nationalism-and I mean this as distinguished from imperialism
adopted the idea of non-separation, inasmuch as it aimed at the merging
of related ethnie groups into one nation. In some cases, like Switzerland,
merging was restricted to political institutions, within a clearly delineated
geographical area, and to the subjective factors of nationhood, notably
the will to live together, so that we observe the unique phenomenon of
a multi-ethnic nation.
Early in the 16th century, the concepts of nationhood and national
uniformity were formulated more or Jess explicitly; throughout this
period, and into the 17th century, there were the first national wars, in
the proper meaning of the word.
In 1776, the principle of independence was asserted by the United
States-or, more accurately, by the American revolutionaries-and it
was affirmed that the laws of nature and of "nature's God" entitle people
to a separate and equal station. The term separation was used to describe
the act of becoming independent.
During the French Revolution, and in the Napoleonic period, in elab
oration of the concept of popular sovereignty, the concept of the nation
state was born; during the Congress of Vienna, the nationality principle
was invoked for the benefit of France and Poland.
Mr. MULLER: Will you, very briefly, teU the Court how the nationality
principle developed further?
l\frPOSSONY: The early part of the 19th century saw the independence
movements· of Greece and Poland-of course, I am mentioning only
illustrative examples. Democratic revolutionaries, like Mazzini, and not
so democratic rulers like Napoleon III,placed increasing emphasis on
the principle of nationa!ity. The concept that each nation is entitled to
its own State, and that each State ought to have its own nation, was
formulated in the mid-19th century by the Swiss international jurist,
Bluntschli. Mancini, an ltalian international jurist, argued that inter
national law be based on the reality of nationhood. Liberalism was a
national movement; and the democratic movement which aimed at the
rule by the people, conceived of people bothin social and ethnie terms.
This also was the period of the rising nations, and an increasing awareness
of the distinctiveness of ethnie traits.
During the Danish crisis of the 1860s, the principle was formulated that
populabons should themselves make decisions about frontiers; they, and
not the governments, should decide with what population they wanted
to stay together, and from what population they wanted to separate
this was the principle of self-determination. The term "self-determina
tion" was fully in use during r864, and it may have been used before.
Self-determination was specdily embraced by nationalities which did not WITNESSES AND EXPERTS
have their own State, and for the benefit of Poland was insisted upon by
the First International, which was founded by the socialist world move
ment.
At the Congress of Berlin, in 1878, the principle of nationality achieved
a breakthrough, yet consent of the populations concerned was merely
presumed.
In 1896, the Second International, again for the benefi.t of Poland,
adopted the principle of self-determination as an important operational
concept. The nationalists of the time more often than not opposed the
principle.
I have gone into this history somewhat extensively, Mr. President,
because there is a misconception that the doctrine of self-determination
was formulated for the first time by the end of World \Var I. It is im
portant to recognize that representatives from quite different ideological
orientations did embrace this principle much earlier, and that, essen
tially, self-determination iswhat I would call a meta-ideological concept.
Mr. MULLER:Now, with regard to the principle of self-determination,
can you say whether this principle was applied for the purpose of ensuring
the integrity and independence of various nations, or was it applied for
other purposes?
Mr. PossoNY: Mr. President, the principle of self-deterrnination was
applied within the context of the international powers st:ruggle. When
ever emphasis on this principle suited the power interests of a particular
gove:rnment, .the principle was emphasized; whenever there was con
tradiction between the principle and the power interests, the principle
was ignored; at times the principle was simultaneously asserted in one
region and denied in another.
If we look at events without analysing their causes, it can be seen that
by the end of World War I, self-determination had replaced such prin
ciples as that of royal legitimacy and historie statehood in the areas of
the Habsburg Empire, and that it was partially applied within the area
of the former Czarist Empire; the old Ottoman Empire gave way to
States established according to the nationality principle, or some replica
of it. Furtherrnore, there had been some changes within the British
Empire, such as the establishment, dating much earlier, of Dominions;
Norway had separated from Sweden. Self-determination was not always
applied through plebiscites, but in some instances it was. Application of
the principle did not result, in every instance, in the creation of a pure
nation-State; multi-national structures did persist in Eastern Europe,
for example.
World War II also was fought, in large measure, about self-determina
tion, though, of course, many additional factors entered. Subsequent to
that conflict, further application took place, notably through liquidations
of colonial empires.
Sorne of the more recent applications of the principle of ethnie self
determination against earlier attempts to achieve integrated societies
include the independence of Algeria, in 1962, and the independence of
Singapore, in 1965. Sorne very current conflicts, such as Kashmir and
Cyprus, show that controversy about the right to self-determination
continues to be a patent factor.
Mr. MULLER:Are there limitations to the right of self-determination?
Mr. PossoNY: There are a number of problems for the solution of
which it would be unwise to consider factors of ethnie settlement in SOUTH WEST AFRIC.-\
654
separateness alone. For example, there may be a rcquirernent for access
to the sea. This rnatter carne up in connection with the Polish corridor
and, more recently, in the case of Fiume (Susak) in Yugoslavia. In other
instances, a nation may invoke its right of self-defence and insist on a
defensible frontier as was the case of Czechoslovakia. Often, economic
reasons may be validly adduced in favour of keeping a large multi-ethnic
state together. It is feasible, however, to separate the various national
groups and preserve thcir economic cohesion by common market arrange
ments.
i\IrMuLLER: \Vhat methods are there of giving effect to this principle?
i\Ir. Posso:s-v: Mr. President, self-determination may be implemented
in different ways, for example, through separation, partition, population
exchange, population removal and protective measures, such as minority
treaties and autonomy arrangements. In this context, I am using the
term "self-dctermination" as denoting the idea of national distinc
tiveness in the sense of Bluntschli, one nation-one State or one Statc
one nation. I am not discussing how and whcthcr the will of the popula
tions concerned is being determined.
The notion of self-determination applies, loosely speaking, not just to
nations, as was the early usage, or to peoples, as is prcsent United Nations
usage-denoted by the phrase "nations and pcoples"-but generally to
distinct communities.
The concept of community was defined in 1930 by the Permanent
Court of International Justice-this is my own translation from the
French, which is a fütle clumsy-as involving a collective-
"of persons living in a country or in a certain locality, having a race,
a religion, a language and traditions of their own and which [is]
united by the identity of that race, that religion, that language and
that tradition in a sentiment of solidarity, having the effect of con
serving their tradition, maintaining their cuit, assuring the instruc
tion and education of their children in conformity with the genius of
their race, and of mutually assisting one anothcr".
This is quoted from the Résumémensuel des Travaux de la Sociétédes
Nations, Volume X, No. 7. July 1930, page 219.
l\1rMULLER: You have said that one of the methods of giving effect to
the principle is separation. Can you mention a few examples where
separation has been applied?
Mr. Posso:,,v: Scparation, Mr. President, has been practised quite
often, for example, the separation of Holland frorn Germany, in the early
pcriod of the Modern Timc, and of the German-speaking parts of Switzer
land,at an even earlier period, and the separation of the United Colonies
in America from Britain, and subsequently, inside the United States, the
separation of West Virginia from Virginia. In 1830, Belgium and Holland
separated. Austria, which is a unit of German sub-culture, did not join
Germany after 1918 and it separated after having been seized from
Germany in 1945, with United Nations approval. By contrast, British
Togoland, following the national rationale, sought incorporation into
Ghana.
Mr. MULLER: What examples are there of partition-one of the other
mcthods mentioned by you?
Mr. Posso:,,v: Partition was practised in the case of lreland and for
convenience's sakc I will refcr, with respect to this case. to the documen- W1T~ESSES A:-,D EXPERTS 655
tation laid down in the Counter-Memorial, II, page 487. Thls partition
was essentially along rcligious lines. India and Pakistan resolved on
partition also and I refer to the Rejoinder, V, page 194, again for con
venience's sakc. Other partitions includc Ruanda-Urundi, which was
separated out into Rwanda and Burundi, and the British Cameroons, the
Northern part of which joined Nigeria while the Southern part associated
with the Republic of Cameroon (reference: Counter-1\lemorial, Il,
pp. 451 ff.). The Federation of Rhodesia partitioned into its original
components, as did the federation between Iraq and Jordan in 1958, and
in a somewhat Jess clear pattern, the United Arab Republic in 1961. 11Iali
and Senegal dissolved their federation in 1960. In 1964, inside the Federa
tion of Nigeria, Western Nigeria was split into two parts.
Mr. MUJ,LER: Now, you have also mcntioncd population exchanges
being one method. Would you briefly deal with that by quoting examples?
Mr. PossONY: Asto the technique of population exchange, l\1r.Presi
dent, such exchanges in some instances were facilitated by the interna
tional community. The classic exchangc was that of Greek and Turkish
populations some 40 years ago. This operation was painful to thosc who
were compelled to !cave. Many of the critcria for sclecting the individuals
who were allowed to stay were based on the fact of membership or non
membership in any particular ethnie or religions group. Difficulties arose
with respect to those persons who were affiliated through religion, an
cestry, marriage or offspring with more than one group. In many cases.
adjudication was accomplished by an international group.
Another exchange took place between India and Pakistan on a far
larger scaleand it was accompanied by much violence. In the case of
Israel, too, partition entailed population movements. Arabs movcd out
and Jews moved in,though there was no reciprocal exchange.
As to the population rcmoval, the ex_pelledgroup may be happy to go
or it may be chased away. The populat10n of Eastern Carelia was evacu
ated in 1940. Tamils are presently repatriatecl from Southern India to
Ceylon, where there already is a struggle betwccn the majority Singhalese
and the minority Tamils. By contrast, the expulsions of ethnie Germans
from Czechoslovakia, Poland and other Eastern countries were more or
less involuntary. It remains, in most of these cases, an open question
whether different methods might have been applied and whether better
solutions might have been found that would have respected the desire of
those who did not want to move.
11r.MULLER: The fourth method mentioned by you was protective
measures. Can you tell the Court what you mean by that description?
Mr. PossoNY: Yes, Mr. President, 1 will discuss this undcr the two
headings of minority treaties and autonomy, first dealing with minority
treaties.
After World War I, minority treaties werc instituted, practically for
the first time in history. Altogether r7 States or self-governing territories
were obligatcd concerning the treatment of minorities, including one
great power, namely Germany, one Asiatic State, Iraq, the free city of
Danzig, and Finland, for the Aaland Islands. This is laid down in detail
in the Economie and Social Council publication E/CN4/Sub 2/6 of 7
N"ovember 1947, page 3.
The system instituted by these treaties was one of indefinite duration
but it allowed for modification. Supervision of the protection accorded
to the minorities was entrusted to the League of Nations. However, the SOUTH WEST AFRICA
protecting State, whenever it was charged with violations of the Treaty,
had a seat on the Council, and since decisions were by unanimity, the
resolutions could be passed only with consent of the State concerned.
Accordingly, to quote a United Nations document of 1947, namely the
same document I just quoted, on page 8:
"In exercising the supervision it assumed, the League Council
used no methods other than persuasion or pressure of a purely moral
or political nature,to the exclusion of compulsory measures."
The term "minority" was not specifically defined but the treaty
Ianguage usually contained a general formula, viz., "racial, religions and
linguistic minorities". In many, if not most, instances, these categories
coincided.
One of the difficulties that arase, however, was that none of those
protected minorities had a high degree of what might be called, "visi
bility". Consequently. there were arguments as ta whether a particular
person or family was entitled ta daim minority status.
The minority treaties guaranteed protection of life and liberty, the
free exercise of creed, religion and belief, the use of the minority's awn
language and the right to establish at their own expense charitable,
religions and social institutions as well as schoolsnd educational estab
lishments, together with the right to teach their own language.
In the treaties and declarations relating to l\foslems, e.g., the case of
Albania, Greece and Yugoslavia, it was provided that "ail necessary
arrangements for regulating family Jaw and persona! status in accordance
with Moslem usage would be made". This quote is again from the same
publication, page 19.
The Declaration of 2 October 1921, Article II. paragraph 3, with
respect ta Albania, states as follows: "Suitable provision will be made in
the case of Moslems for regulating family law and persona! status in
accordance with Moslem usage." A somewhat similar wording, inciden
tally, was included in the treaty with Greece of 27 November 1919, and
Yugoslavia of ro September 1919.
The minority treaties provided ta each member of the minority the
right to the nationality of the State exercising sovereignty. The treaties
recognized the principles of strict equality between individuals belonging
to the minority element and those belonging to the majority, notably
equality of all persons before the law and equal treatment de facto and
de jure.
Sorne minority treaties, Mr. President. worked better than others and
many populations needing protection did not enjoy minority status. The
solution proved applicable to a certain class of cases characterized by
long cohabitation, geographic dispersion, explicit recognition of mutual
interest, and undesirability of alternate solutions. A mere minority
treaty, however, cannot provide the ethnie group requiring the protection
with political power or with the capability of participating as a more or
less equalpartner in decisions affecting its existence.
Mr. i\luLLER: You also mentioned autonomy as a protective measure,
would you kindly tell the Court what you mean by that?
Mr. PossoNY: .Mr.President, I think I can best deal with this by first
discussing the principle of autonomy by reference to the case of Austria
Hungary.
It may sometimes be relatively easy to establish nation-States but in WITNESSES AND EXPERTS
many areas and at many times this is almost impossible. If borders were
drawn to conform with precise ethnie settlements the map would be
cluttered by exclaves and enclaves, by dwarf States and by giants, and
many of the tasks of statecraft could not be accomplished.
Assuming that a near-perfect "fit" between State terri tory and ethnie
territory bas been achievcd, the arrangement soon might be invalidated
by migration.
This whole problem stood at the centre of attention during the last
50 years of the Habsburg Empire. The question was how to ensure to ail
ethnie groups their constitutional rights in terms, inter alia, of language,
culture, religion and representation, and to do so without disrupting the
State and without giving to some of the ethnie groups, due to their larger.
numbers and more advanced economic development, an overly dominant
position. The problem was complicated by the fact that while many of
the ethnie groups inhabiting the empire were living in a clearly delineated
territory,some had traditional territorial settlements, but also large
numbers of their nationals had dispersed to other areas.
In 1867, the so-called "dual system" was established separating in
effect Austria from Hungary. Ins1de Hungary, with somc exaggeration,
a policy of integration, that is of Magyarization was pursued, white inside
Austria the trend was towards separate development. However, Hungary
too, did not insist upon the intcgration solution for all cases but bestowed
autonomy on such countries like Croatia and Slavonia, and allowed
de facto autonomy in other areas. Inside Austria, the separate develop
ment solution ran into troubles.
In 1899, the Social Democratic Party of Austria came up with a con
structive solution sug~esting that Austria be changed into a democratic
federation of nationahties wherein each ethnically uniform body should
have self-government. Each district was to form an administration
essentially of the group that dominated in the district and ail the ethnic
ally like districts,hether they were contiguous or not, werc to be joined
into a national unit.
This solution was master-minded by Karl Renner who, after World
War II, served as the President of the Republic of Austria.
President Renner subsequently elaborated the concept in one key
aspect. Since an individual of any nationality may live anywhere, the
right of autonomous representation was to be attached to the person. The
individual was to be listed on an ethnie register and he was to vote within
bis national group, irrespective of the place of his domicile. Thus, the
Renner concept solved the vexations problem of ethnie dispersal. Each
ethnie group was to have self-government and was to develop on its own,
jointly with the other groups.
In modified forms, the proposais of the Austrian Social Democratic
Party were adopted in four electoral reforms in Moravia, Bucovina, Tyrol
and Galicia. There was an attempt to set up a similar reform in Bohemia
but the national struggle had reached such an intensity in that area that
compromise was not feasible. On the whole thcse reforms werc considered
to be successful.
11r. MULLER:Are there other examples, in addition to the ones you
have just mentioned, regarding the application of the concept of auton
omy?
;\Ir.Possor-.v: I will deal brief!y with the following examples: the
Ottoman Empire, Eastern Europe, Czechoslovakia, Poland, Lithuania, SOUTH WEST AFRICA
Rumania, Greece, Eritrea, the Soviet Union, the Vietnamese Republic,
Yugoslavia, the Peoples' Republic of China, Belgium and Puerto Rico.
The PRESIDENT:Is it necessary, Mr. Muller, to have ail these details
in relation to all these countries onthe subject of autonomy?
l\lr. MULLER:Mr. President, in this sense, yes. In these countries
provisions were made for certain particular groups. It will be very brief,
I can tell the Court.
llfr. PossoNY: ln the Ottoman Empire, Bulgaria and Wallachia were
given autonomy, but the arrangement turned out to be transitory and the
independent States of Bulgaria and Rumania emerged. Autonomy
arrangements on isJands in the Eastern Mediterranean also turned out to
be transitory.
ln Eastern Europe, the model of Switzerland was recommended in
1919 to the Eastern Europcans, but at Versailles, President Wilson was
opposed to autonomy because he feared that it might disrupt newly
created States. The President of the United States was probably unaware
of the solution worked out by the Austrian Social Democrats.
Czechoslovakia: ln the negotiations preceding the establishment of
Czechoslovakia, there was an original promise to provide Slovakia with
full autonomy. The promise was embodied in a treaty of 1919 but was
disregarded in practice. ln 1938, after the Munich Diktat, Slovakia, for a
short while, enjoyed genuinely autonomous status and promptly ob
tained independence. Carpatho Russia was given a semi-autonomous
status from the start; its autonomy became strong after 1938 but the
arrangement also proved unstable. The Sudetenland was denied
autonomy and an integrative solution was tried but did not work.
Poland: the autonomy solution was not practised by Poland. By
contrast the solution of a free State was applied to Danzig, that is, full
independence en miniature under the League.
Lithuania: There was a successful application of the concept in
Lithuania where Memel enjoyed autonomous status. In all these cases
however, the notion of persona] autonomy was not applied.
Rumania: Autonomy had been promised to Bessarabia but the promise
was not kept. It could have been applied to various cases throughout
Eastern Europe. In several countries, for example, there was potential
applicability in favour of the Jews. However, Rumania gave limited
autonomy in scholastic and religious matters to the Szeklers and the
Saxons.
Greece gave religious, charitable, and scholastic autonomy to the
Valachs of Pindus and reconfirmed "the traditional rights and liberties
enjoyed by the non-Greek mona.stic communities of Mount Athos" under
Article 62 of the Treaty of Berlin of 13 July 1878.
The United Nations General Assembly resolution 289 (NA), 1949, set
up a commission to determine "the views of the various racial, religious
and political groups" inhabiting Eritrea. Subsequently, Eritrea became
an autonomous federated part of Ethiopia (1950). In 1962 the National
Assembly of Eritrea voted for union with Ethiopia, another case of short
lived autonomv.
Soviet Union: One of the most interesting applications of thinking
about ethnie representation has taken place in the Soviet Union. Both
Lenin and Stalin studied the Austrian nationality problem before World
\Var 1. They fully embraced the principle of national self-determination.
Parts of the Czarist Empire like Poland and the Baltic States, temporarily WIT~ESSES A~D EXPERTS
the Ukraine and the Caucasian States, as well as Finland, which had
enjoyed autonomous status under the Czars were allowed to go their
own way.
The Soviet Constitution of 1922 rcflects considerable theoretical work
and a sophisticated understanding of ethnie factors.
The present Soviet Constitution, according to the count I made,
acknowledges altogether 43 ethnie groups. The nations and peoplcs
within the U.S.S.R. are organized on four clifferent levels: those which
are most advanced and largest, and which also have a border coinciding
with the border of the Soviet Union, that is the over-all federation, those
form the so-called Union Republics. Those, essentially, are the 15 mem
bers of the Soviet federation. There are furthcrmore Autonomous Soviet
Socialist Republics, Autonomous Provinces and National Districts. Sorne
of the Union Republics themselves are federally structured.
The various ethnie groups, therefore, have each their own territory
and they run their own affairs through organs of self-government. They
have their own cultural institutions and they enjoy the full use of their
own language. The fondamental principle of autonomous development
in a homeland is being applied.
Russian serves as lingu.a franca and is used in institutions of higher
learning.
In the course of the economic development plans which the Soviet
Government has been executing, populations were moved in large num
bers. As a result, many persans moved into areas where they do not
belong ethnically. Undoubtedly economic development was accelerated
in this fashion, but the local ethnie group may have lost contrai in its
own terri tory. While 43 ethnie groups are acknowledged, there are in the
Soviet Union more than a hundrcd. The principle of persona! autonomy
could have been applied but it was not. The Soviet Constitution certainly
does recognize the right of all ethnie groups to preserve their own identity.
According to the 1959 Constitution of the Vietnarnese Republic-this
is quoted from Interparliamentary Union, Constitutional and Parliamen
tary Information, October 1963, pages 173-174, and following:
"AU nationalities shall have the right to preserve or to exchange
their own customs and habits, to use their spoken and written
languages, and to develop their own national cultures. [Leaving out
a few words] The State shall endeavour to help the national minority
to advance rapidly."
Aftcr World War Il, Yugoslavia was re-cstablished according to a
broader comprehension of the nationality probkm than was noticeable in
1919. Presently there are six federated states within Yugosla\'ia instead
of three as there were bcfore, and thcrc is moreover an autonomous
province and an autonomous district within Serbia. According to Article
43 of the Yugoslav Constitution, cvery nationality and national minority
"shall have the right to use its language freely, to develop its culture and
to found organizations to this end". This article also stipulates that in
struction shall be in the language of the nationalities.
The Peoples' Repu.blic of China, according to its Constitution of 1954,
describes itself as a "unified, multinational State", wherein "regional
autonomy applies in areas entircly or largely inhabited by national
minorîtîes" (this is in Article 3). Autonomy is provided for on several
levels. According to Article 60, the authorities running autonomous areas660 SOUTH WEST AFRICA
are entitled "to take specific measures appropriate to the characteristics
of the nationalities concerned". This is quoted, Mr. President, from
Interparliamentary Union, Constitutional and Parliamentary Information,
l November 1954. pages 141, 151 and following, and 154. The Chinese
Constitution in Article 3 gives to aH the nationalities "freedom to use
and foster the growth of their spoken and \vritten languages, and to
preserve or reform their own customs or ways". Itprohibits "discrimina
tion against or oppression of any nationality", and ties discrimination
and oppression together with "acts which undermine the unity of
nationalities".
The Belgian Constitution of 1831, which is now one of the oldest in the
world, ignored the national problem, though it proclaimed full language
rights. Despite a Flemish majority, French was adoptecl as the official
language. Gradually, when it became apparent that French was gaining
rapidly, the Flemish people became alarmed and insisted on their lin
guistic rights. A Flemish desire to maintain a distinct community becarne
ever more pronounced, and in 1932 a statute was promulgated making
Flemish the official language in the Flemish areas. French was preserved
as the official language in the Walloon areas. In mixed districts and in
the Congo both languages were official.
After World War II a new dispute arose from the fact that the Wal
loons, who are smaller in numbers than the Flemish, found themselves
in the position of a constant minority. Consequently, a constitutional
reform is under debate which is based on the principle of qualified
majorities. The fundamental purpose is that each of the two communities
can exercise veto rights, irrespective of its numerical size and the size
of its vote. According to this prospective constitutional reform, universal
suffrage would be retained, but the value of each vote would be different
according to the conununity of the voter.
The Constitution of Puerto Rico, Article III/7A, is based on the notion
that a two-party system must be preserved, and it has provisions to
ensure that the second party, whatever its record at the poils, possesses
a minimum strength in the Legislature; this is quoted from Interparlia
mentary Union, Constitutional and Parliamentary Information, r954,
page rr7. Thus there is positive discrimination, if I may use the word in
this context, in favour of the weaker party.
Ail this, Mr. President, can be summarized by saying that whenever
it isa matter of organizing the cohabitation of different groups, arrange
ments must be made and routinely are being made to protect each group.
The preservation of ethnie integrity is commanding highest priority,
irrespective of any other advantages that may accrue from the close
relationships between differcnt ethnie groups.
Mr. MULLER: Professer Possony, are there in the world today broadly
gauged systems of group differentiation by law?
.Mr.PossoNY: Four types of basic systems may be distinguished; with
your permission, I will discuss them under four headings. ·
The PRESIDENT:May I just interrupt for a moment? Mr. Muller, I can
understand the general direction of the evidence that you are presenting
having regard to the case which the Respondent is presenting in its turn
against that of the Applicants, but in your letter you state that the
evidence is to be directed to the absence of a general practice of a sug
gested norm and/or standard of non-discrimination and non-separation
as relied upon by the Applicants. During the course of the examination of WITNESSES AND EXPERTS 661
the previous witness-you may not have been in Court-I drew the
attention of Mr. Rabie to what seems to me to be the proper procedure in
terms of presenting expert evidence upon an issue; this is to draw
attention to the particular issue, to ask the opinion in general terms or
specific terms of the expert upon that issue and then to ask his reasons.
So far you have not indicated at ail whether the evidence of the witness
is to be directed to the norm of non-discrimination and non-separation
as defined by the Applicants; it is not a norm of non-discrimination or
non-separation as anybody wants to interpret it, but as defined by the
Applicants. Is your evidence going to be connected up with the norm
and/or standards as defined by the Applicants at IV, page 493 of the
Reply?
Mr. MULLER:Yes, Mr. President, with respect. The norm of the Ap
plicants as there defined is one of non-separation or non-discrimination
on the basis of membership in a group, class or race. The evidence thus
far, M.r.President, partly being history upon which the witness will later
base certain opinions, but otherwise also of differentiation that has been
made in the past with regard to particular population groups finding
themselves either as minorities or as separate sections of the population
in the world. With respect, Mr. President, that evidence goes to show that
in the past"there have been acts of separation between thesegroups, or
differential treatment upon that basis.
The PRESIDENT:Yes, Mr. Muller. But I think that the definition which
is given at IV, page 493, perhaps might be read between now and when we
return from our recess, and if you assure the Court that you propose to
connect it up with that definition, then I will have nothing more to say.
Mr. MULLER:With respect, Mr. President, all the evidence will be
directed towards the norm as described on page 493; it will be diffi.cult
for me to put the norm every time that the witness is dealing with a
particular country.
The PRESIDENT:Of course it is, l\Ir. Muller, but you have not put it to
him once yet, you know.
Mr. MULLER:But Mr. President, he is describing what is being done in
varions countries in the world, and I will then finally, if the Court permits,
ask him to indicate whether, on the evidence that he has given, such a
norm is observed or not.
The PRESIDENT:It is still my view, Mr. Muller, that the proper course
always in presentation of the view of an expert is to bring him to the
issue imrnediately and ask for his opinion before you ask for his reasons.
At the present moment the witness has not been evcn asked whether he
has read that definition, whether he understands it and whether bis evi
dence is directed to it.
Mr. MULLER:Mr. President, may I, before the witness starts again, say,
with reference to the remarks made by you, "Mr. President, before the
adjournment, that the position of this witness is one of witness on fact as
well as an expert. The intention was that be would first of all deal with
factual situations in the world and then at the end express an opinion.
However, if the Court prefers that he should express an opinion before
he deals with the facts, I am quite prepared to put to him the question
which I intended to put at the end. So, with your permission, Mr. Presi
dent, 1 shall now putto him a question which was intended to corne at
the end of his testimony on facts.
The PRESIDENT:I think that is the better course to pursue.662 SOUTHWEST A1'"RICA
~Ir. MuLLEJc As the Court plcascs. Professor Possony, it is contended
by the Applicants in this case that there is in existence an international
norm of non-discriminabon or non-separation which they say prohibits
the ailotment by governmental policies or actions of status, rights, duties,
privileges or burdens on the basis of membership in a group, class or race.
Can you from your experience and study say ...
Mr. GROSS:Mr. President, I must just ...
The PRESIDENT:Just a moment, Ilfr. Gross. I think Mr. i\Iuller, you
should continue the quotation "rathcr than on the basis of individual
merit, capacity or potential".
Mr. MULLER:Yes, Sir. I am giving you my interprctation, with respect,
l\1r.President, of the norm of non-discrimination or non-separation as I
understand it. If the Court wants 1 can read what the Applicants say at
the page to which they refer-that is 493-and whcrc they say they do
define the norm.
The PRESIDENT:Do you want to address the Court, ~fr. Gross?
Mr. GROSS:Oh no, Mr. President, thank you Sir.
The PRESIDENT:1 think it is bctter Mr. Muller, becausc then there
cannot be any suggestion that the norm and/or standard as defined is
not that which is stated by the Applicants.
~Ir. l\1uLLER:As the Court pleases. I shall read to you, Professor
Possony, at IV, page 492, at the bottom of the page, over to 493 of the
Applicants' Reply. This is what they sayon the pages indicated.
"Applicants, on the other hand, insist that the allotment by
governmental policy and action, of rights and burdens on the basis
of membership in a 'group', irrespective of individual quality or
capacity, is impermissible discrimination outlawed by legal norms
well-established in the international community.
In the following analysis of the relevant lcgal norms the terms
'non-discrimination' or 'non-separation' are used in their prevalent
and customary sense: stated negatively, the terms refer to the ab
sence of governmental policies or actions which allot status, rights,
duties, prjvjJeges or burdens on the basis ofmembership in a group,
class or race rather than on the basis of individual mcrit, 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 Jaws to individual persons
as such."
.Now,can you from your experience and study say whether as a matter
of usage and practice in the world there has been observance of such a
norm?
l\frGROSS:Mr. President, objection on the grounds gcnerally stated
previously. May the objection be noted and reserved?
The PRESIDJDtr: The objection may be noted but the witness may
reply.
l\lr.PossONY: l\Ir. President, I can state that in my judgment on
reading the 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, notably the question of differentiation in
general, allotment, separation and equality of opportunity. As I go on
I will be able, I think, todd additional evidential points on othcr parts
of the norm, or alleged norm. WITNESSES AND EXPERTS 663
Mr. GROSS:Mr. President, to the general objections already made, in
the light of the question and responsc, may the Applicants also note
the objection that the opinion just rendered is, with respect, a legal con
clusion regarding the existence or not of a rule of international law,
presumably, in this sense, according to Article 38 (r), paragraph (b).
The PRESIDENT:\Vell, opinions upon that may not agree with your
conclusions, Mr. Gross. The witness is being asked as an expert in respect
of practicc throughout the world, and he can give his answer to that
having regard to the provision of Article 38 of the Statute of the Court,
and then the value to be placed upon his answcr will be determined by
the Court.
:llfGRoss: Mr. President, may I with respect, refer-very briefly
because of the confusion engendered on the Appllcants' part with respect
to the distinction sought to be drawn by Respondent between the evid
ence, expert or otherwise, with regard to fact, and legal conclusions which
might be drawn therefrom, which would be appropriate for the Court, to
refer to the statement by Mr. de Villiers which was made in the verbatim
record of 22 June 1965, in which, at X, page 136, Mr. de Villiers summa
rized the position on this very point of the purpose for which witnesses
would be called, and stated as tollows, referring to a letter he had
,vritten:
"I made perfectly plain our position as to the manner in which we
would set about answering the Applicants' case as we understood it;
and we made it perfectly plain that in so far as the Applicants rely
upon a suggcsted practice of States so as to establish a rule of
customary law, in terms of Article 38 (r) (b) of the Statute, we con
sidered that to be a matter of fact to which evidence could be
directed."
That, Sir, has since been the Applicants' understanding of what the point
is to which the evidence is sought to be directed, as evidence with
regard to fact rather than the conclusions or opinions with respect to the
legal status to be derived from the practice testifi.ed to as a fact.
The PRESIDENT:\Vhatever counsel said at that particular point does
not bear, with respect, Mr. Gross, upon the presentation of this witness.
This witness is presented in accordance with procedure laid down by the
Court, and if that procedure has been followed sufficiently and the Court
allows the evidence, that determines whether the witness may be called
to give evidence, and it will subsequently be for the Court to determine
the relevance of his evidence either on fact or on law and the weight to
be attributed toit as I have already made clear.
Mr. MULLER:Mr. President, may I pleasc be permitted to answer to
what my Iearned friend has stated relative to the case which Mr. de
Villiers indicated could be made by evidence?
The PRESIDENT:Weil, if you so desire, Mr. Muller.
Mr. Mm.LER: Mr. President, I did not ask the witness to state whether
there was a norm in existence. I asked the witness to state whether in
practice such a norm is observed. Now, on the very day and in the very
verbatim record my Jearned fricnd refers to, you, 11r. President, asked
this question of my learned friend to elucidate his position to the Court.
May I read, with respect, the question asked and the answer given?
The PRESIDENT:Please do.
Mr. MULLER:The question, Mr. President, put by yourself was: SOUTH WEST AFRICA
"Mr. Gross, before you resume your seat, could you make clear to
the Court the reasons that you advance why no evidence can be
given in relation to practice, in terms of establishing, or refuting,he
existence of the customary rule of law evidenced by practice in
terms of Article 38 (b) of the Statute. Do I understand you to say
that no evidence whatever can be adduced before the Court in terms
of the practice existing in other countries?"
And the reply of my learned friend, Mr. President, was to the following
effect:
"Mr. President, the Applicants answer to the President's question
is that the Applicants have not taken such a position, but the
Applicants have not understood from the proffered evidence by the
counsel that the questions to be addressed to this witness, or indeed
any other witness, relate to questions of practice or other facts that
are, if I may again quote as part of the response to the honourable
President's question, 'whether a norm and/or standards such as
contended for by Applicants exist'."
1\fr. GROSS:Mr. President, the Applicants were well aware of that
colloquy and reaffirm it and nothing that was just now said is intended
or is indeed inconsistent with it. Sir, the distinction as sought to be drawn
can be stated in one sentence: that the Applicants have had no objection
and perce.ive no objection ifthe Court so wishes that testimony be ad
dressed to the Court with respect to the practice of States. The question,
and sole question, which the President has already expressed to be one,
and I do not press, is of course the separate and distinct issue whether or
not it is admissible for the witness to express a legal judgment or to be
asked by counsel to express a legal judgment concerning the existence,
or otherwise, of a rule of international law, as distinguished from the
practice of States, from which such a legal conclusion could be inferred
by a Court. And, Sir, I did want to say that this is not in any way in
consistent, in our judgment, with the statement which has been read by
Mr. Muller.
The PRESIDENT:Mr. Gross, I think there is some misunderstanding.
The witness is asked a question which relates to general practice. It
might be said to be a question which is partly of fact and partly of law.
It might be a question which he answers partly in his capacity as a
witness on fact, on his enquiry into fact, and partly by the interpretation
he places as an expert in various disciplines upon certain legal instru
ments. But whether it is a mixed question of law and fact, or of fact only
it is the view given by a witness who testifies upon both as an expert and
as a witness. Itis not a conclusion of law to state that in his view as a
matter of general practice, having regard to the reasons which he gives,
there is or is nota norm or standard such as the Applicants contend for.
Continue, Mr. Muller.
Mr. MULLER: As the Court pleases. Professor Possony, are there in the
world broadly gauged systems of group differentiation by law?
Mr. Possoxv: Mr. President, there are four systems of broadly gauged
basic systems that can be distinguished. With your permission I will
discuss them under four headings. First, the Asiatic system of pluralistic
societies, second, certain systems in the Eastern Mediterraenan, third,
the pluralistic system in the Islamic countries and fourth, the systems in
various countries dividing advanced from aboriginal groups or providing WITNESSES AND EXPERTS 665
differentiation between tribal groups. In addibon, of course, there are
specific provisions of differentiation in many countries.
Mr. Mm.LER: Now, would you discuss what you have referrcd to as the
Asian systems and tell the. Court which countries you have in mind?
Mr. PossoNY: I will discuss the Asian systems of Burma and lndia.
The Constitution of Burma of 1947, which is in Peaslee, Constitutions of
Nations, Volume 1, pages 279 and following, faces up to the problem of
multi-ethnic composition. Itrecognizes, in Article21, the special position
of Buddhi.;m as the faith professed by the great majority, but also re
cognizes other religions, including Islam, Christianity, Hinduism and
Animism. The Jegislature is broken clown into a Chamber of Deputies
and a Charnber of Nationalities which are, with the exception of financial
matters, co-equal in rank. The Shan State, which represents an ethnie
group, constitutes a State council of the Shan representatives in Parlia
ment and its representatives in the Chamber of Nationalities are especi
ally elected by a Shan body. The Minister for the Shan State, who is also
its temporary hcad, is appointed by the President of Burma in consul
tation with the Shan State Council.
A similar arrangement exists for the Kachin State, except that
minorities within that state have reserved representation within the
Kachin quota in the Chamber of Nationalities. (Ibid., p. 307.)
Similar provisions are envisaged, and may be in force, for the Karen
State, upon self-determination by the Karen people of their status. This
was laid down in 1947.
The position of the Chins, another ethnie group, is regulated by
analogy, though on a somewhat lower level.
The fondamental concept is that of self-government and preservation
of ethnie identity.
Mr. MULLER: What is the position in India, Professor Possony?
Mr. PossoNY: In India there is a strong distinction between the 14
, States which make up the Indian Federation and the six territories. The
States were reorganized in 1956 to conform, by and large, with linguistic
regions. This is laid down in Peaslee,Constitutions of Nations, Volume II,
pages 223 ff.which has the early version, and the reform is explained in
the Human Rights Yearbook, 1956, pages n6 and following.
The territories now include outlying islands and are managed by the
President through administrators. In addition, there are the Scheduled
and Tribal Areas which are handled by arrangements which resemble a
"national mandate". There are further differences between the Scheduled
Tribes and the Scheduled Tribes in the Tribal Areas of Assam, and the
Scheduled Tribes in the autonomous districts of Assam. This is a com
plicated set-up going clown several steps. In addition there are the
Scheduled Castes.
For all these territorial groups 20 seats are reserved in the House of
the People. The central authorities have considerable freedorn to make
changes in the administration.
Article 335 prescribes that the_"daims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into consideration in the
making of appointments". (Ibid., p. 312.) According to the Indian
Constitution's Fifth Schedule-this is actually an appendix to the
Constitution-tribes are administered directly by Tribal Aclvisory
Councils. The authorities on the level of the Governor may decide how ta666 SOUTH WEST AFRICA
apply or not to apply national legislation in a given Scheduled Area.
(Ibid., pp. 344 ff.)
Schcduled Areas may be established, abolished or changed by the
President of India.
According to Article 388, which is in Peaslee (ibid., pp. 332 ff.): "Ail
the Scheduled Castes in any Province or State shall be deemed to be a
single community."
Those who think that the caste system is being abolished will be
surprised to learn that according to the Manual of Election Law, published
by the Government of India in 1951, and which apparantly continues in
force, no lessthan 804 castes are listed for the ABC States-this was the
old division of States which was abolished in 1956. The number of
Scheduled Tribes is smaller but is still considerable.
According to Article 338, in Peaslee, Constitutions of Nations, Volume
II, page 313, the Indian President appoints a special officer for Scheduled
Castes and Scheduled Tribes, who is to investigate all matters relating to
safeguards provided for the Schcduled Castes and Scheduled Tribes and
to report to the President. According to Article 340, the President may
appoint commissions to investigate conditions of socially and education
ally backward classes and the difficulties under which they labour in
order to make recomrnendations for the removal of such difficulties and
the improvcment of their conditions.
Section 46 of the Indian Constitution provides as follows:
"The State shall promotc, with special care, the cducational and
economic interests of the weaker sections of the people and in
particular, of the Scheduled Castes and the Scheduled Tribes and
shall protect them from social injustice and all forms of exploita
tion." (Ibid., p.233.)
Furthermore, Article 29 (ibid., p. 230) gives to:
"Any section of the citizens, having a distinct language, script
or culture of its own ... the right to conserve the same."
Article 30 (ibid., p. 230) states that:
"Ali minorities, whethcr bascd on religion or language, shall have
the right to establish and administer educational institutions of their
choice."
Now, in 1956, two new Articles were added, numbers 350 (a) and 350
(b), which provide for mother-tongue instruction at the primary level
and establish a special officer for linguistic minorities, reporting to the
President.
In regard to land, it is specifically provided that the Governor may
make regulations-Fifth Schedulc, Section 5 (ibid., p. 345):
"(a) To prohibit or restrict the transfei· of land by or among
membcrs of the Scheduled Tribes in such area;
(b) regulate the allotmcnt of land to members of the Scheduled
Tribes in such area."
The Sixth Schedule, which applies to the tribal areas in Assam provides,
inter a!ia, that (ibid., 347):
"If there are different Scheduled Tribes in an autonomous district
the Governor may, by public notification. <livide the area or areas
into autonomous regions." (Art. I (2).)
Within an autonomous region, regulations may be made with respect,
inter alia, to: WITXESSES AND EXPERTS
"The allotment, occupation or use, or the setting apart of land,
other than any land which is reserved forest, for the purpose of
agricultural or grazing or for residential or other non-agricultural
purposes or for any other purpose likely to promote the interests of
the inhabitants of any village or town."
This is Article 3 (r} (a) (ibid., p. 348).
Article 4 (r) deals with the institution of courts (ibid., p. 349): "For
the trial of suits and cases between the parties all of whom belong to
Scheduled Tribes." Such courts operate in some areas "to the exclusion
of any court in the State".
A further example of representation on a group basis in India is that
of the so-called "Anglo-Indian community", found in section 366 (2) of
the Constitution. (Ibid., p. 322.)
Section 333 of the Constitution provides that, notwithstanding section
170 (which provides for the composition of the Legislative Assembly or
of a state on a territorial basis) the Governor of a state may:
"... if he is of the opinion that the Anglo-Indian community needs
representation in the Legislative Assembly of the State and is not
adequately represented therein, nominate such number of membcrs
of the community to the Assembly as he considers appropriate".
(Ibid., p. 312.)
In addition, it may be mentioned that an Act of 1956, a separate Act
that is, confirmed that Hindus, Moslems, Christians, Parsees and Jews
have each their specific succession 1:iws. This is laid down in Human
Rights Yearbook, 1956, page 121.
There are also standard budgetary provisions to raise the level of
administration of the Tribal Areas.
lt is therefore apparent that the Indians have been facing up to the
problem of diversity in a realistic manner.
The PRESIDENT:Now, \Vhat are the conclusions drawn by you from
ail you have said apart from what is apparent, in relation to the practice
of the norm of non-discrimination or non-differentiation?
Mr. PosSONY:Mr. President, the Constitution here makes a number of
allotrnents ...
The PRESIDENT:I am asking your conclusions. What are your own
conclusions?
Mr. PossoNY: My conclusion is that the Constitution of India is actual
ly responsive to the problem of ethnie diversity and has made various
arrangements through which the identity of the various ethnie groups is
protected and the progress of thcse groups ensured, in essence. It is not
a Constitution that is based on the notion that groups can be disregarded.
It is specifically based on the notion that groups are a reality and that the
constitutional arrangements are most effective if the group diversity is
fully taken into account.
The PRESIDE:-.T:Thank you.
Mr. MULLER:Now, you have mentioned certain systems in the Eastern
Mediterranean. \Vhich particular systems have you in mind to deal with?
l\IrPossONY: I would like, if I may, Mr. President, to discuss Cyprus
firstand then tum to Lebanon.
The notion that a multi-ethnic population can be administered through
a unitary State is in contradiction with the Constitution ofCyprusof 1960,
according to which various positions in the Government are allocatcd on668 SOUTH WEST AFRICA
a group basis and each group is authorized to run its own cultural in
stitutions. The Cyprus Constitution was sponsored by the United Na
tions, but it has proved unsatisfactory to the Turks because itassigns
ministerial chairs and legislative votes according to a fixed seven to three
ratio, with the result that the Turks always must remain minoritaire. The
Greeks, on their part, are unhappy about the guarantees that were given
to the Turks.
Specifically, the Constitution of Cyprus has the following provisions:
Article I provides for a presidential regime, the President to be a
Greek and the Vice-President to be a Turk. The President is to be elected
by the Greek community and the Vice-President by the Turkish com
munity.
Article 2defines the method by which the inhabitants are divided into
two groups, namely the Greeks and the Turks. Obligatory allocation
depends on origin, language, cultural traditions and religtous beliefs.
Citizens not falling within the obligatory classification are obliged to
choose to which community they shall belong. ln terms of Article 2 (S)
individuals who fall within the obligatory classification are not free to
join the other community as a matter of choice. They may do so only if
they comply with certain formalities, and are approved and accepted by
the communal chamber of the community they wish to join. This was,
Mr. President, Article 2.
Article 63 provides that there shall be separate clectoral lists for the
Greek and the Turkish communities, members of the Greek community
being precluded from the Turkish electoral list and vice versa.
Article 46 prescribes that the Council of Ministers shall consist of seven
Greeks and three Turks.
Article 62 prescribes that 70 per cent. of the Legislative House of
Representatives shall be elected by the Greek community.
Article72 prescribes that the President of the House of Representatives
shall be a Greek, elected by the Greek representatives, and the Vice
President a Turk elected by the Turkish representatives. Their functions,
even during a temporary vacancy, can be performed only by a member
of the same community. This is in Article 72, sub-paragraphs 2 and 3.
Articles 86 and 87 provide for communal chambers for each of the
communities. These chambers have certain legislative powers, for
example in regard to education (Art. 87 (b)). Each community has its
own schools, devises its own curricula and appoints its own teachers. It is
implicit in these Articles that no provision is made for chitdren of one
community to attend the schools of the other community.
Articles 123, 129 and 130 prescribe the percentage of each community
which is to man the public service, the armed forces and the police force
respectively.
Article 173 provides that in the five largest towns separate municipali
ties for eachcommunity shall be created, with councillors belonging only
to the respective community elected only by such community. Such
municipality can levy taxes, rates, etc., but only on members of its own
community (Art. 174), and that with certain exceptions. This is ail laid
down, Mr. President. in Interparliamentary Union, Constitutional and
Parliamentary Information, 1960, pages 141 and following, and 196r,
pages 1-44.
There was last week a news story in the New York Herald Tribune
(European Edition) of 13 October (p. 2), according to which new negotia- WITNESSES AND EXPERTS
tions are being conducted under United Nations auspices between the
Cypriot Turks and Greeks, and new proposais have been made by the
Greek community. I will read one paragraph, with your permission, from
the Herald Trilnme story:
"The Government declaration includes a code of fundamental
rights and freedoms in accordance with the UN Declaration of
Human Rights, and autonomy for all minority communities in
education, culture, religion, persona! status and related subjects."
Mr. MULLER: Professor Possony, you mentioncd that another country
in that area which you wished to deal with is Lebanon. What is the
position with regard to Lebanon?
Mr. PossONY: The Republic of Lebanon, which was a Mandate once of
the League of Nations, administered by France, is a State which, in its
entirety, is organized along the principle of differentiation. The Lebanese
State arose from a Christian community that existed within the Ottoman
Empire where it enjoyed protected status in line with Islamic 1aw
according such protection to religions based on the Bible.
During the first half of the 19th century, an attempt was made to
impose large portions of Ilfoslem law on the Christian community. This
attempt failed. By 1864, the Christian groups in the Lebanon occupying
an area about one-third of the present State territory achieved autonomy.
The tcrritory was then administered by a Christian govemor inside the
Ottoman Empire. The Islarnic groups were explicitly recognized as
having their own status, and the Christians too were subjected to the law
of their own communities.
In 1914, in connection with the out break of \Vorld War I, the Ottoman
Empire abolished the autonomy of Lebanon. In 1917 religious-communal
jurisdiction was also abo1ished.
ln 1920 France assumed ber Mandate over the present area of Lebanon,
and religious-communal jurisdictions were re-established. Several at
tempts were made by French authorities during the 1920s to introduce a
uniform system based on modern civil law, but these attempts failed.
The Mandate for Syria and Lebanon of 24 July 1922 contains this lan
guage: "Respect for the personal status of the various peoples and for
their religions interests shall~be fully guaranteed." This 1sin the Official
Journal of the League of Nations, August 1922, pages 1013-1017.
In 1938 there were again attempts by the Mandatory Power to achieve
legal civil uniformity,and again these attempts failed. On 2 April 1951
the Independent Republic of Lebanon promulgated a law on persona}
statute which redefined the competence of the Christian and Jewish
communities. In r953 the Lebanese Parliament proposed that a uniform
jurisdiction be worked out for the Republic. The resolution was adopted,
but it was never acted upon.
Mr. MULLER: What is the basic difficulty of achieving uniformi ty in
Lebanon?
Mr. PossoNY: There are in Lebanon rr Christian communities, in
cluding the Armenians, who are recent immigrants and constitute about
one-fifth of the population in the Lebanese capital. There also is a Jewish
community which is settled almost exclusively in the Jewish quarters of
Beirut and Tripolis. The Moslems in turn are divided into three groups,
arnong them the Shiites, who achieved their status only under the French
Mandate. ln addition there are Palestinian refogees, who account for SOUTH WEST AFRICA
670
approximately 7 percent. of the total population, but who have not been
incorporated in the Lebanon, among other reasons because their naturali
zation would upset the prcsent delicate equilibrium between the various
communities. And a still further complication arises because Lebanon is
a country of emigration. Exact figures on Lebanesc emigration are not
available, but according to the best estimates it seems that about one
third of the Lcbancse populations are living abroad. There is an argument
between the Christian and the Islarnic communities whether the Lebanese
who have emigrated but retained their nationality should be counted, or
whether thcy should be ignored, in the allocation of political representa
tion to the various communities.
This system, in terms of numbers of recognized communities, has been
growing in complexity. There are now more communities than there were
before. In the Islamic tradition, religious affiliation dominates over ethnie
affiliation. ln fact, one could speak of ethnie groups differentiated by
religion. Thus, a religious community is at the same time an ethnie group
or a sub-group. Each community tends to be living on its own within the
towns; and villages tend to be inhabited by one community, or are neatly
divided betwecn several communities. Moreover, some of the communities
handle their own social security arrangements. There are very few con
versions, and each Lebanese necessarily belongs to a community. He is
able to quit his community only by inscribing in another.
Mr. MULLER: What is the present political arrangement in Lebanon?
Mr. PossoNv: The political system is firmly based upon the notion of
proportionate representation, which is recognized in Article 95 of the
Constitution. This article can be found in Pe·aslee,Constitutions of Nations,
Volume Il, page 582. But beyond the Constitution there is the so-called
Pacte Nationale. which is not in writing, but we know about it from a
former President of Lebanon and it is also referrcd to in the book by
Professor Khalil, The Arab States and the Arab Leagi,e, Volume I, page
124. In addition there is the Electoral Law of IO l\farch r922 which de
fmed the general electoral arrangement and which is confirmed in
Article 24 of the Constitution. The seats in Parliament are allocated to
the various communities. The Moslems and Christians arc divided accord
ing to the ratio of five-elevenths to six-elevenths. Each electoral district
has its predetermined confessional complexion; for example, the city of
Tripolis with fi.ve seats has four Sunnite and one Greek Orthodox re
presentati ves.fncidentally, this whole breakdown of the electoral arrange
ment is reprinted in Human Rights Yearbook of the United Nations,
1950, page 186. Within the electoral district, the voters must choose from
among candidates belonging to the community which is entitled to the
scat as such. Itdoes not matter whether the voter belongs or does not
belong to the particular community, whose representative will represent
him in Parliament.
The main Officesof State also are divided according to a pre-established
key: each particular high position will be occupied by a member of one
rather than another community.
In so far as bureaucratie positions are concerned, the Lebanese Con
stitution, Article 12, states that ail Offices are attributableon the basis
of merit and competence, but there is also the idea of proportionate
representation of the communities laid down in Article 95.
A Lebanese parliamentary commission, reporting in 1927 on the
problem of proportionate representation, stated that the Lebanese people WITNESSES AND EXPERTS 671
is composed of a number of communities cach having religious convic
tions, its own mentality, customs and traditions. If the system of propor
tionate representation were abolished, one of those communities would
achieve preponderance to the detriment of others. The result would be
jealousy, resentrnent and perhaps continuous trouble. The moment had
not yet corne, the commission stated, to abandon a system dating back
for scvcral centuries. The system is still in force, and what is perhaps more
important, the system corresponds, or seems to correspond, to the wishes
of the population.
Mr. Mm.LER: Professor Possony, as other measures of differentiation
you mentioned pluralistic systems in the lslamic States. Will you deal
with that, and first tell the Court what you mean by pluralistic systems?
11Ir.PossONY: Islam has been a religious, social and partially ethnie
system practising differentiation in varying degrees, in many important
aspects of life. Differentiation is effected in three basic respects: first, the
separation of multiple groups within societics dominated by Moslems and
within societies in which large numbers of M:oslemsare living; second, the
differcntiation on many persona! and legal grounds between l\Ioslems and
non-Moslems; and third, the differentiation between men and women.
There arc of course inter-connections between those systems of differen
tiation; also, the intensity of the differcntiation varies with time, and it
varies country by country.
Mr. MULLER: How many Islamic countries are there and why are they
refcrred to as lslamic countries?
Mr. PossoNY: Not counting several Arab principalities of uncertain
status, there are 16 Islamic countries-in alphabetical order: Afghani
stan, Algeria, Egypt, Iran, Iraq, Jordan, Libya, Malaya, Mauretania,
Morocco, Pakistan, Saudi Arabia, Somalia, Syria, Tunisia and Yemen.
These countries have a population of more than 230 million, almost half
of whom are living in Pakistan and Afghanistan.
They are described as Islamic because they. themselves, in their Con
stitutions, describe Islam as their State religion. Since, in addition to
being a religion, Islam also is a way of lifc and a social system, this con
stitutional provision has more meaning than symbolic references to State
religion in some western constitutions. The lcgal systems of these coun
tries arc squarely based on Islamic law, frequently by explicit constitu
tional provision.
Mr. MULLER:Now, when you say that the legal systems of these
countries arc squarely based on Islamic law, what do you mean?
M.r.PossoNY: Islamic law is usuallv described as the Sharia law. This
1aw consists of the following parts: ,
(r) Moslem canonic and customary law, which in theory is considered
immutable and whose basic concepts date back hundreds of years.
(2) The so-called persona! statu te of l\foslems that has evolved through
tradition and statutory law.
{3} In some Islamic countries, codified and modernizcd persona!
statutes defining a portion of the Moslem law.
(4) Modern constitutions.
ln addition, there is local customary law and more or less modern
Iegislation dealing with the rest of the corpus furis.
Mr. MULLER: Can you give the Court a few examples where the
statutory Jaw provides for utilization of non-statutory law in Islamic
countries? SOUTHWEST AFRICA
672
Mr. PosSONY: Mr. President, according to Article 82 of the Moroccan
Code (translated by AndréColomer, LeCodedu Statut personnel marocain,
Algiers, p. 50), matters which are not explicitly handled in the Code
should be decided in line with "the best supported opinion or the best
known opinion" of the Islamic jurists or "by customary laws". According
to other stipulations, doubts are to be resolved by reference to "good
usage".
The most recent example is that of the Afghanistan Constitution of
1 October 1964, whose Article 102 states as follows:
"The Courts ... shall apply the provisions of this Constitution
and the laws of the State. Whenever no provision exists in the Con
stitution of the laws ... the Courts shall, by following the basic
principJes ... of the Shariat of Islam and within the limitations set
forth within this Constitution, render a decision that, in their
opinion secures justice in the best possible way." (Interparliamentary
Union, Constitutional and Parliamentary Information, 1965, p. 23.)
So you have in this Constitution, which is barely one year old, a specific
reference to the Sharia.
Mr. MULLER:In the Islamic States, what differential treatment by law
is there between, on the one hand, Moslems and, on the other hand, non
Moslems?
Mr. PossoNv: To demonstrate in this regard the continuing attach
ment to the Islamic tradition, even in a modern socialist State, I will read
from the preamble of the Algerian Constitution, the Constitution, more
precisely, ofthe Democratic and Popular Republic of Algeria. The Con
stitution is dated S September 1963 and in the preainble it is stated as
follows:
"Islam and the Arab tongue have everywhere been effective in
resisting the attempt by the colonial regime to depersonalize the
Algerian people." (Ibid., 1964, p. 3.)
The Constitution of Syria of 1953 prescribes that the President must be
a Moslem (ibid., 1954, p. 23). ·
The Somalia Constitution of July 1960, Article 71, says under the
heading of "Qualifications for Eligibility" as follows:
"(1) Every Moslem citizen who, being the son of a father and a
mother, who are both original citizens, has the right to vote ... and
shall be eligible to become President of the Republic.
(2) During his term of office, the President of the Republic shall.
not be married to nor marry any woman who is not an original
citizen." (Ibid., 1964, p.ror.)
The former kingdom of Hedjaz, now known as Saudi Arabia, had in its
old Constitution. Article 56, the proviso that ail members of Council and
all government employees should possess, inter alia, the qualification that
they "should not have forfeited their legal Sharia rights". This is in
Khalil, The Arab States and the Arab League, Volume I, page 239. This
rule still describesthe present Saudi Arabian practice.
Most outspoken is the Constitution of Malaya of 1957, notably Article
153. This is m Inter-Parliamentary Union, Constitutional and Parliamen
tary Information, 1958, pages 176 and following. This article enjoins upon
the head of the Federation "to safeguard the special position of the WITNESSES AND EXPERTS 673
Malays and the Iegitimate interest of other communities". Article 153/2
calls upon the head of the Fedcration-
"To ensure the reservation for Malays of such proportion as he
may deem reasonable of position in the public service (other than
the public service of a State), and of scholarships, exhibitions and
other similar educational or training privileges or special facili
ties... and when any permit or licence for the operation of any trade
or business is required by federal law."
Article r53/8 says that whenever-
"by any federal law any permit or licence is required for the opera
tion of any trade or business, that law may provide for the reserva
tion of a proportion of such permits or licences for 1\falays".
Article 159/9 says that business or trade shall not be restricted "solely
for the purpose of reservations for Malays".
According to Article n/4 (still in .Malaya): "The propagation ofany
religious doctrine or belief among persons professing the Moslem religion''
may be controlled or restricted (ibx'd.,p. 133). Now, this ta.sk, together
with all matters of llfoslem law, Moslem courts and Malay customs, is
assigned to the several States forming the Malay Federation. Note that
most of these provisions seem to be directed against the Chinese.
1\irMULLER; Is there any differentiation by law between 1\ioslems and
non-Moslems in Islamic countries in respect of persona! status?
Mr. PossONY: Yes, Mr. President. Moslems and non-Moslems live
under different persona] statutes. For example, Article 308 of the Syrian
Code indicatcs where the Code is applicable to the Christian and Jewish
communities. It is not spelt out in what particulars the Code is not
applicable to the non-Moslem communities. The point is that each group
has its own personal status and though there is much overlap, the system
is one of group differentiation. Similar provisions have recently been made
in the Pakistan Constitution, Article 198/4; this is reprinted in Human
Rights Yearbook I956, page 181.
The evidence of a non-1\foslem does not bear the same weight as that
of a Moslem. This rule has been weakened in practice and may be ignored
in countries of strongly mixed populations but the rule still exists. The
authority for that is Professor Schacht, who is a leading expert on Mos
lem law, and his two books. One is called An Introduction to Moslem Law
and the other Origins of Mohammedan Jurisprudence. References are to
page 132 in the first book and page 2ro in the second.
This fondamental approach has ail kinds of ramifications, for example,
a non-Moslem may not be the guardian of a Moslem, even if he or she is
the non-Moslem's own child; reference to this is again Professor Schacht's
An Introduction to Moslem Law, page 132.
An all-Islamic strict rule is that a non-Moslem does not inherit from a
.l\Ioslem; Moslems however, may inherit from non-Moslem relatives. This
is laid down, for example, in Article 264 (b) of the Syrian Code and in
Article 228 of the .llforoccan Code. Between nationals of one State, there
may be no inheritance between a Moslem testator and a non-Moslem
heir, while there may be inheritance between individuals of different
nationality but of identical religion. This arrangement is usually tied to a
reciprocity provision, for example in Article 215/2 of the Syrian Code.
However, a testament can be drawn in faveur of persans of different
religions and rites, for exarnple, according to Syrian Article 215/r. This674 SOUTHWEST AFRICA
particular Article appears to be in contradiction with Article 264 (b),
which states that inheritance is precludcd by virtue of difference in
religion betwccn Moslcms and non-Moslems. The apparent contradiction
is easily resolved: accordingto the Sharia, a Moslem can dispose by will
of no more than one-third of his property, the remaining two-thirds must
go to his heirs by succession. This "rule of one-third" is stated with
precision in the Moroccan Code, Article 173.
The Iraqi Code, Article 77, severely restricts the established rights of
non-Moslem beneficiaries to mobilia and therefore excludes land and
houses.
The Moslem male is allowed to marry a Christian or a Jewish female,
for example, this is laid down in Article r7 of the lraqi Code. Females
who profess a religion which is not based on the Bible are excluded.
Howevcr, a marriage between a Moslem female and a non-Moslcm is
absolutely and totally void and non-existent, in contrast to ail other
impediments to marriage which are considered to be less exclusive. One
French author in this connection ta!ks about the "nullité radicale" of
such a marriage, which is confi.rmed by Article 17 of the Iraqi Code and
Article 29/5 of the Moroccan Code. The Tunisian Code handles the
matter by means of a commentary to Article 5. The recent Family Or
ganization Law promulgated for the Turks on Cyprus which abandoned
virtuaHy all major tenets of Islamic law, still preserves the inhibition of
a marriage between a Moslem female and a non-Moslem male.
Mr. MULLER:Now, how does Islamic law, in the countries to which
you have referred, differentiate as between men and women?
Mr. PossoNY: There are man y aspects in which Islamic Jaw differen
tiates between men and women; the more important ones, which I would
liketo cover, with your permission, Mr. President, are marriage, succes
sion and inheritance, value of testimony, and divorce.
Mr. l\luLLER: First then, deal with the question of marriage.
Mr. PossONY: A man may marry four women; a woman only one man.
Now, reforms have admittedly taken place; thus, the Syrian Law of
Persona! Status, of 1953, provides that "... the Court may withhold per
mission for a man, who is already married, to marry a second wife, where
it is established that he is not in a position to support them both". The
Moroccan Code of Persona! Status, of 1958, provides that "... if any
injustice is to be feared between co-wives, polygamy is not permittcd".
The Tunisian Law of Personal Status, 1957, has gone even further by
prohibiting polygamy. In Egypt, a bill which aims at restricting polygamy
and the right of the husband unilaterally to repudiate his wife bas been
in preparation since 1956. Despite these reforms, however, the present
position in Islamic countries,save to some extent Tunisia, still is that a
Moslem man is, basically, entitled to marry four women, while a Moslem
woman is restricted to one husband.
Mr. MULLER:What is the position with regard to succession?
Mr. PossoNY: In the law of succession, a woman's portion corresponds
to half of the man's, thus the share of a daughtcr of a testator will be half
the share of her brothers-this is a simplified description of the fonda
mental rule. In this regard I refer to the Moroccan Code, Articles 237-244,
and 256; and the Syrian Code 277/2.
The Lebanon Law of lnheritance, of 1959-Lebanon is not an Islamic
State, but, as I pointed out, a mixed Islamic-Christian State-provides
in Article 128, that the previous system of inheritance, which was ap- WIT!ŒSSES AND EXPERTS 675
plicable to the i\Joslems,still is applicable to them-thatis, that "the rule
of the double share" is still in force.
Mr. MULLER: Now, you mentioned the value of testimony-can you
very briefly state what the position is in that respect?
Mr. Possm1v: The evidence of a woman is never accepted in any
criminal charge, except for matters bearing on gynaecology. In civil
matters, the evidence of two women corresponds. to that of one man.
The authorities are Professor Anderson and Professor Schacht.
Mr. MUI.LER: Professor Possony, I think the final matter with which
you intend dealing is divorce-now, kindly mention briefly what differ
ences exist: inthat respect.
Mr. PossoNY: Mr. President, a Moslem man may divorce his wife by
unilaterally repudiating her-I may add that in reporting about these
things, I do not necessarily agree with what I am reporting on. A Moslem
woman has no such right. Reforms have taken place in this area too. In
strict Islamic law a wife bas extremely limited grounds on which she
could divorce her husband. A wife in Egypt, for example, may now daim
a divorce on any of four grounds-failure to support her; affliction of the
husband with some disease, which makes married life dangerous; deser
tion for at Ieast a year; and treatment of the wife in a way which makes
married life intolerable to one of her social standing. The source of that is
Professor Anderson's book, lslamic Law in the Modern World, at page
54.
The Syrian Code, Second Book, devotes title I to divorce-that is,
repudiation; titleII to divorce by mutual agreement-that is, divorce
in the western sense; and title III to separntion, for various reasons, ad
mitted under the Sharia as modernized. Article 85 authorizes repudiation,
and Article n7 sa:ys-and this is a reform provision-that if the repudia
tion was quite arbitrary, comptetenu de la gravitéde l'arbitraire, the judge
can order the husband to pay alimony for one year-that is ail, that is
the maximum.
The Moroccan Code distinguishes between repudiation, which in the
Arabie version is called talaq, and divorce-each of which is treated in a
separate chaptcr. Articles 44-52 are devoted to talaq. The main reform
provision is that the repudiation must be legally registered.
The Pakistani 1foslem Farnily Laws Ordinance of 1961 confirrns the
basis rules of talaq-this is in Human Rights Yearbook r961, page 275.
Ail this is strict Sharia, with just a few modifications.
The codified statutes show a tendency to provide more security for
wives, and to describe the system in terms suggesting somewhat more
equality between men and women than actually exists, but the fonda
mental rule of the Sharia has been and still is: "A wife bas no absolute
right to obtain a divorce; she has that right only under certain specific
contingcncics and conditions." This is quoted from a textbook by Mr.
Jhalivala, Mohammedan Law-an Indian textbook on Shariat law,
page 25. A husband can termina te the marriage by unilateral repudiation
for any reason whatever.
In this connection, I v,·ouldalso like to mention the matter of apostasy.
If a wife of ?lfoslem religion couverts to Christianity or Judaism, the
marriage must be broken immediately. and no judicial registration of
repudiation is necessary. This is required because of a very strict taboo,
which is still directed against apostasy, despite the abolition of criminal
sanctions against such a deed. The reference is a book by Professor Brug- SOUTH WEST AFRICA
man, which has a Dutch title which, in English, means The Significance
of Islam Law in Modern Egypt, pages 185 and 215.
The following civil consequences are still commonly applied to an
apostate from Islam: (1) the apostate may not marry anybody, whether
a 1\foslem, a Christian, or another apostate; (2) his or her estate goes to
the Govemment; (3) his or hcr marriage is dissolved; (4) the apostate is
not recognized as a Christian; (5) even his Christian relatives, nor any
other apostates, may not inherit from the apostate. Reference is again to
Professor Brugman's book, same pages.
If a wife couverts to Islam. while her husband remains a non-Moslem,
the marriage must necessarily and immediately be dissolved. Ifthe hus
band of a Christian or Jewish wife couverts to Islam, he may repudiate
her immediately.
The PRESIDENT: Mr. Muller, the evidence which Professor Possony has
been giving us for the last houris for the purpose of establishing that in
the different countries which he has indicated, there has been the allot
ment of rights or status, etc., on the basis of belonging to a religion or a
sex or a race-is that the purpose of the evidence?
Mr. MULLER:That is the purpose, Mr. President.
Now, you have dealt with the position in the Islamic States; are there
other States with concentrations of large Moslem groups?
l\lr. PossONY: In general, yes, there are-thereare at least 15 countries
where substantial numbers of l\Ioslems are domiciled; this list includes
Cyprus, Ethiopia, lndia, Indonesia, Israel, Kenya, Lebanon, Mali,
Nigeria, the Philippines, Sudan and Tanganyika. A safe estimate would
be that there are a minimum of roo million Moslems in those States. There
are small l\foslem communities in most of the tropical parts of the former
British Empire and in South Eastern Europe. Finally, there are a large
number of Moslems-about 24 million-in the Soviet Union, including
Union Republics like Uzbekistan, which may well be described as
Islamic, in terms of population; some of the centres of Moslem traditions,
like Bukhara and Samarkand, are located in Uzbekistan. There are,
furthermore, Moslem communities and nationalities within the area of
Mainland China.
All in ail, the i\Ioslems account for some 12 per cent. of the world
population.
l\fr. MULLER:What is the position of Moslems in the countries that
you have just mentioned?
The PRESIDENT:Are you going through each one of those now, Mr.
Muller?
Mr. PossoNv: No.
Mr. MuLLER:1 beg your ...
The PRESIDENT:You propose now to go through each one of th ose
countries, do you, Mr. Muller?
Mr. MULLER:No, Mr. President, it is going to be very much shorter
than that.
The PRESIDENT:Proceed then.
Mr. MULLER: Generally, what is the position of the l\foslems in the
countries that you have just mentioned?
l\lr. PossONY: In general, and discounting exceptions like the U.S.S.R.,
the Moslems live under their own persona! statute, which is often guaran
teed constitutionally. ln Africa, south of the lslamic belt, Islamic and
Native legal systems appear in various mixes. There is far reaching legal WITNESSES AND EXPERTS
differentiation. But everywherc this rule holds; the stronger the attach
ment to Islam, the more neatly the various groups, including the Moslem
groups inside the Islamic religion, are separated from each other.
Mr. MULLER:\Vell, can you just give the Court a few cxamples of the
reasons allowing the Moslcms their own status in such countries?
[Public hearing of I9 October 1965]
Mr. Mm,LER: Mr. President, may I just explain at which particular
point of the evidence we are now, relative to the scheme that I had
indicated? The Court will recall that Professor Possony had indicated
he would deal with diffcrential Jaws by referring first of ail to certain
Asiatic systems, thereaftcr to certain systems in the Eastern Mediter
ranean, then pluralistic systems in Islamic countries, and fourthly the
systems in various countries dividing advanced from aboriginal groups.
Now we are busy at the moment with the Islamic countries; he had
dcalt yesterday with the ]slamic countries proper, and just before the
adjournment he indicated that there were certain countries, not being
Islamic countries proper, in which there are groups of Moslems, and
he was busy dealing with that. I shall just ask him a final question on
that.
The PRESIDENT:Procccd, Mr. Muller.
Mr. MULLER:Thank you, Sir. Professor Possony, can you give any
examples of provisions in the countries you referred to yesterday-those
are the non-Islamic countries, where there are l\loslems-allowing
Moslems their own status in such countries?
l\Ir. Possoxv: Yes, l\lr. President. The Sudan Constitution of 1956,
Article 93, <lividesthe judiciary into the Civil and the Sharia divison
this is referred to in l\Ir. Khalil's book The Arab States and the Arab
Leagiie on page 352. The Sudanese courts apply English law in civil
matters, and are using a pcnal code derived from the Indian mode!. In
dealing with Moslems, customary law may be applied whcn the Sharia is
silent, according to the lslamic rule. This was explaincd in a conference
which was held in London between 28 December and 1 January 1959-
1960 under the titlc of TheFuture of Law in Africa.
With re~ped to lndonesia, the Constitution of Indonesia, Article 25/2
reads: "Differences in socialand legal needs of the various groups of the
population shall be taken into consideration." (Peaslee, Constitittion of
Nations, Vol. II, p. 374.) This is the provision which allows the Moslems
to operate under their own personal statute.
There are many areas where Islamic law is regarded as a variety of
Native law and custom. In those areas, the various legal spheres may be
split between jurisdictions; the Moslem courts may be separate, or they
may be joined by another system; or competencc may be attributed
differently from area to arca. For example, the Northern Nigerian Penal
Code, Articles 387-388, made clear provisions for applying laws to
subjects only if and when the decd is recognized as a criminal offence by
Native law or custom to which they belong. For example, Article 403
rnakes the drinking of alcohol an offence for Moslems only-this is in the
Northern Nigerian Penal Code, Cap. 89.
.Mr. MULLER:Other than the Jslamic countries, are there countries
where differential measures are applied relative to religion?
Mr. PossoNY: For example, the i\Iexican Constitution, to give one678 SOUTH WEST AFRICA
example, discrimina tes against persons of ecclesiastic status; for example,
under Article 82/4, and several provisions under Article 130. Article 130,
incidentally, was amended in 1950. The Constitution of Mexico was
written in 1917, and I am using an edition published in Washington,
D.C., in 1g64, pages 35 and 60. According to the Mexican Constitution,
no person with ecclesiastic status can be elected President, and only a
person bom in Mexico may practise what is described as "the ministry
of any denomination". Furthermore, no ministers may-
"criticize the fondamental laws of the country or the authorities of
the Govemment, specifically or generally. They shall not have an
active or passive vote, nor the right to form associations for religious
purposes."
There are other stipulations, but I can skip those.
There are various differential provisions for ecclesiastic persans in
terms of incompatibility with the parliamentary mandate in such
countries as Belgium, Israel, Luxembourg, Turkey, lndia, Italy, Egypt,
Netherlands and Great Britain. This particular type of problem was
worked up, and I am quoting from him, by Mr. Francis Humblet in a
"Report on Parliamentary Incompatibility", published in lnter-Parlia
mentary Union, Constitutional and Parliamentary Information, 1952,
page 230.
Mr. MuLLim: Professor Possony, your fourth group that you intended
dealing with were those cases where Jessadvanced societies are separated
from more advanced societies; will you deal with that group, please?
Mr. PossoNY: I shall try to elucidate the more or Jess universal
approach in such countries by referring to the example of Liberia. It will
be convenient to deal with this matter under the following headings:
tirst, political organization; second, administrative and judicial system;
and third, land rights.
The Republic of Liberia is divided into the country area, a 40-mile
wide strip of territory along the sea-coast divided into counties, and the
hinterland. In the county area, the Anglo-American system of juris
prudence is applied, while the legal system in the hinterland is tribal and
customary. Each tribe has its own political organization-this is, for
example, laid down in paragraph 70 of the Aborigines Law which îs to
be found in Liberian Code of Laws of r956. Volume I, page 34; I am not
going to read the provisions of this law.
Mr. MULLER: You mentioned the administrative and judicial systems;
kindly deal with that, in so far as Liberia is concerned.
Mr. PossoNv: Paragraph 350 of the Aborigines Law in Liberian Code
of Laws of I956, Volume I, provides:
"lt is the policy of the Govemment to administer tribal affairs
through tribal ch1efs, who shall govern freely according to tribal
customs and traditions in so far as they are not contrary tostatute or
administrative regulations."
Thus one finds the dual judicial system under which one person may be
subject to the jurisdiction of a particular court, while another person is
not so subject. Similarly, one persan may be subject to certain laws while
another is not-for example, in relation to marriage. The following
provisions of the Liberian Aborigines Law are relevant; paragraph 123
defines the competence of the court of District Commissioner: WITNESSES .A!'<DEXPERTS 679
"The Court of the District Commissioner shall have jurisdiction
in the following cases: (a) in equitable or civil suits arising in the
Hinterland between persons not Aborigines ... " (Ibid., p. 44.)
Paragraph 125 deals with the Joint Court of the District Commissioner
and the Paramount Chief :
"Ail suits arising in the Hinterland between an Aborigine and a
person not an Aborigine shall be heard in the Joint Court of the
District Commissioner and the Paramount Chief." (Ibid., p. 45.)
The following provîsos I will not read; thcy just sîmply bring the system
down step by step so that for each levcl of tribal affairs connected with
the members of the tribe and members of different tribes, and Aborigines
and non-Aborigines, different courts are competent.
Thus, broadly spcaking, each tribe has its own courts which operate
under the tribe's Jegal system. There are provisions for cases involving
more than one tribe, and for cases involving Aborigines and non-Aborig
ines. The system is logical and allows to each tribe its own identity; it has
been described as a transitory system. President Tubman of Liberia
expressed hope to the effect that tribal law might be replaced by civil
law in about 50 years. This is quoted from Mr. E. S. Munger's book
African Field Reports, 1952-1961, page rrg:
President Tubman is reported to have-
". . . stressed the uneven cultural development of the Liberian
people. He pointed to the necessity of having two sets of law-civil
law (taken from the West) and tribal law ... and cited arguments
heard elsewhere in Africa (including South Afrlcan reserves) conccrn
ing the benefit to all of this dual code. But hc agrecd that tribalism
was a temporary phenomenon and said he planned that the Wcstern
civil law be gradually extended from the 40-mile belt along the
coast into the interior until it covered the whole country ...
President Tubman said he thought tribal law and administration
would be rcplaced throughout Liberia in about 50 years."
Mr. MULLER: What is the position with regard to land rights in
Liberia?
Mr. Posso:::-,y: As to land, within the hinterland, it is to be made
availablc to tribes qua tribes. The Liberian Aborigines Law, paragraph
270, reads that-
"Each tribe is entitled to the use of as much of the public land in
the area inhabited by it as required for farming and other enterprises
essential to tribal necessities." (Liberian Code of Laws of z956,
Vol. I, p. 60.)
The wording is restrictive, but possession of such ]and is protected
"against any person". The Constitution of Liberia in section 14, which is
quoted in Volume I of the Code (ibid.,p. 19), makes it clear that the
Aborigines are to be protected in the possession of their land; it reads as
follows:
"The purchase of any land by any citizen or citizens from the
Aborigines of this country for his or their own use, or for the benefit
of othcrs, or estatcs, or estatcs in fee simple, shall be considered null
and void to all intents and purposes."
Public Land Laws, section 30 (ibid.,Vol. III, pp. rr88-n89) provides
that tribal authority must consent to purchases of ground in the hinter-68o SOUTHWESTAFRICA
land. This law also provides that the "parcel of land in question" must
not be "a portion of the Tribal Reserve" and is not otherwise owned or
occupied.
Tribal land possession is protected with respect to Aborigines from
different tribes. Thus paragraph 273 of the Aborigines Law stipulates:
"A person who cnters the territory of a tribe of which he is nota
member for the purpose of farming, shall observe the following
procedure: (a) obtain permission of the Tribal Authority prior to
commencing his activities; (b) agree to pay some token ... ; (c) pay
taxes ...
ln case of his failureto comply with any of the foregoing require
ments, the Tribal Authority may cancel the permission granted and
confiscate the crops." (Ibid., Vol. I, p. 6r.)
Liberian policy with respect to the several tribes is guided by principles
designed to protect and promote advancement on a tribal basis. I quote,
to support this, paragraph 290 of the Aborigines Law, Volume I, page 6r,
in the Code, and section 15 of the Constitution, page 19 in the Code
(Vol. 1).
Mr. MULLER:White you are dealing with Liberia, can you state whether
there are differential methods applied relative to other matters, such as
citizenship, land ownership and trade?
Mr. PossoNY: The Liberian law is very strict with respect to citizen
ship. Article V, section r3, of the Constitution says this:
"The great object of forming these Colonies [this is Liberia] being
to provide a home for the dispersed and oppressed children of
Africa, and to regenerate and enlighten this benighted continent,
none but Negroes or persons of Negro descent shall be eligible to
citizenship in this Republic." (Ibid., p. 18.)
This citizenship provision is supplemented by paragraph Sr of the Aliens
and Nationality Law which is quoted on page 110. (Ibid.)
Mr. GROSS:~fr. President?
The PRESIDENT:Yes, Mr. Gross.
Mr. GRoss: Just for the sake of following with greater clarity~if the
President permits-would the President see fit to ask the witness to
identify and cite the document from which the quote was apparentiy
taken with respect ...
The PRESIDENT:The immediately preceding quotation? Certainly,
Mr. Gross. Would you please do that, Professor?
Mr. PossoNv: lt is the Liberian Codeof Laws of z956, published on the
authority of the Legislature of Liberia and President William V. S.
Tubman, Constitution and Titles published by Cornell University Press,
Ithaca, New York. The codification was prepared, it says here on the
inside page, for the Republic of Liberia by the Liberian Codification
Project, Cornell University, under the direction of Milton R. Konvitz.
Mr. GROSS:~Ir. President, could the page be cited? I am familiar with
the work.
The PRESIDENT: Certain1y. Wou1d you do so, Professor?
Mr. Possm;rv: I cited the page-page uo, the one I was just going to
read.
Mr. GRoss: Thank you, Sir.
The PRESIDENT:Will you continue?
Mr. PossONY: The subject I am discussing is the supplementation of \VITKESSES A::-'DEXPERTS
681
the constitutional citizenship provision in paragraph Sr of the Aliens and
Nationality Law on page no of the book I just demonstrated.
"Eligibility for naturalisation. Any alien Negro of the age of
21 years and upward or any alien person of Negro descent of the
age of 21 years and upward may become a citizen of the Republic of
Liberia ... "
Only Negroes are allowed to hold real estate in Liberia. This is implied
in ArticleV, section 12, of the Constitution, which is printcd on page r8:
"No person shall be entitled to hold real estate in this Republic,
unless hc be a citizen of the same. Nevertheless, thîs Article shall not
be construed to apply to Colonization, l\Iissionary, Educational or
other benevolcnt institutions, so long as the property or cstate is
applied toits legitimate purposes."
Mr. MULLER: Professor Possony, can you deal with other countries
where thcre is a division on the sarne basis, that is of advanced societies
and Jessadvanced societies and Jaws made accordingly?
Mr. PosSONY:One such country is, for example, Sierra Leone. Sierra
Leone, according to the provisions of the Law on Protectorate Land,
Chapter 122 of the Code of Sierra Leone, page 1266 (/), is divided into
the so-called Western Areas and the Provinces, which previously were
called the Protectorate. In the Provinces, according to the prearnble of
the law of 1 August 1927:
"All land is vested in the tribal authorities, who hold such land for
and on behalf of the native communities concerncd."
Article 3 provides:
"(r) No land in the Protectorate shall be occupied by a non
Native unless he has first obtained the consent of the tribal authority
to his occupation of such land."
Different laws also apply to the two different areas, according to an
Interpretation Act, number 7, published in 1965. On page 21 of that Act,
Article 7/1 reads:
"No act passed before the rst day of July 1953, shall apply to the
Provinces unless it is provided by the Act itself or is extended
thereto by an Act";
and Article 7 /2:
"Every act passcd on or after the rst day of July 1953, shall
apply throughout Sierra Leone unless it is otherwise stated therein
or in any other Act."
Then Article 7/3:
"When any part of the Western Area is, undcr the provisions of
the Provinces Act, 1965, included with any Province or District,
such part shall become subject to the enactments for the time being
in force in the Provinces and shall. for judicial and administrative
purposes, be dcemed to be part of the Provinces, and, save as where
otherwise provided, no enactment in force in the Western Arca only
shallbe applicable to such part."
In Northcrn Nigeria the Land Tenure Law of 1962, which is in the
Northcrn Nigcrian Code, pageAno, part Il, No. 4 (z), deals with Native
Reserves and tribes:682 SOUTH WEST AFRICA
"Such Native reserves and lands required to be set aside for
Native reserves or purposes connected therewith shall be deemed to
be Native lands."
It is added under No. S:
"AU Native lands and ail rights over the same are hereby declared
to be under the control and subject to the disposition of the Minister
and shall be held and administered for the use and common benefit
of the Natives, and no title to the occupation and use of any such
lands bv a non-Native shall be valid without the consent of the
Minister."
Furthermore, it is provided, in Article 27 on page An8:
"It shall not be lawful for any Native holding a customary right
of occupancy to alienate his right of occupancy or any part thereof
to a non-Native by sale, assignment, mortgage, transfer of posses
sion, sub-lease, bequest or otherwise howsoever without the consent
of the Minister first had and obtained."
Land reservations have been made in Basutoland, Bechuanaland,
Swaziland, Northern and Southern Rhodesia and Kenya and, for
convenience sake, I refer to the Counter-Memorial data, Ill, pages
258-262.
The old Eritrea Constitution of 1952, which is of course no longer
applicable, in Article 83/1, recognized: "the existence of local commu
nities."It added that the rights of these communities shall "not be
impaired by any Jaw of a discriminatory nature". This is laid down in the
Inter-Parliamentary Union, Constitutional and Parliamentary Information,
1953, pages 163 and 152.
Article 165 of the Bolivian Constitution, this is in Peaslee, Constitution
of Nations, Volume I, page 201: "Recognizes and guarantees the exist
ence of the Native communities".
According to the Peruvian Constitution, Article 2n, in Peaslee,
Constitution of Nations, Volume III, page 155, Native communities
which do not possess land in suffi.cientquantity, should be provided with
such "by preference" if necessary through expropriation of privately
owned land upon compensation. Article 208 guarantees "the integrity of
the property of the communities". Article 209 says that "the property of
the communities ... is inalienable".
Land reservations have also been made, inter alia, in Panama, accord
ing to Article 95 of the Constitution; in Brazil, Article 216 of the Consti
tution; in Canada and in the United States. References on Brazil are in
Peaslee. Volume I, p. 250; references to Canada and the United States
are in the Counter-Memorial, III, pages 263-265.
In Sweden, according to a law dating back to 1928: "Certain areas
those above the cultivation line-are reserved for the exclusive use of the
Lapps". The same law secures for the Lapps the "sole rights of reindeer
breeding". This is quoted from a publication by the Swedish Institute for
Cultural Relations with Foreign Countries, written by a man called
Israel Ruong, entitlcd Lapps in Sweden, 1962, pages 6 and 7. I under
stand that similar provisions exist in Norway. More recently, provisions
have been strengthened in this regard in Finland.
So, in general, all overhe world the aboriginal areas are separated from
the advanced areas.
Mr. MULLER: Having dealt with land, can you refer to examples where WITNESSES AND EXPERTS
particular tribes are, by law, granted their own institutions, govern
mental and judicial?
The PRESIDENT: Particular what? I am sorry I did not hear.
Mr. MULLER: Institutions-governmental and judicial institutions
granted to particular tribes.
Mr. Possm:v: With regard to governmental institutions, I would like
to refer briefly to the case of Ghana. ln the Declaration of Fundamental
Principles, which the President of Ghana, according to Article 13 of the
Constitution, has to make upon assumption of office: ''Chieftaincy in
Ghana should be guaranteed and preserved." ·
Article 49 of the Constitution stipulates: "There shall be a House of
Chiefs for each Region of Ghana." Sources for this line of information
are Rubin and Murray, The Constitution and Government of Ghana,
pages 253 and 264.
\Vith respect to legal systems, the position is, briefly, that customary
Jaw applies in most African countries. But it should be appreciated that
the use of the term "customary law" does not indicate that there is a
sin~le uniform set of customs prcvailing throughout a given country.
This term is used rather as a blanket description, covering very many
different systems. These systems are largcly tribal in origin and usually
opera te only within the area occupied by the tribe . .Moreover,there may
be local variations within such an area.
Tribal Iaws are not the only systems covered by the term "customary
law". For example, throughout the Fe<leration of Nigeria this term
includes Islamic Iaw also. This is made explicit in the North by section
z of the Native Courts Law of 1956, which provides: "Native law and
custom includes Moslem law." Since Islamic law originates from outside
Nigeria, it is not grounded in any particular locality and can apply in
appropriate cases throughout the entire country. In large parts of the
North, Is1amic law has supplanted the local systems almost entirely, and
occupies the same position in relation to those areas as does Ibo law
the law of the Ibo people-to most of the East and Yoruba law to most of
the West. Islamic law is not always uniform throughout Nigeria and it
may be subject to local variations.
In Ethiopia, the Civil Code of 1960 attemptcd to put an end to the
diversity of customary laws. I quote from a professor of law at the Haile
Selassie I University, Mr. Krzeczunowicz, and his article entiUed The
Ethiopian Civil Code-Its Usefulness, Relation to Custom, and Appli
cab-iHty:
"The Ethiopian Civil Code expresses a trend for unification that
makes little a1lowance for local variations in customary practices
(e.g., those conceming intestate succession or matrimonial property).
This, coupled with the unfamiliarity of the Code'stechnical terminol
ogy, will create inevitable difficulties in its application ....Some
what more fundamental obstacles are likely to be encountered in the
shape of the local customs which diverge in substance from the
Code's precepts. It is the prevalence of such divergencies that made
it impossible even to envisage our codification in terrns of a mere
'consolidation' of customary laws. But where clisregard of local
custom is carried too far, the likely consequence is disregard of the
law by its recipients."
The same author also stated: SOUTHWESTAFRICA
"As things now stand, difficulties in the Code's application are
common knowledge . . . The Code's patchy application in the
Empire's peripheral areas [was attributed] partly to the fact that
the Code was drafted for the more developed populations, those
which inhabit the plateau of Ethiopia ...
We can indeed observe that even in the more developed areas the
Code'ssolutions are often in advance of the people's thinking."
This, Mr. President, I think, illustrates that it is not really feasible to
disregard the laws that prevail in tribal societies, and the many different
legal systems that characterize pluralistic societics.
As to legislation, the Pakistani Constitution, in Article 19, which is laid
down in the Inter-Parliamentary Union, Constituhonal and Parliamentary
Information, 1956, page 135, says: "Any section of citizens having a
distinct language, script or culture shall have the right to preserve the
same."
This same Constitution, in Article 27, also provides for the protection
of "minorities''. (Ibid., p. 137.)
The Constitution of the Commonwealth of Australia, Article 51, XXVI,
stipulates that Parliament has the power "... to make laws for the
peace, order, and good government ... " with respect to " ... the people
of any race, other than the Aboriginal race in any State, for whom it
deemed necessary to make spccial laws ... ". This is in Peaslee, Volume I,
page 86 (!).
The Constitution of Venezuela gives to the Federal Dependencies,
which are almost exclusively inhabited by lndians, the-right to establish
their own system of government, administration, juridical systems-this
is laid clown in Articles 14 and 15 of the Venezuelan Constitution, which
can be found in Inter-Parliamentary Union, Constiti,tional and Parlia
mentary Information, 196!, at page 125 (/).
Finally, the New Zealand Electoral Law of 1956, provides for J\faori
representation on a group basis. This can be found in Reprint of the
Statutcs of New Zcaland, I908-I957, pages 341 ff. Briefly, a European
cannot be registcred as a voter in a Maori district, and vice versa. One of
the purposes of this New Zealand legislation was, of course, and still is,
to facilitate the ethnie recovery of the Maoris.
Mr. MULLER:.Now, you have dealt with the position of tribal groups;
can you deal briefly with the position of Iess advanced groups in certain
developed societies?
J\Ir. PossONY: Mr. President, in the southern lands of South America,
the Indian, for ail practical purposes, has been eliminated. I am reporting
on the facts . . .
The PRESIDENT:I did not hear your phrase, Professor.
Mr. PossONY: The Indians in the southern lands of South America
have, for ail practical purposes, been eliminated.
In the central parts of America, he was pushed away from the east
coast, but still survives in the interior. In the northcrn part of South
America, notably in the north west, where the Indian originally had a
relatively strong political base, the result was Jess catastrophic, but the
Inca culture was destroyed as a growing concern.
In some parts of Central America, and in l\lexico, the Indians fared
best, but were not spared calamity: in Mexico, gradually over the cen
turies,the Indian population was dispossessed from its land; it is only
since about 50 years that systematic efforts have been made, and have WIDIESSES A:S-D EXPERTS
685
been quite successful, in re-establishing the Indian on the land as a
communal landholder. Brazil, I believe, was the first American State
which established a service for the protection of the lndians; that was in
r9ro. Sirnilar offices or agencies now exist in Peru, Ecuador, Bolivia,
Mexico, Panama, Canada and the United States. Problems for these
agencies, however, can become very difficult whenever the lndian popu
lation is mixed with the \Vhites.
During the last generation, there has devclopcd a movement through
out the whole of Latin America, called Indigenismo, which is based on
the recognition that it is necessary to protect the indigenous commu
nities in order-and I am paraphrasing herc the Mexican specialist,
Alfredo Caso--to help the lndians reach a level of equality, in com
parison with the lcvel reached by the Mestizo community.
The movcment aims at integrating the indigenous community into
the economic life, and pursues a programme of ''planned acculturation",
to preserve among the Indians those cultural elements which are of
positive value, and to find, within the lndian tradition, substitutes for
those elements which are negative.
The objective is to preserve the Native communities indefi.nitely.
Special schools, run by the Mexican National lnstitute for lndigenous
Matters, aim at what the Spanish tenn calls capacitaci6n.This is hard to
translate. I translate it somewhat freely as "enablement" or the creation
of capacity.
i\fr.MULLER: Can you tell the Court whether, in America, special
provision is made for the case of Indians?
Mr. Posso:-.iv: The history of the American Indians is quite well
documented. It involved the reduction of about I million Indians, at the
beginning of the White occupation, to about 400,000 in 1945. By now
the United States lndian population stands at 550,000, two-thirds of
whom live on Rescrvations. Much of the human loss was due to war;
disease and alcohol, to the destruction of the buffalo, and to ecological
changes.
During the 19th century, in connection with the Indian wars, deliberate
attempts were made to destrov tribal cohesion. In addition, the free
market economy entailed deleterious practiccs, the most important
result of which was that the Indians lost much of their land.
American Indian policies were more or Jess destructive until thP
presidency of Herbert Hoover. Under President Roosevelt, the Indkn
was given his New Deal. The new programme was that lndian societies
must be protected, rcgenerated, or set into being de novo-this is a
paraphrase of a book written by Mr. Collier who, for the entire presidency
of Mr. Franklin Roosevelt, was the Indian Commissioner; the lndians
must be givcn status, responsibility, power and land; they must have
freedom, including the right to organize cultural and religious activities,
and to maintain unimpeded contact with their children-note the
adumbration in this phrasing of the genocide treaty.
The tribes wcre allowed what was called self-governing self-deter
mination, without any limit beyond the need to advance by stages to the
goal.
According to l\Ir. Collier, since 1933 more than 100 tribal democracies
have been reborn, but I am afraid that this may be a little optimistic. A
few tribes are prosperous, and the Government has pursued a reasonably
enlightened policy with respect to the Reservations on which the Indians686 SOUTHWESTAFRICA
live, but in some instances large portions of the land are leased toWhite
farmers who are needed to create revenue for Indian subsistence. There
are many other factors of the lndian crisis, which I will not go into, but
the most important factor, I think, is that the culture of the Indians has
lost its vitality, and that the Indians, in a descriptive phrase, do not want
to jump into the melting pot.
In view of these continuing difficulties, American authorities are still
arguing about the best policy. The present Commissioner of the Bureau of
Indian Affairs wants to pave the way for the Indian "to enter the main
stream of American Iife, either on or off the Reservation" and, still
quoting, "... to educate the Indian so that he can leave, if he chooses,
and to make the Reservation economically viable if he does not ... ".
This was reprinted in the Paris edition of New York Herald Tribune,
29 September 1965, page 4-
The question is also whether the Indian should be pushed like by a
strict parent, and whether they can ultimately take over, themselvcs,
industrial activities, schooling, law enforccment, and administration. As
far as the Indians themselves are concerned, their spokesmen, according
to recent publications I have seen, do not think that the lndians have as
yet been given a rea1ly fair deal.
The significant lesson, Mr. President. is that. for the last 30 years, a
policy has been in force in the United States which guarantees to the
Indians their homeland. The American policy, perhaps for unavoidable
reasons, falls short of one of development, but it does deal with the
Indians as a group.
Mr. MULLER:Now you ...
The PRESIDENT:Mr. Gross?
Mr. GRoss: Just in order to clarify the record as to this line of testi
mony just completed, the Applicants, with the Court's permission, wish
to note their objection for the general reasons stated. This testimony
has, in the Applicants' submission, nothing whatever to do with any
contention made by the Applicants. This evidence, unless by implication
or innuendo, as to which no comment is made by the Applicants, sought
to be adduced at this time, would seem to have nothing whatever to do
with the Applicants' contention that there are international standards
pursuant to which, among other things, equality of opportunity should be
protected and equal protection of the laws to individual persans, as such,
should not be denied; so far as close attention to the witness's testimony
is concerned, there is nothing which we heard, Sir, which could fairly be
regarded as relevant to that aspect of the Applicants' case.
The PRESIDENT:Mr. Gross, the sources on which the Applicants rely.
which are set out in 493 of your Reply, IV, and pages following, are, of
course, designed to establish that there exists a norm or standard upon
which the Applicants are basing their case.
Mr. GROSS:Yes, Sir.
The PRESIDENT:And you quote in those sources certain measures
such as the Charter of the United Nations and also you quote, if I recall
correctly, the European Declaration of Human Rights?
l\frGRoss: Yes, Sir.
The PRESIDENT:You rely upon the latter as evidence of practice in
Europe, to establish that the norm or standard upon which you rely is
consistent with and is evidenced by the practice?
Mr. GROSS:That is right, Sir. WITNESSES AND EXPERTS 687
The PRESIDENT:The witness is dealing with a large number of coun~
tries, the whole purpose of the evidence being to establish that there can
be no norm or standard such as you rely upon, having regard to the
practice detailed by him in relation to different States throughout the
world. That is a matter which the Court will need to deliberate upon. Itis
not possible for the Applicants, in any case, to limit the evidence, in
relation to practice, to only those particular matters that they rely
upon.
Mr. GROSS:Mr. President, subject to the procedure, as it is understood
by the Applicants, it is understood, Sir, that there will be the opportunity
which has been mentioned to discuss the relevance of this tcstimony in
commentary?
The PRESIDENT:Mr. Gross, as I have told you before, under the
provisions of the procedure to be followed, it is competent for you to
comment upon the evidence. That does not mean, of course, as we ail
understand, and I know that the Applicants and Respondent so under
stand, in respect of their final addresses to the Court, two additional
general addresses. Itmeans addresses limited to comment on theevidence,
but, necessarily, when you take objection as you have, it permits you to
refer to the relevance of the testimony of any particular witness to
whose evidence you have objected.
l\fr. GRoss: Then, to spare the Court, I will not make specific objections
for the rest of this testimony, Sir.
l\fr. MULLER:Professor Possony, you have, up to now, dealt with
cases where, by law, there is differentiation applied between population
groups. Can you deal with a few cases where the opposite approach has
been applied?
Mr. PossoNY: Mr. President, among sedentary groups, Switzerland,
and the Corsicans and the Basques in France, are examples of successful
integration, provided the term "integration" is understood in a broad
political sense. After centuries of cohabitation, the component ethnie
groups have preserved their ethnie identity.
Against these exceptions, the examples of Austria-Hungary, and its
highly democratic successor, Czechoslovakia, illustrate the contention
that, despite a framework which facilitates and hopes for integration,
conflict may persist and result in separation.
In immigration countries, assimilation can occur and can be effective,
given a culture of high integrational value and power. This is the case of
the United States, and more precisely the case of the European popula
tions within the United States; thus there are exceptions. I think the
most illustrative exception to the rule that integration does not work is
Hawaii, where there is an exceptionally effective cohabitation between
the Chinese, Japancse, European and Polynesian, on a small scale, each
group preserving its identity, and none being involved in a power
struggle.
Against these exceptions, we have, for example, the very rec~nt
experience of 1964, when the religious, linguistic and cultural integration
which had been under way for centuries between Arabs and Africans in
Zanzibar, ended in a blood bath.
With respect to Asians in Africa, and of course this is only one of many
illustrative examples-by Asians I mean mostly the Indians in Africa
there are about 360,000 settled in Kenya, Uganda and Tanzania atone.
The position of these people can be analysed by referring to a recent SOUTH WEST AFRICA
688
publication by two Indian brothers, Dr. Dharam and Dr. Yash P. Ghai.
This is in the Journal of Modern African Stitdies I965, Vol. III, No. r,
pages 35-51. The article is cntitled "Asians in East Africa, Problems and
Prospects''.
The authors are lecturers, respectively, at Makerere University Collcge,
Kampala, and at the University College of Dar-es-Salaam, Tanzania.
The authors think that Tanganyika-they still wrote under this heading
-"has already ended legal discrimination in the public service". As
reference they quote President Nyerere, who ordered the end of dis
crimination in January 1964, saying this:
"We cannot allow the growth of first and second class citizen
ship . . . Discrimination against certain Tanganyika citizens on
grounds of origin must go. There can be no more prevarication."
(Ibid.,p. 5r.)
This is quoted by the two authors from the Tanganyika Standard of
8 January 1964.
The philosophy of the two writers, which I am quoting, is pro-inte
grationist. To provc this, I will read, briefly, their conclusion:.
"The philosophy of the State has changed in favour of integra
tion; and one must continue to hope that this great experiment in
social engineering will succeed and that Asians will be accepted, and
will play a positive role, in the new societies of East Africa." (Ibid.)
That is essentially the conclusion, but these authors also state this:
"One thing is certain; ifAsians desirc to play a vital and progres
sive role in the ncw societies of East Africa, they will have to
accept radical. at timcs painful, changes in their present positions,
attitudes and behaviour. Not much meaningful discussion has taken
place as to what precise changes are called for." (Ibid., p. 37.)
Now, disregarding the future, as to the present, according to these
authors, the two most salient facts seem to be that many of the Asians
are leaving, or are trying to leave, and that preparatory to their depar
ture, they are exporting capital.
Historically, the most important contribution of the Asians to East
Africa has been the extension of the monetary economy into the sub
sistence areas. Asian traders and artisans introduced attractive consumer
goods to the rural popula.tion and also acted as the main outlets for
produce from the indigenous communities. Today, a major economic
contribution by the Asians is the supply of high and middle level man
power and of capital. According to one estimatc, in mid-1961, Asians
provided a little lessthan 40 percent. of professional men of gradua te or
equivalent level, senior administrators and senior managers in commerce
and industry. and about 50 per cent. in the ncxt layer of skilled man
powcr, including technicians, sub-professional grades, executive grades
m the Civil Service, middle management in industry and commerce, and
teachers with secondary education. Asians also have made very large
contributions in East African medicine, law, engineering, pharmacy and
so on.
Furthermore, they have made an important contribution in the form of
savings and capital invcstment. A high proportion of this capital was
originally generated in commerce and now much of it has been invested in
manufacturing and construction. The two authors write this: WITXESSES AND EXPERTS
689
"It is difficult to think of any signifi.cant sector in the East African
economy where Asian capital, entrepreneurial ability and skills
have not made an appreciable contribution.
The economic success of the Asian community in East Africa bas
been duc ta their possession of certain qualities essential for economic
development ... A substantial number of young Asian business-men
possess in abundance many of the qualities that enabled their
forefathers to amass large fortunes. The[se] qualities ... vitally
important for economic development-are not likely to endear their
possessors to other communities." (Ibid., p. 39.)
For the 60 per cent. or 70 per cent. of the Asian labour force who
derivc their livelihood from commerce or from employment in the public
sector the prospects appear rather gloomy. Africanization in the Civil
Services is likely to be pursued vigorously for years to came and this
despite the acute shortage of skilled and educated manpower. As a
result of this trend educated Asians are leaving for Canada, the United
Kingdom, India and Pakistan.
With respect to the possibility of acquiring land by Asians, the same
authors state this:
"Agriculture might thercfore be thought of as the possible
solution ta the 'Asian problem:; however, for a varicty of reasons
this seems most unlikcly ... The question of land arouses the
deepest emotions among Africans and any suggestion of alienating
land for Asian settlement would run into bitter opposition." (Ibid.,
p. 44.)
The PRESIDENT:Professor, may I ask you a question? You referrcd to
the Asian problcm in Africain your cvidcnce which generally is dirccted
to the practicc, bcing followed in different parts of the world, and which
is intcnded to indicatc that, in practice, the norm or standards to which
we have refcrred either do not exist or have not the content which they
are alleged to have, as stated by the Applicants. Would you be good
enough to indicate to the Court how you think the testimony which you
have just given in relation to the Asian problem in Africa bears upon the
question as to whether, in practice, there does exist a compliance with
the allcged norm or standards? Is my question clear ta you?
l\IrPossoNY: Mr. President, I think in this particular case the evidence
shows that if there were such a norm being practised in East Africa today
it would not be to the benefit of the particular group, in this case the
Indians in East Africa, which I have been discussing. In other words, the
group representation which existed before and the protection which the
Indians enjoyed in East Africa have been essentially eliminated, and the
result of this has been that the lndians, as these quotes show, are now
confronted by the difficulty of finding employment and are leaving. In
other words, we have here, in addition to the question of the norm, the
historie development of separation. At least, it would seem to many of
those lndians to be the case that they have no future in the area and
thereforc a separation is carried out by means of cmigration.
The PRESIDE:-.T:l\Ir. Gross.
l\frGROSS:If the Applicants understood the responsc just made by
the witncss to the honourable President's question, it would perhaps
help to clarify the points to which his evidcnce is directed. as understood690 SOUTHWESTAFRICA
by the Applicants. The witness seems to be saying that his testimony,
just concluded on this point, is designed to show that the application of a
standard or a norm, if such a norm exists as a matter of law, which would
protect equality of opportunity and equal protection of law to the
persons to whom he refers, would not be to their benefit, Sir. That is
what the Applicants understand by the witness's answer.
The PRESIDENT:The witness said "in addition to the question of the
norm".
Mr. GRoss: Yes, Sir. The standards or the norm, if it exists as a matter
of international law, but referring to either branch of the argument, that
the application of of the standards for which we contend for inter-·
pretation of the Mandate or the international legal rule which we insist
alternatively exists as a matter of law, that the application of those
standards or that norm, if either exist, would mean that the granting of
equality of opportunity or equal protection of the laws to the persons
or groups to whom he refers would be detrimental to their welfare or
against their benefit. This is our understanding of the response to the
honourable President's question, Sir.
The PRESIDENT:What is the point that you are taking, Mr. Gross?
You are objecting to the evidence or what?
Mr. GRoss: My point, Sir, is that on the basis of this understanding,
it would support the basis of the objection made to the relevance of the
testimony.
The PRESIDENT:One question, Mr. Gross, which is involved basically
in this case, isthe meaning to be accorded to Article 2, paragraph 2, of
the Mandate, the words of which I need not repeat. Is it your contention
that if it is established that to apply the norm which you allege exists,
would be contrary to the welfare, social progress and development of the
people of South West Africa, that is whol1yirrelevant to the Court?
Mr. GRoss: No. Sir.
The PRESIDENT:Then I think the evidence had better be permitted.
The question will be determined by the Court when it proceeds with its
deliberations.
Mr. GROSS:l\fr. President, in order to preserve the position of the
Applicants and to do justice to the full to the point made by the President
-my affirmative response is based upon my understanding of the
question as addressed and its intention-! should like, Sir, to consider
it further when I have had an opportunity of reading the question in the
verbatim record to see whether it justifies a further response. because I
am not certain that I understood the President.
The PRESIDENT:This is not the time for responses. I sought to clarify
and perhaps the fault is mine. The Court, however, must have clarified,
asit goes along, the direction which evidence has taken and I sought by
asking the question to have the witness's own summary of the direction
of his evidence and the conclusion which might be drawn from it.The
question which I put to you is, and I put it again so that you can recon
sider it, do youay that evidence which is designed to establish that the
standard which you claim to exist-1 leave out the norm at the moment
if it were applied would be contrary to the social progress, the welfare
and the development of the people of South West Africa, that such
evidence would be irrelevant? You need not answer it now if you want to
think aboutit.
Mr. GROSS:I would for the sake of the record, if the President will WITNESSES ANDEXPERTS 691
indulge, attempt to indicate the Applicants' approach toward the
problem posed by the President.
The PRESIDENT:Do you or do you not say that it is relevant, Mr.
Gross? First give me the answer to that question.
Mr. GROSS:\Vell, Sir, I do not think I can answer yes or no.
The PRESIDENT: I think we will Ieave ail this to comment Iater on,
Mr. Gross. Will you proceed, Mr. Muller?
Mr. MuLLER: Mr. President, asthis question may arise also with regard
to what follows, may Ijust explain ... ? .
The PRESIDENT:No, Mr. Muller, please continue puttmg your ques-
tions and if we have anything we need to consider, we will do so.
Mr. MULLER:If the Court pleases.
Mr. PossoNY: Mr. President, may Ijust mention ... ?
The PRESIDENT: No, Professor, I think it is better to follow the
procedure of having the questions asked and receiving the answer.
Mr. MULLER:Now, Prof essor Posson y, does there appear to be any
solution to the problem which you have just described?
Mr. PossoNY: The same authors whom I have been quoting, Mr.
President, state that if, the Asians can integrate effecti vely at the
political level, the economic problems could be dealt with more success
fully, but what then is the political situation? Since the vote of the Asian
population can only be vcry small, the Asians cannot have any real
influence under a system of proportionatc r,!prescntation. With the
disappearance of communal representation, few Asians can hope to win
an election on the strength of the Asian vote ;:donc. This would, I think,
make it very difficult to find a solution on the political levcl. With respect
to the social level, it is also stated that social contacts between Asians and
Africans are neither extensive nor intimate:
"The residential areas of townships are still segrcgated (no longer
by law, however); but the African elite is leaving the African
locations and moving into European or upper class Asian areas."
There i.s no longer segregation in hospitals and community centres
but there is no social mixing.
"This is hardly surprising when one considers the profound
differences in culture and ways of Iife. In addition, there are eco
nomîc barriers; manual workers and îndustrialists do not mix
socially as a mie, even if they are of the same colour." (Ibid.,
pp. 47-48.)
The author suggests that two paths can be chosen-either pluralism
or assimilation. They deal with both sug~estions and, as I indicated,
they favour integration-that is assimilatmn. However, they acknow
ledge that there will be a "substantial net emigration of Asians from
East Africa". In this regard, they state:
"Most Asians think that they have no future in East Africa,
where, thev feel, race is too fondamental a factor, and that no
measure ofintegration will help them." (Ibid., p. 50.)
l\frMm.LER: You said earlier on that you would deal with the expe-
riences ofthe position of Africans in America. Can you do so briefly? .
Mr. PossoNY: The Afro-American experiencc has lastecl about tw1ce
as long as the Asian-Afro experience. The numbers of Afro-Americans
are relatively and absolutely far Iarger and thcrefore the situation might,
under some considerations, allow for a more successful solution. ln SOUTH WEST AFRICA
addition the prevailing ideology has favoured integration evcn though it
is self-evident that there are graduations in the enthusiasrn for this
solution.
There have been recent attempts in the United States to advance
intcgration energetically. This energctic application of the integrationist
approach appears to be a reaction to the fact that spontaneous forces of
integration are weak. I will deal with this subject briefly under the
headings of segregation in housing, schooling and employment.
Mr. MULLER: The Professor will dea1 with housing.
l\Ir. PossoNv; Statistics show that the Negro and European groups
are, to avery large extent, still segregated in their own residentialareas.
There are comparisons made in the time sequence between 1944 and 1950
and 1960. Itis quite clear that there has been very little change.
Recently a so-called segregation inôex has been constructed. This is
published in the August issue of the Scientific American, pages 12 ff., and
again I may stress, that the author, by implication, even though this is a
straightforward argument, is vcry much opposcd to segregation. Now,
the segrcgation index is based on the numbers of households in an urban
area. 1 should also add that the statistics were worked out with the
benefit of computers so that there has been a very broad coverage of the
United States. An index of one hundred would indicate that the particular
area is completely segregated, that is it is either fully Black or fully
White. The results are that for more than 200 American cities the indices
range from 60 percent. to 98 per cent. The 60 percent. index applies to
San José, California, and the 98 per cent. index to Fort Lauderdale,
Florida. Now the median value, that is half of the cities are on one sicle,
below the other half on the other side, above, is 87.8 percent. (roughly
88 percent.}.
ln Ncw York the index measuring segregation between Negroes and
Whites stands at 80 per cent., that measuring between Negroes and
Puerto Ricans is over 60 pcr cent. ln Los Angeles the separation between
Ncgroes and persons with Spanish surnames and other ethnie groups
varies between 65 per cent. and 75 per cent. The segregation between
those with Spanish surnames and other races is around 50 per cent. in
Los Angeles.
l\Ir.l\lULLER: \Vhat, very briefly, is the position with regard to the
schools?
Mr. Posso:,.;v: Educational desegregation is linked to the segregation
pattern in housing, of course. Children inevitably must attend schools
that arc in their neighbourhood. There is also the trend that as Negro
children appear in large numbers in White schools, the White families
move to suburbs or, if they can afford it, pay for private schools, and
White children are taken out. There has been a steady increase in the
number of school districts which have been desegregated. By 1963 about
one-third of the school districts were rcported to have been descgregated,
and presumably the present figure is higher. By 1963 about r per cen_t.
of the Negro children in the rr former Confederate States were m
desegregated schools. ln 17southern states and in the district of Columbia
the figure was about 8 percent. ln the border states 58 percent. of the
Negro school popuJation rcportedly attended hi-racial classes during
1963 and 1964. Outside the southern arcas, some areas undoubtedly have
full desegregation. However, it must be remembered that desegrcgation
also may be a merely formai gesture. It may mean no more, and fre- WITNESSES AND EXPERTS
quently does not mean more, than that a small number of Negro children
are attending White schools, or conversely that a few White childrcn
have been assigned to Black schools.
1 think I can best summarize this by quoting a survey which was
published in the San Franàsco Examiner of 5 August. I have the article
here for inspection, about the school segregation problem in San Fran
cisco, which says this:
"San Francisco has 95 elementary schools. Fifteen [of those
schools] have go percent. or more Caucasian pupils, cight are 90 per
cent. or more Negro, and Orientais make up 90 percent. or more
ofthe student body in four."
The success of desegregation can be measured by this sentence:
"S~v~~ of the schools have an almost 50 to 50 White and non-White
rat10.
Mr. tluLLER: Can you tell the Court very briefly what the position is
with regard to employment opportunities?
1'.lr. PossoNY: The Negroes have about twice the unemployment rate
of the Whites, partly because they arc concentrated in unskilled and
temporary jobs.
The PRESIDENT: 1 am sorry to interrupt again. Mr. Muller, would you
indicate why it is necessary to have all this detail in respect of the
problem of desegregation in the U.S.A.. and what bearings it has upon
the issues the Court has to decide?
Mr. MULLER: As Iintended just now, Mr. President, to indicate the
position, we have called this witness to show, first of ail, that having
regard to practice and usage in the world a norm such as suggested by
the Applicants is not observed, and secondly, Mr. President, to express
an opinion as to the application of such a norm in all circumstances. He
will at the end indicate to the Court that there are difficulties in applying
the norm in particular circumstances. This evidence deals with the
second part ofhis testimony.
The PRESIDENT; Very well, proceed.
Mr. GROSS: Mr. 1~resident, just to be absolutely certain as to the
significance of counsel's response, the norrn and/or standards relate to
official government action and policy, and the testimony to which the
Courtis now addressing its attention relates to social, political, economic
phenomena which is conceded by the Applicants to exist in the United
States and in various parts of the world, but, as understood by the
Applicants, the testimony has not addressed itse1f to the fundamental
proposition which underlies the norm and t~e standards, and both, and
that is official action by govcrnmcnts, Sir. And on this basis it would
seem that the testimony is similarly irrelevant to the Applicants'
contention.
The PRHSIDENT: Mr. Gross, a great deal ofthe evidence of the witness
refers to laws of different countries which l assume can be put into the
category of official action by States, and much of it also refers to spccifi.c
Jcgislation.It is the last point made by you with which we are now
concerned. In what way, Mr. l\Iuller, are the social habits of the people
of the U.S.A. relevant to the issue we have to deal with? This witness is
not called for the purpose of establishing that the social habits of any
particular country show that in a society which consists ofmore than one
racial group one racial group is antagonistic to the other~or is not SOUTH WEST AFRICA
prepared to mix with it, or things of that description.It seems rather on
the periphery of things, does it not, to be seeking to pursuade the Court
that this type of evidence will really bear upon the issues the Court has to
decide.
Mr. MULLER:Mr. President, as I have indicatcd, the witness will
eventually state his opinion as to whether the norm can be applied in all
countries under ail circumstances at all times. I am referring to an alle
gation made by my learned friend during the course of argument. The
witness will use some of these examples in expressing his opinion at the
end, Mr. President.
The PRESIDENT:The evidence with which the witness is presently
concerned with, or has been dealing with, could be expressed jn more
summary form, because after all it does not deal with what a State does,
it simply establishes that certain groups of people because they spring
from this or that race have certain social attitudes one to the other, and
that does not seem to assist the Court very much.
Mr. IlfoLLER:With respect, Mr. President, in this particular case there
is government policy applied which enforces integration.
The PRESIDENT:Yes, I am aware of that.
Mr. MuLL:rn: And in that respect, Mr. President, this is a case where
apparently a norm of the nature contended for by my learned friend is
attempted to be applied.
The PRESIDENT Did you say: "ls attempted to be applied"?
Mr. MULLER:Yes, Mr. President, and the witness will then state what
Iesson he Iearns from the attempts in applying it in this particular
sector.
The PRESIDENT:In short what you say is that even although the
official attitude and legislation and law of the United States of America is
determined to put an end to segregation, or is directed to that end, that
the social attitudes of its people can assist the Court in determining
whether integration in South West Africa would be for the social ad
vancement and welfare of the people of South West Africa. Is that your
contention?
Mr. IlfoLLER:Yes, it will assist the witness, Mr. President, in stating an
opinion in the end as to whether he considers that the norm can be
applied under each and every circumstance.
Mr. President, I have,on reconsideration, decided to eut this part of the
matter short just. by asking Professor Possony one question which will be
a general one.
The PRESIDENT:Thank you, Mr. Muller.
Mr. MULLEH:Professor Possony, can you tell the Court whether any
view has recently been expressed that the situation in America can best
be handled by having differential treatment for the Negroes?
l\fr.PossoNY: President Johnson, Jast summer, made a speech at
Howard University; which was based on a report by the Department of
Labor. I am reading from a conunent in Tite Economist of 28 August 1965.
The report on which Mr. Johnson based himself is entitled The Negro
Family-The Case for National Action and it is accepted as generally
applicable to lower class Negro urban life, and it bas this description in
it: "Massive deterioration of the fabric of [Negro] society and its in
stitutions." It adds the condition of the American Negro in recent years
has "probably been getting worse, not better".
The Economist writes: WITNESSES AND EXPERTS
695
"Negroes as a group are not equal to the competition of American
life and instead of beginning to draw level are falling further behind. ''
Then this comment follows:
"If the logic of the report is followed, American policy towards the
Negroes must presumably move out of the phase of striving for the
goal of non-discrimination and engage in a deliberate and novel
effortto discriminate in the Negro's favour until real, not legalistic,
equality is within his reach."
Mr. .MULLER: Professor Possony, moving to another field now, can you
say whether in America there are still laws in existence differentiating
between people on the basis of membership in a group?
Mr. PossoNY: There are still 17 states in the United States, or one
third of the members of the American Federation, which outlaw marriage
between Whites and Negroes. The number of states, as of ten years ago,
was 30-then it was two-thirds. I will not read all the definitions of
"Negro", but these include "descendant of a Negro" or "no ascertainable
trace" of Negro descent, "to the fourth generation", "to the third
generation", "onc-eighth or more of Negro blood", etc.
In Florida, under Article 741.11, offspring of a mixed marriage are
incapable of receiving inheritance.
There are also prohibitions to marriage betwcen Negroes and Indians.
Mr. MULLER: I wish to proceed now to the third part of Professor
Possony's evidence. It is that part which, at the opening of the evidence,
I indicated would deal with attempts in the international sphere to
formulate uniform objectives with regard to the treatment of individuals
and ethnie grou ps.
Professor Possony, are there any international conventions for the
protection of ethnie groups?
Mr. PosSONY: Yes, there is the Genocide Convention of 1948, which
came into force in 195r. The Convention has been ratified by 57 States.
The United States did not ratify it for technical reasons-there were
some objections to some of the articles.
The Convention could be interpreted to mean that it provides to each
ethnie group the fondamental right of survival. I may add that there is
an Act in Israel of 1950 impiementing the Convention through statu tory
law.
In connection with the Human Rights Declaration and the attempt to
draft the Covenant of Human Rights, the distinction between the rights
of the individuals and the rights of groups was frequently debated and it
was decided to work out a statement on self-determination. In 1952 a
so-called article on self-determination was inscrted between the preamble
and the regular articles of the Draft Covenant on Economie, Social and
Cultural Rights and the Draft Covenant on Civil and Political Rights.
There are many sources in this connection but I have used the United
Nations Bulletin, Volume XIII, No. 5, r September 1952, page 253.
This article accords to all peoples and all nations the right of self
determination. Thus, self-determination is defined as a right instead of a
principle and it applies to peoples as well as nations. It is furthermore
defined by General Assembly resolution 545 VI, February 1952, as:
"The right freely to determine their political, economic, social and
cultural status."
Mr. Malik of Lebanon, who presidcd over the committee meetings696 SOUTH WEST AFRICA
which drafted this text, summarized his experiences in the drafting
sessions as follows: "The problem is genuincly and objcctively complex."
This is from the same source which 1 quoted before-the Bulletin. He
continues: "The mind does not at first suspect the formidable com
plexity concealed under this idea" of self-detcrmination.
Many of the questions that were debated had not been dealt with in
the article that was adopted. For example, the dependence of other
rights upon the prior realization of self-determination, the inter-rela
tionships behveen self-determination on the one hand and freedom.
independencc and self-government on the other; the definition of people
and nation, the methods by which it is determined when and how the
right can be invoked, and the problem of what Mr. Malik called "cultural
determination".
Finally, in the words of Mr. Malik: "Is the right of self-determination,
according to the Charter, unqualified? Is it subject to over-arching
considerations of international security and peace?"
In 1955, the General Assembly was given a draft resolution for the
purposes of establishing an ad hoc Commission on self-determination to
examine, inter alia, the concepts of peoples and nations; the applica
bility of "principles of equal rights and self-determination, including
the rights and duties of States"; the relationship between the principle of
self-determination and other Charter principles; and finally, to examine
also, the conditions under which the application of the principle is
facilitated. The proposai was based on the consideration that "there is a
wide difference of views regarding the meaning and applicability of the
principles of equal rights and of selt-deterrnination of peoples, as men
tioned in Article I of the Charter"-this is quoted from the United
Nations Yearbook I955, page 353. According to this text therefore,
self-determination was reduced again to the status of a principle, which
is in conformance, of course, with Article r (r) of the Charter.
In the discussion within the Third Committee on principle versiis
right, the statement was made that as a principle self-determination has
a strong moral force but itis "too complex to translate into legal terms
in an instrument which was to be legally enforced"-United Nations
Yearbook I955, page 161.
In r957, the General Assembly took up the matter again and discussed
self-determination as a right, but no precise worcling was proposed. ln
the Declaration on the Granting of lndependence to Colonial Countries
and Peoples, resolution 1514 (XV) of 14 Decembcr 1960, the General
Assembly referred, in the preamble, to "the principles of equal rights ...
of all peoples", but in Article 2 it declared that "all peoples have the
right to self-determination; by virtue of that right they freely determine
their political status and freely pursue their economic. social and cultural
development"-this is from the United Nations Yearbook r960, page
49·
i\[r.MULLER: Are there international agreements on the rights of
individuals?
i\fr. PossONY: No, there are not. There is the Human Rights Decla
ration of 1948. This declaration was issued by the General Assembly as a
statement defining human rights in general terms so that on the basis
of this declaration and of the idcas expounded in the declaration an
international convention could be elaborated. In a formulation which
recurred frcquently at that time, for example, it was used by i\1rs. WIT:,,'ESSES A)ID EXPERTS
Roosevelt, the Universal Declaration of Human Rights is of a moral
rather than a legal nature; it indicates goals rather than imposes obliga
tions upon States.
Although the dcclaration was praisecl it was also criticized in the
United Nations as not being complete; for exarnple, there was criticism
that the minority question was nqt taken up effectively. The General
Assembly, in its resolution 217 (III) C of 10 December 1949, admitted:
"It is difficult to adopt a uniform solution of this complex and delicate
question which has special aspects in each State in which it arises"
United Nations Yearbook I948-I949, page 544; additional references are
United Nations Yearbook I947-I948, pages 573-577 and the Yearbook on
Human Rights I948, page 461.
This very criticism was taken up in the first session which the Com
mission on Human Rights devoted to the drafting of a convention. The
discussions dealt with the rights of ethnie, linguistic or religious minori
ties to establish and maintain schools, cultural and religious institutions,
and to use thcir own language in the press, public assembly and before
the courts. In this connection, the Sub-Commission on the Prevention of
Discrimination and the Protection of ~linorities referred to minorities
as: "well-defined ethnie linguistic or rcligious groups, which are clearly
distinguished from the rest of the population and which want to be
accorded differential treatment." The quote is from the Yearbook 01i
Hmnan Rights 1948. page 461.
The drafting of the Human Rights Convention bas been continuing
ever since, though an initial draft for such a convention has been in
existence since 1950. In addition considerable work has been donc in
dealing with specific rights such as minorities, women, information,
education and many other issues arising undcr the heading of human
rights. Howcvcr, no international convention has resulted from this
labour and no convention has been ratified, or is legally in force.
l\IrMULLER: From your study of the subject, can you say what are
the difficulties holding up a convention?
l\IrPossoNY: .Mr.President, I believe that the difficulties fall into two
broad categories: those of an intellectual nature and those of a political
nature. Arnong the intellectual difficulties, thcre is the realization that
however binding and persuasive a particular right may be, many ex
ceptions are legitimate and unavoiclable. The practical difficulty, there
fore, is todraft the relevant article in such a way that the right is fornrn
lated in a bincling fashion and the legitimate exceptions allowed in such a
manner that the fundamental right is not invalidated or that the ex
ceptions do not take prececlence and lend themselves to justifying non
compliance. It has proved difficult to link the rights of indivicluals with
the rights of groups especially sincc the rights of groups, including the
rights of States, have not yet been properly formulated; for rights of
States there is not even an initial United Nations formulation. There is
also the question of the balance between the various rights and the
pr.iority of certain rights. Finally, the whole complex of implementation
in different social rcalities, the timing of a progr:rmme of realization. and
the measurement of accomplishment-all these are wide-open questions.
Mr. MuLum: You also mentionecl that some of the difficulties arc of a
political nature, will you state what you mcan by that?
ri.fr.PossoNY: Politically, there is the problem of mutuality of control,
supervision, and the very significant question of how a Member of the SOUTH WEST AFRICA
698
United Nations who does not want to move in one or the other direction
may be brought in line.
But perhaps the most important stumbling-block is the problem of
sovereignty. If the whole effort is to be under United Nations supervision,
and this seems to be the implication, then ipso factothe United Nations
must gain direct and decisive influence upon the internal affairs of
member nations. This would raise problems under Article 2 (r) of the
Charter, not to mention the enormous complications which would arise
in the political reality, such as the possible requirement of constitutional
and statutory change.
In the interpretation of Charles Malik, the work on the International
Bill of Rights was begun in what he calls "an initial impulse of our in
experience". This is again in Volume XIII of the United Nations Bulletin.
There were to be three steps, as i\fr.Malik explains it: a declaration de
fining the rights and freedoms theoretically; a series of covenants binding
"adhering States" to the observance of the rights and freedoms elaborated
in the declaration; and measures of implementation (1 am quoting
Mr. Malik again)-
"whereby the international community can be sure that human
rights and fondamental freedoms, whether on the level of the Charter
or of the Declaration or of the Covenants, are in fact being promoted
and observed".
After the fi.rst step was completed in 1948 it was thought (and this is
again 1\Ir.Malik's evaluation) that the other two steps "would be forth
coming in speedy succession". Mr. Malik added in 1952:
"We have been grappling with them now for four years, and
while much, indeed, has been accomplished during this time, the end
is not yet in sight. We have all been sobered by the realization of
the truly formidable task assigned tous."
Mr. Malik in this context referred to the-
"radical differences that obtain in the interpretation of Man among
the effective cultures of the world, some stressing this, some stressing
that sicle of his nature".
Mr. Malik's conclusion is as follows:
"\Ve now know that the nobility and importance of our task is
matched only by its inherent difficulty, and by the long time we must
in al] fairness allow for its unfolding."
Mr. MULLER:\Vhat are some of the exceptions to the rights which
make drafting of a covenant difficult?
Mr. PossoNY: I can deal with this. Mr. President, by mentioning just
certain examples. Thus Article 9 of the Draft Covenant on Civil and
Political Rights formulating freedom of movement does not state all the
exceptions that were identified, but carries a general exemption clause
which reads as follows:
"Subject to any general law of the State concerned which provides
for such reasonable restriction as may be necessary to protect
national security, public safety, health or morals, or the rights and
freedoms of others consistent with the other rights recognized in this
Covenant." WITNESSES AND EXPERTS
699
Similarly the right to freedom of expression (Article 15) is said to carry
with it "special duties and responsibilities" and it may bc-
"subject to certain restrictions, but these shall be such only as
provided by law and are necessary, first, for the rights or reputations
of others; second, for the protection of national security or public
order or of public health or morals".
Article 16, dealing with peaceful assembly, has the standard exception
of the-
"interests of national security or public safety, public order, the
protection of public health or morals, or the protection of the rights
and freedoms of others", restrictions which are "in conformity with
the law and which are necessary in a dcmocratic society".
In the Draft Convention on Freedom of Information elaborated in 1960,
Article 2 1mlarges the standard exception to include ordre pitblic, this
term is used in French because, according to the discussion, there is no
proper English equivalent. The exceptions to freedom of information
include:
"systematic dissemination of false reports harmful to friendly rela
tions among nations, and of expressions inciting to war, or to
national, racial or religious hatred ... incitement to violence and
crime. public health and morals, the right, honour and reputation of
others and the fair administration of justice".
These difliculties are reflected in some of the Constitutions that have
been drafted to comply with the principles of the Human Rights Declara
tion. Thus, for example, in the Constitution of Nigeria thcre recurs a
standard exception clause which is worded as follows: "Nothing in this
section shall invalidate any law that is reasonably justifiable in a demo
cratic society." This phrase recurs very often, but I will not quote the
various articles ...
Mr. MULLER: How do the draft covenants attempt to deal with the
problems of complying with the Human Rights Declaration relative, for
instance, to the time factor?
Mr. PossONY: The covenants include what might be called a principle
of progressive realization. For example, an article of the Covenant on
Economie, Social and Cultural Rights states that each party-
"undertakes to take steps, individually and through international
co-operation, to the maximum of its available resources, with a
view toward achieving progressively the full realization of the rights
recognized in this Covenant by legislative as well as by other means".
This is quoted from the Yearbook of the United Nations, 1962, page 312.
This wording, I may add, adroits implicitly that even with maximum
utilization of available resources, realization can only be graduai. It is
notable that the article does not refer to difficulties other than limitations
of resources. However, in the discussions of 1962-this is from the same
source, and the reference is to page 313~the gencral inadequacy of
resources was stressed.
In this regard it may also be mentioned that with respect to Article 22
of the Draft Convention on Human Rights, dealing with inequalities
between husband and wife, it was argued that the particular paragraph
"should be drafted for the future" so as "not to offend unnecessarily700 SOUTH WEST AFRICA
those who accept long-established traditions and customs". This is in the
Yearbook, 1961, at page 297.
Mr. MULLER: How do the draft covenants attempt to deal with the
matter of minorities?
Mr. Posso:s'Y: The Sub-Commission on Prevention of Discrimination
and Protection of Minorities, after defi.ning what it meant by the term
"minorities", said that among these-
"are groups that need to be protected by special measures, national
or international, sothat they can preserve and develop the traditions
or characteristics in question".
This is in Yearbook on Hmnan Rights I950, page 490. The Sub-Com
mission recognized the-
"undesirability of interfering with the spontaneous dcvelopments
which take place when impact such as that of a new environment, or
that of modern means of communication, produce a state of rapid
racial, social, cultural or linguistic evolution".
This is again at the same place.
According to this Sub-Commission, the term "minority" includes only
those grnups which posscss-
"stable ethnie, religious or Iinguistic traditions or characteristics
markedly differcnt from those of the rest of the population",
and-this is a paraphrase-who wish to preserve those differences.
Mr. MULLER: You have dealt with theattempts to draftahuman rights
covenant or covenants-how is the question of racial discrimination
being dealt with in the United Nations?
Mr. PossoNY: I think this mat ter can best be discussed by referring
fi.rst to certain developments which preceded the 1963 Declaration on
Racial Discrimination, and then to discuss the Declaration itself.
Shortly after the founding of the United Nations a Sub-Commission on
the Prevention of Discrimination and the Protection of Minorities was
created within the Economie and Social Council, and the meaning of
"prevention of discrimination and the protection of minorities" was
discussed. One good source for this is the publication by the Economie
and Social Council E/CN.4/Sub. 2/40 of 7 June 1949, page 3. The Sub
Commission defi.ned prcvcntion of discrimination as the "prevention of
any action which denies to individuals or groups of people equality of
treatment which they may wish", this is on page + The protection of
i.ninorities who wish "for equality of treatment with the majority" may
1nvolve-
"a measure of differential treatment in order to preserve basic
characteristics which they possess, and which distinguish them from
the majority".
Protection applies equally to all, and differential treatment is justified
"when it is exercised in the interest of their contentment and the welfare
of the community as a whole". It is added that "the characteristics
meriting such protection are race, religion and language".
The Sub-Commission argued (ibid., p. 5) that the prevention of dis
crimination requires the "elimination of any distinctions imposed",
while the protection of minorities would require "safeguards to preserve
certain distinctions voluntarilymaintained".
The Sub-Commission used the word "discrimination" in its pejorative W[TNESSES AND EXPERTS
7or
sense; by this it was meant that the tcrm does not refer to alJ differentia
tions, but only to those "distinctions which have been established to the
dctriment of individuals bclonging to a particular group".
ln r962 the Third Committee of the General Assembly was discussing
Article 2 of the Draft Covenant on Economie, Social and Cultural Rights,
whose paragraph z states that the parties undcrtake to guarantee that
the rights-
"win be exercised without distinction of any kind, such as race,
colour, sex, Ianguage, religion, politicalor other opinion, national or
social origin, property, birth or other status".
This quote is from the Yearbook of the United Nations I962, page 313. This
wording concerning distinction was amended to read "without discrimi
nation of any kind".
In dcliberating about this change, the Committec unanimously held:
"that the protective measures taken by various States for the
benefit of certain socially and educationaHy backward groups of the
population were aimed at re-establishing equality and coule! not,
therefore, be violations of Artidc 2".
Thus, protective differential treatment, which aims at establishing
eguality appears to be legitimate.
ln grappling wlth the same problcm, Unesco, in a Draft Convention
against Discrimination in Education, dated 14 December rg6o, defined
discrimination as any distinction, exclusion, limitation or preference,
which is bascd on race, colour, sex. language, religion, etc., and "has the
purpose or effect of nullifying or impairing the quality of treatment in
education" and, in particular, of depriving persans or groups of access
to education or limiting such persons to a level of inferior standards. The
full text is found in Yearbook on Humait Rigltts I96I, page 437.
The Draft Convention specifi.callyallowed separatc educational systems
for the two sexes and for religions and linguïsiic groups, provided the
schools are equal (i&id,,pp. 437 ff.).
Article 5 of this draft specifically recognizes the rights of national
minorities to carry on their own educational activities, including teaching
in their own ]anguage, provided they are not prevented from under
standing the culture and language of the comrnunity as a whole, and
provided also that the standard of education is not lowcr than the general
standard prevailing in the country. This is again at the same place,
page 438.
According to Article 4, national policies on education should involve:
"methods appropriate to the circumstances and to national usage", so
that they wil! tend: "to promote equality of opportunity and of treat
ment in the matter of education."
This convention, Mr. President, is applicable only to the States ad
hering toit and can be denounced. (Ibid., p. 439.)
l\Ir.MULLER: You have referred to the Declaration on Racial Discrimi
nation of 1963. Would you briefly deal with that declaration?
Mr. Possm1v: Early in r963, the Commission on Hurnan Rights drafted
the United Nations Declaration on ail forms of Racial Discrimination.
This draft was to serve as a draft convention. The Yearbook of the United
Nations r963, page 330, gives the details .
. In the draft preamble, the words "distinction" and "discrimination"
are used but the differences between the two are blurred. The draft702 SOUTH WEST AFRICA
preamble expresses conccrn about the manifestation of racial discrimi
nation, which is imposed by certain governments in the form:
"inter alia, of apartheid, segregation and separation, as well as by
the promotion and dissemination of doctrines of racial superiority
and expansion in certain areas".
A preambular paragraph ass.erted that:
"any doctrine of racial differentiation or superiority is scientifically
false, morally condemnable, socially unjust and dangerous; and that
there is no justification for racial discrimination, either in theory or
in practice".
Furthermore, in another preambular paragraph, all forms of racial
discrimination are Jinked: "with governmental policies based on the
prejudice of racial superiority or on racial hatred."
The Declaration affirmed the "necessity of speedily eliminating racial
discrimination throughout the world in all its forms and manifestations,
and of securing understanding of, and respect for, the dignity of the
human person".
It callcd for "national and international measures" including teaching,
education and information. ·
Article 2 (1) states that:
"no State, institution or individual shall make any discrimination
whatsoever in matters of human rights and fondamental frcedoms
in the treatment of persans, groups of persans or institutions on the
grounds of race, colour or ethnie origin".
But Article 2 (3) states this:
"Special concrete measures shall be taken in appropriate circum
stances in order to secure adequate development or protection of
individuals belonging to certain racial groups, with the abject of
ensuring the full enjoyment by such individuals of human rights and
fondamental freedom.''
It is added to this: "These measures shall, in no circumstances, have as
a consequence the maintenance of unequal or separate rights for different
racial groups." This text is from the same source, page 345.
Article 5 calls for the abolition of what they call policies of apartheid.
A definition might have been given to clarify when special concrete
measures, taken to secure adequate development or protection of certain
groups·to ensure their full enjoyment of human rights and fondamental
freedom, do or do not fall under the rubrique of objectional policies. This
might have been useful, particularly because the draft International
Convention on Racial non-Discrimination, which was issued subsequently,
lumped together discrimination with "the evil racial doctrine and
practices of Nazism in the past" and it also linked apartheid separation
or segregation with racial discrimination. This is laid down in United
Nations Economie and Social Council E/CN .4/873 and E/CN .4/Sub.
2/24r of II February 1964, page 20, as well as the annex to the same issue
of the Economie and Social Council. ·
The draft convention defines discrimination as: "any distinction, ex
clusion, restriction or preference" having the effect of "nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of
human rights and fundamental freedom." It states, specifically, in Article
I (2) that: WITNESSES AND EXPERTS
703
"measures giving preference to certain racial groups for the sole
purpose of securing adequate development ... shall not be deemed
racial discrimination",
provided they do not lead to the "maintenance of unequal or separate
rights for different racial groups".
The indiscriminate use of the terms racial di5crimination, segregation,
separation, apartheid, Nazisrn and the linkage of all these to racial
superiority doctrines and doctrines of expansionism and racial hatred has
no rational basis and leaves the whole subject in utter confusion.
The declaration has not resulted in a covenant.
Mr. MuLLER: Have there, to your knowledge, been any recent devel
opments under United Nations auspices relative to multi-ethnic so
cieties?
Mr. PossoNY: Mr. President, apart from the fact that drafting work is
continuing on the declarations and convenants covering numerous aspects
of the human rights problem, there has taken place, between 8 and zr
June I965, a seminar organized by the United Nations, in co-operation
with Yugoslavia, at Ljubljana, Yugoslavia. This seminar dealt with the
multi-national society.
Mr. MULLER:Can you tell the Court who participated in this seminar?
Mr. PossoNY: The seminar was described by the representative of the
Secretary-General as the "first human rights seminar ever to be organized
on a global basis". However, the Secretary-General, after consulting the
President of the Council and the Government of Yugoslavia, extended
invitations to 27 governments, not including the Union of South Africa.
The following countrics participated: Argentina, Austria, Canada,
Czechoslovakia, Ghana, India, Israel, Italy, Jamaica, Japan, Madagas
car, Malaysia, Mali, Norway, the Soviet Union, the United Kingdom, the
United States of America, Venezuela and Yugoslavia.
Mr. MULLER:What, in particular, was this seminar concerned with?
Mr. Posso~Y: The representative of the Secretary-General, who is the
Director of the Division of Human Rights, delivered an opening address,
in which he said as follows:
"There are many minorities which want nothing better than
assimilation and integration. There are, however, other minorities
which want neither of these things but only to continue in the enjoy
ment, as minorities, of their traditional, cultural, social, political and
economic rights and characteristics. It is with these latter minorities
that we will be more particularly concerned at the seminar."
If I may, at this point, give the source: United Nations publication,
ST/TAO/HR/23, entitled Seminar on the Multi-National Society, and I
was just quoting from page 40.
Mr. MuLLE.R: What was the agenda of the seminar?
Mr. PossoNY: The agenda I will read from the text on page 6:
"r. Measures which should be taken to ensure the realization of
human rights and fundamental freedoms to all without dis
crimination.
2. Measures which should be taken to ensure the realization by
ethnie, religious, linguistic or national groups, of the special
rights necessary to enable them to preserve their traditions,
characteristics,or national consciousness." SOUTH WEST AFRlCA
704
Mr. Muu.ER: \Vas any consensus reached at the seminar relative to the
matters on the agenda?
Mr. PossoNv: The main conclusion, Mr. President, is worded as
follows, and it appears in paragraph 144a, page 35.
"There was general agreement that all Governments should
promote and protect the rights of ethnie, religions, linguistic or
national groups, not only through the adoption of constitutional
and legislative provisions, but also through the promotion of ail
forms of activities consistentwith the political, economic and social
conditions of the State or country concerned."
The second conclusion, which I will skip, essentially dcals with inter
national agreements, cxchanges, and contacts.
Then it says, in paragraph 145:
"The seminar expressed the voeu that the Secretary-General
should organize other seminars, on a regional or global basis, to
consider aspects of the problem of the multi-national society."
And paragraph 146:
"There was general consensus that the United Nations, as well as
Govcrnment and institutions, should undertake measures and
stimulate more intensive research on ethnie, religious, linguistic, and
national problems."
Mr. MULLER: Can you mention particular matters which wcre under
discussions at the seminar?
Mr. PossoNY: Yes, I can do this briefly under the following headings:
(r) the nature of the minority problem; (2) language rights; (3)individual
group rights; (4) the rights of ethnie groups; (5) assimilation; (6) types
of solutions;(7) major fmdings of operational significance.
Mr. MUI,LER: First of ail, with regard to the problem of minorities,
what view was expressed?
Mr. PossoNY: Sorne speakers, Mr. President, stated that minority
problems are not merely an issue of liberty, in the abstract, but of equality
of opportunity; the problem is complicated by differences in cultural
levels and living standards-this appears in paragraphs 30 and 53.
One participant commented that Jack of cadres results in a strong
tendency to centralization,and he recommended local self-government
to encourage decentralization-this appears in paragraph 134,
Sorne participants noted that "... the unity and the cultural develop
ment of the country would be enhanced, rather than impaired, if all
groups were assured their full rights for development"-this appears at
paragraph 56.
Mr. MULLER: You said that certain views were also expressed with
regard to language systems; kindly deal with that shortly.
:1\fr.PossoNv: There was general agreement that if a group wished to
maintain its ethnie characteristics, it must be able to use its own language.
In amplification of this point. the following was stated in paragraph 47:
"Discrimination by a State against a group which wished to use
its own language in everyday life, was considered to be reprehen
sible. Noting the importance of the use of its !anguage to the con
tinucd existence of a group, one participant pointed out that
deliberate destruction of a group ]anguage was tantamount to
'cultural gcnocide'." WlTXESSES AND EXPERTS
705
In further amplification, it was stated that-
"... it would be meaningless to safeguard the right of the present
generation to speak its own language, if provisions were not made
to ensure that future generations would learn that language from
instruction given in autonomous schools".
This appears in paragraph 52.
There was agreement that "... there were different ways in which to
achicve the ends desired by the community". (ibid.,para. 53.)
Mr. Mm.LER: What views were expressed with regard to the inter
relationship between the groups and the individual?
Mr. PossoNY: Mr. President, the point was macle rcpeatedly that
group rights and individual rights do not necessarily coïncide, and that
both types of rights must be protected-in fact, there was understanding
that human rights and group rights are interrelated and cannot be con
sidered in isolation from one another. Sorne speakers thought that-
"... an assurance of equality and the right to integrate, however
absolute, could never safeguard the survival of a minority group as
a distinctentity. A group often had certain interests which were by
no means identical with the individual interests of its members."
This appears in paragraph 36.
According to paragraph 21, it was widely agrced-
"... that the seminar would have to examine the modes of re
conciling the interests of a given group or individual with those of
the community as a whole, and the relative advantages of, on the
one hand, assimilation and integration, and on the other, the right
of minorities to live a substantially autonomous life."
l\lrMuLLEic What views were expressed with regard to the rights of
ethnie groups, as such?
Mr. PossoNv: The problcm of deculturation was discussed, and it was
deplored that many inhabitants of developing countries-
"... had bccn caught in the cross-current of an offi.ciallydiscouraged
traditional way of life or an alien culture, to which they could never
fully adjust. Today, therefore, every effort had to be made to awaken
the masses to the needs of respect for their national or continental
personality, white simultaneously striving for the attainment of
modern objectives, and the elimination of anachronisms or stulti
fying superstition. Sorne of the participants added that the mainte
nance of indigenous traditions was greatly assisted in their countries
by a policy of strcngthening tribal institutions, such as the authority
of local chiefs or by an enlightened codification of customary law."
This, 1\Ir.President, was laid clown in paragraph III.
According to paragraph 107, it was generally agreed that-
"... the right of autonomous action ta ensure the preservation and
continuity of a group's traditions and characteristics ... provided
the surcst mcans of protecting its collective identity ... "
The discussants rccognized the right of an ethnie relîgious, linguistic or
cultural group to transmit its heritage to its childrcn-this is in para
graph 92.
Now, the sizc of the group was not considered to have a bearing on its
rights: in connection with the discussion on language, the view was
expressed:706 SOUTH WEST AFRICA
"... that it would not be appropriate to impose a numerical criterion
on the size of a group ... the group might be small in number, but
might enjoy a rich cultural heritage".
This is in paragraph 48.
Mr. MULLER:Did the discussions elucidate how the solution to these
difficult problems is to be achieved?
Mr. PossoNY: It was agreed first, that the State is obliged to take
"... protective action to safeguard the rights of minority groupings"
this is in paragraph 30. It was also agreed that the minority group
". . . should receive special protection designed to preserve its own
traditional characteristics"-this is in paragraph 36. It was agreed
second, that while "... it was the duty of every country to provide
solutions for the problems of minorities ... there were different ways in
which to achieve the ends desired by the community"-this, Mr. Presi
dent, is in paragraph 53. Now, paragraph 25 has this wording:
"Each group ... had its own distinguishing characteristics, some
times national, linguistic or religious,at other times racial or even
econom1c. "
Quoting from paragraph 94, participants noted:
"... that the methods and techniques used to provide educational
facilities for ethnie, religions, linguistic, national groups, varied
greatly from country to country, and included educational networks
of autonomous educational institutions".
I quote now from paragraph 25:
"Having regard to such diversity, no single formula could be
devised with a view to seeking a uniform set of applicable principles
or measures."
Mr. MULLER:Were any views expressed with regard to integration
and assimilation of groups?
Mr. PossoNY: Integration was not praised as a panacea which would
be applicable everywhere, and I quote from paragraph 33:
"It was the duty of the majority to recognize that, by encouraging
a minority to preserve, if it so wished, its own cultural heritage, the
State would, in the final ana1ysis, be the principal beneficiary. Inte
gration, therefore, should never mean the suffocation of the minority
concerned.''
Special attention was drawn to the fact that-
''... a policy of assimilation could lead to later difficulties and, in
any event, had in several instances shown that the requirements of
a group, even though scattered, had proved more compelling than
a policy of assimilation" (para. 95).
A summary conclusion~appearing in the middle of the text, as a
summary to a sub-seminar-was phrased as follows, in paragraph 120:
"Most participants believed that incentives should be offered by
the State, even though there was no obligation in this respect, for
the autonomous development of group characteristics and tradi
tions."
Paragraph rn7 says:
"Any attempt to impose a uniform cultural pattern led to mono
tony and blandness, while encouragement of variety helped the WlTNESSES AND EXPERTS
707
assurance of harmonious coexistence between a country's varying
ethnie, religious, linguistic,nd national groups ... ''
Sorne speakers recalled-
"... how past attempts ta attribute to one single groupa monopoly
of virtue, by reason of its alleged racial or historie superiority, had
revealed the dangers inherent in a misdirected, centrally inspired,
unity of purpose".
l\IrMULLER: Now, my final question relative to the seminar, were
there any major findings of operational significance?
i\fr. PossoNY: One major operational conclusion was that much more
research is needed on ethnie, religions, linguistic, international problems
-this is laid down and specifically stressed in paragraphs 58 and 87, and
re-occurs in the general conclusions.
Another finding, which emerged, is bcst sta1ed in 'the words of the
report itself, in paragraphs 39 and 40:
'!As regards international mcasurcs, some participants suggested
the possibility of creating aUnited Nations High Commissioner, or
Ombudsman, on Human Rights. Othcrs were more inclined to favour
the establishment of a small tribunal to consider complaints in
human rights matters. It was pointcd out, however, that in either
cases there remained a number of serions obstacles: fi.rst, many
States would consider any act of investigation or any declaration
regarding them made by a commissioner or tribunal to be an in
trusion into theîr domestic affairs, and an attcmpted infringement of
their sovereignty; secondly, some States, particularly among those
which had only recently, or relatively recently, attained indepen
dence tended to suspect the objectivity of such international organs;
and thirdly, some of the biggest powcrs were often tempted by the
propaganda possibilities of international bodies, and might in~
troduce a political flavour into the judicial or quasi-judicial process."
And then I leave out a few words and corne to this:
"For the time, therefore, several speakers urged more easily
attainable objectives, in particular, the early adoption of the Draft
International Covenants on Human Rights and a draft Convention
on the Elimination of Racial Discrimination and Religions In
tolerance, the ratification of which by a government would involve
a binding conunitment to carry the provisions into effect."
This, Mr. President, was in paragraph 40.
Mr. MunER: Now, Professor Possony, I corne back to a question which
I intended to putto you here, but it was anticipated and put earlier in
the examination, and that is that the Applicants contend that there is in
existence an international norm of non-discrimination or non-separation
which prohibits by govemmental policies or actions the allotment of
status, rights, duties, privileges or burdens on the basis of membership in
a group, classor race, but rather on the basis of individual merit, capacity
or potential. Now I will ask you the question again. Can you, from your
experience and studies which you have made, state whether as usage
and practice in the world there is, or has been, observance of such a rule
or norm?
Mr. PossONY: Mr. President, from what I have indicated to the Court
with relation to the practice ail over the world, there is no general SOUTH WEST AFRICA
708
observance of such a rule or norm. And furthermore, from what I have
said relative to attempts at formulation of a concept of effective practice,
those attempts have progressed no further than expressions of general
abstract ideas.
Mr. MULLER: My final question, Professor Possony is: With your
experience of group differences in the world, would it be practicable and
just to apply such a norm under ail circumstances and at all times?
l\fr. PossoNY: i\fr. President, my answer to this question is no. Mankind
wîth all its diversities has never accepted a single writ. To impose a single
formula would be ideological imperialism.
Given the ideals of humanity-the hopes of advance as well as the
promises of human rights-but given also a manifold rcality, the best
principle, it seems to me, is to tailor methods or responses to specific
challenges.
An optimal solution can be optimal only in terms of a concrete situa
tion.
A solution can be viable only if it respects the history of an area and
is implemented in the same rhythm as the society living in that area is
evolving.
As Hegel taught, reality is always reasonable in its own way. Reality
can be changed, and of course it should be improved. But continuity and
respect for the historical tradition remain as the unavoidable framework
of human bctterment.
Mr. MULLER: Thank you, Professor. That is my last question, l\Ir.
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Minutes of the Public Hearings held from 15 March to 14 July, 20 September to 15 November and 29 November 1965, 21 March and on 18 July 1966, the President, Sir Percy Spender, presiding (Annexes to the Minutes - continued)