INTERNATIONALCOURT OJUSTICE
PLEADINGS,ORAL ARGUMENTS,DOCUMENTS
SOUTH WESTAFRICACASES
(ETHIOPI.SOUTH AFRICA:
LIBERIv.SOUTH AFRICA)
VOLUME III
COUR INTERNATIONADEJUSTiCE
MÉMOIRES,PLAIDOIRIES ETDOCUMENTS
AFFAIRESDU SUD-OUEST AFRICAIN
(ÉTHIOPIcAFRIQUE DU SUD;
LLBÉFUAc. AFRIQUDU SUD)
VOLUMEIIICounter-Mernorialfiledbythe Governmentofthe Republicof SouthAtrica
LIST OF ABBREVIATIONS
A.D. Appellate Division of the Supreme Court
of South Africa
A.F.P. Agence France Presse
A.J.I.L. The American Journal of International
Law
A.M.I.C.E. AssociateMember of the Institnte ofCivil
Engineers
A.P.S.R. The American Political ScienceReview
Bib. Un. Bibliotheque universelle et Revue de
Genève
B.Y.B.I.L. The British Year Book of International
Law
C. The Cambridge Law Journalm
C.L.R. Commonwealth (Australia) Law Reports
cub. cubic
OC. Degrees Centigrade
ft. feet
G.A. General Assembly
G.N. Government Notice
Grotius Soc. Transactions of the Grotius Society
Ha. Hectare@)
H.hl.S.0. Her/His Majesty's Stationery Office
I.L.A., Rep. International Law Association, Reports
I.L.O. International Labour Organisation
in. inches
K.B. King's Bench Division (England)
km. kilometre(s)
L. of N., Assembly, Rec. League of Nations, Assembly, Records
L. of N., Council. Min. League of Nations, Council, Minutes
L. of N. Doc. League of Nations Document
L. of N., O.J. League of Nations, Officia1Journal
L. of N., O.J., Spec.Sup. League of Nations, OfficialJournal,
Suecial SuL Aement
m. me&e(s)
Mk. Mark (unit of currency)
mm: miliimetres
N.A. ArCape Colony Secretarv ofNativeAffairs,
N.L.R. Natal Law Reports
O.R. OfficialRecords
Ord. Ordinance
P.M.C., Min. Permanent Mandates Commission,
Minutes
Proc. Proclamation
Quellen Quellenzur GeschichtevonSüdwestafrika
R. Rand (unit of curency) Revue de droit international et de Iégis.
R.D.I. lation comparée
R. of S.A., Parl.eb.: Republic of South Africa, Parliamentary
House of Assembly Debates. House of Assembly
S.A. South Africa
S.A.L.J. The Soutb African Law Journal
S.A.L.R. South African Law Reports
S.C. Security Council
sq. square
S.R. & O. Statutory Rules and Orders and Statu-
tory Instmments
S.W.A. South West Africa
S.W.A. High Court of South West Africa (only in
Table of Cases Cited)
S.W.A.N.L.A South West Africa Native Labour Asso-
ciation
T.C. Tristkstsip Council
T.P.D Transvaal I'rovincial Division of thc Su-
preme Court of South Africa
U.N. United Nations
U.N.C.I.O. Untional Organizationence on Interna-
United Nations Document
U.N.P.C.c. United Nations Preparatory Commission
U. of S.A., Parl. Deb., Union of South Africa, Parliamentary
House of Assembly Debates, House of Assembly
U. of S.A.. Part. Deb.. Union of South Africa, Parliamentary
House if ~ssembl~i~enate Debates, House of Assemblylsenate
U. of S.A.. Parl. Deb., Union of Soutb Africa, Parliamentary
Debates. SenateAl1 rights reserved by the
InternationalCourtof Justice
Tous droits rkservéspar la
Courinternationale deJustice Abbreviatedreference:
I.C.J. Pleadi~igs,South West Africa,
Vol. III
Rbfbrenceabrégée:
C.I.J. Mémoires,Sud-Ouestafricain,
vol. III
Sales nnmber
No de vente: SOUTH WEST AFRICA CASES
(ETHIOPIAv.SOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)
AFFAIRESDU SUD-OUEST AFRICAIN
(ÉTHIOPIEc.AFRIQUE DU SUD;
LLBÉRIA=.AFRIQUE DU SUD) INTERNATIONAL COURT OFJUSTICE
PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
-
SOUTH WEST AFRICA CASES
(ETHIOPIv.SOUTH AFRICA;
LLBERIAvSOUTH AFRICA)
VOLUME III
COUR INTERNATIONALE DEJUSTICE
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;
LIBÉRIA c. AFRIQUE DU SUD)
VOLUME IIIPRINTED IN THE NETHERLANDS The present volume contains Books V to VI1 of the Counter-
Mernorial relating to the South West Africa cases. 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 20 May 1961 (South West Africa, Order of
zo May 1961. I.C.J. Reports1961, p. 13). TWOJudgments have
been rendered, the first on21 December 1962 (South West Africa,
Preliminary Objections,Judgment, I.C.J. Reports1962,p. 319), and
the second on 18 July 1966 (South West Africa, Second Phase,
Judgment, I.C.J. Reports1966, p. 6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination of the present
edition. Where the reference is to another volume of the present
edition, the volume iç indicated by a roman numeral in bold type.
The Hague, 1966.
Le présent volume reproduit les livres V-VI1 du contre-mé-
moire déposédans les affaires du Sud-Ouest africain. Ces affaires
ont étéinscrites au rble généralde la Cour sous les nW46 et 47 le
4 novembre 1960 et les deux instances ont étéjointes par ordon-
nance de la Cour le zo mai 1961 (Sud-Ouestafricain, ordonnancedu
zo mai 1961, C.I.J. Recueil1961, p. 13). Elles ont fait l'objet de
deux arrêtsrendus le 21 décembre1962 (Sud-Ouestafricain, excep-
tionsprêliminaires,arrêtC, .I.J. Recue1962, p. 319) et le 18 juil-
let 1966 (Sud-Ouestafricain, deuxièmephase, arrêtC , .I.J. Recueil
1966, p. 6).
Les renvois d'un mémoire à i'autre ont étémodifiéspour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit
d'un renvoi à un autre volume de la présente édition,un chiffre
romain gras indique le numérode ce volume.
La Haye, 1966. CONTENTS - TABLE DES MATIÈRES
-
PART 1. APPLICATIONS INSTITUTING PROCEEDINGS
AND PLEADINGS
PREMIÈRE D'INSTANCE ETÉTES IWÉMOIRESIVES
5. Counter-Mernorial fled by the Government of the
Republic of South Atnca (continued)
BOOKV
Pa80
Section A. Introductor. . . . . . . . . . . . . . . . . . . I
Section B. Well-being,socialprogress and development in agricul-
Chapter 1. Introductory.. . ... . . . . . . . . . . . . . 22
Chapter II. Agriculture in the areas outside the police. .e 4
Chapter III. Agriculture in the police zo.e. . . . . . . . IO
Conclusion. , , , . . . . . . . . . . . . . . . . . . . 19
Chapter IV. Respondent's reply to Applicants' allegations
(Memorials) . . . . . . . . . . . . . . . . . . . . . . 22
Paragraph 17of Chapter V . . . .... . . . . . . . . . . 23
Paragraph 18of Cha ter V . . . . . . . . . . . . . . . 24
Paragraph zoof ChapterfVCh. . . .. . . . . . . . . . . . 225
Paragraph 21 of ChapterV . . . . . . . . . . . . . . . 25
Paragraphs 23and 24of Chapter V .. . . . . . . . . . . . 228
Paragraph 25of Chapter V . . . . . . . . . . . . . . . 30
Paragraph 26of Chapter V . . . . . . . . . . . . . . . 31
Paragraphs zgto 32of Chapter.V. .... . . . . . . . . . . 333
Paragraph 33of Chapter V . . . . . . . . . . . . . . . 38
Chapter V. Conclusion.. . . . . . . . . . . . . . . . . . 39
SectionC.WeU-being,socialprogressand developmentin ind~sm 40
Chapter 1.Introduction. . . . . . . . . . . . . . . . . . 40X SOUTH WEST AFRICA
Chapter II.The fishingindustry ..........
General ........................
The fishingindustry in South West Africa .....:
Respondent's reply to Ap..icants' all.gations (Memorials). .
Paragraphs 36 of Chapter Vapt...................
Paragraph 77 of Chapter V ..............
Chapter III.Miningand minerais ..............
Introductory ......................
Miningin general ....................
hlining legislation in South West Africa..........
Permission to prmpect .................
Within the Police Zone ................
Outside the Police Zone ................
Special provisions regarding prospecting for and mining of
certain minerals ...................
Diamonds ......................
Minerals used in the production of atomic energy ....
Employment within mining ente~nses ..........
Respondent's reply to Applicants aliegations (Memorials) . .
Paragraph 37 of Chapter V ..............
Parakaph 39 of Chapter VV ..............
Paragraph 40 of Chapter V ............~..
Paragraph 41 of Chapter.V ..............
Paragraph 42 of Chapter V ..............
Paragraphs 43 and 44 of Chapter V ...........
Paragraph 46 of Chapter VV ..............
Paragraph 47 of Chapter V ..............
Paragraph 77 of Chapter V ..............
Chapter IV. Railways and harbours .............
Introductory ......................
Control of railways and harbours .............
Respondent's reply to Applicants' allegations (Memorials).. .
Paragraph 48 of Chapter V ..............
Paragraph 49 of Chapter V ..............
Paragraph 77 of Chapter V ..............
Chapter V .Labour recmitment ...............
Introductory ......................
History of the recruiting system .............
Advantages of the rec~iting system ..............
Respondent's reply to Applicants' allegations (Memorials) . .
Paragraph 50 of Chapter V ..............
Paragraph 51 of Chapter V ..............
Paragraph 52 of Chapter V .............. Paragraph 53 of Chapter V ..............
Paragraph 55 of Chapter V ..............
Paragraph 56 of Chapter V ..............
Paragraph 57 of Chapter V ..............
Paragraph 77 (6) of Chapter V .............
Chapter VI . Labour conditions within the police zone.....
AB. The relationshi~ between masters and servants .....
1. The scope of the master and servants proclamation .
II. Background to the master and servants proclamation
III. Thépenal provisions of the proclvation .....
IV. Sirnilar legislation in other countn........
Western Australia .................
Northem Rhodesiaa ...................
Swaziland ....................
Basutoland ....................
The former Belgian Congo .............
V. Conclusion ..................
D. Pneumoconiosis comnensation.............
k. collective bargainini and conciliation. ...
F. Respondent's re..y to A..licants' allegations (Memorials)
1. ~aragra~hs 65 to 71 of Chapter V ..........
(a) General ................
(c Paragraph6665 .................
( ) Paragraph 67 .................
(e Paragraph 68 .................
(h paragraph 69 .................
( ) Paragraph 70 .................
II.Paragraph 77 of Chapter V .............
Chapter VI1 . Conclusion..............
Section D .Brief account of the Native in commerce .......
Introduction .......................
Northernareas ................
Reserves in the police zone ...............
Native townships in wban areas ..............
Section E .Govemment and citizenship ...........
Chagovernment within the Native tnbes and Native reservesent. .
A. Introductory ..................
B. General volicv..................
C. Constituiionai arrangements nor to 1925 .......
E. General constitutional arrangementsuconcerning the indi-
genous groupsXII SOUTa WEST AFRICA
F . Indigenous political institutions outside the police. .ne
Ovamboland .....................
The Okavango Native terii...................
The Kaokovelda....................
The Bushmen .............
G . Indigenouspolitical institutions within the police z.ne.
The development since rgzo ..............
The Herero ....................
TheNama .....................
The Dama ......................
1.FReçpondent's reply to Applicants' allegations (Memoriak)
Paragraphs 78-85of Chapter V .............
Paragraphs 86 and 87 of Chapter V ...........
Paragraphs 114 .115. 125. 126and 127of Chapter V ...
Paragraphs 116. 117and 118of Chapter V ........
Paragraph 1120of Chapter V ..............
Paragraphs Izr and 122of Chapter V ..........
Paragraph 123of Chapter V ..............
Paragraph 124of Chapter V ..............
Paragraph 128 (1.(2).(5) and (6) of Chapter V .....
Chapter II .General administration (CivilService)......
A. Introductory ....................
C. General policy....................n of the Manda....
D The Public Service Act ................
E The Public Service Com. mission ............
F. Division of the publicservice under the Public ServiceAct.
191. The administrative division ...........
II Clericaldivision ................
III. The professional division............
IV. Technical division................
V. General divisions A and B ............
G .Early attempts by Respondent to introduce Natives into
the public service..................
H .Developments in certain specific branches of the public
service in general..................
1. Native affairs..................
(a) General ..................
/cl Administration inside the Police Zone.......
.....(/)In the Native reserve..........
(II)Outside the Native reserves .......
(iii) In the urban areas...........
II. Departrnznt of information............ CONTENTS
III . The police for................
IV .The prisons servic...............
V .The nuning profession .............
VI . The teaching professio.............
VI11 .Other branches of the public service.......
1. Comparison with other temtories in Africa .......
J. Respondent's reply to Applicants'aiiegations (Mernoria.s)
1. Paragraphs 88-105of Chapter V ..........
(a) Paragraphs 88-93 ...............
(b) Paragraph 94 .................
(d) Paragraph 96 .................
(e) Paragraphs 97-105 ..............
II. Paragraphs 128 (3) and (6) and 190 of Chapter V...
Chapter III.Local govemment ...............
A .Introductory ....................
B .The osition before and when Respondent assumed the
anf f .....................
D .Local government of tbeahuteponinhabitant.. 1 :::
1. General ....................
II. Municipal counuls................
III . Village management boards............
E .Centralized control of Native poli...........
G .Population increase in urban areas..........
H .Provision of amenities in Native residential are....
1. Non-White housing accommodation in urban areas .
II. Financial assistance by the administratio.....
IIV. Layout of Native residential areas........
V. Trading in location...........
1. Mana ement and control of locations and Native village.
J. The ofjects and future of the Native advisory boards,..
K .Supervisory control of Respondent over local authontie.
M .To sum up in regard to local government.........
N .Respondent's reply to Applicants' auegationç (Memonals.
1. Paragraphs 106to 113of Chapter V .......
(a) Paragraph 106 ..............
(b) Paragraph 107 ...............
(dj Paragraph 109 ...............
(e) Paragraph 110 ...............
(f) Paragraphs III and 112 ...........
(g) Paragraph 113 .............
II. Paragraphs 128 (4)and (6) of Chapter V......
(a) Paragraph 128 (4)............... SOUTH WEST AFRICA
Page
(b) Paragraph 128 (6).............. 192
III.Paragraph goof Chapter V ........... 193
Chapter IV . Conclusion .................. 194
BOOK VI
Chapter 1. Introduction ................
Chapter II . Security of the person...........
A . Introductory ..................
B . Vagrancy ...................
II. The scope of the proclamation.........
III. The historical background..........
IV. Legislation against vagrancy in other countries
The United Kingdom ............
New Zealand ...............
Western Australia .............
Canada ..................
The United States of America ........
Ethiopia ....... ............
Liberia .................:
The former Belgian Congo................
Soutbem Rhodësia .
Nortbem Rhodesia .....
Pakstan ....................
Uganda .....................
Bechuanaland ..................
Basutoland ...................
V. The particular provisions of the proclamation ....
(a) The power of arrest as such..........
(b) The allegedarbitra ryor uncontrolled nature ofthe
(c) The grant of the power of arrest to land owners
and occupiers ................
(d) The nght of entry and search .........
VI .The practical application of the proclamation ....
VI1. The attitude of the permanent mandates commission.
VI11 .Conclusion ...................
C. Idle pemns in urban and proclaimed areas ........
1. The Natives (Urban Areas) Proclamation .......
II. The scope of the proclamation ...........
IIV. Legislation in other countrie..............
V. The applicabity of the Prisons Act .........
VI .Conclusion ....................
D .Idle persons in Native reserves ............. page
F..UThe deportation of undesirable persons from the temtory . 222
G . Infringements of the pass laws ............. 228
H . Conclusion ...................... 229
Chapter III . Rights of residence ............... 231
A . Introductory .....................
B. Respondent3s reserve po.icy . ..............
1. General .....................
II . Reserves in South Africa ..............
(b) Natal province ..................
(c) Transvaal province ..............
III . Reserves in Soutli West Africa ...........
(a) Background to the establishment of the reserves .
(b) The basic considerations of the reserve policy ...
(i) The existence of the different groups ....
(ii) The need to restore tribal li........
(iv) The need to prevent alienation of non-White
land ...................
(c) The Native reserves .............
(d) The Bushmen resérve .............
(8) The Rehoboth Baster Gebiel ........
(1) The area inhabited by the White population ...
IV . The attitude ofthe Permanent Mandates Commission .
C. Reserves in other parts of the world ...........
II . Basutolandy.....................
III. Bechuanaland .................
IV . Swaziland ....................
V. Southern Rhodesia .................
VI1I. Kenyaern............................
VI11 . Liberia .....................
IX . Canada .....................
X . The United States of America ...........
XI . Conclusion ...................
D .Reply to the Applicants' allegations ...........
1. General .....................
II. (a)hThe powers to set aside Native reserves .......
(b) The power to preserve and develop Native areas .
III . Rights of residence in the Police Zone ........
IV. Rights of residence in urban areas .........
(a) The background to the influx control provisions of
the Natives (Urban Areas) Proclamation .....
(b) The basic considerations of influx control.....
(d) The establishmentn of of Native urban residentiar
areas ....................XVI SOUTH WEST AFRICA
page
E. Conclusion ....................... 297
Chapter IV .Freedom of movement .............. 298
A .Introductory ...................... 298
B .The pass system in South Africa ............ 299
1.General ...................... 299
II.The development of the pass system before union ... 300
III . The development of the pass system after union... 302
C .The development of the pas or permit system in South West
Africa ........................ 36
1. The German pas system .............. 306
II. The pas system during the period 1916-1920 ..... 3g
III.The system introduced after 1920 .......... 308
(a) Introductory ................. 308
(c) Control of movement into and in the Rehobotherves 308
Gebiet .................... 310
(d) Control of movement into and in the area occupied
by the White group .............. 310
(e) Control of movement into and in Native urban
residential areas ............... 311
(1) sionatt....................nt Mandates Cornmis- 312
D .Reply to the Applicants' aliegations........... 314
II. The rnovementof Natives in the areas inhabited hy the314
White group .................. 315
III . Egress from the Temtory............. 319
IV . Entry iuto the Temtory ............. 321
V . The entry of uorthem Natives into the Police Zone . 322
VI . The entry of Natives into proclaimed areas..... 324
VI11. Reply to paragraph 153of Chapter V of the Mernorials 329
(b) Undesirable perçons in reserves........ 330
(c) The removal of Natives within reserves.. ... 330
(d) The movement ofnorthem Natives into andin the
Police Zone ................. 331
(e) Entry into the Temtory .... 331
(g) Curfew restriction..............imed areas... 332
(h) The removal of Natives from wban areas .... 333
(i)Vagrancy .................. 333
(1) The movement of Natives in the area inhabited by
the White group ............... 334
(k) Idle perjons in proclaimed area.... 334
(1) Temtoryort..................le persons from the 335
(m) Summary: the position of Natives in reserves in
the Police Zone ................... 336 CONTENTS XVII
page
(n) Summary: the position of Natives in the northem
(O) Summaryes:the position ofNatives in the mal areas336
of the Police Zone............. 337
(pl Summary: the position of Natives in urban and
prociaimed areas............... 337
E . Conclusion ...................... 337
Chapter V .Conclusion ................... 339
BOOK VI1
Chapter 1 .Introduction to Book VI1 ............. 341
Chapter II. The history of education in South West Africa before
the Mandate was conferred ................ 344
A . Establishment of mission schoolsfor Natives....... 344
B . Subjects taught in Native mission schook ......... 345
D. Fiancing of Native mission schools............ : .. 346
E . Schook for Colouredpersons .............. 346
F . Schoolsfor the White group .............. 346
G . Factors in develo ment of European education .... : . 347
H. Financingb the 8erman Government ofEuropean education 348
J.. The period of military occupation. 1915-192....... 349
K .The position at the time when the Mandate was conferred . 349
Cha ter III. Thecontroland administration ofeducation in South
$est Africa after conferment of the Mandate ........ 350
A . Legislative and administrative powers.......... 350
B .Administration of education ............. 350
Chapter IV .General policy ................. 353
A .Separate facilities for the varçgroups ......... 353
1.Circumstances and considerations governing the system
of separate faciliti............... 353
(a) Varying stages of advancement of the different
mouos .................... 354
(b) Mother-tongue education in South Africa...... 357
Mother-toneue education in South West Afnca . . 358
(c) Different sf~abuses .............. 363
Special syllabuw in Bantu schook SouthAfrica 364
Special....................e schoolsin South West
(d) Different social entities and parent commmities.. 3367
The system of community schoolsin South Afnca 369
Community sch~k in South West Africa .... 371
II. The attitude of the League of Nations towards Res-
ondent's policy of differentiation......... 372
III. !iparat......................es in other mandated tem-
tories 374
(a) The Pacific Islandsunder Japanese Mandate . . 374XVIII SOUTH WEST AFRICA
(b) New Guinea-under Australian Mandate ..... Page
(c) Tanganyika-under British Mandate ....... 375
IV . Retention of the system of separate education .... 375
B .Circumstances and considerations affecting the question of
expenditure on. and the provision of particular educational
facilities for. the various population grou........ 382
C . Compulsory education ................. 390
1.Compulsory education in South West Africa ...... 390
II . Compulsory education in other States in Africa... 395
(a) South Africa .............. 395
(b) Other African States .............. 396
(ii) Particular territori............ 396
Chapter V . Native education................. 399
A Introductory ..................... 407
B . Retarding circumstances and factors in the development of
Native education in South West Africa.......... 407
1. Attitude of mind towards schools and European in-
fluences..................... 407
II. Nomadic habits: scattered population ........ 411
III.tiont.......................nd the lowdensity of popula-
IV . Language difficulties ............... 4'4
V . Economic and financial difficulties......... 4'6
VI . Shortage of teachers and difficulties encountered in
teacher trainin.................. 4'7
(a) South West Africa ............... 417
(b) Other African temitories............ 421
C. The role of the missions in education .......... 424
1. Mission schools in South West Africa. and their con-
II . Missionschools in other African territories.... 424
D .Ty es of çchools for Natives in South West Africa..... 427
E. &ers and field staff for Native education...... 433
F. Survey of Native schools. pupils and teachers within the
Police Zone...................... 434
G . Conditions relating to education outside the Police Zone 438
Ovamboland ..................... 438
The Kaokoveld .................... 440
H .Survey of Native Schools. pupils and teacherinthe northem
temtories ...................... 441
1. School attendance ................... 443
1 .Percentage of Native children attending school in
South West Africa ................. 443
II.School attendance in other African territorie..... 445
(a) Liberia .................... 445
(c) Generally in African temtories ......... 446 Page
J . Courses. syllabuses and examinations for Native pnpils... 4-48
1. Primary schools .................. 448
II . Seconda- schools ................. 450
K. School buildings. equipment and books for Native pupils . . 45'
1. Government schools ................ 451
II. Mission schools .................. 452
L. Salaries and emoluments of Native teachers in South West
Africa ........................
1. Salary scales...................
111. Xegional allowancewa...................
IV . Principal's allowance ...............
M. Expenditure by the administration of South West Africa on
Native education ...................
1. The Police Zone ..................
II . The northern territories outside the Police Zone...
III . Per capita expenditure on Native education in South
West Africa ...................
N . Education of Natives in the Eastern Caprivi Zipfel ....
Chapter VI. Vocational training. higher education and adult
education for Natives ...................
A . Vocational training ..................
1. Schools .....................
III..Industrial courses at the Augustineum.........
IV . Teacher training schools..............
V. Facilities for vocational and technical training in South
Africa ......................
VI. Nursiug ......................
(a) Training of nurses........
(b) Registration of nurses .............
B . Higher education .................
1. Facilities for higher edncation...........
III . Separateauniversities forghtheedudifferent population.
goups in South Africa ...............
IV .Views on separate educational facilities .......
C . Adult education ...................
Chapter VI1. European education ..............
A . Introductory ...................
B . General circumstances and factors affectina the education of
European children ...........-...
1. Centralization of European education ........
II . The different European language groups .......
III . Medium of instruction...............
D. Local control of schools..............XX SOUTH WEST AFRICA
Page
E .Officersand field staf................. 498
G. Enrolment of European pupils in govemment schools in 498
different standards ................... 500
H .Percentage of European children at school....... 500
1. Courses. syllabuses and examinations.......... 501
1.Coursesand syllabuses ............... 501
J. Salaries and emoluments................. 503
1.Salaries ...................... 503
II. Special allowance ................. 2
K .Expenditure by the South West Africa administration on
European education .................. 56
L .Vocational and technical trainin............ 507
1.Agricultural schooi................ 507
III.Teacher training.................. 508
IV .Training of nurses ................ 509
M . Higher education ................... 509
N .Adult education.................... 510
Chapter VI11 .Respondent's reply to the allegations in the Appli-
cants' Mernorials.................... 511 5. COUNTER-MEMORIA FILED BY THE
GOVERNMENT OF THE REPUBLICOF SOUTHAFRICA (cont.)
SECTIONA
INTRODUCTORY
S. ln Book IV of this Counter-Memorial. the broad lines of Re-
spondent's policy regarding the administration of South West Africa
were considered. The present Book deals in more detail with the aspects
of well-being, social progress and development relating to the economic
position of the inhabitants of the Temitory 1, and to government and
Citizenship 2. -
The subject-matter of this Book is divided as follows:
Section A: Introductory (whichis the present section).
Section B: \VeU-being, social progress and development in agn-
culture (being a reply to Chapter V, paras. 16-33of the
Illemorials).
Section C: M'eu-being.social progress and development in industry
(beinga reply to Chapter V,paras. 34-77of theMemorials).
Section D: Brief account of the Native in commerce.
Section E: Well-being. socialprogress and development :govemment
and citizenship (being a reply to Chapter V,paras. 78-128
of the Memorials).
As willhave been noted, Respondent does not propose dealing specifi-
cally with paragraphs II to 15 of Chapter V of the Memorials ', which
paragraphs contain certain background iaiormation regarding the
economy of South IVest Africa. This information is basicaliy correct
and no purpose would be senred by devoting specific attention thereto
since the same field is in substance covered in sections B and C of this
Book.
2. In regard to the main aspects dealt with in this Book, Applicants
have formulated certain specific duties which they allege are included
within the ambit of Article 2 of the Mandate '. These duties have been
considered in an earlirr part of this Counter-Mrmorial ', to which
attention is invited. No further refercnce to ttiis topic is therefore neces-
sary at the present stage.
' 1,pp. 110-131.
Ibid.,pp.131-143.
' Ibid..pp. roji-108, rro-~and 13,.
' Vide Book IV.Chap. II, paras.24 to28.of this Caunter-Mernorial. SECTION B
WELL-BEING,SOCIALPHOGRESSAND
DEVELOPMENT IN AGRICULTURE
CHAPTER 1
INTRODUCTORY
I. Applicants sum up their allegations contained in paragraphs 16
to 32 of Chapter V of the Memorials, as follows:
"By a deliherate,systematic and consistent course of conduct, the
Mandatory lias discriminated against the 'Native' population of
Soutli West Africain agriculture. In so doing, it has not only failed
to proinote to the utmost the well-being of the 'Native' population
engaged in agriculture, but in major respects it has reduced the
degree of their well-being. It has not only failed to promote to the
utmost the social progress of the 'Native' population engaged in
agriculture, but has reversed possibilities of social progress into a
steady regrcssion. it has not only failed to promote to the utmost the
development of agriculture for the 'Native' population of therd-
tory, but it has reversed that development into a process of de-
terioration and increasing insecurity, more particularly:
(i) The hfandatoryhas progressively reduced the proportion of farm
land available for cultivatioii or pastoral use by the 'Native'
population, while it has progressively iiicreased the proportion of
sucli farm land available to 'Europeans'. This has been carried
to tlie point where less thrz pet cent. of the population, being
'White', enjoys the use of some 45 per cent. of the total land
area;wliile over88 percent. of the population, being 'Native'
or 'Coloured'. is confined t27 pet cent. Much of the remaining
land area isdesert.
(ii) The hlandatory has denied the possibilities of individual owner-
ship of land to the 'Native' population, and has confined these
rights to the 'White' population.
(iii) The Mandntory lias limited tlie role of the 'Native' population in
agriculture to (a) subsistence farming within 'Native' reserves
and (b) employment as common laborers or domestics on 'Euro-
pean' commercialfarms. In consequence, the 'Native' population
has enjoyed almost insignificant participation in the expanding
possibilities of commercial agriculture in the Territory.
(iv) The Mandatory has offered little hope to the 'Native' popu-
lation, and little promise or possibility of future development.
(v) Even in connection with emereencv relief made available in
tiincof rlrought. tlic .\lniidator~~~~t~u!edov~:ni.liettie lar-
gcr part of rclicf fiinds for the asiiît:rnceof rhesmnll'Eiiropean' COUNTER-MEMORIALOF SOUTH AFRICA 3
proportionof ttit.~~opulation,\r.liiltherelief fund$u~edtoIiely tla
large 'Kative' po-ii-.ition Iiave bcrn coiifinc<lto a comparative
pittance 1."
For convenience, Respondent will deal separately with agricultural
conditions in the areas outside the Police Zone,and those inside. CHAPTER II
AGRICULTUREIN THE AREAS OUTSIDETHE POLICEZONE
I. On tlie assumption of tlie Mandate, the traditional tribal economies
in the northern areas were virtuallv iinaffected bv contact witli the
modern excliange economy. In common with subsistence economies
throughout tlie continent of Africa, specialization (escept within the
family) was to al1intents and purposes unknown, and each kraal was a
self-sufficient economic unit, producing enougli for al1 the requirements
ofitsinhabitants. Contacts which had existed with tlieeschange economy
Iiad been of limited extent and duration, such as the employment of
Ovnmbo migrant labourers in the Tsumeb mines and the Luderitzbucht
diamond fields ', and had consequently not affected the traditional tribal
institutions to any appreciable degree.
2. At the inception of tlie Mandate, Respondent's policy in regard to
economic, and, in particular, agricultural, activity in the areas outside
tlie Police Zone could conc~~vablo have taken the form of o~enine UD
tlicsc ;iit.:ito the 1orrt.s of tlie modern exchange cconomy. 'fhii ivoiild -.
1iai.r <.ilt:~iIcdfrcac<.~b; IO ~IIC3rca bj. Europcan businessnit.n. farmcr;.
8 ti .and ii.~,iiin ;il1i>rol>;il)ilit\I.i,ive Ic;iniiicli inore r.ti>i<rl~uiioriiic
development of tlie aies than hm in fact taken place.
On the otlier hand, the disadvantages attendant on such a course are
am..ent. The subsistence economies of the tribes in the areas outside
tl~et'olic~Zoiit, Jid iiii<.unstitutc iii<.rcl!.iiicidviitnl fcatiirei ol tlic:livés
of tlie peoplc \vliiclicoiilci l~rdrstroycd \vitliout an!. <larig<.rto th<:Idbric
01 socirty. 0ii tlir <.ontrr<ry.~~conomic ;irtivit, foriiird orir aspe$:t of :in
indivi>il)letotal \va? of life wlii(:liin~.ltiilcrlruii:il, political and religioiir
att~turlrî. I>clivfi,riridcuitoms. 'rliii;1i.r~iist;iiiiti.the concept of indi\,i-
dual ownership of land was unknown amongst the Ovambo-al1 land
vested in the Chiefs (orheadmen) wliowere permitted to allot agricultural
land to individuals for their lifetimes 2.Agriculture was considered the
province of the women in the family, while the men and boys cared for
the stock, which were highly prized, and seldom parted with 3.It is clear
that this system, involving, as it did, igrleralia, the position of the chief,
the role of women in a polygamous Society, and the status derived from
Possession of cattle. could not easilv be converted to an economv which
;%TI.;ba>i.iloii iii<li\,idu:iliriiti.iti\~r~.îndtlic de:irc, f<>rg.iiit. In ;i;ldition.
car11Ilriiily bcirifiself-suKicit:iit, no dcninnd for :iiiy surplus prodiiction
rxi~ted in tlir .irv:is iii wliicli trailitioiinl ~criçultii\v.i;i>racrise<l.And.
if such a surplus were to be produced, tYhenature andLquality of the
products and the wasteful and uneconomic methods employed in their
production precluded successful competition in distant markets with
European farmers employing modern scientific methods.
Since the known resources of the area did not then (and. indeed, do
not at present) permit of any primary economic activity other than
' Vide Book III, Chap. II, para.38.
' Ibid., para..+S.
' Ibid., paras. 47 and49. COUNTER-MEMORIAL OF SOUTH AFRlCA 5
a riculture, the only method by which Respondent could, in the absence
ofany desire on the part of the local tribes to change their tribal svstem,
have-rapidly introdüced the exchange system inti the northern-areas,
would have been by a process of settlement of European farmers, either
by purchasing the necessary land from the tribes concerned, or dis-
possessing them in some other way. Whereas this course would no doubt
have led to an improvement in the quantity and quality of agricultural
production in the area, it would at the same time have caused an erosion
of the traditional political and social systems of its inhabitants. The only
benefit to the Native peopleswould have been the availability of employ-
ment. And. if no restriction were placed on the acquisition of land or the
reduced to a landless people, entirely dependent for a living on wage-
earning, with a resultant destruction of their customary social, political
and religious institutions and restraints. To a considerable extent this
was the position in the Police Zone at the inception of the Mandate, and
the undesirable consequences thereof were obvious.
previous paragraph, it was, in Respondent's opinion, from every pointthe
of view. desirable to maintain the traditional tribal institutions in the
areas where they were still functioning, and to promote further develop
ment on that basis. Although this policy necessarily entailed that econo-
micdevelopment (inthesenseof an increasedtotalagriculturalproduction)
would be slow ',it was considered that such an approach would be most
conducive to the happiness and security of the population. As landless
labourers, the inhabitants ofthe northern areas might conceivably have
eamed total annual wages which were higher than the value of their
agricultural production as subsistencefarmers.There can be no question.
however. that the ado~tion of a ~olicv resultine in such a situation
woiild have been to thcir moral ancisociil <letriin<nr.And opportunitics
for wage-earning \rfcrccreatcd for the iriliabitanti of the nurthcrn ;~r<as
as a result of the vigorous expansion of the exchange economy in the
Police Zone.
4. Reference had been made 2 to the attitude ofthe Permanent Man-
dates Commission that tribal institutions should, where possible, be
preserved. Further examples of this attitude will he given below '. It is
submitted that Respondent's policy of preserving the traditional insti-
tutionsofthe inhabitants of the northern areas, of which possession of
land by the various tribes formed an essential element, was a wise one.
and it was recognized as such by the Permanent Mandates Commission.
The merits of the general systern of administration in the northern
areas were also considered in 1946by Lord Hailey. He said (in so far as
his evaluation is relevant to the economic and socialsituation) :
"That the present s~stem is acceptable to the people there can be
no question. They have not failed to give open expression of the!r
contentment with it,and there can be no reason to doubt that thi5 1s
the spontaneous ex ression of a genuine feeling. If questioned. they
attribute their satislction tothefact that they areruledby theirown
1 Vide Book IV. Chap. IV.paras. 32-34,
Ibid.. Chap. IV, par40.
Vide BookVI. Chap. III. paras. 71-81.6 SOUTH WEST AFRICA
tribal autlioritics. arid tliaif disputes arise between them. they are
de~.idedaccordirig to tlae lawsand the procedure to wliiclithe\, have
been accustomed: But it iseasy to sec-thh laey haveothersourccsof
satisfaction. Unlike thepeople O/ the Police Zone, tERyhave retained
theirlands intact. Their tribal cornmunilieshavenotbeenbroken rrp 1.''
(Italics added.)
5. A policy designed to protect the inhabitants of the northem areas
in their possessionof their lands, could only be beneficialto them.
As far as land resources are concemed, the areas beyond the Police
Zone (and,in particular, Ovamboland, the Okavango territory and the
Eastern Caprivi) are situated in the most favoured part of the Territory.
It will be recalled that the most favoured climatic region, from the point
of view of dry-land cropping. stock faming and timber exploitation.
as well as potential for irrigation, falls entirely within parts of Ovambo-
land and the Okavango territory, and covers the whole of the Eastern
Caprivi =.The rest of Ovamboland (wiih the exception of a portion to the
extreme westl and the Okavaneo territorv fall within an area which is
also a fa\,ourible oiie ascompn;ed with the rest of tliz l'erritory lie
niain concentrations of population are found in the former rtgion. the
area borderinr: on tlie Police Zoiie beinr-uninhabited. exceot . .sibl\, ,t ~ ~
times by isolaied groups of Bushmen.
6. Respondent's policy in regard to the agricultural development of
the northern areas has been to euide the ~ooulation in the direction of ~ ~ ~
greatcr producti\.ity by meaiis of%firadun1adjPtarion of their traditional
economic aiid social institutions. rather tlian by means of revolution;irv
changes. Attention has bpen given in various Gays to the improvemeit
in the quality of livestock. At first well-bred bulls were donated to the
funds. This scheme did not Drove a success. and selective breedine wasl
~ ~
therefore sul,stituted. The l&ter scheine lias produced betrer resultîY
to increnje vields. Suitable <:rotvarieties are tcsted. and selected seedsare
made available to the inhabicants. At Runtu a démonstration plot pro-
duced a "muhango" (millet) variety which yielded considerably more
stration plotsparëibeing developed in order to supply suffiCientseed, as the
improved variety is proving popular with the Native farmers.
7. The prevalence of lung-sickness (bovine pleuro-pneumonia) has in
the past militated against tlie export of livestock from the northern
temtories. Measures have been taken by the agricultural division of the
South West African Administration in collaboration with the South
African Department of Technical Services (Veterinary Services) to
combat this. as well as other animal diseases in these areas. Thus, for
example, al1the cattle in the Kaokoveld have been inoculated annually
against lung-sickness since 1955 and in Ovamboland since 1957 '.Other
sporadic outbreaks of diseases, such as anthrax and quarter evil, have
' Lord Hailey, A Suruey of Noiiuc Aflaivsin Soulh Wcrf Alricn(1946) [unpub-
lished]. p. rig.
VideBookIV. Chap. III. para. 2 (cl. of this Counter-hlemorial.
' Save for the years 1961 and 1962.when a senous foot-and-rnouth epidemic
elsewhere prevented the taking of such rneasures. COUNTER-MEMOR IFLSOUTH AFRICA 7
been checked by inoculation whenever they have occurred. In 1956 the
South African veterinaw division successfullv combated an outbreak of
foot-and-mouth disease fn the Eastern capri&. Foot-and-mouth disease
broke out in 1958 in Ovamboland: al1animals were inoculated, and the
soread of the cfiseasewas checked. In the same vear trv~anosomiasis aiid
anthrax caused cattle deathsin the Caprivi, and:veter<iary serviceswere
provided with good results. In 1960 and 1961, foot-and-mouth disease
again broke out in the Territory, and veterinary treatment was again
provided.
For the purposes of combating stock diçeases in three of the northetn
areas (viz.,Ovamboland, the Okavango territory and the Kaokovelb),
Bantu assistant stock inspectors have been appointed with the intention
of training them so that they will eventually be able to take over full
responsibility for this work. In the meantime they are under the supûr-
vision of a European stock inspector and veterinary officer.
8. The opening-up in the northern areas of water, and the provision
of storage facilities, have a1s0received the attention of the autborities.
Up to 1959 a total of 257 watering points (dams, boreholes, wells, etc.)
were constructed, and during the years 1955 to 1960, 62 boreholes were
sunk and ten dams built at a total cost of overR600,ooo (~300,ooo).
spent on the followingprojects to increase water supplies in the northern
areas:
Okavango the administrative headquarters forat
Runtu . . . . . . . .-. . . . . RAA.OOO i~22.000)
h'.~oko iIJ I~orelioles.punips, rescrvoiri. ers. . Kro ooo (~5.00iii
Or~un~hi~luiidDarriconstmçtion . . . . . . . . R.i<~,oou(tro.ooo)
In Ovamboland, one of the biggest projects for providing water is at
present under constmction at an estimated cost of R238.000 (LII~,ooo).
A canal, which willeventually be 80 mileslong,is being constructed from
Okatana inthe direction of the Kunene River,together with the necessary
storagedams, filters, etc. This scheme will supply water to a tuberculoeis
hospital. serve irrigation purposes and supply drinking water for humans
and livestock. A second canal known as the Itaka canal is also under
construction.
Watering points have, where possible, been sited so as to enable the
population in the said areas to be more evenly distributed.
9. I.ivestock figures in the riorthern arc;is sli<ia geiirral incrrnse.
although rlirre arc marked fluctiiations owingto droughts and çpidemics.
Th,, tablz on .a-e 8 reflects the nosirion.
IO. It appears that Ovamboland has always (or, at any rate, as far
back aspopulation figuresare available) been the most densely populated
area in the Territory, and, in view of its climatic superiority and the
settled nature of its people. this is hardly surprising.
In 1876 Palgrave estimated its population at 98,000 ',whereas in the
much larger areas. referred to by him as Damaraland and Great Nama-
qualand (which together constitute roughly the present Police Zone).
there were,according to him, only 137,850non-White people 2.
VideBook IV, Chap. IV. para.318,fof this Counter-Mernorial.8 SOUTH WEST AFRICA
1 '925 '946 1 1956 '959
Ovamboland. . /-- 73.5w2 1 112,72 4 1 4'4.3436363,325
Okavango . . .1 18.000 1 31.307 1.. 5.6~6~
-- / 43,420~
Kaokoveld. .. /not available1 49.153* 1 138,236 1 110.629~
- - --
EasternCaprivi not availahle 26.275a not available I0.55'
1111921 the correiponding cstim~tes \rerc 9o.ouo (Ovaniboland] '
ufO\.smbulandoo\vaslarger tlian that of the uhole I'oliceZone-a retlectionon
ofIt is probable that the 1921figure for Ovamboland was an underesti-
mate, since a census held towards the end of the 192os,showed a total
population of 147,600 7.
By 1951, it had increased to 197,804 and by 1960 to 231.437 (ex-
cluding Ovambos permanently resident outside Ovamboland but in-
cludingmembers of other groups, e.g.. Bushmen, in Ovamboland) 9.
This rapid increase of population, particularly during the period of
Respondent's administration of the Territory. oints to the favourable
conditions under which the Ovambo have been l?ving.
II.A similar picture appears from population statistics regardiug the
inhabitants of the Okavango territory. In 1921 its population was esti-
mated at zo,ooo 'O.Thiswasprobably an overestimate. In 1936 the esti-
mate was 19~x50".The census in 1951 showed a population of 21,873,
which increased to 29,102 by 1960 12.
12. The Kaokoveld has also witnessed a marked increase in ~o~ulation
in recent years. In 1945its Native inhabitants numbered 5,9&. by 1955
they had increased to 9,178, and by 1960to 10,099 6.
' Calculated on the basis that 6 ofsmall stock equaI large stock unit.
' Rounded off. the actual figure kin73.410calculatedon the basis of the
estimated figures given in U.G. 2Q26, para. 57.
' An estimate based on U.G. 2W26, para. 62.
' Ibid Figuré i; forthe bear 1945.)
Departmentalinformation.
' VidcBook III. Chap. II, para. 33,of this Counter-Mernorial.
VidcBook IV, Chap. IV, para. 18,of this Counter-Memorial.
As in thcasesofthe Okavango, Kaokoveld and Caprivi, to bedealt with later.
the population figurdonot include the srnall numof non-Natives residein
th'OaVideBook III, Chap. II. par22.of this Counter-Memorial.
" U.G. 31-'37p. 96.
l2Including non-Okavango Katives living in the area as well as 850Okavango
temparary migrant workers in the Police Zone. COUNTER-MEMORIAL OF SOUTH AFRlCA 9
In the Caprivi. the population figuresfluctuate a great deal, owing
largely to the tendencyof the inhabitants tomove to and fro acrossthe
border.In 1909, the Native populationwas estimated at 9,000, and in
1921at 4.~49~.In 1951,the censusfigurewas15,488,andin1g60. 1.~,840
1 Vide Book III, Chap. II, par9.of th* Counter-Mernorial CHAPTER II1
AGRICULTUREIN THE POLICEZONE
development of the Police Zone by encouraging European settlementted
on the land '.At the same time, Respondent embarked on a policy of
providing land for the Natives, who had been dispossessed and dispersed
during the German period. At the end of the German regime, only a
few Native communities were permitted by the authorities to occupy
specific areas of land ?. It will be recalled that in 1913 approximately
80percent. of the total non-White adult male population in the Police
Zone were employed as wage-earners 3. During the period of military
occupation, temporary reserves were created for some Natives '.
z. On assumption of the Mandate, Respondent decided to extend the
reserve svstem. In contrast to the settlement scheme for Euro~eans,
the reasons for which were economic (i.e..to develop the agric6ltural
resources of the area in order to increase and stabilize income, exporis.
and revenue), the reserve policy was to a large extent based on social
considerations. It was deemed necessary to restore, as far as was possible,
the tribal life and social organizations of the shattered tribes as a pre-
requisite to the establishment of a settled and contented Native popu-
lation. It was not expected that Native agriculture would, at anyrate for
years to corne,play any signifiant role in the exchange economy of the
area. It was, indeed, the a&preciation.of this factor which was one of the
reasons for stimulating hite immigration. On the other hand, the
organizations of the tribes, and could form the bais for the futuree social
development of Native agriculture.
3. The basic considerations of Respondent's reserve policy will be
dealt with in more detail below 5. At this stage, two points require
emphasis, viz.,
(a) The restoration of tribal life could proceed only on the traditional
basis of common ntilization of land since the concept of individual
title to land was repugnant to the very basis of tribal society in
South WestAfrica. In addition, such concept was not understood hy
the Native population, who consequently did not appreciate the
necessity for capital improvements or the danger of overgrazing.
Their traditional attitudes towards stock placed importance on
quantity rather than quality. Individual tenure of land would
therefore not onlyhave frustrated the wholesocial object of creating
reserves, but would have resulted in wastefnl use of land '.
(b) A reserve could only serve its purpose if the inhabitants thereof
' Vide Book IV, Chap. IV, paras.23-29of this Counter-Mernorial
Vids BMk VI, Chap. III, para30, of this Counter-Mernorial.
Vide Book IV, Chap.IV. para.14,of this Counter-Mernorial.
' Vide Book VI, Chap. III,para.55. ofthis Counter-Mernorial.
' Bwke BVI.Chap.CIII,paras. 44-50 of this Counter-Mernorial. COUNTER-MEMORIAL OF SOUTH AFRICA II
were prevented from alienating land failing within it '.Those in
control of tribal lands had in the nast succumbed to the ternotation
of st:llingsuctilands for tlieir 0a.n 'bencil. Examples are gi!,ei below
of this practice 'the delererious eiiects of wtiiiti on the social iiiid
economrc life of the tribes need hardlv be mentioned
~ ~
l'he manner iii which Respondent ,et al>out pro\,iding tlie l:~ndless
Native popiilation ivith rescrv<tsfor tlicir exclusi\,c occiilvation,arid the
problcnis cncountcred in this ref- .d. will bedealt with elseu,here in this
counter-Memorial Z.
6. Althoueh the reserves were s~eciallv sct aside for Natives to enable
theni to resUmztheirtrnditional a~icu1t;rai activities. no liinitatioii was
placed ori their right to acquirt: land in the urireser\.cd paroftlie Police
%one.and it lias alwavs been oDento an\ Sativ~.to uurctiasc land in the
so-called European {:ming arias~ .heir-failure to dÔso, or even to show
any interest in this possibilit , con6rms Respondent's view, to which
reference will be made later. tKat the Native population is on the whole
not yet ripe forindividual ownership ofland.
5. The policy of European land settlement soon paid handsome divi-
dends for the benefit of al1the inhabitants of South West Africa.
The Territory shared in the world's short-lived prosperity between
1925 and 1929, and also suffered with the rest of the world during the
early thirties in the severest and longest depression ever experienced.
South West Africa prolonged its phase of prosperity tn some extent,
however, by its high level of intemal capital formation when the first
signs of the great depression were already evident in other countries.
Subsequently, however. it experienced a more severe and protracted
depression than wasthecase inmost other countries, due toits exceptional
vulnerability to changes in world trade conditions; the fact that South
Africa went off the gold standard a year after Great Britain did, thereby
tuming the temis of trade heavily against South West Africa during
1931-1932;the occurrence of a very severe drought in the Police Zone,
which lasted until the end of 1933; and the limited nature of the steps
which could be taken to counter the effects of the depression. Thus the
total income of South West Africa dropped from R14 (l7 ) illion in
1929 to R4.z (Lz.1)million in 1933. Le., a decline of 70 per cent. ' This
figure is to be compared with a contraction of less than 40 per cent. in
the national income of the United States of America between the years
1929 and 1932 (the latter being the worst year for the American eco-
conditions,nthecorrespondingcontraction whicwas onlyxzorper cent.. thanks to
the stabilizing influence of gold mining. Even in real terms the domestic
income ofSouth West Africa declined by 60 per cent. between 1929 and
1933 to a level equal tn that obtained in 1921-~gzz. Compared with
other African Territories also largely dependent on the export of primas.
products, South West Africa appears to have suffered most. Thus. the
decline in value of South West African exports between 1929 and the
' Book VI.Chap. III. paras. 51-54. of tbis Counter-hlemorial.
' Ibid., paras. 55-65.
' Krogh,D. C.."The National lncome and Expenditure of South West Africa
(1920-1956)". inTheSoulh AfricnnJournal of Economics, Mar. 1960, tablp 8.
' Lewis.W. A.. Economic Suniey 1919-1939 (1949).p.52.12 SOUTH WEST AFRICA
.orst ~f~ ~~~--~seouent five vears was 68 D:that of Taneanvika.
56 per cent.; Sierra'leone, 5iper cent.; ~Geria, 52percent.; anJ~en~a;
Ueanda and the Gold Coast3Q per cent. The total recorded value of
world exports declined by 66 pë; cent., and thatof Africa hy48percent..
in the period 1929-1'.4
COMPARATIVSTATEMENTOP LIVBSTOOWNED BY WHITE5AND
NON-WHITEINTHE POLICE ZONE DURING THE PE1929-1939
Whilcr Non-Whitcr 1 Total
Ytnr Smnll Large Sdl
sbd 1 stock 1 stock
(000s) (0001) (000s)
,929 1.980 1 630 667 161 12.647T79r
1930 -54'15 2.460 745
--
617 501 124
1932 509
774
'937 1 3.439 1 762 1 700 '59
1938 /- 3.699 / 869 1 805 168 1 4.504
1939 1 4,040 / 1.007 1 897 r83 1 4.937
,
6. The severity and protraction of the depression could large!y be
ascribed to conditions in the mining industry which was practically
closed dom. In spite of great difficulties,livestock farrning proved to he
compensatory to the complete failure of mining during the first half of
the 1930s. The severe drought conditions which lasted until the end of
1933, the outbreak of foot-and mouth disease during 1934-1935,and the
poor prices in the South African livestock market during the first half of
the 1930%contrihuted to the depressed conditions in SouthWest Africa.
but despite it all, the level of income originating in agriculture recovered
by 1934-1935toits high level of Rj.1 (&1.55)million in 1929.
7. While the contribution of mining to the total income of South
West,Africa had been reduced to ni1in 1933and 1934, agriculture stifl
contnbuted 18 percent. of the total income of the Territory in the worst
contributor to the income of the Territory during the latter part of the
'Hailey, AAfricnn Suw(1957)p..1268. COUNTER-MEMOR IAFSOUTH AFRlCA '3
decade. This rise in the importance of tlie contributioii of sgriculture to
the total iiome~ticproduct of the Territor).. was due partly to the slow
recovery in minin6 but also to a signifiant improGemënt in annual
agricultural production, which included the rapid growth of the karakul
industry during the latter half of the 1930s.Thus the value of the income
originating in agricultural production increased from Ro.7 (L0.35)
million in 1933to R7 (L3.5)million by 1939,being more than double the
highest figure reached previously. viz.. in 1928. Livestock farming pro-
gressed annually. except during the severest drought yean, as a pears
from the table on page 12 retiecting the growth of livestock heri dur-
ing the period 1929 to 1939 '.
8. As appears frorn the table on the previous page, despite the sev-
ere drought conditions in the Police Zone and low livestock prices
on the South African markets, small stock holdings increased by 34 per
cent. and large stock holdings by 47 per cent. during the I 30s The
reiativeiy large growth in smaii stock holdings, especiaiiy in tRe case of
those owned by Whites. is to be ascribed to the phenomenal increase
in the number of karakul sheep, which proved to be much more re-
munerative than the previous breeds of woollen sheep, since the price
of Persian lamb pelts remained relatively stable throughout the 1930s
while that of wool was among those most affected. The karakul sheep
DEVELOPMENT OP KARAKUL PARYING DURING THE 19305'
Karakul shrep O/lofal
(000s) incieare smollrlo~k
- -
--
1931 (406 ( + 40.1 ( 14.9
-
,922 i $31 1 + 30.1 J 18.2
3933 567 + 6.7 1 25.6
-.
1934 801 + 41.1 1 32.8
-
1935 1,126 + 53.1
1936 1 1.511 + 232 42.I
-
1937 1.go6 1 26. r 48.6
--
- 1938 1 2.146 / + 12.6 1 47.7
1939 1 2.616 1 + zr.8 53.1
' Sourcesasfollows:1929: U.GSo. 23-1930, p. 33. r930: U.G. No. 21-1931,
P. 35. rg31: U.G. No. 16-rgjp. 34. ,932: U.So. 16-1933. p. 35. 1933: U.G.
1936: U.G. No. 31-,937p.21.1937: U.G.No.25-1938.3pp. 22-23. 1938: U.G. Ko.
20-is.-. ... 21-22.roao: U.G. No.20-ioao. no.66-67.
Reportof th~ong-& ~gricullt<r>t 2omrniss;on(1949). table VI14 SOUTH WEST AFRICA
..'
is, moreover. a mucli Iiardier brecd and can resist almost al1 but the
worst drouglit conditions, and its introduction into the southern portion
otlicrwise sciiii-arid and poor region. The table on page 13indicates how
karakul slieep came to replace otlier breeds of small stock and, thereby,
added aiiotlier stabilizing force to livestock farming in the Territory.
It sliould, however. be appreciated that karakul farming requires the
vigilant andcontinuousapplication of highly scientificbreedingmethods,
establislied on any large scale. This largely explains why, during the
1930s karakul farming was developed and almost exclusively under-
taken by Europeans.
g. The following table indicates how the export of cattle contracted
relatively to the total cattle populationhe greater part of the
1930s. despite the increase in herds during asa whole. The
was due to severe drought conditions and poor export prices, and inrties
the case of 19by the embargo placed on exports as a result of an
outbreak of foot-and-mouth discase, while the high ratios for r935 and
1936 are mainly to be ascribed to the lifting of the export embargo.
Whilethese figures largely reflect the difficulties experienced during the
why the development of commer~-ializedfarming among the non-Whjtesest
wasgreatly retarded during this period.
PSRCBNTAGOP CAITLPOPULATIOEXPORTEANNUALLY19271930-1939'
Caltle
Ycar population Pcxfi0"tcd
(ooor)
1 io.0
1927 546
1930 1 655 5.5
1931 645 7.4
1932 725 1 4.7
1933 1 629 6.7
*
1936 75.4
1937 1 807 5.4
1938 / 908 7.4
1939 1 1.053 1 6.7
' RePorothe Long-fcrnt Agricullural Policy Cor~blVIII. (1949)ta VALUE OB' THMAIN ACRICULTURU PRODUCTS PRODUCBD IN SOUTH WEST APRICA~
Ycor1936 Year1946 1 Yenr1956 Year 1960 Yeov 1962 m
Pvoducis
Qunnlif1 Value 1Quunlily1 Value Qunnfily Vnlvc 1Quonlily1 Voluc 1Qunntil1 Value
-
Karakul pelts R1.588.394 R(5.60,5~~)~9~75~'6(L4330.38) R(~6~33-2:
Exparted
consumed
I
Small sto:k
Exported
Locally
consumed
... .. .
Bultcr-Il>.
(LGi3.000)
Milk-gallons
Chrcae-lb. 81.397
Maire-zoo
Ib. bags
I'roduction for 1958.
'Departmental information. COUNTER-MEMORIAL OF SOUTH AFRICA I7
STOCK LossesDURING CENSUS YEAR1946
I<ind Cousc
of of Nifnzbev
stock lors
--
Large 39.96 R~10g.376
it554.688)
51.89 Rr.440.r60
iL720.080)
--
8.15 Rzz6.zo8
iLrr3.104)
roo.w R2.775.744
it1.387.872)
SrnaIl 14.22 --R452.764
(L226.352)
73.49 R2.340.4'2
(;Cr.r70.206)
Other 97.927
(L195.854)
--
Tolu1 796,~>1 2.1 1 IWW X3.184.884
1 (L1.592.442)
Native inhabitants, have resulted in commercial farming being largely
limited to Euro~eans. Attempts have been made to encourage,Natives
also to produce for the market,and some success has been achieved as
will be shown in the succeeding paragraphs.
PROVISION Or WATER IN POLICEZONE RESKRVES AT END OP 1962 '
Numbcr Nvmbcr Number
No>ncof vcscrua ofborcholes ofdoms ofw6llr
I I
Aminuis. .......... 37 - 23
Berseba ........... 23 6 13
Bondels ........... 16 - 36
Eastern Res. ........ '4 I
Epukiro ........... 58 IO 12
Frînrfontein ........ 9 3 II
Xeuhof ........... 6 -4 2
Okombahe ......... 6 13
Otjohorongo ........ 351 13 16
Otjituo ........... 37 - 65
Otjimbingwe ........ 14 7 63
Ovitoto ........... IZ 18 19
Soromas ........... 5 9
Tses ............. 30 -I 15
Warmbad .......... - 3
Waterberg East ...... i 65 5 17
Total 1 44 1 84 k37
' Departmental information: successful as welas unsuccessfulboreholes are
included in the nurnbers given.18 SOUTH WEST AFRICA
14.Coiijideral>lvattciitiori lias becri Jevoted to the pro\,isioii of watér
and wells in reservesin the Police Zone.hows tlic number of borelioles. dains
By devvelopingthe water supplies a better distribution of the livestock
in the reserves was obtained, and consequently the relatively poor grazing
animalsare at prcscnt not soadversely affected by drought. the result that
In addition, stockases have been combated, the Native farmer in
the Police Zone reserves receiving the same veterinary services as the
Eu'I'he;~v:irious f:ictors Iiaw combinell to prodiice a substantial incr?;ise
iii tlie iiuiiiber of stock I\ritli the iiormal tlu-tuations c;iused bv drouclit.
etc.) in the reserves. as &il1appear from t20."able on page
and by the introduction of well-bred bulls and rams.selective breeding
reserves. To assist the residents to obtain the highest prices forin the
livestock, organized sales are held in the reserves. These sales yield a
substantial (if variable) income, as will appear from'.he following table
Smoll stock
Y" 1 ce 1 ( sdd / Inçomc
I
7.763 1 630 R192.566 (196.2833
'954 1 ~- I
II55 / 12.651 IO,OZO 1R313.190 Ux56.595)
1956 1 17.195 3.627 R454.866 (Lz27.433)
1
1957 1 19.930 1 6.083 R500.036 (L~50.018)
1958 21,224 i R424.310 (Lziz.155)
1959 14.830 10,706 R325.340 (1162.670)
i
,163 1 16.023 1 5,196 R334.059 iL'67.029)
1961 1 8.270 1 1467 R203.465 iLiox.73~)
'Departmental infohnation. COUNTER-MEMORIAL OF SOUTH AFIUCA '9
A large number of animals are still sold out of hand, but prices so
obtained are low in comparison with thosc obtaincd at auction sales.
During 1958, for example, 3,435 aniinals were sold out of hand for
R56.762 (-8,381). i.e.an average of K16.52 (£8 5s. 3d.), wliereas the
average price for cattle sold at auction sales amountcd to R22.62 (£11
6s. 3d.).
16. Creameries were established in various parts of the country to
enable the Natives to dispose of surpliis crcam and milk. Althougli
substantial amounts have been eamed in this way, production is very
uneven, aswillappear fromthe followingtable '.
CREAM SOLD 10 CREAMERIEÇ BY NATIVES LN RESERVES IN TWB POLICE ZONE
19<6-r0<'>
Namc ofrcsmve Vnluc O/crcom sold
-
R1.374 Ri45
fL687) U72)
Fransfontein. . . R3.780
R755
Otjimbingwe. .. Rr.ooo 1 Rzq - - -
(Lsoo) 1 ftrz)
(The decline in production as from was cavsed by a severe drought.
which was later followed by a foot-and-mouth epidemic.)
17. Karakul-pelt farming is a highly specialized undertaking. and the
Natives initially did not attempt it. In tirne, however, they became more
conversant with this type offarming, particularly in the southern regions.
In 1959.for example, Natives sold pelts for more than R61.000 (£30,500).
Conclusion
18. The above survey shows the success achieved by the policy of
developing the agricultural potential of the Police Zone by means of
' Departmental information. STOCK NUMBERS IN THE RESERVES INSIDE THEPOLICEZONE I O
1937' 1962
Nnme O/rescrvc
Small Largc Smnll
stock stock stock stock stock stock stock
--
Aminuis. ......... 1.678 37.430 10,490 49.719 25.367
Berseba ...... 4.252 101.265 1 2.487 58.639
Bondels .... 8.420 1.884 28,240 1.361 30.421
Eir. 3.814 19.597 4.2~ 32.987 11,913
Fransfontein........... 7.892 602 4.557 886 4.634
Gibeon .............. 784 6.353 3~ 3.980
Neuhof .............. 150 3.907 264 1.629 278 1.092
Okombahe ............ i 1,019 8,010
Otjahorongo ........... 1.861 ! 24.798 2.561 29,894
Otjituo .............. 8.334 3,603 31.846 5,330
Otimbingwe ........... 1.480 4.171 1,379 6.306
Ovitoto.............. 9,774 22.531 12.377 13.120 7.365 5,385 7,478 5.142
Eastern Reserve......... not 108 2.972 628 5.225 3.'77
crcated created
then then
Soromas .............. 264 5.066 209 2.382
Wvrmbad ............. not not 227 4.970 219 2.653
Waterberg East .........
Tses ................ 20,743
...............
Departmental information: except for data relating to 1937
U.G. 25-1938,para. 311, COUNTER-MEMOR IFLSOUTH AFRICA 21
European farmers, while at the same time setting aside and developing
Native reserves.
The agriculture of the European farmer has at aU times made a sub-
stantial, and, during someperiods, an indispensable contribution towards
the economy and revenue of the Territory. The development of agri-
culture in the reserveswas a slowprocess, aswas to be expected, but there
haThe Long-termerabAgticultural Policy Commission found shortly after
the Second World War that European-owned cattle and sheep were of
exceptionally high quality, and this quality is continuously being im-
oroved as a result of the stimulus of comvetition in external markets.
Although the same high quality has not inAgeneralbeen attained by the
Natives. there has been considerable improvement in the standard. and
c0ntinuin.g progress is being made as more and more of them are being
won over to using sires of a better quality.
As far as numbers of stock are concerned, South West Africa compares
very favourablywith other countries in Africa. It ranks first as far as the
number of sheep per ca %tais concemed, and is surpassed only by its
neighbour Bechuanalan !.'in the number of cattle percapita.The following
table shows the comparative position in this regard between South West
Africa and some other territories in Africa:
LlVSSTOCK PBRCAPITA IN SELECTBDAFRICANCOUXTRIXS:
AVERAGE 1954-1955-1956-~ '957
1 ~ail/e 1 Sheep i Goals
-South West Afric.......... --.49 / 6.28 ,.or
Bechuanaland ............ j 3.52 1 0.47 j 0.93
Swaziland .............. 1 1.84 0.~3 0.61
-Southern Rhodesia......... 1.28 o.ro 1 0.16 -
Kenya ................ / 1.10 0.44 0.63
-
SouthAfrica.............- 1 -0.84 2.68 o37
Tanganyika ............. J o.Sz
-- 1 0.34 1 0.48
Basutoland.............. 1 0.64 1 z.ri / 1.03
' U.N. Doc.E CY. 1428.tables 1-IX, p.27-Livestockpcrcopiia. CHAPTER IV
RESPONDENT'SREPLY TO APPLICANTS' ALLEGATIONS
(MEMORIALS)
Paragraph 16of Chapter V '
I. It isadmitted that the bulkof the Native population ofthe Territory
is to be found in the northern areas outside the Police Zone. According
to the 1960 census figures, the total Native population numbered 438,575
(including 4,528 foreign migrant workers. mostly from Angola) of whom
257,85l5 ived in the northern sector, amounting therefore to approxi-
mately 63percent. ofthe total.Thereasons forthegreaterdensityof popu-
lation inthe northem areasare to befouiid inmore favourable climaticcon-
ditions, and in social, economic and historical circumstances, including.
in particular. the fact that the inhabitants of these areas have always
been agriculturists, and not pastoral nomads like the Native inhabitants
of the Police Zone, and that they were largely spared the exterminating
wars of the past.
2. It is admitted that the inhabitants of the northern territories are
far removed from the principal areas of modem economic development
and activity. This was the position when Respondent assumed the
Mandate, and this situation could have been altered in one of two ways.
viz., either by encouraging or forcing the peopleto leave their lands and
flock to the Police Zone, or, altematively, by a process of rapid develop-
ment of the northern temtories with the aid of European initiative and
capital. The latter altemative has beeu considered above, where it was
flowed from such a course would, in Respondent's opinion, have out-
weiahed bv far anv coniectural material benefit which miaht have
accrued tothe inha6itants2. -
The former alternative would have been even more impractical. Even
on economic grounds. i.e., apart from social factors, there can be no
reason for encouraging the inhabitants of the northern areas to leave
their lands in order to attempt to practise their traditional subsistence
agriculture in less favoured regions (where agriculture, as distinct from
pastoralism. is by and large impossible) for the purpose of selling agri-
cultural prcducts in the unlikely event of there being any surplus over
and above their own requirements.
3. It is to be noted that the complaint levelled by Applicants against
Respondent in respect of the northern areas (being, in effect,that
"modem economic development and activity" should have been stimu-
lated in the area) amonnts to the exact converse of their complaint
relatine to the Police Zone. Such deveio~ment and activitv would neces-
sarily have required exploitation by Êuropeans of ttir'onl!. a\,;iil;ible
nstural rvsources of these arens (i.e ,the agricultural potential,. with a
resultarit lossof land hv the Sativei. On the other hnnd. \i,itrespect to
the Police Zone, whe;e the Natives are near "the principal aÎeas of
' 1,p. rrz.
Vida Chap.II. paras.2-5.rupro. COUNTER-MEMORIALOF SOUTH AFRICA 9
modem economic development and activity", Applicants apparently
complain that the claims of the Natives to the land in the Police Zone
were not met ',a course which, if followed, would have prevented the
maintenance or creation of such "areas of development and activity".
4. The nature of the agricultural activities in the northem areas has
been described 2.The subsistence type of agriculture isnot, as Applicants
would seem to suggest, forced on the population by the inaccessibility
of markets or by a "deliberate, systematic and consistent course of
conduct" bv which Resnondent bas "discriminated a~ainst the 'Native'
population'of South West Africa in agriculture"'. Qn the contrary, it
represents an aspect of the traditional lives of these peo-le,-which they
leid out of prefërence, not necessity.
5. Furthermore, it is incorrect to suggest, as Applicants appear to do.
that the inhabitants of the northern territories merely "survive",orthat
their agricultural activities only "keep [them] alive under normal con-
ditions". The favourable living conditions in the northem areas are
reflected in the increases in population referred to above '. In addition,
there has been a steady rise in the general standard of living in these
areas, due in part to increased agncultural production,and in part to
wages eamed by Ovambo workers in the PoliceZone. In thelatter regard.
it is true that the inhabitants of the northem areas take part in the
modem monetaty economy mainly b serving as labourers in the mines,
industries and on farms within the golice Zone. Labour is the normal
\r.ay in which underde\feloped ~>eoplesenter tlic money economy: The
labour corning lrom the northern territories is regulated in association
witti ttie Native tribal authonties in those arcs. in order to r>re\,entthe
sociai disruption of their tribes 5.
Paragraph 17 of ChapterV
6. The land in Native reserves was never, as aUeged by Applicants,
"the property of the Administration of South West Africa". On assump-
tion of the Mandate. ~.iland which had ~reviouslv vested in the German
(;o\,cknment passed to Kespondent in'its capacit)',as Handatory, or
Trustee, witli powersof management andadministration '.Tliis inçluded
lwitli tlie soleexcention of ttie Bcrseba resene) the land which had been.
or was still to be, ;et aside as reserves. The réserves consequently at ali
times vested in Kespondent. and not in the Administration of South
West Africa, which. in any event, is not a !egalpersona
Save for the aforesaid, paragraph 17 1s admitted. The nature and
functions of the South African Native T~st, and the reasons for vesting
the South West Africanreserves in suchTrust, are dealt with fully below9.
V~dcChap. II. supra.paras. 23 and 24. 1, pp. irq-rrg.
' 1,p. ri,.
Vidc Chap. II. paras10-12,supra.
' Vidc sec. C, Chap. V. para.14. infra.
1.p. rra.
V-ideBook VIII. sec. C.Chap. VII, paras. 11-17 ,f this Counter-Mernorial
Ibid., para27.
* Ibid., paras. r8-25.24 SOUTH WEST AFRICA
As will be seen, such vesting operated. and operates, forthe benefit of the
inhabitants of the reserves.
Paragraph 18 of Chapter V '
7. lt is incorrect to suggest. as Applicants appear to do, that al1com-
mercial fams in the Territory îre owned by Europeans. The Rehoboth
Gebietis largely owned by the Rehoboth Burghersin individual title,
and Native labour isemployed on farms in the area. In addition, there are
at least 14fams in the Territory whicb are owned by Coloured persons.
Furthemore commercial faming is practised to some extent in the
rncar\.'=<2.
The \vork dorie by Yati\,es employed on farms varies fromcompletely
unskilled work to r~lati\~elyresponsible and skilled work. suçh as that of
farm forernen. liecruitmeiit of labour isdealt with elsewhere '.
Save as aforestated, paragraph 18is admitted
Paragraphs 19 and 28 ofChapter V '
8. The basic situation in the Territory on the assumption of the
Mandate, and the consequences flowingtherefrom, have been dealt with
above? It wiU be recalled that on assumption of the Mandate, the
Police Zone was largely underpopulated. and its development required
an increase in the immieration of Euro~ean farmers. In addition. it was
iiecessary for the rîgenërntion of the social and political institiitions of
the scattercd remnants of tlie Native tribes that their membcrs \r.ishin~
to practise agriculture should be concentrated in units in which tbë
traditional order could, as far as possible,be restored.
It follows from the aforegoing that Respondent could not reasonably
have pursued a policy permitting individual Natives, or small groups of
Natives, to live on, or to roam over large tracts of potentially useful
land. As a result of the events of the past, many of these individuals or
erouDs were deoendent for their livelihood on the hunt or on robberv
and it need hardiy be stated that they, livingin the main on the fringesof,
or outside. the lau~,constituted a real threat to peace and securitv. In the
interests ofthe Territorv. it was therefore neceGarv to settle them. either
in reserves where tbey Couldpractise and develoitheir traditional agri-
cultural systems in the Company of their own kith and kin and under
control of Res~ondent and the renascent Native authorities. or else on
f:irms or in to\;.ns wherî the!. could earn their living. ;icquireknou,ledgt
of modern fnrming. commercial and industrial methods and depasture
such stock as the? possessed on the farms of their employers, the town
c- - ~ ~es or near~~-~~~e.ves. ~~
~onseqtkntly it would. in Respondent's \.iew. have been detrimental
to the interests of the Temtorv if the authorities ivere to have desistcd
from allocating pieces of land as farms. or proclaiming them as reserves,
1. pp. riz-1x3.
* Vidr sec. C, Chap. V. infra.7, above.
'1. pp. ir3 and 116.
5 Vidr Book IV. Chap. IV, of thir Counter-Memonal COUNTER-MEMOR OA LOUTH AFRICA 25
merely because individual Natives or small groups of Natives were
making use thereof in the manner aforestated.
g., In the result, Respondent did not so desist, and consequently any
Natives found in areas allotted as farms, or proclaimed as reserves,
either had to faIl in with the new status of such areas. or to leave them.
This consequence flowedinevitably from such allotment or proclamation.
The terms of thestandard lease referred to by Applicants 'merely served
to explain the rights of the lesseein this respect.
In reserves, the specific choiceofany Natives living on the land prior
~~ its rocl la mat ion.was either to he assimilated in the reserve com-
munitiés,accepting their authority, or to depart. On farms, such Natives
could neaotiate acceptable agreements with the farmers, or seek more
coneeniai emolovment elsewhere. or move to the reserves. In addition.
theFewas no iegd bar to prevent them acquiring land for themselves.
IO. In Respondent's submission, the whole emphasis of Applicants'
comolaint is misdaced. There can be no obiection to arantin~ a riaht to
a fahier to ~ia\fe'~crsonsrcniovçd froni Iiisinnd il thii are iiot I,r<)ared
to work for him. llic only possil)leobjection relates tu thc kict that land
\vas granted to famiers <lespitethe preseiice th~reon of 'lati\,cs. \Vhen
regard is Iiad to the i:onsiderations set out in the pre\.ious paragrapfis, it
\riIl bc apparent that suc11objection possc.sscsno \ral~<liiy.
Paragraph 20 of Chapter V '
II. The facts stated in this paragraph are admitted. The reasons for
organizing reserves on the basis of common use of land. have been
mentioned above' with reference to a more detailed exposition in
Respondent's reply to Applicants' complaints regarding "Rights of
Residence" 5.
Paragraph 21 of Chapter V
12. Before dealing with the detailed allegations in this paragraph, it
is necessary to point out that it forms part of a section under the heading
"Well-being, Social Progress and Development in Agricrrllure" 6.(Italics
added.) Rights of ownerçhip in respect of non-agricultural land are
therefore not at oresent relevant '.
I)cvcrtheless, ihe whole emphasis of Applicants' complaint contained
in this paragraph is placed on restrictions or1the owning of land in urban
areas Thus they commence bv quoting part of a staternent (presumably
'1,p. 116.
Regarding wages, conditions of employment, the provision of an area for
cultivation or depasturing ofstock, etc.
1.p. r13. -
' Yidc Chap. III, para. 3. rupro.
' Vide Book VI, Chap. III. paras. 44-50of this Counter-Mernorial.
' The nature of rights eltercisable by Natives in towns is dealt with elsewhere in
this Counter-hfernorial-vidc Book V, sec.E, Chap. ILI.
It is hardly necessary to state that ag"cultura1 activities are not normaily
carried on inside urban areas.26 SOUTH WEST AFRICA
with the intention of attempting to refute it) in which Respondent
rendered it quite clear that Natives were entitled to acquire and occupy
land outside urban areas. However, in their next subparagraph they
refer again to provisions relating to rights in respect of land "within an
urbanafea ora rural township" '. (Italics added.)
13. Finally, in an attempt to prove that Natives are not entitled to
own agricultural land in the Territory. Applicants refer to a statement by
Respondent that "the Natives generally have not yet reached the stage of
development where they would benefit from individual land ownership,
particularly of farms" 2.
Whereas Respondent believes this statement to be true, it hardly
serves as evidence that Natives are by law precluded from acquiring
agricultural land. In its context ',this passage served asan explanation
why assistance under the landsettlement lawshad not been requested by,
or granted to, Natives. In addition, it affords an explanation why no
steps have been taken to subdivide the reserves into separate allotments.
By no process of reasoning. however, can this statement. in conjunction
with provisions regarding ownership of land in urban areas, give rise to
the inference "that no individual 'Natives' own land or can own land
anywhere within the Territory of South West Africa" '.
Paragraph zz of Chapter V '
14. The Union of South Africa never "declared ali unallocated land
within the Territory to be govemment land as alleged by Applicants.
On assumption of the Mandate, al1land which had previously vested in
the German authorities, passed to Respondent 5. Provision was made
for the manner of dealing with such land in two proclamations, viz.. the
Land Settlement Proclamation, 1920 6.and the Crown Land Disposal
Proclamation, 1920 '.The Land Settlement Proclamation, which is the
relevant provision for present purposes, defined "Crown Land" as follows:
". . al1iinalienated land \vithiil the said Trrrirory h~we\~cracquircd.
wliich was Iately the property of thc Gcrman Government. and such
further land as mav be acauired bv Go\,emmcnt under the provisions
ofthe Land SettleGent AE ~s aménded
The definition of Crown land in the Crown Land Disposai Proclama-
tion is, up to the words "of the German Government", identical to the
one quoted above, but in the last part there are some verbal differences
which do not, however, materially affect the meaning 9.
Sec. 7Of the Natives (Urhan Areas) proclamation. 1951. referreto in1. p.113.
21..Di Ih-
' Ibid., p. "4.-rr6.
' Vide para. 6.au+vn and Book VIII. sec.C. Chao. VII. Dar-. ir-17.of this
~ounter-Mernorial. . . . . .
'PIOC.NO. 14 of1920 in Thc Lnwr ofSouth West Afriro r9z~-r9ga, pp. 219-223.
'PVOC .O. 13 of 1920 in The Lawr ofSoulh Wcrl Africa 1915-1922. pp. 216-219.
P*oc. No. i4 of 1920. Sched. 1. secz. in The Lnwr of Soulh West Africa 19r5-
rgm. p. 220.
Ploc. No. 13of 1920.Sched. 1.sec.,in TheLnws of Soulh Wcrl Africar9r5-r92=.
p.217. COUNTER-MEMORIAL OF SOUTH AFRICA 27
The tme nosition therefore is that. at the ince~tion of the Mandate.
former ~ernian (;oveinniciit land passed to l<cspondcnt. and that
legislatit i)rovi5ionwasniade fordisposal and allotment ofsuc11land.
-
15. Applicants' allegations regarding authonty over government land
are also eitherwrone or misleadine. Le~islative Dowersover the Territow
were initiaily exercysed by the Govemor-~en&al of South Africa witii
powers of delegation '. In 1925a South West African Legislative Assem-
bly was created by Act No. 42of 1925 2.This Assembly was given certain
limited legislative powers. However, any enactment (cailedan Ordinance)
passed by the Assembly required the assent of Respondent's represen-
tative, the Administrator. acting subject to Respondent's instmctions.
The Administrator war also entitled to reserve anv draft Ordinance "for
tlie signification of thëple&ure of tlie ~overnor-~kneral" 3(i.e.. Krspon-
dent's govemintnt). In addition. the (;o\,ernor-General retained his own
mwers of leeislatine for the Territorv un a11subiccts. an exercise of ivhich
bas expressïy stat& to ovemde a&thing to the c&ntrary contained in
any Ordinance '.
16. Not only were these limitations placed on the legislative powersof
the Assembly, but it was also at no stage, prior to 1949,given authorlty
in respect of the allotment of Crown land. Section 27 of the 1925 Act
provided that legislative competence regarding "the allotment, sale,
lease or disposal of Government lands in the Temtory" could in certain
circumstances be granted to the Assembl by2'.e Governor-Generai. In
fact this was not done. and only in 1949 did the Assembl obtain such
competence but even then still subject to the possibility ofdisallowance
by the Administrator or the Governor-General, and to the overriding
legislative competence of the SouthAfncan Parliament.
Not only was the power of legislation in regard to the allocation
of rown land refained by the Governor-General (or his representative,
the Administratorl until lado. but he (or his officers) retained control
over the actual l~rocesses~(dfiotment. ln tems of the'1~20Land Settle-
ment l'roclamation. the allocation of Crown land \va tliz function of the
South African Minister of Lands. and this Liuictioii \vas csercised on the
advice of the Land Board. a sta&tory body appointed by the,Governor-
General (Le., the South African Government) '. By Administrator's
Proclamation No. 53 of 19208, the powers of the Minister and of the
Governor-General oassed to the Administrator.
In 1927 the ~o;,ernor-General by Proclaniation amended and con-
sol~dritrdthe provisions regarclingLand Settlcmciit 9. This Proclamation
provided that the appointment of the Land Board, aiid the allotment of
Act No. 49 of1919, sec2.in TheLnwr ofSouih Wcsl Africa 1915-1922,pp. 10-12.
' Act No. 42 of r9z5,n sec. 32.in Thc Law$ of South WEsdAfrico 1915,. p. 69.
' Ibid.. sec. 44. p. 72.
Ibid., sec27,p. 68.
* Pursuant to Act NO..^?-f I-A.-in Tb Lnwr ofSouth Wcsl Atrica 1. .,PP.
170-186.
' Vide Chaps. III and IV of Act No. izof ,gr*, which was with amendmenh
applied ta the Territo.vb. Proc. No.14 of 1920 in The Lnwr of Soulh WesiAfrico
19;s-qza. pp. 219-223.
Prac. No. 53 of 1920 in Thc Laws of Souih WerlAfrica1915-qaa. pp. 428-429.
' Proc. Na. 310 of,927 (S.A.)in ~heLaws of south West Afvica19a7. pp. 22-82.28 SOUTH WEST AFRICA
Government land, would remain in the hands of the Administrator. The
Proclamation is still in forc'.
18. It is apparent from the foregoing that, up to 1949, al1 power of
legislation regarding allotment of Crown or Government land vested in
Resoorident. and that the actual allocation of land was alwavs ~erformed
byan oficili appointcd by Kejpondent and under its contr61. ft is there-
fore incorrect to Say that "thereafter (meaning in the context shortly
after the assumution of the hlandatel the Union transferred authoritv
over Governmen'tor Crown land to the 'European' Legislative ~ssembG
ofthe Territory" Z.
Paragraphs 23 and 24 of Chapter V '
19. In 1913Europeans owned farms comprising a totalarea of 133.936
sq. km. ' This area did not include large estates in the possession of
companies such as the Liebig Company and the South AfricanTerritories
Company 5.Since the assumption of the Mandate and up to May 1961,
Respondent has given out 171,624sq. km., consisting of land which had
previously belonged to the German Government, as well as land pur-
chased from the said companies and others. In addition, asat the said
date, farms amounting to 8,976 sq. km. had been purchased by the
Administrator on behalf of White farmers while an additional 6,790 sq.
km. were leased also to White farmers6, and 75,114 sq. km. of Govern-
ment land were leased to White farmers for emergency grazing for the
duration of the drought '.The total area of the Territory (excluding
Walvis Bay) is 823,145sq. km It is consequentl truethat Respondent
has transferred a substantial portion of the landlarea of the Territory,
which had reviously been govemment land, or land owned but not used
productive y for permanent settlement by Europeans. .It is also admitted
that in this regard Respondent continued a process which had been
begun by the German Colonial regime. As will be noted at a later stage.
Respondent reserved, during the same period. lands totalling 206.437
sq. km. for the Natives as well as recognizing the Rehoboth Gebiet
(13,122sq. km.) as the property of the Raster community 9.
20. It is admitted that on assumption of the Mandate, Respondent
did not confiscate farms held in private ownership and did not accede
to the land claims of the Native inhabitants of the Police Zone. The
reasonswhichinduced Respondent to followan active policy of European
landsettlement have beenset out above 'O.These reasons argued against
' Although amended in immaterial respectb sy Proc. No. 205of 1932(S.A.) in
The Lnws of Soulh Wed Africn 1932.pp. 22-32a,nd Proc. No.77of 1936 (S.A. i)
Th4 Law5 ofSouth Wesl Africn1936,pp. 4-10.and by Ord. No. 6 of 1951in The
Lnws of South WestAfrico 1951,p. 196.
2 Ibid.pp..114-1.5,
' U.G. No. 25-'38.para.576.pp. 89-90a .nd Lord Hailey,A Suwey 01 Naliua
Affnirs inSouth WeslA/&= (1946()unpublished), p.50.
P.M.C.. Min., IV. p. "3.
Proc.310ofI927, sec.11,in The Lnws of South WestA/rica 1927.pp. 28-30.
' Since the drought has terminated, these farmers have evacuated the land.
" Vide Book III. Chap. 1.para. 4,of this Counter-Memonal.
* Vidc Book VI. Chap. III. para62.of this Gunter-Memonal.
" Vidc Book IV, Chap. IV, paras. 23-29 .f this Counter-Memonal. COUNTI<II-DIEMOI<IAL OF SOUTH AFRICA 29
t~ ~ ~ ~is~ation of farms owned bv Euroveans, who were. on the whole.
experienced arid pro,orcssivefarrnsi. In ;ddltion. sucliconliscation could
hnrdly hî\~ takcn plncç wlrlioiit conipinsatirig the owner:. who hnd
La\r,fiillvohtained tla: Isnd :ind elfecte<lexwnsivr canital irnuro\~ernents.
Applicants have not stated from which sÔÏce the &oney for snch com-
nsation was tu be derived, unless the suggestion is that, because the
Ï?erman Government had initially "seized" certain lands, such lands
should in 1920 also have been "seized" without compensation from the
then owners, and "returned" to the Natives. Apart {romthe inequity of
this suggestion, some intricate practiwl problems would have arisen
.........minine which Natives were entitled to suecific lands. This is
apparent partkiilarly ifregard 1sliad to the noriladi; h~hitsof the various
tribes, their conflictiiig cldirn.. to land :ind the wars resulting tlierefrom
durine the nineteenth centurv: and alu, to their defcat and disuersal
during the German regime '. , .
z~.~l<es~oiid~~nn tdmiti allmtiiig approxirnîtely 4.8~35.000 lia. of
land to I-uropcîris during the first thne ycars of ttiç adrniiiistrarioi~of
the Mandate. 'Thepolicy of I-uropean settlernent was vi#orou?lyapplied
up to 1930.In 1931it came to a coinplete standstill. 3rd %vas rçiurneil in
1ij35. Diiring tliv \var itwas again virtuallv siispended. but \\,:iresumed
afgr the war, mainly in favourof ex-servicemen
The following figures indicate the number of farms allocated 2:
-
Numbcr O/farmr
Pcriod allocalcd
-- .--- . --
1920-,930 ....... 1.26,
1931-ig35 ....... ( Nil
1936-1940 ... .--l 385
I9qI-Ig50 .......
...
1951-1960 ....... 793 -
1961 ....... II
- .- I -
1062 ....... 6
22. Respondent is not aware of the source of Applicants' statement
that "bv xozo. most of the available eovernment land ... mthin the
Police hnéh&l been distributed 3.lnva United Nations document +,a
similar statement was made. also withnut reference to a source, but the
year given was 1939, not 1929. It is admitted, however, that land was
purchased from companies which had large holdings, for subdivision
and distribution among European farmen.
Vide Book III. Chaps. II and III, of this Counter-Mernorial.
Departmental information.
' 1,p. irq.
' U.N. Doc. A/AC. 73/L roof19/8/57p.ara. 231.30 SOUTH IVBST AI:IIICA
Paragraph 25of Chapter V
23. As noted abovï, alter the end of the Second World War. further
land was allotted. It is admitted that the Police Zone boundary was
extcnded in 1953, 1954and 1956. It is incorrect to assume. as Applicants
apparently do, that the whole of the area beyond the Police Zone has
been rcservecl for occupatioii by Natives, or that the whole of it is so
occilpied. 111fact, thcre lias always been a substantial uninhabited area
adjoining the Zone. As lias been noted. the Police Zone resulted from an
historic administrative division ofthe Territorv * continued bv Res~on-
dent, and it constitutes the area in which théPolice normal$ ope;ate.
The rcasons for extendina the boundaries of the Zone are therefore to be
sourrlit in administrativëconsiderations. In some cases this arose from
tlie"necessity 01providing police protection for new farmsallotted in the
previously uninhabited areas in the northern part of the Territory. There
kere, however, othcr reasons, siich as to bÏing newly declared Native
areas within the limits of the Zoiie, and thus to enable the Police, inter
alin. to inspect sheep tlierein for scab.
24. The total area of the Territory is 823,145 sq. km. (ercluding the
Port and Settlement of Walvis Bay) J.As at May 1961,land reserved for
or belonging to non-Whites amounted to 219,559sq. km. and land owned
by or leased to Europeans amounted to 389,650sq. km. ' ln fact, therefore.
as at 1961,European farmland represented more that 45per cent. of the
Territory whereas reservcs amounted to approximately 27 per cent.
It is admitted that a large part of the area such as the Namib desert,
falline outside the reserves and the ar~a~ farmed bv Euro~4ans. i~'u~- .
suitable for agricu~tiie.
Applicants state that "some of these lands [i.e., European farms]
bordercd uDon the northern 'Native' areas outside the Police Zone" '.
In fact this'staternent is incorrect, since there is an uninhabited strip of
land of varying width running along the whole length between the
northern Native areas andthe I'oliceZone. 13ritin any event, Respondent
does not appreciate why Applicants should object to the mere fact of
Ewopean farms bordering on the northern Native areas.
25. The occupation of such a large proportion of the Temtory's land
by European farmers, arises from historical and economic circumstances.
The position of the northern areas has been considered above '.In those
areas the concentration ofa relatively large number of people in relatively
small areas arises from su erior possibilities for agriculture. as well as
from historical and sociaf circurnstances. In respect of those areas.
Applicants' mmplaint is apparently not that too little land ha been
left for the Native inhabitants-indeed. no encroachment on the tribal
areas in the north is, or can be, alleged-but rather that Respondent
failed to create "areas of modern economic development and activity"
' 1. p. 1x5.
Vide Book IV, Chap. III. para. 2. of this Counter-Memonal.
3 Vidc BookIII. Chap. 1, para. 4,of this Counter-Memorial.
+ Excluding an area ol 6.790 sq. km. which had been leased to Europeans for
emergency graring, but was suhsequently vacated..
Vidc Cbap. II.rupvn. couNTER-MEMoRiA OF SOUTH AFRICA 31
...t~ese areas. orto make them art ofthe modern monetarv economv"'.
As has beîn dem~ristrn&~inl>o\G.tliis irieffccc amourit, toa compliint
that Rripondcnt failed to introdiiçe Europcsn I;iriiitcrsiiito tlizsr tireas.
26. In the Police Zone, the Natives were at the inception of the Man-
date to a considerable extent landless. and the countrv was zenerailv
underpopulated. Rejpondent embarked on a policy 01encourag;ng \Vhik
immigration. u.tiilt.at the same tinie creat/ng Sntive ras~?r\.esI.'tizrc:ijons
for both ~oliciesare dealt witli elscwlierr ln tliij Countcr-Mtmori:iz.T\vo
points, h'owever,require emphasis at this stage:
(a) The only way in which Respondent could have ensured the posses-
sion of land by Natives, was by creating reserves. The necessity for
preventing thealienationofland byNativesisdealtwithin moredetail
elsewhere j,II is notable that outside the reserves in the Police Zone,
no Native has ever purchaçed land. despite the absence of any legal
impediment in that regard. Consequently, if Res ndent wished
to ensure that a greater percentage of land area s ould Liein the
possession of the Natives. it would have been necessary to create
more or larger reserves.
(à) The economic development of the Temtory required the encour-
agement of European farming. Proper administration of the
Temtorv. not to mention its develo~ment. would have been im-
possible'ior Respondent in the absefice of progressive commercial
farmers. The Natives were not in a position to supp-. .uch men.
27. The objectives of Res ondent's policieswere therefore of a conflic-
tin- nature. On the one han$ it was deemed necessarv to provide inalien-
able rritir\trs for the Satives. where they woiilclhe ;otecicd [rom \Vhite
competition and from inducements to seIl their fand. So comr!iercial
prod-uctionorrevenue couldbeexpected from these landsfor many years.
commercial and the fiscal point of view, for the use of land for modern the
productive farming. It was Respondent's duty to strike a balance between
these conflictine considerations. and. bearine in mind that Natives are
eiititled to purciiasc agriçulrural landin any part of the l>oliceZoric.it is
submittcd that the pro\,isions that have been made. are not iinre:~a>iiablc.
Iii addition. it mu31he em~hasizedthat the Dresentextent of the reservas
need not rehain unaltered' In the past, \vhe~Îthe need ;,rose forniore Ian(l
for Satives. the reserves wereeuteridcclor newones crrat~.d.often by the
purchase or expropriation of European-held farms '.
Paragraph 26 of ChapterV '
28. Save as indicated below,this paragraph correctly reflects the main
conditions relating to allotment of land. There have, however, been
variations in the past. So, for instance, when allotment of land was
resumed in 1935. Respondent pursued-
'1, p.llZ.
Vide Book IV. Chap. IV, paras.29-zq.and Book VI. Chap. III, paras. 34-54,
of this Counter-Mernorial.
VideBook VI, Chap. III. paras51-54.ofthis Counter-Mernorial.
' Ibid.. para62.of this Counter-Dlerna"al.
'1. p.ris.32 SOUTH WEST AFRlCA
"a oolicv of allottine farms for a orobationarv ~eriodof one vear
tl,:svttirrrecei\~iiigitit:bare lark only, on idikh he has to \;orl; out
liis own s~l!,atiuii. So financial assistance13estrnded in an\ sliape
or fom. . l".
It is not correct to statethat the settler can "obtain title to the land
only if he was a national of the Union"'. The relevant requirement is
that in cases of allotments since 1947, grants are made only to "British
subject~"~. The expression "British subject" means "a South African
citizen, a citizen of a Commonwealth country or a citizen of the Republic
of Irelaod'".
The term "South African citizen" includes persons born in South West
Africa since 1926 '.
It is to be noted further that the necessity of being a "British subject"
obtains only at thestage when the full purchase price has been paid, and
the allottee desires to obtain a grant of the holding. Normally 30 years
or more would, at this stage. have elapsed since the initial allotment
of a lease in respect of the holdin , so that any allottee would have had
ample time to become naturalizef In fact, special provision is made for
allotments to overseas applicants5.
It is admitted, however, that most allotments were made to South
African citizens.
As was stated in 1935 by a Commission of enquiry:
"The Union Nationals did not come into'the Territory devoid of
means or farming experience. We have been informed by the
Secretary for South West Africa that between r92o and 1925 the
average amount brought by each settler was£754 and between 1926
and 1g3i. :£1,287. As regards experience the farmer from South
Africa is from his environment and training much better qualified
to undertake famine o~erations in South West Africathan those who
have received theirYtkining in densely populated countries where
agriculture is practised and ranching is practically unknown6."
Paragraph 27 of Chapter V7
29. The facts contained in this paragraph are admitted. 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" appearfrom the limited
nature of their agricultural activities as described aboves. Indeed,
Respondent's attitude seems to have been shared by the United Nations
Cornmittee on South West Africa with reference to a more advanced
' Proc. No.3iopofa,927.(S.A.) iThc Lalus oSouth West Africa19a7. pp. 22-84;
sec. 43 (r) (d)inserted by ProcNo. 39 of,947 (S.A.)inThe Lairis oSouth West
Africn 1947,p.134.
' Act No. 44 of 1949, sec.38, inThe Lnws of Soutli IVerfAfricn1949. P.234.
* Ibid., sec2,in The Lalus oSouth West Africa 1949, p.206.
' Proc. No.310of ,927 (S.A.). seci7.in The Laws O/South Wfst Africa 1927.
P. 34.
U.G. rL1935, para. 253.p.46.
' 1,pp.115.116.
Vide Chaps. 11andIII, rupro. COUNTEI<-M1:MOlIIAI.01; SOUTH AFKICA 33
group than the hiatives, viz., the Rchoboth Basters. 'l'liusthe Committee
said, in relation to the I<ehobothGebiel:
"The application of afiarlheidto tlie Gebiel and tlic consequent
forced removal of 'European' [sic ]easing farms from Rehoboth
landowners automatically deprives the Kehoboth landowners of a
major source of income '."
And the Committee continucd to argue that this loss of income could
---- t~ ~h...~.w~-~~cv of I<clioùot~ 'iandowners. and the consc(iuent
, -
alienation of their lands L.
Thus the Committcc appears to have acceptcd that the l<choboth
Basters could hest utilizc their land by Ietting it to Europeaiis. nther
than by practising agriculture thcmsclves, and that European farmers
would bc able to make :i profit ovcr ancl ahovc the amount of the rent,
whereas laster farmcrs would not even bc able to raise a sum cquivalent
to such rent.
30. Rcspondent's vicw, rcferrcd to in tlic previous paragraph, explains
why the Land Settlement sçheme hasup to thepresent ken applicd only
with respect to Wliite farrners. Yhc difficulty of dcvcloping land in the
Te~ritory. the ncccssity for applying modern scientific mctliods of
farming, soi1 conservation md water utilization. and gcnerally the
complcxity of agriculture and marketiiig in thc adverse conditions
existing in South \Vest Africa, have caused the Administration to look
to the White farmer to devclop the country. A ncccssary corollary to the
fact that Satives ancl Coloured pcrsons arc regarùed as on the.whole not
sufficiently advanced to mcet the rigoroiis rcquirements of commercial
farming in the Territory, is that Wliit,: farmers shoulcl not, at any rate
while ownership in the Izlrrns rcmaiiis vcstçd in the Adrninistratioii. be
entitled to ccdc or assign their leascs to non-Whites. However, once the
farmer becornes owncr of thc land, no rcstraint is placed on his right of
alienation.
The condition regarding miscegenation 3 in the probationary lease'
cannot hy itself he relevant to "well-hcing, social progrcssand develop
ment in agriculture", except to the extent that it indicates a contem-
plation tliat such Icases would, while the relevant regulations rcmain
unamendcd. he grantcd to liuropeans only. That this has indeed been the
contemplation, is admitted. When Kespondent deems the Native popu-
lation ripe for individual land scttlement, provision can he made thcrefor.
Paragraphs 29 to 32 of Chapter V
71. In these Daraera~hs. Ao~iicants make certain factuai aiiegations
relitingto droLght FcliGff;om';vhich they draw the inference thit Res-
pondent "used overwhelmingly the lar~er part of relief funds forthe assis-
iance of the small '~uro~ein' of the population, while the
'C.A.. O.R..Twelfth SLSS. ,UP. No. 12 (AIj6z6).para. 85,p. 17.
Ibid.. paras. 85 and86. p.17.
' 1.p. 116.
+ Promulgated under C.N. No. 323 ofig48 (S.W.A.) aspart ofthe Land Settle-
ment Regulvtions in The Law$ O/ Soulh IVarl Alrila rg48. pp. 254-266.
1, pp. irG.117.34 SOUTH WEST ABRICA
relief funds used to help the large 'Native' population have been confined
to a comparative pittance"'.
As will be sliown. the picture drawn by Applicants is misleading.
largely because they fail to distinguish between the types of "assistance"
given to the European population and the Native population respectively.
Applic;riits refer to a sum of L2..oo.000made available for drought -
relie?: Thev then oroceed:
"'l'tiitsgregiitc includcd fx rnillion made available through the
coiiimerciiilt~aiiks.Li.zoo.ooo to the Laiid Uoard and land llank of
tlic ~Itliiiiiiistriitioii.f:z5o,oooto two farmerSsCO-operativesocieties
and the remaining Lx5o]ooofor unforseen emer6ency relief '."
Save for tlie lastmentioned sum of ~150,000,the whole amount men-
tioned above was applied solely towards providirig loans for farmers.
and not. asApplicants would seem to suggest, free gants. This a pears
clearly from a resolution of the Executive Committee which prece fed the
relevant vote of the Legislative Assembly. This resolution read as follows:
"1. That ~4o0,ooobe made avaiiable to the Land Board for aid for
settlers and landless farmers;
2. That ~4oo.000 be made available to the Land Bank for aid to
l~ ~ ~ ~rs :
invtc;triient to eiiahlttiçrnto\graiitgreater credit faiilitiej;
A. .l'Iiat Czoo.ooobe inxde a\f:iil:ibleto the Iiiiid Uaiik for advances
of L1oo.6oo &ch to the two CO-operativesocieties for five years at
4% interest and against promissory notes. Another L50,ooo to be
made available for a loan to F.C.U..for ten vears at do/, with fixed
property as securit ! .,-
5. That a further &oo,ooo be madelavailable to thleLand Bank for
ordinary loans;
The aid mentioned in I and 2 to take the form of short-term loans.
that is for gyears at 4% and only to be gaited to active £arme&
embarrassed as a result of drought."
These extra credit facilities were neceswry to enable farmers to pay
pressing debts, mortgage instalments, etc. Respondent submits that,
regard heing had to the financial position of the South West African
Administration, and the economic cohtribution of Ithe agricultural
industrv totbenational ~roduct of the Temtorv as well as to the income
of the r\<liniiiistratiori.tiv sum of 1<4.9m(jz.45m) was neither an exces-
tratiun to tli,,a\~:ulable pool of credit which became neccssary to tide the
agIn addition to the above provisions for credit, subsidized transport of
drought-stricken stock was provided, and a subsidy on maize was given,
amounting at 61st to 30 c. (3s.)perbag.and thereaftertoRI (10s.)per bag.
Finaüy, the crisis was met by the provision of emergency grazing ,on
vacant govemment land wvherever racticable and by CO-operationwith
the authorities of the Repubiic of &th Africa to ensure the marketin
of the largest possible number ofstock before their condition deterioratecf
' 1, p.118.
3 Ibid..p. 1.6.zgp.rr6 COUNTER-MEMORIAL OF SOUTH AFKICA 35
subject to the limitations which wcre also iniposed on the movcment of
stock as a result of an outbreak of foot-and-mouth disease.
were. utilized mainly by the provisiori of loaiis atalminimum rate of
interest of 4 per cent. per annum.
The pattern of assistance ta Native farmers, who were in communal
occupation of land, and who in many cases did not yct fully participate
in the money economy ofthe Temtory, naturally had to iollowa diffcreiit
course. In their case there was no question of their heiiig forccd off the
land by rcason of failure to pay interïst or capital instalments on mort-
gages, or inability to meet other obligations. Serious attempts wcre
made to influence the residents of the reserves in tlie Police Zone to seIl
some of their stock in the early stages of the drought to forestall hcavy
losses. and the Departmïnt of Rantu Administration and Development
organized stock salesfor tliis purposc. When it was foiind that the Natives
were not taking timeous advantagï of the means offercd to reduce the
large number of stock held by tliem. other steps were takcn to assist
them to Save thcir stock. In 1959 the grazing in the Eastern Native
Ovitoto, Otjohorongo, Okombahe and Otjimhingwe Reserves to takeants ofthe
some of tlieir cattle and small stock to that Rescrve. Unfortunately. vcry
few responded to this offer. Jn al1 rcsïrves large amounts werc spent
directly on augmenting water supplics. thus enabling the inhabitants to
move their stock to other available grazing, which being communally
used, did not involve tlic inhabitants in any financial outlay.
33. In addition to thc aforesaid. drought relief took the form mainly
of direct personal assistarice tn thosc Sativcs who were in jeopardy of
losing their sustenance in the suhsistciice economy. The steps taken in
this regard are set out in the succeediiigparagraphs.
-.4.The followin~-irect drourh- rclief wa5 -ranted:
(a) buring the pcriod Octohcr 195,; 10 llarch 1y61 148.395 t,afisnf
niealies and int..ilit:-ine;ila.L.rcili,iri;irv.i;ile\):,sis;imongtlic
inhabitsnts of Oi~sii,l.i>l.i. iliosc casci irlicrc inh:ibit;iiits of the
dronght-stricken area were not in a position to pay by reason of old
age or incapacity, they were supplicd witli free issues.
(b) The Administration of South West Africapaid a subsidy of 30 cents
(3s.) erhagon the first89.155hagsand thereafter RI (los.) per bag on
the %alance of 59,420 bags, the total expenditure being R85.986
(L4~~993).
(c) In addition to (b) above the Administration also supplied food to
schools and hospitals in Ovamboland at a cost of R20.328 ([10,164).
(d) On an average 400 lahourers per month for a period of approxi-
relief works, such as repairina roads, makinr dams, etc., and the
expenditure so iiicurrc~'anioÜnti:(to I(ZZ,OO~ (~rr.ooo).
(e) In tlie Kaokoi,eld 1,700 bqs of mealics iveredisrributcd amonfi !he
inhabitants. and, as in tlic case of O\.amboland. tlie Administration
paid a subsidy of RI (10s.) per bag.
(f) Seven additional 3-5 ton tmcks with their drivers were made avail-
able by the government garage for use in distrihuting the food in
Ovamboland. The total number of miles done by these additional
tmcks came to 86,000.36 SOUTH WEST AFRICA
(g) Financial assistance by way of a subsidy on rail and road motor
transport was granted by the South African Government. The
subsidy amounted to R9.906 @4,953).
(h) Special efforts were made by the South African Railways and
Harbours to transport the mealies and mealie-meal from the rail-
heads at Tsumeb and Grootfontein to Ovamboland by means of
railway buses. and at times no less than ten IO-ton buses were in
operation. The officiaisof the Department of Bantu Administration
and Develoument and of the South African Railwavs and Harbours ~
ir,orkeddafand iiiglit to eiisuretli;~:ln adequate ;upply of mealies
\vas availablc for distribution.
35. The distribution of maize was restricted to the northem Native
territories of Ovamboland and the Kaokoveld. The residents of the
reserves in the Police Zone also suffered heavy stock losses as a restilt of
the drought. In those caseswhere tliey were unable to work on account of
old age, disability or infirmity. they were entitled to applyfor free issues
of panper rations. Many applications were received and rations tn the
value of just on R3o,o8o g15.040) wereissued.
36. The following is a summary of the espenditure oferred to in
paragraphs 34 and 35:
(i) Subsidy on mealies and mealie-meal dis-
tributed in Ovamboland ........ R85986.00 g42.993)
(ii) Iiood supplied to schools and hospitals in
Ovamboland ............. 20,328.00 &0,164)
(iii) Subsidy on mealies and mealie-meal dis-
tributed in Kaokoveld ......... 1,700.00 (&?O)
(iv) Wages to labourers on relief works .... zz.ooo.00 @~r.wo)
(v) Subsidy on rail and road motor transport . 9,906.00 £4,953)
(vi) Pauper r~iief ............. 30,080.oo &,--0)
Total ... K170,ooo.oo g85,ooo)
37. Loanfacilitieshavealso now been created for Natives who suffered
stock lossesas a result of the drought and the foot-and-mouth epidemic.
of South West Africa to tribal funds to be used to enable Native owners
who had lost stock in consequence of the drought and foot-and-mouth
disease to replace such stock. This amount, made available in 1962,was
interest freeforaperiodof twoyearsand thereafterboreinterest at the rate
of 2 per cent. per annum '.
38. The general attitude adopted by the South West African Adminis-
tration in connection with drought assistance was summarized by the
Administrator in his reply to the 1961 Budget debate in the following
terms:
"Regarding the Native farmers in the Resewes, 1 have previously
indicated that assistance with a viewto their economicrehabilitation
will be considered after the drought has been broken and the estent
of assistance that is required, can be determined with reasonable
accuracy.
Honourable Members will realise that the assistance given in
' Departmental information. 38 SOUTH WEST AFRICA
Paragraph 33 of Chapter V 1
40. Responderit's repiy to Applicants' contentions in this parjb~aph
appearsfrom tlic preceding p<ir;igraphs.,lii respect of the specific :illçga-
tions contained in subp3rab~aplis (i)to (vinKcspondent statesas follows:
(a) Subparagrafih (i)
AUagricultural land in the Territory, Saveforthe Native reserves and
government land, may be acquired by any person, European or Native.
In addition, Respondent has set aside substantial reserves for the Natives
who, in the Poüce Zone, were to a considerable extent landless at the
inception of the Mandate. To protect the position of the Natives, these
reserves cannot be alienated by them.
It is consequently entirely incorrect to Say that Respondent has "pro-
gressively reduced the proportion of farm land available for cultivation
or pastoral use by the 'Native' population, while it has progressively
increased the proportion of such farm land available to 'Europeans' "2.
. . . -.
Sati\,es are.ai lias been said repeatedly. entitled tn acquire individual
o\vnership of agricultural land in ans part of the Police hne, excluùina
the rese&es. The reasons whv the Ïeiewes are farmed on a cornmund
basis, are két out elsewhere ;n this Counter-Memoria13, and it is not
necessary to repeat them here.
(c)Subparagraph (iii)
Whereas the role of the Native population in agriculture is, to a large
extent, still iimited to subsistence farming witvn the reserves, and em-
ployrnent as labourers (aithough not necessanly "common" labourers)
on European commercial farms, it is, for the reasons,set out above,
completel false to Saythat Respondent has caused thissituation. On the
contrary,%espondent3s efforts have been directed towards improving
the possibilities of Native agriculture, as appears from the foregoing.
(d) Subparagraph (iv)
No factuai alleeations are made to su~~ort this contention. and
~es~ondent th&&re cannot deal with it.*in fact, the developkents
which have taken place. and others which are at present under considera-
tion, open up evër-increasing opportunities of progress for the Natives
in agriculture.
(e) Subparagraph (v)
In connection with emergency relief made available in times of drought,
Respondent has used the larger part of relief funds directly expended as
irrecoverable state aid, for the Native population, and has confined the
use of relief funds for the assistance of the White population mainly to
arrangements for, or granting of, loans repayable with interest.
' 1,pp. 117-118.
Zbid., p118.
' Vide Book VI. Chap. III. paras44-50,ofthis Counter-Mernorial. CHAPTER V
CONCLUSION
I In aragraph 190of Chapter V of the Memorials,under the heading
"Legai & nclus'ons" ',Applicants allege that Respondent "has violated,
and continues to violate its obligationsas stated in the second paragraph
of Article 2 of the Mandate and Article 22 of the Covenant" in a number
of respects. As regards agriculture, Applicants repeat 2, almost vcrbatim
the charges contained in paragraph 33 of Chapter V of the Memorials '.
2. Resuondent has dealt with these chms in the precedin~ para-
paphs. aid itisconsequentiy unnecessat'yto deal again \cith the rilévant
Legal Conclusions". It is sufficientto reiterate that the said charges, and
therefore also the said conclusions, are unfounded and without substance.
11, pp.162 5.
1 Ibid.. para190(i)(a) lb) fc) fd) and(6).PP. 162-163.
9Ibid.. pp 117-118. SECTION C
WELL-BEiNG,SOCIALPROGRESSAND
DEVELOPMENT ININDUSTRY
CHAPTER 1
INTRODUCTION
1. Applicants' charges relative to "the well-being, social progress and
development in industry" are summarized as follows in paragraph 77
of ChapterV of the Memorials:
"In the industrial phases of the economic lifeof the Territory, as in
the agricultural aspects of the economic life of the Temtory, the
Mandatory has failed to promote to the utmost the well-being. the
social progress and theevelopment of the larger part of the popu-
lation. It has not even made any substantial effort to do so, To the
contrary, by law and by practice, the Mandatory has engaged in a
consistent course of positive action which inhibits the well-being
and prevents the social progress and the development of the larger
part of the population. As the data exhibited in the foregoing
paragraphs make clear, the record of the Mandatory's behavior
consistent record of negation, fmstration, constraint and unfairnd
discrimination. More particiilarly. as demonstrated in detail in the
preceding paragraphs:
(1)The Mandatory has denied and continues to deny to the 'Natives'
of the Territory opportunity to take part in mining and other in-
(2) The Mandatory has denied and continues to deny to the 'Native'
population opportunity to take part in executive, managerial.
professionalor technical posts in mining and other industries.
(3) The Mandatory has unfairly prohibited and continues to prohibit
'Natives' from taking part in the processes of collective bargaining
and conciliation and arbitration of disputes.
(4) The Mandatory has confined the participation of the 'Native' popu-
lation in the industrialnomy, for al1practic-l -urposes, to the role
of unskilled laborer.
The Mandatorv has sha~ed the circumstances and conditions of labor
for the '~ati;e' population inta pattern of constraint and com-
ulsion that consistentiy subordinates the interests of the 'Native'
aborers to the interests of their 'European' employers.
The Mandatory has so drastically curtailed and circumscribed the
possibilities of choice for 'Native' laborers as to leave them. for all
practical purposes. very little freedorn of choice with respect to place
of employment, type of employment, identity or character of em-
ployer, or conditions of employment. COUNTER-MEMORIAL OF SOUTH AFRICA 41
(7) The Mandatory has denied to 'Native' labo. equal legislative
protection in the form of mvisions for holidays. sick pay. and
compensationin the event ofihess or injury caused byemployment
which are made available to 'White'ernployees '."
2.The so-called "data" on which the aforegoing com laints are based,
are contained in paragraphs 34 to 76 of Chapter V Of the Mernoriais '
which said paragraphs are devoted to a treatrnent of the following
subjects:
(a) The fishingindustr .
(b) Mining and miner&.
(c) Railways and harbours.
(d) Labour recruitrnent.
(e) Labour conditions within the Police Zone.
3. The said subjects are dealt with separately in Chapters II to VI
below.
21Ibid.. pp117-1.30 CHAPTER II
THE FISHMG INDUSTRY
General
r. After stating ver briefly certain facts relative ta the fishingindustry
in South \Vest Africa i.the Ap.-icants alie~e- as follows:
"The entermises in the industrv are essentialiv 'Euro~ean' owned
and operated:We more than 3,>00'non-~uro&ns' &e employed
in the fishin~ industw, the role of the 'Natives' is substantiaiiv
confined to ukkilled Iibor 2."
2. In paragraph 77of Chapter Vof the Mernorialsthe follouringcharges
are, inter alia, made relative to industries in general:
"(f) The Mandatory has denied and continues to deny to the
'Natives o~ th~ Territorvo~~ortunitv to take art in minine and
other industries as a prospector, entrGreneur, operator, or owner. -
(2) The Mandatory has denied and continues to deny to the
'Native' population opportunity to take part in executive, mana-
gerial, professional or technical posts in mining and other industries.
.........................
(4) The ~ahdator~ has confined the participation of the 'Native'
population in the industrial economy, for ali practical purposes, to
the role of nnskiiied laborer 3."
3. Before dealing with the Applicants' charges, it will be convenient
to give a brief account of the fishing industry in the Temtory and its
development.
The FishingIndustry in SouthWest Africa
4. The fishing industry in South West Africa is virtuaily limited to
off-shoresea fishin alon the Atlantic Coast '.
The coastline is fhge%by the barren and inhospitable Namib desert
with the result that there is exceedingly limited human habitation along
the coast. The only coastal toms are Walvis Bay 6,Luderitz, Swakop
mund and Oranjemund, and only the fast-mentioned twohave harbours.
These topographical features, and the rough seas along the coast.
rnilitated against any form of sea fishing by the indigenous peoples of
theTemtory.
Fishing as an industry was not exploited to any notable extent until
' 1,para. 34 and 35.p. 118.
' Ibid.. pp.130-131.
' In someofthe rivers bordering the temitoty, such as the Okavango and the
Zambesi. fish are caught by the Natives, and fom part of peir normal diet. but
are othenvise of ~ ~ ~ ~ ~ ~omic imwrtance.
J Vide Book III. Chap. 1.para. 6.~ ~ ~ ~
Whieh is not part of the Territory of South West Africa. ibid.. para.4. COUNTER-MEMORIAL OF SOUTH AFRlCA 43
after the SecondWorld War, when South African companiescommenced
fishing operations from Walvis Bay.
5. As the Temtory itself offered no substantial markets for fish, the
industry was dependent on foreign markets, which necessitated the
establishment of factories for the canning and processing of fish and
fish products for export to world markets.
These enterprises called not only for considerable capital investments,
but also for technical knowledge and experience. It is therefore only
natural that the fishing industry in South West Africa should have been
sidiaries or associates of companies already estabhshed in the indus*
in South Africa.
6. Theindustry in the Temtoryjs centred around the harbou~ towns
of Walvis Bay and Luderitz. and 1sbased mainly on the catchng and
prAt present there are nine factories at Walvis Bay, aUconcerned with
the processing of fish and fish products. Six factories at Luderitz process
and pack frozen rock lobsters.
7. The South West African Administration exercises control over the
industry in the Temto ,and. to conserve the fishingassets offthe coast.
it limits the tonnage 'Y fish which may annually be rocessed by each
factory. and also the tonnage of every fishing vesseyserving the said
factones.
The Administration has employed marine biological research teams
to explore the off-shore marine resources in order to control the indust
properly and to apply effective conservation methods. Such researc "h
has alsopromoted the economicaldevelopment of the industry.
In 1953the South African Bureau of Standards took over the technical
pidance of the industry in ail aspects of processing and packaging, and
it hassince been the main source of technical advice to the South West
African Administration and the industry.
8. Since the Second World War the quantities of fish caught off the
coast of South West Africa have increased considerably over the yea?.
The total catch increased from y30 tons in 1948 to 260,056 tons in
1958,and to 325,000 tons in 1961 .
Temtory exceeded R22 millionalval&IIofmillion). the total, in round figures,
being made up as foliows Z:
Frozen and canned . . . . . . RI~,~ZO,OOO &7,260,000)
rock lobster . . . . . . 2,300,000 &1,150.000)
Fish oil . . . . . . . . . . ~,~~o,ooo
Fish meal . . . . . . . . . 4.zo0,ooo ..2,100,000
Cured fish . . . . . . . . . 1~0,000
Rzz,75o,ooo &11,375,000)~
' Stata of South Africo-YeuBook(1963). p.429.
IVhiie Papcr on the Aclivilies of the Different Branchcs of ;haAdminislralion of
Soulh A'rsl Africa for the Book Yc1961-1962, atp. 13.44 SOUTH WEST .4FRICA
9..The "United Nations Economic Survey of Africa since 1950".
published in 1959, points to the great potentialities for the development
offishingand fishproducts in Africa. and states that-
"In Africa south of the Sahara, the greatest ex ansion took place
in Angola, the Union of South Africa and Sout\R esrAfrica, which
are thethree largest producers in Africa since 1948-'."2
According to the said Survey the total averagequantity of fishlandings
for South West Africa during the years 1955-1957was 240.500tons. Corn-
parative figures in the same years were: South Africa. 322,600tons. and
Angola. 368,800 tons2.
IO. The success of the industry in South West Africa, and its develop-
ment. reauired technical knowledee and research. wise conservation and
coiitrbl deasures. experience in wfching the fish.in processing the ûitch
and in marketin!: the products of the industry. and entailed considerable
capital investmënts.-
The indigenous people of the Temtory had no knowledge of, or
wntribute to the establishment and development of the industry other-to
wise than in an unskilled capacity. Througb European entefprise, the
has offered a new fieldof employment to the non-White peoples
ifdhet?'emtory, which contributes not only to their economicweli-bang.
but also to their ex erience in a new sphere of economic endeavow. The
1960 census revea ed that 1.317 non-Europeans were emqloyed inthe
iïshing industry. In the food manufacturing industry, whch 1s closely
allied, no lessthan 3,655non-Europeans were employed in that year
the ~erritor~,;vhich is employed in the advanceme& of the well-beingf
and progress of al1its inhabitants.
Respondent's Reply to Applicants' Allegations (Memorials)
II.The aüegations in these aragraphs are admitted.
As to the annual value of &h and fish products produ~d in South
West Africa, Respondent refers to what has been stated in para aph
8 above. The financiai sup ort contributed by the South West A rican
ment of the industry,asadealt with in paragraph 7 above, has been not
only for the benefit of the industry ash, but also for the benefit of the
Temtory and al1its inhabitants. Not only does the industry contribute
substantially to the revenue of the Temtory, but, particularly in so far
asthe non-White opulation is concerned, it has offered a ?ew field of
remunerative emp oyment to a substantial number of the inhabitants
of the Temtory.
' Ecanornic Surve-y of Africa since 1950.U.N. Doc. EICN-P.l105.
Ibid.. 30.
Departmental information.
' 1,p.118. COUNTER-UEMOIII OPLSOUTH AFRICA 45
12. It is correct, asthe Applicants allege, that the ente.rprise in the
industry are essentially European owned and operated. It 1salsocorrect
that the role of the Natives employed in the industry is substantially
that of unskiUed workers.
It is only natural that Europeans. who possessed the initiative and the
necessary knowledge and technical experience, should have established
and developed the enterprises in the industry. It is likewiseonly natural
that the Native inhabitants of the Temtory. who had no knowledge or
experience of. or training in. such enterprises, should, at least in the
early years of the industry, have been unable to contribute to its estab-
lishment or development otherwise thm asemplnyees in an unskiiied
capacity. With the passage of time, however, many of them have been
trained to do a variety of skilled or semi-skilled work, such as the opera-
tion of cutting, separating, vacuum, seamer and labelling machines;
operating waterpurifying plant, driving tow motors. etc.
There is nothing in law which prevents Natives from being employed
in any capacity in the industry, and the fact that their role therein is at
resent substantiiy that of unskilled labourers, is due to their general
rack of educational qualifications. technical skill and experience. It 1s
expected that in the course of time more Native employees will qualify
themselves for appointment to skilied and more responsible positions in
the industry.
PARACRAP 7H7 OF CHAFTER VZ
13. Whereas in paragraph 36 of Chapter V of the Memorials it is
aiieged that the role of the Natives in the fishing industry is "substanti-
ally confined to unskilled labor" ',the Applicants in paragraph 77charge
theTemtory the opportnnity to takepart inied, "mininnyiand other industries
as a prospector. entrepreneur, operator or owner" or in "executive,
managerial, professional or technical posts in mining and other indus-
tries" '.
The fishing industry is not mentioned in paragraph 77, and indeed
there are no factual allegations in the Mernorialswhich c?uld in the least
support a charge that Respondent has in any way denied the Natives
the opportunity to take part in the aforementioned capacities and posts
in the fishing industry.
The same position obtains with regard to the allegation that "The
Mandatory has confined the participation of the 'Native' population in
the industrial economv...or al1practical p.rpo.es, to the role ofunskilled
laborer" '.
As has been stated 6, there is nothing in law which prevrnts Natiyes
{rombeing eniployed in any capacity in ttie fishingindustry And nothing
' 1,pp. 118-119.
-~id.0.pi,o.-r3I.
' Ibid.. p. 130.
' Itid., p131.
Vide para.12.ruprn46 SOUTH WEST AFRICA
prevents them fromtaking part inthe industry asentrepreneurs, operators
or owners.
On analysis, therefore, there is no factual basis upon which the charges
made in aragraph 77of Chapter V of the Mernorials can be regarded as
ap licabx to the fishing industry.
ghould Applicants nevertheless have intended that such charges should
one thereof is denied, and it is generally denied that Respondent has in
respect of the said industry failed to observe its duties under the Mandate
or has, as allcged by Applicants, "engaged in a consistent course of
positive action which inhibits the well-bcing and prcvents the social
progress and the developrncnt of the [Native] population" '. CHAPTER III
MININGAND MINERALS
Introductory
r. The Applicants' charges in Chapter V of the Mernorials relative to
the mining industry in South West Africa ' are basically twofold, and
concern the opportunities permitted to Natives to take part in mining
as prospectors, entrepreneurs, operators and ownen, and the oppor-
tunities aiiowed to them as employees in the industry.
z. In respect of opportunities of the first-mentioned kind Applicants
dege that there is a "pattern of systematic discrimination against
'Natives' ... in the mining industry" Z,and they Saythat-
"While under the applicable law there is a technical possibility
that prospecting by 'Natives' may take place within the 'Native'
reserves, the technical possibility can hardly be realized. The
numerous conditions prescribed. including particularly the financial
conditions and requirements, taken together with the unfettered
discretion of the Administrator and the several spccial Boards,
permit and indeed require an inference that for ail practical purposes
'Natives' are barred from any such activity 2."
In paragraph 77 of Chapter V of the Memorials3 the charges in this
respect are formulated more specifically as follows:
"The Mandaton, has denied and continues to denv to the 'Natives'
of the Tenitory opportunity to take part in min<ng. ..as a pros-
pector. entrepreneur, operator, or owner."
3.kith regardto opportunities permitted to Natives as employees in
the industry. Applicants say that "it is plain that the role of the 'Native'
is conhed tothat of unskilled laborer" '.
This charge is formulated more specificaiiy in paragraph 77 of Chapter
V of the Mernorials as follows:
"The Mandatory has denied and continues to deny to the 'Native'
population oppoitunity to take part in executcve, managerial.
professional or technical posts in Mining and other industries"
and
"The Mandatory has conhed the participation of the 'Native'
population in the industrial economy, for ali practical purposes, to
the role of unskilled laborer S."
trative measurïserwithrregard to mining in South \Vest .\frica. an account-
is given in tlie next succte<ling paragraphs of the mining ol)erÿtioni
1. pp.~rg-rzz.
Ibid.. para45.p. 121.
Ibid. p,ra.77. p. 130.
Ibid.para. 46.p. 121.
Ibid., para. 77. pp. 130-rjr.qs SOUTH WEST >\FRIC;\
carried on iii the ~l'crritorv. the place of tlie ininine industrv in the
cconomy of tlic l'errit~ry,~~nd the particular circu~stances and con-
ditions whicli bcar upon the application of measures desicned for the
coiitrol of the iridustry and of peÏsons engaged tliereiii. -
Mining in General
5. In Soutli West Afric:)minine is the onlv sector of economic activitv
eni'ircls !vittiirthc inoncy i:conomy.. It is ai50 the most highly organizc'd
;<ii<cnpitnlized scitor of tti~'l'crritor),'~ccoiioinv, establislie<l ~)riiiiarily
with a-view to laree-scale ~roductiofi for ex~ori. and. as is the case in
practically evcry cOuntry ik Africa. it is to ;large extent controlled hy
foreign financial interests.
With regard ta foreign fiiiancial intcrests in mining enterprises in
Africa, the United Nations Economic Suniey of dlrica since 1950stated as
follows:
"More so than any other sector of the money economy in Africa.
mining has heen organized chiefly with foreign capital. entrepreneur-
ship, and skill: only in the Union of South Africa is a significant
proportioii of mining capital owned by residents '."
G.~lthou~h South est ~frica has a beat variety of mineral deposits,
only a few thereof have proved of real economic importance. Apart from
concentrated occurrences of~~amonds. lead~,in~. , couDerand salt deuosits.
tlie Territory's minerai resources are characteri;edr6y rich sampleS from
small quantities widely dispersed over the country 2.Diamond mining is
largely concentratcd in the Soutliern Namib area in the vicinity of
Oranjemund 3; at present dredging for diamonds is taking place in the
coastal waters of the Territory 3.Large-scale mining also takes place at
Tsiimeb, where lead. copper and zinc are mined '.There are no known
coal or natural ail resources worth exploiting '. with the result that
practically al1fuel requirements have ta be imported. This fact, together
with the peculiar geologicalstructures in the Territory,have made mining
a highly organized and capitalized activity. demanding skilled managerial
and technical organization.
7. With the exception of salt, al1minerals and precious stones mined
in the Territory are destined for export. An analysis of the pst-war
figures reveals that diamonds and lead/zinc alone account for more than
go per cent. of mineral exports. During 1961 the value of mineral sales
from the Territory totalled ~26,550,000(R53,1oo,ooo),of which diamond
sales amounted to ~17,468,000 (R34,936,ooo), and sales of leadlzinc to
£7,453,000 (R14.go6,ooo). The value of other minerals produced in the
said year was: manganese £ggr.ooo (R1.18z.ooo); copper L235.500
(R471,ooo): lin ~196.000 (R3gz.ooo) and salt {108,50o (Rzr7.000) '.
8. Although the value of mineral exports has since the SecondWorld
War constituted wellover 50 per cent. ofthe Territory's total exports. it
' U.N. DOC.ElCN.14128. p. 6,.
'*Ibid..para. 35.Chap. 1. para. 3+, of this Counter-Memonal.
' Ibid..para. 37.
' Slolc olSoul Africo: Economic. Financial and Statistical Year Book for the
Republic of South Africa. ,963. pp. pjro. COUNTER-MBMORIAL OF SOUTH AFRICA 49
amounted to lessthan 15 percent. in the years immediately prcceding tlie
war. This instability in the relative share of mining products in the
exports of the economy of the Temtory must be attribut4 tothe narrow
base of mineral exploitation in the Territory and the sensitivity of the
totaltexport value of mining products, accounting for more than 50 pern the
cent. of the latter during the post-war pcriod.
9. Asmuch as 96 per cent. of the mining output in South West Africa
is controlled by two companies. This state of affain is ascrihable to the
from Door.or a lack of. water supplies. lack of fuel and transport dificul-
ties. 'fhese factors necessitate la<@-scaleoperations requiringthe crnploy-
ment of qualified and experienced technical personnel, and substantial
capital fuÏids.
industryasawliole employs only aboutoreigIOper cent. of al1males employed
in the Territory. During 1960theindustry employed 1.789White persoris,
the majority of whom came from outside the Territory. and 9,534 non-
White employees. of whom the majority were temporary workers from
areas outside the Police Zone
Mining Legislaiion in South West Africa
II. For the proper operation and development of the mining industry
within the economy of the Territory, measures of regulation and control
were an absolute necessity.
By reason of its own experience in regulating a diverse and camplex
minine-industrv in South Africa. whicli Iiad mown over the vears to
assume vait p&portions. li<:spon;ltnt was al~ltytu dircct aiid $idc the
leaislation in South \Vest Afric:~IIIliricsIi,-stsuitd to <:iicour:i<emining
enterprise and to allow it to develop in a manner calculated- to bring
about the maximum economic advantage to the Territory.
12. When Respondent assumed the Mandate, mining in South West
Africa was governed by the German Imperia1MiningOrdinance of 1905 '.
In terms of the Ordinance the riaht to urosuect and mine for miiierals in
the Territory was vested in the Goverimeit, and any person wishing to
.rosp~ct or mine was required to obtain a licence from the Government.
13. Not only had vesied mining rights accrued under the system,in
ouerationdurinathe German reaime, but the svstem itself, under which
miiier31rights \;Gr,?v,:ited in tlit?(;o\,tri~rnent. ippc:ired froirini1~drriinis-
trativc point of view to I)C:unil and to nflord the I~st niethod of reguln-
tinl: and controllii., the exi~loitation of the riiineral resources of the
Te&itor.v.
Ownership :inclcontrol of minernl rights 11ythe Govcrnincrit. instead
of private ownership and control. could enjure not only t,etlw rt.@l:ition
of mining operations in general, tut :ilsutbnt tlie mineral rçsourrcs iiaould
' Die deulrche Koloniol-Gtscfzgcbung. Samrnlung der aufdie deutschen Schutr-
gehiete bezflglichen Gesetre, Verordnungen, Erlasse und internationalen Verein-
221-24,. mit Anmerkungen, Sachregister. Neunter Band (Jahrgang 1905).pp.50 SOUTH WEST AFRICA
primariiy beexploited intheinterests of the Territory as a whole rather
than in the interests of certain individuals only.
The system in operation at the inception of the Mandate was therefore
retained. and the legislation at present goveming the industry, viz., the
Mines,Works and MineralsOrdinance of 1954 ',provides that :
"The right of mining for and disposing of precious and base
minerals in the Temtory, including the Territorial waters is vested
in the Administration and no precious or base minerais shall be
searched for or won Save in accordance with the provisions of this
Ordinance 2."
14. In terms of the said Ordinance the supervision and control of the
mining industry in the Territory,and the exercise of al1rights and powers
vested in the Administration in regard to mines and minerais, are
e.~mst-d to the Mines Division '.which is subiect to the direction and
authority of the Administrator '.
The staff of the MinesDivision consists of sis officials.The three sen,ior
posts, i.e.. Inspector of Mines, Assistant Inspector of Mines, and Mining
Commissioner, are fiUedbv technically qualified and experienced officers
on secondment froin the MinesDepartment of South Afnca.
Permission to Prospect
WITHIN THE POLICE ZONE
15. \i1itliinllit: PoliceZone no person iii:iyprospect for minerals except
under the autliority of a prospecting licence 5. and in ternis of the
Ordinancc a prmpcctiiig licence may not l>eissued to any prrson other
than:~
"(a) n European of the age of 16 years or more,
(6) a Company registered under the provisions of the Companies
Ordinance, 1926(Ordinance No. 19 of 1928). as amended,
(c) a foreign Companywhich has complied with the requirements
of the CompaniesOrdinance, 1928 (as amended)V
With regard to the Rehoboth Gsbiet and the Native reserves in the
Police Zone, however. the followingprovision is made:
"In the Rehoboth Gebisl,Burgers of the Rehoboth Baster Com-
munity,and in the Native reserves, Natives lawfully resident there-
in, shall possess the same rights to hold prospecting licences and be
subject to the same obligations as Europeans '."
It is also provided that :
"No person may prospect or mine iii .. . any Native reserve other
than a h'ative lawfully resident therein ... unless he is the holder of
a special permit issued on the instructions of the Administrator
' Ord.No. 2601 1954 (S.\V.A.). sec1.in Tb Laws ofSoulli H'crlAfricn (19.54).
PP. 753-553.
? Ibid., secI,p.753.
' Ibid.. sec5 (2)p.765.
' Ibid.. sec5 (r)p.765.
' Ord.No. 26 of1954 (S.W.A.0 ),.cils,ec.17(1).p.777.
' Ibid.. sec22 (1)(c)(iii), p.783. COUNTER-MEMORIAL OF SOUTH AFRICA 51
under such conditions or circumstances as the Administrator may
direct '."
16. The effect of the above provisions may be summarized as follows:
(a) in respect of the area within the Police Zone. excluding the Native
reserves and the Rehoboth Gebiet,a prospecting licence may be
issued only to a European or to a Company;
,~, in aNative reserve in the Police Zone no person. other than a Native
Iawfully residcrit therciii, may prospect0; nune unlcishc iithe holder
of a special permit issued on the instmctioiis of the Administrator.
17.The abovedistinction as to the areas in which members of the
different population groups may carry on prospecting operations. is in
conformity with Respondent's policy that. as far as is practicable, r?h$
of priority should be reserved to particular groups in separate parts O the
Territory. Thus, prospecting outside the reserves is permitted only to
Europeans, while a similar position obtains for the different Native
groups in their own reserves. Although the Administrntor is allowed the
discretionary powertogrant specialpermissionfor a European toprospect
within a Native reserve or for a Native to prospect in a reserve in which
he is not resident, such permission is, as a matter of policy, not granted.
Thericht to crrant such permission was intended to be exerused only in
exceptional ~ircumstan~cs. for exdmple, where the inhabit:tnts, of 3
reserve are urinble or unwilling ta prospcct for and mine minerals in the
reserve. the cxi~loitatiori of which would bc to thc ndvantage of such
reserveand of the Temtorv as a wbole.
Whcn in an exceptional Casesuch permission isgranted, conditions can
be imposed in protection of the righ.s of the inhabitants of tlie rcserve
concemed.
OUTSIDE THE POLICEZONE
18. Interms of section 61 of the Ordinance, no person may prospect
in the area beyond the Police Zone-
". .. unless he is the holder of a suecial oermit issued on the in-
structions of the Administrîtor under suCh conditions or circum-
stancls ds the Administrator may direct '"
Although in terms of the said section a European may obtain special
permission to prospect in the area beyond the Police Zone, such per-
mission will on1 be granted under very special circumstances, such as
those mentionelin paragraph r7above.
Provisions governing Prospecting
19. Apart from the distinction made in the Ordinance,with regard to
the area in respect of which a prospecting licence or special pemt may
be issued to a memberof a particular group, there isno difierencebetween
the rights of the White inhabitants and the non-White inhabitants of the
Territory in respect of prospecting, the pegging of claims or the con-
ducting of mining operations.
20. Licences for prospecting within the Police Zone are issued by the
Inspecter of Mines 2, and remain valid for a period not exceeding 12
' Ovd.No. 26 of1954 (S.W.A.). op.cil.sec.61 (11p. 817.
' Ibid..sec.zr(1).p. 781.52 SOUTH WEST AFRICA
months '.The fee payable for such a licenceis an amount of fiveshillings
for each month for which the licence is granted 2.
zr. In order to snfeguard the rights of the owners or occupien of
land on which prospecting is carried on, the Ordinance provides that no
prospecting licence shnll be issiied until the applicant has made a cash
deposit or given a bank yarantee to the lnspector of Mines for an
amount of not less than L50 (R~oo)"as a guarantee for the restoration
to a safe condition of the surface of any property which may be rendered
unsafe by prospecting or development operations carried out by the
prospector or in his name" 3.
In esceotional circumstances tlie Insoector mav. in his discretion.
require a higher amount to be dePosite&or guarûi;teed, but in practice
this rarelv Iiappens iri the case of individual prospectors. In the case of
companiés w&ih intend to prospect on an-exténsive scale, however,
a deposit orguarnntec in a higher amount is often required.
22. It is the duty of every liolder of a prospecting licence to maintain
his workings in a snfc condition, and to repair or make safe, to the satis-
faction of the Inspector, any land which has becn rendered unsafe by
prospecting or development operations '.If tlie licence holder complies
with this obligation to the satisfaction of the lnspector, he is entitled
to a refund of the amount deposited by Iiim ? If, however. he fails so to
comply, the lnspector of Mines niay utilize the amount deposited or
guaranteed in order to repair an? surface damage resiilting from the
prospecting operations 6.
23. The Ordinance also provides that no prospector shall remove
from the site of his prospecting operations any minerals recovered by
him in the course of sucli operations, or dispose of sucli minerals, withoiit
the written permission of the Inspector '. A mine owner maynot dispose
of anv minerals recovcred bv him durine his minine oocrntions exceut
\vit11ihc \\~ittzn pcrini+sioii of the lnspe~tor
These provisioiisserve to ke<:prlie Miiie.;I)i\,ijioii iiilormcd of ininerals
recovered in prospecting and mining operations. and are necessary to
regulate the disposa1of minerals recovered in srich operations.
zq. For the proper administration of activities in the mining industry.
section 105 of the Ordinance empowers the Administrator to make
regulations-in respect of tlie f0llo\n6~ matters:
"(a) the pegging of claims;
(b) the survey of iiiining areas and any mntter appertaining to
the sumeying, charting and registration of mining areas;
(c) prospecting and mining in native reserves, after consultation
with the Minister 9;
' Otd. No. TGof 19.54(S.W.A.). op.cil..sec.21 (3).p. 781.
Ibid., sec2, (4), p. 78%.
Ibid.. sec. zi (5p. 781.
' Ibid., sec32 (1).p. 79i
' Ibid., sec. 36. p. 793.
' Ibid.. sec. 3(1).p. 793.
* Ibid.. sec. q(2).p. 797.
As amended by 0rd. No. 4 of 1955. In terms of seci thereof. "Minister" nieanr
Minister of Native Affairs-now designated the hlinister of Bantu Adniinistration
and Development. COUNTER-MEMORIAL OF SOUTH AFRICA 53
(d) the protection and preservation of the surface of mines or works
and of buildings, roads, railways, and other structures and
enclosures on or above the surface of the ground, and the
conditions under which any such buildings, roads, railways,
structures and enclosures may be undermined;
(e) the making and keepinh,of mine plans and the depositing of
copies with the Mines ivision;
(1) the making of statistical and other reports relating to mines,
works and machiuery ;
(g) the duties and responsibilities of owners, managers, overseers,
and other persons engaged in or about mines. works and
machinery :
(h) the storage,receipt, distribution,transport and use of explosives
in mines;
(i) the manner of holding inquiries at or in connection with any
mine or works, the procedure to be followedat any such inquiry
and the mode of securing ilie attendance of witnesses thereat;
(j) the provision of ambulances and medical aid in case of accident;
(k) the conditions upon which machinery may be erected or used;
(1) the fees which shall be payable for any inspection uuder this
Ordinance ;
(4 prohibition or restrictions in relation to the making or use of
roads or railways or other travelling ways over, or the erection
or use of buildings or other objects on areas which have been
undermined;
(n) the safety and health ofpersons employed in or about mines and
works, and generally ofpersons, property and public traffic:
O) the procedure to be followed in connection with trials by an
( inspecter under this Ordinance;
($1 the grant, cancellation and suspension of certificates of compe-
tency to-
(1) mine managers,
2) mine overseers,
3) mine surveyors.
\,, ~ ~ ~ ~ ~l eneineers.
f,) engine diivers:
6) miners antitled to blast,
7) such other classesofpersons employed in, at or about mines,
works and machinery as the Administrator may from time
to time deem it expedient to require to he in possession of
certificates of competency;
(q) the fees to be payable by persons applying for any of the
certificatesmentioned in paragraph (p) or on their admission to
an examination for any such certificate;
(Y) thelimitingof thedaysand hours ofworkupon any mineor works;
(s) the conditions goveming the grant of paid leave of absence by
owners of mines or works to their employees or to various
categories of their employees:
(1) and generally for ensuring the proper working and management SOUTH WEST AFRlCA
of allmines, works and machine and for better canying out
the objects and purposes of this %fiance l."
SpecialProvisions regarding Prospecting for and Mining of Certain
Minerals
25. By reason of the paramount importace of diamond mining as a
source of ~ublic revenue, and of s~ecial conditions surroundins the
mining andmarketing of diamonds, i6was considered expedient toÏnake
special legislative provision for this section of the mining industry in
South WGt Africa..
26. The regulation and control of the mining and marketing of
diamonds present extremely complex problems. In the course of its
experience in South Africa Respondent has evolved a system of control
whjch is generally recognized throughout the world as being both wise
and effective. desiened to Dromote the short and lone-term economic
interests of the country and& people. -
The Diamond Indnstry Protection Proclamation. 1939 2,as amended,
which regulates and controls the development and protection of the
diamond industry in South West Africa, is based on the knowledge and
experience gained by Respondent in this sphere in South Afnca.
i7 T.he istablishment~in terms of tlii; proclnmation of 2 Diamond
Board for South West Africacontributes towards the orderlv marketina -
of diamonds.
The Board is a body corporate and represents the Administrator and
the producers in the industry.
In addition to advisine the Administrator on al1auestions relatine to
the diamond indujtry. tt;;l%oard,rniernlin, supervis& the carrying cÜt of
interproducers' and sales agreements and a11sales of diamonds: arranges
the allocation of ouotas of diarnonds for sale: attends to tlie recei~t.
v~luation, transpo;t. insurance and assortmenofdiamond;, and delivëry
to purchasers of diamonds jold: collects and re~eivesfrom purctiacers the
recordsofsales and the monevs due tbereunder. and arra-eës the distribu-
tion thereof'.
MINERALU SSED IN THE PRODUCTIO NF ATOMIC ENERGY
28. Respondent has alsodeemed it expedient. in the public intrreît. to
enact sprcial measures for the control of prospecting for, and mining of.
certain minrrnls employed in the Droduction and iise of ntomic rner..
and radio-active isoiopës.
The Atomic Energy Act, No. 35 of 1948, has therefore been made
applicable also to South\Vat Afnca. In terms of the said Act, the right
to prospect for,or to mine, certain minerals. such as uranium and thorium,
' Ord.No. 4 of rg55sec.105(1).pp. 849-853.
Proc.No. 17ofrgj(S.W.A.).inThaLairir ofstAfrhcn (rg3g). pp. 168-198.
' Ibid.sec3 (I)p. 170.
' Ibid.. sec. 4. pp. rp-174. COUNTBR-MEMORIALOF SOUTHAFRICA 55
is vested in theState '.Prospecting for. and mining of, such minerais are
prohibited except upon authonty of the Minister of Mines =.
The Act also provides for the establishment of an Atomic Energy
Board. Tlie ~oarciisempowercd to undertake prospeeting for.and minig
of, the minerals ïforestated.to process the saine, and generally to dispose
thereof or to deal tlierewth. and to advise the Minister on any matter
which he may refer to the ~oard.
Employment witbi Mnining Enterprises
29. 'l'lieUining Kegulatioiis, proinulgated in Government Notice No.
33 of 1956.provide that in the case of a mine or works owncd by a Euro-
pean, persoiis employed in the foliowingposts shall be Europeans:
(a) the manager ';
(b) every assistant, sectional or underground manager 4;
(c) the mine overseer 5;
(d J the shift boss:
jej the ganger7; .
(f) the engineer
(g) the person in charge of boilers. engines andother machiner]?
(h) the surveyor 'O.
30. The reasons underlying the above provisions flow from,the tradi-
tional relationship between the European and Native population groups
of the Temtory. In the history of the Temtory there has at all times
been social separation between these groups, and experience has shoyn
that members of each group prefer to associate with members of their
own group, and tliat certain kinds of contact between members of these
groups tend to create friction. These factors are accentuated by the fact
that the members of the European group have traditionally occu ied a
position of pardianship in respect of the indigenous groups, and,t at in
the economic field the relationship between Europeans and Natives has
generally been limited to that of employers and employees. In this factud
situation, most Europeans would refuse to serve in positions wheo
Natives might be placed in authority over them. Although very few, if
any,Natives in theTemitory would at present be able to hold any of the
posts mentioned in the aforegoing paragraph, Respondent was neverthe-
less obliged to take cognizance of the factual situation. and, for the con-
siderations aforestated. to adopt ,measUreswhich would prevent Natives
employed in European-owned mining enterprises from being appointed
to technical and responsible posts in which they would exercise authonty
over European CO-employees.
.4ctNo. 35of1948, sec.z. inThe Lowsof South WestAfrico(19~8) p.20.
Ibid., sec.(i)p. zo.
3 G.N.No. 33of1956. Reg. 55 (1)(a).inThe LnuisofSouth Wcrl Atrica (1956).
P. 541.
' Ibid.. Reg. 56(4.. 543.
' Ibid.. Reg. 58(3.. 549.
Ibid.. Reg. 59(3). P. 551.
' lbid., Reg. 64(3.. 557.
' Ibid., Reg. 64 (4)and (PP. 557-558.
'O Ibid.. Reg. 6(2)p.56r56 SOUTH WEST AFRICA
The ~rovisions constitute one of the "unoo~ular control methods" 1
whicli are considercd desirable in the phase if iransition from guardian-
shi~to separate self-realization, and whch are destined to faiawau when
de;elopments in the latter respect remove the reason for them. A major
and harmful degree of tension and friction could result from situations
in which European employees in the mining industry could be placed by
tlieir employersbefore the choiceofeitherservingunderthe authority of a
Native or relinquishing their employment. The provisions are therefore
designed to contribute to good group relations and to the smooth evolu-
tion towards separate self-reaiization for Natives in homelands of their
-wn...
31. Thc contrary position. VIL.,Europeans being employed in positioii;
of autliorit) over Sative CO-cniployeesin Native inining enterprises. lias
iiot called for similar lenislativc uroi~isio~is.~s statcd below. the Sativcj
in the Territory Iiavs n8t de\,eloied to the stage \vIicrcthe). coiiduct tlieir
o\rn miningciitcrllriscs: and. in an). event. Kespondcrit believes tliat even
when such-entedses have been established. Native entremeneurs will.
by renson of a kickof the necessary qualificntions and expérienceon the
part of Natives in tlit mining industry, have to rely on European techni-
cal and higher qualified staff for sométime tu corné.
\Vhen Native enterprises are cstablished :ind ~)rotectionis required for
Sativeeml>loyces insac11i!nteq>risrs.proper legislative incasures can and
will be taken; .
32. The present role of the Native in the mining industry is. however.
not confined to that of unskilied labourers. Many of them are trained
to perform, and do perform. skilled work in the mines. Such worke~
include:
operators ofboiler plants, locomotive engines andstationary engines;
excavator and earthmoving machine operators;
power station artisans;
lorry drivers:
hostel supervisors:
hospital assistants:
dressers, supervisors and men cooks;
artisans on the screen and recovery plants in the diamond industry;
blasters.
33. The mining regulations contain no restrictions with regard to the
posts which may be held by Natives in Native mining enterprises.
However. despite the fact that prospecting and mining in the Native
reserves have to al1 intents and purposes been reserved to them, the
Native population of the Temtory have thus far generally shown a lack
of interest in mining activities. This isprobably only natural when regard
is had to their background and traditional subsistence economy. It is for
this reason that the Mines, Works and Minerals Ordinance has left a
discretion to the Administrator in certain exceptional circumstances to
allow Europeans to prospect in Native reserves 2.As has been pointed
out. however, this discretion wiltbe exercised only in circumstanceswhere
the general welfare of the Temtory so demands 2.With regard to the
promotion of the interests of the Native groups in, interdia, the mining
' Vide Book IV. Chap. VII. para.17, supvn.
Vida para. 17supra. COUNTER-MEMORIALOF SOUTH AFRICA 57
industry, Respondent refen to what has already been stated generally
~elat~ve to the ~reference. encouragement and ~rotection consistently
givcn to rnernbek of the çaid gr~~pj in their owi areas. In tliis
attention is drawn to the fact that the Commission appointed to invejti-
'-.e the condition of tlie inliabitants of South West Africa. and par-
tlcularly the non-White inhabitants, and to make recommendatioCs in
respect of their further advancement 2,has been specidy directed, inter
aliat, o consider how further provision should be made for the develop-
ment of mining in the Native areas.
It is hoped that the Natives will in time show increased interest in the
mining industry, and establish mining enterprises which wiUaccommo-
date~s-ch Natives as asoire to the technical and higher-oostsAin the
industry.
34. The present position ofthe Natives in the mining industry in South
West Africa. it may be pointed out, is very much the same as that found
elsewhere in Africa.
Thus it has been stated:
"The African population is involved in mining mainly as a reser-
voir of semi-skiUed and unskied labour, complementing pre-
dominantly Non-African managerial, supervising and technical
manpower. Mining provides fuli-time employment throughout
Africa for about one million persons, of whom go per cent. or more
are Africans
Respondent's Reply to Appücants' Aiiegations (Memonals)
35. Itis admitted that the mining industry plays an important role in
the economy of South West Africa. Not only does the Administration
derive considerable revenue from the industry. but the industry also
offersemployment opportunities to a number of people in the Territory
Although a variety of minerals have been discovered in the Territoy,
at present 96 percent. of the value of the total mining output 1sin dia-
monds, lead, copper and zinc 6.
36. The aliegations in this paragraph are admitted. The fact thatso
few companies control a relatively large share of the mining poduction
is ascribable to the nature of the mineral deposits in the Temtory ,ad
to the high cost of exploitation, which necessitate large-scale operations
and substantial capital investments 7.
Vidc Book IV. Chap. VII. paras. 33-34. supra.
IW.. para. 35.
' U.N. Doc. EICN.rqlz8. p. 61.
' 1,o. tw.
vide p&a. io.supra.
Vidc Baok III. Chap. 1,para. 3s.
' Vide para.9. supra.58 SOUTH WEST AFRICA
37. Respondent admits that the right of mining for, and disposing of,
precious and base minerals in South West Africa is. in terms of Ordinance
No. 26 of 1954 v,ested in the Administration 2. prospecting for minerals
is regulated and controlied by the Administration '.
38 A similar system W& in operation in the Territoiy before the
assumption of the Mandate* and, not only had vested mining rights
accrued under the sai-~~vstem ri oto~the~assum~tion of the Mandate.
but the system as such ~ppear~d from an adminiitr:~ti<e point of vicw
ta be soiind and to afiord the best method of rcgulating and controlling
the exoloitation of the mineral resources of the Territor\, '. 'l'liesvstem
was a&ordingly retained and stiil operates under 0rdir;ance ~o.'z6 of
7954.
l'lie Administrator. acting as Respondent's reprcsentati\.e. controls
the mining industry through the hlines Division. wliicli lins on its staff
technisnlly qunlificd and experienccd oficials '.
39. ~be $nciple of vesting minerai rights in the govemment of a
country, so as to aliow itto control all aspects of the exploitation of the
country's mineral weaith for the benefit of al1 the inhabitants, is not
peculiar to South West Africa, but isalsoapplied in many other countries.
In this respect Hailey says the foilowing with regard to the position
in certain African Territones:
(a) The BelgianCongo.
'... concessionsfor prospecting or the extraction of minerals [in the
Belgian Congo]can be obtained only from the State,and its practice
has been to retain a substantial holding in the share capital of the
companies to which it has granted concessions '".
(ù) The FoymetMandatai Territory Ruanda-Urundi.
"In Ruanda Urundi mineral rights are also reserved to theState6."
(c) Polluguess Tmit&cs in Afn'ca.
"In the Portuguese temtories rights to minerais are reserved to
the State." The State in its discretion, grants prospectingconcessions
to individnals or companies 6.
,,) ~ ~~ ~a.
"In Liberia thegovernment reserves to itself the solenght to grant
prospecting and otlier concessions 6."
(e) certain O& AfricanTcrritories.
In Basutoland. Kenya, Uganda, Tanganyika and Nigeria the
mineral rights vest in the govemments of the temtories concerned,
and they control aiiprospecting for and exploitation of these
minerals '.
l Vide para.13.nsupro.
Vide para.14, rupva.
' Vi& para. 12. suen.
' Lord HaileyA .n Afvicon Survey: Revised 1956,p.1514.
Ibid.. p.1523.
zbid.. pp2520-1522. COUNTER-MEMOR IAFSOUTH MAFRlCA 59
AO. As wiii auuear from naraeranhs 15 to 18above. the Auul..ants'
a11;~ationsint&; paragraph'areioi quitecorrect.
Within the area of the Police Zone, excluding the Sative resenpesand
the Rehoboth Gebiet.licences to nr. .ect fo<minerals mav be issued
only to Europeans and companies.
In a Native reserve in the Police Zone no person, other tban a Native
lawfully resident therein, may prospect or mine unless he is the holder
of a special permit issued on tbe instructions of the Administrator.
41. Although the possibility exists that aspecial permit rnay begranted
to a European to prospect in a Native reserve. the policy is not to gant
such a permit sace under very special circumstances T.
In the area outside the Police Zone, no person-White or non-White-
may prospect or mine, uniess he is the holder of a special permit issued
on the instructions of the Administrator under such conditions or cir-
cumstances as he may direct 3.
42. The effect of the provisions of Ordinance No. 26 of ~954is that,
in so far as is practicable, priority rights in the mining industy are
created for the different population groups in separate areas IIIthe
Tercitom.
The ~;item m, however. not be a rigid one, in that due regard must
be had to the fact that the Native population hasas yet not acquired the
exuerience. and eenerallv does not& bet have the iniiiative orthe means,
to'undertake $ospect;ng and minhg operations, which, for reasons
aiready stated +.must usnaliy be on a lar~-scale to render them profit-
able.
To meet the eventuality of there being mineral deposits in a reserve
which can be exploited forthe benefit of the Temtory, but which would
otherwise remain unexploited, by reason of lack of enterprise or funds
on the part of the inhabitants of such reserve, the Ordinance makes
provision for prospecting and mining in the Native reserves also by
Europeans acting under special permission 2.
43. Respondent has dealt with the provisions of Ordinance NO.26of
1954referred to in this paragraph 6.
The said provisions are necessary, interdia. to safeguard the rights of
owners and occupiers of land against surface damage to such land., or
against the creation thereon of unsafeconditions asaresult ofprospecting
o~erations.
'In the interests of the community. prospecting and mining cannot be
pennitted without such protective measures.
M. The provisions of ibe Ordinance which prohibit the removg by a
'1, pp.Ilg-120.
Vide para.17, suplo.
' Vide para18,supra.
' Vida para9,rupro.
'1, p.120.
Vida paras19-23.swpra.60 SOUTH WEST AFRICA
prospector of minerals recovered in prospecting operations without the
permission of the Inspecter of Mines. and similar provisions pertaining
to minerals recovered in mining operations,exist fortheproper regulation
of the disposal of such minerals in the interests of the industry and the
State '.
45. It is correcas Applicants state, that the Ordinance empowers the
Administrator to make reeulations "in resoect of or in connection with
an extensive variety of mauttersenumerated in Section 105 .. .zV.
Aswillappear from paramaph 24 above, the matters enumerated in the
section areiilconcernedwith the ~Ïooer reeulation ofthe mininirindustw.
The section authorizes regulatio;s tÔbe made for the control of methods
of prospecting and rnining; for the protection of the safety and healtti of
nersons emnloved in the indu<trv: for ttieir conditions of em~lovment:
)or the prokct~on and pfeservati6" of the surface ol mines. w&k< build:
incs, roads. railways, etc., and ~encrally for ensuring t. .proper work-np.
and management of al1mines.
46. Such regulations are necessary to ensure order, good management
and control, in the interests not only of the industry as such and of the
persons engaged therein. but also of those members of the community
who may be affected thereby, and of theState.
47. OrdinanceNo. 4of1955 amended section 105 of Ordinance No. 26
of 1954so as to provide that the Administrator may make regulations in
consultation with the Minister of Bantu Administration and Develop-r
ment. This provision was a necessary corollary to the change brought
about by the South West Africa Native Affairs Administration Act
No. 56of 1954).intermsof which the administration of Native Affairsin
&outh West Africa was transferred to the Minister of Bantu adminis-
tration and Development 3.
been dealt with above 5.It has been shown that mod reasons exist for the
specificmeasures. which are intended to controïthe prospecting for. and
thernininganddisposal of. diamondsandminerak or materials employed
in theproauction and use of atomic energy
49. The rovisions of the Diamond Industry Protection Proclamation
of 1g39,an iofthe Atomic Energy Act of 1948,and the Boards established
in terms of the said Acts, operate and functionnot only in the int,erests
of the sections of the mining industry affected thereby, but also in the
interests of the whole community and of the State.
' Vide para23, supro.
= 1, p120
' 5ipp.,20-'Z..I. sec. C. Chap.VII. infra.
' Vida paras25-28. COUNTEH-MEMORIAL OF SOUTH AFHICA 61
50. In this paragraph Applicants allege, with reference to what they
state in paragraphs 37 to ++of Chapter V of the Memorials,that there is
a "pattem of systematic discrimination against 'Natives' ... in the
min;ingindustryi'.
Respondent deniesthat thelaws andregulations applicable to themining
industry justify the conclusion that there 1s a "pattern of systematic
discrimination airainst 'Natives' ".
In al1 the lnws and regulations rnentioned by Applic.ants tliere is.
except iithe respects to he mentioned hereinnfter, no distinction whatso-
ever-between Natives and Europeans.
51. The measures of control and regulation to which the Applic~ts
refer, apply to au sections of the community and make no distinction
between persons on the ground of race or colour.
Ordinance No. 26 of 1954does draw a distinction between Natives and
Europeans with regard to the areas in which they may respectively pros-
pect and mine. As has been explained, however. good reasons exist for
such distinction Z,and the provisions in question are not intended to, and
donot, discriminate against Natives in the sense in which that expression
is used in the Memorials.
52. Applicants Sayfurther:
"While under the applicable law thire is a technical possibigty
that prospecting by Natives may take place within the Native
reserves. the technical possibility can hardly be realized. The
numerous conditions prescribed, including particulady the financial
conditions and requirements. taken together with the unfettered
discretion of the Administrator and the several special Boards,
pemiit and indeed r,,quirean infercnce ttiar forall pr;iitical purposes.
'Satives' are barred from an). sucl. iictivity l."
Respondent says that the charge in this respect is without foundation.
As has alreadv been ex~iained 3. the conditions orescribed in Ordinance
No. 26 of 1~5 and othêrrelevant legislation, e&st for the proper regu-
lation and control of the mining industry, and it would be impossible to
have such controlwithout the Ürovisionsin question,
53. Applicants' suggestion thatthe said provisions mvst he seenaspart
of a "pattem of systematic discrimination against 'Natives' " is entirely
unfounded.
It isof course tme that, in terms ofthe said measures, persons who wish
to engage in prospecting and miningoperations mnst comply with certain
requirements. and are rendered suhject to certain obligations, but that 1s
so for everybody engaged in the industry, irrespective of the 5oup to
which he belongs.
54. Prospecting licences have been issued to Natives for prospecting
in their reserves. and in the Rehoboth Gebietfive residents have he!d
prospecting licences for some considerable time and hold claims wthin
the area. That there are at present fewNatives engaged in mining opera-
' 1.p. 121.
* Vide paras. i5-!S. rupro.
Vidaparas. 19-28r,upo. 62 SOUTH WEST AFRLCA
tions, is to be ascribcd to the fact tastyet few Natives have the neces-
sary knowledge. expericnce or the substantial means required for such
operatioris.
55. In Respondcnt's suùmission it is ludicrous io suggesas Applicantg
seem to do, that iiiore Natives would be drawn into the industry aq
entrepreneurs mcrely by doing away with, or relaxing, the legislative
mesures designed for protection and control of the industry.
56. Applicants refer to the mining regulationspromulgated in Govew
ment Notice No. 33of 1956 ,nd state: "It is plain that the role of the
Native is confined to that of unskilled Iüborer '."Again Respondeqt
denies the Applicants' charge.
in the reserves, there is no limitation wliatsoever as to the position which
a Native employee may occupy.
Moreover, in mines and works owned hy Europeans the role of the
Nativc is not confined to that of "unskilled Iaborer". Many Natives
employed on mines perform skilled mid semi-skilled work 2.
. .
58. It is true that in terms of the minine reeulations certain ~osts in'
emplopei. 'l'lieraisuii, for tlie existence of sur11provisions Iiavc nlreadv
been explained '.
It has also heen shown that even if there were no such regulations,
very few, ifany. Natives could at present be considered for appointment
to the higher posts in question. the reason being that as yet the Native%
generally lack the necessary educational qualifications and experience ':
59. Applicants' allegation in this paragraph is thatthe Pneumoconiosis
Act, No. 57 of 1956 , hich is aiieged to be applicable to South Wekt
Africa. defines a miner as a male person of European descent, where*
Natives and Coloured pesons working in mines are classified hy the
statute as labourers.
The said Act has been repealed by the Pneumoconiosis Compensation
Act, No. 64of 1q6z and was, in any event, not applicable to mines in
South West Africa. It was a South African Act, designed to regulate
certain matters conceming the mining industqr in South Africa. Certain
sections of the Act referred to South West Africa, but only in so far as
they affected, inter dia, medical orpost-modem examinations of pesons
SouthutAfrica. There was no ~rovision for a~~lvine the Act to mines in
South West Africa, and the'definitions refêr&dt: hy Applicants were
therefore in no way relevant to mine workers within the Territory. The
' 1, p121.
' vida paraS.30-31.fn.
' vidaPm. 31,SuPa.
' 1.pp.121-122. COUNTER-MEMORIAL OF SOUTH AFRICA 63
same position obtains under the newAct. It isconsequently unriecusary
for Respondent to dealwth the 1956Act or witli the new.4ct of 1962.
60. Ap licants' char es in this paragraph constitute a mere repetition
.of the dgations mafe in paragraphç 37 to 47 of ChapterV of the
Memorials whichhave been dealt with ahove.
Itisaccordingl unnecessarytodeal withthe chargesmadeinparagraph
77.çave to sayd at they are denied.
' 1.p~IJ*ljI.
Y& parasI and3wpa. COUNTER-MEMORIAL OF SOUTH AFRICA 65
population groups in particular industrial enterprises ' and in other
economic spheres Z.
As Similar considerations arise with regard ta Jhe employment of
~ ~~ ~ ~ofthe different nooulation mouos in the Railwavs and Harbours
Administrdtion. it is not necessary ib de%lfuiiy with th; io!:ii here. and
Res~ondcnt will for c~n\~?nienccmtrely restate the basic considerntioris
undêrlyingsuch policies.
6.Throughout South Africa's history there has been social separation
between the memben of the White group and the members of the non-
White groups; the members of each group preferring to associate with
members of their own group, and avoiding contact in spheres where
friction could be created.
By reason of the difference in their stages of general development, the
relationship in the economic fidd between members of the White group
andthe members of the non-Whitegroups has in the past generally been
that of employers and employees. In this factualsituation many Euro-
peans, in al1probabiiity the vat majority, are not,prepared to accept a
relationship in which non-Whites could be in positions of authority over
them.
7. In the adoption of policies regarding the employment of members
of the different population groups in the same enterprises, and also in
the various government departments. Respondent was obliged to take
cognizance of the factual situation described above. This was particularl:7
necessary in view of the ever higher level of development being attained
by members of the non-\Vhite population groups, and of tbeir aspirations
to avenues of employment not formerly sought by them.
The problem that arose was one of finding the best means whereby
members of the non-White groups could enjoy proper opportunities for
advancement in higher spheres of emi>loyment,and thus a proper outlet
for their abilities and qualifications. A laissez faire policy, leaving the
non-Whites to fend for themselves in com~etition with White Dersons.in
an effort at bringing about a cornplcte iategration bctween iVJiitc and
non-\Vhitc in the eianomic spherr, would in Kehinndent's cxperience and
considered oninion have led-to the most deleteSous conseouences for ail
concerned. 6n the one hand there was the danger of estrangement of
members of the White group from fields of employment which required
their services. On the other hand there was the Drosoect that in many
avenues non-Eiiroliraris would finclprogres almoit c6mpletely barredl
tlirough surlerior <lualificarions,al>ilit\ or ~:xpcrienceon tlie p:irt of \Chitt
compStitoÏs or through ~)rejudisialreactionon thc part of <.inployers,or
through ;icombination of these-\r,liereby the!. would incre&iiiigly sr-
perience disillusionnient and frustration. Goodwill and good relations
across group and racial borders. would suffer immeasurably.
8. In the circumstances the only solution was to create, and to en-
courage members of the non-White groups to seek, opportunities of
employment where they could serve their own people and where separ-
ation of em loyment opportunities for the members of the different
groups woulklavoid possible friction and fear of competition.
This policy haç therefore been applied also in the Railways and
Vi& Chap. III. paras29-34,supra.
Vide Bmk VII. Chap. VIII. paras. 20 A..infra.66 SOUTH WEST AFRICA
H;irl)oursAdniinistration. whereever incrz~singopportunitifs in employ-
inçnt IiavcIX.L~a II.d arc bein-. crcatd for the members of the non-White
groups.
Witli the development of separate Iiomelands in South Africa for the
Ibntu people. employ-.nt possibilities for them will accordinalv be - -
acccler<tcdl
In the meantime, however, while in the transitionai star it is neces-
sary ta regulate eniployrnent, with due consideration of t e aspirations
ancl desire for security of al1 the population groups, and to avoid dis-
mption of essential services.
Such a policy. as will be appreciated, involves regulation of a delicate,
intricate and sometimïs unpopular nature, and the actual measures and
practices adopted in this regard require review and revision from time to
timc in the light ofexperience and developmeiits.
9. Inasmucli as the social and economic relationship between the
diffcrent population groups in South West Africa is basically the same as
that whicli pertains in South Africa, the application of a similar policy
in the Territory, with adaptation where necessar ,1sonly natural.
For reasons stated elsewhere in tliis ~ounter-dmorial 1,it is expected,
howcver, that progrcss in the separate development of the Native groups
in Soutli West Africüwillbe slowerthan in Soutli Africa.
IO. It is ;ig:tii~stIlit:;ilio\.ct~ackgroundtliat Kespon(1ent'spolicieswith
rcgiir~ltu the eniployment of members of the difierrnt population groups
in the I<;iil<\.;ansd H;irboiirs Admiiiistration must be viewd.
Respondent's Reply to Applieants' Allegations (Mernoriais)
II. Applicants' allegation that
"AUgraded posts in the Kailways and Harbors Administration are
reserved ta 'Europeaiis', sub'ect to temporary exceptions which are
made when n shortage of 'duropean' employees in so acute as to
make it necessary to relax the bar.",
is made in the light of a statement by the Minister of Transport in the
Soutli African House of Assembly in March 1956 3.
The hlinister, in the part of his speech here in issue, was replying to a
member who had "advocated the promotion of non-Europeans to ail
ment policy." on the railways 4. and he said that that was not gove-n-
He pointedout that certain posts. termed "graded posts", were "tra-
that the~non-Ewopeins then occupying such posts were doing so on as, and
temoorarv basis.
12. \\'hile iis truc t1i;ial1"graded posts" on the railways are reserved
to Eurolk'a1is.it is not corrrct. as Applicants Say, that Respondent has
"coiiniied the participatioil of the 'Sative' population . ..[inemployment
Vide Book IV, Chap. VIL paras. 34 5.. supra.
1,p. rzz.
Ibid.. Col2x35.. Deb.. Housa O/Assrmbly. Vol.go (1956). 619. 2133-213% COUNTER-MEMORIAL OF SOUTH AFRICA 67
on the railways], for al1 practical purposes. to the role of unskilled
laborer" 1. The term "graded post" is one which is used in the Railway
Administration to denote any post held by a Europeari, other than that
of ordinary railworker (labourer), for which provision is mnde in the pay
schedules published in conjunction with railway staff regulations. The
term has no significance outside this context.
The Minister did not Say that non-Europeans were, or would be.
limited only to unskiUed work. He stated that where they occupied posts
of a rank higher than that of an ordinary railworker (labourer), they
were doing so in circurnstances where they served their own people, and
he referred to instances where they in fact held such positions. Such
positions. it should be pointed out, are not called "graded posts", even
where they involve the same duties as those performed by Europeans in
"graded posts". In the case of non-European employees the corres-
ponding narne usually ernployed is "better class work positions". ln rggr,
it may be pointed out, there were 116 such "better class work positions",
and in 1961, 134 (with 6,706 incurnbents).
13. In the course of the debate in Parliament an opposition member,
referring to the stated policy of the Administration "to aUow non-
Euro eans to serve their own people in graded positions as far as pos-
sible$'. said that it must be the logical policy also to employ Natives
on trains for Natives 3.
It was in reply to this suggestion that the Minister made the statement
quoted by Applicants ', and which is repeated here for convenience,
viz.,
"We only employ Natives to serve their own people where it is
~racticable. and where it is acce~tabie to the rest of the staff. But it
;vil1certainly not be acceptable Cothc staff or the public t1i;iSalives
shoulJ beemployed. everioii S;iti\.e trains. ai fireiiien,conductors, or
vuards. Ttintij not mv d .icv.-.iid it willnot hln..n."
14. From the above statement it is clear that the Minister confirmed
that the policy was to employ Natives to serve their own people, but
that he emphasized that it would be applied only where it was "practi-
cable", and where it was "acceptable to the rest of the staff".
The Minister explained that the employment of Natives on Native
trains, as firemen, conductors and guards. would not be "acceptable
to the staff or the public".
The Minister's explanation must be viewed in the Iight of the con-
siderations mentioned in paragraphs 5 to Io above. Uisplacement of
European employees in graded posts hy Native employees, on Native
trains. would, as the Minister saw it, and as matters then stood. have
caused grave dissatisfaction amongst European employees and the
public. This was the more so inaçrnuch as even trains carrying only
Natives did not onerate senaratelv from the rest of the service in the
sense of being locaied in a dlfferentarea.
Since the Minister spoke in 1956, separate development of the Native
population groups has advanced at an increased tempo, and ever in-
' 1,para. 77 (4).P. 131.
U. 01 S.A..Parl. Dcb., HourcO/ Arrenbly. Vol.go (1956). Col.2i6r.
Il>id.,Col2182.
' 1,para. 48.p. rzz.68 SOIJTH WEST AFKICA
creasing opportunities of performing "better class work" on the railways
are beiiig oflcred ta Native employecs. Sa, for example, they are now
employed in clerical positions (in ticket offices)and in operative positions
on a much 1;irgerscale than before.
As the Natives become better qualified, educationally and technically,
they will bc ablc to perform more and more services for themselves,
and it is lioped tliat they will cventunlly be able ta occupy the highest
posts in their own areas.
15. In South West Africa the position is generally that the Native
population has not yet reached the same level of development as the
iiaiitu popiilatioii in South Africa. The work performed by them on the
railwav,~and in the harbours is larce.. ,f an unskilled kind. ~~.ne to..he
fnct tliat tlieir~L.IIC.~ sriIte of iid\.nn~cinrnt ducs iiot. nt th(. prescnt
stngl:, gencr.illy qualily thern lor posts ofn skillcd. or scmi-skillcd. kind.
Proercss lias nci~ertheless bcen made. ;in(l th,: followinil i~ositions.
invzlving the perlormance of wliat is known as "better sais work";
are open to them: boiler attendant. boss boy (overseer),cook, campman,
messeneer. statiori or ter.bertliinr: and shore hand. eneine attendant
(1ocomgti;e under ;team)', stoker jharboitr craft), pumper, police and
commissionaire (at stations, or as assistants to Europcan wards or
examiners on trains)
The practice is to add to such positions from time to time when pre-
scribed standards can be met by a sufficient number of candidates.
16. The cstrnct from the report of the Permarient &fandates Com-
mission on South West Africa to which Applicants refer, does not pre-
sent a full and accurate acconnt.
The only discussioii of the matter before the Commission is recorded
at .aac 106 of the Minutes 2 as follows:
"Zlr. Griiiisli;~w,turiiiiig to thc question of white workcrs. askcd
wlierher the Colo~ir-barAct ivas3ppli~vlln Soiitti \Vt:sti\frii.i.
r. \Verth r<*plii.ttlli;it the A~liiiiiiistratiori applied tlie Act to ils
own,workers who were employed on responsible-jobs, such as motor-
driving and. he thought, on the railways."
This brief discussion foiiowed shortlv after the Chainnan of the
Commission had "requested al1member; in view of the lateness of the
hour, to make their questions and observations as brief as possible" '.
17. After the report of tlie Commission had been drafted, the Com-
mission having adjourned on 13 November 1928, MT. Werth, the ac-
crcdited representative for South Africa, wrote a letter dated 19 Nov-
emher 1928 ta the Commission in the following ternis:
"1 should like to thank you for kindly submitting ta me, for any
comments 1 may wish to make. an advance copy of the observations
of the Permanent Mandates Commission. Availing myself of the
privilege thiis graciously accorded me. 1 wish to draw attention to
' 1, p.122.
P.M.C.. Min., XIV. p. io6
3 Ibid,, p105. COUNTER-MEMORIAL OF SOUTH AFRICA 69
the Commission'sobservations on the Colour Bar Act (page 8) and
to make the following comments:
When the question about the application of a colour bar in South-
Chairman indicated tome in no mistakable way that the Commission
was sorely pressed for time and that a full statement was not wanted.
1 concludecifrom this that no important principle was involved and
therefore bnefly replied that a colour bar was being observed, but
only with regard to work done by the Administration and the Rail-
way Department. 1 now find that th% brevity has led to a mis-
understanding which 1 feel it my duty to correct.
The tme position is as follows:
The Colour Bar Act of the Union is not in force in South-West
Africa. There is therefore no statutory colour bar. Owing, however.
to the present low state of civilisation among the natives, no native
isat present employed either by the Administration or by the Rail-
way Department on work involving the risk of human life, such as
driving a motor-car or workiiig an engine. A certain colour bar is
therefore being observed in practice, but it is certainly not a statu-
tory enactment and is purely temporary, that is, until such time as
the native is sufficiently advanced to be able to undertake this
responsible work.
1 hope that this explanation willsatisfy the Commission and
remove al1ground forthe observation which it has made on page 8 '."
The matter was not referred to again by the Permanent Mandates
Commission.
18.The Act referred to as the "Colour Bar Act" in the extracts above
was the Mines and Works Act 1911. Amendment Act (Act No. 25 of
1926) It.àid not apply to Railways-Mr. Werth was wrong in thinking
that it àid-and it did not apply to South West Africa.
19.For the reasons aforestated Respondent denies the Applicants'
allegations in paragraph 77 of the Memorials relative to conditions of
employment in the Railways and Harbours Administration.
1 P.M.C., Min.,XIV. p. 278.
' 1.pp. i30.31. CHAPTER V
LABOURRECRUITMENT
Introduetory
I. In paragraphs 50 to 57 of Chapter V of the hfemorials ' the Appli-
cants deal with the subject of labour recruitment in Ovamboland and in
the Okavango territory. Appareutly the Applicants do not object t~o
the recmitment of labour as such. They Say that the "process by which
labor is recruited is of particular interest"Z,and, although it is not spéCI:
fically so stated, it would appear that their complaints in this regard ;llê
those summarized in paragraph 77 (6) of Chapter V Of the Memoiiak,
which reads as follows:
"The Mandatory has sodrastically curtailed and citcumscribei;lthe
possibilities of choice for 'Native' laborers as to leave them, for aU
practical purposes, very little freedom of choice with respect to
place of employment, type of employment, identity or character of
employer, or conditions of employment )."
2. elo o reealing with tlie Applicînts' specihc allejiationsin the para-
graphs relerred to above, liespondent proposes to givc a brief,survzy of
the historv of the recruitment svitem. of its oDerîtion in Dractice. :inilof
its advania@. for Natives who'seek emplosent.
Historyof the Recruiting System
3. Even hefore Respondent açsurned the Mandate, a large part of the
Native labourers employed within the Police Zone came from the
northern areas beyond the borders of the Zone. In 1912, e.g., there were
about 6.600 adult male Natives from these areas iricluded in the total of
approximately 25,000 adult male Natives employed within the Police
Zone'. By 1919there were 10,537 migrant Ovambo workers in the
Police Zone 9
4. Development in the Police Zone after the inception of the Mandate
created an ever bigger demand for labour, and, at the same time, provided
ever-increasing opportuuities of wage employment for the Kative iu-
habitants of the Territory. Such employment has at al1times been keenly
sought by large numbers of the inbabitants of Ovamboland and the
Okavango territory and also by Natives beyond the border of the
T.-~o~v~~3
5. .4t the inception of the Mandate it was decided to restrict the eiitry
of Europeîns into the northern Native areas. and pnvate recruitment
of Sative labourers by European eniploycrs was accordingly not allowed.
1 1.pp. 122-124.
Ibid.. Chap.V. para.51,p. 123.
J Zbid. para. 77(6).p. 131.
* Die deufschcn Schulrgcbicfe in Afvikund dcr Südrcc-rgrsIrgr3.-Amtliche
Jahreçberichte. Sfofirtirch~rTeil. p. 57.
5 Ofliciol Yearbook of fha Union of South Afvica,3,op. 883. COUNTER-YEMOR IFLSOUTH AFRICA 71
Since transportation difficulties and the long distances involved would
have made it impossible for al1 but a few Natives, if left to their own
resources. to obtain work in the Police Zone. the South West African
~dministration itself initially undertook the task of recmiting labour in
the northern areas, and by Proclamation No. II of ~gzz ' no person
or organization was permitted to recruit labour in those areai Save
upon appointment by the .4dministrator.
6. The labourers recruited by the Administration were largely em-
ployed in the diamond mines in the southern, and the copper mines in
the northern parts of the Police Zone, but large numbers of workers
also found employment on European farms and in the urban areas of
that Zone.
7. In 1925 the Administration considered it advisable to allow repre-
sentatives ofthe employersofworkers recruited inthe norihem territories
to take over the recruitment of such labour from the Administration,
and in December 1925 a conference was called by the Administration
of representatives of the two biggest groups of mining companies, viz.,
the diamond mines in the south, and the copper mines in the north, to
discuss the question of recruitment of Native labour. This conference
decided that two recruiting organizations be formed, viz., the Southern
Recruiting Drganization, designed pnmarily to serve the interests of the
diamond mines in the south, and the Northern Recruiting Organiwtion,
designed primarily to serve the interests of the copper mines in the north.
Provision was also made for other large employers of Native labour to
become members of these two organizations 2.
8. These oreanizations did al1recmitment of labour in the northern
arias until~~t w~h.n the South West ~fnca kative Labour Association
(Proprietary) Limited (usually referred to as S.W.A.N.L.A.) \vas formed
to take ove? their func'tions..
S.W.A.N.L.A. was registered with a share capital ofL1g.500(R39,ooo).
the principal shareholders being the Consolidated Diamond Mines of
S.W.A. Limited and the Northern Labour Organization Ltd.
S.\V.A.N.L.A. is run on public utility lines. ArtIIl(a) ofits Articles
of Association provides that the profits of the Company-
"... shallnot be distributid by way of dividend, but a Reserve
Fund shall be established and the Company shall in each year take
from its ~rofits an amount eaual to at least ten Dercent of thenett
profitsin'that year for the +rpose of forming therewith the afore-
said Reserve Fund",
and Article 14thereof provides that on dissolution of the Company-
". . the share capital ... shall be re-paid to thé shareholders . ..
any balance of funds remaining thereafter shall be disposed of by
the Company in the interests of the Territory. due regard being had
to the interests of the Natives in the recruiting areas operated by
the Company '".
g. In 1952 an organization, calied the Society of South West African
'Vid~ sec.19ofProc. Yo. Irof19zz(S.W.A.).inThcLawrofS WoufAlrico
191U.G.222-1927.para.52, p.36.
Arficlrot Asrociofio>i New South Werf Atricn .VafiLabour Associofion
(~ropertary)~titnitcpp.6-7.72 SOUTH \\'EST lFRICA
Farmer-Employers of Contracted Natives. was formed, and this society
was given representation on the board of management of S.W.A.N.L.A.
The Company's name was then changed to New South West Africa
Native Labour Association (Proprietary) Limited-Nuwe S.W.A.N.L.A.
(usually referred to simply as New or Nuwe S.W.A.N.L.A.), and the
manaeement board was increased fromits original two to five me~ ~rs.~ ~ ~ ~
T&O Of these members represent the ~ri~inal~hareholders. and two the
aforementioned Society of Farmer-Employers, whilst the fifth represents
the interests ofthe em~lovers of contrictëd extra-temtorial or iorthem
Natives other than thÔseeengaged in farming or mining '. Pending the
formation of a society of such last-mentioned employers, the fifth
member of the board is appointed by the other four members thereof or,
failing agreement between them. by the Administrator '.
Operaiion of the Recmiting System
IO. New S.W.A.N.L..4.'s recruiting officesin thenorthern areas are at
Ondangua, in Ovamboland, and at Runtu. in the Okavango territory.
Although recruiting tours are undertaken. most Natives are aware of
the existence of the recruiting centres and generally present themselves
there of their own accord. On occasion also. when ~articularlv larae
numl>ersof recruit,arc required. me5sagesto that effeciare sent t6 ctiiJj
and tieadmen. wtio tliercupon inform their people. \'oluntçerj are then
picked up by the recruiting agents or makë their own way to the re-
cruiting centres to seek inclusion in the group to be employed.
II. Prospective employees who present themselves at the recmiting
centres are first cursorily examined by Companyofficiaisand their Native
assistants with a view to eliminatina those- men who are obviouslv
medically unfit and thereafter recruitsare niedically examined to dete;.
mine their physical fitness forthe kinds of employment offered.
12. ~avin~ passed their medical examination, recruits who have
offered themselves, and have been accepted, for employment with large
minine concerns. such as the Consolidated Diamond Minesor the Tsumeb
~or~oration, forthwith enter into contracts with their prospective em-
ployer~,such employers being represented by the recruiting agency. The
terms of their contracts. which are in writina and of standard form. are
cnrelully explained to thr recruits. and. afteÏ they have expressed their
satisfaction therelvirh to the Rantu ~\flairsCommissioncr. or tiisassistnnt.
the officialconcerned attests the agreement.
In the case of other types of work. e.g., in industry, on farms, or as
domestic workers in urban areas. it is practically impossible to specify the
particular employer at the time when the prospective employee is
recmited in the northern areas. In such cases a recruit enter~ ~ ~~~a ~
preliminary agreement witli the recruiting agency to takc up u,ork of an
agreed type. at not lcss than a specified wage. with an employer to be
named at Grootfontein. where the açency's main otfice is situated. 'l'lie
preliminarv agreement i; fully explained to the recruit by the Uantu
Aiïairs Commissioner, or tiis assistant, and if the recruit is dissatisfied
1 Ord. So. 48 of 1952.in The Lnwr of South West Africa 1952, pp. 794-804.
Ibid..sec. 8pp. 800-802. COUNTER-MEMORIAL OF SOUTH AFRICA 73
with the tvoe of work or with the wage offered. he has everv op~ortunitv
of refusini îo rake SUL.w ^ork. At Gr&tfont~i" the recruit 13 iiiormed of
the identity and address ofhis prospective employer. and the terrns of the
proposed contract of service ire fully explahed to him by the Bantu
Affairs Commissioner. or his assistant, who attests the agreement if the
recruit is satisfied therewith.
AUcontracts entered into by recruits are in writing, and, to protect
t~e~int.~es-~-of recruits. the conditions of service svecihed in such
contracts are prescribed by the Administration.
Every effort is made to place recruits in the service of employers of
their choice, it also being in the interests of the recmiting agency to
d. . ...
13.Recruits travel from the recmiting centres to Grootfontein, within
the PoliceZone, by road motor transport. provided by the South African
Railwavs from Ovamboland and bv New S.W.A.N.L.A. itself from
Runtu'over routes equipped with thé necessary rest camps. At Groot-
fontein thev are housed by New S.W.A.N.L.A., and issued with food and
clothing. -
From Grootfontein the recruits proceed to their respective places of
employment. Those goingto the diamond lines in the south are generally
conveyed by air. whereas the others proceed by rail to the station or
railwav halt oearest their lace of em~lovment. where thev are met bv
New <w.A.N.L.A aTent'sor their eApGyers.
Copies of contracts of service 1serve as suficient identification passes
for em~2ov,es in urban areas within the Police Zone 2.
14.The tribal authorities in the northern territories have iosisted
that service contracts entered into with their people should be for a
limited period only, and that on expiration of that period the employee
should return to his tribal area and stay there for at least three months
before seeking re-employment. Employers in the Police Zone have often
requested that an employee's family should be allowed to accompany
him to his place of employment, but the tribal authorities have always
stemly opposed such suggestions. By limiting the period of ernployment
outside the tribal areas, the tribal authorities seek to maintain traditional
ties and tribal relationships and to ensure that the workers do not fail in
their obligation to support their families.
15.Prior to 1949the maximum period of service to which the tribal
authorities would agree was one year, but this ivassubsequentlyextended
to 18months with the consent of the chiefs and headmen in Ovambo-
land and the Okavango territory. At their request. however. the period
was again reduced to one year as from I July 1961. Farm labourers,
however, are allowed to contract for a period of 18months if a higher
wane than the minimum isaereed to.and al1contracts, whether for 12 or
18montlis, niay be extendedup to a niaximuni of two years in the case
of marricd men. and to two aiid a half years in the case of unmarried
men.
The govemmcnt authorities have pror,ided a central regijtry at Groot-
fontein to keep a record of a11recruited workers. and to ensure that the!.
return to their hoinn at the end of their contract periods.
' Vide para.12.supra.
Proç.No. rjjof 1961(S.A.). in TheLaws o/Sourh WesAfrico1961. pp.546-55274 SOUTH WEST AFRlCA
Advantages of the Recruiting System
16. The recruiting system, as described above, has decided advantages
for those Natives of the northern areas who seek to take up employment
in the Police Zone. Briefly put, it provides them, free of charge, with an
avenue through which they can find employment which, if left to their
own resources. comparatively few would be able to obtain. South West
Africa with its low population densit and vast distances presents an
intricate problem in regard to the efKcient distribution of labour. The
few industrial and mining centres, viz., Tsumeb, Walvis Bay, Oranje-
mund and Luderitz, are far removed from the northern temtories,
in the case of Oranjemund. Many farms again are sitnated miles fromes
the nearest urban centres. A laree ~ro~ortion of the men who oresent
theinselves titthe recruiting centres are illiternte and una~(~unint&du*itti
coiidirions outside tticir own areas, and for them the rrcruiting agency.
by making al1 the necessary arrangements for obtaining empiofmerit.
eliminates difficulties which might otherwise prove insuperable. Few of
these work-seekers have the necessary means to travel over longdistances
to, and within, the Police Zone to search for work. Under the existing
system all are assured of employment. and made fuiiy acquainted with
their conditions of service, before they leave their homes, and transport
to their place ofemployment, and back again after their period of service,
is arranged for them.
Respondent's Reply to Applicants' AUegations (Memorlds)
PARACRAP5 H0 OF CHAFTER V
17. In regard to Applicants' allegatiou as to the "chief em Loyersof
labor in the Territory" 2,employment figures for the year rg& rnay be
takeu to illustrate the tme position. Of the 65,998 adult male Natives
employed within the Police Zone in that year, 7,471 (i.e., about rr per
cent.) wereemployedinminesandfactories; 3,582(Le.,about 5.5percent.)
by the Railways and the Administration; and 25,087 (Le..about 38 per
cent.) by farmers. The remaining zg,858-the largest group, viz., about
45 per cent.-were employed by a variety ofemployers within the urban
areas in the Police Zone.
It is correct to Say, as Applicants do, that the "bulk of the labor force
is made up of 'Native' labot" 1, but this is no more than natuyal when
regard is had to the fact that the Natives also constitute the "bulk of
the population of the [email protected], and to the fact that, at their stage of
general development, their contribution to the economy of the Territory
is mainly in the form of unskilled labour. It is incorrect, however. to
say that such Native labour "comes in the main from the Ovamboland
Native Reserve and the Okavapgo Reserve" 3.For instance. of the 65,998
adult male Natives employed in the Police Zone in 1960, 27,771 Ca"
from Ovamboland, and 850 from the Okavango territory-Le.. approxi-
mately 41percent. of the total labour force in the Police Zone '.
'1,pp. IZZ-IZj
Vbid...p.123.
' In that yeara further4.528 Natives came from beyondthe borders of South COUNTER-MEMOR IFLSOUTH AFRICA 75
'8. The A plicants' general allegation, stated to have been previously
"~xplained" q that "tlie 'Native' Iabor force is overwfielmingly an un-
skilled labor force", and that "it is deliberately kept in that statusbythe
law, policy and practice of the Territorial Administration and the Union
Government", is dealt with in Respondent's replies to the specific aUe-
gations made by Applicants in this regard 2.While the Native workers
are, on the whole, not sufficiently qualified or experienced for employ-
ment in skilled occupations, there are, in the case ofthe northern Natives,
additional reasons whv thw donot acouire ereater skiilthan thevactuaiiv
do. Tti~:szrkons lie mainly in the sliortncss of theirpcriod oi contra&
service. IIIth? difliculties \vhicli tliry cxperience in adapting tlicinsel\fes
to forrns of work wtiiclrare strancc to thcm. and in the tedrncv on the
part of &in of them, when they Feturn to the Policezone for a sécondor
furthor period of service, to explore new avenues of employment rather
th?., ta return to their former field of work. These factors naturally
mil4tate against acquiring any considerable degree of skil! in any par-
tic\!iar ocçupation.
ig. Particulars have been given of the number of northem Natives
eppioyed in the Police Zone 3.
The recruiting system in the northem areas has already been de:
â~iibed +.Although Applicants' further allegations in this panrgraph are
suhstantially correct. it is pointed out that recruited labour is employed
on the mines, in industry, on farms, in urban areas, and by the 'Territorial
Administration ).
20. As to the Applicants' allegation that "recruiting agents keep in
regular contact with the chiefs, headmen and sub-headmen within the
'Native' reserves". Respondent does not know whether it is intended to
convey a suggestion that such "contact" is in any way improper. If so,
the suggestion is aenied. It has already been shown that due regard
is had to the :yjshes of the tribal authorities as to the period oitabsence of
their people eom their territories, and that the authorities ca-operate
with the recruiting agents 6.It is obviously in the interests. of al1 con-
cerned that friendly relationships should be maintained tnetween the
recrliitkg agency and the tribal authorities.
21. That recruiting systems elsewhere in Africa also operate with the
CO-opration of tribal authorities, is illustrated by the car: of Liberia.
Re.ding the position in Liberia, W.C. Taylor says:
!'... Firestone soon discovered that, thqugh Liberians might be
attracted to work on the plantations, they often could not leave
West Aftica, giving a total of33,149northerand extra-territoriz~l Natives-i.e..
ap roxirnately 50per cent. ofthe total labour force in the P:Zone.
,;p. ,z3:
! l'ide Chgps. II, III and IV. supra.
' Videap-as.,10-15.supra.
Vide paras. 14-15s.upro.
Vide para.10.supra.76 SOUTH WEST AFRICA
their native villages without the pnor permission of their town. clan,
or tribal chiefs. The chiefs were reluctant to consent because they
did not wish to lose the unpaid labor and other services which each
able-bodied male owed by immemorial tribal custom. Thus, Fire-
stonewasforced to develop asystem ofcompensating the chiefsforlost
labor and services.
At present, eachparamount chiefreceives 15c perman per month
dunng the nce-growing season from January through June. and xoc
per man per month from July through December, or a total of
$1,5o per man per year. In 1 55. the total of such payments to the
chiefswas over Fgo,ooo.In aldition, a regular scaie of nonmonetary
gifts from Firestone to the paramount, clan, and occasionally town
chiefs has also evolved. This 'Paramount Chiefs Assistance Plan'.
as it is called, was developed with the full knowledge and consent
of the Liberian government. and has also been adopted by other
forrign ronipaniCs operntiiig in the country.. .
A Fircstone rccruiting agent makes rcgular trips tlirougli the
trihsl areas negotiating quotas witliand making p:iynients to the
chiefs' "
PARACRAP5 2 OP CHAPTER V
22. Reference hasalreadv been made to the initiai selection of reauits
by officiais of the recmit:ng agency. and of the subsequent medical
examination of recruits '.
It is correct that recruits are "classified according to physical fitnessfor
vanous o<:cupations". as is alleged by Applicants. It is in the interests of
both employers and employees, that the latter should not take up
em~lovmsnt for which they are not physically suitable. and the classi-
fication is intended to servéthat purpose.
Applicants' aliegation regarding the issue of identification passes is
correct, Save that. as stated above ',copies of service contracts serveas
identification passes in urban areas within the Police Zone.
23.The allegations in this paragraph are correct. Save that recmits
who have enteredinto employment with the diamond mines in the south
are generably conveyed by air'.
PARACRAP5 H4 OF CHAPTER V
24. The alleaation that labourers "are urovided to the resuective
employers in acordance with the terms ofcoitracts entered into bitween
showemp3,recnlitsenterintocontractswithis theiremployersat therec~itingen
Taylor, W. C.. The Fireslone Ope-lions in Liberin [Fifth Case Study in an NPA
Sena on United States BusinesPserformance Abroad](~959).p. 67.
' 1.p.123.
' Vidc para.13.supro.
' Vide para.12.supra. COUNTEH-MEMOR OIFLSOUTH AFRICA 77
centres in the northern areas or at Grootfontein in the Police Zone.
New (Nuwe) S.W.A.N.L.A. acts as the representative of employers in
the case of contracts concluded in the northern areas, and is itself party
to contracts only in the case ofreliminary agreements '.
The other allegations in tliis paragraph are correct. Regarding the
allegation that certain bus lares were paid by recruits prior to 1948.
it is pointed out that it was agreed in advance by a recniit! it being a
term of his contract. that such payment would be made hy him through
deduction from his iirst and last months' wages.Asfrom 1948the position
is as stated by Applicants.
25. The allegations in this paragraph are correct. As already pointed
out '. contract periods have been limited at the request of the tribal
authorities in the northern territories who wvkhto preserve traditional
ties and tribal relationships. The retum of the Native worker also ensures
that he observes his obligations towards his family.
PARACRAP5 6 OF CHAPTER V 2
26. This paragraph is admitted. The constitution of the Board of
Management of New S.W.A.N.L.A. is dealt with in paragraph 9.sufra.
PARACRAP5H 7 OF CHAPTER V
27. As pointed out ', representation on the Board of Management
of New (Nume) S.W.A.N.L.A. is regulated hy the provisions of the
Societies ofErnployers ofContracted Natives Ordinance, 1952 5.
As New (Nume) S.W.A.N.L.A. is a ljmited liability company, the
Society of Farmer-Employers 'was required to purchase rg.500 shares
in the company for £19.500 before obtaining representation of two mem-
bers on the Board 6. The Territorial Administration also purchased
9,750 shares for L9,750 to obtain representation of one member oii the
Board of the Company 7,but it was further provided that the Adminis-
trator would delegate his right to norninate the fifth member of the
Board to the other four members, and that he would nominate such
member only in the event of the other memhers failing to do so '.Çuch
member would represent the interests of "employers of contracted
extra-territorial or northern Natives other than those engaged in farming
or mining" '.
28.It was contemplated that such last-mentioned employers would
eventually be united in a society of their own, and that in the meantime,
the Administrator would buy and hold the 9,750shares for and on behalf
of the proposed society. All employers of contracted labour, other than
' 1. p;'Z4.
' Vide paras.14and i5.rupro.
' Vide para. g. ruplo.
'Ord. Sa. 48 of1952 (S.W.,I.), The Law$ of Soulh Werl AtricargS2.p. 794.
Ibid.sec. 6p.8~.
' Ibid.. se8,pp. 800-Roz.78 SOUTH WEST AFRICA
bona fide fariiiers, miniiig coml>anies.and the various departments of
the Territorial Administration or the South African Government, in-
cluding tlie Railways and Harbours Administration, were required to
Dav a surn of Cz to the Receiver of Revenue before or wlien makine an
in&ililapplicat?ionto the coinpany for contracted labour 1.The amoh
so paid would be lield in trust by tlie Administration for the society to be
foÏmed and would conccivablj~go towards payment ofthe 9,750-shares
which tlie Administration would seIl to the new society '. Once this
society is cstablished, it will nominate the hfth representative on the
Board to renresent the interests of emnlove.s ,ther than farmers and
mining coinj,:i~iics.TIic lifrli repreî~:iitnti\.15.iii pr;ictice. nominated
by the orhcr foiirmenibrrs oftiie I5o:ird.witli tlie rcsult that the Adminis-
tration (loesnot actri;ill!~particip.~tirithc rii;iiilih.cmeiitof tlic Cornpan)..
The Applicanti' sllcgntion tkit 'such otlicr t~~i~ploycr:isre required to
p3y t\vo poundj pcr iinniim to tlie i\dniiiiistration' is not correct. An
amount of two pounds is paid by the employer when making an initial
application for contracted labour, and there is no recurrent obligation.
The said amount is not paid to the Administration in recognition of any
representation. nor. in fact. is the Administration represented on the
Board at all. The reason for requiring such payment is as stated above.
PARAGRAP7 H7 (B) OF CH.%PTV ER
29. Rcslnndeiit tlenics the allejiation tliat the systcm ofrectuitment of
labour so curtailj "tlir possil>iliticsof ~.hoicefor 'Native' lnborers as to
leave them. for al1practical purposes, ver). lirtle freedom of choice with
res~ect to place of ërn~lovmént.tv~e of e&~lovment, identitv or charac-
ter'of cinpioycr. or coidiiions of ér;iploymeAt"4.
It is emphasized. in tlie fint place. that the lems of ail contracts are
explained to prospective emploiees, and that no rectuit need enter into
any agreement if he does not wish to do so 5.
Secondly, a rectuit who enters into a final contract at the recmiting
centres in the northern areas is informed, before doing so, of the identity
of his employer, his place of employment, the type of work he will be
required to do. and of al1the conditions of service. A recruit who enters
into a preliminary contract at these centres and then proceeds to Groot-
fontein. isthere fuUyinformed of these particulas beforehe concludes his
final contract
Itis tme that arecruit knot, at the time whenheentersintoacontract.
aware of the "character" of his em~lover. but it is submitted that this
fact hs little, ifany. practical signif;c:ii;ccin tlie casewhere the employer
is a compiiny conducting mining or industrial operations. In otlier
cases. i.e.;where a recruit is emol&ed bv a orivate Gerson.he is in much
the same position as a work-seeker;vho "nteis iiito tiie senrice of a pcncn
whom he sees for tlie first time Employecs. it ma). bc noted. are nt al1
times protected against niisconduct ori tlie part of tlieir employcrs by the
Ord. NO.48 of 1952 (S.W.A.).op. cil., sec. (1)and(3). p.802.
Ibid.. secr3 (2)p. 802.
' Ibid.. sec12.p. 802.
1.p. r3r.
Vide para. 12,sup*a. COUNTER-MEMORIALOF SOUTH AFRICA 79
provisions of the Master and Servants Proclamation 1,and also by the
common lawrelating to contracts of service. It issubmitted. furthemore,
that such minor disaavantages as there may be in individual cases, are
far outweighed by the advantages of the recruiting system generally for
the Native inhabitants of the northem areas 2.
1 Proc.No. 34 of 1920 (S.W.A.). in The Lawr O/ South Wcsf Africo zgr5-r9aa.
PP. Vide para. 16. supra. CHAPTER VI
LABOUR CONDITIONSWITIIIN THE POLICE ZONE
A. Introductory
1. In paragraplis 58 to 76 of Chapter \' of the 3lemorialj 'the r\ppli-
uants refer to a nurnber of statiitory pro\.isions which allcgedlg control
"Thc entirc 'Native' lahor forcewitliin the l'oliceZone'' ' Tliz Applicants
clssify tlirse provisions into t\vo catcgories. viz.. provisions relating to
" 'Sative' Iah(>ras sucli". anclprovisions relating to 'Sativcs generally".
hiit aticctirig "the ond dit ionsof 'Sative' lahor" '.ils regards the latter
rategory. most 01 the pro\,ijions in question arc i11aortfrrred to by
Appliciintj in other parts oftlir \lemorials, and are dealt \vit11II~Resporid-
ent in its replies to such other parts. Rrïpondent irill, therefore. in the
present contaxt mcrely refer. wherc neiessary, to other sections of the
Couritcr-\lt:morial ir,herethe said provisions are de;ilt with.
2. The provisions falling within-the first category are those relating to:
(a) the relationship hetween masters and servants 3;
fb1 leave of absence +:
icj pneumoconiosis compensation 5;
(.). collective barg-inine -nd conciliation
3. In their surnmary of the charges relating to these provisions, the
Applicants state:
(a) that Respondent "has unfairly prohibited and continues to prohibit
'Hatives' €rom taking part in the processes of collective bargaining
and conciliation and arbitration of disputes" ';
(b) that Respondent "has shaped the circumstances and conditions
of labor for the 'Native' population into a pattern of constramt
and compulsion that consistently subordinates the interests of the
'Native' laborers to the interests ai their 'European' employers" ':
(c) that Respondent "has denied to 'Native' laborers equal legislative
protection in the form of provisions for holidays, sick pay. and
compensation in the event of illness or injury caused hy employ-
ment which are made available to 'White' employees" 9.
4. In the paragraphs below, Respondent will first deal with those
provisions referred to by Applicants which directly relate to labour
conditions. They will be dealt with in the order of the matters specified
in paragraph 2 ahove. Thereafter Respondent will deal-in some cases.
' 1.pp.124-130.
Ibid.. para.58.p.rzq.
' Ibid.. paras60-64p .p.iz4-126.
Ibid., paras72and 73.p.128.
' Ibid., para.74.pp. 128-129.
Ibid., paras.75and 76.pp.rzg-130.
Ibid.. para.77 (3).p.130.
Ibid., para.77 (5). p.131.
Ibid.. para.77(7). p. 13,. COUNTER-MEMORIAL OF SOUTH AFRICA 81
merely by reference 1-with those provisions which allegedly affect labour
conditions indirectly.
B. The Reiationship between Mastes and Servants
1. THESCOPE OF THE MASTER AND SERVANTP SROCLAMATIOX
5. In paragraphs 60 ta 63 of Chapter V of the hlemorials reference
is made by the Applicants to some of the provisions of the Master and
Servants Proclamation of 1920 '. By enumerating the circumstances
under which "a 'Native' is made guilty of a criminal offense" in terms of
the Proclamation *; by stating that-
"If any 'Native' employee or apprentice 'ischarged with having
without lawful cause deserted from his mater's senice it shall be
lawfu! for any hlagistrate to issue his warrant for the apprehension
of such servant or apprentice without any previous warningor
summons'
and by alleging that-
"Any 'Xative' lahorer who has been sentcnced to imprisonment
for any of the foregoing offenses must, upon the,completion of his
term of imprisonment 'return to his master immediately .. .'6",
the Applicants create the impression that the relevant provisions of the
Proclamation apply only to Natives. As will be shoivn, this is not the
case, since these provisions are also applicable to White and Coloured
persons.
6. Section z of the Proclamation, as originally enacted. defined
1'Servant" as-
"every person employed for hire. wages or other remuneration to
perform handicraft or other hodily labour in agriculture, manu-
factures, industries or in domestic service oras a boatman, porter or
other occupation of a like nature . . .".
For reasons that willbe set out hereinafter ?, the definitionof "Servant"
was amended in 1923. The only material alteration in the present con-
text was the addition ofthe followingcategory ofemployees:
',
any native employed for hire, wages. or other remuneration on any
description of ivork by or on behalf of-
(1) the Administration of South West Africa;
(2) the Railways and Harbours Administ~ation of the Union of
South Africa;
(3) any Local Authority;
(4) any person engaged under contract in çonstmcting any line of
railway or harbour works
Vide para.1. supro.
*1, pp. 124-126.
3Proc. No. 34 of r920 (S.\V.A.),nThe Lnws ofSouth Wesl Africn 1915-19aa. pp.
336-366.
+ 1,para. 61.p. rz5.
' Ibid., para.62, p. 125.
Ibid.. para.63, p. 125.
' Vidapara. 1I,infra.
*Ploc. No. 19 of 1923 (S.\V.A.)sec.z (b). iTh6Larusof Soulh WerlAfricn 1923.82 SOUTH WEST AFRICA
7. It will be seen tliat basically the Proclamation is applicable to al1
perçons. It isonly in certainspberes ofemployment that the Proclamation
applies to Natives only.
8. In paragraph Goof Chapter V of the Memorials 1 the Applicants
allege that the effccts of the Proclamation must be appraised in con-
junction witli those of Proclamation No. 3 of 1917.The latter Proclama-
tion, which inakes provision for the control and treatment of Natives
employed on mines and works in the Territory, is apparently referred to
only as regards tlie circumstances under which "a 'Native' is made
guilty ofa ceinal offense" Since,bowever, the definition of "Servant"
in the Mastei!and Servants Proclamation includes al1labourers on mines
and works, and since the pend provisions of this Proclamation cover al1
conduct whceh constitutes offences under Proclamation No. 3 of 1917.
it follows tliat White and Coloured labourers on mines and works arein
fact in the same position as Native labouren on mines and works. Pro-
clamation No. 3 of 1917 therefo~e has no practical significance in the
present contest.
II. BACKGROUN 7D THE MASTER AND SERVANTP SROCLAMATION
9. In order to appreciate the necessity for the penal provisions of this
Proclamation, regard must be had to the conditions which existed in
South West Africa at tlie inception of the Mandate and which, to a large
estent, still exist today.
On the wliole the labour classes were poorly educated and had very
little, if any, knowlcdgeof legd principles governing contractual relation-
ships. This was especially tme of the indigenous labour class which had
had very little esperience of employment in a modern economy.
In this regard reference may be made to a statement by Mr. Smit, the
South African representative. dnring the Ninth Sessionof the Permanent
Mandates Commission in 1926,in which he described the attitude of the
Native to regular work in the followingterms:
"He entercd into a contract with an employer. but such a contract
rarelv conveved anvthina to him. and he was liableat anvmoment to
breac it and eith& notuPresen< himself for work or move off and
find a ncwemployer 3."
IO. In sucli circumstances economic growth and orderly development
demanded that workers should be imoressed witli the necessitv of observ-
ing tlieir colitractual obligations towards their employers. ~h;s could not
be attained hy inerely leaving an aggrieved employer to a claim for
damagcs against a defaulting employee. More often than not the labour
classes liad verylittle means, with the result that an ordinary civil action
for damages \vas generally an illusory remedy. The enforcement of
conditions of em~.ov.ent in farolir of em~lovees could likewise not be
Izft >olcl! to civil procesies. sirici.comp;irnii\.>l? few ernployees Iiad the
kri(>ivlcdjior lunds to injtiriitt: legnl procccdings apniiist ciiiplo~ers.
Itw;is consequentlv coiisi<lercdto hc in the intercsts of in:litrrs and
servants and of the geÏneraleconomy ofthe Territory that penal sanctions
1, pp.lZ4-125.
P.M.C., Min.,IX,1p.36. COUNTER-MEblORI AFLSOUTH AFRICA 83
should be provided for certain categories of breach of contract. Such
sanctions, it was believed, would also foster better labour relations by
discouraging both masters and servants £rom taking the law into theu
own hands in the event of misconduct. breaches of contract, etc.
II. Reference has already been made ' to the 1923 amendment of the
Master and Servants Proclamation, bv which the term "Servant" was
given an extended meaning. This amendment was at the time motivated
by the Secretary for South West Africa in the following terms:
"Since the starting of the construction works on the Windhoek-
Gobabis railway considerable difficulty has been experienced with
contractors employed by the Railway Administration who fail to
pay the wages due to their natives and there is no means of dealing
with such cases except hy Civil process which the native labourer is
unable or unwiiiing to initiate. Discontent foilows and the labour
supply is affected. On the other hand no criminal penalty exists for
desertion as a native workine on a railwav does not fall within the
meaning of the illasters and servants Prodamation.
This also has a bad effect on recruiting as natives soon leam that
they can break their contractswith impunity 2."
It is consequently clear that the amendment was not motivated by any
intention of discriminating against Native employees. While the amend-
ment operated for the benefit of employers, it also served the interests of
Native employees in the categorieç mentioned in the amending section
referred to in paragraph 6, suprai. n that their employers were made
subject to the pend provisions of the Proclamation applicable to em-
ployers.
III. THEPENALPROVISION OF TKE PROCLAMATION
rz. In paragraph 61 of Chapter V of the Memorials the Applicants
set out the circumstances under which "a 'Native' is made guilty of a
criminal offense" 3.As has been shown 4.these circumstances, which are
instances of breach of contract. appl!. CO al1 pers0115f:ùling ivitliin the
definition of "servant", and iiot only to Sati\.es.
13. The Applicants fail to refer to any of the circumstances under
which an employer commits an offence under the Proclamation. These
~ ~~~
(a) Withholding the wages of any servant without his consent and
without reasonable and probable cause for believing that such wages
are not due.5
(b) Failure to pay a servant damages sufferedby remn of unlawful
dismissal 5.
(c) Failure to supply, on demand of a servant, the food, clothing,
bedding, lodging orotber articles stipulated for in a written contract
of service 6.
Para. 6,sup~n.
Part1 of File No. A.50135 in the Archives of South West Africa.
' 1,p. 125.
' Su*. paras. 5-7.
"roc. No. 34 ofigzo(S.W.A.),sec.65.in TheLnwsofSouih West AfricargrS-rgz#.
P. 359.
Zbid..sec.68, p. 360.84 SOUTH WEST AFRICA
(d) Withholding a servant's cattle, or other animals, without reasonable
and probable cause for believing that the same are lawfully detained '.
(e) Making a deposition against a servant maliciously, and without
reasonable or probable cause for believiiig the .ame to be true 2.
14. Sliere are other provisions of the Proclamation which also enure
for the bcncfit ol servants. inlev alia, the following:
-
(a) No oral contract of service is binding for a longer period than one
year,aiid no suc11contract is valid unless it is stipulated that the
servan~ ~~-~ commence his~~ervice within one month from the date
of the contract'.
(b) No writteii contract is valid unless it is execnted before a magistrate
or otlier officer, wlio has to satisly himself that the contract was
entered into by tlie servant v~luntaril~, and witli a clear under-
standing of its meaning and effect +.
(c) In al1coiitracts in wliiclr it is stipulated tliat the servant shall reside
on the premises of his master, tlie latter shaU be deemed-in
tlie :ibsence of an express stipulation to the contrary-to have
eneaeed to orovide tlie servant with lodeine andusnfuicient food of
goedUandw6olesome qualit" j.
(d) In the absence of any express pro\.isioii to the contrary, a servant
who is incapacitated by any sickness or accident, not occasioned by
Iiisown fault, isentitled to liisfullwagcsduring the first month ofsuch
iiicapacity '.
(e) A contract of service inay be cancelled by the court. at the instance
of a servant, if an!. charge broright against him by Iiis master fails to
resiilt in a conviction; or if his master is convicted of assaulting him,
or if such contract is iiot faitlifully or fairly performed by the
master '. . .
(1) A servant is entitled to leave Iiis place of service at any time for
the purpose of lodging a coinplaint against his master, if leave for
that purpose is unreasonably refused
(g) If a master is charged with witliholding wages from, or failing to
pay damages to, a servant, and tlie court finds tliat suc11wages or
damages are due, it must give judgment for tlie sum due and,for
costs in favour of the servant, whether or not tlie charge results in a
conviction 9.
(h) II a master is convicted of withliolding his servant's animals, the
court must give judgment in favour of the serl-ant for tlie delivery
of sucli animals and for costs 'O.
(ij If a master appeals against a judgineiit in favour of Iiis servant, the
PIOL. NO, 34 of 1920 (S.W.A.), sec. 67, in Tlm Lovs of SouIliWest Africa 1915-
r92'J.PP. 359.360.
' Ibid.. sec.73. pp. 361-362.
' Ibid., sec.5, p. 338.
' Ibid.. sec.6, p. 338.
Ibid.. sec.18, p. 341.
Ibid., sec.19, pp. 341.342.
'Ibid., secs.57. 58 and 69, pp. 356-357 and 360.
Ibid.. sec63. p. 358.
Ibid.. sec66. p. 359.
'O Ibid.. sec67, pp. 359-363. COUNTER-MEMORIAL OF SOUTHAFRICA 85
public prosecutor isenjoined to appear for,and to conduct the caseof
such servant free of charge - '.
15. In paragraph 62 of Chapter V of the MemorialsZ the Applicants
refer to section 74 of the Proclamation, in terms of which a magistrate
is empowered to kkue a warrant forthe apprehension of a servant Charged
with having deserted from his master's service.
This provision was designed for cases in which a servant, who has
deserted his master's service. has no fixed dace of abode and is con-
~~-~ --
sequently difficult to trace, and also likely tÔdisappear after service on
him of a summons to appear in court at a future date. It was therefore
necessary to provide fo;?he issue of a warrant of apprehension in order
to obviate delay and expense.
16. A magistrate will obviously issue such a warrant only if he is
convinced that such a course is really necessary. As has already been
stated 3,a master commits an offence if, in lodging a complaint against
a servant, he makes a deposition without reasonable and probable ground
for believing the same to be true. It may also be pointed out that in
terms of section 70 of the Proclamation 'a master is guilty of an offence
if he charges his servant with desertion of service and it is found at the
trial that such desertion was occasioned by the master's ill-treatment of
the servant. There are consequently ample safeguards to prevent a
warrant for the apprehension of a servant being issued on false infor-
mation supplied to a magistrate.
17. In paragraph 63 of Chapter V of the Memorials 5 the Applicants
refer to section 53 of the Proclamation. in terms of which a servant,
who has been sentenced to imprisonment for an offenceunder the Procla-
mation. must return to his master on com~letion of his term of im-
prisonment, uiiless the coiitract of service ha6 been ~~:~ncelleS d.liould he
nrglrct to do so. he rnny bc scntenced to suscessii.e periods of Iiirther
imprisonment. providcd tli:it no servant ma!. be imprisonril contii~uously
for longer thaii six nioiiths in all.
Thc iindcrlying rrsioiis fur tlicji>pro\.isions arcthe saiiic as in the case
ofthe nro\.iiions in f;<\.ourofservants. reintingt- tliccntrriii~of jiidgnient
for w<ees. damaees. etc.
AI1the% pruvisionj \ver<:dt!ii@icdto ensure that maqters and servants
fulfiltheir rrspective coritractud obligations. since, ;cslias been shown '.
ordinary civil'remedies are largely ineffective for this purpose.
r8. As regards the number of convictions mentioned in paragraph 64
ot Chapter V of the Memorials it may be pointed out that sentences
for offences under the Proclamation are usually extremely light-very
often no more than a reprimand.
Proc. No. gqof iqzo(S.W.A.). sec. 72, op.cil. p.361.
1. p.125.
Pa. '3 (6).supra.
' As arnendedby Ploc. No. 22d 1938 (S.W..4.). in TheLaw* O/SouthWest Africa
19'81.ppp.4123-126.
Videpara. 14,supra.
' Para. io.supra.
1,p. i26.86 SOUTH WEST AFRICA
IV. SIMILAR LEGISLATIO NN OTHERCOUNTRIES
19. In other countries of the world conditions basicaUysimilar to those
in South West Africa gave rise to legislation providing for penal sanctions
in cases of breaches of service contracts. The followingexamples may be
mentioned:
WesternAustralia
20. Section 4 of Act No. 28of 1892provides ':
"4. Whenever the employer or employed shd neglect or refuse
to fulfil any contract of service, or the employed shall neglect or
refuse to enter upon or commence his service according to the con-
tract, or shall absent himself from his service. or whenever any
dispute, question, or differenceshail arise as to the rights or liabilitieç
of either of the parties, or touching any misusage, misconduct,
iU-treatment or injury to the person or property of either of
the parties under any contract of service. or touching the loss
or destmction of such property, the party feeling aggrieved may
lay an information or complaint in writing before a Justice of the
Peace. .." '
In terms of section 7 of the Act, the Justice of the Peace may upon the
hearing of a complaint as aforestated, inter alia, impose a fine not
exceeding L2o.
SouthernRhodesia
21. The alasters and Servants Ordinance of 1899,as amended, closely
resembles the Master and Servants Proclamation of South West Africa.
Sections 47 (1).49 and 60of this Act provide 2:
"47. (1)If any servant or apprentice-
(a) after having entered into a contract or written undertaking,
fails or refuses.without lawful cause, to commence his service
at the time stipulated therein;
(b) without leave or other lawful cause, absents himself from his
master's house or premises or other place proper and appointed
forthe ~erformance of his work:
(c) during &orking hours, or at any time if resident on his master's
premises, becomes or is intoxicated:
(d) neglects to perform any work which it was his duty to have
performed, or carelessly or improperlyperforms any work which
from its nature it was his duty, under the contract. to have
performed carefully and properly;
(e) without leave and for his own purposes. makes use ofany horse,
vehicle,or otherproperty belonging to or in the lawful possession
of his master;
(1) refuses to obey any command of his master. or of any other
person lawfully placed by his master in authority over him.
which command it was his duty to obey;
' Act So. 28of1892in The Statutes ofWcrlcvn Austrnlio1883-,892 V.ol.II.
55O Victoriae, p617.
Chapter 231in theStatutLaw of Soulhern Rhodtria 1939. VoV.pp. 12-13and
16-17. COUNTER-MEMORIAL OF SOUTH AFRICA 87
(g) makes any brawl or dkturbance in or athis master's dweUing
house or other premises, or on his master's farm, and after
authority over him, desired ta desist, continues ta make such
brawl or disturbance;
(h) master or his master's wifeor children. or ta anv person lawfullv
placed by his master in authonty over him; .A
(i)bydrunkenness,h does any act tending to the immediate loss,
damage, or serious risk of any property placed by his master in
his charge, or placed by any other person in his charge for
delivery to or on account of his master;
(j) by wilful breach of duty or by neglect of duty, or through
drunkenness. refuses or omits to do anv lawful act proDer and
requisite ta be done by him for forwa;ding in safeiy iny pro-
perty placed by his master in his charge for delivery ta or on
iccount of his master;
(k) being employed as a herdsman. fails ta report ta bis master the
death or loss of any animals placed in his charge, which he
aiieges ta have died, or been lost, on the earliest opportunity for
sa doing after he has discovered. or in the course of his duty was
bound to have discovered. such death or loss. or failsto oreserve
for his master's use or inspection any part or parts of any such
animal as he alieces to have died. which part or parts he has by
his master been-directed to oreserve. uiless hi oroves to the
satisfaction of the court the 'death of such animais; or if it is
alleaed-bv him to havëstravedthat aawav or otherwise becomes
irreco\*erably lost, could not, ;inder the circumitnnces of the
cise. have heconie irrecoveral>lylost without his acr or defnult:
or
(1) without lawful cause, departs from his master's service with
intent not to retum thereto; he shall beguilty of an offence. ."
"49. No fine paid, or period of imprisonment undergone, nnder
this Act. bv a servant or apvrentice, shallhave the effectofcancelling
the contract of service 8i apprenticeship. and the servant or ap
prentice shall be bound ta retum to his master immediately after
having complied with the terms of his punishment, in order ta serve
the unexpired period of his service."
aforesaid, lodging any complaint against any servant or apprentice
for any offenceunder this Act may make a deposition on oath before
a magistrate or justice of the peace to the effect that he believes
(stating the grounds of his belief) that the apprehension of such
servant or apprentice is necessary in order to secure his appearance
before the magistrate having jurisdiction in the matter, whereupon
it shaU be lawful for the magistrate ta issue his warrant for,the
apprehension of such servant or apprentice without any previous
waming or summons . . ."88 SOUTH WEST AFRICA
NorthernRhodesia
22. Sections 74 and 80 of the Employment of Natives Ordinance of
rgzg provide ':
Sec. 74: "Any serv-nt may be punished with a fine not exceeding
half the amount of the monthly wages payable ta such
servant and in default of payment of such fine with
imprisonment with or without hard labour for a term not
exceeding one month in case he should be convicted of any
ofthe foliowingacts:
(1) If he shall, after having entered into a contract, fail or refuse
without lawful cause to commence the service at the stipulated
time.
(2) If he shall during working hours unfit himself for the proper
performance of his work by becoming or being intoxicated.
(3) If he shall without leave, and for his own purposes, make use of
any horse, vehicle or other property belonging ta his employer.
(4) If on entering into or for the purpose of obtaining a contract of
service he shall give a false name and address.
(5) If he shallmake any brawl or disturbance in or at his employer's
dwelling-house, location or other premises or on his employer's
farm and after being by his employer desired ta desist shall
notwithstanding continue making such brawl or disturbance."
.................. . ....
"80. Any servant who receives from his employer any wages in
advance and who without good reason quits the service of such
employer before such advance is fully repaid or worked off, shall be
guilty of an offence and shall be Liableta imprisonment with or
without hard labour fora terrn not exceeding three months."
Swaziland
23. Section 42 (1) of the African Labour Prockamation of 1954 pro-
vided 2:
"Any African-
(a) who having entered into a contract for employment and signed
such contract as provided in section twenty-eight without
lawful cause deserts from his place of employment or fails to
enter upon or carry out the terms ofhis contract ofemployment;
or
(b) who after having in Swaziland entered into a contract of service
whether oral or in writing with a labour agent or other person
and after having received an advance in respect thereof accepts
another advance from another labour agent or other person in
consideration of entering upon any other contract or service
before he bas completed his term or service under the first-
mentioned contract;
'Lows 01Norlhrrn Rhodesio. 1960 Edition. Vol.V, Chap. r71, pp. 27.29.
Proc. No.45of1954. Section 42 (1)of the Proclamation has beenreplaced by
the African Labour(Amendment) Proclamation of 1960 (Proc. No. 58 of 1960, in
Oficinl GutIte O/the Higb Comairsiac~ /or Basukdanà.Ik Bzchuonnlond Pro-
frc<oraleand Suioiilond. VoCCXXIII. No. JÎW (irNov. i9&), p.8~). COUNTER-MEMORIAL OF SOUTH AFRICA 89
shall be euiltv of an offenceand shall be liable on conviction to a fine
nut c~s~edi~~ten pounds. or in default to irnprisonment witli or
without liard labour for a period not exceçding two montlis "
Basutoland
24. Cape Act No. 15 of 1856, as amended by Act No. 18 of
applies in Basutoland'. The provisions of this Act do not
1873,
materially differ fromthe Master and Servants Proclamation of South
West Africa.
The FormerBelgianCongo
25. Reference may also he made to the foliowing description of the
masters and servants legislation that existed in the former Belgian Congo
until 1g58:
.~
"'l'lieprotection .irid coiitrol of native. lahor in the Congois based
upon a mimbcr of Icgiilati\.e provisiuns. tliz principal onc of ivhich
i>the decree of .\larîli 16,1922 .. . From the employer's standpoint.
there are great advantages in having a laborer Ggia contracf for a
definite time. Before its expiration, it is illegal for the native to
teminate his employrnent. The penalty for violating the contract or
desertion is a fine of fifty francs or two months' imprisonment. or
both. Tlie imprisonment may be increased to three months if the
laborer has received advances from the employer, or ifhe is a porter.
This penalty is mnch less severe than in British East Africa where
desertion is liable to be punished by six months' imprisonment. The
Congo lawis also more liberal than the Tanganyika and Uganda law
in that desertion is not an offencecognizable to the police.Article 48
of the Decree of March 16. 1922, provides that prosecutions for
infractions under thesearticles'maytake placeonly on the complaint
of the employer' Z."
26. From what has been stated above it is clear that the provisions
of the Master and Servants Proclamation of South West Africa do not
support the Applicants' charge that Respondent-
"has shaped the circumstances and conditions of labor for the
'Native' population into a pattern of constraint and compulsion that
consistent1 subordinates the interests ofthe 'Native' lahorersto the
interests o?their 'European' employers 3".
These provisions apply to al1employees fai!ing within the definition
of servant, and also to ali employers, irrespective of race or colour, and
serve the interests of both employers and employees.
Act. No. r5 of 1856 (Cape of Good Hope) in Cape ofGoodHope Stnlubs 1652-
1895, Vol. 1.pp. 570-590. asamended by Act. No18 of 1873 (Capeof GoodHop) in
Cape of Cood Hop6 Statuter165z-r895. Vol. II, pp.1293-1301.made applicable to
ofsBosotuln>~dVol.1.NTitieIII. Chap.s26,pp.e408-;)II.c. No. 50 ofr9rg.inLaws
Buell. R. L., TheNotive Problrm in Afriçn(1928)V.ol. II. p. 553.
' 1, para. 77 (5). P. '31.go SOUTH WEST AFRICA
C.Leaveof Absence
27. In paragraph 72 of Chapter V of the Memorials ' the Applicants
refer to Regulation 282 of the Regulations issued under Ordinance No.
26 of 1954 (S.W.A.) in terms of which an employer is required ta grant
24 days leave of absence on fdi pay to every European employee "in
respect of each period of 310 ordinary working shifts of employment
with him".
Such 310 ordinary working shifts nonnally comprise a fuU year's
employment, so that a European mine employee becomes entitled to
statutoryleave only after a year's ernployment.
There is no sirnilar provision for leave in the case of Native mine
employees. The distinction in this regard between European and Native
employeesarises fromthefactthatthe vast majority ofNatives employed
in the mining industry are migrant workers ordinaril resident in the
northern territories or bevond the borders of South dst Africa. These
iiativei are recruited for initial contract periods not exceeding 12
niontlis, wliich may. witti mutual consent, he extcwded for two further
ueriods of six months eacli 3. Inasmuclias theNative ernr>lovezsfroin the
korthern areas enter into initial contracts for one year Ônli, and return
home after thi period, unless they elect to have thetr contracts extended,
no statutory provision has been made for annual leave for them.
As pointed out, the number of Natives of the Police Zone employed
in the mining industry is insignificant. \%%entheir number increaçes,
consideration will be given to the extension of statutory annual leave
provisions also to thern.
That there has been no i~-~nti~n t~ dis~ ~ ~ ~te aeainst Natives as
siicli:isfar as the requireinents relatiiig to l.!a\.eof absencc areconcerned,
is illustratccl b\. the statutorv proviiions wliichare dealt u.itirithe next
. -
succeeding paragraph.
28. In paragraph 73 of Chapter V of the Memorials ' the Applicants
refer to section zr of the Factories, hlachinery and Building Work
Ordinance of 1952 (S.W.A.) ' in terms of which every employer must
grant to every factory employee leave of absence on fuUpay for not less
than two consecutive weeks in respect of each period of 12 months'
employment. Applicants draw attention to the fact that, in computing
the period of employment for the purpose of determining the amount
of leave to which the employee is entitled, a penod of absence owing to
illness shall be deemed to be employment. They then state that the said
provisions for leave are specifically made ina plicable to employers
"in respect of extra-territorial and northern 'Natives' .. . who are em-
ployed in or in connection with their factories under valid contracts of
service".
Applicants' allegations in this regard are correct. The reason why no
statutory provision is made for annual leave in the case of norihem
0";.NO: ;4of 1952(S.W.A.), in The Lowrof South Wesl Af*ica rgsz, 405-465.
By G.N. 257 01 1953(S.W.A.). in Thc Lowr ofSouth West Africa 1953. p.599. COUNTER-MEMORIALOF SOUTH AFRICA gr
and extra-territorial Natives has been set out in paragraph 27above.
Inasmuch as there is no such statutory provision for leave for such
Natives, the method of calculating the period of employment for the
purpose of determining the amount of leave does not apply in their case.
Under the Factories. Machines. and Building Work Ordinance the
provisions relative to annual leave apply in the case of Natives of the
Police Zone, of whom there are a considerable number permanently
employed in factories.
29 In the prclniscs Respondcnt subnilts that good reasons cxist for
the presrnt distiiiction inregard to leave as betwecn European and Native
employees in mines, and-as between extra-territorial and northern
Natives employed in factories, on the one hand, and Enropeans and
Police Zone Natives employed in factories, on the other. Respondent
accordingly denies the Applicants' aiiegation of "unfair discrimination" '
against Natives in, interalia, legislative provisions for holiday2.
D. Pneumoconiosis Compensation
30. In paragraph 74of Chapter V of the Memoriak 'reference is made
by Applicants to a number of provisions of the Pnenmoconiosis Act
of 1956(S.A.) ',which Act, according to the Applicants, has been made
applicable to South West Africa by Proclamation No. 156of 1956.
' As has been pointed out 5 the said Act, which has been repealed, did
not apply to mines in SouthWest Africa. While it is true that certain
sections of the Act. relating to medical and post-mortem examinations,
referred to the Territory, none of the provisions mentioned by the Appli-
cants in the paragraph nnder consideration applied to SouthWest Africa.
The position is the sarne under the Pneumoconiosis Compensation Act
of 1962 6, which repealed the 1956 Act. It is accordingly nnnecessary to
deal with Applicants' allegations regarding the provisions of the Pneu-
moconiosis Act of 1956.
31. In the premises Respondent says that the Applicants' aüegations
in paragraph 77 of the Memorials ', in so far as they are based on the
provisions of the Pneurnoconiosis Act, and particularly those allegations
relating to sick pay and compensation in the event of illness or inlnry
caused by ernployment 2, are unfounded.
E. CollectiveBargaining and Conciliation
32.In paragraphs 75 and 76of Chapter V of the Memorials reference
is made by Applicants to some of the provisions of the Wage and
Industrial Conciliation Ordinance of 1952 (S.W.A.)9 concerning
' 1.para. 77, p. r3o.
' Ibid., pp. rz8-129.. p. 131.
' Act No. 57 of 1956 (S.A.), in StatO/eIhc Unia ofSouth Alrira. 2956Part
II, pp. 1369-1509.
Vidc Chap. III, para. 59. ruplo.
Act Ho. 6q of 1962 (S.A.). inStatutes oftheRepublicofSouthAfriça Part II.
pp. 1023-1183.
' 1. DD1-0-1-1.
9Ord.dNo.p35 of 1952 (S.W.A.), in TLnws of South WestAtrica 1951, pp. 465-
574.g2 SOUTH WEST AFRICA
the registration of trade unions, and conciliation of industrial disputes.
Applicants draw attention to the fact that the definition of "employee"
does not, for the purpose of Chapter II of the Ordinance, include a
Native, the effect whereof is that there is no provision for the registration
of Native trade unions and no provision for conciliation of disputes in
terms of the said Chapter in so far as Native employees are concerned.
These allegations are correct.
33. Prior to I August 1953, when the Ordinance came into force,
there were, as far as Respondent is aware, no trade unions in South West
Africa. At present there are only four such unions in the Territory, ail
of which are registered under the Ordinance. and the members of which
are Europeans, viz.,
(a) the South African Typographical Union (72 members);
(b) the Artisan Staff Association (327members) :
(6) the South West African Mine Workers Union (420members):
(d) the Association of Municipal Employees (426members) '.
34. The Native employees of the Territory have not as yet displayed
any real interest in trade unionism. This is in keeping with conditions
elsewhere in Africa, as appears from the folfowing statement in the
International LabourReview of September, 1957:
"The progress of Native trade union organization has heen slow
also in temtories where no legal obstacles stand in its way and even
where policies have favoured their development. This is due in part
to the negative attitude of Africans towards impenonal social
groups. While CO-operation and social responsibility are highly
developed within the tribal society, there is no tradition among
Africans that would lead them to identify their interests witli those
of a wider secondary group created for exclusively economic
motives 2."
35. There are no statutory provisions which prevent the formation of
Native trade unions in South West Afnca. There are, however, no such
trade unions.
The reasons why Native trade unions are not recognized by the
Ordinance for the purposes of Chapter II thereof, which Chapter deals
with the registration of trade unions andwith the settlement of industrial
disputes, may hriefly he summarized asfoiiows:
(a) In Respondent's view it would not be in the best interests of,the
Native employees of the Territory to participate in trade unions
at their present stage of development. A high percentage of Native
employees are migrant workers from a traditional subsistence
society who have no expenence of an industrial economy, and a
literate with no understanding of the economic functions of trade-
unionism. In present circumstances there would be a very rd
danger that the interests of Native workers, if left to the protedion
of trade unions, conld be neglected and that snch workers codd
he exploited by unscnipulous in.'ividuals.
' Departmental information.
"Inter-Temitonal MigrationofAfncans South of the Sahara", in Inlcrnntirmai
Ldwr Rmicw. Sep. 1957.p. 308. COUNTEN-MEMOR IF SOUTH AFIUCA 93
(b) The Native employees of the Territory have generally not yet
reached a stage where they can partake in collective bargaining
on an equal footing with their employers. It is consequently in
thcir own interests that they should, where necessary, be repre-
sented by government officials at meetings of Conciliation Boards,
to wh'ich~eferenceis made hereinalter '.
a~. ~t a.o.ars to have been the ex~erience elsewhere in Africa that
1;ickofîducation:il stiindards aiid of undcrstan~~ing01economicprinciplej
lias ohstructed the proper working of tracte unions. In tlris connrclioii
it is statedin the 1,60rcoort of tlii: Intcrnnticinal 1-abourOrp-nisntion:
"Indeed. one of the most serious obstacles to effective collective
bargaining in Africa liesin the limitations which are often discernible
among trade union leaders. As already indicated this arises partly
from the inability of many unions to employ persons of the highest
calibre. Olherlaclors are deficienciesin generaleducalionand lack O/
understanding of economicprincieles and praclice, as well as in-
exficriencein the art of collecliuebargaining. Tlie result is that, as
manaeements often claim. a laree number of union officialstend to
I)euri&;ilitic intheir dernnnd~.gn<lthis makr3 collective txirgaining
unduly trying of tzrnptrs 2nd prr.cipit:itcs cxtra\,agance of laiigu:ige
:ind unlieli>lulattitudes on I)otti sides2.'IItalics a~ld~.d.l
77. ~lthoueh Native trade unions are not recoanized in South West
~f&a,sectio;~~ (12)01the Wage and Industrial Conciliation Ordinance
provides that an inspector (whois a ~overnment official)may attend any
meetine of a Conciliation Board ana mav take uart in the proceedines
wheneGerthe interests of persons engagea or emi>loyedin the trade con-
cerned, who nre not employees represented on the Board. are under
discussion. . .
38. With regard to wages. the Ordinance makes provision for the
establishment of a Wage Board for the purpose of investigating matters
relating to wages ).The Administrator ha a wide discretion in regard to
He rnav direct. inter alia. that the investieation shall be in respect of em-
ployees, or of any one or more classes of~mployees, in any fiade in any
area, but "shall not differentiate or discriminate on the basis of race or
colour" '.
39. ln practice. disputes involving 'Iative employees. which have
arisen sincc the passing of the Ordinance, ha\.e been satisfnctorily settled
I)yadministrative action. The followingare examples:
(a) In 1954a dispute occurred at the Lorelei Copper Minein the district
of Luderitz, where Ovambo labourers went on strike. An inspector of
Labour investigated the matter, found that both employers and
employees had been at fault in certain respects, and settled the
dispute.
(bJ Another dispute arose in 1954 at Tsumeb as a result of Po!i~
investigations regarding possession by Ovambo workers of ,illicit
liquor. The Ovambo labourers went on strike, whereupon officialsof
' Vide para. 37, infra.
Ovd.rNo.I35of 1952(S.W.A,).F~C.3,inThe LamrofSdlrenWcslAfricorgSz,p..468.
'Ibid.,sec.5. p.468.94 SOUTH WEST AFRICA
the Administration negotiatcd with them and settlcd the dispute
aftcr oneday.
(c) Smallcr disputes involving strikes occurred at Walvis Ray as a
rcsult of the fact that various employcrs applied different wage rates
and that extra-territorial aiid northern Nativesaained the impression
th;it thi:y werc regar<ledns Iesî important and Irrss\~aliiablcIÿbourers
th:iri loc:ilworkeri froin tlie I'oliceZoiit..Officiaisof the 1)epartment
of Sative Ailairs in\.estigatccl tlie romi>lnints and approaclicd
employers, witli the rcsult that ail employeis' association wis formed
aiid uniform wage scales recominended.
(d) In 1956there was one case of a serious labour disturbance amongst
Native kibourers at the Yrandherrr Wcst Mine. An inspector of
Native Labour enqiiired and ascert&icd tliat there had bien some
dissatisfaction amongst the 1;ibourers as a result of wages and
coiiditions iii the compound. Recommendations to overcome the
causes of dissatisfaction were made. accepted and implemented,
witli satisfactory results.
(e) A dispute involving contracted extra-temtorial and northern
N:itivr Labourers at the Otjisondu Mine in the Okahandja district
townrds the end of 1956 over the re-introduction of a sixday
working week, was nlso speedily terminated to everybody's satis-
faction by an inspector of Native Labour.
do. In the premises it is submitted that the Aupl.c.nts' charae t-at-
"The lilaiid:itur). has unfairly prohibited and continues to prohibit
'Natives' from taking part in tlie processes of collective bargaining
and conciliation and arhitration of disputes l".
is unwarranted.
And it isdenied that there is "unfair discrimination"" on Respondent's
part as agninst Sativc labourers in the Territory relative to processes of
collzcti\,e hargnininfi ;ind arbitration of disputes.
F. Respondent's Reply to Appiicants' Allegations (Memonals)
(a) Genmnl
41. In the above paragraphs of the Mernorials the Applicants refer
to a number of statutory provisions which aliegedly "powerfully affect
the conditions of 'Native' labor" '.
In the summary of their charges relating to, inter dia. labour con-
ditions, the Applicants allege:
"The Mandatory has sodrasticaiiy curtailed and circumscribed the
possihiiities of choice for 'Native'laborers asto leave them, for al1
practical purposes. very little freedom of choice with respect to
place of employment, type of employment, identity or character of
employer, or conditions of employment 5."
1, para. 77 (3). P. 130.
2 Ibid.. para. 77. 130.
Ibid.. pp126-128.
+ Ibid.. pan. 77(6)p. 131 COUATER-MEMORIALOF SOUTH AFllICA 95
This charge was apparently formulated on the strength also of the
allegations contained in the paragraphs of the Memorials here under
consideration, although in the case of soine of the provisions in question
it is difficult to see how they bear on labour conditions and relations.
42.As has been pointed out, most of these provisions are also referred
to by the Applicants in other parts of the hlemorials, and have been, or
will be, dealt with in Respondent's replies thereto. Here only brief replies
are given with reference to more detailed answers given elsewhere in
this Counter-Memorial.
@) Paragraph 65 '
43.As will be shown in the replies to paragraphs 140 and 149of
Chapter V of the Memorials ',the provisions of Proclamation No. 29 of
1935 (S.W.A.), which require northem Natives to be in possession of
identification pisses when in the Police Zone, and which restrict the
period of employment ofsuch Natives in that Zone,were designed-
(a) to protect the Natives in the Police Zone-who are more dependent
upon wage employment than northem Natives-against unfair
competition from the latter; and
(b) to protect and preserve the social life and tribal organizatioii of
the northern Natives, whose tribal authorities requested that the
period of employment of such Natives in the Police Zonebe limited.
(c) Paragraph 66 '
44.In the first sentence of this paragraph the Applicants, without
quoting any authority, allege that in rural areas "al1male 'Natives' over
the age of 18 years who reside on a farm belonging to a 'European' must
be in the employ of the farmer".
Thisallegation ispresumably based on section 13ofProclamation No. II
of 1922(S.W.A.), which makes it an offence for the person having the
control of any farm ta allow, without the permission of the magistrate
of the district, any male Native over 18 years of age who is not in his
employ, to reside on such farm.
The said aiiegation is not correct since-
{a) the section applies to al1persons in control of famis, and not only
to Europeans;
/5~, the Dersonsconcerned can obtain ~ermission to allow such Natives
to résideon the farm;and
{c) the section is primarily concemed with persans in control of farms
-it doesnot make it an offence for a Native who is unemployed t. .
~.s~de~o-..- ~ ~ ~ ~ ~ ~ ~
45. 'l'liepurpose of th<:said icction utascipl3ined as fclloi\,iin Respùn-
dent's 1037 annual repart to the I.engueof Nations:
''-1thas been found that a certain class of famer is anxious to
encourage native familiestosquat on his property with their families
and stock on a rental hasis or subject to grazing fees. When the
penodical droughts occur as they do in a country like SouthWest
-
1.para.77 (6).p.126.
2 Vide BookVI, Chap. 111. paras. rq8-156, and Chap. IV. paras. 85-90 of this
Caunter-Mernorial.
1, pp. 147and 14%g6 SOUTH WEST AFRICA
Africa and the owner finds his grazing reduced the natives are given
notice to ouit and are thrown on the hands of the Government. I~ ~ ~ ~ ~ -~~ ~ ~ ~
is thtn pmctically impossible for thern ri movc their stock and
Iieavy lossesfullo\r.Casei have occurrcd wherr.tlir rinti\,es have even
lost their entire flocks.The reiidence of natives on farms is tliercfore
strictly curtailed 1.''
46. In ttiiirespect, refercriccniny also ht.miide IO the follo\i,ingextrnct
from the minutes of the Sinth Sessiun of the Permanent llandates Com-
mission in 1926 ?:
"Sir F. Lugard asked:
..........................
(2) Whether the policy of the Administration was opposed to
native squatters on European estates.
MI. Smit replied:
(2) Sat15.esquatters on white estatcs were gerierally discuuriiged.
'TheAdmiriistrntion desirednho\~eall tliinas tuavoid o\~ercroudirigon
estates. for this would mean trouble in the future. At Dresent there
was enough grazing for both the white man and the nathe squatter,
but in five or six years this might not prove to be the case, which
would mean thatthe native would suffer."
It is clear, therefore, that section 13of the Proclamation was designed
primarily to promote the interests of Natives.
47. In the second sentence of paragraph 66 of Chapter V of the
Memonals ', the Applicants repeat ' the allegation that a European
farmer may, under certain circumstances, require a Native who resides
on his farm either to become his employee or to be removed from his
property.
As has been pointed out in the reply to paragraphs 19 and 28 of
Chapter V of the Memorials 6, there can he no objection to granting a
nght to a farmer to require persons to whom he owes no contractual
obligation, to remove from his land. The provision in question merely
confirms a nght which any owner has under the commonlaw.
48. t\lthough the provisions referred to by the Applicants in tlic para-
graph under a:onsiderütion<:anhave a bearing on the choicu of residence
of Sativei. it is submitted that the) do not aHect condition, of labour.
(d) Paragraph67 '
49. The reference in this paragraph is presumably to the powers
conferred on the Administrator (now the State President) ' by section
zz (1) le) of Proclamation No. 56 of 1951 (S.W.A.). In terms of this
subsection the Administratormay make regulations requiring any unem-
U.G. 25-1938. para. 288, p. 46.
P.M.C.,Min..IX,p.q5.
' 1, p. 126.
'Ibid. paras. 19 and 28.pp. ri3 and 116.
' Vidc sec. B. Chap. IV, paras. 8-1.upvn.
' Vidc Act. No. 56 of ,954 (S.A.). inStotuf~r oIhc Union O/ Soulh Africa1954.
PP 559-5613. COUNTER-MEMORIAL OF SOUTH AFRICA 97
ployed Native in a proclaimed area to report to a prescribed officcr and
to reside at a place to be indicated by that officer until lie hüs found
employment, and, if he fails to lind employment witliin a period of 14
days, to depart [rom such area.
In terms of the proviso to the subsection, Natives borr: and perrna-
nently residing in a proclaimed area may not be requircd to comply with
the provisions of the subsection unless the approval of the Adminis-
trator (now the State President) has been obtained. It is not the hfinistcr
of Native Affairs whose approval is necessary, as is alleged by tlic Appli-
cants.
50. Pursuant to the powers conferred by section zz (1)(e) the followiiig
re-lation was made:
Regulalion 12 :
"Every male iiative in the proclaimed area othcr than a native
born and permanently residing therein or . .. (an excmptcd Na-
tive) .. . shall, if he remains therein without entering irito çmploy-
ment after the termination of a contract of employmcnt or aiter
discharge friiiiiiiiiprijoiimeiit \vithi11one dny :Ifte; sucli tcriiiinntion
of n contr:ict of ivrvicc or nftcr sucli <liscli:irg. r<;(>orttotti~ rcgls-
tcriiix oiliicr ;ii4i:tIltlicrciiri~Ii~cuii~eiiili]t.it 1l.t~>ruviiiiiii.f
regulation 2 in the same minner as a nathe who entcrs the pro-
claimed area l."
Reference to Regulation z, mentioiicd in the regulation quotcd above,
is made in paragraphs 71 and 144 of Chapter V of the Memorials Z,and
will be clealt witli in Hespondent's reply to the latter paragraph '. In
brief. the liegulation pro vide^ that uriexcmpted m;ile Natives who enter
a proclaimed area for the purpox of finclingemployment, and who do not
succeed in obtaining employment withiii a period of 14 days. must leave
quch a-.a~ ~ ~ ~
In the reply to paragraph I+$ of Chûpter V of the ieMcmorials4Respon-
dent will show tliat Keylation z is one of a nurnber ofprovisions designcd
to implement its influx control policy-a policy iiitended to prevent
urban andproclaimedarcasfrom becoming overcrowdcd withunemployed
Natives.
Reeulatiou 12. which is a~oiicabie onlv to unexem~ted male Natives
[lot horn anclperrnaricntlv resi<lirigin opr;claim~zl srca: i; cornpl~:iiient;iry
to Hegiiliitioii2. iiiicl:<:rvcstht sigmt:piirposc.'l'liwliolc policy <ifinllus
control coulil bc ri?i~tl~rr~iliiicntor\' iü S:~ti\',: \\,ho hitd oI)tiiinrd PCr-
mission to rernain in a proclaimed arca after he had found employmënt,
could at any time therealter terminatc his employment and continue to
reside in thé area without being employcd
(e) Paragraph68 '
51. Although the allegations in this paragraph are substantially correct,
it is tobe observed that an authorized otlïcer may anest an idle Native
'Regulation 12 of the Regulations for Proclaimed Areas, contained in G.N.
No. 65 of1955 (S.W.A.), inThe Lamr of South WestAlrica ,955.sec. iz.pp. 768-770.
1,pp. 128and 148.
' Vide Book VI. Chap. III. paras. 157 fi.and espocially paras190-192. of this
Gunter-&Iemorial.
'1. p.148.
' Ibid., pp. 126-127.gS SOUTH WEST AFRICA
onlv if he has reason to helieve that such a Native is habituallv un-
and (not or, as is alieged by the Applicants) that he bas no
meaiis of livelihood '.
As ivill be uointed out in Reswndent's reulv to uaramauh rz4 of
Clinpter \' of tiie Uemorials 2.the 'provisionsof's~ction'z6 d the ~;tive:,
(Urk,nn:\r~.:gs)1'roclarii;itionare complenieiitary to those ofthe Vagr~nc),
I>roclnniatiori,and werc ditîigned to combat a similïr evil. Thest pro-
i~isi~>n\si..liicliiipply oiily to tou,risin the Police Zone. were also dcsi.pçd
to promore tlit inttreirs of the Sati\.e residents of proclainied arcas by
prëventing such areas frorn becoming overcrowdëd by unemployed
Natives. For this reason an idle Native, who is not prepared to work and
so mend his ways,may he rernoved frorn such an area 3.
(f) Paragraph 69 4
52. In its reply to paragraph 130 of Chapter V of the Mernorials5
Respondent will show that the impression created by the Appiicants,
viz., that the Vagrancy Proclamation appiies only to Natives, is not
correct 6.
Ilespondent is again at a loss to understand how it can be said that the
provisions of the Proclamation affect labour conditions '.
(g) Paragraplt 70
53. As will be shown in Respondent's reply to paragraph 131 of
Chapter V of the Memorials ', there can be no valid objection to com-
pelling an habitually idle and unemployed resident of a Native reserve
within the Police Zoneto take up employment rather than to be sentenced
as a criminal offender to imprisonment under the provisions of the
Vagrancy Proclamation 9. Idle White and Coloured persons are, in a
sense, in a worse position than idle Natives in such reserves, since they
can only be dealt with as criminal offenders under the said Proclamation.
Although the regulation in question can be said to affect "freedom"
to lead an idle existence, it has no bearing on labourconditions7.
(h) Paragraph 71 'O
54. As has already been mentioned 2'.Regulation z of the Regulations
for Proclaimed Areas, which requires unexempted male Natives entering
such areas to register, is one of a numher of provisions designed to
implement Respondent's influx control policy.
The Applicants' allegations concerning the payment of fees and reten-
tion in reception de ts are not entirely correct, as will be shown in
Respondent's reply 'Pto paragraph 144of Chapter Vof the Memon* 13.
1 VideBook VI, Chap. II, para. 66.of this Counter-Mernorial.
' 1, P.145.
VideBookVI. Chap. II. para. 71. of this Counter-Memonal.
' 1. p.127.
J VideBook VI, Chap. II. para. IO, of this Couuter-Mernorial.
' 1, para. 7(6).p. 131.
0 Ibid. pp. 127-rz8.
9 VideBook VI. Chap. II, para. gr. ofthis Caunter-Mernorial.
L", p.128.
" Para.50. supra.
" VideBookVI. Chap. III. para. 192.of this Counter-Mernorial.
1.p. 148. COUNTER-MEMORIAL OF SOUTH AFRICA 99
II. PARAGRAP7 7 OF CHAPTER V '
55. Respondent,has dealt with the specific charges in paragraph 77
of the Mernorials in so far as such charges can be identified with the
particular labour conditions referred to by the Applicants. In condusion
Respondent denies the general aUegations by the Applicants th? it has,
with regard to labour conditions, "engaged in a consistent course of
positive action which inhibits the weU-being and prevents the social
progress and the development of the larger part of the population", and
furtherdenies the allegation that "the record of the Mandatory's behavior
toward the 'Native' population of the Territory has been a bleak and
consistent record of negation, frustration, constraint and unfair dis-
crimination" ?.
11,pp. 130-13r,
Ibid.p.130, CHAPTER VI1
CONCLUSION
r. In paragraph go of Chapter V of the Memorials,under the heading
"Legal Conclusions" '. Applicants aliege that Respondent "has violated,
and continues to violate its obligations as stated in the second paragraph
of Article z of the Mandate and Article zz of the Covenant" in a number
of respects. As regards industry, industrial employment and labour
relations. Applicants repeat the charges contained in paragraph 77
of Chapter V of the Memorials '.
2. Respondent has dealt with these charges in the preceding Chapters
and it is consequently unnecessary to deal with the relevant "Legal
Conclusions". It is sufficient to reiterate that the said charges. and there-
fore also the said conclusions, are unfounded and without substance.
i 1.pp. 162 8.
Ibid.,p.163.90(i) (1). fg). (hi, fi). f(A) and (II. BRIEF ACCOUNTOF THE NATIVEIN
COMMERCE
Introduction
r. In section Cabove, in dealing with Applicants' allegations in regard
to the role ofthe Natives in certain industries, Respondent pointed out.
inter alia,that. when regard is had to the background and traditional
economy of the Native groups, it is only natural that the Natives' role
in industry should at present still be largely limited to that of unskilled
workers in enterprisesestablished by European initiative.
The same socio-economic factors which have served to retard the
advancement of the Natives in the industrial field, have also operated
to retard their development in the field of commerce and, more par-
ticularly. as independent traders or businessmen.
z. While advancement on the part ofthe Natives in the field of com-
merce has accordingly been slow. good progress has nevertheless been
made in recent vears. ~articularlv as a result of Res~ondent's ~olicv of
encouraging Naiivest8 serve théir own people and'of afford& them
protection against competition by Ewopeans in areas inhabited by or
;eserved to Natives '.
this regard in Native reserves and in Native townships in urban areas.
3. To stimulate Native trading enterprises in the northem areas, the
Administrationdecided in IOVZto~ermit Ovambo tooven small businesses
without pa!.ment of the p~~scri6edIiccnce fee. and'without complying
with spcciiications laid doivn for sliop 1,uildings.w;is no1 uritil ~954,
hou,ever. tliat the first Ovamho startell tradina. Sincc then the position
has improved rapidly: in 1956 there were 28Native general déalersin
Ovamboland; in 1957 there were 49, and in 1960.60. In 1960 there were
also 20 Ovambo traders in patent medicines, 14 restaurant-keepers and
two hawkers.
In 1960the aforementioned concession in regard to licenceswas with-
drawn, and Ovambo traders have since that date, like al1others, paid
licence fees. These fees go into the tmt fund of the tribal area in wbch
the particular business is condncted.
To assist Native traders, the method of obtaining licences in reserves
is simpler and lessexpensive than in the rest of theTemtory =.
a Ovd.No.o13VofC1935 (S.W.A.). sec. inThe Lnwr 01 South WeslAfrica1935.
p. 700 and the regulations framed thereunder. IO2 SOUTH WEST AFRICA
4. The number of trading licences approved for 1961, 1962 and 1963
for Native businesses in the northern areas were as follows:
1961 1962 1963
General dealers ............. 103 161 162
Restaurant keepers and tobacco dealers . . 14 23 20
Hawkers and others ........... - 8 34 -_37
-25 -8 -19
Reserves in the Police Zone
5. To encourage trading by Natives. and to protect Native traders
against competition by Europeans, it is the Administration's policy to
refuse al1applications by Enropean traders to trade in the Police Zone
reserves,unless no Native is prepared to open a business in an area where
there is a need for such business. or unless the residents of a reserve
request (as happened yean ago in the Waterberg East Reserve) that a
particular Enropean be allowed to open a business.
6. Respondent's policy in this regard has brought about a steady
increasein thenumber ofNative-held businessesinthePoliceZonereserves.
At the end of 1945there werefive Native generaldealers in the reserves;
in1950, II; and in 1960.36. In 1960 there were also 25 Bcensedhawkers
operating in the reserves, five restaurant-keepers, one butcher and one
baker.
The figure for 1962and 1963 are as follows:
1962 1963
General dealers ............ 29 29
Baker ................ 1 1
Patent medicines ........... 8 8
Tobacco/restaurant.. ........ 5 5
Butcher ............... 1 I
Hawkers .............. 25 23
Others. ........... -3 - 4
72 71
The slight reduction inthenumber of General ~eaÏ&s' licences bzween
1960and 1963is attributable to the generally depressed state of economic
activity during the severe drought and the foot-and-mouth epidemic in
those years.
NativeTownshipsin UrbanAreas
7. Business andtrading rights in Native townships in urban areas have,
since rggI, been reserved by law exclusively for Natives. In terms of the
Native (Urban Areas) Proclamation of 1951 '.an urban local authority
"may let sites within the location or native village fortrading or business
purposes" 2,and such sites may be let only to Natives 3.
To promote trade in the townships. Native dealers in several urhan
areas are exempted from observing the ordinary shop hours.
8. Traders operating in the townships in 1960 (with figures for 1950
Proc. No.56 of1951 (S.W.A.) inTheLows of South West Africa ~95'pp.
90-170.
2 Ibid.sec. 31 (a)p.152.
Ibid.. se3r (c)(i)p.154. COUNTER-MEMORIAL OF SOUTH AFRICA 103
in brackets) were: general dealers, 62 (18); restaurant-kee rs, 64 (31);
tobacconists, 60 (16); hawkers, 13 (5); greengrocers, 13 g; butchers,
9 (1); firewood dealers,IO (O);bakers, 2 (1); patent medicine dealers, 8
(O);mineral water dealers, 2 (O),and service station proprietors,z (O).
In respect of 1962and 1963, the followingtrading licences were issued
to Natives in urban areas:
TyfieO/business 1962 1963
General dealers ............ 60 61
Restaurant .............. 58 57
Tobacco ............... 36 47
Fresh producene ............. IO IO
Minera1water ............ 2 2
Wood.. .............. 14 7
Hawkers .............. 7 6
Speculators.. ..... I 2
Butchers ............... 8 8
Cobblers ............... 13 -
Barbers ............... 3
Carpenter................. 1 -I
Ballroom ............... I -
Dry cleaner ............. I -
Garages ............... 3 - 1
-231 -20
In the urban areas, as in the caseofthe reserves. somebusinesseswere
apparently unable to survive the unfavonrable trade conditions in the
past few years, but, with conditions improving again, there 1sno doubt
that the number and size of businesses held by Natives wiUcontinue to
increase. SECTIONE
GOVERNMENTAND CITIZENSiiiP
CHAPTER 1
SUFFRAGE, PARTICIPATIONIN TERRITORIALGOVERNMENT,
GOVERNMENTWITHiN THE NATIVE TRIBES AND NATIVE
RESERVES
A. Introductory
general heading "Government and Citizenship", the Applicants refer tor the
certain aspects of the political and administrative institutions of South
West Africa. They subdivide the subject under the headings "Background
Information", "Suffrage", "Participation in the Temtorial Government".
"General Administration (Civil Service)", "Local Government". and
"Government Within the Native Tribes and Native Reserves".
For reasons that willbecome apparent, it is more convenient to deal in
se arate succeeding chapters with thedegations containedin the sections
',$eneral Administration (CivilService)" and "Local Govemment", and
to consider collectively, in the present chapter, the data supplied and
allegations made under the other headings mentioned above.
2. Applicants charge Respondent with-
(b) denying the Native population participation at the political level ';
of the Government of the Temtory, including the Administrator,
the Legislative Assembly, and the Executive Committee, "although
[the Native population] constitutes ovenvhelmingly the larger part
of thetotal population of the Temtory" j:
(c) applying, in the administration of the Native reserves, a policy
which involves discrimination. negation and frustration for the
Natives concerned, in that-
"The only semblance of participation by the 'Native' population is
to be found in the rudimentary functions of the 'Native' headmen
and the 'Native' members of the Native Reserve Boards in regard to
the Native Reserves within the Police Zone, and in the elements of
traditional tribal administration under tribal laws and customs still
permitted to the 'Natives' in the Native Reserves outside the Police
Zone"
and that ". .. this shadowy participation is kept subject to complete,
comprehensive and pervasive control by 'Europeans' " *.
' 1,PP. 13'-'42.
' Ibid.. para. r(2).p. 142.
' Ibid., para. 128(5p. 143 COUNTER-MEMORO IAFSOUTH AFRlCA '05
3. The avamen of Applicants' charge is contained in paragraph
128 (6)of 8aDter Vof the Memorials,where they allege that-
., -
Mandatory, bhas failed to promote to the utmost the development of
the preponderant part of the population of the Territoryin regard ta
suffrage or participation in any aspect of government. It has not
only failed to promote such development to the utmost, it hasmade
no notable effort to do sa. To the contrary, the Mandatory has
pursued a systematic and active program which prevents the possi-
bility of progress by the 'Native' population toivards self-respect, re-
sponsibility or skillin any aspect of citizenship or government . ..'"
4. In paragraph go of Chapter V of the Memorials this charge is
carried further bythe allegations that Respondent has ".. .deliberately,
systematically and consistently .. . discriminated against the 'Native'
population of South WestAfrica. . ."; that Respondent ". .. has thwarted
the well-beiiig. the social progress and the development of the people of
South West Africa throughout varied aspects of their lives . ."; and that
"The grim past and present reality in the condition of the 'Natives' is
unrelieved by promise of future amelioration". It is finally alleged in the
said paragraph that Respondent "... offers no horizon of hope to the
'Native' population".
5. Resuondent's ~olicies.as has heen indicated before. indeed involve
difierentj'ation betiGeen th; various population groups of the Territory
in relation, inter aliat,o participation in political institutions and the
measure and manner of self-givernment-appl yitnhem. TO,Say,
however, that these policies are "arhitrary" or "discriminatory" within
the meaning apparently assigned ta these terms in the Atemorials,1snn-
founded. Res~ondent denies that it has subiected the interests of the
Tative inliabiiantsof the Territor) to those oithe Eiiropean inhahitants;
that ir lias faileto promott: the po11tiî:iladvancciiient of the indigenous
population groups, or the development of self-government and advance-
ment towards free political institutions on their part; that it has in
relation ta political rights of the Native inhabitants "followed a system-
atic course of positive action" which "thwarts (their) well-being, inhih?ts
(their) social progress and frustrates (their)development"; and th? with
reference to the future its policies in this regard".. . offer no horizon of
hope to the 'Native' population".
B. General Policy
6. Before dealing with Applicants' allegations, some reference is
necessary to the unexpressed premise from which they appear to emanate.
The premise seems to,be thar in the political sphere. as well as in other
respects, there ought to be rio distinction or differentiation between
various inhabitants of the Temtory, and that the whole population is to
be treated asan integrated unit, with identicalrights and facilities for al!.
Applicants, apart from vague generalities. donot attempt to substanti-
atethepremise,~~ to relate it ta the basic circumstances or attributes of
the indigenous peoples of South West Africa, which the founders ofthe
' 1.para. 128 (6)p. 143.
Ibid.. para190.p. 162.106 SOUTH WEST AFRICA
mandate svstem saw fit to classifv as a C Mandated Temtorv. Nor do
~p~licant<deal uith the effect wkicli such a prcrnrse. ifadopGd by tlie
oromess of the inhabitants.ls l-a\.e upon thc future \vcll-beiiir: an-
. -
7. Kespondcnt ha alrcady denionstrated. particularly in Book IV
of tliis Couiitcr->lernoriaI.th31 tliis premise on Applicants' part is wliolly
unfounded,in fact and in law.
At no tirne prior to, at or since the assumption of the Mandate by
Respondent, has the population of the Territory in fact formed an
existed a wide diversity of population groups, several of which havees
always been confmedintheirhabitation to defmed and, in some instances,
relatively isolated regions or areas within the Territor There have at
al1tirnes been wide difierences between the mou~s-in zvels of develoo-
meilt. modesol living.outlook and aspirations-and iithe not too distaAt
past conflicts of intrrests resultcd in almost incessant iiarfnre between
Someof them.
This factual backgropnd, which has been fully dealt with, formed part
of the foundation of tlie provisions of the mandate system which.
expressly and by the clearest implication, prescribed and envisaged
difierentiai treatment of various ueo~lesand cornmunities. accordinn to
tlieir stage of dei,clopment and ;thgr relevant circumstnnces. The lcgal
provisions in question have also been fully dcalt with.
8. The factual and legal background aforestated formed the basis
also of Respondent's policies in South West Africaafter assumptionof
the Mandate. Differentiation between groups, interalia. in regard to
participation in political institutions and processes of government, was
regarded as not only natural but as the only appropriate method of
advancing towards achievement of the ideais of the mandate system
in the particular circumstances. Respondent's approach and practices in
this regard were in keeping with the conceptions of the times, and
accorded with the views of the Powers who conferred the Mandate ',the
Permanent Mandates Commission 2, and policies applied elsewhere in
Africa 3.
Aoolicants have not endeavoured to show at what staee and for what
reasoi, juridical or factual, there has occurred a reversa1zf the approach
to be considered ap--opr-ate and best for achievement of the objectives
of the Mandate.
q. Respondent has already indicated the broad lines of the policies
which, in keeping with the aforestated considerations. it regarded as
best with reference to the government of the various population groups
intheTemitory and their participation in political activity. Its approach
involved recognition of the White population group as one that could
appropriately enjoy a measure of self-government and participation in
processes of central govemment, subject, interalia to control of h'ative
affairs being the responsibility of the Mandatory itself. The approach
further involved recognition of the separate identity. politically as in
other respects, of each of the non-White groups, and according to each
' Vide Bmk IV. Chap. IV. paras3.6-39, of this Caunter->lemo~ial.
2 Ibid., para40.
Ibid.. Chap. VI. para2-20, COUNTER-MEYORIAL OF SOUTH AFRICA 107
an opportunity of developing on the bais of its own institutions and
culture. In regard to the indigenous groups, the process of adaptation
to modern conditions was foreseen as one that would necessarily have to
he slow, and which could not he divorced from other lacets of advance-
ment and progress.
Respondent has also indicated why, andin what manner, the principles
and~o'~~tic~ ~ ~ich have thus been tried and tested. should in its view
serve as the hasis foran accelerated progranime. aJapted to prrsrnt day
circiimstanrrs. aiid desigiied to hring the various groups iirarer to self-
re:ilizntion al50 in the politic:il sphere-:iccordiiig to the 1nrti'.tilar
circiimjtanit:a of tlic difierent groups and thcir varviiig <\ol .ILIarice-
ment, anclwitli a vieir to achiei,ing jiisticc and equily fy1of tcni'.
io. Rearing in mind the ahove basic principles, [lie de\9~lol~rnerio tf
nolitical institiitionj and r~;irticiri:itionin politi~alactivitv forthcdiffc:rcnt
bopulation groups will héreundêrhe exymined in moredetail.
C.Constitutional Arrangements Priorto 1925
II. During the German regime only Europeans participated in the
TerritorialGovernment, and after the 1904-1907wars the administration
of the Police Zone, Savefor the Berseba reserve and the Rehoboth Gebiet,
Xvasentirely in the hands of German district officers'.
The German autliorities did not exercise any real control over the
northern temtones,and the inhabitants of these areas rnaintained the11
systems of tribal government.
rz. From 1915 to 1920 South West Africa was governed as a protec-
torate under martiai Iaw. From 9 July 1915 to 30 Octoher 1915, the
government of the Territory waç entrusted to a military governor and a
chief civil secretary. On 30 October 1915both these officeswereabolished
and the officeof Administrator waç constituted. The Administratorwas
to be under the control of, and directly responsible to, the South African
Government ?
rj. In September 1919 the South African Parliament enacted the
Treaty of Peace and South West Africa Mandate Act ',which vested in
the Governor-General the necessary powers for giving effect to the
Mandate in respect of the Territory. when granted.
Section z of the Act authorized the Govemor-General to legislate in
respect of the Territory by proclamation and also empowered him to
delegate his authorit? to "such officer in the said territory as he may
designate to act under his instructions". -411proclamations made under
the Act were to be laid before the South African Parliament *.
14. By Proclamation No. I of 1921, the Govemor-General delegated
his Dou-ersunder the Act to the Administrator of the Territorv, as the
agent of the Union Govemment, and subject to "such instrictions as
may from time to time he issued for his guidance by proper authonty" '.
' Evans. J. E., Nnlive PoliiiSoutlzernAfricn (1934)..138.
South WestAlrirat1915-1922.gazetted on15 Sov. 1915,at pp.30-31 of TheLawsot
' Act No.49of19x9 (S.A.)inThcLoiurofSoufh WerfAfrica 1915-1922 .p.10-iZ.
' Ibid.sec.2~.. -~.
P,OC..N~r of1921 (S.A. )nTheLo~sofSoulh W8stAfrica 1915-1922pp. 44-46.108 SOUTH WEST AFRICA
15.By Proclamation No. I of 1921, as amended by Proclamation
No. 51 of I 21, the Administrator appointed an Advisory Council,which
consisted O? nine appointed memberç, whose functions were to advise the
Administrator in regard to:
(a) the raising of revenue within the Temtory;
(b) the appropriation of monies for the public seMc- of the Temtory
and the allocation of expenditure;
(c) matters of general policy in relation to the legislation and ad-
ministration of the Territory, apart from routine matters of ad-
ministration :
(d) any other matter upon which its advice might be requested by the
Administrator '.
Oricofthe memberaof the hdvisory Councilurasto bea person specially
qualitied to advise on nll matters concerning the Native races of South
West Africa Z.
16. During the period I~ZI-1gz5 the administrative and legislative
powers in respect of the Territory remained vested in the Administrator
as Respondent's representative. During this period, therefore. apart from
the Advisory Council. the European inhabitants had no representative
political institutions of the nature to which they had been accustomed.
D. Political Institutions of the White Population Group
17. In March 1921 a commission. which had been appointed in the
previous year to enquire as to the future govemment of the Temtory,
recommended in respect of the Euro~an wpulati. .the adoption of a-
"formof government . . .at presrnt prevailing in the four Provinces
oftheCnion, giving the population fullrepresentation in a Provincial
Coiinciland in the tinion Parliament, . . . but subject always to the
conditions of the Mandate '".
18. General Smuts. in a speech at Windhoek in September rgzo had
already predicted developments along the lines envisaged by the com-
mission when he stated:
"South-West Africa would always be a separate unit as a large
country, but it was impossible to run it as a province at the present
time, though later. no doubt,it would become one, with a Provincial
Council and members in the House of Assembly. but first other
stages would have to be passed through. The first would probably be
an Advisorv Council to be ap~ointed to advise the Administrator.
Not long aiter that, the ~oukil would become an elected Council,
and in due course there would be a full Parliamentary system '."
19. In December ~gzzthe Advisory Council 5 unanikouily adopted a
resolution urging that the European inhabitants sbould be given a share
in the government of the Territory, and also recommended that stepsbe
taken to enact legislation for the automatic naturalization of the German
' Ploc. No. i of ,921 (S.W.A.). in The Lowr of South Wcrt Africn 1915-1921.
PP- 493-495, asamended by Proc. No. sr of 1921 (S.W.A.).ibid., p626.
U.C. 2619~1. p. 4.
U.G. 24-19zr. para. 7p. 4.
P.M.C..Min.II.p.92.
' Vide para. 15, supro. COUNTER-MEMORIALOF SOUTHAFRICA I"g
inhabitants. A similar recommendation had been made by the aforeçaid
Commission of Enquiry '. because it was of opinion tbat there was no
way in which aliens permanently residing in South West Afnca could
acquire the right to take part in the administration of their country of
adoption other than by becoming citizens of the State which,under the
Mandate, was charged with the administration of the Temtory.
20. After negotiation with the German Govemment, the Council of
the League of Nations was approached in order to seek its endorsement
of the proposed naturalization of the German inhabitants. The League
Council,in a resolution of 23 Aprilrg23, resolved that it had no objection
to such naturalization ?.
21. In 1924 there was enacted the South West Africa Naturalization
of Aliens Act 3, which provided that national5 of ex-enemy countries
~ ~id~nt in the Territorv on I Tanuarv 1024. and ais0 those who took
up residencein the ~err&or~begre 15 Sepiekber 1924,would be deemed
to be British subjects. The persons concemed could, however, renounce
British nationalib.
22. The way had now heen cleared. with full knowledge and endorse-
ment of the League of Nations. for the creation of political institutions
in which the White population group could participate and exercise a
measure of self-government.
23. With the enactment of the South West Africa Constitution Act,
1925 +, a form of govemment, basicail similar to the South African
Parliamentary system, was introduce 2 for the White group in the
Territory. The Act, wbich came into forcein 1926,made provision for the
establishment of a Legislative Assembly, an Executive Committee and
an Advisory Council.
24. The Legislative Assembly consisted of 18 memhers, one-thud ?f
whom were nominated by the Administrator from voters resident in
the Temtory; suhject to the approval of the Union Govemment. The
other membeis were elected by direct vote of those adult male European
inhabitants of the Temtory who were British subjects
The Leeislative Assemblv was emoowered to enact ordinances in
regard toh matters Save ihe follow~ng.in respect of which it could
le.islate oniy with the pnor consent of the Governor-General 6:
(a) Native affairs or any matters specially affecting Katives. including
the imposition of taxation upon the persons, land, habitations or
eamings of Natives;
(b) mines and minerais;
(c) railways and harbours;
(d) the public service;
(e) constitution, jurisdiction and procedure ofcourtsof justice;
' Vide U.G. 24-,921.
L. ofN..0.j.i923 (%. 6). pp. 603and 659: videalso Gen.Smuts' letter to the
Couneil. portionof which is cited in Book IV. Chap. V. para. 6.of thio Counter-
Mernorial.
Act No. 30 of 1924 in Thc Lnws of South WerfAfrico 19a4, pp. 82-85.
' Act No. 42 of r925 in Th6 Lawr of SouU West Afvico 1925. pp. 60-92.
' Ibid., seczG.and Part 1.W. r,of the Schedule to the Act.(f) the administration. management and working of the postal, tele-
maph and telephone services;
(g) mifitary organczation;
(h) movement and operation of the Defence Force of the Union of
South Africa;
(i) immigration:
(1) customs and excise:
(k) currency and banking.
The Assembly was also precluded from legislating in regard to police,
civil aviation, education, land or agricultural banks, and the dotment,
sale or disposal of govemment lands, except with the Govemor-General's
prior consent; but afterthe expiration of a period of three years from the
date of its first sitting, it couid be given a general power to make ordi-
nances in respect of any ofthe above subjects '.
25. Full powers of administration and legislation were, however.
reserved to the Governor-General. and the provisions of the Treaty of
Peace and South West Africa Mandate Act ' remained of full force and
effect '.
Furthermore, Respondent retained direct control over the legislation
of the Assemblv -.bv reservinrr to the Govemor-General full uowers of
disallowance '.
26. The Executive Committee consisted of the Administrator. aschair-
man. and four members chosen by the Açsembly on the basis of pro-
portional representation.
The Administrator in Executive Committee was empowered to carry
on the administration of those matters in respect of which the Assembly
was competent to make ordinances 5.
27. The Advisory Council. constituted by section 7 of the Act, con-
sisted of the Administrator, aschaiman, the four members of the
Executive Committee, and three members nominated by the Adminis-
trator, subject tothe approval of the Governor-General.
The duties and functionç of the Council were to advise the Adminis-
trator in regard to, inte rlia-
(a) those matters in respect of which the Assembly was not competent
to make ,Ordinances, including matters of general policy and ad-
ministration: and
(6) his assent toan Ordinance passed by the Assembly, or its reservation
for the si-nification of the uleasure of the Governor-General 6.
One of tlie appointed members of the Council \vas required to be an
official selected rnniiilyon the ground of 111tshorough ac<lii;~intancewirh.
and expcrience of. tlie reasonablc siants aiid \visliesof the non-Europenn
races of the Territory '.
28. To sum up, the position was that the Administrator was assisted
by an Executive Committee, consisting of four members elected by the
-
'Act No. 42ofwzr in The Laius otSouth Werl Africa r.z-. sec.27
Vidc para.13.&pia.
'Act No. 42 of,925 inTheLaws O/Soi'lh West Africrp2.T.sec. 44. pp. 60-92.
*Ibid..secs.32 and33
'Ibid., sec. 3.
Ibid., sec9.
'Ibid.. sec. 7. COUNTEK-MEMORIAL OF SOUTH APKICA 111
Legislative Assembly, in dealing witli matters on which the Assembly
was competent to enact ordinances, while matters outside tlie province
of the Assembly, e.g.,Native affairs, fell to he dealt with by the Ad-
ministrator, as agent of the Union Govemment. to which alone he \vas
responsible.
zg. In ,194 he 1925 Act was amended by the South West Africa
Affairs Amendment Act ',in, inter alia, the following material respects:
(a) The Legislative Assembly became fully elcctive 2.
(6) TheTerritory was granted representation iii the Union House of
Assembly by six members to be elected by the duly registered voters
of the Territory " and in the Union Senate by four senators-two
elected and two nominated by the Governor-General '. One of the
latter was to be selected mainly on the ground of his.thorough ac-
quaintance, by reason of his oficial experienceor otherwisï. witli the
reasonable wants and wishes of tlie Coloured races of the 'l'errit'.y
(c) In terms of section zG of the South West Africa Constitution Act,
I 25 the Legislative Assembly had been permanently, and in terms
O? section 27 temporarily, precluded from enacting Ordinances on
certain matters 6.The effect of the amendmentscontained in sections
16 and 17 of the new Act was-
(i) to remove the legislative restrictions imposed on the Assembly
by the said sections in respect of: mines, minerals, mineral oils,
~recious stones, etc.; primary or secondary education in schools
supported or aided from the revenues of the Territory; tl!e estab-
lishment, management or control of any land or agricultural
bank in the Territory; and the allotment. sale or disposal of
government lands in the Territory;
and
(ii) to include the police force and civil aviation amongst the matters
permanently reserved from the legislative competence of the
Assembly.
(d) The Advisory Council was abolished and its functions transferred
to the Executive Committee '.
(6) Provision was made0 for the abrogation. from a date to be pro-
claimed. of the powers of legislation granted to the Governor-General
under the provisions of the Treaty of Peace and South West Africa
Mandate Act, 1919 . ith the consequent lapsing of the delegation of
those powers to the Administrator 9. The date for the changes was
later proclaimed as 17 October 1951 'O.
Provision was made that from the said date only Parliament should
' Act No. 23 of 1949inThc Laws of SoulhWcsl Africn 1949, pp. 170-187.
Ibid., se8.
' Ibid.secs.27 and 28.
Ibid.sec.30 (r).
' Videpara. 24.rupvn.
' ActNo. 23 of1949,sec.5.inThe Lawr ofSouth West Africa1949,pp. 170-187.
a Ibid., se22.
Videpara. 14.rues
'O Ptoc.No. 235 of1951 (S.A. ),TheLaws of Soulh West Africn r95r, p.IO.112 SOUTESWEST AFRICA
Iiave the power to legislate for the Territory in regard to those matters
on wlrich the 1.ïgislative Assembly was not compcteiit to legislate. The
only cxcel~tioiito tliis would be the right of the Legislative Assembly
to in;llieaii onlinarice on a permanently reserved matter, with tlie prior
coiisïiit of the Goveriior-Geiieral '.
I>espite the clianges brouglit about by the aforestated amendments,
full powers of Icgislation and administration remaincd vested in I<espon-
dent Z.l'urtliermore. Respondent retained its direct control over the
legislation of tlie Assembly by reserving full powcrs of disallowance in
respect of al1Ordinances 3.
30. It is dear, tliercfore, that though the White population group
lias been endowed witli a measure of self-government and participation
in central government, powers of legislation rclnting to Native affairs
Iiave iiever been confcrrcd on the South West African Legislative As-
seinbly, sucli powcrs haviiig bcen retained by Respondent.
E. General Constitutional Arrangements conceming the Indigenous
Groups
31. Duriiig tlie period 1921 to 1925 the powers of administration
and legislatioii in respect of Native affairs vested in the Administrator,
a. Respondent's represeiitative. to wliom the Governor-General had
dele Y d such powers'. The Advisory Council. as lias been pointed
out . advised the Administrator, irilcralia, in regard to matters of
general policy, including Native affairs. and one of the memhers of the
Council was rcquired to be a person s ecially ualified to advise on ail
matters coiicerning the Native races opsouth dest Africa.
32. Under tlie Soutli \Vest Africa Constitution Act-of 1925,the powers
of legislation and administration in respect of Native affairs remained
vested in tlie Adrniiiistrator. The new Advisory Coiincil had as one of
its members an officia1selected mainly for Iiis knowledge of the reason-
able wants and wishesofthe Native population of tlie Territory =.
33. In 1949 the Advisors Council \vas abolished and its functions
transferred to tlie Eseciitive Cominittee, ir.liich advised the Admini-
strator in carrying out Iiis adininistrative duties7. For the proper
furtlierance of the interests of tlie indigenous population. the Secretary
for Soutli West Africa. in his capncity as Chief Native Comniissioner.
attended meetings of the Esecutive Committec whenever matters of
policy or administration concerning non-\Vhites were considered by the
Esecutive Committee.
34. As has been pointed out 7,tlie South West Africa Affairs Amend-
ment Act of 1949 made provisiori for the abrogation of the powers of
'See now. hoivever. para.34.istru.
*As regards legislative niid administrative powers pertaining to the Eatern
Countcr-bleniorial.ook \'III. sec. CCliap.VI. paras. tu.r7. 20 and Zr,of this
3Act No. 23 of,949, sec.22,in The Lnwrof Southll'esl Afric1949. Pp. 170-187.
' Vide para. 14, supra.
Para.15,rupro.
6 Para.27.suhrn. COUNTKR-MEMOR IF SOUTH AFRICA "3
legislation granted to the Govemor-General in 1919 and delegated by
him to the Administrator in razr.
Aftcr the adoption of the1~ A4c~it ws ftlt. however. ttiat tlie power
of tlie Go\,ernor-Gencral to legisldte Ly way of proclamation for tlie
'l'erritorvshould be rztained. Accordin~lv. the Soutli \\'vst iifrica Affairs
Amendment Act, 1951, provided tK&' the Governor-General could
legislate by proclamation in relation to any matter in regard to which
the Assembly was not competent to make ordinances. This power was
conferred on the Governor-General as from 17 October 1951 w.hich was
the date that had been fixed for the lapse of his previous powers in this
regard 1.
35. As from I April 1955 the administration of Native affairs was
transferred to Respondent's hlinister of Native Affairs (now designated
the Minister of Bantu Administration and Developrnent) 2,who functions
under the control and direction of the Governor-Geneyalin Council. The
effect of this Act was, therefore, to transfer the administration of Native
affairs in the Territory from one organ of the South African Govemment
(the Administrator) to another (the Minister of Native Affairs).
From tlie same datethe Adrninistrator became a member of the Native
Affairs Commission. The Minister of Native Affairs possesses auth0rit.y
to delegate any of his powers and duties to the Administrator in, his
capacitv as a member of this Commission. and he has in fact exercised
th6 :iutiioritirirespectof certain funcrion, ;ilid dutiej
Tlic ainis and tffcit of this transfcr of ;LilniiiiisufS;ttive :iff~iri
are dc~lt ivitli elsewhcre in this Cuuntcr-31~.morI.<
36. It is clear. therefore, that Respondent has al aU times retained
fulland direct control over legislation on and administration of Native
affairs in the Territory, and that the indigenous inhabitants of the
Territory have not been subjected to the control of the European in-
habitants.
37. To enable Respondent to he at al1times fully acquainted with the
desires of each group and to enable such population groups to be ac-
quainteù with Kespondent's views, Respondent has built up certain
channels of communication. The office of Chief Bantu Affairs Com-
missioner and his stafi' constitutes the main link with the indigenous
population groups. In each of the tribal areas beyond the Police Zone.
and in each district and in each of the larger Native reserves within,the
Police Zone, the Chief Bantu Affairs Commissioner has a representative;
either a Bantu AffairsCommissioner, a Superintendent or an Administra-
tive oficer, \vho is in close contact with the members of the indigenous
group within his area.
The fnnction of these officiaisis larliclv confined to one of assistance
and &dance, through which they havebien able to play their part in the
develo~ment of the indi~enous political institutions of the varions popu-
lation >oups, which are'bescribédbelow.
Act No.55 ofrggr (S.A.)secz,inStatufssofthe UtiioofSoufh Afri~1951.
P.404.
VidaAct So. 56 of,954 (S.A. n,StoiutcO/the Unionof Soi'th Afrtcn 1954,
PP.559-565.
' Vida Book VIII. sec. C.Chap. VII, paras. 5-8, of this Counter-alemorial.
' The Head Officof whichisatWindhoek.1x4 SOUTH WEST AFRICA
F. Indigenous Political Institutions outside the Police Zone
38. Ashasalready been pointed out l, a policy of employing traditional
institutions forpurposes ofgovernment ofthe groups concemed, admitted
of fairly easy application in those territories outside the Police Zone-
viz., Ovamboland, the Okavango Native Territory and the Caprivi
Zi~fel-where tribal or~anizations had remained intact and were in
opcration \i.h~.ntlic \l;in'h;itc\ifniassume11 l'or rcasons Ont ssillhcconie
apparent. Iioii.c\.er, the application vf ii <),stem of iiidircct rule to tlie
iinokovcld pxricntç(l morc difficulties. \vliile the habits of the Biiilimçn
have thui f:irinade it \vell-nigh imposii1)leto crcnte for them soine form
of political orgaiiiz:ition ur rrlirejentatioii.
-,. Remondent has alreadv dealt with the social and ~olitical oreani- -
zatioii; of'thc \,3rii>iijindigc;ii,us h~oups\i.tiicli \vçre in'rxistcnce prior
to the assurn~tion of the >l:indntc '.Iriulint folloa.s.;tbrief accouiit ivill
IIL.givcn of the de\~elopmeiitof iridigenoui ~)olitic:ilinstitutions in tlie
iiortlicrn arc3 >ul);eqiient tg> 1920, an(1 of the problems encouiitered
by Kespondtnt in ciidenvouring to aiiist sucli d,:\.r.lopmeiit '.
40. As stated previously ',the various Ovambo tribes have for a very
long time functioned as separate political entities. each with its own
system of rnle. The German Government in South West Africa never
exercised any authority over these tribes, and had no resident officiais
in Ovamboland.
41.After the Police Zone had been occupied by the Union forces in
1915,and pursuant to messages and invitations received from the tribal
miers of Ovamboland. Reswndent c.nsidered it advisable to stati~~
reprc.sentatives thistcrritor) under its coritroll
\\'tienofficinlsscrit ID?Respondcnt to iri\~çstigatccoiiditions iiiOvariibo-
land arri\,ed tliere. the\ fourid the othenvise rçlativelv oeaceful tt.rritorv
in a state borderi& on chaos. Firstly, a very severéfamine w&ragiig
and was taking a heavy toli oflife amongst the Natives. Secondly, raiding
and plundering on the part of certain armed sections had become the
order of the day. Thirdly, the Portuguese Government had sent a strong
punitive expeditionary force-for alleged raiding-against Chief Man-
dume of the Kuanyama tribe, whose tribal area was cut in two by the
border line between Angola and South West Africa.
42. Under these circumstances there was initially no clearly defined
~olicvwith re~ard to Ovamboland. Witb the vervlimited staff ofadminis-
iratice officiaïsavailable for the whole territor; and without any police
force, it xvouldhave been quite impossible to apply to the Ovambo a
completely new political and legal system. The action takenby Hespond-
ent consequently amounted ta controlling the Natives more and more
Vide Book IV. Chap. V. para. 8, of this Counter-hlemorial.
* Vide Baok III. Chap. II. of this Counter-&fernarial.
3 It will be observed that hardly any reference is made to published sources in
respect of information supplied. The infarmation has been obtained from mspon-
dent's oficials and ethnologists and ean besuppoxted by oral evidence il necessary.
+ Vide BookIII, Chap. II. para. 40, of this Counter-Mernorial. COUNTER-MEMOR IFLSOUTH AFRICA 11s
through their own tribal leaders. This system was commenced in the
Kuanyama area.
43. After the death of Chief Mandume at the beginning of 1917,
aii the senior headmen who had served under him.were encouraged to
come together as a council and to hold regular meetings to deal with the
affairs of the tribe. Attention was given to tribal laws and every effort
was made by the officials to gain the complete confidence of al1 the
traditional headmen-councillors. Gradually the first foundation of a
twe of indirect rule was laid in this st-onrrest and most important of au
t& Ovambo tribes.
For a time the Icuanyama area was the only one of the tribq areas
to which the above procedure applied. The principal headmen as well as
methods of goverdentn werrecommended by the administrative officia&d
in charge. The utmost care was taken to allow them to apply their own
laws which were studied, recognized and maintained. Such laws and
usages as were contrary to natwal justice or public policy were gradually
elirninated, but reforms were introduced only after carefd discussions
with tribal elders and with the approval of each ofpthe authorities
concerned.
The Kuanyama had in the past been mled by a strong and autocratic
chief and when suddenly they were deprived of his mle and leadership.
one of the greatest difficulties the officials had to contend with wasto
get headmen to step into the shoes of their former chief, i.e., to exerc?se
full authority and to take the lead and show initiative in their respective
areas. Patience and care wererequired to make them realize their respon-
sibilities, but in time one after the other fellinto line.
4. The system inaugurated amongst the Kuanyama was gradually
introduced into three of the other tribal areas-those of the Mbalantu.
Nkolonkati and Eunda tribes-where there were no chiefs, but where
headmen were found to control se~arate districts within their tribes.
'l'lieseheadmen h;id iie\.er before'come together to sit as a body. but
undcr proper guidance they began to nppreci;itc the advantage of sliaring
tlie rcsmiisibiliti and torirrol of the tribz as a \r.hole,and werc perjuaded
to adopt the example set by the Kuanyama.
45. The remaining four tribes were mled by traditional tribal chiefs.
Like Mandume, the chiefs were very autocratic, and although each had
advisers, being a few elders. they rarely. if ever, consultedm. It was
one of the most difficult tasks of officials to persuade these chiefs to
adopt a more 'ust and democratic form of government, includ~ng,the
use of these eldérsor headmen as counseilors. With the passing of time.
however. Natives {romtribes mled bv chiefswere able to av~reciate the
advantages of the good order and jiisiicz pre\.ûiling in othe; inbd areas,
controlled by hcadmcii, ~~articularlvin Kuaiiyama. The slu~fs.tao, began
to realize that thev could otrtain sound ad\.icz from older Iieadmen and
that unless they &d moreattention to the rights of the individual they
might lose their positions.
46. Serious difficulties of the kind mentioned were indeed experien~ed
in the case of Chief Ipumbu of the Kuambi tribe. Some of hls seni?
headmen and tribesmen develo ed very decided feelings against hiS
despotic rule and appealed to of&ialç for assistance. To counter these
feelings Ipumbu applied his harsh methods more strictly than ever.116 SOUTH WEST AFRICA
payiiig little regard to human life. Tliis evcntually conipelled the Ad-
ministration to takeaction against Iiiin.and in 1932 he was deposedi. From
thedatcofhisdc.vosa1 the KuaniI~itrihe hasbeencontrolled bv a council of
four headmen and order and discipline are satisfactorily maintained.
47. As a result of the aforestated developments there are at present
iwo systems of government in operation in O\~amboland, viz.:
(a) In the tribal areas of Kuanyama, Kuambi, Mbalantu, Eunda, and
Nkolonkati.where thereare no cliieis. councils of headmen have been
sct uy IO (leal witli nll matttrs nffec;ing tlieir tribes. Tlirsc couricils
coiisi>tof triti.il len<lcrj.kiio\r.ii.ishendmen. c:~cliof \i,homisiri control
of :aportion of tlle tril~;,l:trea 'I'hci~ect r<.~uIirI\.Io~ISC.US~.iiiriiiil-
istraiiveandpolitical matters amofigst thenïselvei and, if necessary,
with the White officials, and also to sit as a court of appeal to hear
cases (under Native law and custom), which sub-headmen and
individual headmen have been unable to settle to the satisfaction of
the parties concerned.
(b) In tlie other tribal areas in Ovamboland, i.e., Ndonga, Ngandjera
and Kualuthi. where chiefs are iii control. sucli chiefs are in the
govemme* of their tribes aided by councils of their,leading me,n
whom they have placed in charge of particular portions of thetr
domains. The councils act as advisers to their chiefs and assist them
in cnrrying out their esecutive, administrative and judicial functions.
48. The chiefs and lieadmen in Ovamboland, as also in the other tribal
areas outside the Police Zone, are not chosen by the Government.
Whenever a vacancv occiirs on account of death or inca~acitv of an in-
ciimbent or fcir;III!other rcasun, tlie trihc concïriied d&:idésfor itself
!vliois to he its rioiniiiee. After ;irri\.iiig;I~lcci~ioirhey iiiform the nu-
thoritiri of t11t:irclii>icnd r<:qiiest;il)l~roi,alt1i~:reoIt rnirst bc enipti;i-
si~t:(l11i:itsoc11:il>pro\.nliin foriii;ility aiid rhat. ;ts fas is kno\vii, no
suc11tril~alri.iliicst li:isei,er b,vn rcfiiicd.
49. The chiefs and tht: council of Iieadmen have full civil and criininal
j~isdictioii over meinbers of tlieir own tribes,except in respect of tlie
crimes of murder, rape, Iiigli treason. aiid severe cases of nssault with
intent to do serious bodiiy harm, wliicb are dealt witli by the South
West Africa Division of the Supreme Court of South Africa.
50. Eacli tribe in 0v;unboland has its own tribal ofice withasecretary,
and iii suiiie cases assistnnt-secretarie~. appointcd 11).tlie tribe and paid
out of tribal fiinds. The iiuanyama tribe. for instance, Iiristliree assistant-
serretaries. two of whom are in charge of outlying sub-offices.
The secretary, \\.ho is a member of the tribe conceriied. is respoiisible
for al1records, corresponderice, the collection of tribal levie'.iinposed by
the tribe on its meinbers. and for seeing that tlie tribal ndniinistratioii and
the developinent of tlie trihal area are carried out as directed by the cliief
or council of headmen. The secretary is also the contact between the tribe,
the tnbal officeand the Bantu Affairs Commissioner.
51. Tlic Iiunnvamn tribr. :ilihougli further :idvaiiceil tlinii tlie othcr
tribes, may bc taken ;i,an es31111>1 to<:iI1iistr:irethe system ït prcserit in
t)l)craticii in tlie trihal arcas \i'itlioiit iliicfs in O\~;imbol~ii(l.
For the ~>iirpow<~f~~ulitic;il.judisi3l~;in~l.îiliniiiistr.iti\.i. i~rg;iiiizntion
the tribal ;ire? of Kiianvama is dividcd into eiglir alijtrists, cnsli oi \r.liicli
.
Yidc W.C. 10-1933. paras.3x9-320. pp 52-57. COUNTER-MEMOR OIFLSOUTH AFRICA 117
is under the charge of a headman-councillor, chosen by the people and
appointed by Respondent. Thetribal councilconsists of these eight head-
men-the omalenga-under the guidance of a Bantu Affairs Commis-
sioner in charge of this tribe. This council is also the central authority
ofthe tribe. It directs the affairsof the tnbehrough the tribal secretaries.
Each of these districts is divided into sub-districts lomikunda) which
have fixed boundaries and are in turn each adminktered bia sub-
headman, who is responsible to the headman-councillor of his district.
There are three of courts functionine in Kuanvama. These are
the district courts,;Re tribal court and the Court of ap$eal. The Bantu
Affairs Commissioner, who is also additional magistrate of Ovamboland.
attends the court of appeal in an advisorycapacity.
A district court has only civil jurisdiction. It functions within one
district, and there are therefore eight ofthese courts. Al1civil cases are
initially heard by these courts, in each instance in the court of the district
where the defendant resides. The district wurt is comuosed of al1 the
siib-headmcn in tliat districtA unique characteristic is thit tlic hçadman
of the (listrict doei not participate in the vroceedings. In 1act.lieniaynot
even be seen near the Drecincts of the court. The court a~~oints itiown
"chairman" and meet; in a section of the kraal of theZ6eadman. The
jurisdiction of the courtis not final. If either party is dissatisfied with the
decision. the case must go before the headmen of the district, whence
an appeal lies to the tribal court.
Thetribalcourts consist of the eight Iieadmen constitnting the council
of headmen. Apart from functioning on appeal in civil cases emanating
from the district courts, it is a criminal court of first instance. Sub-
headmen may attend meetings of the court and even participate in the
proceedings with a view to gaining experience, but they have no say in
the ultimate iudment or the sentence ~assed. Three of the eieht head-
men absent them;elves by rotation in aider to be able to sit onthe court
of appeal, when necessary.
The tribal court meets once everv month at the tribal officesat Ohan-
yena. The procedure here, although much more formal, follows the
general lines of the district courts, with the exception that the tribal
secretary may act as prosecutor in criminal cases.
Appeal from the tribal court lies to the court of appeal. The court
of appeal consists of three members. They are headmen who serve in
rotation on appeal, not having sat in the tribal court when the case was
heard there. The court of a~~ealis also attended bv the Bantu Affairs
Commissioner for the of giving advice, if ~ecessary. The court
has its sessions at the administrativeheadquarters at Oshikango.
52. In the tribal areasunder the control of chiefs. civil and criminal
jurisdiction is vested in the tribal headmen and sub-headmen in charge
of omikziirda.Appeals lie to the chief. assisted by some of his counsellors
and, if necessary, bu the Rantu Affairs Commissioner.
53.In 1929the O\~ambolandAffairs Proclamation 'was passed with
the approval ofthe tribal leaders concerned. The Proclamation provided,
inter alia,for the setting aside of Ovamboland as a Xative reserve for the
sole use and occupation of the Ovambo Z; forthe creation oftrust funds
z5a-zni..No. 27of 1929 (S.\V.A.].in The Laws ofSoulh Wcsl Africo rgzg.pp.
Ibid.sec.I, p. zjS.118 SOUTH WEST AFRICA
for each of the tribes in Ovamboland; for the payment of levies by
members of the tribes to those funds: and for the monevs in the funds to
be expended as Jirçctcd by the hdministr~tor (nu\v the iliiiisterof bantu
Adminijtrstiuri and I~cvelo~~iiierit ).3ftt.r corisultation with the chiefs
or hc:idrneii. "uuon obiects whiîli IIIthe ouinioii of the A~linini.itr;itor
arein the in'tereit and Ealculated to promot; the welfare of" the tribes 2.
54. The tribal leaders have been reylarly consulted as regards the
manner in which the monev in their funds should be suent. and this has
led to inenibers of ths tribes beiiig encouraged to p:irt;cipate under tticir
leaders in the iiinriagement of tlieir owii aFf.iirs.Tlicv have ~.oriizqueiitly
drvL.Io~éda h:il)it of discusiinr vossiblc itcnis of cxvenditiire ;imoncjt
thems;lvc.s. and of then subniitïiiig those ivliiclithe! kpport for inclusion
in the draft estirnatej presentt<l tu tlie llinister for his foriii;il q>..o\'al.
55. The tribal institutions, as described above. have a very definite
democratic character, the headmen being chosen by the tribe. and it is
Respondent's policy to see not only that this character remains unim-
paired, but also that these institutions be developed and extended to
enable more members of the tribes to take part in them.
56. It will be seen that in Ovamboland, as in the other tribal areas
beyond the Police Zone. the Native inhabitants to ali intents and purposes
govern themselves through their chiefs and headmen according to their
own laws and customs. Although, in theory, many of the laws enacted
for South West Africa apply also to Ovamboland and the other Native
areas beyond the Police Zone (other than the Caprivi), few, if any. of the
provisions thereof are enforced in those areas. So. also, in the judicial
sphere the courts of South West Africa concern themselves only with
serious crimes in resmct of which ca~ital vunishment or a lone term of ~,
imprisoniiieiit iiiay t>J.usriiied .iiiil f;r ,1ic;rst liistice is adniinistercdhy
tribal tribuntilj acsor ing to \atii,e ln\%aiid custom. Everi in financi;il
matters. althoueh anv efvenditure from their trust funds reauires to be
autliorized IJ~ti<c\linistc;, iuch iteniiof (;x~)<:iiiliturac5;ire rz<.:-,nimL.ndcil
hy the Sati\v Autl~oritiesare al\v:i!,sauthorized if fundspermit.
57. Takine the vosition as a whole it can be said that the Ovambo.
because of t& jntidactorv rnrtliods of govçrnrneiit ~\~ol\fc.( lIVthemselv<:s
\vit11the njiist:inct: aiid guidance of \Wiite olfici~ls,have becomç :iwell-
ordered, happy and exceedingly loyal community of Natives, and no
more than a few White officiais are neeàed t~e~e to euide them and to
exercise a good influence over them. -~ ~~
The South West Africa Commission of 19,- stated in this ree-rd:
"On the evidence taken by us and from what we saw in travelling
through the country and visiting the different places we could not
help coming tothe definite conclusion thatthe Ovambos arenot only
satisfied with the form and administration of Government which
theyhave had since the Union Governmenttook control of Ovambo-
land. but that they are also as a people contented and happy and
think tbemsel~~esmuch better off than they were under the Govern-
' Vzde\..tSo jiof iqs.4inSrotulpio/thr Unto>iO/ Soulh .+/rtrori,54p(>.5~9.sCj
and I'r,c S<..iit,%,fir,jAin The Luwr O/ South Il'rrt rllrlro 1958pp 13)-14i.
l'roc So. 2: cf ,929 [S \I.A.).=,cc3. in The Loirs of South Il'rr.i/rtro1929.
pp ?jS-262 COUNTER-MEMOR IFLSOUTH AFRICA Ir9
ment of their own Chiefs without the supervision of Union Govem-
ment officials'."
58. The fivetribes of the Okavango territory were, at the inception of
the Mandate. al1under the control of hereditarv chiefs. Some of these
cliicfs \ver<ra1hr.wenk aiid incKicicnt. and to iircngthen their position
:ind ti,ensure J>C~CLand stability. ;LSnrive :\ffairs officerwas st:ttionrd
in tli,-territorv to ad\'is~chicfs inthe atlmini.~tratioiiof tribal affairs.
The chiefs leaned more and more upon the said officia1to support and
maiotain their authority over their people 2.
59. Fearing for their position, the chiefs were initially loath to have
councils of headmen, but they were graduaily persuaded to appoint
councils, consisting of leading men of their respective tribes, to assist
them in their functions, aiid in time the councils became firmly eç-
tablished. The councils advise the chi~fsand assist them in carrying out
executive. administrative and 'udicial functions. Each councillor is in
charge of a particular portion O1the tribal territory.
60. The chiefs, assisted by their councils, retain full political power
as long as they do not countenance laws or customs contrary to public
policy or naturd justice. and they retain their full judicai authority
under Native law except the right to adjudicate in respect of capital and
other serious crimes, which are reserved to be dealt with by the Supreme
Court.
Complaints are taken in the first instance to the kraal head and, if the
matter is not settled there, the case is tried by the headmen or by the
chief, according ta its importance. Appeals lie from the headmen to the
chief and from the chief tothe Bantu Affairs Commissioner.
61. In 1937 a proclamation of that year provided for the setting
aside of the Okavango Native Territory as a Native reserve for the sole
use and occupation of Natives and for the establishment of one or more
tmst funds for the tnbes of that Territory, the moneys of which were
to be used "upon objects .. .in the interest and calculated to promote
the welfare of the tribes", but only "as directed by the Administrator
(now the blinister of Bantu Administration and Development) ', after
consultation with the chief or chiefs" =.
62. In practice the provision providing for consultation has been
used, also in the case of the Okavango Territory, to encourage the mem-
bers of the tribes to participate in the management of their affairs. They
are invited ta submit suggestions as to how their tmst fund moneys
should be expended. and their suggestions have, as far as has been
practicable, been given effect to.
U.G. 26-1936,para.69,p.19.
U.G. 33-1925.paras. i13a"d 116,pp.30-3,.
' Proc.No.32of 1937(S.W.A.). in The L~WS of Solth WestAfrira 1937,pp.
30'-312.
andProc.eNo.1r9of1958gjqinnThe LawscofSoulhWestSoAlriça1958.pp.133-'4'565
' Proc.No. 32of ,937 (S.\V.A.sec.3 (q),inThe Lam ofSovlh West .I/rica
1937.P.308. COUNTER-MEMORIAL OF SOUTH AFRICA 121
keep in touch with, and be influenced by, the Rotse cowt across the
river in Northeru Rhodesia.
67. In 1930 a Proclamation l,containing provisions similar to those
of the Ovarnboland Affairs Proclamation z. was promulxated, which.
inter dia. eave the Administrator authontv to eitablish-one or more
trust iundsuforthe tribes in the Caprivi zipfd. As in the case of Ovambo-
land3 and the Okavango Native Territory ', the provisions of the
Proclamation relating to consultation with the chiefs have been used to
encourage the members of the tribes concerned to participate in the
management of their affairs.
68. \Vhat is now the KaokovelJ réscrve. nleasuring ovcr five nnil a
half million hectares, was. al tlie iiiception of ttie Mandate. populated by
Jlimblr. T,imba and Herero-al1 Herero-spenkina Xatives. At that tinie
they inut 1i;svenumhered approximately i.fioo. Ïor in 192 j they totalled
2.000 '.;inclthrre hdd been no large-exo<lusof inhabit:iiits in the interim.
60. In 1015. on hearine that the Union troops were about to occupy
~ikllioek.~a-grou~ of ~grero who had. duringhthe German regime. fl>d
to r\naola. crossed the Kuiiene river arid invnded tlie Kaokoveld. oustcd
the HTmba and Tiimba from places which the latter had occupied for
gcncr.ltions. and thnk full possGssionthereof &.
As a result ttiere 11.3slittle lo\~ lost 1,etweenttiesc groups. In addition.
the Herero wercdivided into two camps and onls a loosl:ssstcm ofcontrol
w~s ex~~~.~ed~ ~ ~ ~ ~ders such as Chiif Oo-loe..-
70. In the 1927annual report the position in the Kaokoveld was
described as follows:
"Chie/Oor/og.AHairsin this Cliief'iréserveha\.e been quiet on the
wliole. althowh laraely influenced bv soiiie of his headmen. lie dm
not always exërcise-stfict justice, bui niles rather with cunning, and
itisoftenthe weaker whosufferat hishands. Becauseof this hehaslost
several of his wild Ovahimba and Ovashimba subjects who haveleft
his reserve to take up their abode with Muhona Katiti or elsewhere
where they are out of his reach. It is unfortunate that Oorlog is
surrounded by such a mixed lot of followers amongst whom there
is constant and keen rivalry for seniorit and headmanship. Being a
bloodrelative of many of these, Oorlogflnds it very dificult to follow
the straight road of justice. To add to this the Hereros,are divided
into two camps, viz.. that of the Okahandja tribal section and that
of the Ornaruru. and it is here that he finds it most difficult to keep
his people together. Oorlog personally is a native of outstanding
intelligence and personality, and if it were not that his sublects are
' PIOC. NO. 27 of ,930 (S.W.A.), in Tha Laws of South Wcsl Afvicn rggo,pp.
144-146.
Ploc. No. 27 of 1929 (S.W.A.), in The Lows ofSmith West Afhco r929,Pp.
258-262. Vid~ para. 53,rupro.
Vide para. 53.supra.
' Vide para. 62.supm.
' Vide U.G. 22-iq27. p.22.
U.N. Doc. Tlr75. p. 151.122 SOUTH WEST AFRIÇA
comprised of much mixed sections, causing many complications,
he would make an ideal native ruler.
ChiefMuhonaKaliti. This old chief possesses little force of cha-
racter, and not being of royal line he does not enjoy much authority
over his nomadic Ovahimbas and Ovashimbas. These people are
undoubtedly the wildest of South-West Africaandit is at times most
difficult to get into touch with them.
With frequent visits and policepatrols to their little coloniesin the
backblocks of the Kaokoveld, however, the Native Affairs oficer is
getting more and more intotouch with them and their affairs. They
are nomads in the truest sense of the word and move with the
seasons always in search of new pastures for their herds and flocks.
This often makes it well nigh impossible to keep a strict control and
check on al1 cattle movements. The Police at Tsh'imhaka have
nevertheless done excellent work during this year.
Chief Kasupi of Ombepera is, like Muhona Katiti, an Ovahimba.
Conditions in his reserve are similar to those of Muhona Katit'."
71. Theinhabitants of the Kaokoveld were scattered over a very large
area, much ofwhich ismountainous and whichwas, at the inception of the
Mandate, served by no roads. It was, therefore. extremely difficult even
for Native leaders to keep in contact with their people. For European
oficials it was well nigh impossible. There was consequently no alter-
native but to allow the very loose system of control exercised by the
Chiefs to continue for a while.
72. The first step taken by Respondent was to establish on the Kunene
River a police post to prevent clashes between the various groups, to
maintain law and order and to obtain the co-o~eration of the people
through their chiefs and other leaders in preventing stock movêmehts
froThe whole area was also placed under the jurisdiction of the Xative
Commissioner of Ovamboland who paid visits to it and made contact
with its leaders and people. With the opening up of roads under his
directions, themountainousnorth-western regions becamemoreaccessible.
and made it ~ossibie for the said Native Commissioner to maintain
regular contact with, and to bringhis influenceto bear on, the tribes.
73. By 1931a better understanding had developed between the two
sections of the Herero, but the Tjimba in the extreme northwest had at
their own request been divided into three sections after a dispute had
arisen, and difficulties of control were not lessened. This wili appear
more fdy from the followingextracts from the 1931annual report:
"334.The Kaokoveld has been much more quiet than last year.
There now appears to be a better understanding between the two
sections of the Herero people, viz. the Maherero and the Manasse.
Last year they were constantly at loggerheads. but since they were
brought together by Chief Oorlog for the Native Commissioner to
listen to their grievances theyhave abided by the settlements amved
at. Whether this peaceful state of affairs willlast.me alonéwilltell.
335. The Maherero Herero is a keen politician and is not happy
unless he can suppress or de over a different section. As mentioned
in previous reports Chief Oorlog has a very difficult role in the
'U.G. 31-1928,p. 45. COUNTER-MEMORIAL OP SOUTH AFRICA 123
Kaokoveld. The hlaherero leaders, who number some very intelligent
natives amoiig them, are constantly scheming to break away from
Oorlog'smle. The relationship between ChiefOorlogand the old chief
Muhona Katiti until the latter's death in October was very friendly.
A much better understanding existed between them and they settled
their respective troubles much more amicably.
336. The Ovatjimba Hereros in the extreme North Western
Kaokoveld. who formerly belonged to the old chief Muhona Kasupi
and later to Lis son Kahewanawa, were at their own request placed
under the temporary leadership of his nephew Kamho Kahewanawa
and Kasupi's brother Ueripaka. Some dispute had arisen between
thelast twomentioned and as the split was widening the respective
followersrequested to be divided into three sections until such time
as they can be called together to choose a single leader. These
natives live in the wildest parts of South West Africa '."
74. During 1936 the Administrator visited the Kaokoveld and held a
representative meeting to discnss ways and means whereby the leaders
could CO-operatebetter and also exercise more efficient control over the
tribesmen. After the Administrator had s~oken at length and had
appealcd to the leaders to jettle their differgnces and to cg-opernte. the
meeting reso1vr.dto set up for the Kaokoveld a councilof hcadrnerisirnilar
to thrisr ehistinc in some of tlie tribal nreasof 0vambol;iiid. Itwx not
to be expected that everything would run smoothly from the beginning,
but a definite attempt was made by the Native Commissioner to
overcome the difficulties.
75. With the death of Chief Oodog during 1937, the way was finally
opened for the creation of a tribal council to take control of the Herero,
and this step was duly taken Z. In the 1938annual report it was stated:
"Since the death of Chief Oorlog as reported in para. 395 of last
year's Report, the Herero sections have been controlled by a Tribal
Council.the members of whichhave been chosenbv their own peode.
,lhr ~ouiiiil meets regularly. ahout once :month.it 0korosa;e O; at
soinr other appointed plnce wliere c.asesand disputes are attended
10 3."
76. The following year a Native Affairs officer was appointed as
Respondent's representative in the Kaokoveld. His main function \vas
to act in an advisorycapacity to the chiefsand other leaders. His presence
immediately achieved good results. He discovered, for instance. that
Herero headmen had been inclined to deal with cases and dis~utes
witliout referencc to the coiincil of lieadmen and that cases had occbrred
in which favouritism and tlie social position and wealth of the partit's
hdd influenced the council'sdecisions. Heuaed Iiis influence uith success
to have such malpractices discontinued.
The new official also found that rnany of the Himba were under no
control whatsoever. They lived in family uuits, had never submitted to
tribal rule and were scattered over a large area where control was stiU
almost impossible.
77. As a result of the influence of the new officialthe Himba started
' U.G. 17-1932,paras. 334-336, P.53.
U.G. z-1939. para..410.,P.55.124 SOUTH WEST AFRICA
attending the Herero tnbal meetings in increasing numbers. and sub-
mitted their disputes to the councilofheadmen.
Since 1941the said council has controlled theaffairs of ail three groups
-the Herero, Himha and Tjimba-with the assistance and advice of the
Native Affairs (later Bantu Affairs) officer.At times this control has not
been completely satisfactory, but, al1in all, the present systemhas been a
distinct improvement on those previously in operation.
78. In 1953, on the recommendation of the council, a government
notice 'was issued providing forthe payment of an annual rate by the
residents of the Kaokoveld to the Kaokoveld trust fund. Such revenue
as is coilected. is expended only in consultation with the council which
is thereby afforded experience in the handling of its own affairs.
79. Today the position is that there are no chiefs in the Kaokoveld.
A council of headmen lias taken the place of chiefs, and deals with al1
matters affecting the trihes. This council consists of tribal leaders who
are each in control of a portion ofthe tribalrea. They meet regularly to
discuss administrative and ~olitical matters with the Bantu Affairs
official, and often thereafter ;i;LS court of :~ppçalto hcar cases under
Kative law and custom wtiich individual headmen have been unahlc: to
settle to the satisfaction of the parties concemed.
The headmen are elected by the members of the tnbe concerned.
usually on an hereditary basis. The names of the elected headmen are
then fonvarded to the officials for approval hy their supreme chief,
the State President. To date, the nominees of the tribes concerned have
always been approvedof, as far as can be ascertained.
80. It will be seen from the above that the tribes of the Kaokoveld
to a largeextent govern themselves through their tribal council, and that
the Bantu Affairsofficialmerely assists and guides them in this task.
81. Amone the Bushmen no tribal authont" has e~e~ been recoen-zed Z.
There is no Guestion of suhmitting to maiohty opinion. nor is a test of
such opinion ever made. Consequentlv the Uushmen have not developed
a ooliiical structure. Their lack of Ïecoenition of authoritv ~resents a
dihcult problem that willstiii take a great deal of time to o;e;ome.
82. Respondent has from the outset made every effort to secure the
confidence of the Bushmen, e.g.. by placing reliable Natives at waterholes
where Bushmen were in the habit of congregating for apart of the year.
with a view ta keeping contact with them. These experiments, however,
achieved only Limitedsuccess.
83.During 1950 Respondent appointed a commission to enquire into
the whole matter ).One of its recommendations was that a Bushman
Commissioner be appointed, and this has been given effect to. One of
the duties of the Commissioner is to attempt to get the Bushmen to
participate in the management of their own affairs through selected
leaders instead of continuing to function as independent famiiy units.
619-621.o.335of1953 (S.W.A. ).TheLnwr of South WestAfrica rg.53pp.
Vida Book 111,Chap. 11.para.57.ofthis Couoter-Mernorial.
VideBook VI.Chap. III.para. 64.of thiCounter-Memonal. COUNTER-MEMOHIAL OF SOUTH AFRICA 125
Some succeçs has already attended his efforts in these directions and.
as moreBush peoplejoin those settlednear hisheadquarters (at Tsumkwe
north-east of the Epukiro Native reserve). he will extend the form of
control through leaders selected by the people themselves. It is hoped
that in due course a representative council can be formed on the lines
of the councils which have been set up for other indigenous inhabitants
without hereditary leaders, ta regulate their alTairsunder the guidance of
the Commissioner.
G. Indigenous Political Institutions within the Police Zone
84. As a result of the dismptive effect of certain historical events. to
which reference has already been made ',the Herero, Nama and Dama
were scattered ail over the Police Zone when the Mandate was assumed.
Their tribal lifend institiitions had t~r<$kcdnowri :ind no group orgaiii-
'atioris <:xiited'l'tonly Sati\,t: lencl~.incontrol of certain fastioiis at
the time werc a V:im:ichief in the Okombalie rcscrvc who ci>iitiiiur.(lto
admiiiistcr the reserve wittiGovernment recojinitioii. Ctiiel Goli.itlof
the ljerseba S;im;i and the Kaplein of the Uondclswnrts.
85. In a later chapter2 esi ion wdielneal with its policy regarding
reserves. in imdementation of which reserves have been set aside for
the sole use and occupation of the indigenous groups. One of the main
considerations of this policy was the need to bringthe dispersed remnants
of the various groups together and to re-establish their tribal organt-
zations. h .
86. The process of sorting out the scattered Natives was indeed an
enormous task. Members of the various groups were widely and hap-
hazardly spread out. So, for instance, Herero had been forced by cir-
cumstances to take up work as labourers in areas formerly occupied by
Nama. and vice uersa.with the result that members of the same tribes,
clans and families were located at different ends of the Territory.
In settling the Natives in reserves, care had to be taken to bring
together members of particular groups, or even sections of groups, in sa
found among the Herero, who had,sa. Ininteralia, a Manasse section and ae
Maherero section, which in the olden days functioned as independent
units, and amongst the Nama who were divided into a number of tribes
and clans.
At the same time, and in order to cause a minimum of inconvenience,
removals from one part of the Territory to another were not enforced.
and in consequence members of more than one group were admitted to
some reserves.
87. The position is, therefore, that even up to the present the, it has
not been possible to settle only homogenous groups in particular reserves
in the Police Zone. although there are some reçerves which are almost
exclusively inhabited by members of particular goups. In order to
facilitate the further development of the political institutions of the
Natives, attention is being given to the creation of consolidated home-
lands for the various groups 3.
' Vida Boak III. Chap. III. of this Counter-Mernorial.
3 Vide Book IV, Chap. VII,paras. 32 and 35,of this Counter-Mernorial.126 SOUTH \VEST AFRICA
88. In the followingsections Respondent willfirst deal with the general
development of indigenous political institutions in the reserves in the
Police Zone since the inception of the Mandate, and then revert to the
particular institutions of the different groups.
THEDEVELOPMES NINCE 1920
84.Even before the first reserves were set aside bv Resuondent. vro-
vision was made for the appointment of headmen for ~a6ves whohad
no tribal leaders, as appears from the following extract from the 1922
annual report: .- .
"As the connectina link between the Eurouean officiaisand the
iiatives, headmen. er!cted b!. the people. Lrc :ippiiiiited by the
Govemnient aiid receivc a sm:ill s:ilary. Thcy are responsible for the
aood bcha\.iour of thc ueoi>le.scttle civil diir>utcs :imoncst them.
Ïepresent any grievan& 'théymay have Ad are, in &ct, the
substitute for the old native chiefs. As a de they are assisted by a
council of the leadina natives . . . In the nrban locations which are
under the control of the miinicipilitiç.s,supcrintendentsand hcadrnen
are appointcd aiid paid by the miinicip3lit) conccrned, suhject to
the app-o\.al of the Administrator '."
go. Subsequent to the setting aside of the first reserves, regulations for
their control were issued Z. In terms of Regulation I of these regulations
a magistrate has generai control of the Native reserves in his district.
and possesses ali the powers and may perform all the duties of a super-
intendent. Regulation 2 makes provision for each reserve to be divided
into wards, if necessary, and for each such ward to be placed under the
control of a headman, who in turn falis under the control of a super-
intendent, where one has been appointed, or of the magistrate of the
district'. These headmen are chosen by the residents of their reserves,
or of their particular wards in cases where reserves have been divided
into wards, at representative meetings. Although the election of any head-
man must be approved by the Minister of Bantu Administration and
Development ',such approval is generaUy a formality.
The superintendent of a reserve is required to keep a register of al1
Natives residine in or enterine the reserve. and of the huts and the stock
of the occupan~s; to make afotments of land; to collect taxes and fees.
issue Passes. suuervise sanitation. brand stock. and ge-erallv to control
the riserve
The headmenarerequiredgenerally to assist the superintendent in the
carrying out of his duties in the control of the reserve6. The Bantu
' U.G. 21-1923. p. 9.
* Ibid.p. 57.f1924 (S.W.A. in,ThaLam o/Soulh Wcst Africnrg24. pp.57-63.
' Vide sec.I (a) of Proc. No. 15of 1928(S.W.A.). in The Laws of South West
Africa 1918. p. 58read withAct No. 56of 1954(S.A.). in Slntuleofthe Union of
Swlh Africn 2954, pp. 559-565 and Proc.No. ~igof 1958 (S.A. n,Thc Lows of
South West Afvica1958, pp.133-141,
' G.N. No. 68of 1924 (S.W.A. Reps. 3and 4, in The LawrofSouth Wesl Africn
r,ad. ...-..-8.
"Gd.. Regs. 6,g.19, 23.24and 29 (2).pp. 58-62T.heduties and privilegesof
chiefs and headmen are al- defined in G.N. No.60 of 1930in Tha Lows of Soulh
West AfTicorgjo, pp. 4.8-424. COUNTER-MEMORIAL OF SOUTH AFRICA 127
AffairsCommissionerconcerned mav, after consultation with the su~erin-
tendent, appoint any elected memt>eror members of a Reserve ~Ôard '
to assist any headman, either speciaily or generally, in the execution of
his duties ?.
91. For each proclaimed reserve in the Police Zone a Reserve Board
has beenestablished, whichconsists ofthe Bantu Affairs Commissioner of
the district. or the su~erintendent or welfare officerof the reserve. who is
cli:iirmari of the ~onnl. 111~d'11Ivappointcd lie:idrnct~of tlie reser\.~,and
not more th:in sis ;idult S:iti\.c rri:ileielected bv III:iJiiltX;tti\,males
resident. or s os ses sins^ubstantial interests. in the reserve, fromamonast
themselves.'Such ecction takes place at a representative meethg
convened, after adequate notice thereof, at the instance of the Bantu
Affairs Commissione$or the su~erintendent '
This Board assists the superihtendent generally in the development of
the reserve and, as already mentioned. any elected member may be
appointed to assist a headman in the execution ofhis duties.
The Board also discusses the question ofthe items to beincluded in the
Reserve trust fund draft estimates to be submitted to the Minister of
Bantu Administration and Development for his approval.
Under this system not only the leaders, but also the ordinary tribesmen,
are given an opportunity of participatingin the management of their own
affairs.
92. During 1939there was passed. with the approval of representatives
of the Herero group, the Natives Trust Funds Proclamation', which
eçtablished the Herero Tribal Trust Fund and authorized the Adminis-
trator to establish the Dama, Nama and miscellaneous Native Tribal
Trust Funds by notice in the Gazette 5.The Proclamation also made
provision forthe imposition of a levy on members of a tribe, for payment
of the levy into the relative tribal trust fund, and for the moneys in the
fund to be expended "upon objects which in the opinion of the Adminis-
trator are in the interest, and calculated to promote the welfare, of the
tribe" '. Provision was also made forthe Administrator to summon from
time to time a council of the tribe consisting. inter dia, of nominalcd
chiefs. headrnen. and elected representatives of Heservc and Locallori
Advisorv Boards to advise on the admiiiistratioii of the tril~alfiind or on
any othérmatter'c~ncernin~ the tribe or Native affairs generally '.
93. To sum up,the steps taken to enable the Natives in the reserves in
'Constituted by sec. 4 ofProc. Na. 9 of 192.4[S.W.A.), in The Lairis of South
West Africn 19~4,~. 41. ~.
Reg. 2 (6) ofG.N. 68 of1924 (s.w.~.).in Tha Laws of South West Africa r9z4.
1957 as amended by G.N. 198of rg38 (S.W.4.).inThc Lam of South Wcrl A/*
1938.P. 392.
'Proc. No. 9 of1924 (S.W.A.), in Thc Laws of South West Africa 1924,p. 41.
*Proc. No. 23 of 1939 (S.W.A.), in The Laws of South Wdrt Africa 1939, PP.
222-232.
' Ibid., sec. r (r) (2).pp. 222-224.
Now the Minister of Bantu Administration and DevelopmentnideAct No. 56 of
1954 (S.A.) i,.flatutcs of the Unionof South Africa 195pp. 559-565, and Proc.
No7Ploc.oNo.523 of1939 (S.W.A.). sec.r (3) and (4). in The Lnws of South West
Africa 1939. p. 224.
Ibid., sez,p. 224.the I'olice Zone to pnrticipnte in the management of tlieir own affairs are
the following:
(a) For eacli proclaimed reserve headmen, duly elected by the residents
nt a rcprescntative meeting, are appointe<-lto control the reserve
under the siipcr\~isionof the superiiitendent.
(6) For cnch sucli reserve a Hcserve lloard hüs been constituted which
coiisists of the I3antu Affairs Commissioner or the superintendent of
the reserve, thç duly appointed lieadmen and not more than six
elected adult male Natives. This 13oard.apart from assisting in the
administratioii of the trust fund. assists the su~erintendent een"rallv
in the development of the reserve.
(c) III cacli reserve an nnnu;il generril meeting is convened to enable the
U,intu Affairs Commissioner to render an accouiit of tlie administra-
tion of the trust fund of the reserve for the preceding 12 months, and
to discuss better methods of cürrying outthe objects of the Fund.
(d) Tlie practice was initirited of holding separate meetings annually,
under the cliairmansliip of the Cliief Hantu Affairs Commissioner.
witli nominated aiid elected representatives of the Herero.Dama and
N311iiltribes '.to give advice on the ndmiiiistration of their tribal
funds. if aiiy, and to discuss and deal witli ariy otlier matters con-
ceming such tribes or Native affairs generally.
94. In :i<ldirion.i~iinrterly int:t:tinjii:1it:Irvgularly 1)).13aiituAHairs
C~,iiimis~iorier~for rlic piirl>o%i:oj f t~ringing to tlie iiotice of residciits
det;iils of tlie latest l-~iilntioii.10 cive them :i sh:iiire Io diiciiis tlieir
piev:iiicc.i and diificiiltiej. :ind tu )rovi<le for inutual consulration on
mnttrrs conceriiirig tlic iriliabit:inrs of rejcr\-cs. For tla last-iiieiitioned
Durnose annual nir?tiiics are ako lleld b)' the Cliief Bniitu Affairs Com-
~ ~ ~~-~~r or his re~resentative. Moreoier. the Administrator of the
Territory nt \.:irious timcs \.i.;its the reser\,Cj nnrl Iiolds iiiretiiigs \vitlxthe
reîidcnts. In tliis \v:ive\.r.ry effort has been niade to affor<l'tlit.inli;itiitants
of the reserves ampie opportunity of bfinging requests, komplaints and
difficulties to the notice of Respondent.. 1
95. The political institutioiiç created for the groups Foncerned have
been designed so asto recognize their traditional outlook and at the same
time to meet their new n&ds. These institutions are consequently very
flexible in order to allow the groups sufficient scope to assume more and
more respoiisibility for their own affairs.
THE HERERO
96. The 1904-1907 wars left the Herero landless and without stock 2.
The effect which the breaking up of the tribes had in the political sphere,
included not only the loss of tribal systems of govemment, but also of
most of their former leaders and sub-leaders. Apart from direct war
casualties, a large number fled the countr ,mainly to Bechuanaland, and
later died in exile: these latter includezthe paramount chie*, Samuel
Maharero ).
1 In the case of the Herero and Dama their representatives are the rnernbersof
the Tribal Councils constituted in termsof Proc. No. 23 of 1939 (S.W.A.), in The
Lnws of Soulh lVcrl Atvicn1939,pp. 222-232.
2 Vidc Book III. Chap. III, para. 84. of this Gunter-Mernorial.
VidtWagner. G.. "SorneEconomic Aspects of Herero Life", in African Sludiss,
Vol. 13. No. 3-4 (1954). p. 118. COUNTER-MEMOR IF SOUTH AFRICA 129
~t follows that when Respondent began to apply its policy of endea-
vouring to restore tribal life under tribal leaders for the Herero, it was
severely handicapped and had virtually to start building up aneu from
the very foundations.
97.The hrst step taken by Respondent. after appointing a few of the
leaders such as Hosea Kutako as headmen to maintain control and to
act as spokesmen for their people. and after collecting members of the
various tribes together, was to establish new reserves arid to make pro-
vision for the Herero in eight ofthese reserves, viz.. Aminuis and Epukiro
in the Gobabis district; \Vaterberg East in the Otjiwarongo district;
Otjituo in the Grootfontein district; Otjohorongo in the Omaruru district;
inithe Karibib district. and with Dama andr witNama in Tses in the Keet-
manshoop district. ~ubse~uently the Eastern reserve in the district of
Gobabis vas set aside principally for Herero.
98. The establishmént oftheSe reserves gave the Herero places where
they could pursue their pastoral way of life with a minimum of ad-
justment to changed coiiditioris. Each of these reserves was placed
under the control of one or more headrnen, assisted by a Reserve Board
consistine of not more than sis members elected bv the residents. A
superint&dent was appointed to each reserve to pide and support the
headmen aiid the Board in the execution of their dnties, and to eserçise
direct control in a nurnber of matters where control bv the headmeii and
the Board could not be enforced.
99. The headmen are not vested with any powersunder Kative lawand
custom. Respondent has intimated that it will take the necessary steps
to confer such Dowerson the headmen if the tribes concerned should so
aisli, but altlioÛgh thei1e:iJcrsIiave rrpratcdly cvpressed tlie deqirr:tliat
the m;in:iGemc.nt of trilxil ;iff.tir5should bc. placed more full? in théir
Iiands, KewonJc.nt Ii:i5bcïii un;~l)leto iiiducc tlisrn to furniili ilc.t:~iljol
any scbemêthey may have in mind.
THENAXA
roo. After the 1904-1907hostilitics some of the Kama tribes were still
permitted to use certain defined pieces of land ', but thesc were limited
apermitted to occupy land were the Berseba. under Chicf Goliath, anda
the Bondelswarts under a KafiLein (Captain). Subsequently the rights of
Nama clans to the Soromas. Franzfontein and Zessfontein reserves were
recognized 2, while other Nama were accommodated in the Neuhof.
Tses, Gibeon (Kranzplatz) and Warmbad reserves.
In ali these reserveçheadmen, elected by the residents, were appointed.
and subsequently Reserve Boards were set up.
101. According to the annual reports for 1935 ', 1936 ', 1937 ' and
1938 6,the Chief of the Nama in the Berseba reserve proved to be un-
'BU.G. 21-1924..p.rî.para. 85.of this Counter-Mernorial,
' U.G.25-1936, paras.258.260. p.44.
' U.G.31-1937, para. 256. p.43.
' U.G.25-1938. para. 320,p.55.
U.G.2-1939, para. 343.p.50.130 SOUTH WEST AFRICA
suitable and, in the interests and with the concurrence of the members
of the tribe, he was deposed. At the request of the residents he was
replaced by two headmen elected by them.
roz. Provisioii was made in the Natives Tnist Funds Proclamation of
1939 'for the creation of a Nama Tribal Trust Fund. The members of
the group have. however. thus far been opposed to its creation, and
consequently a Xama Tribal Council cannot be convened nnder the pro-
visions of the Proclamation. Informal meetings have nevertheless been
held with representatives of the group, and have served to teach the
representatives the principles of the functioning of a representative
body and to keep the authorities informed of the wishes of the group as
a whole.
103. Dama factions were occupying the Okombahe reserve under
the leadership of a chief, when Respondent took over the administration
of the Territory.
This ~osition was left unchaneed. but subseauentlv a Reserve Board
consistiig of six members was appointed to assht the superintendent.
When other reserve-.were set aside. members of the llnma groiip took
up residence in the Neuhof, Tses, Franzfontein, Gibeon (Kranzplatz)
and Eastern reserves, and were given representatioii on the Reserve
Boards. Furthetmore, a portion of Otjimbingwe in the Karibib district
was set aside for other Dama, and they have since then had their own
headman and three representatives on the Reserve Board to look after
their interests.
At a later stage the Aukeigas reserve was set aside for Dama. but it
was subseauentlv found to be too srnall for their needs and otherwise
unsuitable,' and bith their concurrence the residents were moved to an
extension of the Okombahe reserve. One member of theBoard of Okom-
bahe has been appointed to represent their interests.
104. In an effort to build up a tribal community from a number of
disjointed units, and at the unanimous request of the Dama in the
reserves, a new leader with the officia1title of Opperhoof(Supreme Chief)
was appoiiited a fewyears ago. The incumbent bas since proved active in
wnrking in the interests of the Dama and in developing a tribal spirit
amongst them.
105. Provision was made in the Natives Trust Funds Proclamation of
1939 2for the creation of a Dama tribal trust fund, and the necessary
government notice to this end was issued some years ago '. Even before
that time, meetings had been held regularly with representatives of this
group as if they constituted the Dama Tribal Council in terms of the
proclamation, and since, meetings have been held with the properly
constituted council.
1 Proc.No. 23 of 1939(S.W.A.)i .nThc Laws ofSoz'tlr WestAfricn 1939.pp.
222-Videpara. gz,supra.
3 G.N.No.1828 of1958(S.A.) i.nGoucrnmcn Gtorellc (S.AVol. CXCIV, No.
6148.5 Dec. 1958p.26. COUNTER-MEMORIAL OF SOUTH AFRICA 131
II. Future Development
106. Rcspondcnt ha?gi\,en an aicourit of the basic aspects and aims
of its policies in South \\'rsr Africa'.!Jure sptiific:illy\vit1reference to
~olitical de\,elopment. Respundent coiitcml)l;itcs an evolutionary
bowth of the triditional institutions of the varions groups in a manner
which would permit each to develop towards possible self-determination
without, in the process, preventing self-determination by others.
The success of Bantu authorities in South Afnca has suggested that a
similar system may fruitfully be applied in the Territory-naturally
with the adaptations necessary to render it best suited to the peculiar
circumstances and conditions of the Territory and its peoples. Conse-
quential amendments in the system pertaining to the White group may
also be necessary, in order to avoid overlapping in what can now become
more strictly parallel processes of development. Al1these matters form
part of the topics under consideration by the Odendaal Commission,
which \vas appointed precisely because Respondent considers tbe tirne
to be ripe for accelerated advancement in these spheres 2.As soon as
the Commission's re~ort is ar.ailable. Resmndent will eive immediate
furtlicr :irteiitioii to ilie in:itwr.;,il1I>;ocecdas fast Csis practicable
with th^ilcvclo iiieiit of tlic political iniritutions of the Sati\.es, to\i;irds
atuiiiriieiitdf rfi>culrini3tc niin;<n<lii1e;ilsof the snircd tmst.
1.Respondent's Reply to Applicants' Allegations (Memorials)
a~e&tionç contained in <a;agrGhS 78 to 8; and 114 to 127of Chapterwith the
V of the Memorials ' under the headings "Uackflound Information",
ment within the Native Tribes and Native Reserves", as well as withrn-
the charges formulated on the strength of such allegations in paragraph
128 (1).(z), (5) and (6)of the same Chapter '.
108. Save for certain errors dealt with below, Respondent does not
dispute the background information tendered by Applicants in these
paragraphs. Respondent, however, States that this information is wholly
inadequate for the purpose of considering the situation with regard to
suffrage and participation in government in the Territory in proper
erspective. Information relevant to this purpose has been adduced by
gespondent in the foregoing parts of tlus Chapter and in earlier Chapters
to which reference has been made therein, and the specjficallegations of
Applicants should be read against the background of the factualinforma-
tion supplied by Respondent.
109. In paragraph 84 fiApplicants allege that legislative powers which
' VideBook IV. Chaps. IV to VII. of ibis Counter-Mernorial.
Ibid.. Chap. VII, para. 35,of this Counter-Mernorial,
31, pp.131-135 and r39-142.
<Ibid., pp.142.143.
'Ibid., p.133.-134. 132 SOUTH \YEST AFI~ICA
wcrc withdrciwn from the Governor-Gcneral and the Administrator
in 1941) were "restored" by the South West Africa Affairs Amendnient
Act. 1951 '. The iinpression created is not correct. Such legislative
powers. which were abrogatcd by Act No. 23 of 1949 from a date to be
proclaiined, lapscd on 17 October 1951 Z. On the same day, however,
the Goveriior-Gencral was vested with powers to legislate by pro-
clamation by Act No. 55 of1951 Z,and tliere was therefore no break in
the existence of the powers and no restoration in such sense.
In the samc paragraph, when dcaling with the alleged "highly sig-
nificant" transfer of administration of Native Affairs, Applicants state
tliat the control over such administration "passed from the Adminis-
trator to th~~Union Minister of Native Affairs land the Governor-
~e"&al)" 3.And in paragraph 85, Applicants statc'that "powers origi-
nallv held bv the Administrator were passcd on to the Governor-General
of trie UiiioR.. ."'.
Tliese statcments tend to create a wrong impression. The adminis-
tration of Native Affairs has nt al1 times lieen under the directcontrol
of Respondent's Governmeiit. the powcr of administration having been
rcsted in the Governor-General, who delegated such powers to the
Administrator as a representative of Respondent's Government. and
acting under the latter's instructions5. Therc was no question of powers
"origiiially held" by the Administrator being "passed oii" to the Gover-
nor-Gencral. The effect of the transfer was merely this: whcrcas before
1955 the Governor-Gencral-in-C ountcolld and directed the
admiiiistration of Native Affairs throu., its re~resentativc. the Adminis-
trxtor. the (;overiior-Gciieral-in alcorii19.j~lcoiitrollr.d and
<lire<:tzclsucli admini3trntion tlirotigli niii>tlit.r rrl>resciitntii,c. the
5liiiistt:r of SltivrAff:iirs (now d<:-iriiateth? \liiiisttr of Ihiiitu Ad-
ministration and ~evelo~inènt) '.
PARACRAPH8S 6 AND 87 OF CHAPTER V '
110. III paragraph Sb Applicants deal with the riglits of suffrage
ivithin the Territory. The material point emphasized by Applicants
in the paragraph is tliat only White persons are allowed to vote at an
election of members of the Legislative Assembly. And in pragraph 87
Applicants allege that non-Wliites are escliided by law from scrving as
members of the Legislative Assembly, the Esecutive Comniittee or of
the South African Parlinment and excluded by practice from being ap-
pointed as Adininistrator of the Territory.
Respondent does not dispute the allegations in the paragraplis iinder
consideration, but wishes to point out tlizit these allegations concern
only political institutions devised and intended solely for the White
population gioup. As has been pointed out. the various population
groups were and are at different stages of development, and justice can
' Act No. 55 of1951 inSlaltrlcr the Li,rioof Sot<fhAfricrgjr, pp.404-40s.
Vidc para.74.rubra.
' 1,PP. '33-r34. .
' Ibid.,p. r3j.
' Vidc para. 14, supra.
Vidc para.35. rupro. COUNTER-MEMOR OIA LOUTH AFRICA 133
not be done to the legitimate aspirations of the various groups, inter alia,
in the governmental sphere. by ignoring these difierences. Provision has
therefore been made for the development of indigenous political institu-
tions along lines familiar to the groups concerned and rooted in their
traditions and culture l,while members of the White group participate
in a form of government which is in keeping 554ththeir political and
cultural background and experience. Thus the threat of domination of
some by others is obviated. and the way is paved for further separate
development towards possible self-determination for each.
PARAGRAP 114~ 115, 125,126 AND IZ7 OF CHA~ERV
1x1. In these p.uagraphs the Applicants set out the links that have
been established between the indigenous groups and the legislative and
administrative organs of Respondent. These allegations are not clisputed,
but reference should be made to the above description ' of the develop-
ment that has taken place in the field of government of the indigenous
groups.
112. In paragraph 116 of Cli;iptcri'of the \fernorials 'the hpplic:irits
refer to some ol the po\\.ersci>iiferrr.don the hiliiiinistrator unrler section
Iof the Nati\.c A~lminiitrntion I'roclsmation of 1028lS.\V.A.) '.In ti:rms
of this section, in so far as it is relevant, theZAd&inistritor is em-
powered :
(a) to recognize or appoint any person as a chief or headman in charge
of a tribe, etc.:
(b) to remove any chief or headman found guilty of a political offence
or forincompetency or for other just cause, and to order his removal
to some other part of the Territory;
(c) to define the boundaries of the area ofany tribe or of a location;
(d) to divide existing tribes into two or more parts or amalgamate
tribes or parts of tribes into one tribe or constitute a new tribe;
(e) to order the removal of any Native tribe or individual from any
place to any other place in the Territory, whenever he deems it
expedient in the general public interest; and
(J) to exercise al1political power and authority which, according to
Native law and custom, are held by a supreme or paramount A'ative
chief.
113. The powers set out in (c), (d) and (e) above, are again referred
to bythe Applicantsin paragraph 139of the lfemorials ',and will be
dealt with in Respondent's reply to the said paragraph '.It willbe shown
that these powers, as a1sothe other powers conferred by section 1 of the
' Vide paras3.8 fi.ri,flra.
' 1.pp. 139,141 and 142.
' lbid., pp. i~g-r4o.
' pro^.No.r5 of1928(S.W.A.) in Th6Lnwr ofSouth Werl Africn1928. pp. 58-85.
Noiv the State President:"ide Act No. "6 of1~54 inStolutes01 Th6 Linion of
South ,!/ric1954, pp. 559.565.
1,?p. 1~6.147.
7 Vi:e B.>k VI.Chap. III. paras. iz~A., of this Counter-hlemorial.'34 SOUTH WEST AFKIC.4
Proclamation, correspond to those eiijoyed by any Native chief in South
Africa or South West Africa. bv virtue of Native law and custom. in
rel:,tion to hr;~rlriicn;irid trihcsnieri subs~~rviciitto hini. and th:it it.~v:is
iiecesj:iry for the ,!.sicm uf tribal guvrriiment under the cuiitrul ol a
modern head of Statc to recociiize 3 sunrerne chicf in ili-rce of al1chiefs
and headmen, and to confer &ch powe;s upon him '.
114. A; regards tlic power5 ;el out in (a) and (b) above. it \rt;isneceî-
snry. in thc inrt:rests uf tlii: preservniioii :ind developnient of iiidigenous
wlitical iiiîtituiion;.to riiake orovisioii not uiili. for tlie :ii)i)uintrnrnt.
but also for the deposition and iemoval. of chiefsand headmêi.
As already stated 2,hereditary chiefs were in control of certain tribes
in the Territory when Respondent took over the administration of the
Territory. Alost of these chiefs had had very little contact with modern
civilization, and were actively encouraging practices such as witchcraft,
child marriage, etc., which Respondent was obliged to eliminate in terms
of the provisions of the Mandate.
It was moreover foreseen that some chiefs and headmen-especially
those in the remoter regions of the Territory, who had not previously
been subject to any control-might resent Respondent's control as
Mandatory and might becorne involved in seditious conduct. It was
consequently necessary to confer on the Administrator the power to
depose and remove chiefsfound guilty of political offences.
115. The necessity of providing for the powers under consideration,
isillnstrated by the following instances in which they have been invoked:
(a)During 1934 there were complaints by the Tjirnba in the Kaokoveld
that one of the Herero headmen had treated them harshly and
unjustly. After a full investigation, at which the complaints were
clearly proved, it came to light that the headman's actions had even
caused friction among the Herero themselves. The Administrator
was consequently obliged to remove him. This brought about a
considerable improvement in inter-tribal relations. as will appear
from the following extract from the 1935 annual report:
".j14. Tliere h:ij Iieenconsidcr;il>leirnyruicineiit since the remo\,al
of ~e;idm.,n 'Slioiii:ts\lut.itc. \\,hose 1i;irrliand uniust trcatmcnt of
the Ovatiimba eave constant rise for cornolaint in the Dart of the
.latteranh at tKe same tirne caused frict;on between the Hereros
thernselves3."
(b) In 1938it became necessary to depose Chief S. Mamili of the Eastern
CapriviZipfelfor the reasons set out in the 1938annual report:
"He had been warned on several occasions against practising
witchcraft, but he ignored al1 these warnings. In many other ways
too he had proved himself quite unfitted to rule the tnbe. As there
is no suitable Derson to take his dace as Chief. the Administration
1i:is<Ii:ciilerlto'substitiitz a bor~six hcs4nir.n. and nominations
for theftllingof thesc posts are noiv iindcr consideratio'."
In 1939 thé chief was te-instated at the request of some of the
headmen and members of his tribe.
' Vidc Book VI. Chap.III ,ara.133, ofthisCounter-Mernorial.
Vidcparas.40 ff.fupra.
' U.G. 25-1936,para. 314.p.47.
* U.G.20-1939,para. 420,p.57. COUNTEI<-MEMOP.IALOF SOUTH AFRICA 135
(c) Reference has already been made ' to the harsh methods applied
by Chieflpumbu ofOvamboland, wh'ichcompelled the Administrator
to depose him in 1932. The effect of Iiis removal \vas thus stated in
the 1932 annual report: "Since the removal of Ipumbu an atmos-
phere of peace prevails throughout Ovamboland 2."
(d) Keference has also been made3 to the circumstances under which
the chief of the Nama in the Berseba reserve was de~osed with the
concurrence of members of his tribe.
(e) In 1933it was discovered that a chieftainess of the Okavan O Kative
Territorv had been awîre of cases of child marriaae in aer tribe.
and had actually condoiied this practice. Although she was not
deposed, she was punished by having payment of her stipend '
stopped for six months, and this action had asalutary effect.
116. The case of Chief lpumbu ma also be used to illustrate ,the
necessity of providing for the removal Of a deposed chief from the tribal
area. Had Ipumbu been allowed to remain in his tribal area, there would
have been divided loyalt in the tribe-because of his being of "royal"
blood-and clashes wouliin al1probatility have occurred. In tbis regard
the Native sayi.g "~.u cannot have two bulls in one kraal" is apposite.
I17. The powers undcr section I of the I'roclamation asregards cliiefs
are noii. vestcd in th? Statz 1'rcsiili.iit.while thos: irrespect of lieadmen
:ire vestcd iiitlie Ministcr of Danru Ailiniiiistr;ition :and Develo~mçnt 6.
118. As has been ~ointed out '.aii headmen are elected bv theresidents
of tlieir reserves. in11 thzir aLpointinent is ujually a mérz h,rni:ility.
In terms of tlie pn~visionsof the regulntions framed under the I'rosla-
matioii a nublic ciiauirv before some senior official is al\r.avs ordéred
if charges a;e made agaiist a headman. At such enquiry the headman is
told that he is at liberty to cross-examine al1witnesses testifying against
him, to give evidence himself and to bring supporting evidence in his
defence. The matter is. therefore, not disposed of surnmarily, but only
after careful investigation and with the support of the majority of the
rnembers of the reserve.
As iar as can be established, the power to order the removal of a
deposed headman has never been exercised. Not possessing any support
from a hereditary point of view, such a deposed headman is not likely, by
his presence. to be a danger to peace and good order in the reserve.
110. The fact that~~~cisi-~s under this Proclamation are taken at the
highist levelnd only after careful investigatioii. consultation and con-
sidér3iioii. affords substnntinl protection agxinst arbitras). action and
abuse II~the nou.er~conferred bis the Proclriiiiation. It is. therrf~~re.not
surprising th'at no instances of abuse of the powers conferred or of
Videpara. 46,suprn.
U.G. 16i933. para. 417. p.75.
Vida para. lor.supra.
Sti~ends were at that time paid to chiefs in theOkavango. Subsequently the
practicewas diseontinued with the concurrencoef the chiefs.
' Videpara. 1x5 (c).supra.
6 Act No.56 of ,954 in Sinlulesof th6Unioli O/South Africo 1954. pp. 559-565
and Ploc. No.1x9 of1958 in The Lows of SoutL Wasl Africn 1958, pp. 133-141.
Vida paras. 48 and go. rupro.
By virtue of G.N. No. 60 of 1930 (S.\V.h.). inThe Lows of Soulh IvesiAfricn
1930. pp. 4rS-425.136 SOUTH WEST AFKICA
arbitrary action have ever occurred, or that the Applicants have been
unable to refer to a single instance of this nature.
120. In paragraph 117of Chapter V of the Memorials 'the Appljcants
refer to section 2 of the Proclamation in terms of which the Administrator
(now the State President) is not subject to a court of law for or by reason
of. interalia. anv exercise of the Dowersconferred bv section 1.Section z
is'again referrea to by the Appiicants in paragraPh 139 of Chapter V
of the Memorials and will be dealt with in Respondent's replv to. .e
said paragraph '.
121. In oaraera~h 118of Chauter V of the Memorials 'the A~oiicants
cre:it~.tlic iiiipi.c.ijion tliar the .\(lrniiiistr;itor iiiiy dclcg.III-.11u\vcri
to Sarive commis~ioriersand in;igistratci. This is not tlie c3se. as scction
3 of the I'roslnmntion rnercly providcs tlhnt the "orders ünil directions"
of the Adroinistrator "nia!' bc carried into esecution hy ur under the
supcr\.ision" uf the ofliciiilsiiamed by the Applicaiits.
122. The powers mention<d in this pnr:igraldi 1 are again refcrred to
in paragr:ipli tjS of Cliapttr Vof tlic .\lemorinls '. In rcplyiiig to the latter
nar~cr3oh Ri~smiident \\.ilslio\v that ttiese vowers \vere conft:rre<lin tlie
inter&; of théXatives 5.
123. The auegations contained in this paragraph ' are not disputed.
although it may be pointed out that there are actually 18 magisterial
districts in the Police Zone. In 17 of these districts the magistrate serves
ex o@cio as Bantu Affairs Commissioner. and in the 18th district, Groot-
fontein, because of the importance of Native administration in that
district, a full-time Bantu Affairs Commissioner undertakes the adminis-
~ ~ ~~n of ~ati~ ~Affairs.
Tlie aspect of rhc c%rol of S;ttive administration within urbnn arc.=
will 11edcnlt ii.iili iii Kcspondent'i repl to rhe Applicants' allegations
undcr tliç Iicading "I.oca1 Goveriinlent" 2.'
IZA. The statements in these DaramaDhs are correct. Save that al1
poits'of ~velfareofficcrsha\,e Iwrn &on\,ertCdirito those of su.perintendents.
:ind that the lieadinan ii ulzays, and not ordr~inrily. 3s stütéd by the
.4oolicnnti. n Sative. The wliole svstern of iridici:nous ooliticnl insti-
tûtions has been set out above $, aid the statemcnts in the paragraphs
' 1,p. 140.
' Vide BookVI, Chap. III, paras. i40-i45. ofthis Counter-Mernorial.
' Ibid..p. 146.
5 Vide BookVI, Chap. III. paras. 1x5-izo. of this Cnunter-Mernorial.
Vide Chap. III. inIra.
' 1. pp.'40 and 141.
Vide paras. 38 5.. supra. COUNTER-MEMORIALOF SOUTH AFRlCA '37
under consideration should be read in the light of the background
sketched and the fuller information there fumished.
125. As regards the power to dissolve a Reserve Board and to dismiss
its members, it has been couferred for similar reasons as in the case of
the powers to depose Native chiefs and headmen '.To date no Reserve
Board hasever been dissolved. and it is unlikely that the power wiUbe
invoked in the future unless a Board refuses to function at all. The power
to dismiss a member has heen made use of very sparingly. and only
after the receipt of complaints irom the residents of a reserve followed
by a public enquiry held by an official.
126. The allegations contained in this paragraph are dis uted, since
the headmen and the members of the Native Reserve Boar s do not in
fact represent the sole participation of h'atives in the administration of
officials".s. nor are they "whoUy under the control of the 'European'
127.Ashas been explained ),theordinary tribesmen are encouraged to
participate in the management of their own affairs by being given every
opportunity to speak at meetings in the reserves and to discuss and make
suggestions for the inclusion of items in the draft estimates of their
reserve trust funds. Then, too, the practice !vas initiated of holding
separate annual meetings of the representatives of the Herero, Dama and
NamAlthough it is correct that magistrates 'have general control of the
Native reserves, these officialshave consistently encouraged the headmen
and the residents to assume full responsibility for the proper control of
their reserves, and where such responsibility has heeii assumed, the
superintendent concerned merely supervises their actions.
12s. The first sentence of this ar'm m~'oh'refers. .inter aliu. to the
guidance, supervision and coritml exerciic.(lin respect of the functioiiing
of iridigcnous political iiistitutions in thc rescri2esoutiide the I'oliceZorie.
As h;is bcrn ex~lnined '.the oficials ao..iiited bv Reîwndent in the
iiorthîrn areas f;nction largel! in an adviiory cap3fits, dnd for all prac-
tical purposes the tribesconccnied govern tliemselves. at least intern:~lly.
129. ~he latter portion of the &ragraph under consideration merely
contains a repetition of certain provisions of section r of the Native
Administration Proclamation, which are also set out in paragraph 116 of
Chapter V of the Memorials, and which have been dealt with in Respon-
dent's reply to that paragraph 6.
Vidc para.rr4, rupro.
1,p. rqr.
' Vide paras.84 A..suprn.
* In the diatriof Grootfontein the full-time Bantu Affairs Commissioner..
' Vidc.e.6..paras. 56 and57 supra.
Vidc para. riz, supra. 138 SOUTH WEST AFRIC.~
PARAGRA 1PH8 (r),(z) ,5)AND (6)OF CHAPTEV R
130. The charges contained in these sub-paragraphs 'have heen set out
in paragraphs z and 3 of this Chaptei, and need not be repeated.
The charges emanate in part from the premise that the whole popu-
lation is to be treated asan inteerated unit. with identical riehts for ail.
in the sphere of political activity~~esponde~t has demonstratuedthat thi;
premise 1swholly unfounded. in fact and in law 2, and that Applicants
have made no aitempt to substantiateor even explain it with Ïëference
to the classification of South West Africa asa "C"Mandate. the diversity,
stages of develo ment and other factual conditions pertaining to its
peoples, or the li ely effect of such an approach, if adopted, on the well-
being and progress of such peoples 2.
In part the charges proceed from ignoring, or failing to appreciate, the
significance of the manner in which systems of self-government amongst
the indieeno~s c.ouD.. rooted in their traditions and culture. havebeen
fostered, shapetl zind developed. soas to foriii aii alil~rol,ri;itr ti;tsis for
adaptation to further development towards possible self-determination
for ëach group.
Applicants, it wiil be perceived that no hasis remains for the cmcial
charge that Respondent deliberately and in bad faith "prevents the
possibility of progress by the 'Native' population toward self-respect,
responsibility or skill in any aspect of citizenship or government3.
Respondent r~spectfully submits that its exposition of the policies
applied in South West Africa, of the political institutions of the vanous
groups. and of the policy and steps under way for furtber development
towards appropriate self-realization, with justice for all, in the political
sphere. amply demonstrates that the above charges on Applicants' part
areunfoundedand without substance, and that the same applies to the
further assertion that Respondent "offers no horizon of hope to the
'Native' population" '.
' 1.pp. 142-143.
Vide paras. 7 and8.supra. andearlier passages there retorred
1,para. rz8(6)p. 143.
' Ifid.. para. 19p.162. GENERAL ADMINISTRATION(CIVIL SERVICE)
A. Introductory
I. r\pplicants' charge in tlus regard is that "At the administrative
le\.els of the Governmeot of the Territory, in the Public Service, the
participation of the 'Natives' is minimal. With few exceptions. 'Natives'
are confined to the lowest levels of employmcnt, involving neither skill
nor responsibility" '.Applicants allege that:
"ln sum, by law and by deliberate and consistent practice. the
Alandatory has failed to promote to the utmost the development of
the pre~onderant part of the population of the Territory in regard
to .. .~artici~ation in anv asDect of aovernment. It has not onlv
failcd tb pron;ote siicli de<clo~nieiit t<thz utmost, it lins mndc no
nutable cifort to do so To tlie contrarv. tlie .\lanilatory lia3pursiiea
systematic and active program whkh prevents the posiibility of
progress by the 'Native' population toward self-respect, responsi-
bility or skill in any aspect of citizenship or government, whether
Territorial or localor tribal Z."
2. Applicants further allege that Respondent has "deliberately. syî.
tematically and consistently, ... discriminated against the 'Native'
population of South West Africa .. ."; that Respondent "has thwarted
the nrell-being, the social progress and the development of the people
of South West Africa throughout varied aspects of their lives ..." in-
cluding territorial government at the administrative levels; th$ "The
grim past and present reality in the condition of the 'Natives' 1snnre-
lieved bu proniise of future amelioration", and that Respondent "offers
no horizon of hope to the 'Native' population" 3.
3. In dealing ivith the factual basis on which these conclusions are
sought to be founded, Applicants aUege ' thatthe general administration
of the Territory is governed by the Public SeMce and Pensions Act,
1pz3 as applied to the Temtory. They point out that the public service
O the Territory and that of South Africa constitute a single integrated
service, but that the salaries and allowances of those officiaisassigned
to duty within the Temtory, are paid by the Territory '.
4. Applicants state that the public service includes "au persons in
the employment of the Government ofthe Union ... or of the mandated
territory" and that it is divided into five main divisions, which are set
out 6. TheMemonalsoroceed that "the Public Service. in the slrrctsense,
does not include theLt\dministrator of the ~emtor~,~ersons emplqyed
in the Railway Administration, teachers servin. under the Adminis-
' 1.para. r28(3)p.. 142.
Ibid. para.128 (6).p. 143.
' Ibid..para.190. p.162.
' Ibid..para.88. p. 135.
' Act No. 27of1923. inS!alulcr o!ha Unio>iof SoufhAfrica 1923, pp. 256-369.
1,para. 89.p. 135.140 SOUTH WEST AFRICA
tration of the Territory, part-time or temporary employees, or any
other person whose post may be excluded by the direction of the Gov-
ernor-General" '. (Italics added.)
5. Applicants allege that, in terms of the Public Service and Pensions
Act, 1923, onlya South African citizen, a citizen of a Commonwealth
country or a citizen of the Republic of Ireland, are qualified for ap-
pointment to the public service, and then only after three years' residence
in South Africa or in the Territory 2. After stating that in practice parti-
cipation by Natives in the general administration does not appear to
be excluded, they allege that "With few exceptions, however, their
participation appears to be conhed to the lowest and least skilled
categones" '. With reference to the territorial budgets for 1946-1954.
Applicants allege that the extracts given by them are a "fair sample"
of what they cal1a "... practice of 'job-reservation' for Natives" in the
various departments. branches and divisions of the public service 3.
Then followsa list of such extracts relative to the followingdepartments
of the Public Service:
la J Amiculture:
ibj ~istoms and Excise;
(c) Works. Buildings Branch;
IdJ Tustic+three branches of this depaAtment:
jej Lands. Deeds and Surveys: and
. ~ Posts and Telegraphs '.
6. With a view Coiroper perspective. certain background and sup-
plementary. information requires to be furnished prior to specificreplies
being given to the varions allegations.
Bi The Position Prior to the Inception of the Mandate
7. Under the German colonial regime the government of the Territory
was entirely in the hands of White German officials.except for a minimal
emplo~ment of Natives in the police force and as messeniers a-d labour-
ers-in iarious other departmeits.
The Native population was almost entirely illiterate and, by reason
of outlook resulting from traditional systems of government, unsuited
for employment in the civil service of the Temtory. When Respondent
assumed the Mandate. the Native population therefore formed no part
of, and had no training or experience in, any of the branches of the
public service.
C.General Policy
8. The general administration or civil service is a sphere in which
particular significance attaches to the contemplation of the Covenant
that the Temtory ". .. can be best administered under the laws of the
Mandatory as integral portions of its territory" 5. and to the corres-
1 1,para. 94, p.136.
Ibid.. paragg, p. 136.
Ibid.. para96. p. 136.
' Ibid., paras97-105, pp. 136-137.
' Art. 22 (6)ofthe Covenant. COUNTEII-MEMOKIAL OF SOUTH AFKICA 141
ponding provision of the Mandate that the Mandatory ". . .may apply
the laws ofthe Union of South Africa to the territory, subject to such
local modifications as circumstances may require" '.
9. On assuming the Mandate Kespondent sought to carry out its
obligations to promote to the utmost the material and moral weU-being
and social progress of the inhabitants of the Territory through a system
of indirect rule, as far as this was practicable, in regard to the indigenous
inhabitants. This policy entailed recognition of the traditional systems
of government had been impaired-andps. And woften completely destroyed-s
in the first place, to re-establish such governmental institutions.
At the same time Kespondent sought to encourage members of the
non-White oooulation ~rou~s to enter the civil service and to acquire
the ediicatiônil st;<iidahs ;equircd for advanceinent in tlie service-
particularly in thosc aspccti of the ieri,it:e in urliichsiicli persans suuld
d;iv a useful and even leadiiir. o:irt in the <It:velor>nierit1.,rogrtja and
idGancement of their own p8kiation groups. Ai first ProgÏess was,
inevitably. slow. but already the efforts of Respondent in the past are
beginning to bear fruit, and, as will bc shown later on, ever-increasmg
numbers of non-Whites are being ahsorbed in various branches of the
Service. The fact that today practically al1 of the rnost senior posts
in the Service are still occupied by White officials.does not, as will be
shown, reflect a policy of suppression of, or unfair discrimination against,
the Native peoples, but is due to the historia1 factors to be dealt with
below.
IO. In viewof the differencesbetween the various population groups,
and their past history, it has not been practicable totreat the inhabitants
as one integrated nation for administrative purposes. As Lord Hailey
has stated:
"At the inception of the Mandatory system the position of the
native peoples presented problems which were peculiar to the terri-
tory, and for which it would not be easy to find a parallel in;the
other Mandated territories in Africa. ... They are differences due
not only to the character and traditions of the native peoples,:but
to the physical conditions which must determine their econqmic
development 2."
Ir. Respondent. therefore, considered it to be in the best interests
of al1the inhabitants of the Territory to treat each group as a separate
entity foradministrative purposes as far as this appeared to be feasible.
In the case of the White group, thismeant offeringthem opportunitles of
employment in a civil service as known to them in their countries of
onein. In the case of the Native ~eo~les.to whom such a service was an
unknown thing. it meant beginhini u,ith due recognitioii of their trti-
ditional systems of government, giiided and assisted wherr riecessary by
White ofici3ls. and to ~romotz suitable development as froni that
starting point.
The guidance of such White officialsin the Native Reserves has been
Art.2 of theMandate for Germa" South West Africa.
Lord Hailey,A Survcy of Nolive Anairs in South Wcrl Africn (r946)[unpub-
lished], p. 3.142 SOUTH WEST AFRICA
directed primarily towards the modification and adaptation of the
traditional systerns of government, where necessary or desirable. to
meet the exigencies of a modern and changing world. The role of such
officials is purely of a transitional characterand Respondent Iiopes
that it will be possible to dispense progressively with these White offi-
cials in the administration of the Native areas, until they are replaced
altogethet by members of the groups concerned.
12. 'Cluspolicy was stressed, with particular reference to the public
service, by Kespondent's Miiiisterof Bantu Administration and Develop-
refemng to Kespondent's policy in the Kepublic of South Africa, thisas
coincides in the respect under consideration with Respondent's policy
in South West Africa. The Minister said:
"... we wish to guide these various national groups as rapidly as
possible towards managing their own affairs.. .1shouid like to see
them building up theu own public service as rapidly as possible so
that the various aspects of their national life can be handed over to
them so thattheycan conttol them themselves '."
13. When Respondent assumed the Mandate. there were very few
Native inhabitants of the Temtory who could participate effectively
in the general administration of the Territory. Their sta e of develo
ment was not such that they could qualify to fiIlany of % e responsi\e"
used. in the public service, and consequently White officials had to be
In order, however, to encourage the Native people to participate in
the administration of the Temtory. and more particularly to progreas
more rapidiy towards the eventual management of their own affaire, ,
Kespondent adopted the policy adumbrated above. .Not only did this
policy have the effect of giving preference to members of a particular
group when it came to appointments to posts designed to serve that
gfoup, but it also served to minirnize racial or group prejudice and fric-
exercise authority over members of another.s wheremembers of onegroup
Moreover, if this policy had not been pursued, non-White candidates
would probably not have qualified for appointment to most of the
public service posts in theTemtory.
14.In order to maintain an efficient civil service adequately to serve
the needs of the inhabitants. a certain educational standard must be
required of a civil servant, and such standards have in fact been laid
down, as will appear hereafter. One of the factors which, in the past,
has made it difficult for Respondent to absorb more Natives into the
qualifications among prospective candidates. In order to overcome this
difficulty Respondent encouragesNative students to acquire the requisite
qualifications, as will appear more fuliy in that portion of this Counter-
Memorial dealine with education. Resoondent has also. as wiUbe shown.
set alower stnnudardof educational réquirernents for ratives in certain
instances so as to eiicourage and eiiahle them to enter the public service.
15. The basic outlook &I life arising from traditional and customary
modes of living. has made it difficult for the Native peoples readily to
' U.ofS.A.. Parl. Dcb.. HouseAssembly.Vol.I (rg6r). Co7995. COUNTER-MEMORIAL OF SOUTH AFRICA '43
adjust themselves to the exigencies of an efficient civil senice desi ned
to meet the needs of a progressive modern society. The transition rom 5:
the erstwhile African way of lifeto the present form of society, inevitably
involves a considerableproblem ofpersonality adjustment forthe Natives
concerned-a problem which has exercised Respondent's mind in the
paçt and which will continue to require careful thought. and experimen-
tation, as well asco-operation between Respondent and Native leaders.
Respondent ho es that an educative process on a broad scale will
contnbute large iylto a graduai solution of this problem.
6 D. The Public ServiceAct
16. The Public Senice and Pensions Act. 1923, referred to by Appli-
cants in their Memonals bas been repeaied and superseded by the
Public SeMce Act. 1957 '. This Act does not govern "... al1 persons
in the employment of the Government of the Union ... or of the man-
dated tenitory" as alleged 2, inasrnuch as there are large numbers of
pubiic servants appointed by the South West Africa Administration and
paid from administration fun& who donot faIlunder the Public Service
Act. That part of the public service of the Territory, however, which is
subject ta the Public Service Act, 1957 does form an integral part of the
public service of the Republic of South Africa, despite thefact that, while
sewing within theTemtory. the salariesof the public servants concemed
are aid by the Temtory. Those public servants who do not fall under
the {ublic ServiceAct do not form an integral part of the public service
of the Republic of SouthAfnca. They nevertheless require to be taken
into account relative to Applicants' charges that Respondent is deliber-
ately thwarting progress on the part of the Native inhabitants at the
administrative levels of the Govemment of the Temtory 3.
E. The Public Semce Commission
17. Section II (7)of the Public Service Act.1,",...rovidesthat :
"ln thef$ingofanypost or themaking ofany ap ointment in the
public senrice, du<!regard shall be had to the quali&atioris relative
ment. effiuency and suitability of the persons who are eligible for
promotion, transfer or appointment '." -
18.These injunctions fall ta be camed out by a body known as the
Public Service Commission, which is an independent body created by
the Act and primarily responsible for maintaining the high standard of
roficiency requued for the proper working of an efficientcivil service '.
!he Commission, inlw alia, makes recommendations regarding the
establishment or abolition of departments in the service; the number
wages and aliowances of the vaious classes and grades of officers andes.
' Act NO. 54 of 1957inSfnlukr of fhc Union of SouAfrira ~957,Part II (Nos.
45'81,para.89,p.5135.
' Vide paras. i-zsupra.
' Act No. 54 of 1957. W. 11 (3)in Sfafulsr of fUnia of SoufhAfriia 1957,
Pari II.pp. 820-822.144 SOUTH \YEST AFRICA
employees. It also recommends particular people for appointment or
promotion to posts in the civil service '. The actual appointinent or
promotion is, howc\rer, decided upon by the Minister of the depa'rtment
concerned or by the Administrator but subject to such conditions as
the Public Service Commission inay prescribe '.
F. Division of the Public Service under the Public Service Act, 1957
19.The "public service", which is governed by the Public Service
Act, 1957 ,s divided, in terms of the Act, into the following seven
divisions ': b
(a) Administrative Division;
(b) Clerical Division ;
(c) Professional Division ;
Id 1Technical Division:
jej General A ~ivision;
(g) The Services.ision ;
v
Certain qualificntions have been laid down by the Public Service
Commission for appointment to posts in the various divisions, and
tliese requirements are generally insisted upon, Save that Respondent
lias, in certain cases, reduced the necessary qualifications in order to
appoint certain Native officers to particular posts. Such cases will be
dealt wvithmore fully hereafter and the reasons for Respondent's actions
will be esplained.
20. The Administrative Division comprises the senior administrative
posts in the public service, and posts in this division can only be filled
by promotion from the clerical grades. Normall from IO to 15 years
must be served in such clerical gradesbefore an oAcer is promoted to the
Administrative Division
II. CLERICAL DIVISION
21. Candidates for appointment as clerks in the Clerical Division
must have Dassed the Matriculation examination of the Joint Matncu-
lation Board or an examination which is of a standard-equivalent to
or higher than the Matriculation examination Female typists in ,the
clerical division are required to be in possession of a Junior-or,equiva-
lent-Certificate in addition to the Public Service A~~ointtnent
Certiticate in ~~pewritin~ or an equivalent t)ping qualificA;on. i.e.. a
qualification requiring a standard of at least 35 words per minute.
'Act No. 54 of 1957.sec.Ir (3)in StnlutcrO/ the Union of South Alrica 1957,
Part II, pp. 808-8.2.
Ibid.. seIO.p.820.
Ibid.. seri. p.820.
'Act No. 54of 1957, op.cil.sec. 3(i).p.8w.
Africa. is the finaschool-leaving examination in South Africa and South West
An examination twoyears belowthe Matriculation examination. alro knownas
StandarV dIII. COUNTER-MEMORIAL OF SOUTH AFRICA '45
III. THE PROFESSIONA DLIVISION
22. The Professional Division, as its name implies requires pro-
fessional qualifications for appointment to its ranks. So, for example,
a candidate is required to have at least a H.Sc. degree, with at least one
major subject in the direction in which he seeks employment. before
qualifying for entry into posts such as Assistant l'rofessional Officer in
Animal Husbandry, Biochemical Research, Dairying, Extension,
Fisheries, Home Economics. Marine liesearch or I'astures and %il-
Chemistry. A candidate for appointment as an Engineer, Grade III
(Civil or Mechanical), must have a recognized University degree in the
appropriate direction or be an A.M.I.C.E. ' So too. candidates wishing
to enter the public service as architects or quantity snrveyors arc rc-
quired to be in possession of a University degree, and to be rcgistcreù
with their respective lnstitute or Chapter.
IV. TECHNICAD LIVISION
23. The Technical Division of the public service consists of tech-
nically trained officials who do not qualify for the profcssional group.
It includes both skilled and semi-skilled workers. Candidates for entry
into this Division require certain technical qualifications in the direction
in which they seek employment. For example, a drnughtsman (carto-
graphie, civil or mechanical engineering, architectural or telecommuni-
cations) or a computer. re uires ' diploma (or equivalent qualification)
in the appropriate field. !andidates in possession of a Matriculation
certificate which includes mathematics and certain scientific subiects,
can acquire the necessary qualifications for a permanent appoin%ent
by the successful completion of a four-year course of in-service training
as a pupil technician. -
V. GENERAL DIVISIONS A AND B
24. All wsts not classified under the other divisions of the public
serGce ine~tioiicd ab0j.e. or undrr the jervices 2. fall intivh;itis known
as the General Di\.ision, r<,liichis itself iIivide<Iinto AnUi\,irion :ind a
B Division. 'Themin distinction Ixtween the two is that the holder of a
post in the General B Division may be discharged from the service upon
the recommendation of the Public Service Commission simply by the
giving of a prescribed term of notice varying with the length of service,
whereas an official in the General A Division may only be discharged
forcertain specifiedreasons or alter an adverse finding at a departmental
enquiry 3. .-., 7
25. The Public Service Commission determines which posts shall faIl
in the General A and which in the General B Division ', and does s0
on consideration of the nature of the work to be done and of factors
of expediency regarding the method of discharging the incumbents. SO,
...
' Associate ~embér''ofthe Institute ofCivil Engineen.
Vidb para,26.infra.
Part II. pp. 830-832.. sec.rq (9).inSlaturrsof th6Union ofSoulh Africa r957.
' Act NO. 54of 1957,op. cil., sec(2),p.Rw.146 SOUTH WEST AFRICA
for examWle, principals of Bantu Youth Cam?, fingerprint officers, and
clerks, cooks and fire officersfa11under the General B Division.building
VI. THESERVICES
26.The Scrviccs coiisist of the Permanent Defence Force, the Police
Force and the I'risons Service.The Prisons Service in South West Africa,
however. does not faIl under the Public Service Act, 1957. but directly
under the South West Africa Administration.
The normal requirements for a candidate seeking appointment in this
branch of the Public Service are that he should be at least 16years old
and in possessionof at least the Junior Certificateor its equivalent.
G. Early Attempis by Respondent to Introduce Natives into the Public
SeMce
27. The early attempts by Respondent to introduce Natives into the
civil serviceeneraiiy, and the difficulties encountered in the process.
are reflected in Respondent's annual reports to the League of Nations
and in discussionsof the Permanent Mandates Commission.
28.In 1925 Respondent reprted that:
"Natives are employed in the Public Service as Interpreters and
clerical posts. They are also employed in the Poli1.''employmein
29.In 1928 Respondent stated:
"(:crtain pojts in the public service are open to natives. They are
enroUed asmemliers of the Çouth West Africa Police Force. are em-
~lovedas wardersin the ri sonsbranch. and as native hosoital assist-
in magistrates officesusually prform minor clerical duti'xut noeters
natives occupy administrati5.DOSISin the oublic servic2."
is recorded that Lord Lugard asked- an date;Commission in 1935 it
"whether any of the more intelligent natives in South West Airica
under the Government; he noted that the magistrates had to use an
interpreter".
West Airica, said:estion Dr. Conradie, the then Administrator of Çouth
". .. some ofthe natives knewsomeEnglish or Afrikaans or German;
magistrates did not know enough of the local language to converse
with the natives in their district, and, the case of s ech. they
fonnd it bes...to employ the servicesof an interprete.
31. Again in 1937 at a meeting of the Commission, M. van Asbedr
asked whether there were any educated Natives occupying higher posts.
' U.G.26-1926, p.104.
U.G.22-1929, P. 7.
P.M.C.. Min., XXVII. pp. i70-17i. COUNTER-MEMORIAL OF SOUTH AFRICA '47
Mr. courtney Clarke, Respondent's accredited repkesentative, replied in
the neeative. and went on to sav that "There was a difficultv in obtainina
educaïed natives even for such*postsas interpretersand teichers" l. -
32. The League of Nations was, therefore, kept informed of the
difficulties with which Respondent had to contend in regard to in-
troducing Natives into the general administration of the Territory.
Despite these difficulties, however, Respondent has persisted in its
efforts, and today a considerable jmprovement in the position exists,
not only in thenurnber of Natives in the public service, but also in the
standard of their qualifications and consequent advancement in the
service.Examples of such improvement are given below.
II. Developments inCertain Specific Branches of the Public Service in
General
1. NATIVEAFFAIRS
(a) General
33. On assumption ofthe Mandate Respondent exercised its adminis-
trative functions in respect of Native Affairs through the Administrator
ofthe Territory, assisted by an Advisory Council l.When the Legislative
Assembly of the Territory was called into being 3,the administration of
Native Affairs was expresçly excluded frorn its powers '. Respondent
continued to exercise control in this regard through the Administrator
acting as Respondent's representative and subject to Respondent's
instmctions. As from I April 1955 Respondent exercised this control
mainly through its Minister of Native Affairs, now designated as the
Minister of Bantu Administration and Development 5,and consequentl
the Chief Bantu Affairs Comrnissioner. stationed at Windhoek, and a 1
the officers employed by Respondent in the administration of Native
Affairs, now fall under the direct control of the Secretary for Bantu
Administration and Development in Pretoria.
@) Administratim OutsidethePoliceZone
34. Outside the Police Zone. where the traditional institutions and
forms of eovernrnent of the various Native ~eo~leswere stffl intact at
the comGencernent of the Mandate. i es hi id e.ungtt to govern
through these institutioris. with the guidance of individual Kative Corn-
niissionrrs. No more than 17White officiais(four Sative Commis-ioners.
three Administrative officer;. eight clerks and two Agricuiturai personnel)
are ernploycd by Kejpondent iii the area outside the Police Zone. in this
' P.M.C.. Min.. XXXI, p. 118.
Proc. No.i of ,921 (S.W.A.).in TheLaws of South West Afric1915-1922.
PP. 493-495.
Act Na.42 of1925, sec.1(1).inTheLaws of South Wesl AfricVol. 1(1923-
1927) .. 2.
+ Ibid.. see25-26,pp.14-16.
' Act No.56of 19.54, inSlnfulrs of Unia of South Afric195.1p.p559-565,
andProc. No. rrg of1958 (S.A.),inThe Laws of South iVtst Afri1958. VOL
XXXVIL pp. 133.14'.14~ SOUTH WEST AFRICA
area Respondent employs 483 Native officials, and recognizes a further
81 who act as chiefs,headmen or tribal councillors '.
35. Details of the policy adopted by Respondent in the areas outside
the Police Zone were conveyed to the League of Nations in more than
one of Respondent's annual reports. The following extract may be
referred ta in the annual report for 1928:
'ln 0vambol;ind and on tlic.Okavango Ki\,er native ~.hicfsniid
1ie;idineiicoiitrol tlie iiariv:s ur!dcr tlie huid.dncr of the 'Intivc hftairs
Officcriof the :\dniiiiistr;itioii. I'riballaivand custom :%ré follo\ved 2.''
36. In the discussion of this report at a meeting of the Permanent
Mandates Commission, Mr. Werth, the then Administrator of South
West Africa, in replying ta a question tram Lord Lugnrd concerning
the staff of the Administration employed outside the Police Zone. said:
"The Commission would tlierefore see that the policy foUowedin
Ovamboland at the moment was one of indirect government. The
Administration employed there a few responsible men to advise the
chiefs and to maintain their authority as the head of the tribe. The
Officer-in-charge had about 50 natives on his staff ta assist him 3."
37. As has heen shown above ', the number of Natives employed by
Respondent in the administration of thesc areas-including the ad-
ministration of the tribal tmst funds-lias increased considerably since
1928.
38. As recently as 1956 Lord Hailey referred ta Respondent's system
of administration of these areas. as follows:
"There is no\rrliere in the Union where the African is more self-
sufficient in his way of life and less affected by contact with Euro-
Deans. The onlv l,nds he~-~bv Euro~eans are those occu~ied bv
hissions; the iiumber of EuroPean shAps is reduced to a minimu;.
'Shereis no poll tax. ... Looking at the situation of these territories
as a whole: the Native Comn;issioners appear to have achieved
with success an unobtmsive system of pers6i;al rule 5."
(c) Admitiistralion Inside thePolice Zoiie
(i) IirtheATafive Reservcs
39. The system of indirect rule applied by Respondent to the Native
areas outside the I'olice Zone, \vas also extended to the Native reserves
within the Police Zone. as far as circumstances would permit of its
practical application. This general policy \vas described to the League
of Nations in Respondent's 1937 annual report, as follows:
' Thc vtlicialmrnlioned arc di\.idrias loll<ins Anli,ngrrthe Buihmen i \\'hite
and 3 Snri\.e*:timongst the O\..initu :\\'hites and 10: Natives (includin~ 3cttielr
and 18 he~<lmrn,. ~ ~ ~e 0k;~i.nn%.~- \\hite,and 366 Salives lincludiiw~- cliiefs
and 2 headmenl:..n the ~aok&;ld - \mites andy-,atives lincludine ""25 headmen). .
in theEastern Caprivi 3 Whites and 51 Satives (including zchiefs and 26 couneil-
lors).
U.G. 22-1929, p. 7.
P.M.C.. <Ilin.XIV. pp. Sq-Sg
' Vide para. 34. supra.
Lord Hailey. An .4frican Sumcy: Revised 1956 (1957). p. 437. COUNTER-MEMORIAL OF SOUTH AFRICA I49
"The ob'ective of the native affairs officersof the Administration
in South d est Africa has been as faras possible not to interferewith
native organization or customs as far as ihey were not in contiict with
good government, and to allo\r the native people to ilevclol~gradu-
&y, idopting European customs and methods in place-of such
of their own customs and habits as they are brought to realise from
time to time are unsuitable to the changed conditions of life '."
40. Referring particularly to the conditions and administration of the
-~~ive ~eserveswithin the Police Zone. the same report said that:
"Inside the Police Zone, native affairs are administered by the
Native Commissioners in each district and where there are native
reservesin thedistrict, aWelfareOfficerisstationedineachreserve.. ..
These latter officersare provided with officialmotor transport and
assisted by native interpreters and police. They furnish monthly re-
orts to the Chief Native Commissioner through the local Native
Eommissioners . .. In the larger reserves they are assisted by Euro-
pean handymen paid out of the Trust Funds Z."
41. Since 1937 the White handymen referred to in the report have
been replaced by trained Native handymen, and additional Native arti-
sans-e.g., masons, motor vehicle drivers, cwks and clinical assistants
-have been added to the reserve staffs within the Police Zone.
At present Respondent employs 14 White officials.who act as super-
intendents of the various reserves, and whereas in 1937 there were
IIZ Native officials (who, however, included 30 headmen and 66 reserve
board members) there are now 238 Native officials (who include 31
headmen and 74 reserve board members) '. In addition five White
agricultural officersand five White superintendents of works attached
to the office of the Chief Bantu Affairs Commissioner in Windhoek, are
continuously employed to assist the Native peoples bath within and
outside the Police Zone.
42. In pursuance of Respondent's policy of treating the various
groups as separate entities for administrative purposes as fax as thiS
proves practically feasible ', preference is given to members of the par-
ticular group when it cornes to an appointment to a post designed to
serve that group. Thus Herero are given preference in appointments to
posts in the Herero reserves, Dama to those in the Dama reserves and
Nama to those in the Nama reserves.
43. This policy is designed to enable eacti group as far as possible
to administer its own affairs, and necessarily entails that the number
of White officials must be progressively reduced as more and more
'
a Ibid.. paras.283-284. 46p. 50.
' These officiaae divided upas follows:
In In In In
Herero Damara Nama Mixed Totals
Reserves Reserven Reserves Reserves
White Officiais 8 2 3 14
Native OfficiaIr 87 II
Headmen 15 3
Reserve Board
Members 35 7
' Vidaparas. II-r3. supra. I5" SOUTH WEST AFRICA
Native candidates become available to fd these psts. Furthermore. as
the various groups progress economically, more administrative and
technical posts will have to be created, which wiiilikewise be.made
available to members of the respective groups intended to be served
thereby.
(ii) OutsidetheNative Reserves
44. Within the Police Zone and outside the Native reserves the
magistrates of 17 magisterial districts act ex oficio as Bantu Affairs
Commissioners, and there is at least one post on the staff of each of these
magistrates designed to deal exclusively with Native affairs. These posts
are available to, andwiilbe filled by, properly qualified Natives as and
when they become available. In the district of Grootfontein a Bantu
Affairs Commissioner has been appointed and he has a staff of seven, of
whom three are Natives.
So too, in Windhoek, where an Assistant Bantu Affairs Commissioner
functions in addition to the magistrate, a staff ofight deals exclusively
with Native affairs; and of them fiveare Native and threeWhite officials.
(iii)n the UrbanAreas
45. In the administration of Native affairs within the urban areas
of the Territory, where such administration falls within the purview of
being appointed to posts involving ever-increasing responsibiljty. At
present such urban authorities employ 66 White officials in the Native
urban residential areas throughout the Temtory and 358Native officials.
Of these latter, manyare employed as municipal policemen-II sergeants
and 74 constables-office clerks, location foremen, location inspectors.
social workers, nurses and drivers of municipal motor vehicles.
46. In al1the instances mentioned above the number of Natives em-
ployed has increased considerably dunng the years, and so too has the
standard of the posts occupied by Natives-psts formerly held by
White officials.The reason for not employing even more Natives in the
administration of their own affairs is a lack of suitably qualified persons.
II. DEPARTMEN OF INFORMATION
47. The Departmziit of Information, which also falls directly under
the control of Kapondent, employs seven information oRccrs within
the Tçrritory, of whom four are White and three non-White.
III. THEPOLICEFORCE
48. One of the metbods adopted by Respondent to encourage the
Native population to participate more fullyin the public service of the
Temtory. and thereby ta gain experience for the eventual administra-
tion of their own areas, was to encourage men to join the Police Force.
Respondent considered that the experience gained in this field would
serve also to assist the Native peoples in adapting themselves to the
' VideChap. III.in/*. COUNTER-JdEMORIAL OF SOUTH AFRICA 151
changing circumstances of their society by acquainting them with the
le-al standards of modern civilization.
49.. In gictice, however, Respondent was faced with the problem
mentione in paragraphs 14and 15 above, viz., a lack of adequate
educational qualifications among prospective recruits. This, however.
Res~ondent reearded as one of the instances where it wodd be ~ossible
to lower the e&cational qualifications demanded for entry. and to rely
on in-service training to a considerable extent, without incurring a risk
of serious difficultiesarising from such a course.
The minimum qualifications for al1 Native recniits in the Temtory
were therefore set at Standard II ', instead of Standard VI11 which
applied in the case of European recruits. The standard of promot~on
examinations was also reduced-and in certain cases dispensed with
altogether-so as to enable Native officersto advance to higher ranks.
Despite these measures. the posts of chief sergeant and senior ser-
geant 2 can stili not be filled by Native officers,because of the lack of
qualifications rendering them suitable for such posts.
50. The position of the Police Force in the Temtory in 1937 was
referred to in the discussions of the Permanent Mandates Commission
during that year. The relevant extract from the minutes of the meeting
reads as follows:
"M. Sakenobe [asked] ... Were the police mainly European?
MI. Courtney Clarke replied that they were mainly European; but
there were native constables, corporals and sergeants, by, whom
European police officers were commonly accompanied in the
performance of their officia1duties '."
51. Sice 1937 the number of Native policemen has increased con-
siderably. In that year Respondent employed 3 1 police officers inside
the PoliceZone,of whom 205were White and 16anon-White. At present
the Police Force inside the Police Zone consists of 594 officers,of whom
323 are White and 271 non-White. Outside the Police Zone four police
stations have recently been established and these stations are manned
by 24 police officersof whom 12 are White and 12 non-White.
52. Respondent continues to encourage the Native inhabitants of the
Temtoryto loin the Police Force by making the conditions of employ-
ment more attractive. It also seeks to encourage members of the fofce
to irnprove their educational standards so as to qualify for promotion
to the higher ranks. Whereas fomerly recruits in South West Africa
dida three-months' initial training course at their district headquarters,
after which the were enroiied as constables, they are now trained at
institutions in Luth Africa where they undergo the same training as
~ ~ ~which is ~rescribed~ ~~~t~ ~South African recruits.
The first p;ornotion cxamiiiation-that from constal,le to sergeant-
mav be taken after three vears'ser\ice. Further promotion examinations
mai be taken at t~o-~éarl~intervals. Ail rechits are encowaged to
study. and are given weekly lectures in an effort to improve their educa-
tional qualifications.
1.e.. thfourth schaalyear.
P.M.C.,eMin.,eXXXI, p.ft134.he senior ofin charge of a police post.152 SOUTH WEST AFRICA
53. Xatives are also employed as warders in the Prisons Service in
the Territory. Sew recnuts recc.i\.ein-service basic training from non-
\Vhite instmctors under the su~crvision of White commissioii~d officers.
They are trained in al1aspects Ôfprison administration.
54. Out of a total complement of 108employees in the Prisons Service
in the Territory 61 are non-White. AU these non-White persons are
employed as warders of varying ranks. Provision exists for a non-White
warder to rise to the rank of senior chief warder, but as yet no suitably
qualified candidates for this rank are available andthe highest rank held
by a non-White employee is that of chiefwarder.
55. In the nursing profession, too, considerable dificulty has been
experienced in obtaining sufficiently interested and qualified Native
women to enter the profession. Respondent has been compeiled to
appoint non-White nurses from South Africa to posts in South West
Africa, and many White nurses have stiUto serve the non-White groups
in the Territory.
56. The Permanent Mandates Commission discussed the nursing pro-
fession in 1923 and the following remarks appear in the relative report:
"Sir F. Lugard asked whether any natives were employed as
hospital assistants.
Major Herbst replied that a number were employed in the govem-
ment hospitals, though not as trained assistants. The natives were
not suficiently advanced to be capable of receiving professional
instruction '."
57. In certain instances the dificulties experienced by Respondent in
the need for adequate health services went deeper than appeared from
the above-mentioned discussion in 1923, and are reflected in Respon-
dent's annual report to the League for 1927 where Respondent stated
as follows:
"The question of supplernenting the European medical service
among the native population by means of trained native assistants is
one of considerable difficulty toward the solution of which a great
deal of thought and attention have been directed for some years.
The main obstacle to progress in this direction is the attachment to
custom and tradition which at present remains as strong among the
detribaiized as among the rest of the native population. Experience
facilities for treatment offered at the various Government and,other
institutions, native methods are almost invariably resorted to in the
first instance in nearly aU cases of sickness and in matemity work.
Treatment in such cases is camed out by the older members of the
mou^ or familv aeainst the wisdom of whom the methods and
ëxpeirience of younger members trained under European supervision
are not tolerated for a single moment. When the customary
P.M.C.. Min.. IIIp. rrr COUNTER-MEMOR IFLSOUTH AFRICA I53
measures fail or urhcn corn li~ations ariscit is tirne enougli to séek
European advice. l.lie resui i; that the more intelligent young men
and women. apart from preferring the comparatively free and easy
life offeredby domestic and other service, are disinclined to seek
employment which may possibly bring them in conflict with family
tradition '."
58. As stated elsewhere in this Counter-Memorial 2, a scheme for the
training of non-European auxiliary nurses was introduced in the Terri-
tory in 1959, when training schools for such nurses were established at
the state hospitals at Windhoek, Grootfontein, Otjiwarongo, Gobabis,
Walvis Bay, Keetmanshoop and Luderitz.
The minimum scholastic qualification originally laid down for non-
European girls to train as auxiliary nurses was Standard IV ',as against
Standard VI11asa pre-requisite for training as general nurses. It was
soon found, however, that girls with only a Standard IV certificate
could not cope with the theoretical part of the training, and the mini-
mum requirement for admission to the course was accordingly raised
in 1961 to Standard VI.
59. Despite the low qualificationsrequired, and despite the reduction
of the dwation of the course from a period of three years as originally
fixed, to 18 months. the response has been poor. In 1959, for example,
there were only 29 applicants for 64 posts for non-European auxiliary
nurses at the Windhoek State Hospital. and nearly one-third of the
applicants were from South Africa.
Since the inception of the course 97 non-Ewopean girls have qualified
as auxiliary nurses in South West Africa. While there are at present 196
posts for non-European auxiliary nurses at state hospitals in the Police
Zone. and manv more will be created when the new state hos~ital in
0katana in ~v$mboland, which is now in the course of construction, has
been completed. there are only 69 pupil nurses from the Territory in
training as auxiliary nurses at state hoipitals.
60. Ontside the Police Zone Respondent has not been succwful in
directly assisting Native women to become trained nurses. by reason
of their lack of educational qualifications, but for the last 30 years
the Finnish Mission in Ovamboland, assisted by subsidies granted.by
Respondent. has been training Ovambo women at the Mission Hospital
at Onandjokwe to become assistant nurses. This hospital was,approved
as a trainina school for auxiliarv nurses hv the Nursing Council in 1961.
At prcsrnt-there arc 27 îuxifiary nursés in training at this centre.
Respondent's scheme of subsidizing such mission training centres outside
the Police Zone has been extended to other mission hospitals as well.
61. The smali number of non-European girls with the necessary
qualification. (Standard VIII) and who are interested in nursing as a
profession does not as yet justify the establishment of facilities forthe
training of non-European gmeral nurses in the Temtory. For those who
are desirous of following such a course of training, there are ample
facilities in South Afn'c'.
' UG. )i-r<>28.para.227.pp. ioi.10~.
Vrdr Rook VII. Chap.VI, paras. 68.ofthis Counter-Memarial.
The.~ ~ ~6r~tohmincd atter--~mo~~~ ~.~ ~ the rixth scvear.
Vida BMk VII. Chap. VI, para.g,of thir &unter-~emorial.'154 SOUTH WEST AFRtCA
VI. THETEACHING PROFESSION
62.As indicated ekewhere in this Counter-Memorial lthe teachina
profession affords y<:t;inorlier example of insufticient rative candidat&
witlitlia riiinimuni etlucational qualifications available to 'nter the pro-
fession.To itimul:ite interest in thjs respect and eiicourage more entrants
and therebv,t~-.romote the education of the indieenuosÜeonles as much
as possible tiuough members of tliçir own group.~ho \rÔuldAbebcst able
to understand aiid appreciate the child's cultural hickground, Kespon-
derit was obliged for-mans yex; to allow aditiisiion toteacher training
courses to Sative students who had only a Stan<iard II certificate (ie..
completion of the 6rst four véÿr;of the primary school course). In 1947
the minimum iequirement for admission to the training school at the
Augustineum was raised to Standard III. By 1952 the position had im-
proved to such an extent that the minimum requirement could be raised
to Standard VI in the Police Zone, and. by 1961a ,lso outside the Police
Zone. As more Natives obtain hieher educational aualifications it is
hoped that thestandard \r,illeventially be raised iinitis the saine as
or Lni\,crsities in South Africa after obtainine a matriculation certificate
(i.e., standardx). -
63.These measures have resultcd in the number of non-White teach-
to 385in 1961.insiOutside the I'olice Zone there were 294non-White and
teachers in 1924, mostly untrained, whereas in 1961there were 644
trained non-White teachers.
Vil. INTERPRETERS
64.By reason of the number of different groups to which the non-
White inhabitants of the Temtorv belone. and the diversitv of lan-
pages spoken by them. mucti use is'madeoi~ative interpreterçthrough-
out al1branches of the civil service. 'Tlieseinterpreters are permanent1
employed irithe civil service and are maded into various mades ~ccordI
ingto-their educational qualifications-and general experieice,
VIII. OTHERBRANCHE S F THE PUBLICSERVICE
65.Natives are ako employed to a greater or lesser extent in other
branches of the civil service, but, owing to the prevailing lack of proper
educational qualifications, without attaining any great advancement.
made it impracticable for Respondent to lower the minimum qualifi-tly
cations for entryasit has done in other branches.
Respondent, however, continues to encourage the Native eoples to
raise their educational standards. and, as and ivhen they Bo achieve
the requisite degree of education, their horizon for absorption înd ad-
vancement in the civil service must ex~and considerablv. That Respon-
dent's policy is not one of inhibition81 suppression injhis regard.-can
be demonstrated by the wider field of opportunity wliich is open to the
Satives in the Republic of South Africa.where the standards that have
Book VII. Chap.V,paras. 23to 29ofthis Gunter-Memonal. COUNTER-MEMORIAL OF SOUTH AFRICA I55
been achieved in regard to development of the indigenous peoples are,
for vanous reasons, considerably in advance of those in South West
Africa. Not onlv are there Bantu Professors and lecturers at the Bantu
univenit). Colieges.but in the schools Rautu inspectors and supervisors
are appointed. Uantu matrons and Uantu nursing sistenservc in hos~iitais
and Bantu maeistrates and nostmasters are ilso anuointed in Bantu
areas. In the uyban areas within the Kepuhlic. local'~uilioritiçs einploy
Bantu techni~ians and senior Bantii administrative clerks. Kcspondent s
policy envisages similar dcveloprnent in South West Africa, I>ut ût
prcscnt Kespondent is still seriously hampered hy the dcarth of cduca-
tionally qualified candidates for appoiiitnient to suc11posts.
'
1. Cornparison with OtherTemtones in Afnca
66. Up to the close of the Second World War the higher range of
public service posts-and also, to a very large extent, the medium range
of posts-in the administrative services of most African countries
administered by European powers, were staffed by European officiais.
This was due not to any policy of repressing or neglecting the legitimate
aspirations of the indigenous Native groups, but rather to the lack of
indigenous candidates with the necessary education, experience and
outlook to perfom such duties satisfactonly.
67. The above was the conclusion reached by, and stated in the report
of, a commission appointed by the British Colonial Office in 1947to
enquire into the civil services of Ken a. Tanganyika, Uganda and
Zanzibar. Dealing with a contention a i vanced in evidence before it.
"directed towards the breakdown of what is calied racial discrimination
and introdiiction of a system whereby al1~~osts in the services are tlirown
open to competition, thesuccrssful candidatcs receiving the same salary,
pay ior equal work" '-theo1our"-a svstem usuallv referred to as "equal
CommisGonreportedas foliows:
"79. ,. .the doctrine ofequal pay forequal work losesany validity
it may otherwise possess unless the words 'equal work' are construed
as meaning work of equai qnality. On such a construction, in the
fie- with which we are concemed, the doctrine faUsto the ground.
Taking first the African vis-d-visthe Asian, it would be true to say
time markedly inferior tothe Asian of the same educationai qualie-ent
cations in such matters as senie of responsibility, ludgement, apph-
cation to dutv and output of work.
80.This &tement iSno mere expression of opinion unsupported
bv evidence or armment. On the contrary. the view which we have
expressed has received the overwhelming éndorsementof our witnes-
ses on this matter, not least of those who are most anxious to further
the advancement of the Afncan. Apart from this, its truth is es-
tablished beyond question by hard facts. Big business concems in
East Africa employ large numbem of Asian clerks. Someof themalso
employrelatively few African clerks at salaries which. though by no
means niggardly when judged by the general wage-eaming capacity
and Zanribar 1947-48. ColoniaNo.c223,ipara.74.p. 24.ya, Tangonyiha. Ugonda 156 SOUTH WEST AFRICA
of Africans, are very much lower than those paid to Asians. Com-
panies such as these, being concems conducted for profit. may be
presumed to be unlikely to squander money on the overpayment of
their employees. The question, therefore, to which those who may
challenge thetruth of our assertion must find an answer is 'Whv. if
the aveÏage Africcincliirk is as cornpetenr as the average sia an h:
not coriimercialand iridustrial firmsdisplaçe the Asian by the African
since it would be meatlv to their financial advantace to do so?'
81. ~om~ariso' of ibis sort are invidious and-distasteful, but
theymust be made if only to bring home to the African the fact that
the discrimination of which he complains rests not on racial but on
other and more fundamental grounds, and to showhim why we are
unable to accept hisplea for 'equal pay for equal work' as a sound
foundation on which to build a salary stmcture.
82. In making these observations, nothing could be further from
Ourthought or our intention than any belittlement of the extent of
the African's achievement up to the present time. It has to be re-
membered that the indigenous peoples of the three mainland terri-
tories are removed by little more than fifty years from a state of
society far more primitive than that of Britain at the beginning of
the Christian era-a society which was completely illiterate and
necessarily so, since no alphabet existed, a society with few, if any,
exceptions, ignorant of the wheel, the plough and the loom. a
society in which the only rule was the rule of the spear or of the
sorcerer.
83. With such antecedents it would be idle to expect to find in the
Afncanoftoday those qualities of mind and character which go to
the making of a good civil servant developed in any marked degree.
Indeed, it seems to us a matter for remark that in haIf a century the
African who comeswithin Ourpurview asan actualor potential civil
servant has advanced as far as he has rather than a matter for
adverse comment that he has not advanced further. Now such
further advancement is to be achieved. whether by insistence in the
field of education on the deveio~ment of characier rather than on
the acquisition of a school certifitate. bygreater stress being placed
on technical education as opposed to an education which produces
a rnuch larce nimber of aspirants for 'white collar' iohs than forthe
technical Gsts, or by thé further development of native councils
with the encouragement which they provide to the African to take
an interest in community problems. is a matter of speculation which
far transcends Ourterms of reference. But achieved it must be if the
African's own aspirations are to bereatized and the declared poljcy of
the Colonial Office as enunciated in Colonial No. 197fuliy imple-
mented, without detriment to the efficient administration of the
several services1."
68. It was. however, generally recognized in these non-seifgoveming
temtories-as it was in South Africa and in South West Afnca-that
it wasdeçirable, from a practical as well as from an ethnical pomt ofvie?,
to employ as many educated Natives as possible in the service of theu
' RcPovtoffheCornmirsion on fhaCivil Semices of Kcnya, Tnngonyika. Vganda nnd
Zann'baa 1947-48.op.cil.paras. 79-83, pp.z.+-z~. COUNTER-MEMORIAL OF SOUTH AFHICA I57
own groups. Efforts were accordingly made in most of these countries
to open as many avenues of employment in the public service to these
groups as was practicably possible. The limiting factors in what must
necessarily beaslowprocess, if administrative efficiencyand the interests
of the population generally are not to sufferunduly. were the shortage of
snitably quaiified candidates. The following remarks by Lord Hailey
exemplify this:
"It was statedin 1955that theGoveriiment of Northern Rhodesia
had proposed to create posts for Africans in the Administrative
Services, but that no candidate had as yet corne forward with the
necessary qualifications '."
69. In this regard reference may also be made to a 1963 report on
the economic development of Kenya by a mission organized by the
of the Governments of Kenya and the United Kingdom. In the courseuest
of the report the Missionsays:
"The availability of an adequate supply of human skills in Ken:.a
will depend at least for a number of years not only on education,
and in orivate activitv. Most of the technical and ~rofessional ser-
\,icrs..'.areriow pro\'.idedalmost exclusively hy the'rn.They are the
main soiirccofexperienîz for the inanagemcnt oforganized industry
and the government services. For the expansion of education.
reliance must be placedprirnarily on non-Africans for some years to
70. As further indications of this lack of adequately quaiified per-
sonnel in varions territories in Africa. which necessarilv reduces the
rate at which the people as a whole can progress, the foliowing may be
cited:
(a) The 1958 Official Report on Swaziland contains, inler alia, the
following information:
"There are no Universities in Swaziland nor. becanse of the size
of the Temtory and its small population, can any developments in
thSeven Swazistudents are studying at Pius XII University CoUege
at Roma in Basutoland. one has beeun his medical course at the
Durban ~edical ~chool; and two a& enroiled at the Goromonzi
High School in Southem Rhodesia where they wiil followa Cam-
bridge Higher Certificate Coursewith a view to entering the Univer-
sity Collegeof Rhodesia and Nyasaland '."
(b) The 1957 Oflicial Report on the Bechuanaiand Protectorate, which
borders on South West Africa, States that "... only 13 students
obtained the Primary Lower Certificate" during that year '.
71. Respondent has sought to increase the facilities for education
and vocational training for the indigenous peoples of South West Afnca,
and, as has been shown, Respondent has been able in recent years to
raise the standard of qualifications in the teaching profession and also
Hailey.An AfricnnSurvay (rg57)p. 3-58,
Tlic EcononricDcvclqkantO/K~caya(1963)p..37.
' Bechuanaland Prolcctorale: Kepori for the Year,957(1958)p..48.15s SOUTH \!'EST AFRICA
in other branches of the civil service. The forms of in-service training
on which liespondent relies have had the effect of attracting more and
more Native candidates to the v;irious branches of the service, and have
thereby given to the Native people an ever-increasing. share in the
public administration of tlie Territory. It is also the avowed policy of
Kespondeiit to encourage the Native peoples so to quaiify themselves
as to bring about full participation in ail aspects of the public service
designed to serve tlieir particular groups.
72. I'rogress towards tliis ideal is. however, slow by reason of the
practical obstacles already referred ta. and also experienced by other
colonial administrationsin Africa. III tlie light of the diversity of popu-
lation groups in the Territory, and tlie various stages of development
at wliiclitheystand, liespondent has considçred it not to be in the generai
interest of the inhabitants of the Territory to seek to "Africanize" those
sectioiis of the civil service serving the Native population at the same
tempo as has been attempted iii certain other temtories in Africa.
Respondent rather seeks to absorb gradually more and more of the
over riiid control al1 aspects of their national life as soonasipossible,
without serious dismption in the efficient functioning of the Service.
73. That tlie wisdom of such a policy was ais0recognized by other
administering Powersbefore the pressure of African nationalism dictated
other courses appcars, e.g.. from the writings of George H. Kimble in
ization" in Nigeria. he goeson to Say:caily with the progress of "African-
"Elsewhere in British Africa progress has been much slower. This
we may take it, is partl because the demand for Africanization has
been weaker, and part& because the British-seafarers that the"
are-believeaconv~vca~safelv~roceedonlvat thes~eedof theslowkt
unit, and in such témitones as'British ~omalilanb, Bechuanaland,
bardy ùnder way. But not many African leaders are greatly inter-
ested in safety; they wouldn't be leaders for longif they were.
The other adminlstering powers have tended to take the view that
the cost of too hasty Africanization in inefficiency,ine uity, andin-
creased taxation is one that no colonial territory sho3lbe c+ed on
to bear: that their job, fust and last. it to run a 'tight ship'. To
them, this has meant manning it with the bestqualified people, ines-
pective of race'."
74. The dangers inherent in a policy of premature Africanization
were foreseen by the Commissioners enquiring into the civil services of
Kenya. Tanganyika, Uganda and Zanzibar. referred to above =.in the
course of their report they sound the foliowing.waming:
"Wesense a danger that in a laudable desire to enable Alricans to
participate toa greater extent than at present in the public services,
govemments may be temptcd to seek to replace Europeans by Afn-
cans with infenor professional or technical qualifications. Nothhg. in
our view, could be more inimical to the future interests of the tem-
' Kimble. G. H.T.. Tropical Atrico (1960). VIISocietyandPolily,p. 356.
Vi& para. 67.rupro. 1 COUNTER-MEMORIAL OF SOUTH AFRICA I59
tories or, indeed, taking a long view, to the interests of the Africans
themselves '."
75. In 1956Lord Hailey also recognized the fact that:
"Whatever may be the merits of a policy which has in recent years
conceded so large a measure of political advance to the British
dependencies in Africa, it is obvious that the transfer of power is
fmding çome of them without an indigenous machinery which is
adequately equipped for their administration. This may prove to be
a very serious obstacle to the smooth working of the new consti-
tutions Z."
76. An example of the consequences of indiscriminate Africanization
and the dangerous implications involved for the welfare of the popula-
tion in general. can be derived from the following recent statement
by the Minister of Law of the Federation of Rhodesia and Nyasaland
regarding the administration of justice in the self-governing colony of
Nyasaland:
"Up to now people with Littleif any legal training or experience
have been appointed to the bench. A law school has, however, been
estahlished for the purpose of giving a 'crash' training of three
months to prospective judicial officers ...Following the pre-existing
practice in Native Authority Courts. legal practitioners were not to
be given the right of audience in cases between Africans. When the
Bill was before the Legislative Assembly Dr. Banda said that in
cases where the jurisdiction of the courts was extended to Europeans
they would be allowed the privilege of having the services of their
legal advisers if they chose to do so. He warned them, however. that
if a European exercised this nght he would be assumed by Africans
to be guilty.
In Juiy this Ordinance has been amended so as to extend its appli-
cation generally to Europeans. At the same time the opportunity was
taken to deprive them of the right to the assistance of their legal
advisers unless the Minister of Justice sees fit to order otherwise. In
the course of the debate on the Bill Dr. Banda stated that ifIawyers.
magistrates and judges were aliowed to run courts according to the
European idea, then justice would not he seen to be done in this
country 3."
77. A further warning against over-hasty Africanization is contained
in an article b a Nigenan Chief, H. O. Davies. Q.C., a graduate of the
London Schoo 7of Economics, now practising Iaw in Lagos. Nigeria, and
former President of the West Afncan Students Union, entitled "The
New African Profde". In this article he says, intn dia:
"There is an ever-present danger of overdoing 'ization' of the
administrative service. Where this has happened, and there haç been
a breakdown in eficiency, the new State has had to rehire expatnates
on much less favourable ternis than were available initially +."
' Reportof Ib Commission on fhe Civil Semices of Kenya,Tanganyika,Uganda
andZHailey. An Afrirnn Survr(1957).PP ;.VZQO...o. 27.
Fedrrnl Gmcrnmrnt Prcrr Staicmrnt 726,031DER (30 Julg 1963).pp. 89.
' Dawes. H. O.."TheNew Afncan Rofilc". in Forrign Aflolrr (U.S.). Vol. 40.
No. 2 (Jan.1962). p.3m.160 SOUTH WEST AI'KICA
78. Keviewing the progress made during tlie decade 1947.1957, a
United Nations publication entitled I'rogress of the :Vo?i-selfgovcrning
Terrilories States, iitler alia:
"At the bcgirining of the period under review, the broad employ-
ment structure of the public services in many Territories, particu-
larlv in Africa. was one in which Euro~ean officers occu~ied the
senior positions. 1Jiir11licaisnd. in soriie'~frican T<:rritorit.. siaii.
1;trgcIyur wIii,11)ni:iiiiic(ltlie niiddlc gr:ides of tcctinical ;inil clcrical
appointments, and indigenous penons occupied the subordinate and
-.nskilledwsts.
In soméof these Tcrritories, separate sections of the public service
withdistinct waEeand salary scales and other conditioiis of employ-
inciit esisted foÏdifferent ciasses of em~loveeson the basis ofyaie.
cven though admission to senior posts'was open to persons of au
races. In otlier Territories. where the principle of non-discrimination
in public cinliloymcrii ii,:isnot oiily icieptid bur grmeriillyapplied.
rhere iv:i;i prcpondernnce of officcrs recruited lrom al)road in the
senior ranks of the services. owirixto tlitlnckof qualified indigznous
candidates. In the past fewyears more specificre6ommendatioÏnsand
programmes have been adopted in a number of Territories in order
to increase facilities for training and higher education, to establish
unified public services and to bring about full participation by the
local inhabitalits in tlie public services'."
79. Despite these increased educational facilities and despite the vast
sums of money spent on the training of prospective civil servants in a
deliberate high-priority policy of Africanization, even at the cost of
efficiency, most African States still rely heavily on European civil ser-
vants to maintain the structure of their administration. In Senegal,
the most advanced territory in the former French West Africa, the
followingwas stated as in 1962: "In the secondary schools. for example,
only 17 out of 253 teachers are Africaii. This situation in Senegal is not
uhusual; it exists in al1African countries 2."
80. In Tanganyika the staff Listof officersin the civil service in 1954
contained only five Natives 3. The snbsequent result of a deliberate
polic of Africanization of this service appears fromthe followingextracts
from Afrtcan One-Party Slales referred to above:
"In the 1950swhen the Tanganyika govemment finally opened the
upper ranks in the administration to Africans, it had difficulty in
finding personnel; few Tanganyika Africans possessed the required
university education. Although this requirement was subsequently
modified and training grades were introduced, the entry of Africans
was not rapid enough for local opinion. After 1957 in particular,
Africanization of the administrative service became a major rallying
cry for TANU, and public opinion pressed especially for African-
ization in the posts most exposed to contact with the public ... The
number of Africans in senior posts increased irom 112 in 1956 to
453 in 1960 out of a total senior service of approximately 3,000
Carter.G. M.I(ed.),Africon Onc-PnvlySlales(1962).p. 132.
The Ec&zomic Drvrlopncnl ofTenganyika (i~bi).p.348. COUNTEII-MEMOR OIA LOUTH AFRICA 161
persons. In the district administration upcountry, however, tliere
were in 1960only 15 Africans in senior posts '."
"In practice, it seems generally admitted that Africanization kas
affected the efficiencyofthe Tanganyika civilservice. though to what
extent remains a matter of debate l."
SI. Lord Hailey also says:
"In the Gold Coast the numher of Africans holding posts .in a
varietv of CivilServices which wereformerlv classifiedas 'senior'and
were 6eld by Europeans, rose from 171 in'^^^ to^916 in 1954, but
as the total number of posts had increased, the percentage of Afri-
cans had risen only from 10 to 35 )."
The Gold Coast (now known as Ghana) became independent in 1957,
but in June 1959 there were still more than 900 expatriates in the
Ghanaian Civil Service. and in addition several expatriates were em-
ployed as engineers, architects, and technologists of al1kinds in "devclop-
ment posts" '.
82. Nigeria is usually regarded as an exception to the criticism that
the Native peoples of the former British, French and lielgian colonial
territories have not been adequately prcpared for the administrative
responsibilities thrust upon them as a result of recent developments.
Lord Hailey, however, wrote in 1956:
"Already there are beginning to appear signs of a serious danger to
the efficiencyof the Administration as a wholeowing to,the growing
insistence. especially in the Eastern Region. on a rapid process of
Africanization of the superior administrative and departmental
posts. This was a not unnatural outcome of the campaign for self-
government; but it is clear that there is at the present time no
indigenous personnel available to replace the former occupants of
these offices5."
". .. In Nigeria, although the Constitution of 1951 brought
Higher Civil Service appointments under Federal control, the
Western Region Government attempted to exercise a veto on
appointments of Europeans by refusing to authorize the pavent of
the expatriation allowance which European officersreceive in addi-
tion to the salary of the post. In Eastern Nigeria a subsequent effort
of the same kind led to a minor constitutional crisis in 1955when the
Govemor used his 'reserve' powers to 'certify' a budget grant for
certain expatriate officers whose posts the Regional Government
was seeking to retrench ...
The 'Nigerianization' of the Public Service had been the settled
policy of the Administration for several years. It was, however. em-
barrassed by the fact that there were still an inadequate number of
qualified Nigerians to fiUposts on the senior staff. In the middle of
establishment of 5,127 (exclusive of the Railways). That there were
even so many Nigerians qualified for this grade of service is largely
Grter. op.cil.p. 46r.
Ibid.p.. 463.
' Hailey.An Alvican Suway (1957)p. 368.
' Kirnble.op.cil.p. 356.
' Hailey,An Alrican Sunicy (~957)p. 314.162 SOUTH WEST AFRICA
due to the award of 385 scholarships by the Nigerian Government
during 1948 and the foliowing years and to the measures taken to
raise the College at Ibadan to the status of a University College.
There werc at the same date 2,389 pensionable Overseas Officers
servingin 'Senior Service' grades,of whom zjper cent. were on con-
tract. and it is relevant that the Missionof the International Bank
reportcd in 1954 that 2.000 addilional recruits [romoverseas werere-
qtiircd to implcinent the 'l'crritory's Bevelopmrnt Jans. There
iverc 1.028vacancies wlii<:kii-erians wereeither un&g - or lacked
the qualifications tofül1."
83. The First Progres Report to the Secretaty-General of the United
Natioiis from the Special Representative in the Congo. Ambassador
Rajeshwar Dayal, dated zr September 1960. reflects the position in
the former Belgian Congo shortly after it had attained independence.
The Ambassador wrote as follows:
":lt the tiiiiofindependence there wereo~ily17Congoleseuniver-
sity gr;iduatt7s. not oiie doctor. no engineers. professors. architects.
etc..arid le\\.ifail\,. aualified 1au~vc.. there is to be a larae-%ale
program of fellou.&ip'awards, aid paraliel programs of inyservice
training, one must find people with sufficient educational pre-
requisites to qualify for this training. In the field of health the
ONUC [Operations of the United Nations in the Congo] Senior
Consultant has estimated that it wili take some 22 years before the
Congocan produce enough of its own doctors to staff even a reduced
schedule of health services. Recently, a government offered to train
skills of weather forecasting. So far, only six Congolesehave been
found who ciualifv for these awards ... It is amarent that. for a
long whilc to'somé.the Congowill have to depen'd'onlarge numbers
of techriici;ins from abroad. and in fact ONUC has already been
approached to use its machinerv to recruit teachers. doctori. labor
in$ectors. administrators and ntlier specialists who would become
~mplo)ees of the Government. 'The Cnited Nations Educational,
Scientific and Cultural Organization has been asked to undertake
the task of finding over 1,500 teachers to staff, for the most part,
the secondary schools. Effective recruitment is found difficult,
however. because of the prevailingpoliticalconditions in the country.
Lessthan 50ofthe 400hospitals operatingthroughout the country
have doctors, most of them provided by the Red Cross and biiateral
aid teams. Many of these teams will have to return home within the
next few months, and it willbe difficult to fmd replacements 2."
84. The fact, therefore, that the Native inhabitants do not occupy
any of the higher posts in the civil service in South West Africa, does
not justify an inference that they are intentionaliy "confined to the
lowest levels of employment" so as to prevent them from acquinn
posts for which they are qualified, but is in truth due rather to theu laf
of educational qualifications for the posts, despite the considerable
-
Hailey.An AfricanSuniay (1957) pp. 370-371.
Dayal. R., "First Progress Reportto theSecntary-Geonai from his Special
Representative in the Congo",in United Nations Rcvirw. 7,lNo. 5 (Nov. 1960).
p.22. COUNTER-MEMORIAL OF SOUTH AFRICA 163
progress they have made in acquiring skill and qualifications in other
directions under Respondent's guidance.
Respndent has, as stated, not considercd it to be in the,general
interests of the population of the Territory to embark on an indiscri-
minate programme of Africanization of the civil service in South West
Africa, but has ratber striven to lay a sure foundation of eduation
and experience in the machines. of government, before entrusting high
responsibility to indigenons civil servants. As and when they do acquire
such education and knowledge, Respondent's policy contemplates their
advancement to the higher ranks of the civil service in those branches
where they will he able to serve their own people efficiently and re-
sponsibly.
J. Respondent's Reply to Applicants' Allegations (Memoriak)
(a) Paragraphs88-93
85. The Public Service and Pensions Act,1923 ,eferred to by Appli-
cants, has been repealed and superseded by the Public Service Act,
1 57. which, in terms of the lkt section of that Act, is also made applic-
aBie to South West Afnca 3. Applicants' further allegationç are dealt
with in paragraphs16 to26 above.
(b) Paragraph94 '
In addition to the list of persons mentioned by Applicants in this
aragraph who do not fom part of the "public service" as defined
gy ,the Public Service Act1957 can be mentioned nurses in the Tee-
tonal Administration's Hospitals. members of the Prisons Serv!ceIII
the Territo~. and certain officia15employed in the administratiopi
Native Affairs, who are appointed by certain Native groups, and paid
from tribal trust funds.
(c) Paragraph95 '
The Public Service Act,1957 ,rovides that no person shall be appoin-
ted permanent1 to the public service, as defined by that Act. unless
he is a South hican citize5.As the South African Citizenship Act,
rg4g6 as amended7, has extended South African citizenship to al1
1.PP. 135-37.
Ioid.. pi35-1.36.
'ActNo.54 of1957.ec.1,iSLntulcrof the Unia of SouthA1957oPartII.
m. 794-798.
'Act.NO..54of1957.sec.ri(2).inSL<rtutrf the Union of SouthAf1957.
PnrtII.p.820.
'Act NO. 44of1949. inTha Lows O/Soulh Wasl Afric1949,Vol.XXVIII.
PP.204-239.
'Ad NO.64 of1961,inThe Lmmsof South West Afrir961.Vol.XL,Part1.
PP.508-53)764 SOUTH WEST AFRICA
persons born and residing in the Territory '.this qualification does not
in any way constitute a limitation on the inhabitantsof the Territory.
(d) Paragraph96
Setther in prdctice, nor in theor),. arc Satives excludzd from p.irtici-
pation in the gcneral administration of the Tcrritory. Rcspndent's
policy is one which envisages ad\,aiicernent of h'ative officialsto positions
of responsibility in the Iiigher caregories of the public service in those
areas and den;irtments desiancd to serve the ethnic mou^ of which the
officialconceked is a memGer. It is true that there Ge & yet relatively
few Natives in the higher posts, but this is due to the serious lack of
adequately qualified candidates for employment in these posts, and not
to a deliberate policy of repression or what is termed "job-reservation"
by the Applicants. Those posts designed to serve any particular Native
group, which are presently occu ied by White officials,will. in the Iul-
tilment of Respondent'ç declareXpolicy, be made available for vatives
of that group as and when they achieve the qualifications reqwred to
fiIl them. In fact, from a practical point of view, the most important
form of "job-reservation" presently applying in the public service of
South West Africa, is one which reserves certain posts for Natives of
the ethnic group which the post is designed to serve, in the sense that
preference is given to a member of the group concerned in filling such
a post. This policy has had the effect of Respondent having to refuse
White candidates' applications forcertain posts.
(e) Paragraphs97-105
The Territorial Budgets for the years 1946-19j4 in fact reflect, inter
alia, what Applicants set out in these paragraphs. Kespndent. however,
submits that by the selection of these six departments' Applicants
do not present a true picture of the civil service as a whole. In treating
of this subject. Respondent has indicated to what extent Natives have
been incorporated and do participate in branches such as the police
force nursing services "nd the teaching profession '. Natives also
participate to a considerable extent and in important respects in the
Department of information^, the prisons service and the adminis-
tration of Native Affairs Io; and the), further play an important role as
interpreters in al1branches of the civilservice ll.
Moreover, the limitation by Applicants of the period of the extracts
'Act No. 44 of 1949. secsr and 2, inThe LairisofSoulh West Africn1949, Vol.
XXVIII. pp. 204-206. andAct No. 64 of 196,.sec.2. in The Lowr O/ South Wcsl
Afr'1, p. 136.ol. XL. pp. 508.510.
Ibid.. pp. r36-rg7.
' Vide para. 5, supra.
Vidc paras. 48-52supra.
Vidc paras. 55-6r. supo.
' Vida paras. 62-63, rupln.
' Vide para. 47. supo.
Vide paras. 53-54. supla.
Io Videparas. 33-46. rupro.
Vidc para. 64. supra. COUNTER-MEMORIAL OF SOUTH AFRICA 165
and, for that matter, as in 1961 when Applicants' Memonals were pre-ay-
sented. Respondent ha already indicated that its long-term policy of
education and training of the Native eoples is now rapidly bearing
fruitand more and more Natives are qua?if . g f?r and obtaining respon-
sible posts in the civil service each year.r ven in those branches of the
service which ADDlicantshave selected sienificant chanaes have occurred
;;"ce 54 As ânaexample reference may-be rnade to the Department of
Posts, %el;graphs and Telephoncs. In tbis department pro\,ision is now
made for a wstrnastrr at Katutura. near Windhoek and four Sativc
postal assistants and four senior Native postal assistants in other parts
of the Territory. The qualifications for these posts have, in pursuance of
Respondent's policy of encouraging Natives to participate in the civil
service, been reduced for Native candidates to a Standard VI1certificate.
AUthese posts are at present filledby Natives.
In the Department of Agriculture' Natives are employed in the
northern areas as assistant stock inspectors, and are being trained by
White stock inspectors and veterinary officers to combat stock diseases
such as lung-sickness, anthrax, and foot-and-mouth disease. It is hoped
that with sufficient training Natives will be able eventually to take over
full responsibility in this field.
In the Works and Buildings Branch of the public service, to which
ADDlicants aiso~ref~r in their Memorials2. Natives are ~resentlv em-
Eio j.skilled masons. plastc.rc.isand paintcrs atidas sk'illcdariisans.
ack of îdequate cducational qiialihcations prevents their employment
in such fields as plumbing and clcctrical installation, but when Natives
do obtain such qualifications these tiekls wili al50 be open to theni.
Natives further occupy positions in Native hospitals as laboratory
assistants and darkroom assistants. and the trairiin~ of Natiws as
artisans in the Roads Department is also at pr,esent &ing undert,aken.
Out of a total of 9,918 persons em loyed In the public service m
South West Africa in 1959,4,048 were &te and 5,870 non-White.
II. PARAGRAPH 128 (3) AND (6)AND 190 OF CHAPTER V
86. Respondent denies the allegations contained in paragraphs 128
(3) and (6) and rgo (ii) (c), and says in particular that the charge of
deliberately and consistently pursuing a olicy which prevents the
possibility of pro ess of the Native popuLtion towards self-respect,
substance.li-y or sE11in the public service of the Temtory4, iswithout
The ab~ ~ s~rve~ i-,i~ ~ ~ ~~~-~ ~s~ondent's Doiicv has in fact
bcen in this regard. as well as the consid'erablepro&ss*made despite
the setious probleins similar to those experienced al1over Africa. Like-
wise. therefbre, the similar allegations in the introductory portion of
paragraph 190 'are devoid of substance, as well as the assertions that
1.para. 97. P. 136.
' Ibid.. pp. r+z-r4162.
' Ibid., par128 (3). p142.
' IKd.. p.162.166 SOUTH WEST AFRICA
Respondentoffersthe Native populationno "promiseof future amelio-
ration" and"no horizoon f hope" '.
The horizonsof progressbecome everwider and nearertowardçful-
filment 3s the Native populationavailçitself of the opportunitiesoffered ,
to securethe necessaryqualifications. CHAPTER III
LOCAL GOVERNMENT
A. Introductory
1. Applicants charge Respondent with having "almost entirely" cx-
of participation" in the government of the establiçhed local units with
the Territory, i.e., the municipaiities and village management board
areas. They go on to aiiegethat-
"The solefaint approximation ofan kuid ofparticipation is to he
found in the limited advisory roleO? the Native Advisory Boards
with respect to the 'locatio,'Native villages'and 'Native hosteis'
and even this minimal role is camed out under the 6nn control of
the 'white' localauthorities and the Administrator (afterI Apnl
1955,the Miniiter of Native Affairs and currently the Miter of
Bantu Administration and Development) '."'
2. The gravamen of their charge is set out in paragraph 128 (6) of
Chapter V of the Memonais where they allegethat-
"ln sum, by law and by deliberate and consistent practice, the
Mandatory has failed to promote to the utmost the development
oftbepreponderant part of the population of the Temtory in regard
to ... participation in any aspect of govemment. It has not 0nly
notable effort to do so. To the contrary, the Mandatory has pursued
a svstematic and active g rom am which urevents the wssibiity of
pr<gress by the '~ative''~oj>ulation tokd self-respect, responsi-
bility or skill in any aspect of citizenship or government, whether
Territorial or loca:.. I"
hope to the
4. In support of these allegations Applicants treat very briefly of
the "two principal t sof local governmental units" within the Tem-
tory, viz., municip trs and village management board areas, and of
1, para128(4)p. 142.
Ibid.. p. 143.
' roia.p.162.168 SOUTH WEST AFRICA
the Ordinances of 1949and 1937respectively, which it is alleged govern
+ho- 1.
Ap licants allege that the municipal councils and village management
boar&. wli~chconsist of White persons only.
"... exercise control over the administration of 'Native' affairs
within the municipalities and Village Management Board Areas.
subject to the general authority of the Union Minister of Native
Affairs..
They point out that a Native Advisory Board has been established
within each of such areas, to advise the urban localauthority on "... any
regulation affecting a location, 'Native' village, or 'Native' hostel which
the local authority proposes to issue", and to "... recommend to the
local authority the adoption of any regulation which the Board deems de-
sirable in the interests ofthe 'Natives in the particularurban area".
Applicants then add:
"The power of decision, Iiowever,rests firmly within tlie excluiivr:
splierc of the local authonty and the Adrnini,trator (after I April
rosi. the Cnion 3liriister of Kative Affairs'."
>"-.
5. In dealine with these aiieeations. Reswndent will endeavour to
show that theupresent position >f the indigénons population in regard
to localRovernment is due to historical and otber reasons, and that, far
from Rispondent seeking to exclude them from participation in the
institutions of local government. Respondent has sought systematically
to guide developments so that they may fitly be includedin such local
government. Respondent wiii show that it has not in any way sought
to prevent the "possibility of progress by the 'Native' population", as
"progressively increasing participation in the processes of government"
under consideration 5.
B. The Position Before and When Respondent Assumed the Mandate
6. When Respondent took over control of the Territory it found that
most of the towns and villages which exist today had already been
established, and a form of local government had already been instituted.
These towns and villages had been founded by the early European
pioneers as areas for their own communal habitation. They were never
intended for the communal settlement of any of the indigenous inhabi-
tants of the Temtory. and indeed such towns were something foreign
and unknown to the Native population. Hence there was initially no
planned provision for having any non-White inhabitants in or about
the towns, and in these circumstances it was riot only natwal but almost
inevitable that municipal organization and government was confined to
the White population: Non-participation by the indigenous population
of the Territory. to whom toms and their government were strange and
unknown, could not possibly, in these circumstances. have been felt to
be a depnvation.
1. paras106-iog ,p.137.138.
' Ibid.para. 113.p.139.
' Ibid.. parar28 (6)p.143.
Ibid.. para.rg(iip).163. COUNTER-MEMORIAL OF SOUTH AFRICA 169
7. As a result of the internecine tribal wars among the indigenous
people within the Police Zone, and events such as the Herero and Nama
rebellions between the years 1904 and 1907', the tribal organizations
of a considerable Dortion of the indiaenous ~o~ulation of the Police
Zone were seriousiy'impaircd. as well& the soiiat and economiç pattern
of thw traditional existence.
8. The towns and villages which had been estabüshed within the
Police Zone tended inevitably to attract members of the distressed
pulation by the offer of remunerative employment in commer-
Ncial an domestic undertakings. These people came not because of any
need or desire for the type of residential facilities of a European town.
man's monetary economy. Their sojourn in the urban areas was mostlyite
of a temporary nature, and the .of their own accord, choseto live apart
from the White inhabitants O Ythe towns in separate residential areas
adjacent to the European areas. This development is referred to by
Dr. N. Mossolowin an article entitled "Eingeborene in Windhoek" in the
foliowing words:
"Since the foundation Stone of the Windhoek Feste (fort) was laid
in 1890 and thereby the establishment of the town of Windhoek set
on foot,\%tes and Natives are living peacefuliy side by side. When
the soldiers who were engaged in the constmction of the Feste (fort)
saw the workseeking Natives, they noticed how these of their own
accord. settled at a certain distance from theites and ùuilt their
round huts of cow-dung and clay 2."(Translation.)
g. This development was perhaps inevitable. not only by reason of
the fact that the Natives concerned were members of diffwent races,:
but primarily by reason of the vast difference between their ways and
standards of living, and those of the European population. In,addition
because of the differences intese members of the various ethnic mouDs
coming to live adjacent to the European urban areas, also tended'to libe
apart from each other. Thus Dr. Mossolow,in the same article referred
t6 in .aIa-.a~h 8 above..sa,s:
"They utere;urprised to notice thnt the Bergdama did not walit to
have anything todo tvith the Hottentots, and the Herero in turn did
not \vis11to associate witli eithcr of the other two tr-bal-rrroups. nor
to eat with them from the same pot 3."(Translation.)
IO. Only at this stage of development did the indigenous peoples for
the fint time begin to come into contact with the organizatiqn and
workings of towns and villages; and thus participation on their part
in the European foms of municipal government would. have been
anomalous and strange rather than the opposite. Such Natives aç were
in the domestic service of the Eurooean vülaeers. freauentlv resided on
their employers' premises in the vifage. but Gok'no Part in-the govern-
ment of the communitv.
II. The legislation relating to local government was included in the
' Vide Book III. Chap. III, ofthis Counter-Memonal.
*Mos~low-, N. "Eingeborenein Windhwk". in DerHveis, Heft12(Nov. 1959).
P.435.
Mossolow.K..op.cil170 SOUTH WEST AFRICA
Ordinance of the Imperial ChanceUor,dated 28 January 1909', relating
to the zovernment of German South West Africa. The relative clauses of
the or&ance made provision for a Gemeinderatelected by the Gman
inhabitants of the tom.
Theinterestsof thenon-Whitepopulationwhichhad settled in locations
in the immediate vicinity of the White townships, were represented
by Native Commissioners appointed by the Governor. or in certain
instances, by the Gemeinderatwith the approval of the Governor. The
locations were occupied exclusively by non-Whites, and were under the
supervision ofEuropean officialswho were responsible for law and order.
C.General Policy Followedby Respondent
South West Africa have nevei formed a homogeneous or integratedps of
communitv. For reasons which have ako been ex~iained Res~ondent
consideredit inadvisable, andGt in the best interesis of the govémment
of the Temtorv as a whole. to treat the inhabitants as if they were an
integrated soc<ety; and thus Respondent applied a policy designed to
encourage the development of the various groups on the basis of their
own respective cultures. Reference has also been made to the fact that
the Allied and Associated Powers were, at the time of conferment of
the Mandate, aware of the trends of a similar policy applied in the
Union of South Africa, and, that in considering that South West Africa
"can be best adrninistered under the laws of the Mandatory as [an]
integral [portion] of itstemtory" 5 they contemplated, interalia, exten-
sion of such a policy to the Territory'.
13.More particularly in the sphere of government, Respondent
applied to the various Native groups. where possible, a system of indirect
rule, the nature and implications of which have also been considered
above*. Where the White inhabitants of the Territory had already
congregated in the established towns and villages and on the fms
within the Police Zone, Respondent accepted this position as it found
it, andallowed the White group to develop culturaliy and economically
in this area. Respondent also dlowed the non-Whites in this area to
remain and to pursue the economic advantages which they had corne
to seek.
. 14. Because of the largely unorganized and haphazard manner in
which the non-White settlements.had occurred on the outskirts O!the
White towns, a primary concern of the Mandatory Govemment, arising
from this phase ofdevelopment, was to seetoitthat the White municipal
authorities and the employers of non-White labour in the towns played
their part in providing these peri-urban communities with ,proper
housing and attendant municipal facilities such as roads, water, lighting,
sanitation, etc.,-things which the Natives concemed could hardly have
Vide Dia dcufsche Ko!ain!t<rctzgebung,Sammlung der au1 die deutxhen
Schutzgebiete bezüglichen Gesetze. Verordnungen. Erlasse und internationalen
Vereinbarungen mit Anmerkungen und Saehregister, Dreirehnter Band (Jahrgang
'909Article22161of the Covenant.
Vide ~ook'lv, Chap. IV,p&L. 36-38. of this Counter-Mernorial.
' Zbid.. Chap. V. para. 7. COUNTER-MEMORIAL OF SOUTH AFRICA 171
acquired if left to fend for themselves. As the ultimate responsibilit
rested with Respondent as Mandatory to protect and promote the weJ
being of the inhabitants of the Territory, it retained sole control of the
determination of policy and the final Say in its administration, and also
established machmery to keep itself fdy informed on aU aspects of
development.
15. It was only after the gaining of a basic degree of knowledge and
experience of the organization and machinery of nrban and peri-wban
society, as known to the European inhabitants, that the indigenous
people could be introduced to some constructive role in the municipal
government thereof. In treating of this problem Respondent wiU en-
deavour to show how the intermediate stage was sought to be bndged
by a system of Advisory Boards, which were intended, inler &a. as a
training ground for wider responsibilities.
D. LocalGovernent of the White Inhabitants
. .
1. GENERAI.
16. Under the Gemian occupation of South West Africa the Euro-
pean inhabitahts of the Temtory established towns and villages within
the Police Zone, but not beyond it. Since Respondent took over the
Mandate this hasremained the position, and allthe White communities
which maintain any form of local government exist only within the
Police Zone.
17. Two forms of local government have been devised and are recog-
nized bv Respondent for,the management of such toms and villages.
viz.. mÜniupil councils and villagemanagement boards.
II. MUNICIPA COLUNCILS
18. Municipal councils govern the larger White urban areas, which
are known as municipalities. The councils act under the ravisions of
the Municipal Oldinance. rgh (Ordinance No. 13 of 19& (S.W.A.)J.
which superseded Ordinance No. 3 of 1949 (S.W.A.). Such connci s
consist of at least seven councillors elected by the White inhabitants of
the munici ality who conform to prescnbed residential and fixed pro-
perty qualiications '.The counciilon in turn elect amayor and a deputy
mayor from among their number 2
19. Apart from its rights and duties in respect of the non-White
inhabitants of its area, which will be dealt with in detail hereafter. the
most important rights and duties of a municipal council are to provide
and maintain streets. roads and public places in its area3, to provide
and supply water 4 and electncity 5 for domestic and other use; t0
establish and maintain cemeteries '; to eçtablish and conduct markets ';
' Ord.Ne. r3 of 1963 (S.W.A.).sec.29. in OtfinG<ucflsEltrmdinary of Smrlh
W~st 2fvIEa. No. 2489 (29 3uneig63). pp. 847-848.
Ibid.. se147 (2)(a) (ii). 872.
Ibid.. sec. 177. pp. 899-900.
' Ibid.ES.e234, pp. 923924.ro.
Ibid.. sec. 2.9. pp. gir-9x2.
' Ibid.. sec. 226. p. 914.
;172 SOUTH WEST AFRICA
to establish and cavy out housing schemes '; and generally to perform
auxiliary and incidental functions with the approval of the Administra-
tor 2. -
A council may make regulations on the above matters falling within
its powers and duties', but again subject to the approval of the Ad-
ministrator. Proposed regulations must be advertised and any person.
whether he be a voter or not, who considers that his or the general
public's interests will be adversely affected by the proposed regulation,
is given an opportunity to make representations pnor to final decision
by the Administrator '.
20. Generaily speaking, as will have been observed, municipal coun-
cils are subject to the overriding control of the Administrator. and prac-
tically al1 their powers are exercised subject to his approval. The Ad-
ministrator may even frame "mode1 regulations" which he may impose
on a municipality either in whole or in part 5.He controls the a point-
ment and conditions of service of certain senior municipal O fKcials6,
and al1rates and taxes levied by the municipal counci17, as weil as the
council's annual estimates of income and expenditure, are subject to his
approval The same applies to the purchase, exchange or hire of any
immovable property by the Council 9.
III. VILLAGM EANAGEMEN BTOARDS
21. Village management boards are controiled by the Village Manage-
ment Boards Ordinance, 1963(Ordinance No. 14 of rg63),whch super-
seded Ordinance No. 16of 1937.
Any area situated outside a municipal area may be proclaimed a
villagemanagement board area by the Administrator in his discretion 'O.
and he may then appoint a villagemanagement board for that area ".
The board consists of the magistrate of the district, ex oficio, "or any
other person whom the Administrator at his pleasure may appoint' ,
who sball be chairman and treasurer, "and, in the discretion of the
Administrator, not less than two and not more than four other members
appointed by the Administrator" 12.
22. The nghts and duties of a villagemanagement board are. generally
speaking, similar to those of a municipality, viz., to provide and maintain
streets and public places in its area, provide and supply water and
electricity for the inhabitants of its area, and generally to provide for
'Oyd. No. 13 of r963 (S.W.A.), sec. 233. in Ofiial Garcltc Exlroordinary O/
South Wcd Africo, No. 2489 (29 June 1963). pp. 921-923.
Ibid.sec. 241 (6).p.929.
Ibid., sec242,pp. 930-940.
'Ibid.. secs244.and 9274.pp. 941. 946.
Ibid.. sec.148 (1). p. 874.
Ibid., sec.166.pp. 887-889.
Ibid.. sec.159,pp. 880-881.
Ibid.. sec.174 (2).p.896.
" Ovd. No. rq of ,963 (S.W.A.). sec.3. in Oflicial Gorrllc Erfrnardinoof Swlh
Wcsi Afrim. No. 2490 (29 ]une 1963). pp. 958-959.
" Ibid., sec8, pp. 959-960.
'=Ibid., sec.8 (1)p. 959. COUNTER-XEMORIAL OF SOUTH AFRICA I73
"the maintenance of good nile and government and the health, con-
venience. comfort, protection and safety of the inhabitants" '.
The village management boards in exercising their powers are sub-
jected even more strictly to the control of the Administrator than the
municipalities. Not only are the boards themselves appointed by the
Administrator, but the appointment of any employees of a board re-
ceiving a salary of more than Kqo (Lzo) per month must be approved
by him 2,and he may discharge any employee without being moved
thereto in the first instance by the Board 3.In other respects the situa-
tion regarding appr~>\~aolr control are 1,irgelythe 3nme ;Ïs for niuniciptl
counci1s-e.g.. regarding tilt? purchase. ;tcquisitioii or hiring of hx?d
r>rouertvby the Uo:rr(l '.ihe estimntL.jof annual expenditure '.and tlie
haking-of iegulations 6.
23. Thus, in both forms of local government, the Administrator.
who is Respondent's representative in the Temtory, exercises a very
real control over the actions of every local authority. and can to a very
large extent influence the policy of such authority should he consider
it desirable or advisable to do so.
E. Centraiized Control of Native Policy
24. Since the establishment of the Union of South Africa in May
1910. the control and administration of Native Affairs throughout South
Africa vested in the Governor-General-in-Council. The proviiicial
councils had no authority in matters of policy affecting Native Affairs,
and local authorities, such as municipal councils and villagemanagement
boards, similarly possessed no right to,initiate Native policy. Local
authorities do, however, assist in the application of policy in that regard,
but this is due to the demands of expediency and not to any legislative
enactment '.
25. In seeking to carry out its Mandate in South West Africa Res-
pondent adopted the same approach in this regard, and looked upon
the administration and control of Native Affairs asbeing its, own re-
sponsibility to the exclusion of local authorities in the Territory-at
any rateas far as the formulation of policy was concerned. It discharged
such responsibility through the Administrator of the Territory. and.
since I Apnl 1955,through Respondent's own Minister of Native Affairs,
now designated Minister of Bantu Administration and Development
26. In 1956 the then Minister of Native Affairs in the South African
Government (now the Prime Minister) expressed this policy in his
address ta the Fifth Annual Congressof the Institute of Administrators
of Non-European Affairs, in the following words:
1 Ord. No. 14of,963 (S.W.A. ).c.r3 (r)(x).inOficiolGazaiteExlraordinnry
of South WestAfrica, No. 2490(z9Junei963). p.966.
Ibid.. sec. r(2)p.961.
Ibid., secro (4)p. 961.
' Ibid.. secii (r)p. 961
Ibid., sec. 23 (3.p.972-973.
' Davis. G., Melunsky,L.nand du Randt.6F.B.. Urbnn Nalive Law (1959)p.n.
Vide Act No. 56 of1954.sec. 2,inSlnluks of theUnia O/ South Africa 1954,
P. 559.I74 SOUTH WEST AFRICA
"The true position is that there is only one source of policy in con-
nection witli Native Aflairs in the country, and that is the state
itself. Al1 the townsare solelycoizcernedwilh executiveactivities. The
task of the Urban Authorities isto carry thepolicy O/ the country into
effect,not to creatï basic policy/or themselvesor for the country. Il is
a very clear basis, laid down in our legislation/rom the outsd, lhat
itwould only createcortjusionand disorderin the country if Native
Agairs becamesubject to a diuersity of policies ... The founders of
our State realized this very well and that is why ever since those
days it hiis heen laid down very clearly ... that the source of policy
in connection with Native Affairsin al1spheres, is the State, that is
to Say. the Government of the Union 1."
F. Policy of Separate Development
27. The generai policy which Respondent has sought to apply in
South West Africa ever since it acquired the Mandate over the Territory,
with adaptations from time to time in the light of changing circum-
stances, is one in which it seeks to encourage the various population
mou~s to develo~ culturaiiv and otherwise in seDarate areas-in ac-
cordance witli thé preferenFes shown by the groups themselves in this
regard. Respondent realizes, however, that it is neither possible nor
desirable to-prevent al1 forms of contact between the various moum.
but that. on ihe contrary, a large measurc of economic inter-depeideice
is ine\ritable, and that CO-operationbetween the groups, inln aifa. in this
sphere, is highlv desirable.
- 28. It wii bérecalled that in his statement of the broad lines of such
a policy, as set out eariier in this Counter-Memonal'* the late Generai
(later Field-Marshal) J. C. Smuts mentioned certain qualifications, inln
alia, inthese words:
"Instead of mixing black and white in the old haphazard way, ...
we are now trying to lay down a policy of keeping them apart as
much aspossiblein our institutions.... The natives will. of course,6e
free to go and towork in the white areas, but as far as possible the
administration of white and black areas will be separated .. .3"
(Italics added.)
29. The address by Respondent's hlinister of Native Affairs (now
the Prime Minister) on 17 September 1956'contained, inter alia, the
foilowing passage regarding the basic policy and its qualifications, seen
in the light of developments up to that stage:
"The auintessence of the matter is that while the Euronean
enjoys all'hisrights and privileges in one part of th~country.~nahely
in what wecal1White South Africa. the Sative has sirnilar riphts and
~rivileaes. but can in tum onlv exercise them within th< Native
;aieas,-i.e; in the ~eserves-whether tribal temtory or areas sub-
' Local Aulhoriliesand the Slafe:Opening Speech delivered hy the Hon. Dr.
H. F. Verwoerd, Minister of Native Affairs, at the Fifth Annual Congress of the
Administrators of Non-European Affàirs in Southern Africa on1.Se-iternber1.-6
(1959). P. 7.
2 Smuts, J. C.. TowardaIBclterWorld (1944). ppo12-13,Mernorial.
' Vidapara. 26.supra. COUNTER-MEMORIAL OF SOUTH AFRICA I75
sequently purchased. . .. In these territmies the Euro ean has no
daim iu property and certain civilrights. Therehe is t e lemporary
inhabitant who helps wilh the developmentof those areas, but they
b&g to theNatives.Therightsof theNatives are boundup withthis
tact... Just theopposileis thecasein theEuropeanareas.Thereis
thehomeoftheEuropean's rights antd here theNativeis thetemporary
resident andtheguest,forwhaleverpurposehemaybethere '."
30. In its report delivered in 1922.the Transvaal Local Government
Commission-also known as the StaUard Commission-urged ,the
central govemment of the Union to control more effectively.the adminis-
tration of Native Affairs in the urban areas. and at the same time to
impose a statutory duty on municipal bo&es to provide adequate
housine accommodation for al1 Natives within these areas Z, including
rest houses and reception houses to accommodate Natives entering such
areas for the purpose of seeking employment therein ). It also urged
the central government to place adequate tracts of land at the disposa1
of the municipalities to carry out the housing schemes envisaged ', and
to establish within such Native villaees Native advisorv boards on which
which they could rxpress their \\,islicsanclcar\, out suçh diitiasimightli
be imposëd upon th& by law.
31. These recommendations of the Staiiard Commission were given
effect to by the adoption of the Natives (Urban Areas) Act, 1923 (Act
No. 21 of 1923) which Act, with certain modifications, was applied
-subsequently Wesuperseded by Proclamation No. 56 of 1951W A) (&.W.*.) '
The 1924proclamation was an important initial step in the application
of Respondent's aforementioned policy, and in promoting the well-
being of the urban and peri-urban Native communities in question.
Further developments in these respects, are dealt with in succeeding
portions of this Chapter.
G. Population Increasein UrbanAreas
32.When Respondent assumed the Mandate, the Territory had a
White population of approximately 19,ooo.and a non-White population
of approximately zoo,ooo9 comprising various ethnic and linguistic
groups. Of the latter it is difficult to say with any degree of certainty
how many resided within the Police Zone and how many outside; and
of those within the Police Zone, how many resided in the Reserves
within the Zone and how many in the towns and on the farms.
Local Aulhwiticr and the Stotc (1959). p. 8.
' T.P. 1-1922. para. 270. p. 48.
' Ibid.. paras. 276-277. p. 49.
' Ibid., Appendix VII, parro.p. 96.
' Ibid.. para. 295. p. 52.
' Pvoc. No. 34 of,924(S.W.A.),inTheUnLawsO/of South West Atrica1924,pp..
178-190.
Pvoc.No. 56 of ,951 (S.W.A.).inThe Lows of South WestAfvico 1951Vol.
XXX. pp. gc-171.
Vidc Book III. Chap. II. of this Counter-Mernorid. COUNTER-MEMORIAL OF SOUTH AFRfCA '77
The urban authority is, furthermore, authorized to provide buildings
or huts, known as "Native hostels", within a location or Native village,
for the accommodation of Natives not living under conditions of family
life 1,and to provide other buildings or huts for the accommodation of
Native families Z.
II. FINANCIAA LSSISTANC EY THE ADMINISTI<ATION
35. TOenable local authorities to provide the necessary housing for
the Native people in their areas, loan funds have been provided by
the South West Africa Administration '.Such loans are granted at the
rateof I per cent. interest fierannum and are repayable over a period
of 30 years.
36. During 1957 the Admiriistration granted such a loan to the
Municipality of Windhoek for an amount of Kr.goo,ooo (&750,000),
increased to R1.800,ooo Kqoo,ooo) during 1960. to be uscvl for the
establishment of a new Hative township called Katutura. The scheme
includes provision for some 2,000 houses, hostels for single men. schools,
creches, health clinics, churches, and business premises. The houses
are pxovided with modern facilities, including electricity, water supply
and a sewerage system.
In addition to the above-mentioned scheme a new Ovambo hostel has
been erected at Katutura for the housing of some 6,000 Ovambos
employed in Windhoek on short-term contracts. This hostel. which cost
approximately R300,ooo (Lrgo,ooo),was hnanced from the accumulated
surplus funds of a pre-existing Ovambo compound. which funds were
contributed by the employers of the Ovambos. and were suhsequently
transferred to the Native Revenue Account of the Municipality.
37. During the period 1952 to 1960 the following further loans,were
made, on the terms set out above. to the local authorities meptioned
below for the carrying out of .similar housing schemes for Native. or
for the provision of additional amenities for existing housing schemes,
viz.:
Walvis Bay '. . RI,' 5.854 K597.927)
Keetmanshoo~. .... 224,600 (142,400)
Outjo. ........ 86,400
Grootfontein ..... 171,044
Karasburg ...... IZ,OOO
Okahandja ...... 92.174
Swakopmund ..... 230,670
Usakos.. ...... 114,528
Tsumeb ........ 78.000
Karibib ........ 50.000
Pro6 No. 56 ofig5r IS.W.A.),sec2 (1)(c),in Tha Lowr of SouthWusr Atrica
1951.Val. XXX. p. 94.
a lbid.. sez.(1)(d). p.94.
' Ioid.. sec. (r)(b).p. Irq.
' As has been mentioned. Walvis Bay,dthough part of the Republic of South
Africa. is for administrative purposes treated were aportion of the Territory
of SouthWest Africa. The housing here referrto was in anyeventprovided for
Bay.ves derived largely from the Territory and employed temporarily at Walvis SOUTH WEST AFRICA
Otjiwarongo.. .... Rj4.800 &z7,400)
Welwitschia ...... 8.000
Lüdentz .......
hfaltahohe ...... 800
Mariental ....... 4.000 (2,000)
38. A further amount of R4gz.622 &246.311)was spent on Native
housing during that period b the following seven municipalities viz.,
Windhoek (R275.6424137. d21), Walvis Bay (R138.926469.463).
Karasburg (~~,ooo-~zo,~oo), Okahandja (R24,128-~12,064), Swak-
opmund (R6.764-L3.382). Usakos (Rq.03o-Lz,org), Otjiwarongo.
(Rz.132-l1.066).
39. During the period mentioned above, therefore. an amount of
R4.683,692 &2,341,846)has been spent on Native housing by local
authorities in the Temtory. Funds continue to be made available for
this purpose and in 1961-1962 an amount of R1,zg7,joo (£648,750)
was advanced to local authonties.
In the case of six urban non-White residential areas where the local
authonties concerned were not in a financial position to meet the cost
of providing water and sanitation, the Administration has itself, in
tetms of section 2 (1) of Ordinance No. 13 of 1944 (S.W.A.) ',spent a
further R13,451 K6,725)from its Territorial Development and Reserve
Fund to rovide theçe facilities. viz., R2.374 &1,187) at Starnpriet:
R1.650 &25) at Maltahohe; R~.ooo &goo) at Karasburg; Rz.656
(£1.328) at Bethanie; R2.250 K1.125) at Aus; and R3.520 (l1.760) at
Otavi.
III. CONTRIBUTIO BNEMPLOYERS
40. The Native Housing Levy Ordinance, 1961 (Ordinance No. 33
of 1961 (S.W.A.)) 2,was designed to provide for contributions by em-
~lovers towards the cost involved in the orovision of housine for"their
Native employeesliving in the urban 1ocat)ons.
In tems of this ordinance the Administrator may declare anv area
to be a declared housine area 3.that is. an area in *ch everv Derson
who ernploys one or m& adult male Natives sliall pas a coniribution
to the urban localauthority concerned for the benefitof .iNati\.e housing
levv fund '. The contribution iscalculatzd accordinr -o the number of
weéksduring whicha Native isemployed 4.
It is not payable where a private householder provides a domestic
servant with approved accommodation 5, nor where an employer other-
wise provides approved accommodation free of charge 6.
The contribution may not be deducted from the employee's wages,
nor may his services be terminated on account of the contribution
having to be paid '.
-
Ord. No. ij of1944 (S.W.A.).sec.2 (1)inTh Lows ofSouü West Africo 1944,
Vol. XXIII, p. 806.
Ord. No. 33 of196, (S.W.A.) ,nThe Lam of South West Affica1961,Vol.XL.
pp. Ibid..QeC.2.p. 1310.
'Ibid., sec. (1)p. 1310.
'Ibid.. sec3 (2)(a).p. 1312.
Ibid..5s. 3 (2)(b). p.1312.
'Ibid.. secq,p. 1312. COUNTER-MEMORIAL OF SOUTH AFRICA I79
41. Apart from the cost of administering the ordinance, the Native
housing levy fnnd may on1 beuçed to defray approved expenditure
incurred by the urban loca authority in providing housing in Native
residential areas under its control. or to make a contribution to the
~ative revenue account of an urban location for the purpose of rcducing
interest and rcdemptioii charges paynhle from sucti account in respect
of loans takeiUDA.to vrovide housing in a Sativc residential nr'.
42. The Native housing levy fun2 has made it possible for a Native
to lease ahouse for such a nominal rental as Rz.50 KI 5s.) per month
-an amount which hardly covers the cost of the semices connected with
such a house.
IV. LAYOUT OF NATIVERESIDENTIAA LREAS
43. The Native urban residential areas have been developed on
modern town planning pnnciples in accordance with which every faci-
lity available in White townships, e.g., social welfare and sports centres.
hospitals,cinemas and playgrounds for children, have been rovided.
In addition to the hospitals estabiished for non-Whitcs in t e urban
areas bythe South West Afncan Administration, urban local authorities
also establish ciinics in the non-White residential areas, where the local
authorities'medical officers of health are in regular attendance. The
clinics remain open during the day when the district nurses attend to
minor ailments and to pre-natal and pst-natal treatment of women,
and arrange for the admission of patients to hospital. The above-men-
tioned services are rendered free of charge as a social service.
44. Because of the preference shown by the various Native groups
to live apart from other groups =,Respondent has sought to give effect
to such preference and to provide, as far as is practicable, separate
residential areas and other facilitiesfor the various rrrou~slivins in urban
area. Relerence to tliis policy was made in ~es~oÏ~de~t'sannüal report
to the I.eague of Nations irqz7. in whichitwas stated:
The different tnbes iin urban areas] do not live under tribal
conditions. although cohesion amongst members is still evident
socially. In the allocation of sites in the Municipal Locations at
Usakos and Karibib this factor is observed as far as is practi'."le
45. This tendency was again referred to in the annual report sub
mitted by Respondent to the League of Nations in 1939. in whtch,
refemng to non-White farm employees, the following remarks appear:
"In the matter of living they tend to group themselves accordjng
to the tribe to which they belong, if members of more than one tribe
are employed. This is accounted for by the factthateach tribe has
its prejudices. For instance, the Hereros as a mle look down on the
Damaras or Klip Kars whom they regard as their inferiors. This has
corne about as a result of the subservient position held by the latter
tribe when regular tribal life was in existence. On some farms only
members of one tnbe will be found. In these cases the owners of
' Old.No. 33 ofi96r(S.W.A.).sec. 6in The LnwrofSouth WestAfrica1961.
Vol.XL. pp. rjr2-13r4.
Videpara.9.supla.
' U.G.31-1928.para. 47.p.35.180 SOUTH WEST AFRICA
the farms have a preference for members of a particular tribe as
servants. Where Ovambos and Okavangos are employed as weUas
Police Zone natives they will also group themselves separately from
the others '."
46. Prior to the proclamation in 1925 of the first location at Wind-
hoek, members of various groups were. of their own free will, living
scattered in ethnic groupings of their own on the outskirts of Windhoek.
With the proclamation of the said location the non-European advisory
board. consisting of representatives of each of the ethnic groups con-
cerned. requested that the location be planned according to the separate
requirements ofthe various groups.
The various groups prefer to have their own separate schools, clubs.
churches, sportsgronnds and other amenities, and intermarriage be-
tween the different etlinic groups is a very rare occurrence. During 1960
the Ovambos residing in the new township of Katutura near Windhoek
requested the executive committee of the Territory to be provided with
a se~arate school for their children in that township. When this resuest
was'acccdcd IO. represent:itives ol the urhiii Ovnmi>ocoinriiuiiity clillzd
at the ofice of rlic Chicf I(:intu AH:iirs Coiiiinisaioner to cuprcsi tlieir
a~~rccintiori,aiitl \ilien the S~III>\YI<sOPCIIC~1c.îdcrsfroiii O\.:inibolnnd
aiçopublicly expressed theirgratitude. .
47. In the light therefore of these clear preferences of the groups
themselves. and of the state of affairs pertaining when the Mandate
was assumed, it was natural for Respondent to act in accordance with
this tendency in the provision of proper housing and municipal facilities
for the various non-Whitegroups. In Respondent's own view it appeared
to be in the general interest ofthe population that this tendency should
he respected and given effect to. Furthermore the provision of separate
residential areas and other facilities for the different groups, served to
facilitate the administration of urban communities. Not only did it
afford a familiar community life to those non-Whites who came into
the generally unfamiliar White urban areas, but it also made it easier
for Respondent to provide adequate educational facilities where the
young children could be educated in their own tongue by teachers of
their own group. So too, a homogeneous community. with its own
artisans, tradesmen and government servants, could be encouraged to
develop in a particular area.
48. In terms of section 31 of Proclamation No. 56 of 1951 (S.W.A.)
an urban local authority "may let sites within the location or native
village for trading or business purposes" 2, hul-buch,s&es can only he
let to Natives, and no person who is not a Native mày be employed
on any site so let '. Business and trading rights in the locations and
Native villages are therefore reserved exclusively for Natives. Refer-
ence has elsewhere been made to the Native businesses which have in
'Proc. No.956of ,951.(S.W..4.)sec. jr(O).in The Lam of South West Africa
I95r. Vol. XXX, p. 152.
'Ibid. sec. 3r(c) (i). p. 154 COUNTER-MEMORIAL OF SOUTH AFRICA 181
the result in fact become established in such urban areas in the Terri-
tory '.
1. Management and Control of Locations and Native Villages
49. The regulation, control and management of urban locations vest
in the fmt place in the urban localauthorities in whosearea ofjurisdiction
they fa112, but, as will be shown. this control is exercised subject to
oveniding supervision on Respondent's own part, because of its ultimate
responsibility for the well-being and development of the Natives con-
cerned.
Section 32 (2) of Proclamation No. 56 of 1951 (S.W.A.) provides
that an urban local authority may make regulations as to various mat-
ters pertaining to locations, Native villages and Native hostels, e.g., the
terms and conditions of residence in them; their management, control,
and the maintenance of good order, health and sanitation in them;
the employment of oficers and other persons for purposes of manage-
ment and control; the mode of election or selection of members of
Native Advisory Boards, the procedure of such Boards. the period and
conditions of office, and the definition of the duties and fnnctions of
the members tliereof '.
50. Section 20 (1)of the said Proclamation (replacing a similar section
g (1) of Proclamation No. 34of 1924 (S.W.A.)) makes it imperative
for a Native advisory board to be established for every location and
Native village under the contml of an urban local authority. Such a
board consists of not less than three Native residents of the area con-
cerned, in addition to a chairman who may be a White person '. In
practice every urban local authonty seems to have appointed the
principal administrative officer of the particular location or his deputy
as chairman of such a board.
51. The section then goes on to outline the functions of a Native
advisory board, and provides tbat such a board shall consider and report
on-
(a) "any regulations which the urban local authority proposes to
make or adout. .." and which affect Natives in the locations.
Ih) "anv matte; referred to it bv the Administrator or the urban
,-, IO& authorityi', and ~, ~ ~
(6) "any matter specially affecting the interests of natives in the
urban area npon which the board may consider it useful or
desirable to report, ...'"
Such report of the board must be submitted either to the urban !ocal
authority or to the Administrator as the circumstances may require5.
A Native advisory board may also recommend to the urban local
authority the making or adoption of regulations which it considers
Vide Book V.sec.D. ofthis Counter-Mcmorial.
Vol.XXX, pp..56 iiq-116.(S.W.A.),sec. iq. iThe Lnws of South Wesl Atricn r95r.
' Ibid.. sec. ~(2)pp. 156-162.
' Ibid..sec.20 (1)p. 126.
' Ibid.sec. 20 (2)(O),p. 126.182 SOUTH WEST AFRICA
necessary or desirable in the interests of the Natives in the urban areas'.
52. Every local authority which administers or controls any location,
Native village, or Native hostel is required to keep a separate account,
to be known as a Native revenue accouut, from which appropriations
are made fromtime to time for the rendering of services to such Native
residential areas, or for expenditure for the benefit or the welfare of the
residents of such areas 2 Such appropriation is made by the urban local
authority concemed, and is subject to the written approval of the
Administrator before it can be eiven effect to '. The oroclamation.
however. requires the urban local authority to refer the &aft estimates
for such appropriation toits Native advisory board for consideration and
report thêrêon-beforp eassing the estimatecitself 3.
W. The urban local authorities in the Territorv. exercisina their
prëÏogative in terms of section 32 (2) of the pro&unation to make
remlations concerning the mode of election or selection of members
of-the Native advisoÏy boards, have, in most cases, made regulations
providing for members to be elected and selected for appointment in
equal numbers. The regulations for the Windhoek urban location '.as
weiJas those for Walvis Bay 5,provide for not more than three members
to be appointed by the Municipal Counul and for the other members
to consist of one elected representative for each of the wards into which
the location shaii be divided for this puyse. The regulations provide
for the elected members to be nominate in writing by the registered
occupiers, and where the number of such nominations exceeds the num-
ber ofvacancies, a proper poilis to be held at which the registered occu-
piers, record their votes in secret, and the candidates receiving the highest
number of votes are declared to be duly elected to the board. The
regulations of a few of the authorities provide only for appointed mem-
bers, but these are selected from the ranks of the recognized headmen
who are chosen by the people 6.
J. The Objects and Future of the Native Advisory Boards
54. The Native advisory boards were intended not only as media
of contact between the urban local authorities and the inhabitants of
the non-White residential areas, but also as a means of assisting the
Natives concerned to adjust themselves to the needs of a new social
and economic order. The system had inherent in itself obvious advan-
tages as a training ground for wider responsibilities. and, in fact, one
of its avowed aims was to teach the non-White inhabitants the spirit
and technique of local govemment in a democracy.
55. ~nfo>tunatel~ the advisos. boards failed to measure up to the
expectations entertained for them. Various reasons have been advanced
' Proc.No. 56of 1951(S.W.A. o)..dl.sec.20 (2)(b).p.126.
Ibid..sec. 1(1)and (2).p. i18.
Ibid. sec.17(4) ..zzo.
' lssued under G.N. No. 16of ,962(S.W.A.) i, Oficinl Gorrlle Exlvaordinary
O/ Soulh Werl AfricaNo. 2369 (1Feb. 1962)p.p. 54.103.
Issued under G.N. No. 243oftg60(S.W.A.) i, Oficinl Gazelle Exbmdinnry
of Soulh Werl Africn.No. 2287(14Dec. 1960)p .p.1179-1227.
Vide. e.g.G.N. No. 25 of1949(S.W.A.) VL Karasburg, inOficial Gaa~lfs of
South Wcsl Afvicn,No. 1406 (1 Feb. 1949)p.p 2008-~0x3. COUNTER-MEMORIAL OF SOUTH AFRICA 183
for this failure. In his address to the Congres oftheInstituteof Adrnin-
istrators of Non-European Affairs, referred to above ', Respondent's
Minister of Native Affairs (now the Prime Minister) expressed the fol-
lowing views:
".. . 1do not consider the system of Native Advisory Boards a suc-
cesful system. Any advisory body whichbears no respsibility.
mcessarily beconus a body whhichcoma foward with a 1 ksnds of
demandsand requestsand ezpectations. In fact, the greater the de-
mands advanced bv such bodies. the meater chance the members
have of being re-el&tedj. . . For ttiis re&on 1am not in favour of the
continuance of the advisory council system. I believclhaleventually
the .Valive inhahilants should haie a certain measure 01 ioinl res-
ponsibility i>~the regulalion O/ the auairs O/ lheir oti?~hsiilenlial
area by means of *epresenlatiies.thal ihey oughl 10 receivea cnlain
adminislrali~eresbonsibililv.(Italics ndded.) In other coiitexts ithas
been e~~erienced'tbat when the energiesof %Native are enlisted to
exercise a certain measure of control over hs own people. then a
greater sense of responsibility is displayed and a much,better dis-
position develops, so that the work of administrative officiaisis made
much easier. Therefore.I believethai me must euentuallyarrive at a
systemof urban Bantu authorities ...=" (Italics added.)
56. The first step towards the attainment of this end in South Africa
itself was in the Promotion of Bantu Self-Government Act. 1959.(Act
No. 46 of 1959). The Act enurnerates the various broad general national
or ethnic units which comprise the Bantu population of South Africa ',
and goes on to provide that the territorial authority-i.e., the body
having jurisdiction or responsibiiity in the traditional homelands of such
national or ethnic units-shali. in consultation with the Minister of
Bantu Administration and Development, and with the approval of the
Governor-General. nominate a Bantu person to represent that.authonty
in the areas of one or more White urban local authorities with regard
to the Bantu community in such area belonging to the national unit
concerned '.
The Act further provides that this representative must represent the
territorial authoritv in such urban area. look after the interests of the
members of the national unit concerned in such area. and advise the
territorial authority he represents on matters concerning the general
interests of the national unit in that particular area I.
57. This Act was followed up by the Urbsn Bantu Councils Act,
1961 (Act No. 79 of 1 61, as amended by sections 26-29of Act No. 76 of
10611.which urovidej (aeain in South Africa itself1for the substitution
of Urban Bantu Counciis for theformer-Native adcisory boards Such
Councils consist of not less than six members, of whom half are elected
by the residents of the area concerned and the other half selected, after
Videpara. 26, supra.
' ActalNo. 46 of ,959.sec.S2o(1).in Stntutcof.thc Unia of Soulh Alrico1959,
Part I (Nos. 1-60), p5r4.
' Act No. 46of 1959. @.cit.sec.4,p. 518.
' Ibid.,sec.5. p. 518.
Act No. 79 of 1961. ses. zand g.in Sfatutcsof the RepublicofSouth Africo
1961(Nos. 42.8,).pp. 1266-1268. 1276.1278: and Act No. 76 of 1963.sec. 26.184 SOUTH WEST AFRICA
their candidature has been a proved by the Minister of Bantu Adminis-
tration and Development an $ 'y the urban local authority. from amongst
the representatives of the recognized Bantu chiefs '.In this way official
recognition is given in the urban areas to the traditional forms of Bantu
government. Although the Council itself cannot be described as a tra-
ditional organ of government, nevertheless it derives additional efficacy
by recognizing the authority of the traditional institutions of Bantu
govemment, in combination with an equal elective element constituted
on democratic principles.
In addition ta taking over the powers and duties of the Native ad-
visory board, the Council wili also exercise such powers and perform
such duties of an urban local authority in connection with the Bantu,
as the urban local authority may assign to it, with the concurrence
of, and subject to such conditions as may be determined by, the Minister
of Bantu Administration and Development. The matters in respect
of which such powers and duties may be assigned ta the Council are.
inte arlia:
(a) the layout of the area:
(b) the accommodation of Bantu not living under conditions of
family life;
(c) the management and control of the area and the maintenance
of cood order therein:
(d) th; prohibition, regulation or restriction of the keeping of
animals and the grazing on any commonage of stock belonging
to Dersonslivinc Tntheirea: - - ..
(e) thé provision of sanitary. health and medical services; and
(1) the moral and socialwelfare of penons living in the area '.
The Council is also enjoined to considei and reportio the Chief Bantu
Affairs Commissioner or any other Bantu Affairs Commissioner on any
matter referred to it by such Commissioner or on which it deems it
desirable to report 1.
58. The Act also makes provision for the establishment of a com-
munity guard. for the maintenance of law and order and for the pre-
vention of crime within the area'. This community guard is subject
to the control and management of the Council. The Minister is further-
more empowered to confer on a Bantu designated by the Council, and
who is a member of such Council or the recognized representative of a
chief, the same civil and criminal jurisdiction to try cases as may be
conferred on a Bantu chief, i.e.. jurisdiction to try civil clairns arising
out of Native law and custom brought by a Native against a Native
(other than matrimonial matters),and jurisdiction to try lesser criminal
offenceswhether under the common lawor under Native lawand customs.
Provision is alço made for the assignment of further functions to a
Councilby the Minister, and for auxiliary and incidental powers '.
59. As yet the above provisions have not been extended to South
'Act No. 79 of i96r, sec. 3.in Slatulesaftiu Republic ofSouth Africa 1961
(Nos.42-81)p.p.1268.1270a;nd Act No.76of 1963. sec.27.
Ibid.. sec. (2)(a),p.1270,
Ibid.. secq (2)(c),p.1272.
'Ibid.. secS.p.p12744.
Ibid..sec.4 (2)(a)and (1)p.1272.186 SOU~H WEST AFRICA
requirements. and may recover the expenditure so incurred from the
local authority '.
62. Similar wide powers are conferred on the Minister where a local
authority neglects ta perform any act which the proclamation requires
it to perform, or if it performs such act in such a manner that, in the
opinion of the Minister, effect is not given to the abjects and purposes
of the proclamation. Here, too, the Minister may require the local
authority to comply with hs requirements and, on default, remedy
the situation himself at the expense of the local authonty 2.
The Minister also has supervisory powers in respect of the establish-
ment. maintenance 3,removal, curtailment, or abolition of Native resi-
dential areas or hostels ',and he may take over a location, Native village
or Native hostel at the request of the local authority if such a course
is desirable in the public interest 5. He supervises payments out of the
Native revenue account referred to in paragraph 52 above 6,approves
and licenses officersassigned by the urban local authority ta themanage-
ment of a Native residential area ', and has the final approval also of
the termination of the serviceç of such officersor the reduction of th&
emoluments
63. To keep the Minister advised of the position in aUurban areas,
the prodamation provides for the appointment by him of officersknown
asUrbanAreasCommissionersor Inspectors 9.SuchInspectorsarerequired
to keep a watch on the weli-heing and welfare of the Natives concerned
and are for this purpose giveripowers of accessto the books and accounts
of the urban local authorities 9. Every Native Commissioner,is deemed
to have been appointed such an officerfor the area of his junsdiction 9.
When uecessary, such officen report in writing to the Minister.
In,many of the wban areas the Native Commissioner attends the
meetings of the Native advisory board. and reports to the Chief Bantu
Affairs Commissioner on the proceedings whenever he considers this
to be necessary. Copies of the minutes of the meetings of the board
are, in any case, submitted to the office of the Chief Bantu Affairs
Commissioner for suutiny and, if necessary. a report thereon to the
Minister '0.
L.LocalGovernent Outsidethe Police Zone
64. Ashas already been stated. there are no sertled White communities
outside the Police ï~ne. There are also no established non-\\'hite towns
or villages. in the sense understood in modem civilizations. Every krul
1 Pvoc. No. 34 of 1924 (S.W.A.).sec. 3,p. 179. and Proc. No. 56 of 1951 (S.W.A.),
sec.4. pp. 96-98.
Ploc. No. 56 of 1951 (S.W.A.). sec. 34. p. 164.
' Ibid.. sec. 14pp. 114-116.
' Proc. No. 56 of 1951 (S.W.A.), sec. 3 (2).p. 96.
Pvoc. No. 34 of 1924 (S.W.A.), sec. 4. pp. 179-i80. and Proc. No.'.6 of 1951
(S.W.A.). sec.5. p.98.
Ptoc. No. 56 of 1951 (S.W.A.). sec. 17,pp. 118-122.
' Ibid.. sec.21,p. 128.
Ibid.,sec. 21 (1)and (2)p. 128.
Ibid.. sec.21 (3). p. 128.
'OIbid..sec. 20,p. 126. COUNTER-MEMORIAL OF SOUTH AFRICA 187
is an inde~endent entitv in itself-economicallv and otherwise-and
is contro~id accordmg to the laws and customs if the ~~anicularNative
oup concerned. e.g., by a headman, sub-headman, family head. or the
f ke. Conseauentl\, localcovernment. in the senseasused inthe 3lemorials,
is as yet non-ex&tent inthese communities.
M.To SumUp in Regard to Local Government
65. The toms and villages within the Police Zone were onginally
established as centres for White communal settlement, and were not
designed or intended to accommodate non-White inhabitants, who were
then living in their traditional tribal association.
"The non-Whites, who entered the White man's.. .urban areas,
came solely to seek employrnent, safety, health, education, ail of
which was provided freely by the white man, not knowing of and
not expecting and not even thinking of political right'."
66. These non-Whites settled in separate areas in the vicinity of
the established towns without having any participation in the covu-
na1iife of the toms or in their local govemment. This was the position
when Respondent assumed the Mandate-one which was common
enough in ail parts of central and southem Africa where White com-
munities became established.
goveming the non-White pmples indirectly, and to this end sought to
build up the impaired tribal organizations in the Police Zone, and to
strengthen those outside that Zone. It did not, however, seek to remove
those non-Whites who were living in or adjacent to the White urban
areas.since it recognized that from an ecaomic point of view-
"it [was]not possible to regard the European and native spheres of
interestas entirely separable, though they [might] for some purposes
~e-disti~"uishable 2".
Respondent realized the deçirabiiity of cwperation between the White
and non-White inhabitants of the Territory in the economic sphere.
for the mutud benefit of al1m-ups.-
67. In the settled urban areas within the Police Zone Respondent
found the non-White peoples living haphazardly on the outskifts of the
toms. and Respondent's prime concern then was to provide so?
machinery whereby the basic facilities requisite for urban and pen-
urban existence could be made available to these people. The most
obvious and practical way of attending to this need was to make the
White urban authorities responsible for carrying out Respondent's
general policy in this regard. The historicai reason, thaefore, for the
measure of local governmental power ven to the White municipal
councils and village management boa iTS.sublect to central control.
in respect O! non-White urban and,peri-urban communities, was the
inability of the indigenous popdabon, by reason of their mmplete
1 Livc and Ir1 Livc, Fact Pap91 (Apr.1961).p.II. (Addm delivereby the
Prime MLnister,Dr. H. F. Verwoerd, beforethe.South Afriea Club.London. in
r06r.i188 SOUTH WEST AFRICA
lack of knowledge and experience, to undertake such local government
themselves. Althoueh Res~ondent. therefore. did not accord the non-
\\!hite pebples the &aiichi& in tli~loclrl go\.ernmçiit of the \Wiite areas
in whch they were Lviiig. it did seek tu prornote tlieir intereits and
aenerÿl wrlfare bv itself retaininr: direct resr)onsibilitv for tlieir seDarate
deve~o~mentandprogress withinsuch urb&areaç. *
68. Thc rcpresentativc institutions of the White inhabitants of muni-
cipalitie and \*illagr:management board areas arc sublect to the strict
control of the Adriiinistrator. ivho is Ktsnondent's revrcsentative in the
Territor).. and althougli certain poufers respect of ihe general udfare
of non-White inhabitants of the urban areas are dclegated to local
authorities. Res~ondent not onlv controls the manner in which such
local authorities carry out theii duties, but also makes considerable
vision of housing and general amenitiesthoriinethe non-White residential
areas. Employers of Native labour are also compelled to contribute to
such funds for the provision of adequate housing and attendant amenities.
69. In order to encourage the non-White urban population to take
an interest in the machinery of local govemment, and to acquaint itself
with the needs of an urban community, Respondent introduced the sys-
the wishes and desires of the Native inhabitants to the local authorities
and to advise them on the needs of the Natives, and at the same time
to serve as a training ground for the Natives to gain experience of the
machinery of local government and the responsibility attaching to it.
The results of this experiment did not measure up to Respondent's
hopes, but it did serve to acquaint the non-White urban dwellers with
the concept of urban local govemment. A new system is now bang
devised whereby greater responsibility for the administration of their
own affairs will be accorded to urban Native councilç, façhioned basically
on the model ofthe Urban Bantu Councilsintroduced in South Africa by
Act 79 of 1961. These councils will seek to incorporate some of the
authority of the traditional institutions, which stiU play such an impor-
tant part in the lives of the indigenous peoples of the Temtory,and to
combine it with modern democratic elements.
The urban Native councils wiligive to the indigenous people a greater
measure of responsibility in the regulation of their own affairs in the
urban areaç, although developments in that regard will necessarily
proceed within the framework of Respondent's policy that political
rights and power are to be exercisable by the Native groups within their
own respective homelands and not within the area of the White group as
such.
N. Respondent's Reply to Applicants' AUegations (Memonais)
(a) Paragraph106
70. Respondent agrees that a structure of local govemment has been
established within the Temtory comprising the two principal types of
' 1. PP.137-139
Ibid.p. 137. COUNTER-MBMORIAL OF SOUTH AFRICA IN
govemmental units mentioned, viz., municipalities and village manage-
ment board areas. These units. however, were provided and intended
only for the local government of the White communities settled in the
towns and villages of the Police Zone. The towns and villages were
themselves established by the White population for their own communal
settlement, and were not originally intended to cater for non-White
inhabitants as well. To the indigenous inhabitants the towns and villages
were strange and unknown concepts and a fortiori the same applied to
local government thereof. Today there are stili no non-White towns or
villages outside the Police Zone, and the only non-White urban dweliers
in the Territory are those living in the Native residential areas attached
to municipalities or village management board areas. Those non-white
communities outside the Police Zone have their own traditional form of
government under chiefs,headmen, or sub-headmen.
(b) Paragraph 107 '
At the close of 1959there were 17municipalities within the Territory,
and 12 village management board areas.
(cl Paragraph 108 '
The Municipal Ordinance, 1949 (Ordinance No. 3 of rg4g), has been
repealed, and the composition and powers of municipal councifs are
now governed by the Municipal Ordinance, 1963 (Ordinance No. 13 of
1963).This ordinance also provides that a Councillor must be, intn alio,
a Enropean in order to qualify for election to the Council Z.
In order to qualify as a voter, a person must be a European who is
either:
(i) a South Afncan citizen over the age of 18 years and who has
resided in the municipal area for at least two months prior to
registered on the voters' roll, or who has owned immovableis to be
property within the municipal area of a value of at least R1,ooo
(ii) aperson over the age of 18years who was domiciled jn the
Temtory on the date of the commencement of the Ordinance
and has since retained such domicile, and who has owned
immovable pro erty within the municipal area of a value of at
least Rr,ooo (Loo). or occupied such immovable property of
a value of at least R2,ooo (L~.ooo)for a penod of at least two
months immediately pnor to the last day of August of the year
in which his name is to be registered on the voters' roll '.
whicheris the owner of immovable property within the municipal area club.
the penod mentioned in (i) and ( ~fii)above, is also entitled to be enrolled
as a voter on the voters' roll '.
' Ord. No. 13 of 1963 (S.W.A.). secI+ (1).in Oficiat GnrcllExlroordiaary of
South Wcsf Africa.No. 1489 (zgJune 1963).pp. 842-843.
' Ord. No. rj of 1963 (S.W.A.).op. cil.sec.29 (1).pp. 847-848.
' Ioid.sec. zg(2).p. 848.190 SOUTH WEST AFRICA
Tlie members of the C.ounci1elect a mayor aiid a deputy mayor ', as
well as a management committee 2.
(d) Paragraphrog
The Villagc Management Boards Ordinance, 1937 (Ordinance No. 16
of 1g37), has been repealed and superseded by the Village Management
Boards Ordiiiance, 1963 (Ordiuance No. 14 of 1963). This Ordinance
provides that-
"A Board shali consist of the magistrate of the district concemed
ex o&io or an other person whom the Administrator at his pleasure
may appoint &ho shall be Chairman and Treasurer) and, in the dis-
cretion of the Administrator, not less than two and not more than
four other members appointed by the Administrator '."
Such members are appointed triennially 5, and before rnaking any
such appointment the Administrator is obliged to consult a list of names
which may be submitted to him by a nomination meeting6 of owners
of immovable property and residents of the board area over the age of
18 years '.
At present al1 the magistrates holding office in the Temitory are
Ewopeans, for the reasons more fully set out in the section of this
Counter-Memorial deaiing with the civil service.
Respondent denies that in the selection of members of the village
management boards the Administrator "follows the consistent pattern
and the dominant phiiosophy of 'apartheid' in the sense in which
Applicants use that word in their Memorials It is true that in ail the
viliage management boards at present in existence the Administrator
has nominated only White penons to rnembership. but this is due to
the fact that such boards function primarily in respect of White wban
communities, ashas been explained above. There has. in Respondent's
view. never been any vaiid reasou why the non-White communit?es
housed in and around the European towns, should have, or share in,
municipal govemmental powers in respect of the European,towns them-
selves-townsestablished specifically by Europeans for their communal
living. the concept of which was initially completely strange to the
indigenous people, and of which they stiii in fact fonn no real art
f'.
In sofar as the boards were given certain powers also in respectp the
Native communities attached to their areas9, subject to stnngent
central control'O,this was necessary for the promotion of the welfare
of such communities. When it was considered that they had gainedthe
necessary, knowledge and experience. the Native communities were
allowed. inter dia,through the advisory board system, to share in the
Ovd.NO.13of1963(S.W.A. )..cif.. s147 (2)p..872.
' Ibid..ecs. (1)and r47(2)pp. 840. 872.
' 1, p138.
aiSouth WestA/vico6No.2490.(29Joue1963)(a..959.fici4GoicM Exfromdi~~y
Ibid.sec. (1)(b),p.959.
" Ibid.sec8 (5) (a),p960.
' Ibid.sec8 (5)(b),p.960.
' 1.para.109p. 138
' Videpara.40,supra.
" Vida para26.supra. COUNTER-MEMORIALOF SOUTH AFRICA Kgr
responsibility for the local govemment in the areas occupied by them.
The contemplated urban Native councilsl wiil aim at accordmg them
a progressive measure of participation in the local govemment of such
areas.
(e) Paragrafih IIO
The administration and control of Native Affairs in the Territory
is primarily the concern of Respondent itself, and the general policy in
this regard is laid down by Respondent. Practical considerations of
expediency, however, have made it desirable that local authorities assist
in the administration of Respondent's policy, subject always to Respon-
dent's ovemding supervision and control. Snch supervision and control
vests ultimately in Respondent's Minister of Bantu Administration and
Development, and machines. has been wnstituted whereby the Minister
is kept fully informed of aUthe Localauthorities' actions in the carrying
out of their functions in this regard'.
The Dowersand duties of the local authorities in regard to the rele-
vant aspects of the administration of Native affairs aÏe rincipauy set
out in the Natives (Urban Areas) Proclamation, 1951 prod da mat ion
NO.56 of rggr).
(f) Paragrafiksrrr and 112 '
These paragraphs are admitted
(g) Paragraph1r3
It is im~erative for a Native advisorv board to be established for
e\,ery ~ative residen$ial are3 subject & the control of a munici al
council or village management board. The proclamation pyondes t at R
such a board shall consist of not less than three Natives resident within
the area of jurisdiction of the urban local authority, who may be either
elected or selected as detennined by the urban local authority. In
practice an equal number of the members are elected and selected to
most of the boards in the Temtory, and in the few instances where the
re lations rovide only for selection by the local authonty, such
seEtion is [om the ranks of the recognized headmen chosen by the
people '.
The or-cl~ ~ ~ ~ ~ C ~ - - ~ -~the chairman of the board mav be
a Ë&opean. In practice the principaladministrative,officerof the parti-
cular location or hisde~utv is usuaüy appointed chauman of the board.
includepothose mcntioned by the Applicants in thev Memonals, andamation
also include, inferaiin, the nght to consider and comment on the urban
local authority's proposed estimates of expenditure out of the Native
Vida para.72.supra.
a 1p.138.
'Vidapara. 87. supra.
'1Vidapara. 43, supra.
1, P. 139.
'Yi& pma. 64,suplo.192 SOUTH WEST AFIIICA
revenue account. The ~owers and duties of the boards are more fullv
dealt with iii paragraph's51 to 53, supra.
Kespondeiit docs not recard these boards to have been an unaualified
succesi. aiid considers thai a re~resentative bodv with a meater measure
of ndministr;itii.e rc\~~>oniibifor the admi&trationuand replation
of their owii :iifairs shoiild be irented for the Salive residents in urban
areas. The eiirly establishment of urban Native councils, as explained
in paragraphs 59 and 69. supra, is therefore contemplated, so that a
growing measure of participation may be rendered possible for the
various Native groups iii the local government of their urban residential
communities.
(a) I'aragraph128 (4)
71. As has been shown above, there can benosuggestion that Respond-
ent haç in any way cxclsrdedthe Native population of the Territory
from participation in the localgovemment of themunicipalitiesor village
management board areas. For historical reasons the Native population
in factdid no1form part O/the towns and villages in the Territory. and
thus fell out of consideration for participation in the local government
thereof. In the course of time groups of Natives. attracted to the towns
for largely economic reasons, fomed communities on the outskirts of
suchtowns. Urban communal living was unknown and alien to them, and
Respondent's primary task was to improve their material well-being. and
tosecure the provision to them ofproper housing and attendant municipal
facilities such as roads, water, lighting. sanitation, social amenities and
the like. This was accomplished largely through the agenc of adjoining
assistance. authorities under Respondent's control anJits financial
The sistem of Native advisory boards was not established to provide
a "faint a~~roximation" ofsome form of ~artici~ation in the established
foms of iôcal government, but rather (O intriducc the Natives to the
processes of local~ovcrnmcntO/thcir own urbancommi~niticsso as to iead
to increasing parficipation by them in that sphere, as in fact envisaged
for them in the contemplated system of urban Native councils.
@) Paragraph 128 (6)
Applicants do. that Respondentsthas "pursued a systematic and actives
program which prevents the possibility of progress by the Native
lation toward self-respect.responsibility or skill" in the sphOPlOcalpu-
govemment. and that "by law and by deliberate and consistent practice,
[Respondent] has failed to promote to the utmost the development" of
the Native population in this respect, and "made no notable effort to do
so". On the contrary, ashas been shown, Respondent has directed specjal
efforts towards improving the material and moral weli-being and social
progress of the wban and pen-urban Native communities in question.
towards acquainting them with the fom and machinery of communal COUNTEI<-MEMORIALOF SOUTH AFRICA 1'93
living in towns and villages and with the working of the machincry of
local govemment, in order thereby to equip them forthe assumption,of
greater responsibility in the local government of their own constitutive
groups. Thereby Respondent has systernatically. and with considerable
success,promoted, not prevented, progress by the Native population and
achievement of the objectives of the Mandate in these respects.
III. PARACRAP 1H90OF CHAPTEV R
72. The allegations contained in this paragraph, in so far as they
relate to local government are largely identical with those in paragraph
128 (4) and (6)of Chapter V of the Memorials and have thus been dealt
with above. In the light of what has already been said, the allegations
that "the Mandatory offersnohorizon of hope to the'Native' population".
and that "the condition of the 'Natives' is unrelieved by promise of
future amelioration" are likewisedevoidof substance, and are denied.
Inkoductory portion isat1.p. 162 and sub-para. (ii) (at p.164 of the
Mernorialo.
1, p.162, CHAPTER IV
CONCLUSION
In paragraph go of Chapter V of the Memorialsl,under the heading
"Leeal Conclusions". the ADDiicantsmerelv reoeat the charees formu-
gations containcd in the various scctions grouped together under the
ëeneral headine "Govemment and Citizenshi~"-
- In the prec&ing chapters Respondent has'dealt with aUthese charges,
and hasdemonstrated that they are without substance. It is consequeritly
unnecessary to deal further with the said legal conclusions.
1 1. pp. 1ff.
m., Pp. I42143, CHAPTER 1
INTRODUCTION
1. With reference to "secunty of the person. rights of residence and
freedom of movement", the Applicants allege that, in accordance with
the "legal norms" formulated by them ',
"... the Mandatory's duties to safeyard and promote the 'material
and moral well-being', the 'social progress' and the 'developmeiit'
of the people of the Territory must reasonably be constnied to
include :
........................
(4) Security of such persons and their protection against arbitrary
mistreatment and abuse;
(5) Equai rights and opportunities for such persons in respect of
home and residence, and their just and non-discriminatory
treatment ;
(6) Protection of basic human rights and fundamental freedoms of
such persons ;
........................
(8) Social development of such persons, based upon self-respect and
civilized recognition of their worth and dignity as human
beings 2."
2. As has already been stated ', Respondent is in general agreement
that these "norms" can. on the whole, be said to be matten to which
regard ought to be had in the exercise of the Mandate! but as ultimate
objectives and not as concepts to be isolated from their context. It has
further been indicated that in Hespondent's view the ideal of "equal
rights and opportunities" is not to be regarded as meaning "identical
rights and opportunities", since that would, in circumstances like those
of South West Africa, tend to defeat rather than to promote this ideal.
And, as has also been shown, the best and probably the only method of
achieving the ideals envisaged in the various "nom", is by a policy
which involves differentiation-as was indeed contemplated by the
founders of the mandate system-with a view to stnkuig a fw and
e uitable balance between the legitimate aspirations of al1the peoples
O? the Temtory.
3. In the foliowing chapters Respondent will repl to the Applicants'
allegations under the headings "Security of the Jerson", "Rights of
Residence" and "Freedom of Movement", with a view to showing that
the charges of violations of Article z of the Mandate in these respects
are unfounded.
1.pp.107-108.
' Vids Book4IV.Chap. II,ofthis Cannter-Mernorial. CHAPTER II
SECURITï OF THE PERSON
A. Introductory
I. In paragraph rzg of Chapter V of the Memorials lthe Applicants
aver that the Native population of South West Africa is affected by
certain statutory provisions which create "a pattern of comprehensive,
pervasive and tight control" over their lives, &der alia, with regard to
their personal security, and in paragraphs 130 to 137 2 the Applicants
purport to substantiate theu aliegation in this respect.
2. Having alieged that in ternis of the statutory provisions in question
Natives within the Temtory "are subject to arbitrary arrest. often
without any warrant". in a "variety of situations and under a vanety
of circumstances" 3, and that the "powers to make arreçts may be
exercised by designated persons at their largely uncontrolied discre-
tion" '. the Applicants conclude:
"In sum, in the entire complex of provisions for the arbitrary
arrest of 'Natives' ... the Mandatory has ~ven consideration solely
to the convenience or advantage of ihe Mandatory government ana
of the 'European' citizens and residents of the Territor The
Mandatory has uniformly failed to promote the material anfmoral
well-being, the social progress and the development of overwhelm-
ingly the larger part of the inhabitants of the Temtory of South
West Africa in terms of semnty for their persons ... On the con-
trary, by law and by practice, the Mandatory has foUoweda system-
atic course of positive action which thwarts the well-being, inhibits
the social progress and fmstrates the development of the great
majority of the population of the Territory in vital and fundamental
aspects of their lives 5."
3. The provisions on which the Applicants rely are those relating to 6:
la) Vamancv '.
(bj Idlë perions in urban or proclaimed areas
(c) Idle persons in reserves 9.
(d) Undesirable persons in reserves '0.
(e) The deportation of persons from the Temtory ".
(0 Infringement of the pas laws 12.
' 1,P. 144.
Ibid.,pp. 144.146.
Ibid..para. 154 (1)p. 151.
* Ibid.,para. 154 (2)p. 151.
' Ibid.,para. 154 (5)pp. 151-152.
' For reamns ofconvenience Respondent not thesequence
ofthe Memorials.
' Vi& 1, para. 130.p. 144,
Vbid.. paras.134-135, pp. 145-146,
'>Ibid.,para. 131.p. 144.
IDIbid,.para. 132,p. 145.
ILIbid..paras.136-r37. p.146.
laIbid.,para. 133,p. r45. COUNTER-MEMORIAL OF SOUTH AFRICA I97
4. Some of these provisions are aLso rtfetred ta in tlie preceding
paragraphs of Chapter 1'of the AIemorials,and are in the coiitext under
consideration apparent17 relied upon only in so far as they provide for
powers of arrest or similar authoritative actioii in prescribed circum-
stances. Since. Iiowevrr. itis not fzasible to deal se~aratelv with the
&bstantive p&tions of such provisions and uith the phtionrpertaining
to arrcsts or like actions. it will be necessary to set out hercinafter the
backmound to. and the reasons for. the enactment of these provisions.
5. \lthough Respondent does not dispute that Natives kthin the
Territory may under certain circumstances be arrested without a warrant
by designated persons, it denies that this applies ta Natives only, and
moreover denies that any person in theTemtory is subject to arbilrary
mest.
6. In replying to the Applicants' allegations Respondent will demon-
strate that al1 the above provisions-some of which are incorrectly
quoted or quoted out of context by the Applicants-were enacted in
order to safeguard and romote the material and moral well-being. the
social progress and the evelopment of the inhabitants of the Temtory,
and that it is in this spirit that they have always been applied. Itwill
also be shown that provisions similar to a number of those on which
the Applicants rely, exist in other countries, and that the Permanent
Mandates Commission. although fully aware of such of the above pro-
visions as were enacted dunng the existence of the League of Nations,
never objected to them.
7. In the result it wiU become apparent that the Appiicants' con-
clusions that Respondent has authorized arbitrary interference with
personal liberty, thatit has given considerationsolely ta the convenience
or advantage of itself and of the European inhabitants of the Territory,
and that it has foliowed "a systematic course of positive action which
thwarts the weU-being, inhibits the social progress and frustrates the
devel~prnent"~ of the Natives of the Temtory, are wthout substance.
B. Vagrancy
8.The auegations in paragraph 130 read with paragraph 69 of
Chapter V of the Mernorials2 are based on the ofiences created by
sections I and 3 of the Vagrancy Proclamation, ~gzo. These sections,
in sofar as they are relevant. read:
"1. Any fierson found wandenng abroad and having no visioe
lawful means, or insufficient lawlul means of support, who. being
thereunto required by any magistrate, policeofficer,policeconstable,
superintendent of native locations, or owner or occupier of land, or
who having been duly summoned for such purpose, or brought before
amagistratein pursuance of th& Proclamation shall not gve a good
and satisfactory account of himself. shall be deemed and taken to
be an idle and disorderly person, and on conviction theteof shaUbe
iiable ta be imprisoned, with or without hard labour, and with or
' 1. para. 1(5).P.152
Ihd.. pp.144 and 127.Ig8 SOUTH WEST AFRICA
without spare diet, and with or without ~litary confinement or
any of them, for any penod not exceeding twelve months ... 1
3 (1)Every person found without the permission of the owner
(the proof of which permission shaii lie on such person) wande~g
over any fann, in or loitering near any dwelling-house, shop, store,
stable, outhouse, garden, vineyard, kraal or other enclosed place,
shaii be deemed and taken to be an idle and disorderly person; and
on conviction thereof shall be liable to a fine not exceeding one
hundred pounds or, in default of payment, to imprisonment with
or without hard labour, and with or without spare diet, and with
or without solitary confinement, or any of them, for a period not
exceedina-twelve months ...
(21 Evcry person slinll be deeined to be an idle and disorderly
person wlttiin the meaning of and for al1the purposes of tliis Procla-
mation. and shall upon con\,iction be Iiable to the penalties provided
by subsectioii I of this sectioli. who stiall be found without the
pemiission of the owner of any farm (th. pro.f of whch permission
shall be on such person)
(a) loitering upon any road crossing such farm. or
(b) in or loitering at or near any hut, house or other building upon
any farm. whether such hut, house or other building shall or
shall not be in the oss sessionor occupation of anv servant or
apprentice of the ohner of such fann; or in the a os ses srion
occupation of any squatter Z." (Italics added.)
g. In the above sections "wandering" means moving about without
any definite object, and "loitering" has a corresponding meaning '.
II. THESCOPE OF THE PROCLAMATION
IO. By paraphrasing the above provisions of the Proclamation in
such a way as to refer to "any 'Native' " instead of "any person" ';
by referring to "the precaiious situation of any 'Native' under the
Vagrancy Proclamation" S; by concluding that "in the entire complex
of provisions for the arbitrary arrest of 'Natives' ... the Mandatory has
@ven consideration solely to the convenience or advantage.. . of the
Eurouean' citizens and residents of the Temtorv" 6. and bv failina to
mention the fact that the said provisions are applicable also to per;ons
other than Satives. the Applicants create the impression that the Pro-
clamation applie; onlv to Natives. This is obviouslv not the case-it
applies to ail3ersons &respective of race or colour. If consequently does
not discriminate against Natives or, for that matter, against any partic-
' Sec.I as well asec.3 (1)contains the proviso that no persan shaUbeLiahleto
be sentenced to undergo sparediet or solitary confinement except during the first
three months of any sentence of impnmnment imposed "pan him.
Proc. No. 2.5 o1920 (S.W.A.), inThe Lnwr 01 South West Africa19x5-rgla.
p. 280,as amended hv Pvoç. No. - of 1-z. .S.W.A..-in Tha Lnwr of Swth Wcsi
Af"cRLZY.Dauid Mdhijs and GertChristian, ,925S.W.A. 98;Rsx v. HaroibJan..
1937 S.W.A. 7.
1. paras69 and 130. pp.127 and 144.
' Ibid., para. 13p. i~.
Ibid.. para. r54 (p..151. COUNTER-MEMORIAL OF SOUTH AFRICA I99
ular group or person. The problem of vagrancy has in fact in the past
manifested itself more amongst the indigenous than amongst the Col-
oured or White groups, but has hy no means been confined to the
Natives, and the effect of the Proclamation has in no way been dis-
criminatory.
II. The Applicants appear to object to the above provisions only
upon the erroneons premise that they discriminate against Natives. In
the succeeding paragraphs Respondent will, however,, deal wth these
provisions on the basis that the Applicants' objection 1sdirected to the
Proclamation as such.
III. THEHISTORICAB LACKGROUND
12. The Proclamation States its purpose to be "to suppres trespass,
idleness and vagrancy" '.It is submitted that such a purpose in no way
conflicts with the duties imposed by the Mandate. On the contrary the
promotion of the material and moral weU-heing and social progress of
the inhabitants of the Temtory required and stU requires that there
should be a law against idleness and vagabondage. Such a law 1srequired
in the interests ofthedle person and the vagrant aswellasin the interests
of the other members of the community.
13. The conditions tliat prevailed in the Territory in 1920 werc such
that a law of tliis nature was iinperative to ensure some degree of social
and economic stability in the Temtory. Idleness and vi&ancy were
then rampant and retarded economic progress in general.,Many indivi-
duals were roaming about the southern part of the Temtoy without
anv familv or connections. Most of these versons had no desue to earn
a king. *
This state of affairs was partly due to the disruptive effects of certain
historical events2 and partly to the way of life of some of the indigenous
groups in the Police Zone.
14. In this regard it must be kept in mind that the indigenous in-
habitants of portions of the Temtory later comprised in the Police
Zone-i.e., the Herero, the Nama, the Bergdama and the Bushmen:
were traditionally nomads who moved about from place to place in
search of new pastures or hunting grounds ).
15. In their traditional mode of ljfe the Bushmen depended on Fe
yield of the bush or the hunt for satisfying their daily needs.Production
was alien to their nomadic mode of existence, and when physical de-
mands had been satisfied the necessity for such spasmodic labour as was
required to satisfy immediate neceçsities ceased *.
16. The traditions and customs of the Bergdama were ongin,dy
similar to those of the Bushmen. At the time they were brought into
contact with a Western type of econom however, the Bergdama had
to a great extent been enslaved by the 8 erero and the Nama, and had
ceased to operate in their traditional units. Having been thus enslaved,
1 Ploc. No.25 of 1920 (S.W.A.), Rearnblein Tic Lawr a/ South Wsrf Africa200 SOUTH U'EST AFRlCA
they had no experience of labour in a free market, and no real notion
of personal possessions acquired throu~h or~anized labour 1.
- -
any form of organized labour, othertrathan that connected with the care
of stock and the satisfaction of daily needs, was alien to them. Since
they had no demarcated farms, their stock-farming was of a carefree
nature, herds being mostly tended by children or slaves < There was,
furthemore. a marked division of such labour as was necessary. which
left most of the work, even the milking of cattle, in the hands of the
women. In this regard the following extract from a memorandum sub-
mitted to the Permanent Mandates Commission by one of its Members,
M. Freire d'Andrade is apposite:
"In native societies, by far the heavier share of the essential work
of the family is generally done by the woman; over and above her
housework. she has to work in the fields. while the man undertakes
the hghter work wt"ch leaves a large part of Iiistime free for talking,
singing and drinkirig3."
18. 1t isconsequentlyclear that for the original adult male inhabitants
of the Police Zone work in an organized sense as in a Western economic
societ was largely unknown. It is, therefore. uot surprising that while
the Germans brought with them economic activities which created
rés'ponsefrom the indigenous inhabitaiits. lnethis respect a consiherable
difierence in outlook rnanifested itself as between the Europeans and
most of the members of the indigenous groups.
19. While there was ample opportunity for work, numerous Natives
continued to wander idly from place to place. These vagrants, as time
went on, constituted a grave threat to the settled and law-abiding
Natives as well as to the European community, many of whom were
spread over a vast area living on isolated farms far removed from police
stations. Being without means of subsistence. these vagrants were
naturally bound to steal from others who, under the most adverse con-
ditions, were stmggling to develop and built up their lands and to
increase their stock.
20. The rebellion of 1904-1907' contributed further to the destruction
of the family and communal life of the groups that were involved,
especially the Herero and Nama. resulting in their case in even more
vagrancy. After the rebellion the Gerrnan authorities prohibited the
Hereros from owning land and stock 5.This measure tended to increase
the numbers of those who wandered about subsisting on what they
conld take from others.
21. Respondent does not wish to convey the impression that vagrancy
manifested itself only amongst the indi enous groups of the Territory.
further aggravated the position, with the result that when the Mandate
was assumed in 1920 it was incumbent upon Respondent forthwith to
' Vido Book III.para.70, of this Counter-Mernorial.
' Ibid.. paras. 76 aW.
P.M.C.. Min.. VII. p203.
' Vide BookIII. Chap. III. paras. 76-81. of this Counter-Mernorial.
' Ibid., para. 84. COUNTER-MEMORIAL OF SOUTH AFRICA 201
legislate against this menace. To this end there was passed the VagrancY
Proclamation. based on Act No. 23 of 1879 (Cape of Good Hope) ,
which was the first vagrancy law passed in South Africa. This law had
been enacted to combat a similar problem and had been found to work
well in practice. It consequently served as a naturai basis for legislation
against vagrancy in South West Africa.
22. The proclamation is in practicenot being applied to the northem
areas because the problem of vagrancy does not present ?self there to
any appreciable extent. In this regard it must be kept in mind that
owing to relatively little u heaval in these areas prior to 1920. tribal
life was still intact when $ espondent assumed the Màndate, and de-
c--r-~~~-ould conseauentlv be exercised throue- the traditional authori-
lies. Moreover tlie êconomyof the groups concernedwas ofa subsistence
nature. and aenerallv the ~rohlemdid not exist of diso.ganized wandercrs
with no means of sübsistènce 2.
23. In the case of the Rehoboth Basters, their Kaadlater specifically
asked that the proclamation be applied to the Rehoboth Gebietand this
was done by means of Proclamation No. 7 of 1939 (S.W.A.) '.
IV. LEGISLATIO ANGAINST VAGRANC N OTHERCOUNTRIES
24. Respondent may point out that legislation of the kind in question
is not something peculiar to South West Africa. Many other civilized
countries have similar statutory provisions aimed at combating idleness
and vagrancy: e.g., the United Kingdom, New Zealand, New South
Wales, Western Australia. Canada, the United States of America,
Ethiopia, Liberia, Egypt and the former Belgian Congo.
The United Kingdom
25. In 1920 the Vagrancy Act of 1824 was stiU in force in the United
Kingdom, the relevant sections of which read:
"3 ...Every person being able wholly or in part to maintain himself
or herself, or his or her family, by work or by other means, and
wilfully refusing or neglecting to do s. ..shall be deemed an iqe
and disorderly person within the true intent and meaning of t-s
Act: and it shall be Lawfulfor any justice of the peace to commit
such offender (being thereof convicted before him by his own view.
or by the confession of such offender, or by the evidence on oath
of one or more credible witness or witnesses) to the house of coyc-
tion, there to be kept to hard labour for any tune not exceedmg
one calendar month.
Vide Stoluies of fhsCap* of Good Hope pnrrcdby the Sixth Parlinmcnl during
fhc Sesrims 1879-1883 (1884). 5+-60.This Act was amended by Act No. 27 af
1889 (Cape of Good Hope). in SlniatefhCnpeof GoodHope fiassed by lhaEighlh
P<irliammf during 1lieSessions 1889.1893 (1894). pp. 46-47.
Vide Book ILI. Chap. II. para. 38. of this Counter-Memarial.
XVIII.opp.150, 152. The Vagrancy Proclamation ir seldom, if ever. applied in the
Native Reserves within the Police Zone where idlenG, etc.. are dealt with under
sec. 2001 PVO. O.IId 1922 (S.W.A.), in TheLarusof South WesfAfriçn 1915-i921.
p.754, whieh will bedealt witmore fully hereinafter. Vide para. 89, infra.202 SOUTH WEST AFRlCA
4. .. every person wandering abroad and lodging in any barn or
outhouse. or in anv deserted or unoccuoied buildine. or in the own
air,or under a tent, or in any cari or wagon, not h&ing any vis;ble
means of subsistence, and not givina a good account of himself or
herself. .. every person being foundin O? upon any dwelling house,
warehouse, coach-house, stable or outhouse, or in any inclosed
yard, garden, or area, for any unlawful purpose .. . shail be deemed
a rogue and vagabond, within the tme intent and meaning of this
Act; and it shall be lawful for any justice of the peace to commit
such offender (being thereof convicted before him by the confession
of sucb offenier, or by the evidence on oath of one or more credible
witness or witnesses) to the house of correction, there to be kept to
hard labour for any timenot exceeding three calendar months . ..'"
26. This Act was amended by the va&ancy Act, 1935. section I (3)
of which added the foilowing proviso to section 4 of the former Act:
"A peTson wandering abroad and lodging as aforesaid shall not
be deemed by virtue of the said enactment a rogue and vagabond
within the meaning of the said Act unless it is proved either-
(a) that, in relation to the occasion on which he lodged as afore-
said, he had been directed to a reasonably accessible place
of shelter and failed to apply for, or refused, accommodation
there;
(b) that he is a person who persistently wanders abroad and,
notwitbstanding that a place of shelter is reasonably acces-
sible, lodges or attempts to lodge as aforesaid; or
(c) that by, or in the course of, lodging as aforesaid, he ca~d
damage to property, infection with vermin, or other offensive
consequence, or that he lodged as aforesaid in such circum-
stances as to appear to be likely so to do.
In thissub-section the expression 'aplace of shelrer' means a place
where provision is rcylarly made for giving (frrc of clinrgc) ac-
commodation for the nieht "o such nersons :s au.. .tlierefor 2."
27. Section 3 of the 1824 Act was partialiy repealed by the National
Assistance Act. 1948 ', and b the Crirninal Justice Act. 1948'. but
section 4 remained as amende $ by the Vagrancy Act, 1935.
NewZealand
28. Section 49 of the Police OffencesAct of 1927provides:
"Every person shall be deemed an idle and disorderly person
within the meaning of this Act, and be liable to imprisonment for
any term not exceeding three months-
...................
'5 Geo. 4.e. 83,secs.3and 4,in TheConrplcreStafufesO/England. clorsificdand
anmtokd in cafinuntion of Halsbury'r Lows of England,Vol.12 (1930)p.pl913-916.
25 Bt26 Geo. 5.c. 20.sec.I (3).in The Statufer Rcvircd (3red.).Vol.XXII
(1250)PP. 33-34
iI Brrz Gco.6. c.29,sec. 62(3)andXventhSchedule (Emctmeots Repeded).
in Th Public Grncrnl Actr and thc Churrh Asrcmbly Mrnsr<v~sof 1948.Vol. 1.PP.
282.304.
' II Bi12 Gea. 6. c.58,sec.1 (2).in TheSlntulcr Rcvir~(3rded.).Vol.XXXII
(1950).P.72. COUNTER-MEMORIAL OF SOUTH AFRICA 203
(c)Who wanders abroad or places himself in any public place to
beg or gather alms ... '"
29. Section 50 reads:
"(1) Where any constable has reasonable cause to believe that
anv person has no lawfui means of support or has insufficient lawfui
miais of su~wrt he mav arrest suchr>erson. either with or without
warrant, and'bring him before any ~Ûstice.
(2) If such person fails to prove to the satisfaction of the Justice
that he has sufficient lawful means of support or that such means
of support ashe has are lawful, he shail hédeeme O be an idle and
disorderly person within the meaning of this % , and shaii be
iiable to im~risonment for a term of three months.
(3)The fâct that any person charged under this section can pro-
duce or prove that he possesses money or property shall not be
taken into account in deciding such charge unless he shows by bis
own or other evidence that he honestly obtained such money or
property.
(4)This section shall be deemed to fonn part of the 1st preceding
section2.
30. Section 52 (1) contains ten categories of persons who shail be
deemed rogues and vagabonds and be iiable to imprisonment with hard
labour for a term not exceeding one year 3.One of these categories
comprises any person-
"Who is found by night without lawful excuse (the proof of which
escuseshall be on him) in or on any building orin any enclosed yard,
garden. or area, or in or on board any ship, launch. dredger. yacht,
boat, or other vesse1'."
New! Soulh Wales
31. The relevant subsections of section 4 of the Fourth Vagrancy Act
of 1902 read as foilows:
"(1) Whosoever-
(a) having no visible lawful means of support, or insufficient
lawful means, does not, on being required by or summoned
to appear or brought before a justice in pursuance of the
provisions of this Act, give a good account of his means of
support to the satisfaction of the justice...
shall, on conviction before any justice, by his own view or other-
wise. be liable to imprisonment with hard labour for a term not
exceeding six months.
(2)Whosoever-
.................... '..
(i)warehouse, coach-house, stable, or outhouse, or in any en-,
1 Act So. 35 of 1927 (Sew Zealand). sec49, in The Statules oNew ~~~~~~d
1955 (1956)Vol. II. p. 1781.
2 Act No.35 of 1927(New Zealand).sec. 50pp. i78i-1782.
' Ibid.s.c.52 (1)pp. 1782-1783.
* Ibid.sec. 52(1)(i). p. 1783.204 SOUTH WEST AFRlCA
closed yard, garden, or area, or on board any ship or vesse1in
any port, harbour, or place within New South Wales . ..
shall. on.conviction before any justice, be liable toimpriçonment
with hard labour for a term not exceeding six months ... '."
WesternAustralia
32.Section 65ofthe Police Act 1892-195 pr.vides, inferdia:
"Every person who shall commit any of the nextfollowing offences
shall be deemed an idle and disorderly person within the meaning
of thisActLnd shall on conviction be liable to impri~nment for
any term not exceeding six calendar months with or without hard
labour:
(1)Every person having no visible lawful means of support or
insufficient lawfulmeans of support. who being thereto requred
by any Justice, or who having been duly summoned for such
purpose, or brought before any Justice, shall not give a good
account of his means of support to the satisfaction of such
Justice 2."
Canada
33.Section 162of the Criminal Code provides:
"Every one who, without lawful excuse, the proof of which lies
upon him, loiters or prowls at night upon the property of another
person near a dwelling house situated on that property is gdty of
an offencepunishable on summary conviction )."
34.Section 164reads:
(1) Every one commits vagrancy who-
(a) not having any appîrent means ofsupport isfound wandering
abroad or trcspassing and does not. whcn required. justify his
presence in théplace where he is found;
......................
(2) Every one who commits vagrancy is guilty of an offence
punishable on summary conviction '."
The UnitedStatesofAmerica
35.There exist in the United States approximately 50 va ancy laws
which are included in the Penal or Criminal Code of each OY the indivi-
dual states. The rules governing vagrancy in all the states are sub-
stantially similar, and have been summarized as follows:
tat tlegislatwes and municipal governing bodies. acting under
dclcgatcd authonty, mav uithin certain limitations imposed by the
organic law ofthe State. define vagrancy and impose punishment for
Art No 74 01,902(New Soutli \\'ales).4s(1)(01and4 (2) (inTG Stalulcs
O/ .@ILSouth Woltr(J'ublir and I'rirn11903)p.p 541.543
550\'ictorinr So. 27.sec 65.1hcReprintrd Arlof iht Po'orlinmrnlof Wtrkrn
~uririlii(1954)V.ol.6:p.29.-
' Chap. 51,2-3Elizabeth II.1953.54(Canada)s .ec.162.inCriminalCo& and
SeleclcdSiatui(1954)p..52.
' Ibid.. se164.pp. 52-53. COUNTER-MEXORIAL OF SOUTH AFRlCA Zog
the offence of vagraiicy. The validity of such statutes has been
upheld against objections that they were in violation of the State
or Federal Constitutions. Statutes which have been upheld defme
as vagrants, inter alia. able-bodied persons who habitually loaf,
loiter and idle in public places for the larger portion of their time
without regular employment. without visible means of support,
persons known to be pickpockets, tbieves or burglars, persons who
may be found loitering around houses of il1fame. gambiing houses
or placeswhere iiquor issoldto drink, persons tramping orwandering
~~-und from lace to place without visible means of support .. .
~unishmeni pro\.itl;d by statutes conccrning vagulnc). isgencrally
:I~ineor a gaol sentence with or witltout hard I~hour.usiially up IO
six montlis. or one sçar. or thrécsears. nccord:ng to the laws ofthe
different States '."- -
Ethiopia
36. Artide 471 (1) of the new Penal Code for the Ethiopian Empire
reads as foliows:
"He who has neither domicile nor regular work nor specified or
apparent means of subsistence and who. wbilst in good health,
ordinarily and deliberately leads a life of vagrancy, misconduct,
expediency or beggary whilst refusing to accept honest and re-
munerative work which he would be capable of doing and thereby
shows himself to be dangerous to public safety, is liable to,be sen-
tenced to compulsory labour with restriction of liberty (Article 103)
or imprisonment for a penod up to six months ?." (Translated from
the French.)
37.In terms of Article 471 (3) protective measures restricting his
freedom may be imposed on a convicted person over and above the sen-
tences provided for in Article 471 (1). These measures are contained,
inter alia,in Articles 149, 150 and 151of the Penal Code which provide:
"Art. 149 . .. 10. The judge has the power to impose on the con-
victed. over and above the penalty, a restriction on the access to or
frequenting of such places as have contributed to the perpetration
of offences or may enable him to offend anew, particularly bars.
amusement halls, markets or other ublic places.
20. In hisjudgment the judgeshalktipulatethelimitsandduration
of the prohibition, which shall Vary between three months to one
year."
"Art. 150 .. . 10. The ~rohibition mav for sirnilar reasons be
imposed in cases wherc prgvention appeari uecessary. and entails a
prohibition of establishment or entry in a town, \,illage or deter-
Ïnined area.
20. The prohibition may be temporary or permanent, depending
on the gravity of the offence, the character of the offender and
general circumstances ...
The judge shali stipulate in his motivation the territorial lirnits
-and duration of the prohibition."
RsPwf O/ theAd Hoc Commiffrc on Forced Labour, Ecoroc. O.R.. 16th Sers..
Sup. No. r). p.604.
Lc Code Pdnnl de l'Empire d'Ethiopicdu 23jiiill1957 (1959)Art. 471 (1).P.
'34.206 SOUTH WEST AERICA
"Art. 151 ...10. The judge may aiso, for determined and justified
reasons, particularly when the offender has reveaied himself. as a
troubler-maker and his presence entails probable risks of vengeance,
or new oiiences, order compulsory residence in a determined region
or place.
20. The judge shaii stipulate the lirnits, the place and duration of
the order of restricted residence. which may not be shorter than one
year and not longer than five years.
30.When the preventative measure, on condition of good conduct.
(Article 139) appears sufficient, taking into account the character
of the delinaient and eneral circumstances, the judge may lirnit
the application thereof 7." (Translated from the French.)
Liberia
38. Under section 346 (b) of the Penal Law of Liberia any able-
bodied person who lives idly without any visible business. employment,
means of livin or support. and who is offered employment and refuses
to be employe d or to woik, may be convicted and sentenced as a vagrant.
Moreover, aiiy sheriff. constable or policeman apprehending a vagrant
is entitled toa rnonetary reward if the vagrant is convicted 2.
EEY@~
39: Decree No. 98 on Vagrants and Suspect Persons of 4 October 1945
prondes. inter dia:
"1. A person is considered as a vagrant in terms of this Law-
decree, when he has no legitimate means of suppqrt.-Excluded are
those who have a profession or a trade but who fïnd themselves
momentarily witliout work.-However, those who practice games
of chance. auackerv. the ~rofession of fortunetefine and ail sunilar
praçtices.'a;e not c&side&d as having legitimate m&nsof existence.
2. Thoscaccuscd ofvamancv shallbc placed under the surveillance
of the ~olice for a ~erioa of six months to five vears.-In case of
recidivkin the sentericeshaUbe imprisoiiment andonce again surveil-
lance by the police for a pcriod of one year to fi\,e years.
3. Instead ofinficting on a vagrxnt the sentence as set out in the
iirst part of the precedint article, the judge may fonnaiiy caution
him to take stcps to mo ify lus irrcgular state of existence wluch
constitutes a state of vagrancy. Agiinst this judgment no claim
w..~~oever to a~~eal will lie.-Should the ~ ~ ~ ~ ~ ~ ~ ~t to
vapncy within ihrce ye&s after habing heen cautioncd the penalty
hxcd in the first part of the ixeceding article willbe applicd obliga-
torily)." (Translàted from the French.) -- -
Le Co& pend. op. cil., p. 70.
Tilla 17, Liberian Code of Laws. 1956. as cited in Rcpovf of Iha Commission
opjwinled under Avticlc 26 of lhaConrlilulia of the Inlcrnnliaal LabourOrganisdiai
)O ezamine the Caplaintfilcdby the Govcrnmnt O/Portugal conccning the Obrcr-
uanu by the Govcvnmcnlof Libe~ioO/lh~Formd Labour Convention. rgjo (No. l9)
(196Ddcrcf-lon.98 sur Iw5vognbmds cl Irr pnsoanrs swpeclc~4 octobre1945.in
Rdpcrbin Permanent & Ldgirlalion EgypIi8n(1952).Vagabondage. p. II. COUNTER-MEMORIAL OF SOUTH AFRICA 207
The Former BelgianCongo
40. The Royal Decree of 23 May 1896 modified by the Decree of
II July 1923 provides:
"1.. . Al1 persons of colour found in a state of vagrancy or
beggary WU be arrested and wiUbe brought before the competent
court.
z. The court willas faras possible ascertain the identity, the age.
the physical condition, the mental condition and the way of life
of the individual brought beiore the court for vagrancy or beggary.
3. The court will hand over to the Govemment to be imprisoned
in one of the establishments as laid down in article 6. for a period
not less than one year and not more than seven years, those persons
who exploit charity as professional beggars, and those who by
idleness, habitual drunkenness or dissolute mords, lead a life of
habitual vagrancy.
4. Persons found leading a life of vagrancy or beggary, under
circumstances not laid down in the preceding article. will also be
handed to the ~ovemment to be imprisoned for not more than one
year.
5. The Governor-Gencr31rnay at al1tiines çonduct to tlidIrotiticr
those adult and nble-bodied persons of foreign natioiiality wl~o are
found beer-?nr-or leadinp a lifc of ïapr-iic\. or wlio 1i:ivcbeen sen-
t~-ced t~.unnr ~ ~ - ~~
6. 'i'hosz~)ersoriswhohnw beensentenced as i,ng~nnts:incl1i:inderl
to the sovernment willhe imprisoned in work-houscsor -ihops ... '"
(Trandated from the French.)
41. Further examples are:
Southern Rhodesia
Act No. 23 of 1879 (Cape of Good Hope) 2 was made applicable to
Southem Rhodesia (then known as Mashonaland) in 1891 '.The pro-
visions of this Act are almost identical with those of the Vagrancy Pro-
clamation of South West Africa. The Act was in force in Southern
Rhodesia for approximately 70 years before its repeal by the Vagrancy
Act, 1960 '.
Section z of the latter act defines a vagrant, inter alin. as-
" (a) any beggar;
(b) any person wandering about and unable to show that he has
employment or visible and sufficient means of snbsistence;
-
Strouvens. L. and Piron, P.Codcs etLois du Gaga Belge (6th ed.). pp. 827-838.
1958). leaving the detention of vagrantto the discretion of the coursnd intro-
ducing equality of heatment as between indigenous and non-indigenous vagranta.
Vidc U.N. Ycnrboob on Human Riphts for 1958 (1960). p. 287.
Vids para. 21.supra.
' Vidc Thc Slofufe Law ofSoufhern Rhodasia in fm on th6IS!D@y otJaauory.
1939, Revised Editian (rgjg). Vol. 1. Chap. 45. pp605--8.
' Act No. 40 of1960 (Southern Rhodesia),inTheStatute Law ofSoutheni Rhhicsia
1960 (1961).pp. 321.329.208 SOUTH WEST AFRICA
(6) any person who is unable to show that he is living by honest
means and has a settled way of honest living '."
Sectioii 158of the Penal Codeof 1931 provides, inter dia. that every
suspected person who has no visible means of subsistence and cannot
give a good account of himself, and every person found wandering in or
upon or near any road or highway or any place adjacent thereto or in
any public place at such time and under sucli circumstances as to lead
to the conclusion that such Derson is there for an iiieeal or disorderlv
In terins of section 55 ..) of .Act 1'of 1848 anv officer in charae of a
police station may. without a warrant. akest or cause to be a&ested
any person witliin the limits of such station who has no ostensible means
of subsistence. or who caniiot give a satisfactory account of himself '.
Kenya
In terms of Ordinance No. 9 of 1920 (Kenya) vagrancy is an offence
and "a vagraiit" includes any person wandering about and unable to
show tliat he lins employment or visible and sufficient menns of sub-
sistence
Vagrancy is punishable witli iinprisonment for three montlis. A
..
vagrant" means any person found asking for alms or wandering about
without employment or visible means of subsistence. and includes any
Native of the Protectorate found without employment and iixed abode
and unable to render a satisfactory account of himself. at such a distance
from his ordinary place of abode as to inake it impossible for him to
proceed there without assistance 6.
Bechuanaland
Act 23 of 1879 (Cape of Good Hope), on which the Vagrancy Pro-
' Act No. 40 of 1960 (Southern Khodesia), in The SfaIulc Law ofSouthent Rho-
dcria 1960 (1961). secz.p. 322.
* Lawr ofNorfhcrn Rhodcria. 1963 Edition. Vol. 1. Chap. 6. p. 74.
Fora fint offence the maximum punishment is imprisonment for three months.
and for every subsequent offence imprisonment for one year.
' Chapter V of the Code of Criminal Procedure. 1898 [Pakistan] (Act V of 1898).
Sn. 55 (i). arcited in 'Treedom fmm Arbitrary Amst. Detention and Exile". in
U.N. Ycnrbook on Human Righfs: Firri SuPPbme>itary Volumc (1959). p. 178.
' Ord. NO.9 Of 1920 (Kenya). as amended. in The LnwrofKenyainforco enIhc
arsl Day of Sapfcmb~r.1948. Revised Edition. Vol.1, Chap. 59. p. 769.
Old. No. 2 of 1909 (Uganda), a.amended. sec. 2.in Tha Lnwr ofth6 Ugnndo
Protrcloralin /ma a fhc rd Dny ofJnnunry. 1951. Revised Edition, Vol. II. Chap.
47 P. 787. COUNTER-MEMORIAL OF SOUTH AFRICA Zog
clamation of South West Africa is based, is still in force in the Bechuana-
land Protectorate '.
Basutoland
Chapter 31 of the Laws of iiasutoland provides that every person
found loitering near any dwelling. house, hut,,store, etc., without lawful
excuse or reason, shall be deemed to be an idle and disorderly person
and upon conviction liable to a fine not enceeding five pounds or to im-
prisonment with or without hard labour for a period not exceeding three
months Z.Furthermore, Act No. 23 of 1879 (Cape of Good Hope) is still
in force in the Territory
V. THEPARTICULAP RKOVISION OF THE P~OCLAMATION
42. In paragraph 130 of Chapter V of the Memorials 'the Applicants
appear to lay particular emphasis on those portions of sections I and 3
of the Proclamation which are concerned with the arrest of suspected
offenders and matters attendant thereon. Thus they set out that under
the proclamation an offender may b~arrested. with or without a warrant,
not only b any rnagistrate or police officer, but also by any owner or
occupier O Yland upon which the offender may be found. and that in
addition every owner of a farm may enter without a warrant into any
hut, etc., upon such farm for the purpose of search'ingfor aiiy idle and
disorderly person.
43. In the ultimate summary of the charges under consideratiqn the
Applicants furthermore complain that Natives are subject to "arbitrary
arrest, often without any warrant", and that the "powers to make
arrests may be exercised by designated persons at their largely uncon-
troiied discretion" 5. Although not stated in so many words! !t therefore
seems that the Applicants' complaints regarding the provisions of the
Vagrancy Proclamation comprise one or more or al1 of the following:
(a) that the power of arrest, with or withont a warrant. is given at all;
(b) that such power of arrest is an arbitrary one, or is exercised at the
uncontrolled discretion of the persons upon whom it is conferred;
(c) that such power of arrest is extended to owners or occupiers of land
on which an idle and disorderly person is found;
(d) that an owner of a farm is empowered to enter and search any hut.
etc., on his land.
In the succeeding paragraphs Respondent deals scrjafim with these
aspects.
1 Vide Ploc. XO. 36 of ,909 (Bechuanaland), 22 December ,909. in Th6 LaWs
of th6 Bcchumaland Prolccforatccontaining theorders-in-Council. Proclamations
and Notices made thereunder. in force on the 1stDay of January, 1948, Revised
Edition. Vol. 1, Titla IV, Cha27. p. 25r.
Revisrd Editia of theLnwr O/ B~sutolnndin /orccon Ikc ~slDny ofJ*%.nuorY.
19~9 (,950). vol.III.'c~~~.ji. p;jZZ~-~IZ
Vide Pvor No 2B of 1884 (Barutolanil~as arncnded. sec2.in Rtvircd L'd8r:on
O/ rhrLawr O/ b'orurolnnd>n/orcc a th.,rtDoy O/jnnunry. 1949. \'ol1. Title 111.
Chap. 26, p. 408.
' 1, P.144.
Ià'd.,para. ijq(1 a1nd (z]. pi5r.210 SOUTH WEST AFRICA
(a) The Power of Arrest As Such '
44. Had the Proclamation provided that a vagrant should not be.
arrested but summoned to appear before the court, it would have meant,
in given situatioiis, that the owner of a farm would first have to travel
to the netirest police station, which might be up to 150 miles away, to
lodge a complaiiit. 'ïhereupon the police officer would have to travel
to the farm, probably a few days later, to serve the summons. Bearing
in mind the probable character of the person concemed, it may safely
be assumed that he would no longer be on the fam on the arriva1 of
the police officer, or even if still there, that he would not obey the
summons and attend court. If a warrant for his arrest were then to be
issued. he would in al1 probabiiity have disappeared by the time of
attempted service of such a warrant. To a lesser extent the same prob-
lems would be encountered in urban areas. The vagrant apprehended
by a police officer in a city would obviously not wait for the latter to
return with a warrant for his arrcst, and probably having no fixed abode,
would not easily be found.
45. It foUows that not only would the altemative course cast an
onerous financial burden upon the inhabitants, but it would becompletely
Proclamation by rendering it ineffective to combat the very evil it was
designed to remedy.
46. In most countries which have legislated against vagrancy it was
realized that the evil could not effectively be combated unless the,powo
of summary arrest was given. The following statutory provisions in
certain countries are in point:
(i) The Unitsd Kingdom
"It shall be lawful for any person whatsoever to apprehend any
person who shall be found offending against this Act, and forth-
with to take and convey him or her before some justice of the
peace ... or to deliver him or her to any constable or other
peace officer.. .2"
(ii N)ewSouth lYales
"Any person found offending against this Act may be appre-
hended by a constable or other person ...3"
(iii)Western Austrdia
"Any persan found committing any offence punishable in a
summary manner 'may be taken into custody without a warrant
by any officeror constable of the Poiice Force, or may be appre-
hended by the owner of the property on or with respect to which
the offenceshaUbe committed ... 5"
' Vidcpara. 43(a), supra.
5 Geo. 4. c83.sec.6.inThe ComPklc SfnlulesofEnglond, Vol.12 (3930). p. 918.
Wakr (Public and Priuafe) (1903). p. 544.ec. 9(1)in The Slolulcof New South
'Vagrancy issuchan offence.
'5S0Victonae No. 27, sec.49. inThe Reprinlrd Aclof thParliomcnl ofWcrlcm
Ausiralia (1954). Vo6, p.23. COUNTER-MEMORIAL OF SOUTH APRXCA 211
(iv) Canada
"Any one may arrest without a warrant a person whomhe finds
committing an indictable offence '."
(v) Southnn Rhodesia
"A police officer may arrest without warrant any person who
appears to be a vagrant . ..2"
47. As has already been pointed out Act No. 23 of 1879 (Cape of
Good Hope) is still in force in Bqtoland and Bechuanaland, and the
wer of arrest in these countries 1s therefore ideutical with those in
guth West Africa. The power of arrest (without a warrant) is, to men-
tion only a few more countries. also given in New Zealand ', Uganda ',
Kenya 6,Pakistan 3,and the former BelgianCongo '.In Liberia provision
is moreover made for the payment of a monetary reward. on conviction
of any vagrant, to the police officerwho apprehended him O.
48. Quite evidently, therefore, it has been widely accepted that the
confermentof a wer ofarrest is expedient and desirable for the success-
fui combating OYvagrancy.
(b) The Allegd Arbitraryor Uncontrolled Nature O/the Pown of Arrcst
49..Any power of arrest without a warrant neceçsarily confers a
certain discretion. But the Vagrancy Proclamation of South West Africa
no more authonzes an arbitraryarrest, or the exercise of a discretion in
an uncoltlrolledmanner, than does the legislation of any of the other
countries referred to above.
50. No proof is furnished by Applicants to show that the power
of arrest under the Proclamation isin practice exercised in an arbi-
trary manner, and Rcspondent is not aware of any case in which it has
been so exercised. In any event, should this happen the arrested person
wouid be able to avail himself of his civil remedy-a claim for dam-
ages-on the same grounds as any other person who has been unlaw-
fully arrested.
51. The inhabitants of South West Africa are further protected by
Chap. 51. 2-3 Elizabeth II. 1953-3954 (Canadsec.434, in Cvimiwl Codead
Sclcctrd Slalufes (1954). p. 144. Vasrancy is an indictable offcnce.
Act No. 4oof 1960(SouthernRhodesia), sec3 (1)in l'hcStalulaLawO/Soulhem
Rhodcsia 1960 (1961).p.312. Up ta rg6o.when ActNo. 23 of r879(Capeof Good
Hope) was repealed'byAct No. 40 of 1960 (Southern Rhodesia),sec. 17,the power
of aVidc para. 41, suprn.th that in SoutWest Africa. Vidc para. 4i. supra.
+ Act No. 35 of 1927(New Zealand), sec.50 (r). in The S/alufofNc<r,Zcdasd
1955(1956). Vol. II, p. 1781.
J Vidc Ord. No.2of ,909(Uganda), as amended.sec.3, in TheLaw 01 fha Ugonda
Protedoratain forcon Ihc1stDoy O/Janunry. 1951. Revised Edition, Vol. II. Chap.
47.P. 787.
Vidc Ord. No. 9 of ,920 (Kenya)asamended. sec. 3. in The Lam of Kcnyn in
fmcc mzlhs arsl Day ofScplcm6cr. rg@, Vol. 1.Cbap. 59. p.769.
' Vi& para. 40, supra.
Vida para. 38. supra.
Vide para. 43 (b), supra.212 SOUTH WEST AFRICA
section 15 of the Proclamation, which makes it an offence 'on the part
of a person 2:
"... who shall, under colour of this Proclamation, wrongfully and
maliciously,or without probable cause,arrest, or cause to bearrested,
any person. .. '".
52. It should be noted that any person arrested without a warrant
must, in terms of section 33 of the Criminal Procedure and Evidence
Proclamation. 1935 ',as mn as possible be brought to a police station
or charge officeand detained until a warrant is obtained for his further
detention upon a charge of an offence,and he should as soon as possible
be brought before a judicial officerupon such charge. Such person may
not be so detained for a longer period than is reasonably necessary to
obtain a warrant for his further detention, and in any event such period
sliall not esceed seven days.
53.These safeguards against abuse of the power of arrest under the
Proclamation therefore again refute the suggested "arbitrary" or "un-
controiled" nature of the power.
(c) TheGrantof thePower of Arrest to Land Owners andOccz~pier s
54. For obvious reasons the power of arrest is in other countries also
extended to persons other than officials.as will beobserved. e.g., from
the extracts of the relevant legislation of the United Kingdom, New
South Wriles,Westeni Australia and Canada quoted above 6.
55. If the right of arrest were to be confined in South M'estAfrica to
officials,the Proclamation would to a large extent berendered nugatory
for tlie reason that most farmers are too far removed from the police
or other officials.And as has already been pointed out '. a vagrant found
by the owner or occupier of land-be it in a rural or urban area-would
obviously not wait for such owner or occupier to return with an official
who has the power of arrest.
Applicants' averments.his aspect, too, does not afford any support for tlie
'Punishahle with a finenot exceedingL5or in default of payment. imprisonment
not Althaugli such a person is also liable to pay the arrested person such amount.
not exceeding the sum oL5 as and for damages. as the magistrate before whom such
arrsted person is braught for trial muy award, the section does not deprive an
aggrieved person of hiscivil remedies.
'Proc. No. 25 of 1920 [S.W.A.),Sec.15. in The Lowr ofSouth West Alrica 19x5-
r92a. pp. 2~~-28~.
'Proc. No. 30 of 1935 (S.W.A.). sec33, in TheLairis oSouth West .J/rico1935.
Vol. XIV. pp. 174, 176.
' Vide para. 43 (c). supra.
Vide para.46. supro.Reference may also be made to sec.437 ofthe Canadian
general terms that the owner or pecion in lawful possession of property may arrest
without warrant a person whom he finds committing a criminal offence on or re-
lation to tha..or-ri,.
' Vide para. 44, supro. COUNTER-MEMORIAL OF SOUTH AFRICA 2x3
(d) TheRight O/Enlry and Search '
57. The right conferred upon an owner of a farm to enter without a
warrant anyhut, house orother building upon such farm "for the purpose
of searching for any idle and disorderly person", is a natural coroUaryof
the right of arrestand if not given, could largely fmstrate the latter
right. In any event. the right of reasonable entry into premises on his
land is possessed by any owner under common law.
VI. THEPRACTICA ALPPLICATION OF THE PROCLAMATION
58. In recent years there have been relatively fewprosecutions under
the Proclamation. and the indications are that the legislation has had
a salutary effect. In cases where imprisonment was imposed, the period
rarely exceeded 14 days. Spare diet and solitary confinement are not
nowadays imposed for contraventions of the Proclamation.
59. The foiiowing table shows the number of convictions under
sections I and 3 of the Proclamation during the period 1959 to 1962 2:
1959 1960 1961 1962
Section I 98 82 56 50
Section 3 30 35 46 18
VII. THEATTITUDE OF THE PERMANENM TANDATEC SOMMISSION
60. The Permanent Mandates Commission was fully aware of the
provisions of sections I and 3 of the Vagrancy Proclamation, which
were referred to and sumrnarized in the annual reports submitted by
Respondent to the League of Nations.
61. In the 1920 annual report it was stated that "the offences of
trespass, idleness and vagrancy were dealt with in Proclamation No. 25.
on the lines of the Ca Vagrancy Laws" '.In the 1921 report reference
was made 'to the enPor"ement of the laws against vagrancy in order to
combat idleness, and in the ~gzz report full details were given of the
provisions of sectionsI and 3 of the Proclamation.
62. While the Permanent Mandates Commission never objectfd, t0
the provisions of these sections, individual members of the Commission
in fact spoke out strongly in favour of the vagrancy legislation. So, for
instance,during the Fourth Sessionof the Commissionin 1924M.Freire
d'Andrade is reported to have said:
"In civilised countries the law punished both vagrants and,those
who could not show that they worked for their living, and it was
only right that the same principle should appl-~to natives who
refused-to work.
Civilisedsocietvonlvallowed those to livein idlenesswho possessed
the means of subsistehce, property or capital ...6"
' Vida para. 43 (drupro.
Departmental information.
U.G.261921, p.î.
' U.C.32-1922, p.12.
' U.G.21-1923, p.Ib.
P.IIf.C.. Mi*.. IV116.214 SOUTH WEST AFRICA
63. In a memorandum submitted to the Commission M. Freire
d'Andrade further said:
"At the sixth meeting of the first session ofour Commission;1had
an opportunity of expressing my view on ,the labour question (see
pages 30 and 31 of the Minutes). and 1insisted upon it throughout
our proceedings. If forced labour is to be absolutely forbidden,
except when imposed b courts of law, natives must not have the
right to do no work, un ?e's they have means which enable them to
live and to contribute towards the development of the country
othenvise than by their labour.
If vagrancy is punished in our civiiised societies, it cannot be
permitted in Africa either for the natives or other inhabitants '."
VIII. CONCLUSION
64. In the result it is submitted that the relevant provisions of the
Proclamation in no way afford support for the Applicants' charges,
particularly in that-
(a) these provisions apply to al1persons and not only to Natives l;
(6) persons falling within the ambit of these provisions are not
subject to arbilrary arres3; and
(c) it is not correct that powen to make arrest may be exercised by
designated persons al their largely uncontrolleddzscrelion'.
On the contrary, the Proclamation constitutes a positive step to pro-
mote the materiai and moral weil-being and social progress of the
inhabitants of South West Africa.
C. Idle Perronsin Urbanand ProclaimeciAreas
65. The exposition in parvaph 134 read with paragraph 68 of Chap-
ter V of the Memorials 5 is, in certain respects, to be indicated below,
not an accurate and full reflection of the relevant purport of section 26
of the Natives (Urban Areas) Proclamation 1951 which has been
amended by Ordinance No. 25 of 1954 (S.W.A.) '. In terms of the
amended section-in so far as it is relevant-an authorized officermay,
whenever he has reason to believe that any Native within an urban or a
proclaimed area is an idle person within the meaning of paragraph (a)
Vide 1, para. 154 (5). pp. 151-152 and para. ro.rupro.
Ibid., para. 15(1)p. 151 and paras. 49-52, supvn.
' Ibid., para. 15(2)p. 151 and paras. 49-52. supra.
1.pp. 145 and 126-127.
PIOC.NO.56 of 1951 (S.W.A.). sec. 26, in The Lowr of Saulh West A199.o
Vol. XXX. pp. 144-146.
' Ord. No. 25of 1954(S.W.A. )ec. ro.in Thc Lowr of Soulh Wesl AfriCn 1954,
Vol.XXXIII, pp 745-75'
In terms of sec.22 (1).as amended by Ord. 25 of 1954 (S.W.A.),sec.g.PrO-
claiined areasare urban or 0th-areasin which theris alargnumber of Natives
dent) hy notice in the Official Gazette.Governor-General(now the State Presi- COUNTER-MEMORO IAFSOUTH AFRICA 215
of sub-section (I), without warrant arrest that Native and cause hirn to
bebrought before a Native commissioneror magistrate who shd require
the Native to give a good and satisfactory account of himself. If any
Native who has been sorequired to give a good and satisfactory account
of himself fails to do so,the Native commissioneror magistrate enquiring
into the matter shaii declare him to be an idle person '.
66. According to section 26 (1) (a) a Native is an idle person if:
"li) he ishabitudv unemdoved and has no sufficient honest means
,~,of GelihGd; or s ,~
(ii) because of his own misconduct or default (which shaii be taken
to include the squandering of his means by betting, gambhng or
otherwise) he fails to provide for his own support or for that of
any de endant whom he is legaiiy liable to maintain; or
(iii) he is aidicted to drink or drugs, in consequence of which he is
unable ta provide for his own support or is unable or neglects
to provide for the support of any dependant whom he is legaiiy
liable to maintain; or
(iv) he habitually begs for money or goods or induces others to beg
for money or goods on his behalf 2."
67. If a Native commissioner or magistrate declares any Native to
be an idle person he shaii:
"(a) by warrant addressed to any police officer order that such
native be removed hm the urban or proclaimed area and
sent to his home or to a place indicated b such native com-
misioner or magistrate, and that he be détained in custody
pending hisremoval: or
(b) if such native agrees to enter and enters into a contract of
employment with such an employer and for such a period as
that native commissioner or magistrate may approve, order
that such native enter into employment in accordance with
the terms of that contract '." (Itaiics added.)
68. It wiii be noticed that the words-
".. .or has without leave or ottier lawful cause habituaiiy absented
himself durina workina hows from hi$ employer's premis-s or other
place proper for the përformance of his w6rk"
which appear in paragraph 134of Chapter V of the Memorials*, and
which originaiiy formed part of section 26 (1) (h) 5,have fden away.
having been repealed by Ordinance No. 25 of 1954 (S.W.A.) 4 It WU
further be noted that while the Applicants statethat a Native who has
been declared an idle person may be "ordered into employment" ',they
Sec. 26(2).in Th6 Lnws ofSouth Wcst Africn1954, Vol.XXXIII. p. 749. Çince
the Applicants do not refer to the power of a rnagistrate or a native commissioner
to declarea Native an undcsiroblcpemn within the meaning of para. (bj of sec.
26 (1).Respandent does not propase to deal specifically Mth suchpower.
VidaThe Lowr ofSouth West Africa ~954.Vol. XXXIII. p. 745.
Sec. 26 (3).Vids The Lnw~ of South West Afvica 2954,Vol. XXXIII, p. 749.
' 1. p. '45.
' Pvoc. No. 56 of1951 (S.W.A.). sec26 (1)(h), in TheLowr ofSouth WestAfrico
1951. Vol.XXX, p. 144.
vol.OXXXIII. 2PP.f745-751..W.A.). secla.in The Law5 of Smith West Atricu1954.
1,para. 68 and. 134.pp. 127and 145.216 SOUTH WEST AFRICA
do not mention that such an order can be made only if the Native
concerned had previously agreed to enterinto a contract of employment.
69.It may in addition be relevant to point out that in tams of
section 26(5) of the Proclamation, as amended,
"Any native commissioner or magistrate having jurisdiction in
the area in question may suspend the execution of any warrant or
order issued in terms of sub-section (3) for any period and on any
conditions determined by him '."
II. THE SCOPE OF THE PROCLAMATION
70. The provisions of section 26of the Proclamation, which apply
only to Natives in urban and proclaimed areas in the Police Zone,
cover for such Natives largely the same ground as the Vagrancy Pro-
clamationz, which a plies to persons of al1 groups throughout the
Police Zone. In broa f substance the situation in both instances is the
same as regards powers of arrest and enquiry into each case by appfo-
priate authority. Consequently, what has been said abore regarding
these aspects ',appiies here also.
71. The difference in substance between the two Proclamations lies
in the treatment of the vagrant or idle person after he has through due
enquiry been found to be such. Under the Vagrancy Proc!amation he 1s
dealt with as a criminal offender and on conviction he is Iiable to a sen-
tence of imprisonment with or without attendant punishment 2.Under
section 26 of the Natives (Urban Areas) Proclamation, however, the
Native concerned isnot treated as a criminal at au. He is merely declared
to be an idle person ',and the consequences are:
(a) if he is prepared to mend his ways and to agree to enter into
(b) he is removed from the urban or proclaimed area, either to his
home or to some other suitable place amongst his own people '.
72.If the area to which an idle Native has been removed is a reserve
in the Police Zone, and he remains idle there, he can then be forced
to take up em loyment on essential public works '.If. however, such
area is situategin the northern territories. he can be dealt with by his
tribal authorities under Native law and custom.
73. It is true that the Proclamation is so worded that an idle Native
mav be removed either to h~~-hom~ "or to a dace indicated bv . ..lthel
.. .'magistrate or native commissioner" 5,b;t the power cohcernëd is
of a judicial nature. and not intended to be exercised arbitrarily. ln,the
exercise of discretionarv nowers of such a kind. iudicial and auasi-iudiclal
tribunals are in ~outh'Âfrican law enjoined t8 have due Îegard to the
' Vids The Lows of Smith WesAfrico rg54,Vol. XXXIII. p. 749.
Vidc para.8,supra.
' Vide paras. 44-53SU@..
' Vi& para. 67. supra..
Vida paras89. d se+. infra. COUNTER-MEMORXALOF SOUTH AFRXCA 2x7
policy underlying the legislative provision in question ',which in this
.~s~ ~s clearlv to secure the return of the idle Native to his home or to
some other sktable place amongst his own people, wherc that should be
~racticable. Provision had. however. 10be made for contin~encie ivhich
Eouldrender section 26nugatory-e.g., cases in which the home of such
a Native could not be established and he himself refused to supply the
necessary information.
III. THEPURPOS OF THE PROCLAMATION
74. Section 26 of the Natives (Urban Areas) Proclamation should not
be considered in uacuo, as it were, but should be read together with the
other sections of the Proclamation relating to the control of the influx
of Natives into urban and proclaimed areas.
75. In another chapter Respondent wiii deal fully with the basic
considerations of its influx control policy 2. It wilibe shown that the
main consideration underlying this policy has been the necessity to
prevent urban and proclaimed areas from being overcrowded with
unemployed Natives with the inevitable consequences of Lowerwage
rates, slum areas, and the spread of crime. drunkenneçs and disease.
76. It stands to reason that idle persons in thickly populated areas
create problems which tend towards the growth of slum conditions. and
thus impede the task of the authorities to provide proper housing
facilities for the inhabitants of such areas. As eariy as1924 the problem
of idle Natives in urban areas was emphasized in the annual report on
South West Africa for that year. a relevant extract from which reads
as foiiows:
"Experience has shown that thereis a strong tendency for natives,
bath men and women, to drift into urban locations where in many
cases they neither want nor seek employment. As they simply !oaf
and do not earn money honestly they resort to iiiicit hquor selling,
prostitution, gambling and other means to obtain it and generally
degenerate '."
77. In Respondent's view it wouid bemost unfair to the Law-abiding
Native inhabitants of urban and proclaimed areas, and to Natives who
wish to enter such areas for the purpose of procu~g employment, to
aliow idle Natives to remain in these areas unless they are prepared to
mend their ways.
78. As already pointed out ',idle Natives are not under the Proclama-
tion treated as criminals, since punishment as for a crimlnal offence
couid on the one hand be inappropriate as far as partice offenders
are concerned, and would on the other hand not be as effective a protec-
tion for others in these areas as their removal to their mral homes where
the discipline of rmerve regulations andlor traditional tribal systems
serve to minimize the hm they could occasion to others. Thus it d
1Reference may be made. forexample, to the judgment of ChiJ Justice Watsr-
meyer in VaMji Pw.4 Hdlh Cannrilfm ilad 01b8rv. Wilson and Olhcrs1950
(1)S.A. L.R.447.especidy atp. 461.
' U.G. 33-1925,Ipara.98.p. 27.8nfra.
' Vidcpara.71, sup*o.218 SOUTH WEST AFRICA
be evident that the special treatment of such Natives by the provisions
of this Proclamation. as distinct from the Vamancv Proclamation. in
the first place operates in their favour in renaering unnecessary their
treatment as criminal offenders. Secondly, this special treatment is, by
reason of the basic factual situation. appropriate for Natives only. For
it involves removal from an area in which their uresence serves no
purpose in the absence of wiüingness to \i,ork. to a place which is their
reai home. These considerationsdo not apply to \\'hite orColoured persons
whose only real home may be in urbanand proclaimed areas. -
IV. LEGISLATIO NN OTHER COUNTRIES
,,. R~ ~ ~nce has alre-dv b,en~ ~de to vaerancv laws of other
countries >. In the present context Kesponclent w~lies tu point out that
Ie~slation in terms of which idle persuns may be removed from urban
aÏeas, instead of being treated ai criminais,-is not peculiar to South
West Africa.
80. In terms of the Voluntarüy Unemployed Persons (Provision of
Employment) Ordinance, 1949. of Kenya, ail unexempted unemployed
persons within any declared area have to report to a labour exchange
within such area within seven days of arrivin in such area, or within
seven days of becoming unemployed therein 2.% hould such unemployed
person then refuse to accept an offer of employment, and should the
officer in charge of the labour exchange be of the opinion that he is a
voluntarily unemployed person-defined in section z as an unemployed
person who is not genuinely seeking employment.3-such officer shall
order such unemployed person to report to the committee for the de-
clared area in which such labour exchange is situated '.If he fails to
do so, he is liable to arrest without a warrant5. Where any adult male
appears, or is brought, before the committee, he may be required to
show cause why he should not be declared to be a voluntarily unem-
ployed person 6. If he faiis to do so, the committee may declare him to
be a voluntarily unemployed erson 7, and if he has a regular place of
residence outside the declare area, and if he is not domiciled within
such area, and if he has refused or failed to engage in employment
approved by the committee, the committee may then direct him to be
repatnated to his regular place of residence and order him to remain
outside the particular prescribed area or any other such area B.
81.During 19501,382Natives in Nairobi were either registered as
voluntarily unemployed rsons or arrested by the police and taken
before the committee. 0Khis number 3zr were either repatriated or
permitted to retum to their homes 9.
' Vi& paras. 24-41.supla.
Ovd. No. 39 of 1949(Kenya) sec. 6in Colony and ProlccfmaU ot Kenya. Ordi-
noncasmamd during theynrr r949.Vol. XXVIII (New %"es). p.169.
' ~bid..sec. 7p.170..
' Ibid.. sec8,p. 170.
Ibid.. secII.p.170
' Ibid.. sec13. p. 17r
' ad.. seç.14. p. 17'.
Vide Ra#& offhaAd Hoc Commiflcd mi Faced Labour E.cosocO.R. S,ixlunU
SCSS. .%P.NO. 13. P.541. COUNTER-MEMOR OA LOUTH AFRICA zlg
82. Regulation No. 24 of 1957 applicable to the Tmst Territory of
New Guinea provides that-
"A native who k absent from his tribal area and is without
adequate means of support, may ... be ordered by a Court for
Native Affairs to return to his tribal area. Failure to comply with
an order. entails a penalty of three months' imprisonment. ... A
similar provision exists in Papu'."
83. As regards Liberia, J. Gus. Liebenow. associate professor of
Government at Indiana University, has commented as foiiows:
"The drift of tribal people to Monrovia and other urban centres
has been met by the city courts, which have taken drastic steps to
remove tribal vagrants to the hinterlandZ."
84, In paragraph 135 of chapter V of the Memorialç the Applicants
refer to Proclamation No. 271of 1959(S.A.)in terms of which the South
African Prisons Act, 1959 *.was made applicable to South West Africa.
By then alleging that under sectio20 of the Act-
I'tHeMinister of Justice of the Union 'may by notice in the Gazette,
establish prisons... (e)of the type known aç farm colonies fi
which persons declared to be idle persons rnay besent to learn habits
of industryand labour' 5",
the Applicants create the impression that persons declared in South
West Africa to be idle persons under section 26 of the Natives (Urban
Areas) Proclamation, 1951, may be sent to fm colonies. This impres-
sion is incorrect, as will appear. although Respondent must confess to
being unable to see anythin wrong in the idea of ,sendi?g conhed
idle persons to institutions%ere they can learn habits of indust~y and
labour.
85. Section 20 of the South African Prisons Act in fact empowers
the Minister of-Tusticeto establish farm colonies-
"to which pcrsons declared to be ide persoiisiterms of thNatives
(U~ban Areas) Conroiidatio~ zct.1945(Act Ko. 25 of 1945).may be
sent tolem habits of industry and labour 6". (Italics added.)
86. Since the Natives (Urban heas) Consolidation Act, 1945, do-
not apply to South West Africa, it foiiowsthat idle persons in the Tem-
tory-whether declared to be such under section 26 of the Nativffi
prban Areas) Proclamation, 1951, or under any othef statutory pan-
sion applicable to the Territory-are not included in the provisions
relative to fann colonie7.
Vide U.N. Yeorbook on H-naRighls /or 1957(1959p.271.
CarterG. M. (ed.Apicon Ona-PartySlnks(1962)p. 334.
1, P. 145.
ActNo. 8 of1959,inSfahrfcsofihs Unia of SoutAfnco 1959,Part 1, Nas.
1-60 ,p.16-106.
'1;pp. 145-146.
P. 34.t No. 8 of 195sec.0.inSf<1lssof ths Union SouthAfricaxg59Pd 1.
' Inanyevent nafarm colonyha ss yetbeenestabhùed inSouthWest Afiic~ 220 SOUTH WEST AFRXCA
VI. CONCLUSION
87. In the result it is submitted that the provisions of section 26 of
the Natives (Urban Areas) Proclamation, 1951,in no way afford support
forthe Appiicants' charge since:
(a) although these provisions apply to Natives only, the distinction is
one operating for the benefit of the Natives concemed, and forthe
reasons indicated above ',the provisions are ap..op-iate to Natives
only ;
(b) persons faiiing within the ambit of tliese provisions are not subject
to arbifrary arrest, nor may the pwers to make arrests be exercised
bv<dcsie-ated Dersons al lktr lar-,lv unconiroll~d disnetion Z.
88. As a result of the deterrent effect of section 26 of the Proclama-
tion, it has not been necessary to apply its provisions at aU in recent
years.
D. IdlePersons in NativR eesetves
89. The aliegations in paragraph 131 of Chapter V of the Memonals 3
are based upon regulation 27(bis) of the regulations issued und.r sec-
tion 20 of the Native Administration Proclamation, 1922 '.
go. As part of a gcneral scheme for dealing constmctivel with ide
Katives so as to obviate sending them to gaol as crimin 2 offenders.
the rcgulation empowcrs a superintendent of a Kative resen,e in the
Polisr:Zone who. alter investigation. is sntisfied that a male residcnt of
such a reserve has no rewlar and sufficient lawful mcans of support. or
leads an ide existence,to order such pemn to take up empioyment
on essential public works or services at a sufficient wage to be deter-
mined by the superintendent.
gr. It is submitted that no objection can be raised against the habi-
tualiy idle and unemployed resident of a Native reserve within the
Police Zone being compeUed to take up employment in lieu of being
sentenced as a mminal offender to imprisonment under theprovisions
of the Vamancv Proclamation. This is in his own interests as weli as
in the interest; of his community, which require the constmct!on of
essential public works such as the erection of fences, the building of
dams and-roads, etc.
92. Regulation 27(bis) foms part of the regulations ' pertaining to
Native reserves within the Police Zone, and thus inevitably apphes to
Natives only. Idle White and Coloured persons are in a sense in a worse
position than idle Natives in such reserves. since they can only be dealt
with as criminal offenders under the Vagrancy Prodamation, 1920 6.
' Vi& para.78.supra.
Para. 70read with paras. 44-53. rupa; anvih 1,para.154 (1)and (2).p. 151.
VI. P. 144.
para. 70 of Chap. V of the Mernoria.as added hy G.N. No. izr of 195(S.W.A.).n
in Tha Lawr of Soufh Wcrl Africor9p. Vol.XXXI, pp. 834-836.
Issued under sec.20 of Pvoc. No.II of1922 (S.W.A.). by vimie of G.N.NO.
68 of I924 (S.W.A. ).The Law5 of Soufh WcrfAfrico 1924.pp. 57-63.
Vida para.8.rufirn. COUNTER-MEMORIAL OF SOKJTHAFRlCA 221
93. It seems. however. as though Applicants' attack against the regu-
lation 1s. in relation to security of the person, more specifically con-
cerned with the discretionary powers conferred upon the superintendent.
It will be observed that these powers,are not unlirnited or uncontrolled.
The power to make an order as envisaged is a quasi-judicial one, and
must be exercised in a bona fide manner, only after the matter has been
investigated and the evidence has satisfied the superintendent that the
"... resident of a Reserve has no regular and sufficient lawful means of
support, or leads an idle existence. .." 1.At this investigation the resi-
dent mat be eiven a fair hearine and all the niles of natural iustice
must bc observed. If the superintc&Jent should act irregularly. e.6 .f lie
should act arbitrarily, or without (luecnquiry. or if lieshould beactuatcd
by malice or ulterioi motives, his order may, under cornmon law, be set
aside on review by the Supreme Court
94. In addition. regulation 33 expressly provides that:
"Every resident in a Reserve shaii have the right ta appeal to the
Magistrate against any .. . order of the Superintendent ... and
after due inquiry the Magistrate shall make such order as he may
deem fit '."
Applicants make no mention of regulation 33. although regulation
-(bis). (2). which is cited in part by Applicants'. expressly refers,
rntn aba. to "anv order of the Maeistrate on a~ueal".
In thecircum~tances the charge of "arbitraÎ$' and "largely uncon-
trolled", in relation ta the superintendent's powers in question, is not
understood.
95. It may further be pointed out that the work to be done in terms
of an order made by the superintendent, is work primarily in the reserve
itself 5-and not for the benefit of the superintendent or of any White
person or White community. In practice action is never taken under
the regulation without the headman and the members of the Reserve
Board first being consulted by the superintendent
96. In the result the charge that the Respondent has in this respect
"given consideration solely to the convenience or advantage of the
Mandatory government and of the 'European' citizens and residents of
the Territory" '.will be seen ta be as unwarranted as that pertaining
to "arbitrary arrest" and "largely uncontrolled" discretion
Regulation z7(bis) (1).G.N. No.,rzr of 1952 (S.W.A.). in Thc Lnws a/ South
West Alrica 1951.Vol. XXXI. p. 834.
Corpordim(S.A.).GoLfd.,1928(A.D.dlzo.fat p.236;Hlagwnns v.) RmuTheand vonGnss.
N.O.. 1948 (1)S.A. L.R. 62.
G.N. No. 68 of 1924 (S.W.A. i).The Loiris oSoulh West Afri~a 19a4.p.62.
+ 1. Chap. V, paras.70 and r3r, pp. 127-128 and 144.
' Although the superintendent is empowered to arder an idle person to take up
employment on public worlïtand services outside the rewrvwhviously in order
to provide forc- in which no suehemployment -y besvaüable iothe reoerve
at a given time-Respondent is not aaare that this power haseverbeen exercised.
The mere existence of the regulation has helped materially to eliminate idleness
in the reservesand it has lately not been necesswyto apply its provisions.
' 1,Chap. V. para. 154 (5). p. 151.
' Ibid.. para. 154(1)and (2).p.151. 222 SOUTH \VEST AFRlCA
E. Undesirable Persons in Native Resewes
97. In parngraph 132 of Chapter V of the Memorialsl reference is
made to regulation 27 of the regulstions issued under the Native Ad-
ministration I'roclamntio~i,1922 2. 'Shisregulation reads, inter alia:
"ln the intcreslsof orderand eoodeouernnientthe Ma~istrate with
tlie :ippro\,;il of the r\diiiiiiist&t5rma). order any Ïesident of a
Keser\,cor pcrson ilicrein \i.lioshnll in tlie opinion ofsuch hlagistrate
bc :in undcsirnt~lenersoii to 1rat.c siicli I(cs~r\~ewithia time to be
specificd in such Ôrder; provided that an opportunity shall first
liavc been given to sucli person to show cause why lie should not be
so ordercd to leave '." (Italics added.)
98.For reasons that will become apparent, the regulation does not
appl to the Kaokoveld Native Reserve 5,the Ovamboland Reserve.'.
the ?kavango Native Territory the Zessfontein Keserve the Berseba
Hottentot Territory 6 aiid the Bondcls Reserve 6, and consequently
aiiectsonly a minor percentage of Katives living in reserves, i.e., in some
reserves in the Police Zone.
QQ. The creation of further reserves after the assum~tion of the Man-
dai< was part of'the task undertaken by ~es~ondent'of rehabilitating
the scattered remnants of tlie various Native tribes 7 and settling them
under the guidance and supervision of trained experts who wodd help
them to reorganize their dismpted tribal life.
100. Respondent believed that the programme of rehabilitationcould
best be carried out, interalia, byrestoring tribalauthorityin the reserves.
It was foreseen, however, that this would be no easy matter because:
(a) tribal control had in some instances broken do& completely as a
result of the events described above: and
(b) it was not always practicaily possible to confine occupation of a
particular reserve to members of a particular Native grou- on-y.
101. ExDerience showed that. es~eciallv in the circumstances iust
described. ihere could be who by 'persistent action attempi to
thwart, or induce others to thwart, constmctive steps to develop the
reserves, sometimes for no other reason than that suchmeasures would
be foreign to unprogressive aspects of their previous mode of living.
Since the peace in a particular area might be senously threatened by
the activities of one or more mischief-makers. it was considerednecessarv
to provide for tlieir removal. The regulation \vasconsequently introducea
to promote order and good govemment in certain rcserves in which
there would initiaily be littlc social cohesion and discipline.
' 1. Chap. V.. para. 154 (5). p. 145.
Proc. No. 11 ofigzz(Ç.W.A.).
' Now the Minister of Bantu Administration and Dcvelopment; oi& Act No.
56 of 1954 and Proc. No. rr9 of 1958 (S.A.).
' G.N. No. 68 of 1924 (Ç.W.A.).inThe Laws of Soulh West Atrica 1924, p. 61.
' Vide G.N. No. 29 of 1941 (S.W.A.), in The Laws of Swlh West Airicm 1942.
vol. XX.PP. 374. 376.
D.458.& G.N. NO. 238 of 1930 (S.W.A.).inThe Lnws of South West A/Tica 1930.
- >'Yi& para. 13. supra.224 SOUTH WEST AFIIICA
to him under natiw customar) la\%,for occup:ition, exccpt
aftcr fiillinquir I>y,aiid by ordcr of, tlie Cuvernor.
lbl It sh:ill bélawfU1for a Sumrior h'atii,c Authority. without
' reference to the Governor aRd for good cause show;, to order
the removal of a native from any kraal or land assigned to
him under native customary law for occupation which is
within the area of jurisdiction of such Superior Native
Authority :
Provided that
(i) no such order of removal shall take effect until full inquiry
has been made and the order or removal has been confirmed
by the District Commissioner of the District within which
the kraal or land is situate:
(ii) any person aggrieved by such order of removal may appeal
to the Provincial Commissionerof the Province within which
tlie kraal or land issituate.
(c) Notwithstanding the provisions of sub-paragraphs (a) and rb)
of this paragraph, where a native is to be removed from a
Native Reserve into land not forming part of a Native Reserve,
otlierwise than in execution of the process of a competent
Court, tlie approval of the Secretary of State shall first be
obtained '."
107. As a result of the better group relations and tribal discipline
which have come into being under Kespondent's administration, and of
the deterrent effect of the replation, it has not been found necessary
to make use of its provisions for a considerable period of time.
108. Although reference was made in the 1924 annual report to the
regulations issned under section 20 of Proclamation No. II of 1922
(S.W.A.) Z, the Permanent Mandates Commission never nbjected to
Regulation 27 or, for that matter, to any of the said regulations.
109. Having regard to the purpose and limits of the regulation, the
safeguards against abuse and the practical mode of application, as dealt
with above, it will be evident that the Applicants' charges contained in
paragraph 154 (1) and (2) of Chapter V of the Memorials ' are in this
respect also unfounded: the power and its exercise are neither "arbitrary"
nor "largely uncontrolled". And since the replation was. for reasons
explained, rendered applicable only to cerfain Native reserves in the
Police Zone, and directed to specificcircumstances in those reserves and
to the well-being of their inhabitants. there is no substance in the allega-
tion that in enacting the replation Respondent gave consideration solely
to "the convenience or advantage of the Mandatory government and of
the 'European' citizens and residents of the Temtory "'.
' The Nwlhrrn Rhoderio Orders in Council rgaq-1960. in Appcndix 2 IoIhcLaws.
r961 Edition. pp. 15-16. The above-quoted provisions were revoked by sec.3 Of
theNwfkm Rhodcsin (Conrlilufia) Ov&r in Council, r962. in Awcndix 3 IOIh
Lnwr, 1963 Edition, pp. 4-5; vidc The Lows of NmfhehcrnRho&sio, Vol. VIII.
U.G. 33-1925, para IOO.p. 27.
' 1,p. 151.
' Ibid.. para. 154(5)p. 151. COUNTER-MEMORIAL OF SOUTH AFRICA 225
F. The Deportation of Undesirable Persons fromthe Temtory
110. In aragraph 136 of Chapter V of the Memorials 'reference is
made to tKe provisions of section I (1) of the Undesirables Kernoval
Proclamation, 19-20.This sub-section, as amended,reads:
"-- . .-- .e lawful for the Administrator-
(a) if he is satisfied that any person within this Territory is d.anger-
ous to the peace, order or good govemment of the territory if he
rernain therein; or
,-, -- ----- --tisfied that anv Derson has directlv or indirectlv in-
flicted or threatened to ihfiict upon any person any harm..hurt
or loss. whether to ius person, property, reputation or feelings,
or has directly or indirëctly doie or tkeatëned to do anythhg
to the disadvantage of any penon, with the object of compelling
or inducing that pexson or any other, person to abstain from
doing any act which he has a legal right to do or to do any
act which he has a legal right to abstain from doing. or because
that person or any other person has abstained from doing or
has done any such-act; or
(c) if he is satisfied that any person who is not a British subject has
engaged actively in political propaganda in the Territory; or
(d) on the convictioii of any person of any offence under section
I~iree,fouror fiveof the South West Africa AffairsProclamation,
1937:
to direct the Secretary for the Territory to issue an order to such
nerson to leave the Territorv within such time after service of such
:;der as may be stated theréin.
Any such person found within the Territory after the expiry of
such time shall be guilty of an offenceand shall upon conviction be
liable to imprisonment with or without hard labour for a period
not exceedingtwelve months, and shall further be liable at or before
the expiry of such imprisonment to be rernoved from the Territory
by warrant under the hand of the Secretary for the Temtory Z."
III. Iwterms of section 3 of Ordinance No. 4 of 1955 (S.W.A.) '.the
provisions of the Proclamation are administered by the Minister for
Native Affairs' in respect of al1 persons in Native reserves and all
Natives outside the Reserves, and in these casesreference tothe Admin-
istrator and the Secretary for the Territory must be read as being to
the Minister and Secretary for Native Affairs respectively. As regards
pcrsons other than Natives outside the Reserves the Proclamation is
still administered by the Administrator and the Secretary for the Tem-
tory. The Proclamation therefore applies to any person falling within
its ambit, irrespective of race or colow.
xrz. If regard be had to the principleç of municipal and international
' 1.p. 146.
Proc. No. 50 of1920 (S.W.A.). sec. 1 (1).in The Lowr of South Wtsf Africo
19r5-19~2. pp. 424-426. asamended byPloc. No. 5r ofi937(S.A.), sec.7. in Tb
Lawrof Soulh Wasf Afriçn 1937. Vol.XVI. p. 66.
' Ord. No. 4 of 1955 (S.W.A.). sec.3, inTha Lawr O/ Swlh Wei Africa 1955.
vo*.NowXIdoignatd30.thcMinister of Bantu Administration and Development.226 SOUTH WEST AFRICA
la!\ rhnt n Stntc <:üiiiiot,in gener:il. cxpel ils own natiorials'; to thc?fact
tli;~ttlivIJr~~i.l;iniatiolias in i~r;icticene\.er been enforced a~airist pet-
sons other than foreigners, and to the surrounding circumstinces indi-
cated below, especially with reference to the 1937amendment of the
Proclamation 2, it is clear that it was never intended that the Proclama-
tion should be applicable to permanent inhabitants of the Territory.
113. Since the terms of the Mandate are concerned only with the in-
terests of the inhabitants of the Tenitory, it is really unnecessary to
explain the background to and the reasons for the enactment of the
Proclamation in its present form. In view, however, of Applicants'
references to the legislative history, Respondent will briefly explain the
position in tliat regard.
114. Before the 1937amendment the Proclamation made provision
for the deportation of a person on one ground only. viz., if such person
". .. is dangerous to the peace, order or good govemment of the terri-
tory if lieremain therein . .." 3.
115. The promotion of the material and moral well-being and the
social progress of the inhabitants of the Territory re uired that they
should be protected against foreign agitators and troubqe-makers. Most,
if not all, civilized countries have similar statutory provisions which
authorize officiais to deport foreigners. So, e.g., the Secretary of State
in the United Kingdom may make a deportation order if he "deems it
to be conducive to the public good" to do so '.
116. The amendment of the Proclamation in 1937 5 was induced by
the serious situation created by German agitators in the Territory in
the circumstances prevailing shortly prior to the Second World War.
The further grounds for deportation contained in section (1)(b), (c) and
(d) were then added especiallywith a viewto meeting this new situation.
117. A description of the situation in question was given in para-
graphs 106 and 108of the annual report on South West Africa for 1939 . ~ '.
Acording to the former paragraphthe Government-
".. .has been brought under the impression that a considerable part
of the German section of the population, whether Union national! or
not, is, either by conviction or through moral pressure, intimidation
or infringements upon the liberty of the individual, grouped in a
separate political organization in which those who wish to use it as
a means of creating and maintaining a state of affairs favourable
to a retnm of the Territory to Germany hold swa The right of
free speechhas almost ceased to List among[s]t the 'rman popula-
tion and every member of the organization is bound to fali into
line with the hints or orders of the head of the organization on pain
of moral or material injury. The root principles of the organization
to which each member must subscribe are thus in direct conflict
Vide Weis. P.. Nationaliiy and Stntclcrsness in International Law (1956). p.50.
Vids paras.116 and Fr". infra.
3Proc, No. -o of 1-20 \S.W.A.,. secI .~,.a,. in The Laws ofSoufh Wcsf Africa
1915-Ig22, p. 424.
' Sec.12 (6) (c) of TheAliens OrderNo. 448 of1920, quoted by Fraser, C. F..
Conlrol of Aliens in Ihc British Commonwealthof Nolias (1940). App. 4. p. 254.
BY Proc. No. sr ofIQ37 1S.A.). COUNTER-MEMORIAL OF SOUTH AFRlCA 227
with the democratic principles on which the participation of the
population in the administration of the hlandated Territory rests.
Persons who are not Union nationals ané whodo not mish 10become
such, have a preponderant influence in shaping the policy of the
organization ... Union nationals, therefore. are bound to exercise
political rights. accorded to them as Union nationals. in conformit
with the instructions of analien,who himself has riosuch rights and:
moreover, owes amplicil obedienceto the Head of B foreign State'."
(Italicç added.)
118. The amendments were therefore aimed at meeting the excep-
tional cïrcumstances which existed in the Territory immedFtely before
and during the Second World War, when foreign subversive elcments
among the German population of the Territory were working for the
return of the Temtory to Cermany.
1x9. In paragraphs 136 and 137 of Chapter V of the Memorials
the Applicants object to the "unbridled discretion" and the "uncon-
trolied scope" of the power ofthe Administrator under the Proclamation.
In this regard reference is,made to section I (1) (3). as amended by
section 7 (2) of Proclamation No. 51of 1937 (S.A.), which provides:
"No court shall have jurisdiction in respect of any direction issued by
the Administrator or in respect of any order ... '"
120. Prior to the I 37amendment, section I (1) (3) merely provided
that "No,,appeal shal 3 l.eto any court in respect of any [deportation]
order. .. The position then was that the Administrator could act only
if it was shown to his satisfaction that there were reasonable grounds
for believing that a particular person was dangerous to the peace, order
or good govemment of the Temtory '.
121. Despite the fact that there was no appeal to the courts, the deci-
sion of the Administrator could be set aside on review by the Supreme
Court if there were no reasonable grounds for believing that the person
concerned endangered the peace or ifthe Administrator was actuated
by ulterior motives. The result was that any person affectecl could
virtually force the Administrator to disclose in court the grounds on
which he had based his decisionand the source thereof '.The inhabitants,
however, were living in fear on account of intimidation by foreign
subversive elements, and it was impossible to obtain information about
the trouble-makers unless there was a guarantee that the identity of the
informants would not be disclosed. &Ioreover,this movcment could best
be opposed if the information concerning it was not disclosed. It was
with these considerations in view that the provisions of the Proclamation
were amended as abov~ ~ndicated.
122. It should bepointed out. hou.e\.er, that although the jurisdiction
of the courts is restricted. it is by no mens completely ousted. Notwith-
standing the wording of section I (1) (3) of the Proc1am:ition the coiirts
' U.G. 30-1940, pp. 23-24.
1,p. i46.
' Pmc. No. 50 of 1920(S.W.A.), secI (1)(3). in ThLliuisofSouih WcstAfka
1915-1922. p.425, aamended by Ploc. No. gr of1937(S.A.)sec.7 ('2in The Lnwr
O/ Swlh West Africa 1937, VolXVI. p. 66.
' Sec. Ikfore the ,937 amendment.
Via. e.g.Kelbrmonn v.Minis(cr oftheInIrrior1945 T.P.D. 179. WUNTER-MEMORTAL OF SOUTH AFRlCA 229
H. Conclusion
127. In the preceding sections Respondent has endeavoured to indi-
cate the historical, ethnological and socio-economic factors which gave
rise to the provisions complained about in aragraphs 130 ta ,137 of
Chapter V of the Memorials. It is submitte a that when the said pro-
visions are viewed against this background, they afford no support
whatsoever for the charges that Respondent legislated with the
intention ofoppressingor subjugating a section of the population of the
T--------, 1-
128. As has been shown 2. the relevant provisions of the Vagrancy
Proclamation, 1920 3, and the Undesirables Removal Proclamation,
1920 ', apply to al1persons falling within their ambit,,imespective ofrace
or colour, while the provisionsof the latter Proclamation moreover apply
to foreigners only =. Regulations 27(bis) and 27' of the regulations
issued under section 20 of Proclamation No. II of xgzz (S.W.A.) pertain
only to certain Native reserves in the Police Zone,because of circumstan-
ces peculiar to them and thus inevitably apply to Natives only, while
section 26 of the Natives (Urban Areas) Proclamation9 is specihcally
directed towards circumstancei ~eculiar to Natives in urban and pro-
claimed areas lo.and thus ûgain'inevitably applies to Natives only. In
ali these circumstan<:çsofpro\,isiunsapplying ta Sati\'t.s only. the persans
and communities ~riinarilv bencfitine tli-refrom arc Natives ".
129. It is consequently submitted that there is no substance in the
Applicants' charges that in enacting these provisions Respondent-
". ..has given consideration solely to the convenience or advantage
of the Maridatory goi.erriment and of the 'European' citizcns and
residents of the Temtory '2".
130. As re ards the Applicants' aliegations contained in paragraphs
154 (1) and 72) of Chapter V of the Memorials ", only the Vagrancy
Proclamation, 1920, and section 26 of the Natives (Urban Areas) Pro-
clamation, 1951,conferpowersof arrest ", and as has been pointed outi5,
persons falling within the ambit of these laws are not subject to arb-rary
arrest. Moreover. in none of the instances dealt with above can it be
said that any of the powers concemed are exercisable at the largely
uncontrolleddiscretion of the designated persons.
'1Vide paras.IO5andP.i1.supra.
' Vide para. 8 supra,and 1,para. 130.p. 144.
' Vidc para.Ir0 supra, and 1,paras. 136x37, p. 146.
' Vids para. irz. supra.
Vidc para. 89, suploand 1. para. 131.p. 144.
' Vida para. 97, supra. and1.para. 132.p. 145.
' Vidc paras. 92 and 98, supra.
* Vidc para. 65, supra, and1,para. 134.p. 145.
"O Vi& particvlarly paras. 7'-72 74-78,95 and99-101, supra.
'* 1.para. 154 (5). p. 151.
'' Ibid., p. 151.
'' AS aheady stated (para. 126, supva). &pondent wiUdeal in another Chapter
with sec.IO of Ploc. Ko.i iof 1922 (S.W.A.).
Via paras. 49-53 and 70. supra.230 SOUTH WEST .=RICA
131. In the reçultit is submittedthat the Applicants'chargesrelating
to "Securityof the Person"areunfounded.On the contrarythe provi-
sions onwhichthe Applicantsrely, demonstrateRespondent'sbona Be
endeavoursta promote the material and moral weli-being and 'social
progressof ail the inhabitantsof the Temtory. CHAPTER III
RIGHTS OF RESIDENCE
I. The allegations contained in paragraphs 138to 145 of Chapter V of
the Memonals 'are summarized by the Applicants as foiiows:
" 'Natives' are not aUowed even a faint approximation of the
degree of freedom of choice pennitted to 'Europeans' conceming
where they may reside within the Temtory. On the contrary,
'Natives' are conhed within sharply defined areas and places under
prescribed conditions. The pattern of restrictions upon the residence
of 'Natives' is uniformly arbitras. and discriminatory; it 1s con-
ceived and executed to give inrreasingly intensive effect to the
dominating principle of aParth6id 2."
Applicants seek to substantiate these aliegations by reference to cer-
tain laws relating to rights of residence in (i)the Native reserves. (ü)the
Police Zone generaiiy, and (iii) urban areas in the Police Zone.
z. After dealing with the said laws, Applicants conclude:
"In sum, in the entire complex of. .. tight restrictions upon ...
[the]. .. residence. .. [of Natives]. . ., the Mandatory haç given
consideration solelyto theconvenienceoradvantageof theMandatory
government and of the 'European' citizens and residents of the Ter-
ntory. The Mandatory has uniformly faiied to promote the material
and moral weU-being,the social progress and the development of
overwhelmingly the larger part of the inhabitants of the Temtory of
South West Africa in terms of. .. their rights and opprtunities of
residence.. .On the contrary, by law and by practice, the Man-
datory has foliowed a systematic course of positive action which
thwarts the weli-being. inhibits the social progress and frustrates
the development of the great majonty of the population of the
Temtory in vital and fundamental aspects of their iives 3."
3. Respondent does not dispute that it applies a policy involving
differentiation between the various population groups of the Temtory
in relation,inter dia, ta their rights of residence. Respondent emphati-
cally denies, however. that this policy is "arbitary" or "discriminatory"
within the meaning of the Memorials; that in applying this policy it bas
given consideration solely to its own convenienceor advantageor tothat
of the European citizens and residents of theTemtory: thatit has failed
to promote the materiai and moral weU-being, the mial progress and
the development of the Native inhabitants of the Temtory in terms of
their nghts and op ortunities of residence; and denies especiaiiy that it
has in relation to tge rights of residence of the Native inhabitants "fol-
lowed a systematic course of positive action" which "thwarts [theu]
1 1. pp146-148.
Ibid.. par154 (31.P.151.
3 Ibid.. para154(5).pp 151-15'2. 232 SOUTH WEST AFRICA
well-being, inhibits [their] social progress and fmtrates[their] deveiop
ment". On the contrary, each of the laws referred to by the Applicants
was enacted in the light of historical and socio-economiccircumst+nces
to meet a particular situation that was either found in the Temtory by
Respondent when it assumed the Mandate, or that arose subsequently.
4. The laws on which the Applicants rely all fd within the framework
of Respondent's policy of making provisionfor the separate development
of the various population groups, conceived by Respondent as the best
and probably the only effective method of achievin the ideals of the
Mandate in the peculiar circumstances of South VJest Africa. Before
dealing with the specific laws objected to, it will therefore be necessary
to outline this policy with reference to the rights of residence of the
various groups in the Temtory.
B. Respondent'sReservePolicy
5. History shows that peoples or groups who share common cultural
and other interests are inclined to group themselves together and, in
doing so. to confine themselves to an area where the individual feels
himself secure amongst his fellow men.
In this respect the history of South West Africa constitutes no excep-
tion. For many years before Respondent assumed the Mandate, each
of the various population ~oups had been living-or was at least try-
clashes between some of the groups, one of the main causes of whichrous
was the encroachment by one group on what another group regarded
as its territorial area. When Respondent assumed the Mandate, it was
consequently only logical ta reserve. as far as practicable, to the various
groups areas in which their members could live, to the exclusion of
members of other groups.
6. In the northern areas beyond the Police Zone the reserves accorded
with the areas traditionaliy, and more or less undisturbedly. occupied
by the groups concerned since long before the establishment of European
control over South West Africa. By and large, the said areas, owing to
relatively favonrable natural conditions ', were also sufficient for the
residential and subsistence needs of these groups.
7. In the Police Zone different considerations applied. Even before
the coming of the White man there had been no clear-cut division of
land for occupation by the various groups. Most of them led a nomadic
existence.Moreover, factions of the Herero and the Nama were almost
continudy involved in clashes as a resuit of conficting daims to occupa-
tion of land 2.
During the German occupation Mher disintegration foliowed as a
result of the 1904-1907wars, leaving a scattered Herero population of
about 20,000. and not much less scattered factions of Nama, totalling
about 15,000 3.
' Vide Book III. Chap. 1. para. 33, of this Gunter-Mernorial.
' Ibid. Chap. III, paras. 84-85.ter-Mernorial. COUNTER-MEMORIALOF SOUTH AFRICA 233
throueh ~urchase, occupation of vacant land and, in some instances,ans
punitrve 'confiscations. 'For reasons already explained, Respondent's
policy involved the encouragement of further settlement of White perrons
in the Police Zone, with a viewparticularly to the economicdevelopment
of the Territory asa whole. The indigenous population would benefit
from such development in two respects. In the fmt place, they would
have the opportunjty of obtaining remunerative employment in the
White man'smonetary economy,and thusalsogradually becomeeducated
to modern economic practices and standards. In the second place. the
about by the enterpnse of the European population group, could in the
long run provide funds forthe further uplift, development and advance-
ment of the indigenous peoples and their temtories to standards which
would othenvise not have been possible.
g. By reason of these considerations the reserves, initiallset aside
in the Police Zone. were not consolidated homelands for the various
indigenous groups. but rather separate areas, somelarge and some smaü.
intended ~nmarilvfor sections ofthevarious -ouD-that were conm- -ted
in a parti'cular repion.
In the rest of the Police Zone White enterprise was to be permitted
and, indeed, encouraged, with the contem lation that large numbers of
the indigenous people would be employecfin the economy thus estab-
near their places of employment.e duration of their employment. at or
ro. In this scheme of things, portions of the Police Zone outside the
of the White group enjoy certain priorityan hts. especially with regard
to rights of residence inban areas, This oes not com rise the whole
area of the Police Zone outside the non-White resesves.%, ge portions.
more or less desert areas, have been set aside as Diamond Areas, to
which access is forbidden to evervone Save those concerned with the
diamond industry. Other large traits are unaiienated state lands whch
have as yzt not been allocated for occupation by aiiy population group.
An irn~ortant distinction between the area occupied bv the White
nile White persons are not aiiowed to enter a non-White reserveeneral
the purpose of performing activities for their,own gain-the protection
given to the residents of the reserves is in this respect absolute. In the
case of the area occupied by the White group, large numbers of non-
Whites are in such areafor remunerative employment. and are accommo-
dated in itfor such purpose, This does not, however, detract from the
fundamental situation that Respondent has treated various parts of the
Temtory as areas in which particular population groups are to have
certain pnority nghts of use and occupation, and that itspolic in that
si ers tobe a necessity inherent in the socio-economic situation in the
Temtory; and, far from being "discriminator.y". attempts at achieving
a fair balance between the legitimate aspirations of the various groups.
II. Although Respondent's policy of reserves was conceived and ap
ptied with reference to circumstances prevailing in South West Afnca.
it was. at the same time, influenced by Respondent's expenence of234 SOUTH WEST AFRICA
govemment and administration of different population groups in South
Africa for more than a century. Respondent therefore proposes first
to deal briefly with the development of the reserve policy in South
Africa.
II. RESERWS IN SOUTH AFRICA
12. The reservation of Native areas in South Africa emerged as a
result of wars, treatiesand other historical developments. At a very early
stage it was reaiized by the then governing powers that reservation of
land for the various groups was necessary to eliminate friction, and as a
result of this reaiization the areas of the Native groups have over the
ears not only been presewed, but have also been enlarged substantially
the addition of Crown land and land purchased from White persons
with funds provided by Parliament.
13. It is unnecessary to &ace in detail the history in South Africa of
the respective population movements of the Europeans from the south
to the north and east. and of the Natives from the north to the south
and West. witli resultant tensions and conflicts. Suffice it to point out
that during the earlv part of the nineteenth centun. the Sative popula-
tions weredecimated as a result of internecine wars; and that formeater
protection and defence the survivors tended to congregate togefher in
more-or-less confined areas, which were naturally considerably smaiier
than those originaiiy inhabited by the various tnbes or communities.
In this regard it may be mentioned that whereas Natal proper had an
estimated Native population of 1oo.000before the regime of Tshaka and
Dingaan ',the number had dwindled to approximately IO,OOO at the
time of the amival of the Voortrekkers circa 1838 3.
14. As the Europeans moved eastwards and northwards, clashes oc-
curred between them and the Natives whowere advancing in the opposite
directions. There foiiowed a period of intermittent warfare between
the two sections, as weU as treaties and negotiations over land rights
and annexations of land by the govemment of the day, which resulted
over many decades in the weaving of a pattern of land adjustments.
15. The more important facets of the historical background to the
reserve -.licv in South Africa may be sumrnarized as foiiows:
(a) CapeProvince
(i) After hostilities during the years 1850 to 1853, an area known as
British Kaiïraria was treated as a conquered temtory under military
occupation. In a despatch dated 13September 1853, the then Gover-
nor, Sir George Cathcart, laid down in regard to the government of
this temtory that the "colonists must be restricted to their present
weU-dehed limits 'n the one hand, and the Kafius. ..be aiiowed
to be govemed, as to their interior discipline, by their own chiefs.
according to their existing laws ..." '.
1 King9 of theZulu nation.
Europeans who had trekked from the Eastern Cape to the intenor of South
Afriea.
Swth Atvicon Nolivc Aflairs Commissin1903-5 (1904.1905V )o.l. 1, R~fiortof
thcCamissin. para. 23,p.5.
' Yi& Furthcr Popers vclaliuc la lhc Slofc ofKaflirTvibes (1855)p. 16,in COUNTER-MEMORIAL OF SOUTH AFRICA 235
(ii) In tems of Act No. 3 of 1865(Cape of Good Hope) 'this territory
was incorporated within the Cape Colony, and after the 1877-1878
war land adjustments and modifications were made and Native
Locations were demarcated, more or less as they appear in the
Schedule to the Natives Land Act of 1913 2.
Cui)FoUowingon a series ofwars during the second half of the nineteenth
century, the territory known as the Transkei was annexed to the
Cam Province bv a number of rocl la mations '.The memben of
théWhite group'were, however, hot aiiowed to enter and settle in
this area. AsH. Rogers puts it:
', -.
Thus, while annexation was necessary, there was no intention of
depnving the Natives of their land and for the most part what was
Native territory prior to annexation remained such after annexation,
the areas concerned being administered as Native dependencies
rather than as integral portions of the Cape Colony '."
(iv) Under similar circumstances other territories were annexed to the
Cape Province, and Act Xo. 41of 1895(Cape of Good Hope)-by
which the territory previously known as British Bechuanaland was
annexed-specificaiiy provided that no lands resewed by any law
for the use of Natives in the said territory were to be alienated
or in any way diverted from the purposes for which they had
been set apart, otherwise than in accordance with an Act of
Parliament
(b) Natal Province
(i)Shortly after Natal was brought uiider British sovcreignty in 1843,
3 commission was a pointed to demarcate areas for the Natives. and
reservations of ]an!-totallina aito-ether a--roximately a million
acres-were made
(fi B)y Royal Letters Patent, dated 27April 186~t. he Natal Native
Trust was constituted, and the bulk of the Natal Native Locations
were then conveved to the Trust. The trustees were required "to
grnnt. sell. ltase or otherwise dispose of the land. .for thésupport.
advnntagc or well-being of the said Nativcs . . .'.
(üilUnder a Deed of Grant.dated 6 Apd rwq. zr resewes. set aside as
a result of the recommendations of speiiahy appointed commission,
-
1865.onlrnfnry Papcvr [Great Bntain]. Kafir' Wars,StotcUefKaFr Tribu 1851-
' Act Vo. 3 of 1865 (Cape of Good Hope), in Statutas of ths Caps of Gwd Hop,
passcd by fhs Third Parliamcnf during fha Sasrions 1864-1868 (1868). pp. 127-137.
Vida para. 18, infvo.
' Vida Cape of Gwd Hop Procs. N?s. Iroof ,879,229of i883. and 53 of 1891.
in Th8 Cape O/Good Hopa G?unnmcnl Goretlc,Nos. 5.950 (16 Sep. 1879) pp.7-8;
6,436 (14 Dec. 1883). p. 1291; and 7.267 (13 Feb.i891), 270.
' RoRerr. H.. Nefiva Adminirtratiin in th Union of Smrlh Ahicn. 2nd ed. (rev.)
by P. 1 Linington (rgqp). 100. . .
GoodAHope..1652-1905,Vol.aIII (1894-1905) [19061, p. 3575.aIufol Iha Cape of
Vide U.G. 61-1955. para. IZ,p. +3 and Walker. E. A.A History of SoUfhern
Afvica (3rd ed.). p. 273.
' Vide U.G. 6r-rg55. para.12,p. 43 and Reporlofthe Commissimi for Ihc.Soci0-
Ecmomie Divclopmcnt of the Bantu Arras uiithinthc Union of SouthAtvicoVols..
Vol. 4, Chap.ir,para.gr. p. 26 (U.G. 61-1955ira surnmaryof the longer report).236 SOUTH WEST AFRICA
vested in the Zuiuiand Native Trust for the use and benefit of the
indigenous inhabitants of the temtory '.
(iv) By Union Act No. I of 19x2 2the administration of the Natal and
Zululand'Native Trusts was delegated to the Minister of Native
Mairs. and in 1936these trusts became vested in the South African
Native Tmst by virtue of the Native Trust and Land Act 3.
(c) TransvaalProvince
(i) Under a Voksraad Resolution of November 1853. Commandants
of the Republic were instmcted to grant land for occupation by
Natives.
(ii) Subsequently a commission was appointed for the purpose of
asigning areas of land to Natives. but before the commission couid
complete its work, the Anglo-Boer War (1899-1902)broke out.
(ui) Alter the war another commission was appointed in 1905. This
commission's report was duiy accepted, and. with smaii modifica-
tions, the Native locations set aside as a result of the recommenda-
tions of the two Commissions referred to. are still in existence
today +.
16. From the above it appears that the Provinces5 before Union
took concrete steps to provide for the Native groups and tribes protected
possession of lands of their own. Before Union 9,976,290 morgen6 had
been set aside in South Africa for the exclusive use of Natives. At that
time the Native population of the Union was estimated to be about
4,017,ooo. of whom 5o8.000 were living in urban areas, and 3,508,000 in
mral areas. mostly under tribal authority '.
17. In 1903 a Native Affairs Commission was appointed by the
British Govemment to consider the policy to be appiied to Natives
throughout South Africa. This Commission. after careful consideration,
strongly advocated the principle of territorial segregation, or sepanahon
The Commission also indicated that. in view of the fact that members.
of the White group were not entitled to purchase land in Native areas,
indiscriminate purchasing of land by Natives outside their own areas
should be stopped. It stated:
"There WU be many administrative and social difficulties created
bvthe multiolication of a number of Native units scattered through-
oit a white population. . .Such a situation cannotfail to accenl&~
feelings of race fwejudice and animosity with unhaPpy resulls '",
(italics added)
and recommended that the purchase and leasing of land be lirnited-
*'Act No.1i1of i9rz. in SWulcrofth Union ofSouth Africa 19ra,pp. 2-4.
Act No. 18 of 1936. sec5 in Stntutss of the Union of SoAfv:co 1936. P. 92.
Vide para.22,infra.
' U.G. 61-1955, paras. zq-26, p. 44.
'The area comprising th<:present Province of the Orange Free Stats had not,
within record, been inhabitto any appreciable extent by important Bantu tribee.
There are consequently only three small reserves in this Province.
1.1675 morgen= i hectarï.
' LI.ofS.A .,Porl. Deb.. H-c of Arscmbly (1913). Col2273.
' Sou* Africon Native Afloirs Cmmisrion 1903-5. Vol. 1.para. Igz,p. 35. COUNTER-MEMORIAL OF SOUTH AFRICA 237
"... to areas within which the privilege may be exercised by them
without bringing them into coniïict with European land-ownen. and
of the extension of this privilege by the creation of such areas in ail
Colonies and Possessions where this can be convenieotly done "'.
18.Effect was given to the recommendations of the Commission in
the Natives Land Act of 19x3 2, which was the initial legislation in the
Union of South Africa embodying the principle of territorial segregation
and separation of land rights between Natives and non-Natives.
19:The following are extracts from speeches made in the Union
Parliament in 1913which emphasized the advisability for the Native
groups to have separate areas in which they could progressively attain
a measure of self-govemment :
(i) "If there was one thinf! the Eurouean must keep before him
~, it {vas the iinpro\,ern6t and de;,i:lopmcnt of ihcse people.
Let the native jieoplc keep their traditions and let tliem build
tliemselves uu alona those lincs. On that nound tliey must not
try and maki whire men of theçe peopk, which would be a
mistake. It would not be good for the white man, and it would
not be good forthe native. ... [Nlatives, when separated from
the whites. should have a rneasure of self-eovemment under
white supekvision. They would be able to tax themselves. and
eovern themselves under the control of the white man. If that
%as done. ... satisfaction would ensue l."
(ii) "\%%enthey placcd the native in :isep:<rateterrirory they gave
him an opportunitv of dcvrloping. and his position woiild be-
come stronacr and stronacr. and hc woiild he at~lcevcn to have
a continuaiiy growing Geasure of self-government within that
temtory '."
(iii)"... the bulk of the two races, the European and the native,
should live in the main in separate areas. . .that was, that
they should occupy and acqnire land in separate areas
20. The Schedule to the Natives Land Act contained descriptions of
areas known as Scheduled Native Areas. These areas comprised the then
existing Native Reserves and Locations, together with certain land
hdd by Native tribes, communities and individuals.
In implementation of the policy enunciated by the Act the provisions
thereof rohibited, without the consent oi the Govemor-General bein
obtainecf the acquisition by any person other than a Native of any lan %
or interest in land in a Scheduled Native Area. and conversely they
prohibited, without such consent, the acquisition by a Native of any
land or interest in land outside a Scheduled Native Area from a person
other than a Native.
21. This Act was a preliminary measure and made specific provision
for the appointment of a commission whose fnnctions would be to
lay dom permanent lines of temtorial segegation, i.e., permanent
' Smrth Atricon Native AffairCmmirsion 1903-5, Vol. 1. para. 195. pp. 35-36.
Act NO. 27 of1913,in StoluteotIhc Unia O/South Africa 1913pp. 436-475.
U. 0)S.A.. Parl. Deb., Housc of Arrcnioly(rgi3). Cols.2515, 2518 (The Rime
Minister, Gen. LouiBotha.)
' Ibid., Co2270. (The Minirter of Native AffaiMr. J. W. Sauer.)238 SOUTH \\,ESTAFHICA
Native areas, and, as a necessnry corollary, permanent non-Native areas.
22. This was the stage of development reached at the time when the
Mandate was conferred upoii Hespondent. The reports of the Native
Laiids Commission-zippoiiited in terms of the Natives Land Act-and
of five Local Comniittees ' later culminated in the passing of the Native
Tmst and Land Act of 1936 ?,tlie object of vrhich was-
"... to provide furtlier areas where the natives can maiiitain a
reasonable standard of life aiid develop their own institutions. and
securea betteradjustment ofthe relations betwveenwhiteand black )".
In impleine~itation of this object, the Act created the South African
Native Trust, n corporate body to be admiiiistered for the settlement,
support, benefit aiid moral and material welfare of the Natives of South
Africa. The Trust has consistently worked towards this end and, during
the period 31 August 1936. to 31 AIarch 1953a ,cqGred further areas to
the exteiit of 4,121,020morgen for the soleuse and occupation ofNatives.
Considernbly more land has since been acquired '.
23. It is clear from tlie above historical exposition that, after a con-
siderable period in whicli a policy of territorial segregation had been
applied in South Africa, the statutory foundations of Respondent's re-
serve olicy bad alrendy been laid. and given much publicity, by the
time tE e Mandate was assumed.
As has'already been shown, one of the grounds on which Respondent
founded its claim to South West Africa at the Peace Conference was that
it would be to the adw~antageof the indigenouspopulation if Respondent
applied its Sative policy to the Territory. It must be assumed, therefore,
that it was withiii the contemplatio~i of al1 parties concerned that,
having regard to the circumstances prevailing in South West Africa,
Respoiident was likely to apply to the Temtory a policy basically similar
to its South African reserve policy.
III. RESERVES IN SOUTH WESTAFRICA
(a) Background lotheEstublishmeniof fhcResen'es
24. When Respondent assumed the Mandate it found in South West
The history of these groups haç already beeu dealt with, and it has been'.
shown that conflicting claims to land led to severe conîiicts between the
various groups in the area later known as the Police Zone 6. These con-
flicts not only leftbitter feelingsamong the groups, but also left detribal-
ized penons scattered al1over the Police Zone.
25. Reference has beeu made to the uear extermination of the Buh-
Appointed on a regional basis, to revise tbe recommendation of theCornrnission.
Act No. 18of 1936.
' U. of S.A..Porl. Dcb., Houre of Arsemhly,Vol.26 (1936). Col2747. (The
MinisterofNative Aifain, Mr. P. G.W. Grobler.)
thereto and called "Released Areas". These awereireleased from the restrictiveedule
provisions of Acto. 27of 1gi3 for acquisition by Natives and the Tmst.
' Via Bwk III, Chap. II, para.2, ofthis Counter-Mernorial.
Ibid.. Chap. III. COUNTER-MEMORIALOF SOUTH AFRICA 239
men, the enslavement of the Ber dama, the decades of almost perpetual
war between the Hottentots an 3 the Herero. and the 1904-1907wars,
one of the causes of which was discontent and unrest with regard to
land rights as a result of transactions with Native chiefs '.
26. As a result of the wars there was considerable confiscation of
tribal lands of indigenous groups which had risen against the German
authorities. A Decree by the German Kaiser. dated 26 December 1905 =,
made provision for the confiscation of the property of those Natives who
had taken warlike or hostile action, or who had assisted with such
action, directly or indirectIy. Property which could be confiscated in-
cluded the Native reserves which had been created by a Decree of
IO April1898.
27. On 23 March 1906 von Lindequist, the Governor of South West
Africa..~ssued a statement '.which was confinned bv a fnrther statement
made on 8 :\üyst 1906 '.ro tlie eHect that. jubject io certain conditions.
al1moviit~leand immovablr. property of the Herero north of the Tropic
of Caoricom. ai ive11as tliit of the Swartbooi tlottentots of Franzfontein
and Che~opnaar Hottentots of Zessfontein. would be confiscated.
28. On 8 May 1907 von Lindequist issued an additional statement =,
which was confinned by a fnrther statement on II September 1907
in terms of which the movable and'immovableproperty of the Witbooi,
Bethanie, Fransman and Veldskoendraer Hottentots, as well as that
of the Ked Nation of Hoachanas and of the Bondelswarts, including
the Swartmodder Hottentots, was confiscated '.
zg. The Rehoboth Bastersand the Berseba Hottentots. who had taken
no Dart in the wars. retained their rinhts to the land which thev were
occGpying in terms'of previous treazes with the Germans, while the
Bergdama were given the Okombahe reserve
30. When esi ion doekn tver the administration of the Temtory,
by the Gennans for occupation by Natives or were areas which Nativeside
were permitted to occupy under treaties:
(i) The area belonging to the Berseba Hottentot tribe, some 575.000
hectares in extent, being portion of the area described in the treaty
of 28 July 1885 between the German Government and Jacobus
Isaak9, and a later treaty of 7 July 1894, between the German
Govemment and Dietrich Goliath Io.
' Vids Book III, Chap. III, para. 75.of this Caunter-Mernorial.
Vidc Die d~utrrhc KolmiialGcsctrgcbung. Sammlung der auf die deutscben
Schutzgebiete berüglichen Gesetrs, Verordnungen, Erlasse und intemationalen
pp.e284-286.en mit Anmerkungen. Sachregister, Neunter Band (Jahrgang ,905).
' Ibid., Zehnter Band (Jahrgang Igo6)pp. 142-143.
I-id... 2>8.
' lbid.. Elfter Band (Jahrgan1907).pp. 233-234.
' I&d.. pp.370-371.
' In the caseofthe Bondelrwarts the property and the nghts referred to in the
tr8aVidc Dculrcher Kolonialblaft: Amtsblatt für die Schutrgebiete in Afrika und in
der Südsee, XVII Jahrgang, No. rg11 Oct.1906).p. 643.
Hesse. H. Die Schutmartragc in Süduissfofrika (igog)12.
'OIbid.. p. 25.240 SOUTH WEST AFRICA
(ü) The area occupied by the Bondelswarts tribe, in extent some
174,505hectares, which had been excluded from confiscation because
of the peace treaty of 23 December 1906 '.
(.i,) The Okombahe Reserve for the Ber~dama, in-extent 172,780 . .
hectares Z.
(iv) The farm Zessfontein in the Outjo district, 31,416 hectares in ex-
tent, which had been assi~ned for the use of the Topnaar Hotten-
tots 3.
(v) The farm Franzfontein in the Outjo district. 36.188 hectares in
extent. nssigned for the use of the Swartbooi Hottentots 3.
(vi) The farm Soromas in the Bethanie district. 8.212 hectares in ex-
tent, assigned for the use of the Bethanie Hottentots '.
If the RehobothGebiet (1.75o.000hectares) isincluded, areas amounting
to 2,748,101 hectares had been made available in the Police Zone for
occupation by the non-Whites.
31. According to Hailey ',there were. in 1913, 1.255 White farms in
private hands, comprising a total area of 13,393,606hectares. The same
authority States that the Police Zone, excluding the Namib Desert area
(7,164,800hectares), was then approximately 45,025,000 hectares in ex-
tent. There remained. therefore, some 28.75 million hectares of undo-
cated land in the Police Zone.
32. Faced with the intricate problems created by the existence in the
Territory of various groups with opposing interests and a heritage of
roductive of group animosities, Respondent immediately
appointe a commission of experts to in uire into the situation existing
in the Temtory, and to advise ~espongent as to its future policy in
regard to the various groups, with a view to the most effective imple-
mentation of the Mandate 5.This Commission recommended a policy
of setting aside separate areas for the indigenous population, broadl
in accordance with Respondent's South African reserve policy and wi 2
the authoritative findings of the Native Affairs Commission of 1903-
1905 '.
33. In these circumstances. and especially for reasons that wiU be
detailed hereunder; Respondent considered that the objectives of the
Mandate could best be promoted by applying to South West Afnca a
policy of setting aside, as far as was practicable, separate, protected
areas for the different population groups.
@) The Basic Considerations ofthe ReservePolicy
34. The basic considerations of Respondent's reserve policy in South
West Africa, which wiUbe dealt with bnefly in tum, have been:
(i) The existence of different population groups in the Tenitory;
(ii) the need to restore tribal Iife:
'Vida Die daitschc Koloniol-Gcra~.gcbung. ELfter Band (Jahrgang 15-37Pp.
232-2Yi& para. 29,supra.
' U.G.zr-rgz+. p.12.
'Lord Hailey. A Suruey of Nafiv~Afoirr in South West Afvico (1946)[unpub-
lished].p.50.
Vidc para.55,infra.
Ibid. para.17. supra. COUNTER-MEMORIU OF SOUTH AFRICA *4I
the difference in the systems of land tenure of the varions groups;
IV) the need to prevent ahenation of non-White land.
(i) TheExistcnceof Diffnent Groufis
35. The White population of South West Africa in 1921 numbered
19,432 o,f whom 7,855 were Geman nationals. The number of non-
Whites in the Police Zone-inclnding temporary migrant workers-was
approximately 84,000. while the total number of non-Whites. including
those resident in areas falling outside the Police Zone, was slightly
more than 200,000 '.
36. The existence of widel differing grou S.particularly in the Police
Zone, presented problems w&ch were pecu farto the Tenitory and for
which it would not have been easy to find a paraliel in the other mandated
temtones in Africa. or elsewhere. If it is further taken into account that
the various groupsmade codicting claims to land, it folloivsthat justice
could not be done ta the legitimate aspirations of the various groups by
pursuing a land policy which completely ignored these differences. On
the contrary, the obligation imposed on Respondent to "promote to the
utmost the matend and moral well-bein and social progress of the
inhabitants of the temtory", compelled & espondent to recognize the
existence of gfoup conficts and tensions in the Territory and to give
full consideration thereto; a modusviuendihad consequently to be found
for the peoples of the Territory which would prevent a resumption of
traditional feuds and hostilities.
37. The problems confronting Respondent were complicated by fac-
tors peculiarly concerned with the Herero. In this regard Hailey re-
marks:
"The campaign [of 1915 1aised hopes among the Hereros, some
at least of which weredoomed to disappointment. They seemto have
misinterpreted the declarationsmade bythe Union Government and
in particular those. of Lord Buxton as Governor-General. They
believed that the end of Gennan mle would see the Tefritory
partitioned between themselves and the Hottentots and in this
belief they set themselves to collect cattle, while some of the smaller
Chiefs began ta rekindle the Holy Fires. There was a swing back
from Mission influences. Nor indeed does it seem that their change
of religion had been effective in giving them a new code of morals
which provided a substitute for the old tribal restraints, for al1
observer5 were impressed with the lack of moral discipline among
the men, and of a promiscnity among the women which appeared
to affect their fertility. The new Administration therefoo encoun-
tered in the Hereros a people disaffected, brooding over its losses,
and lacking the initiative or even. as it then seemed, the capacity
to recreateitsell."
38. The concept of what land traditionally "belonged" ta the Herero-
or, for that matter, to any of the indigenous groups in the Police Zone-
isa vague one. as is illustrated by the following extract from Hailey:
"It was not easy to say at any one time how far these vacant
* U.G.jz-rgzz. pp. 5,iz.
Hailey.A Suruey ofNativeAffnirsin South Wcrl Afric(~946). p. 45. SOUTH WEST AFRICA
242
lands could be said to have been occupied by natives. or by what
~articular natives. since the continual warfare between the Hereros
and Hottentots had made it difficult to determine what were the
reco.nized limits of Herero and Hottentot grazing '."
39.A further indication of the difficulty of achieving equity in regard
to land claims, is afforded by the conduct of a group of Herero who had
fled to Angola during the German regime. In 1915o .n hearing that the
Union troops were about to occupy Windhoek, they crossed the Kunene
river and invaded the Kaokoveld, ousted the Himbas and Tjimbas from
places which the latter had occupied for generations, and took full pos-
session thereof Z.
40. In these circumstances Respondent considered it highly desirable
to establish separate areas, as far as practicable, for the sole use and
occupation of each group, thereby also protecting the weaker groups
against the stronger or more aggressive ones.
(ii) The Need to ResloreTribalLife
41.The severe disruption of tribal life in the Police Zone prior to the
assumption of the Mandate led to the disappearance of tribal discipline,
and to social disorganization and moral decay l. Reference haç been
made to the problems of vagrancy and idlenesç brought about by this
disruption '.
Respondent foresaw that the rehabilitation of the dismpted tribes
would take years to accomplish, but believed that their material and
moral weU-beingand social progress required fvst of ali that their shat-
tered tribal life should be restored in order to form the basis for their
future develo~ment. This could best be done bv settine aside areas in
whicli the diipcrsed remnnnts of siich tritirs cohd rr-;semble and re-
establisli ttieir traditional rommunal Iife with its undoubttd materinl,
moral and social advantages.
42.This abject of Respondent's reserve policy was dearly stated in
the annual report on South West Africa for the year 1925w ,hich con-
tained the foiiowing:
"The natives. however, wiii in future have centres where they can
develop on their own lines. from which they can go freely in search
of work in European centres and to which they can return to their
families. At the same time the foundation has been laid for the
building of self-containednative cornmuniliesdevclopingon theiroreni
lines under the supe~sion of selected Native Affairs officiais ...
(Italics added.)
43.From this point of view the reserve policy has always had the
approval of the majority of the non-Whites in the Temtory. For q-
ample, in a memorandum which the Herero submitted to the Admini-
' Hailey.Suvuey ofNafiueAuairs in Souih Wcii Africo (1946)p. 48.
Vidc U.N. Doc. T1175, inT.C. ,.R.. ThirdScss.Sup.. pp. 51.~52:at p. '51.
' Vide Hailey. A Sumy of ~\'aliAflairr in South IVcsAfricn (1946)p.p.25.
29'aVidc5Chap. II,paras.13-20.supra.
' U.G. 26-1926, pp. rog-110. COUNTER-MEMORIAL OF SOUTH AFRICA 243
stration in 1948 the principal requt,t \\,:.:it,h:it tliey shuuld be re-united
and the trib:~lorg.îniz;ition re-cstnblish~.d'.
(i) DiBeyencesin Systems of Land Tenzrre
4. Each Native group in the Territory had,its own la% and cus-
toms-in many cases differing inter se-regulating the acquisition and
disposa1of. and succession to, rights relating to the occupation and use
of land 2. The White group was accustomed to individual or private
ownership on the same basis as that applying in South Africa and in
Germany. This system of land tenure was foreign to the Native groups.
to whom the dominant conception was that of communal, not individual,
nghts to land.
45. Communal tenure is not peculiar to the Natives of South West
Africa. Hailey remarks in this regard:
"To the African the dominant wnce~tion is that of communal.
not of indi\ridu;illriglits over land. By tri;ditioii;il Afrii:aiicustoni the
indii.idual and his familv can claim ;,IIuiiili;turbsd tenurc ofa hold-
ing so long as they need to use it but, when they cease to do so, it
reverts to the community and may be apportioned to others.
Where the usual practice is that of shifting cultivation, every mem-
ber of the group can claim by nght the use of the necessary portion
of the unoccupicd waste; but the land remains fromfirst to last the
land of the community )."
The Native Affairs Commission of 1903-1905 ' reported:
"It will be seen that in al1the Coloniesand Possessions tracts of
land have been recognised, set aside and reserved to Natives f0.r
communal occupation. History and tradition bear eloquent testi-
mony to the fact that this form of tenure was admirahly suited to
the needs aiid habits of the aboriginal races; indeed, it was originally
the only possible form. It constituted a portion of the great tribal
system under which the land was adrninistered by the Chief and
his Councillors for the people '."
46. It follows that Respondent had to take acconnt of the traditionai
communal or tribal svstem of land tenure found amone the various
indigenous groups of the Territory, and that it was impocsible to treat
ail the groups aiike.
It would have been disastrous for the non-Whites if a system of in-
dividual rights to land-which they would not have understood-had
been imposed upon them and compulsion used to secure subdivision and
individual holding of land set apart for communal occupation. Few
would have been able to support thernselves and their families on the
land ailotted to them, with the result that most would soon have parted
with their individual auotments. Such alienations had actually occurred
in the case of the Basters of Rehoboth, the Bondelswarts andthe Herero
dunng the German regime, as will be shown more fully hereunder 6.
' Departmental information.
Vide Book III. Chap. II, of this Counter-Dlemorial.
' Reference to this Commission haî been made in para.817, stspro.
' Smrh Africon Nalivc Auairs Commission, Vol. 1. para.143,p. 26.
Vi& paras. 51-52, isfra. 244 SOUTH WEST AFRICA
a7. Benefits of the svstem of communal tenue for the Natives of
~&ca are stiil recognizcd today, and were stressed as foliom in a report
of the Food and Afncultural Organization of the United Nations:
- .
"Indeed it can be said with confidence that in a free Society it
would be impossible to effect an alteration in the fom of land
tenure which ran directly contrary to current social and religious .
ideas. ...
... If such a system [of communal land tenure] can stili survive.
where the circumstances render it desirable, in a country with as
high a level of civilization as Switzerland. thae is no reason for
supl~osingthat it will necessmilg disnppear in Africa and other areas
of more primitive ciilture. as civili7;ition advances '."
"From the noci31puint of view it must be emphasized that any
systvm of communal land tenure having the general characteristics
set out above has great value. sincc it is a strong force knitting
together the community which practices it. . ..
The preliminary judgment therefore, is that on social grounds the
system should be preserved, unless on economic and agricultwal
grounds it is inevitably condemned 2."
48. It should, however, not be supposed that Res ondent is irrevo-
cably opposed to individual land tenure for Natives P.In the course of
time changea economic attitudes may result in the replacement of com-
munal by individual ownership, and this could, if introduced with the
necessary circumspection, be to the advantage of the Temtory. Re-
spondent will, therefore, favourably considex the introduction of in-
dividual tenure wherever circumstances may favour such a course: but
thk implies, inter alia,that Respondent wiil act only in accordarice with
the wishes of the tribal authorities concerned. and in anv event only
where and when Satives exhibit in sufficient numbers a d&re to secure,
anda capacity to hold and enioy. individuîl rig.ts to farmsand residential
sites onthe rand in auestion. -
49. It is Kespondent's policy that the Satives must be allowed natu-
rally and gradually to dzvelop niid change their traditional concepts
regard to Iand. and that this sl~ouldform part of thcir general economic
. advancement from a subsistence economy to an exchange economy.
A similar view was expressed in 1960by Bauer and Yamey:
"A premature policy willnrouse fears witli little advantage; there
is no econoniic merit pcr se in a change from communal to individual
tenue, since the advantaaes dewnd on individuals willing and
able to apply new methods-'."
50. The above views correspond also with the following conclusion
arrived at in 1959by the Third Inter-African Soils Conference of the
Commission for Technical Co-operation in Africa South of the Sahara:
Studies. No. 17) parchc19531, p.2. Iand Tenure Study (F.A.O. Agricultural
Ibid.. pp. 26-27.
Act No. 49 of igrg. se4 (3)(inTheLaw O/South West Africn1915-1ga2. p1.2)
authorires the Govemor-General (now the State President) to makeland in individ-
"al ownersbip available to Natives in the reserves.
' Bauer, P. T. and Yamey. B. S.. ThLEcaomics O) U~ndrr-DcvetapedCountriar
(196). P. 174. COUNTER-MEMORIAL OF SOUTH AFRICA 245
"Premature introduction of individual ownership may have un-
desirable consequences in cases where the necessary conditions of
economic org&isation, social progress and moral development
have not been achieved. In particular, the farmer is expsed to the
risk of land speculation which leads to the development of a rural
proletariat and to unsound utilisation of the soi'."
The Conference accordin ly recommended that governments should
avoid the premature. introiuction of individual ownership and should
take appropriate measures, such as prohibiting the sale of land, so long
as the degree of evolution of agncultural populations, or the lack of
funds avdable to them, leave the way open to such dangers 2.
(iv) Th Nccd 10P7eveniAliendion of Non-WhiieLand
51. Durin the German regime, and particularly before 1904, many
non-Whites a ad lost their land as the result of sales or similar trans-
actions between their chiefs and White men. So, for instance. Chief
Samuel Mahereroofthe Herero, whows in need ofmone ,solda number
01 fms to Whites, secretly informing dissatished tri iesmen that he
would bnng back ail the cededtemtory into the possession ofhispeople J
So, too, the Humpata Boers 'in 1884bought from Chief Kambonde of
the 'Ndonga tribe of Ovamboland a tract of land extending from west
of the Naidaus and Nunab ranges to the Great Omuramba in the east-
an area by and large wrresponding with the present Grootfontein diict
-for 25 muskets. one horse and one caskof brandy 5.And in 1883the
Luderitz Company of Bremen bought a coastal strip of land, stretching
over 150miles from the Orange River to the 260 S line of latitude, from
Josef Fredericks for 60 guns and £500 '.
52. With reference to the Rehoboth Basters, Mr. Justice de Villiers,
chainnan of the Rehoboth Commission of 1926, stated that in his
opinion-
".. .there [was]no doubt whatever that liberty to alienate land to
Europeans would inevitably result in the Burghers losingthe greater
portion, if not the whole. of their land within a comparatively short
period of time 7".
This opinion was based on fact, for during the period 1898 to 1905 the
Basters dispsed of 250,000 hectares of their land to Europeans and
up to 1923 they had in al1disposed of approximately 450,000hectares,
or more than one-quarter of the total area of the Rehoboth Gcbiet9.
1 Third Inln-Africrrn Sdls Conference,Dalaba, 1959 (Publication No. 51.. Vol.
para. 3. P. 73.
Ibid.. pp. 89-90.
' TheHumpata, The Htrtaok part in the great trek whieh kft Transin 1875.. p.
They made their way to Humpata in Angola before returning to SouthWest AM-.
Kohler, O.. A Slvdy of Gvooifalain Dirlrid (Soulh West Africn), Ethnological
Publications. No.45 (1959). para54,pp. 19-20,
Hesse. H.. Die Landfiaga und dis Froga der Rcchlsgülligkeildcr Kazcrsionrn in
Sddrucstafiika: Ein Beitrag rur wirtîchafflichen und finamiden Entwickelung des
Schutzgebietes (1906). II. Teil. p. 199.
' Ibid., p186.. p. 63.
' Ibid., p. 64.246 SOUTH WEST AFRICA
53. It was consequently realized from the outset by Respondent that
itwas necessas. to set aside land permanently for the sole use and occu-
pation of the non-White groups and to prevent such land from.being
alienated. except under very special circumstances. For this reason
section 4 (3) of Act No. 49 of 1919 prohibited the alienation of land
set apart as reserves for Natives or Coloured persons save under the
authority of Parliament '.
54. To protect the Natives from losing their land and to enable Re-
spondent to develop the reserves for the benefit of the respective groups,
it has been necessary for Respondent to retain control over the Piative
reserves. These reserves were consequently not transferred to the re-
spective groups but, as in South Africa prior to 1936, remained vested
in the Administration until Act No. 56 of 1954 was passed. This Act
provided for the vesting of al1 Native reserves in the South African
Native Trust ?,thus equating in this respect the position in South West
Africa with that in South Africa '.
It is foreseen that in time the land in the reserves will be transferred
to the authorities of the respective groups. but in the present stage of
ecoiiomic dr\,elopmeiit of the indigcrious gro-.s it would bc to ttieir
detriment to do 50 without qualificition.
(c) TheNative Resewes
55. It will be recalied that when Respondent assumed the Mandate,
areas amounting to 2,748,101 hectares-i.e., if the Rehoboth Gebietof
1.~~0,ooohectares is included-had already been made available for
occupation by non-Whites '. During the period of martial law Respon-
dent made a few fams available as temporary reserves. In 1920, how-
ever, the Administrator of the Temtory appointed a commission-con-
sisting of MI. H. Drew, a Magistrate, and Colonel Kruger-to report,
inter alia, on ".. . the general administration of native locations and
reserves in the Territory, their size and conditions prevailing therein"
and ". .. the availability of native labour in such locations and
reserves" 3.
56. After the Commission'sreport was received, additional members
were appointed in June 1921 under the chhanship of Mr. Drew. to
discuçs the recommendations of the first Commission and particularly
to advise as to the allotment of suitable areas for permanent Native
reserves.
In August rgzr the enlarged Commission made the following recom-
mendations:
(i) Reserves were to be created for the accommodation of Natives
hitherto unprovided for, and Natives removed from areas recom-
mended for closure.
' Act No. 49 of1919, sec4 (3). in ThLarus of Saulh WcslAfrica 1915-192p. 12.
Vide Act No. 56 of 1954. sec.4 inSlalules of IlUnion of SouM Africn 1954,
pp. 561-563; and parp.22. supra.
' Vide Book VIII. sec. C. Chap. VII. paras. r8-25 ofthis Counter-Mernorial.
' Viàe para. 30.supra.
' W.C. 26-rgz~, p. 13.
Colonel de Jager. MajorManning (Comrnisioner for Native Affairs), Mr.
Schneider (Senior Oilicer. LandsBranch). andMr. Landsberg (Survayor-General). COUN~ER-MEMORIAL OF SOUTH AFRICA 247
(ii The temporary reserves ' were to be closed.
Cil The reserves occu~iedunder treaties were to remain as before.
(iv) Land was to be êarmarkedfor future extension of reserves or as
alternative reserves in case the-pr-posed new reserves shouid prove
to be unsuitable 2.
57. Pursuant to instructions, the Commission also wnsidered the
feasibiity of setting aside. on lines similar to those adopted in the South
Afncan Natives Land Act ',a "Native area" in which Natives might at
some future time be ermitted to purchase or otherwise obtain land if
they should wish to & so. An extensive area on the eastem side of the
Gobabis and Waterberg districts and abutting on the Bechuanaland
border was recommended for this purpose.
The foUowingtable contains the main details of the above recom-
mendations:
Hectares
(i) Proposed reserves ............. 794.938
(i)Less reserves to be closed ........ 139,288
655.650
(iii) Land earmarked for reserves in case of extension
in future or of the unsuitab'ity ofproposedreserves 636,881
(iv) Land held by Natives under German treaties and
agreements ...................... 945.343
Total ... 2,237,874
58. The Commission also considered the need for roviding reserves
in the Kaokoveld, and recommended that Major hfanning, who had
made previous tours of that area, should prepare a detailed statement.
As a result, it was pro sed that kfontein reswe should remain
undisturbed while the &owing further reserves were to be set aside
in that area ':
(i) Ombepera for Chief Kasupi's people, roughly 106,500 hectares in
extent.
(ii) Otjijanja-semo and Hondoto for Chief Oorlog'sand Chief Muhona
Katiti's tribes, 257,000hectares; and
(üi ) waruthe, in extent 55.000hectares, for Herero factions '.
Ovamboland and the Okavango Native Temtory. being pwdy Native
areas bevond the Police Zone, were not discussed by the Commission.
59. The recommendations of the enlarged Commissionwere generauy
accepted as the basis upon which the reserves should be set aside. In
the 1922annual report the Administrator stated:
"1 had no diiïiculty in disceming that to get the Natives quite
contented and to revlve in them an aitachment to the land,and an
interest in their future, it was necessary to proceed as quickly as
possible with the selection of large areas to be set asidas reserves
' Vide para. 55. supra.
V.G. 32-1922. pp. 13-14.
' Vidr pua. 18.ruea.
' U.G. 32-1922.lp. 1).oveld war reserved-idepara.62.infra.248 SOUTH WEST AFRICA
which would for aü time, subject to good behaviour. of course, re-
main assigned to them. ..
The Reserves wili be of course set aside entirely fornative occupa-
constmcted. Titled willnot be issued but, as prondeddippingAct 48 of
lang without consent of the Union Parliamentre b...epnved of the
That the final determination of these reserves and their actual
occupation have done much to ahy the undoubted unrest which
existed among the Natives is proved beyond a doubt ...
The areas have been selected with everv care and consideration
so as to obviate. so far as human agency un prevent. the occupants
being disturbed even in tirnes of the most severe drought. Crazing is
good. water is sufficient,but no expense wilbe spared to make every
provision by boring for nece~sar~èxpansion '."-
60. In attempting to implement the proposed reserve polic the
Administration was confronted by the foliowing formidable progiems:
(i) Many Natives had formed the impression that, as the German
regime had come to an end. Respondent would confiscate the fms
which the German Government had wld or aüotted to Whites, and
that they would accordingly recover land which they or their
ancestors might at some stage have occupied or used for grazing.
Vanous gtoups thus asked for the dotment of what they claimed
to be their old tribal area=. It was, however, not easy to establish
to what extent large areas found more or less vacant by Respondent
had at any given time been occupied by Natives or by which par-
ticular Native groups, since, as has already been pointed out ),
continual warfare between the Hottentotsand the Herero had made
it difficult to determine what were the recognized limits of Herero
or Hottentot gtazing. Moreover,vested rights of ownership. mort-
gage. servitude and the like had meanwhile accrued in many areas
to which claims were laid by indigenous oups, and, in the absence
of sound and equitable grounds for conGation, such rights could
not be interferedwith. Many of the claims thus made could there-
-~r~not heacceded to~
(ii )ue to historical reasons it was, in the early years, dimcult to
secure theconfidence and co-owration ofsomeofthe Native mour>s '.
(iii) The areas propased to be se2 aside as reserves were swnbut 'toa
searching test. A prolonged and unprecedented drought affected the
springs and wells, which previously had never given out, failed.at
Europeans and Natives had to trek. losing large numbers of their
stock. It soon became manifest that not al1the areas reserved wouid
satisfy requirernents. and fresh investigations were necessary5.
61. For practically ten years (1924-1934)the Administration's acti-
vities were directed to building up the reserves and making them habit-
' U.G.21-igzj. pp.13,15.
Ibid.. p. 13.
' VidsU.G.a4-1947.rapara.54.p. 13.
' Vida U.G.21-1923. p.13. COUNTER-MEMORIAL OF SOUTH AFRICA 249
able by fencing, sinking boreholes and providing dams'. It was only
in the last fiveyears beforethe outbreak of the Second WorldWar that
the material fruits of the reserve policybegan ta appe2.
62. The areas recomrnended for Native settlement by the enlarged
Commission were soonfound to be inadequate, and from time ta time
more land has been rffie~ed for the soleuse and occupation of Natives.
The foUowin is a kt of the reserves inthe Temtory which have been
set aside to fate. The areas given are apprommate.
Reserve Legislation Areas
RESERVES INWHICH HERERO PREPONDERATE
zjo,ooo Ha.
Oviroto G.N. No. 122 of 1923
G.N. No. 173of 1935
G.N. No. 182of 1937
Total accordingto a
189,841Ha.
10.415Ha.
166,000Ha.
39,000Ha.
Total accGidingto a recaldation . . . . 430.961Ha.
otjoho-
ong go G.N. No. 108of 1925(SWA). . . . . . . 330,000Ha.
Accordingto a recalculationthe area isnow 365.177Ha.
ponderatea. . . .e. . . . .ch. .er. . . . 3.1r4.108 Ha.
vids W.C4-1947, p. 13.250 SOUTH WEST AFRICA
Reserve Legislation Areas
RESERVES IN WHICH DAMAPREPONDERATE
Okombahe G.N. No. 122 of 1923 ......
G.N. No. 237 of 1930
G.N. No. 374of 1947
G.N. No.215 of 1950
Ord.dNO.b26 of 1958 (sWA) (aKdition). : 112,860Ha.
Acwrdina-to a recalculation the total.. .-4.5.7Ha.
RESERVES IN WHICH NAMA PREPONDERATE
Berseba G.N. No.122 of 1923(SWA). ...... 575#000Ha'
G.N. No. 237of 1930(SWA). ......
Accordingto a recalculation of the area it is,874Ha.
Bondds G.N. No. 12z'of1923(SWA). ...... 174'505Ha'
Total according to a recalculat.... 174,560Ha.
Soromas G.N. No.122 of 1923 SWA)
G.N. No.237of I 30 {SWA): : : : : : / 82z12Ha'
G.N. No. 8 oI 2% (SWA) Yeton) . . 8,618Ha.
G.N. No.485 041~51 (SWA) addition) . . 6,743Ha.
Total according to a recalculat.... 25,899Ha.
Warmbad G.N. No.122 of 1951 (SWA). ...... 14.500Ha.
ponderate...............in whichNama pre- 801,833Ha.
RESERVE OCCUPIED BY OVAMBO
Ovambo- Roc. No. 40 of 1920(SWA
lanà Froc. No. 27of 1929(SWA] ::: : ::
RESERVE OCCUPIED BY OKAVANGONATIVES AND ADIOINING RESERVE
ONativeo Act No. 56 of 195............... 3,232,000Ha.
Tmitory
Rcsnved Total according to a recalculati.... 3,623.255Ha.
--
RESERVE OCCUPIED BY NATIVES IN THE EASTERN CAPRIVI ZIPFEL
EastertI
Caprivi
Zipfel Roc. No. 147of 1939 (ÇA) ....... 1,153,287Ha.
RESERVE OCCUPIED BY KAOKOVELD HERERO
Kaokovùd G.N. No. 374 of 1947 SWA
Amended by G.N. No. zor of 1953 (SWA): ).535°0,0@'Ha. COUNTER-MEMORIALOF SOUTH AFRICA 251
Reserve Legislation Areas
Accordingto a recalculation the total area is14.617Ha..
MlXED RESERVES
O;jim-
308 Ha.
6,594Ha.
3 Ha.
Neuhof G.N. No. 122 of 1923 (SWA). . . . . . . 20,500Ha.
Area according to a recalculation. . . . 19,942Ha.
Tses G.N. No. 122 of 1923 (SWA). . . . . . . ~~9.9~5Ha..
G.N. No. 61 of 1~15(SWA) (addition) . . 24,661Ha.
Total according toarecalculationn. . . . 254,588Haa..
Easthn G.N. No. 374of 1e(7 (SWA). . . . . . . 1,260,000Ha.
Proc. No. 287of 1956 (SA)(deduction) . . 11,683Ha.
Accordingto a recalculation the area . . 1,279,156Ha.
Franz- G.N. No. 122 of 1923 (SWA). . . . . . . 1 36.188Ha.
fontcin G.N. No. 237of 1930 (SWA). . . . . . .
G.N. No. 62 of 1938 (SWA)(addition) . . zr.000 Ha.
Total according to a recalculatio. . . . 57,755Ha.
Gibeonor G.N. No. 44 of 1924 (SWA) . . . . . . . 38,782Ha.
Kranr-
filala Accordjngto aRcdculation the area measures 39,108Ha.
Zcss- G.N. No. 122 of 1923 SWA). . . 31,416Ha.
fontein G.N. No.42 of xgq~I(SWA)(addition) : . . 2,000sq.
meten.
Grand total for mixedreserves. . . . . . 1,775,130Ha.
The total area nowsetaside for the soleuse and occupation of Natives
is approximately 20,617,651hectares.
63. An important factor in the provision of Native reserves has been
the development of water sup lies, for which urposes large sums of
money had to be spent. The fo owmgextracts rom the annnal reports
on the Temtory for the years 1923,1924and 1930are in point:
(i)claim any area as a reserve until adeqnate water has been po-
vided-a very large undertaking, for it must beborne minp
that there is practically no permanent open water in the Tem-
tory, and the task of bo~g sunicient holes, and constmcting252 SOUTH WEST AFRICA
reservoirs for large numbers of natives with their stock is a
heavy and expensive one 1".
(u) "The chief difficulty rnilitating against and delaying the settle-
ment of natives in the various reserves is the water auestion 2."
(üi) "Hitherto the activities in the native reserveshave bien directed
the boringybaswbeen continüed-for over seven yearsand in rnanyes
places it was on1 at very great expense that sufficient water
could be provided13."
The process of developing the water resources of the Temtory, and
of presewing them, is a continuous one and wiii have to be carried on
in perpetuity.
(d) The BushmenRcseve
64. Because of their nomadic habits it has not as yet been practicable
to set aside a separate area for the use and occupation of the Bushmen.
but it isanticipated that this wiU happen in the near future. In 1950 a
Commission was appointed under the chairmanship of Dr. P. J. Schoe-
man to investigate this matter, and it recommended, inter alza, that a
reserve be established for the !Khung Bushmen', who total approxi-
mately 8,000.
65. The Executive Cornmittee of South West Africa has approved of
the principle of establishing a reserve for the Bushmen, and effect will
reserve the Bushmen wiüenjoy exclusive rights, and the protection ofposed
this group will in essence be the same as that afforded to the Native
groups in their reserves.
(e) TheRehobothBastcrGebiet
66. The Rehoboth Baster Gebid is a large area, comprismg some
1,380,000 hectares, situated in the centre of the Police &ne. Under the
German regime the Basters were allowed to retain their Gebiet,and their
nghts were subsequently recognized by Respondent in terms of the
Rehoboth Agreement of 1923. Paragraph 15 of this Agreement reads as
follows:
"No person other than a lawful resident of the Gcbietat thedate
of the taking effect of this Agreement shall be permitted to reside
therein or to acquire therein any interest in immovable property
whether leasehold or freehold Save with the written consent of the
Raad of the Rehoboth Community which consent shall be subject to
the approval of the Magistrate of the District; provided that in the
case of a European the sanction of the Adrninistrator of South West
Africa shall be a condition precedent to such residence in the Gcbiei
or acquisition or lease of immovable property or any interest there-
in; provided further that nothing in this paragraph contained shall
U.G.21-1924. p.13.
* U.G.33-1925, para.84.p. 24.
' Vids Book III. Chap. II, para. 53. of tCounter-Mernorial. COUNTER-MEMORIAL OF SOUTH AFRlCA 253
affst any existing rights lawfully acquired before or at the date of
the taking effect of this Agreement '."
67. In terms of section 6 (2)of Proclamation No. g of 1928(S.W.A.),
no person other than a member of the Rehoboth Conimunity may
acquire any interest in immovable property situated In the Gebictwith-
out the written consent of the Ruad of the Community and of the Ad-
ministrator 2.
68. In 1925 a commission 3enquired into the question of land tenure
in the Gebietand recommended that individual rights of the Basters
to separate pieces of land should be recogniwd. As a result of this re-
commendation a laree area of the Gebiethas been subdivided into farms.
and titlcs to these fkis have been issued. Tlie reserve is consequently
owned bv the Kehoboth community partly under indiridual tenure and
partly c6mmunally. .. .
In the result the protection afforded to this group in the Gcbid isas
complete as that afforded to the Native groups in their reserves.
C<
(f) TheArea lnhabited by theWhitePopulalion
69. This area comprises the Police Zone exclusive of-
(i) the Native reserves and the Rehoboth Baster Gebietin that Zone;
(i) two large proclaimed Diamond Areas, stretching to a width which
varies from about 50 to about IOO miles dong the coast from the
Orange River in the south to a fine over 300 miles north thereof,
and virtually uninhabited except for the rnining town of Oranje-
mund and the harbour town of Luderitz; and
(ii) large tracts of unallocated land, mostly in the northem and north-
eastern parts, but including also a large portion of the Namib
desert north of the Diamond Areas.
70. The area haç undergone considerable fluctuation under Respon-
dent's administration, expanding with allocations of new farms and
decreasing with the creation of additional Native reserves. Wh~lst the
iimit of expansion appears, by and large. to have been reached, Res-
pondent is at present, as previously indicated, engaged upon investiga-
tions which will probably result in further reduction through the pro-
vision of larger areas for the various non-White groups.
As hasalready been pointed out ',the effect of Respondent's reserve
policy, and of a number of its laws, is that members of the White group
enjoy certain priority rights in this area. It is against some of,these
laws that the main attack of the Ap licants regarding rights of residence
in the Tenitory is ditected, and t ey1: WU therefore be dealt with in
detail in the reply to the aiiegations contained in the Memorials
' U.C. 41-1926. para.25. p.103 The Agreement formsthe Schedule to Proc.
No. 28 of 1923 (S.W.A.), hy which it was ratified and eonfirmed. (Lowr of South
West Atricn, Vol.II (1923.~927p)p.. 145.148.)
Proc.No. gof 1928 (S.W.A.).sec. 6(2)in TheLuis ofSoulh WestAfrica1928.
p.46. For the rewns for the envtment of this sub-section-which according to
its provisa did not affect anyexisting rights laarfuUyacbeforethe commence-
ment of the Proclanution,vi& para.52, rupo.
3 Vide para.52.su+.
Vida para.10,supra.
Vide para.113 et seginfra.254 SOUTH WEST AFRICA
IV. THEATTITUDE OF THE PERMANENM TANDATEC SO~IMISSION
71.As early as 1919Respondent intimated an intention to adopt in
respect of the Natives in South West Africa a policy basically similar
to that followed in the Union. In the Administrator's report for rgrg
it was indicated that the Governor-General had stressed the need for
such a policy diiring Iiis visit to the Territorl.During the discussion
of the report, M. Kappard, then Director of the mandates section of
the League of Nations, in a statement to the Permanent Mandates
Commission, said:
"ïhe Report contained various passages of interest; in particular,
it was stated that the treatment of the natives would have to be in
conformitywith the policy adopted in South Africa 2."
72.In the course of the ensuing years Respondent's reserve policy
was repeatedly expfained to the Permanent Mandates Commission by
South African delegates. On various occasions the Commission approved
of this policy. and it is clearhat from the outset it favoured a system
under which the identity and customs of the various groups would be
maintaiiied.
73.During the tenth meeting of the Second Sessionon 7August 1922,
Mr. Ormsby-Gore, a member of the Commission, proposed that the
foiiowing be added to the Commission's observations on Respondent's
report regarding theTemtory: "... The Commissionexpresses the hope
that the primitive organization in tribes may be maintained unaltered
wherever it stili exist3." This proposal was adopted.
74. In the course of the examination of the annual report for 1922.
M. van Rees. a member of the Commission,asked the two South Airican
representatives, Sir Edgar Walton and Major Herbst, to explain the
whole position of the Native reserves. including the questions: what was
the reason for establishing reserves, and how should they be adminis-
tered? The following answer was recorded:
"Major Herbst said that a European Power on entering a territory
usually foundnatives livingin whathadcome to be termed 'reserves ,
i.e., land occupied by the natives from time immemorial. The term
'reserve' impliedthat these lands were reserved for the occupation of
that particular tribe bythe incoming Government. Therights of the
natives in those reserves had always been respected by the South
African Government. There were, however, cases in the past where
the natives had rebeUed and where the Parliament had taken away
the rights in that particular reserve. In the original native reserves
the native chiefs exercised full authority over their own tribes in
that particular area, except that certain practices, Le., the kiiiingof
their subjects or interference with adjoining tnbes. had been re-
stricted. Their own headmen. in the name of the chiefs, aiiotted land
to newly mamed couples, and native law was administered by the
chief or his headman.
1" South-West Africa there were two such original native resenes,
where the natives Livedaccording to their tribal customs and where
Vi& U.G.40-rgzo, p. 4.
P.M.C., Min.. 1p.33.
' Ibid.. II. 49. COUNTER-MEMORIAL OF SOUTH AFRICA 255
the administration had not applied its own domestic laws or levied
any taxation. These were the Ovambo and the Beerseba reserves.
These lands existed as when the South Airicau Government took
up the ?.dministration. No passes were required within these re-
serves. AU the land was regarded as belonging to the chief. who
allotted lands to manied couples accordina -o necessity '."
Replving to a question from the chairmm of the Commission as to
the policy of the South Afncnn Governmcnt iliregard to reser\res, Sir
Edgar Walton gave the followvingex~il3nation:
"Where .. .the natives cultivated land for themselves, it was the
policy of the Government to reserve forthem lands which they were
not aUowed to alienate and which white men were not ailowed to
if ailowed to live with the white people, eventually parted withatives,
their land and became vagrants and a source of danger. The only
way to preserve the native was to bring him gradually under the
influence of civilization, as was done in South Africa . . . The pohcy
of the South Afncan Govemment was one of segregation, but the
extent to which it would be applied in South West Africa must
depend on circumstances Z."
75. During the Fourth Session of the Commission in 1924M , r. Hof-
meyr, the South African representative, is reported to have said:
". .. the policy, wh'ich.after a long expenence in the Union, now
seemed to be best was one which would constitute what was known
as white areas and black areas. This policy would also be followed
in South-West Africa )."
The foliowing extract from the Minutes of the Fourth Session of the
Permanent Mandates Commission indicates that the Commission was
fuUy aware of Respondent's policy and intentions regarding Native re-
"".V.9-
"On the proposal of 11.Orts. the Comnttss~on ct~cillrlo frllalter,
the fourth pnra,~.r:ipli:ofitisj>rcialobscr\~atioiisoii the Adminis-
tration of Soiith West .4fric... the followine sentence:
'The Permanent Mandates Commission is of opinion that the
soundness of the views which have prompted the Administration
to adopt a system of segregation of natives in reserves will be-
comeincreasingly apparent if there is no doubt that, in the future,
the Administration will have at its disposal sufficient fertile land
for the growing needs of the native population. and Fhat the re-
serves wiUbe enlarged in proportion to the progressive increase
in the population' '."
During the same Session, one of the members of the Commission.
M. Beau, said that-
"it was very raiseworthy that not only the reserves aiready prom-
ised by the zermans had been given to the Natives. but ne\",and
much more important ones. It appeared also that the system in
P.M.C.. Min.. III, pp103-104.
"m., pp. 104-105.
4 Ibid., p154.1.256 SOUTH WEST AFRICA
force in ail the reserves was comparatively liberal, the Natives
having the nght to leave them and the Whites not being aiiowed to
enter them nor to acquire land there l."
76. MI. Courtney Clarke, re resenting South Afnca, made the foilow-
ine remarks during the 18th Session of the Permanent Mandates Com-
mTssionin 1930:
"... It must be remembered that, in the old days, the natives used
to wander ailover the temtory. That was now an impossible situa-
tion. Under the German regime, there had been a series of wars
which had left the native population a broken and scattered people.
The centre of the territory was occupied by European farmers and,
accordingly, the Administration had been obliged to make provision
must necessarily be native reserves, where the native populationcy
couid have its home and develop its own life. That being so, the
first thinr! to do was to make the reserves habitable. since this was
ttic oiily keaiis of tuminnuinadic people inro a settled population.
'I'heCommission wouldsec from the native section of the report that
the Administration was princi~ailv pre-occuuied with the water
supplies of the reserves. As more &Ger and more money became
and, when that was done. the Administration could take up ques-ities.
tionslike that of education....
As regards tlie rescrves. the Administration had a native reserve
superintendent in each reserve, and it hoped. by means of these
officers.the examde of the farmers. the teachina of the missianaries.
and by means of-education, to bring the native population into a
state of settled communities; but, as the Coriunission itself had
observed, the population was a very backward one, and it would
by native communities in other parts of 8011thAfncaop'."t attained
This explanation was a~parently. iccepted by the Commission, since
no further discussion on t s point ISrecorded.
77. At the 20th Session of the Commission in 1931, Count de
Penha Garcia. a member of the Commission, paid a tribute to the work
done by the Administration in the reserves-
"... to combat the shorta e of water and to select varieties of
stock, by means of which t % e possibilities of production. both as
regards number and value, had been greatly increased'".
78. Dwing the ~3rd Session of the Permanent Mandates Commission
in 1933, Lord Lugard-
"... congratulated the Mandatory Power on the ste s it had taken
with a view ta holding general meetings of the resifents in Native
reserves and hoped this movement wouid be extended ... Appar-
ently. these meetings were limited to reserves in respect of which a
reserves'."en established. He hoped a fund would be created in aU
P.M.C..Min..IV.p.62.
' Ioid.. XX. p. 56. 145-146.
* Ibid., XXIII, p. gr. COUNTER-MEMORIAL OF SOUTH AFRlCA 257
79. At the 29th Session of the Permanent Mandates Commission in
1936,Lord Lugard-
".. .noted that the Administrator and the Chief Commissionerfor
NativeAffairs had visited the native reserves with excellent results.
... It was verv satisfactory that the Bondels tribe had been set on
itIt was ais0 a matter for congratulation that the system ofgovem-
ina.the various tribes through tribal councils continued to prove
sacifactory and was being extended .. .'"
80. Reiemng to Native, administration in general during the 34th
Sessionof the Commissionin 1938,Lord Hailey said that most members
of the Commission would agree that the Union Govemment had given
proof of its concern for Native interests in South West Afri2.
Lord Hailey, referring ta paragraph 288 of the report for 1937, also
said_
... that the practice of Natives squatting on European land. was
clearly a otential source of great injur to the natives, many of
whom ha[ as the report showed. no lanL to which to return when
turned out in times of depression).
He thought that this seemed to be"... an additionalground for pressing
on with the development of the reserves" 3.
During the same Session Mr. te Water. the South African represen-
should have separate reserves, and said that nothmg was healthey andes
more hopeful than the return of the Native peoples to their onginal
tribal lives. subject, of course, to proper and sympathetic control. He
said that the policy of the Administration was to encourage the Natives
to live in their reserves, to restore and re air their tsystem and to
maintain their customs,so long as these 8d not confiict with the recog-
nized morals of modern civilization. M. Palacios replied by saying that
he was sure that the Administration was handling the situation with
geat tact, and personally agreed with Mr. te Water regardin,g "the
desirabity of a retum by the Hereros to their old national feelings'.
81. It therefore appears fTom the aforegoing that the Permanent
Mandates Commissionwas fuUy aware of, and approved, Respondent's
reserve policy.
C. Reservesin OtherParts ofthe World
82. The task of promoting the materiai and moral weU-being and
socialprogress of nations and grou who are in a relatively backw~d
stage of develo ment, isundoubte $Lya dificuit one, and hasaven me
to many and 2vergent problems al1over the wodd. This is especiauy
P.M.C. M.iri.XXIX,p. 133.
' Ibid.p.82..p. 78.
Ibid. ..92.258 SCUTH WEST AFRICA
tme of countries populated by groups with different social, economic
and cultural backgrounds.
83. To meet such problems, there developed in many countries of
the world a system of reserving land for occupation by different com-
munities or population groups, the underlying consideration generaüy
being the protection of such people against encroachment by others.
In some cases protection took the form of prohibiting or limiting the
acquisition of land by al1persons other than the indigenous peoples of
the country concerned; in other cases, again, reservations were made of
defined areas within a country for particular population groups.
In the succeeding paragraphs examples are given of arrangements
made in the past in a few countries, in some of which conditions were
broadly similar to those prevailing in South West Africa.
II. BASUTOLAND
84. In 1956 Basutoland had a total African population of 638,857 as
compared with only 1,926 Europeans, 247 Asiatics and 644 persons of
mixed blood 1.
85. Section IO of Proclamation No. 46 of 1907 provides:
"No person, other than a native, shall be permitted to reside
within the Territory except upon the Reserves set aside for use by
the Govemment. upon sites specially set aside for trading purposes
and upon sites set aside for missionary purposes, without the author-
ity of the Resident Commissioner 2."
In terms of the Regulations of 14 March 1941, applicable to Govern-
ment reserves 3,no person who has been granted land in a Government
Reçerve "shaU lend, lease or dispose of such land to any other person"
unless he haç fvst obtained permission from the District or assistant
District Officer.
86. The policy of the authorities is not to allow any non-Native to
settlein the country ', and Basutoland is thus tmly a Native "reserve".
As in South West Africa, land is apportioned among Natives on the
sommunal principle, and consequently there are no individual owners,
although rights to gardens in rural areas are inheritable, as are nghts
to residential and garden sites in villages
III. BECHUANALAND
87. Bechuanaland Protectorate has an area of about 275,000 sq.
miles and a total population of approximately 300,000, includmg, ac-
' Annual Rcporl on Bwuloland /orthe yenr1957 (1959). pp. 26,28.
Proc. No.46 of 1907 (Basutoland). as amended,sec. IO. in Rmired Editia of
theLnws of Basutoland in fwcr on lhc 1st Dny of Jonuary, 1949 (1950). Vol. 1.
Title III. Chap.35. p.447.
Ibid., Vol. III. Title III. Ch31.PartVI. sec.3, p.234.
' Vide Yeav Book and Guids Io Soulhem Africo r.6r. ed. bvA. Gordon-Brown,
p.204.
' Duncan, P.. Solho Law* and Cuslomr: A Handbaok based on Decided Casasin
Basutaland together with TheLaws of Lerotùoli (1960). pp. 98-99. COUNTER-MEMORIAL OF SOUTH AFRICA 259
cording to the 1956 census, 3.173 Europeans, 676 Coloureds and 248
Asiatics.
Land is classified into five distinct categories, viz., (i) Crown lands,
with an approximate area of 165,175 sq. miles; (ii) tribal temtories.
comprising about 108,ooo sq. miles; (iii) fdrming areas; (iv) the Tati
district, owned by the Tati Company, and (v) game reserves !,Inside
the tribal territories or reserves the old Tswana system of communal
land tenue prevails, and no attempt has been made by the Administra-
tion to alter it. The reserves are legally inaùenab!e. No European may
own land, or carry on business of any description in them, without first
having ohtained the consent of the Chief and the tribe. Further, no con-
cession made by any Chief for mining or other purposes is valid until
sanctioned and approved by the Crown '.
88. Althou h control over land and its resources is vested in the
Chief, none Of the land-except those.portions reserved for him and his
family-is his property; nor can he dlspose of the use of it except gra-
tuitously, and then only to members of his own tribe '.
IV. SWAZILAND
89. Swaziland offers a classical illustration of what tends to happen
when control is not exercised over the alienatio? of land by indigenous
chiefs and land acquisition in private ownership is freelypermitted.
go. During the last century Chief Mbandini had given to Europeans
concessions in the nature of land. forestry and mineral nghts, which
nearly exhausted the resources of the couriri).. A5 ilresult of Ünrestricted
concçssiori-hunting. the southern 3rd ivcstern portions of Swaziland-
amountina to about two-thirds of the ii~holvterritor)'-werc p.ircelled
out by wny of concessions to Europeans '.
91. This process waç partly reversed during the period 19x10-1910,
following upon the Territory becoming a Britisli Protectorate. In 1907a
Proclamation proviàed for the laying out of resïrves for occupation by
the Swazis. with due regard to their existing and future needs. The
lands available for this purpose included Crown lands and land resumed
irom concessionaires.
92. Since 1907 fairly substantial areas have been purchased by the
Swazi Nation. and some small farmç hy individual Afrir:ans. In addition,
land has heen nurchased under the Native Land Settlement Scheme-
inaugiirnted in'1946 by the Admirii$trn(ion for the piirlmse of estab-
lishing swazi families on setrlement< under permanent lclse '-to whch
1 Vidd B~chuanolondProledorate: Report for the Year 1957 (1958). pp. 34-35.
and Bechumtaland Protccto*oleRepori for the Year 1959 (1960). pp. 34-35.
As dehned invarious chapters of the laws of Bechuanaland Rotectorate.
3 Schapera. 1..A Handbooh of Tswann Law and Custom (1938). pp. 195-196.
4 lbid.p.. 196.
Sheet 6 ofJepl>e'sMap of the Transvaal or SouthAfrican Republic and Sur-
ro6nPTOC.No.it28&of 1907 (Swaziland), in OfjSciGnrctlc oflic High Conimissimn
Io*South Africa. Vol.XXI. No. 3x2 (25 Oct. 1907). pp. 7-10.
' Hailey. An African Suwcy (1957). p. 779.260 SOUTH WEST AFRICA
has been added certain Crown Land. By the end of 1957 more than half
of Swaziland was available for Native occupation 1.
Native Areas set aside for the sole use and occupation of the Swazi
peop)e by Proclamation No. 39 of 1910 are vested in the High Com-
rnissloner in trust for the Swazi Nation, while land urchased from
European owners by the Swazi Nation is vested in the $mamount Chief
in tmst forthe Nation. Land set aside for the Native Land Settlement
Scheme is vested in the Swaziland Government, and its use is controiled
by the provisions of Proclamation No. 2 of 1gq6 3, in tem of which
six acres per family unit may be aliocated to Swazis on permanent
lease '.
93. Section z of the Southern Rhodesia Order in Council, ~gzo, pro-
vided:
"The lands known as native reserves assigned by the Company for
the occupation of natives. . . are hereby vested in the High Com-
missioner and set apart for thesole and erclusiveuse and occu dion
of the Native inhabitants of Çouthern Rhodesia ... S" (ftalics
added.)
It was further provided that no person other than a Native would be
entitled te
6.
.. .occupy any portion of a Native Reserve except by special per-
mission given in accordance with such reylations as inay be issued
bv the Adrninistrator. with theaoo"ovalof the HiehCo',issioner 6".
In terms of the 1923 constitution the said Order in Council was to
continue in full force and effect as if it formed part of the constitution7.
94. Under the Land Apportionment Act of 1941~ all land in the
Colony, save that cornprised in the reserves and the areas set aside for
the soleuse and occupation of Natives. was classifiedas (i)the European
Area; (ii t)e Native Area; (iiti h) Undetermined Area; (iv) the Forest
Area. and (v) the Unassigned Areag. It was further provided that
"... no person other than an indigenous Native rnay acquire, lease or
occupy land in the Native Area" '0.
In terms of section 18 (1) of the Act a European landowner in the
Vide Swaziland: Report for the Year1958 (1959). pp. 68-69.
1 In Raiscd Edilion of lhs Lawr of Swa%ilandin Foru on lhs 1st Doy ofAp~il,
1949 (1951).Vol.1. Chap. 62,pp. 575-576.
' Ibid., Chap.63. pp. 578-585
+ Vide Swiuilond: Report forthe Year 1958 (1959). p. 16;vidaalso Hailey. An
'inca* Su*uey(1957). P. 779.
' SoufhernRb&si<r Ordn inCauncil. rgso,sec.2,in The SW Low of Smdh
Rhodcria, from rsl Jnnuary10jrst Dcçcndbr. 1920 (1921). p. 2561.
IIMd.,W. 4. p.2562.
' Vide Th6 Soulhm Rhodcria Cmsfilulia Lcfkrr Pdrnl, 1913, sec. 42.in Tb
SfnlulaLaw of Soulh Rhodrsia, Frm rsl janwry 1031slDacambsv,1923 (1924).
P.25.
Act No. 11 of1941, in Th6Statute Law of Soulhsrn Rhodcria mgr (1942). ~FL
50-90.
Ibid.. sec5(1).p. 53.
Io Ibid., sec6.p. 53. CO-R-MEMORIAL OF SOUTH AFRICA 261
Undetermineci Area could dispose of such land to any person, provided
that no person could dispose of land in the said Area to a Native unless
such Native. and the terms and conditions of such disposal, were spe-
cially approved of '.
95. Owing to the intricate problems created by land apportionment
in a plural society.there were 165 changes in the Land Apportionment
Amendment Act-of IWI-many-of thëm major ones-&a eriod of
17years. In its basic form the Act laid down separate areas for Euro-
peans and Africans in which to live and conduct business and agriculture.
in 1961, however, came a change of policy when the Land Apportion-
ment Amendment Act of that year 2petmitted Natives to purchase and
live on land formerly reserved for Europeans. and to conduct business
in competition with Europeans in former non-African areas.
VI. NORTHERR NHODESIA
96. Until1962 all land in Northem Rhodesia proper could bedivided
into three categories, viz., Crown Land, Native Reserves and,Native
Tmt Land. the last two categones comprising aUexcept approximately
6 per cent. of the total area.
97. In regard to Native reserves. the foilowing provisions applied:
(i) AUreserves were vested in the Secretary of State and set apart in
etuity for the sole and exdusive use and occupation of the
mves of Northem Rhodesia.
(ii N)o portion of any reserve could begranted to any non-Native Save
under lease for a period not exceeding five yean.
(iii) No person other than a Native could omipy any portion ofa reserve
Save h special permission given in accordance with regulations
prescri&d by the Governord.
98. Al1Native Trust Land was vested in the Secretary of State and
was, subject to his directions, administered hy the Governor for the use
and common benefit of the Natives. No titles claimed by non-Natives
to the use and occupatioii of any such land were valid unless they had
been conhmied by the Govemor, who could also, when it appeared to
him to be in the general interests of the community as a whole, grant
rights of occupancy to non-Natives '.
99. In 1962 the Native Reserves and Native Trust Land Orders in
Council were amended by ailowing the Govemor to make grants or
dispositions of land in Reserves and Native Tmst Land to individual
Natives. Thereby the Secretary of State agreed to relax his rights as
Tmstee in favour of those individual Natives to whom grants might be
made by the Governor
'Act NO. 11 of 1941,in The Statule of Law of Soulhem Rhodcria 19(1942).
see.18(i).P. 55.
'Act No. -.ofI-61 ~Southeru Rbodesi.-. in ThsSlalufaLamolSoufhRb&k
1961(1962)p.p.235-285.
' Nm<h Rhodcnis (Clown Lsnds ad Native Rercmer) O~dclriri Cound1918
u>'Ndhmsec.6RhhicBo (Nofios Trust Land) Ordsrs in Council. 194710196secs.
54. inLnws of Nwlhcm Rhodesio,1962 Edition. VoVIII. App. 5.pp.34-37.
'NmlhhnnRhodesio (CrownLnndrand Nativc Resnvrs) Orhrs in Council. 1928
0 1961.pec.6 andNwfhcrn RWsio (Naliw Tvurl knd) Ordcrsin Council, 1947262 SOUTH WEST AFRICA
zoo. Within the Protectorate of Northern Rhodesia the Barotseland
Protectorate enjoys a 5pecial place. Treatics betwecn Paramount Chief
Letvanika and the British South Afnca Company still govern relations
bet\i.een tlie Governrnent of Sorthem lihodesia. the Hritish Government
and the Barotse S;iti\.e Governnient. These tre3ties rcstrict immi ation
into k3arotscl:ind.and ensbrine the rights of the Barotse Kative (%cm-
merit and l'aramount Chief to control al1tribal matten within the F'ro-
tectorate '.No person may alienate any portion of the temtory without
the consent of the Chief of the Barotse and the Secretary of State 2.
VII. KENYA
101. Euro ean settlement in the Highlands of Kenya, encouraged by
the British &vernment, led to a policy of reservation of separate areas
for Natives and Europeans. In the Kenya Crown Lands Ordinance of
19x5' pro"sion was made for the setting aside of areas for Native
reserves. temporary Native reserves ', Native leasehold areas "d
Native settlement areas 6. On the other side of the pictwe, and in con-
formity with guarantees given by the British Govemment that the
Highlands would be exclusively reserved for White settlement, it was
provided:
(i) that no person could,exceptwith the written consent ofthe Governor,
sell, lease, sub-lease, assign or part with the possession of any land
situate in the Highlands to any other person ,
(ii) that no European lessee could, without the consent of the Governor
in Council, appoint or allow a non-European to be manager of, or
othenvise to occupy or be in control of. the land leased
roz. In 1952, however. the British Govemment appointed the East
Afncan Royal Commission which, in its report published in 1955~.
among other sweeping changes reeommended systematic grants of
registered titles to Africans in mral areas Io.Subsequently the policy of
the Government was stated-
"... to aim at the progressiveabolition of racial and tribal land bar-
ners, and, in order to assist this process, to ensure that the basis of
tenure and management of agricultural land is similar throughout
Kenya, regardless of race and tribe as far as local economic and
ecological factors permit " ".
lo1962.sec. 5, inLam ofNorfhern Rhodrria. 1963 Edition. Vol. VIII,App. j.pp.
7-8.34-37.
' Vide YsarBook and Guidc 10 Southern Africn 1961.p. 294.
Vide A'orfharnRhoderia Ordcrs in Council,1924 to 1960,sec. 41 (1).in Lows of
Noflhcrn Rhoderio, 1961 Edition, Vol.VIII. App. ?,p. 15.
Ord. No. 12 of1915 (Kenya). asamended. in The Lnws of Kenya in /wu a fhc
zrrt Dny of Sefitcmbcr. 1948. Revised Edition,Vol. II. Chap. r55.pp. 2015-2108.
'Ibid.. sec. 55.pp. 2030-203~.
'Ibid..Sec.57,p. 2031..
' Zbid., sec. 88, zoqo.
Ibid..sec.36. p.2026.
Cmd. 9475.
'OIbid., para. 7z.p.222.
" Colainl Oficr Rcporl a flicColay andPlofrctoralr of Kenya forthe yea? 1959
(*96=.)P. 34. COUNTER-MEMOR IA LOUTH AFRICA 263
VIII. LIBERIA
103. The following extract from Hailey refers to Liberia:
"The land on which the American Colonization Society planted
its first settlement in Liberia was obtained by treaty from local
Chiefs. The President of the Liberian Republic in his inaugural
address in rgo4 stated that these agreements included either ex-
press or implied reservations to Native use of land which was in
actual occupation. Later in the same year, however, a number of
Chiefspresented an address to him complaining that they had been
'deprived of all their lands and now practically possessed none'.
While this statement may have involved some exaggeration, there
is evidence that in the coastallands aboriginal tribes were frequently
dispossessed of land in the interests of American Liberians. There
has on various occasionsbeen much trouble caused owing to com-
plaints by the Km tribe and in the Maryland County that Native
lands have been aiienated for the benefit of this class. It will be
recalled that perçons who are not citizens of Liberia are excluded
by the Constitution from the possession of land.
It was apparently the intention at one time to demarcate tribal
Reserves for the protection of the lands of abonginal tribes, but no
effective steps appear to have been taken with this purpose. There
is a procedure by which so-called 'tribal Reserves' are created by
at the rate ofe25 acres per family. This appears to lie within theem
competence of the Land Commissioners, of whom there is one in
each of the five Counties. They may lease or sel1land to Liberjan
citizens, and make free 'Bounty grants' to soldiers of the Libenan
militia. It has, however. been alleged that the Commissionershave
no regular system of records of these grants of 'Resewes'.
The Firestone Concession of 1925 ,xtending in the first instance
to an area of r million acres, involved the dispossession of a large
number of indigenous occupiers, though in theory 'tnbal Reserves'
were excluded from the Concession area. The Firestone Company
announced. however. thatit was prepared to aliow the Chiefs,asan
act of grace. to select land for the occupation of their people.
It would appear that a number of Concessionsof land have been
given since rggo, and there has been some indication of the intention
of the Liberian Government to enact a new land law, on the ground
that the existing legislation isnow out of date'."
IX. CANADA
104. In order to control the proces of penetration by Whjte settlers
into the interior of Canada, the Dominion Govemment. after its acqusl-
tion of the future prairie provinces (Manitoba, Assiniboia, Saskatchewan.
Alberta and Athabasca) in 1870, and the addition of British Columpia
ta the confederation in 1871,established a special Department of
Aflairs.It also resorted to a policy of placing the Indians in temtonal
reservations, already introduced in the olderprovinces at an earlier d'.e
' Hailcy,An Atriton Sunicy(1957)pp.758-759.
' Yi& EncyclopaediiBri/annico(9th Ed.)Vol.IV, pp.767-768264 SOUTH WEST AFRICA
105. In the Indian Act of 1886 Indian "reserves" received statutory
recognition. They were defined as tracts of land set apart by treaty or
otherwise for the use or benefit of a particular band of Indians, wd it
was specihcally provided tbat only Indians of the articula band might
settle, reside and hunt upon the reserve of such a {and '.
106. Writing on Canada's Indian problem in 1961, Walter Gray
stated, inter alia:
"Three years ago the Govemment decided to take a searching
look at the problems facing Canada's 175,000 Indians, and estab-
lished a Parliamentary comrnittee to tackle the job... .
Canada's Indian reservations are as old as the country's hitory.
Asthe Whiteman graduaiiy took over the vast expanse ofwhat was
once Indian temtory, the natives were given huge tracts of land for
their own use. Responsibiüty for their welfare was assumed by the
Federal Govemment. Over the ears many Indians have drifted
away from the reservations, but tKemajority have chosen to remain
together in their closely-knit society, eaming smaU incomes on the
reservations, more or less as wards of the Govemment. ...
The Indians are demanding a greater voice in the mning of
their affairs throueb a transfer of res~onsibilitv to their band coun-
cils and a lessenini of Government côntrol. Théywant theu reserves
built up into helilthy communities through careIuldevelopment. ...
At least ariother fuii year of study ii to be carried out before the
joint committee sets out its recommendations to Parliament. It is
generally assumed that thereservation systemwiii not be abandoned.
for the Indians themselves cherish what land is theirs. They have
the right to leave the resenres of their own accord. but when they
do they lose thcir special rights, such as a share of the band funds and
s~ecialGovemment allowances. Onlv Government legisla-ion would
protect those rights2."
X. THEUNITEDSTATES OF AMERICA
107 A policy of reservations for Indians in the United Stateç has
been applied for a very long time. although there was in the early days
much vacillation due to pressure by White pioneers moving ever further
westwards.
108. By 1880 WtuaUy alithe Indians in the United States not
absorbed into the general body of the population had been removed
either to Indian Temtory-lands west of the Mississippi-controlled by
the Govemment, or to federal reservations within the borders of the
vanous states ).Shortly afterwards the ideal of a specificallyIndiaTn-
ritory was crippled with the disiitegration of the then existing area of
70,000 sq. miles bearing that name, in order to establish the state of
Oklahoma4. Nevertheless. Indian reservations have been retained, and
Vidc Th RcviscdSlalulcofCanada, 1927,Vol.II, Chap98. secsz (1) and21,
pp. 2and 7.
Gray. W.. "Canada'sIndian Fmbkrn". in Rand Daily Mail, 5 May1961.
Gannett. H.,''Modeni History and Present Distribution of NorthAmerican
In'Beard. C. A. and M. R.ThenRissofAeinicon Civilirolim (1944one volume
editionlVol.II. pp. 143-144. COUNZER-MEMORIAL OF SOUTH AFRICA 265
when a new period in Indian Affairs started about 1928 with the ap
warance of Lewis Meriam's re~ort '. there were some zoo tribes num-
Leringoizr 350.0o0souk on about zoo separatc reservations in 26 States,
mainly in the northem. central and western States. with the biggest
number in Oklahoma. Arizona and South Dakota.
109. The Meriam Report gave rise to the Indian Reorganization Act
of 18 June 1934 , hich has been analysed as follows:
". .. as to those tribes which ado~ted the act bv formal vote of their
memhers, it prohbited the indiGduaJ allottin$'of tribal lands and it
authorized the Secretary of the Interior to return to tribalownership
lands'which had been withdrawn for homestead entw but had not
been pre-empted. The Act also authorized an annualappropriation
of 82million to pwchaçe land andadd itto the diminished resources
of the tribffi, and established a revolving credit fund of 810 million
(later increased to $12 miliion) to enable Indians to improve their
land holdings and supply themselves with necesçary equipment.
But the real heart and core of the Indian Reorganization Act was
the recoenition of the inherent neht of Indian tribes to owrate
~ ~-
thro&&hgo~ernments of their bwnucreation. whether ~~~tom&~or
formalized bv written documents. and through busines corporations
which the tribes could create and manage 2.T'
110. Since the enactment of the Indian Reoreanization Act there
have again heen vacillations of polcy, and also an Ünexplained cessation
of a development programme ivhich appeared to be achieving consider-
able success 3. h'evertheless the Indians themselves are still stronalv
opposed to any ideas of ending the reswation system. The Chott%
Nation. the Apache Coundl.the Oglala Sioux Tnbe. the Chippewas, the
Umatilla and the Walla WaUaare only a few of the groups that have sent
their protests to Washington over the so-called 'termination" policy.
In the words of WilliamStafford:
"... the Indians have declared that termination without Indian
consent is a violation of the treaties which promised Govemment
obhgations in return for the vast tracts of valuable land the Indians
ceded to the Government.
The tribal councils wüi no doubt seek to halt the Government's
action through le al measutes. For abandonment of the reservations
may well mean tfe end of the Indian community and its disped
intothe rest of America-one more ingredient for the melting-pot '."
XI. CONCLUSION
III. The above exposition shows that licies of land rese~ation
are being. or have in the past been, applieEn various countries of the
' Merian, L., Ths Problcm of Idinn Administration (1928) [undertaken at the
toqin DcclotdionofrIndiin Purp.ora.App.eI,p..zo(Report of the Amencan Indianeferred
ChicagoConference. held at the University of Chicago from 13-20 June 1961).
Dcclnratia of Indian Purpose. App. a.pp. 21-22.
~ lbid.,pp. 26-27,
' Stafford, W.. "TheWda Wda fight fortheirlands", in Th8 Natd Daily News.
Io Nov. 1954.p. 9. Via also "Why no integration for the Amencan Indian". in
U.S. Nnus & Wald Repwl. Vol. LV. No. ro(z Sep. 5963).pp. 62-66.266 SOUTH WEST AERICA
world. It also demonstrates the importance not only of protecting less
developed groups. but also of providing fair opportunities for all.
112. It is tme that some countries which have in the past applied poli-
cies of the kind aforestated, have already adopted, or are now adopting,
new policies of which the general effect is to abolish differentiation in
rights of land occupation and ownership. As already indicated, Respon-
dent sees the matter, as far as South West Afnca is coucerned, as one
of achieving and maintaining a balance between the legitimate aspira-
tions of various moups, each of which has a contribution to make to-
wards. and a clai& t6 sliarz in, the general u.ell-bzing and development
of the Temtory, and Kespondent believcs that in tlie circumstances of
South \Vest Africa tliis can bat be accomolishe<l bv setring aside, as far
as ~racticable, an area for the exclusive uséand occüoation ofeach mouD.
iYliile liespondent also rccognizes tlie iieed of &king adjubymenis
from time to time in tlie ligltt of altzred circumstanctq. it considers that
itshould no1 in ttie process abandon the fundamentalsof iipolicy wliich
has stood the test of time in its operation for the bencfit of a11the in-
habitants of the ï'erritory. and whicli snn, witli necessarv and suitable
ada tation, bring about the establishment of a system of creating home-
lan s for the various population groups of the Temtory.
D. Reply to the Appiicants' Aiiegations
113. As aheady indicated ', the provisions to which the Applicants
refer in paragraphs 138 to 145 of Chapter V of the Memorials can con-
veniently be classified as those relating to rights of resideuce in (i) the
Native reserves, (i) the Police Zonegeneraüy. and (iii)urban areas in the
Police Zone.
114. Although it is admitted that the rights of residence of Natives
are to a certain extent restricted by the provisions in question, Respon-
dent wishes to point out that the Applicants fail to make any reference
to limitations imposed on the resideuce of the White group in Native
sionsvimposing these limitations are in the first instance directed to the
entry of members of the White group into such reserves and residential
areas, they wili be dealt with in Respondent's reply to the Applicants'
aliegations concerning freedom of movement ).
II. RIGHTS OF RESIDENCE IN THE NATIVERESERVES
(a) ThePowns fo SetAside Native Resmes
115. In paragraph 138of Chapter V of the Memorials' reference is
made to section 16 of the Native Administration Proclamation of 1922 ',
-
' Vida para. r, supm.
1. pp. 146-148.
' 1,p.C146. IV.paras.40-44 and 50,infra.
' Pvoc.No. ri of1922 (S.W.A.),sec.16.in The Lowr af SoïlWest Atrica1915- COUNTBR-MEMORIAL OF SOUTH AFRICA 267
in terms of which the Administrator is emnowered to set aside areas as
Native reserves for the sole use and occGpation of Natives,generally,
or of anv race or tribe of Natives in particular, and to prescribe remla-
tions go;erning the inhabitants of such reserves. -
116.It may be that this provision is referred to only by way of in-
troduction; it seems hardly likely that the Applicants should wish to
object to the conferment of such power or to the fact that reserves
have been set aside for the sole use and occupation of Natives.
On the other hand, the provision refers to "such restrictions and to
such regulations as. . . [the Administrator] ... may prescribe", and
it may thus be that paragraph 138 was intended to be read together
"th paragraph 154 (3) of Chapter V of the Memorials 'in which it is
alieged that Natives are confined within sharply defined areas and places
under prescribed conditions, and that "the pattern of restrictions" upon
the residence of Natives is "unifonnly arbitrary and discriminatory".
117. Respondent has dealt above 2 with the grounds upon which it
was considered desirable, in the interest of the different group, in the
Territory. to apply a policy of setting aside, as far as practicable, areas
as reserves for the various groups, the basic idea being to provide per-
manent homes for such groups. By so reserving the rights of a group in a
particular area. the corresponding rights of other groups in that area
must of necessity be limited or excluded.
118. Respondent has also shown that at the inception of the Man-
date it was within the contemplation of al1parties concerned that such
a policy was likely to be applied to South West Africa 3: that the basic
principles thereof had been evolved in the light of experienceof a similar
problem in South Africa over a period of more than a century '; that it
was known to and approved of by the Permanent Mandates Commission ';
and that similar policies have been applied in many parts of the world,in
countries where different groups in different stages of development hye
together % The aiiegations that the said policy is "arbitrary" and "dis-
criminatory" ' are consequently devoid of substance.
119. In so far as this policy differentiates betweeu groups, confines
groups to defmed areas for residential purposes, and thus imposes re-
strictions as to their potential places of residence, it does so reciprocaiiy
Although the area occupied by the White population grouphe Applican1s.larp
than that of any of the Native reserves, it in fact provides residential
ative employment therein-whereasthe Nathe exclusion of residence by White
persons in the Native reserves is absolute (save for a few officiais and
others who assist the Natives concemed)
120. While it is true that in terms of section 16 of the Proclamation
' 1.p. 151.
Vide para.35 d scg.supro.
' Vidc para.23. supvn.
' Vide para. rzcfsc9.supra.
Vidc para.71 d icg.s.upra.
Vidc para.84 et reg.uplo.
' 1,para. 154 (3)p. 151.
Vide Chap. IV,paras. 40-44, infra.268 SOUTH WEST AFRICA
the inhabitants of the reserves are subject to such restrictions and regu-
lations as the Administrator ' rnay impose, the White population is in
its area obviously also subject to statutory provisions and restrictions.
For reasons alreadv ex~lained. the svstem commenced with the Ad-
ministrator being the 1égislatoras regards regdations and restrictions
applicable to the reserves. but it envisages a progressive measure of self-
government forthe Natives in their contemplated homelands.
(b) ThcPowm to Presme and DevclopNative Arcas
121. In paragra h 139. and also in paragra hs 116,117 and 124 of
Chapter i'of the Remorials 2. reference isma 1e to some of the powers
conferred upon the Administrator (uow the State President) 3in terms
of section I of Proclamation No. 15 of1928 (S.W.A.).The relevant para-
graphs of this section read as foliows:
(c) he rnay define the boundaries of the area of any tribe or of a
location and rnay from time to time alter the same and rnay
divide existine tribes into two or more narts or amaleamate
tribes or parts-ol tribes into one tribeor ionstitute a nëw tribe
as necessity or the good government of the iiatives may in his
opinion require; - -
(d) he may, whenever he deems it expedient in the general public
interest. order the removal of any tnbe or portion therwf or
any Native from any place to any other place within the man-
dated Territory upon sucb terms and conditions and arrange-
ments as he rnay determine;
(g) he rnay generdy exercise aii political power and authonty
which according to the laws, customs and usages of Natives,
are held and enjoyed by any supreme or paramount native
chief 4."
122. These powers were conferred upon the Administrator in order
to enable Respondent to cany out its policy of setting aside land for
the settlement and rehabilitation of Native groups andof developing
and conserving the land, the grazing and the water for their exclusive
use.
123. As previously stated ', one of the main considerations of Re-
spondent's reserve policy was to reunite scattered remnants of the
various Native tribes and to settle them in their natural environment,
under the suuervision of ex~erienced officia15who would. with due re-
gard to their inbal organizafion and customs, guide them in reorganizing
th& disrupted social and economiclife. In the 1.2- annual report it was
stated:
"Simultaneously with the demarcating of the reswes it was
necessary to get the natives moved into them. and this has proved
' Now the State Resident(Act No. 56 of 1954).
1.pp. 139-141,146-147.
'The powen conferred onthe Administrator by the Roclamation werc from 1
April1955 vested in the Governor-Ceneal (now ihe State President)Act NO. 56
of 1954.sec.3 (1).in Stolvtcs of tUnion O/Smth Afriulr954. pp 559-591.
' P~oc.NO. 15 of1928 (S.W.A.), secI, inThc Lems O/ South West Afnca 1928.
p. 60.
' Vida paras.41-43,su*. COUNTER-MEMORIAL OF SOUTH AFRICA 26g
a very difficult undertaking. Native families which had been broken
up under the Germanregime were endeavouring to unite from
O psite ends of the country in orderto proceed to the same reswe.
Zttle had to be collected. native ownership questions settled,
transpori of old and infirm dependants anangéd,io that the move-
ment ha3 been slow and is still in progres. Until the various com-
munities were definitelv settled in tlie resenitwas of course very
difficuit to secure any-real development work. Competent and ex-
perienced Superintendents were, however, appointed in most of the
Reserves .. .'"
124. Respondent's major task, after having brought the Natives on
to the land,was to teach them how to develop and preserve their areas
in order to increase their carrying capacity. To these Natives scient!fic
methods of soil conservation and protection and preservation of graziag
and water, etc.,were unknown. As was to be expected, therefore. pro-
gress was slow and much damage was done over the years to the soil,
grazing and water conserves.
125. Section I (c) of the Proclamation, which confers the powers to
define the boundaries of areas set apart for the use and occupation of
Natives generally or of any race or tribe of NativeS.in particular 2,is
concerned only with the establishment of geographrcal boundaries of
areas set apart for the use and occupation of Natives. The powers con-
ferred by the words "and may divide existing tribes into two or Tore
parts or amalgamate tribes or parts of tribes into one tribe or constitute
a new tribe" were intended to be used for the purpose of assigning
particuiar geographic entities to particular tribes or portions of tribes,
cirmmstances so reouire. to ienore tribal affinities. to divide a tribed
geographically,-and {O establisi; more than one area forthe occupation
than one tribe. These powers were not intended for any other purpose,re
nor is Respondent aware of any use or attempted use of the powers for
any other purpose.
126. Section I (c) of the Proclamation must be read in conjunction
with the provisions of section 4 (3) of Act No. 49 of 1919 , hichpro-
hibits the alienation of land in the Territory set aparas a reserve for
Natives or Coloured persons Save under the authority of Parliament,
and with section 5 (1)of Act No. 56 of 1954 ,hich provides:
"Notwithstanding anything to the contwry in an). law containeci
the Governor-General ' mas. hy proclamation in the Gazelleand in
the ofinal Cazeffeof the territorv. with the aoproval bv rejoliition
of boih Houses of Parliament, géscindany %servatioi or setting
apart of any land or area referred to in sub-section (1)of section
leur,or of any portion of such land or area, subject to land of at
least an equivalent pastoral oragricultural value being reserved or
1 U.G. 261926. p.iog.
2 Vide the comprehemive definition of 'locatinse.25 ofthe Proclamation
(Lnws ofSwth Wcsf A/ncn 1928, p. 78).
3 Act No.49 of1919.in The Laws of Souih WeslAf*ica rgr5-rgza. pp.10-12.
4 Now the State President.*7" SOUTH \!'EST AFRICA
set apart, in terms of any law in force in the territory, for the sole
use and occupation of natives '."
127. The powers conferred on the Administrator are necessary for
the good government of the Temtory. That this is the purpose of sec-
tion I (c) of the Proclamation is clear from the words "as necessity or
the good government of the Natives may in his opinion require". It is
not alwavs ~ossible to accommodate al1the members of one tribe in the
same r~s~.rvee .ven though this may be desirable. The reserve may become
ço ovcrcrowded that it is necessary to provide other arcas for a portion
of the tribe. . .
128. The Memorials seem to imply that an order issiied under para-
graph (c) pn se restricts the rights of residence of the tribe or tribes
concemed. It is respectfdy submitted that this is not the case. The
Proclamation does not require any Native to live in an area of which
the Administrator has detemined the boundaries. The effect of such
determination is principaliy to exclude other groups from acquiring
rights of residence in such defined areas.
129.Paragraph (d) of section I of the Proclamation authorizes the
Administrator to order the removal of any tribe or portion thereof, or of
any Native from any place to any other place within the Territory if he
deems it expedient In thegennal pzrblicinterest.
A number of situations may be envisaged in whicli the gend public
interest requires the removal of a tribe or a portion thereof or of an indi-
vidual Native. To mention only a few:
(i) Land may be so neglected over a period of time thatit may become
necessary, in the interests of the inhabitants, to remove them to
another place 2.
(ii) The continued occupation by a tribal group of land in the catch-
ment area or at the source of a river may be so detrimental to the
preservation ofthe water sources ofa particular area asto necessitate
the removal of the group concerned.
(i) Peace and good order in a particular area may be ço seriously
threatened by the activities of one or more nuschief-makers. or
by the existence of bad blood between tribes or factions, as to
render necessary the removal of individuals or groups.
130. That the existence of the powers conferred by paragraph (d)
of sectionI is essentiai. is welidemonstrated bvthe onlvfour occasions-
as far as can be ascertained-on which it was-foiuid nëcessary to invoke
these powers:
(i) The tint occasion is referred to in the annuai report for 1932 j.
An Ovambo Chief. Ipumbu, was deposed for endeavouing to stir
up trouble against the authorities of his tribal area and he was
banished to the Okavaneo. The removal order was made at the re-
quest of and with the approval of the inajority of the members of
the tribe, and only after cnreful investigation and consideration.
' Act NO. 56 of1954. sec.5 (1).inSlalufcr of lhUnion of Soulh Afrioi 1954.
P.563.
Vide para.rz4,supva.
' U.G. 161933.para. 320, pp.52-57. COUNTER-MEMORIAL OF SOUTH AFRICA 271
After I~umbu's removal his son. Silas. became one of the senior
headmk '.
(ii) The 1936annual report mentioned that the desirability of deposing
Chief Andara of the Okavango Native Territory was under con-
sideration, since lieM.& '.rep&tcd. . .to bc iiicapable of eiiicieiitly
controlling Iiis tribe"2.Subieqiient to his b~.ing(I~posed,lie and 1i1s
chiet \vite. who ~ro\~eilto be diiturbinl: ?I~.rneiitsin the tribal area.
were required to'remove to Runtu in the same Temtor
(iii) The incidents that led to the third removal order un er the Pro-
clamation were dealt with fully in the annual report for 1939 '.
Four Herero agitators belonging to an organization known as the
"Truppenspielers" had led a movement against Hosea Kutako,
the senior Headman of the Herero in the Aminuis reserve, and the
Reserve Board. To prevent bloodshed the four troublemakers were
removed to other places and peace was restored in the reserve.
(iv) In 1954 a tribesman in one of the tribal areas of Ovamboland caused
trouble in that area and headed a movement against some of the
tribal leaders. At the request of the tribal leaders, and after a full
enquiry, at which he was present, the tribesman was removed to
another tribal area in Ovamboland. After a few years he was per-
mitted to return.
The above instances show that the powers under paragraph (d) oi
. .~ion I of the Prodamation have been exercised onlv in exceutional
circurn,tanczs. \loreover, the Adniiiiiîtrator in each instance acted only
after consultation afith the tribal authorities roncerned.
131. In terms of section I (g) of the Proclamation the Administrator
is empowered to exercise al1 political power and authority which, ac-
cording to Native law and custom, are held by any supreme or para-
mount chief.
I"Z. The ~osition of a Native chie1has been described as follows:
"The Ctiief istlie executive head of tlie trihe. Sotliiiig of an). im-
portance can bc clone wittiuut Iiis knori~ledgeand :iutliorit). Rut in
administerinetribal affairs he must :~lwavscoii;ult with hii councils.
both pivateand public; and it is one of-his main duties to summon
and preside over meetings of these councils as occasion arises. With
them he must decide upon questions of peace and war, and see to
the protection or relief of his people in case of war, pestilence, fa-
mine. or some other great calamity. He must see that the local
divisions of the tribe are effectively governed by their sub-Chiefs
or headmen, and take any action that ma be necessary to ensure
this. He controls the distribution and use ofthe tribal land, of whch
he is often figuratively termed the owner ...
The Chief is further responsible for maintaining law and order
throuevout the tribe '."
133. It was consequently necessary for any system of Native adminis-
tration based on traditional forms of Native govemment to give due
' Ipumhu was eventually aiiowed to retum to Ovamboland.
U.G. 31-1937. p-. 34,. p.50.
3 U.G. 3+I940, para. 744et"q., p. 132.
' Schapera, 1.. The Bcnlu-Spcnkir~gTribcsofSouth Ajricn:An Ethnographiral
Survey (1946).p. 178. COUNTER-MEMORIAL OF SOUTH AFRICA 273
Transvaal and Orange Free State the powers of the Supreme Chief were.
however, not defined by law as in Natal l,with the result that whenever
reliance was placed on such powers. the particular Native law or custom
relied on had to be proved in Court 1.In order to meet this hiatus, and
also because of the need for consolidated and uniform prciisions in the
various provinces, the Native Administration Act of 1927 was enacted.
137. Provisions similat to paragraphs (c) and (d) of section 1 of &O-
clamation No. r=~of 1928 (S.W.A.)' were contained in the original
section 5 (1) (a) and (b) of Act No. 38of 1927 '.and it is therefore ap
parent fhat the Proclamation was based on the said Act.
138. In the 1928annual report the followingreference was made to the
Proclamation :
"During the year under review there was placed upon the Statute
Book a Proclamation (No. 15 of 1928) which dealt comprehen-
sively with the whole question of Native Administration., This
measure. which was based on, and which closely follows similar
recent legislation in the Union of South Africa, gives to the Ad-
rninistrator certain powers which are essential in dealing ,with, a
native population living under tribal conditions such as still exist
to-day in Ovamboland, in the Kaokoveld. and on the Okavango.
There was no existing enactment which conferred those powers.
and thoughthey are such as inhere accordingto native customin any
Supreme Chief, which is the relationship which the Administrator
bears to native Chiefsand headmen, it wasdesirable that they should
be constitutionally conferred on the Head of the Administration.
and be clearly stated and made known 5." (Italics added.)
139. From what has been stated above, the following appear:
(i) The powers conferred by section I (c) and (d) of the Proclamation
correspond to those enjoyed by any Native chief in South Afnca
or South West Africa by virtue of Native Lawand custom in relation
to headmen and tribesmen subservient to him.
(iiJ Similar powers vested in the heads of state in Natal, Transvaal
and the Orange Free State before Union. and since 1910 in the
Governor-General, and the conferment of such powers was therefore
part of the estabiished South African Native polic which. as con-
templated, would be applied to South West Africa . 2'
140. In paragraph 139of Chapter V of the Memorials Applicants also
state that-
". .. in the exercise of these immense powers, the Administrator
the control or restraint of any court of law t'".e above and beyond
They refer in this regard to section 2 of the Proclamation which pro-
vides:
VidcrMokhallcfand.Olhrrs v. Union Govcr*mcnI (Mini.de, of NoLiu6Afloivs).
1926 A.D. 71.
' Vidc para. izr. supra.
' Via Sloiwlrr of Ihe Union of South A/rrgq, Vol. 1.pp. 3iG-318.
' U.G. 22-1929. para. 399p. 54
' Vidd para. 23.r#p,pro.
' 1. P.'47. SOUTH WEST AFRICA
274
"The Administrator shall not be subject to any court of law for
or by reason of any order, notice, mle or regulation professed to be.
issued or made or of any other act whatsoever professed to be com-
mitted, ordered, permitted or done in the exerciseof the powers and
authority conferred by this Proclamation '."
141. A similar provision was incorporated in Chapter II of the Natal
Code of Native Law Z,section 40 of which reads:
"The Supreme Chief is not subject to the Supreme Court, or to
any other Court of Law in the Colonyof Natal, for, or by remn of.
any order or proclamation, or of anyother act or matter whatsoever.
committed, ordered, permitted, or done either personally or in
Council '."
This section. however, did not completely oust the jurisdiction of the
courts. As far back as 1894 the Natal Supreme Court mled that the
section did not exclude the power of the Court to enquire into the validity
of orders made by the Supreme Chief, and that his actions were immune
from interference by the Court only when they fell, or were believed
bonatide by him to fall,within his powers '.
142. In Union Gouernment v. Fakir the Appellate Division of the
Supreme Court of South Africa considered the meaning of section 3 (1)
of Act Xo. 22 of 1913which provides:
"No court of law in the Union shall, except upon a question of
law reserved by a board as in this section provided, have any juk
diction to review, quash, reverse, interdict or othenvise interfere
with any proceeding, act, order, or warrant of the Minister, a board,
an immigration officeror a master. had, done, or issued under this
Act, and relating to the restriction or detention, or to the removal
from the Union or any Province. of a penon who is being dealt with
as a prohibited immigrant 5."
In the course of his judgment in the said case ChiefJustice Innes said:
"1 do not propose here to discuss the policy of such a provision.
We are bound to give effect to the clear directions of the staptes.
But wide though the language may be, it does not exclude the luris-
diction of the courts under every circumstance. Cases may be con-
ceived in which interference would be justified. If there were a mani-
fest absence of jurisdiction or if any order were made or obtained
fraudulently, a competent court would be entitled to interfere and
would interfere %"
143. It is respectfully submitted that, wide though the language of
section 2 of the Proclamation may be, it d0e.s not have the effect of
P.60.roc. No. 15of 1928 (S.W.A.),sec.z, in Thc Lows of Saufh Wcsf Africa 1928.
Videpara. 135,supra.
' Vide The Natal Gouernment GnretL, Vol. XLIII. No. 2506 (11 Aug. 1891).
p.ri8o. . .
' Siriba'r Guvrdian v.Meseni. 1948 N.L.R. 237.
' Act No. 22of IOl3,sec.3 (i),Sfafufcof fhc Union ofSouth Africa 1913. p.220.
Unia Goucrnmrnfv.Fakir. rgz3 A 46, atp.469. Vidaalso Narninsamy V.
Pvincipal Jmniigrafion Oficcr. ,923A.& 673; Mhlcnguio v. Sccrcfory forNnliva
Aflairs and Anoflter. 1952 (r) S.A.L.R312. COUNTER-MEMORIAL OF SOUTH AFRICA 275
placing the Administrator l"above and beyond the coorol or restraint
of any court of law" ?. The court will intervene where it is shown that
the action taken is manifestly outside the jurisdiction conferred, or
where fraud or a similar element is present.
r++, It may be ointed out that section 2, as also section r, of the
Proclamation mere yy confirm principles of Native law. In Mokhatleand
Othersv. Union Goziernment(Minister of Native Affairs) the Appellate
Division of the South African Supreme Court held:
(i) that a paramount chief can, according to Native law and *tom,
remove a recalcitrant or rebeiüous Native from his tribe or the tribal
property ;and
(ii) that his power can be exercised without an investigation or trial of
the Native or Natives renioved j.
145. It is further submitted that the limitation imposed on the juris-
diction of the courts hy section 2 is necessary in the general public
interest. It may be necessary, for instance, to act expeditiou?ly in re-
moving a deposed chief or a rebellions tribesman. In South Africa delay.
occasioned by an interdict. in effectiiig a removal, has in fact resulted in
the murder of a chief by a recalcitraiit group in a tribe '.Protracted liti-
gation could nuilify efforts to maintain or restore law and order, and
thus frustrate the purpose and aim of the Proclamation: hence the pro-
visions of section 2.
146. The fact that decisions under section I of the Proclamation are
taken at the highest level, and only after careful investigation. consul-
tation and consideration, affords substantial protection against arbitrary
action and abuse of the Dowersconferred bv the Proclamation. In this
connection attention i\r~pecrfully drawii totlie failurc of the r\pplicants
to refer to a single case of arbitruy action under the section or of abuse
of the powers conferred.
147. The Permanent Mandates Commission, although fully aware of
the relevant provisions of the Proclamation 5,did not object to them,
and it k respectfully submitted that there is again no substance in the
suggestion of "arbitrary and discriiiunatory" restrictions as far as the
said provisions are concemed. They apply specifically to Natives, not
because of any discriminatory intent, but because they relate to matters
peculiarly concemed with the govemment of Natives living in their
trad~-~-na~ ~~~bal nocieties. This willbecome even more a~uarent as the
Native groups prigres~velf~chieve self-government in tbêirown areas.
when the powers conferred by section r of the Proclamation can be
delegated Cotheir own authoriiies
Now the State President; vi& fwtnote 3 on p. 268.supva.
Vide 1.para. 139 p. 147.
' Mokhntlaand Othcrs v. Union Govsntmnit (Minirtcr of Nntiuc Affairs).1926
A.D. 71.
' Vida U. of S.A.. Pari. Dcb.. Housof Asscmbiy, Vol. 77 (1952). COIS552, 562-
563. and1236.1237.
' Vi& para. 138. supra.276 SOUTH WEST AFRICA
148. In paragraph 140 of Chapter V of the Memoriais ' reference is
made to section 6 (4) of Proclamation No. zg of 1935 (S.W.A 2,as
amended, in terms of which Natives recruited from the northern areas
for labour within the Police Zone may remain within the Zone only for
the pxiod of employment provided for in the contract, and in no case
exceeding two and a half years.
In the last sentence of the said paragraph the Applicants aiso rely
on section gof the Proclamation, but since the requirements of the Pro-
clamation relating to passes are again referred to by Applicants under
the heading "Freedom of Movement". Respondent willdeal with section g
in its reply to that part of the Memorials3.
149. The practical efiect of the Proclamation is that labourers re-
cmited outside the Police Zone return to their tribal areas after a fixed
~eriod of em~lovment in the Zone. Provision therefor was made at the
Spccificrzquést LI the tribal nuthorities in the northcrn areas wtio wish
to protcct their tribes fromdisintegration and to maintain tribal relations.
150. In this regard referencemay be made to the foUowingremasks
of the late Major C. H. L. Hahnin 1945while he was Native Commis-
sioner of Ovamboland:
"Most of the labour requirements for SouthWest Africa are met
by recmits {rom Ovamboland. In order that these natives do not
become detribalized their chiefs and headmen have specificaliy re-
quested that they are employed or contracted for not longer than
two years at a time. After the expiration of their contracts they are
repatriated home. as required by the Administration, and are notre-
contracted before they have spent at least three months with their
own people. No male native under the age of 18 is accepted for con-
tract work '."
151. Prior to the enactment of the Proclamation it was the experience
of the tribal authorities that, once having left the reserve and taken
up-employment in the Police Zone, many of the younger contract la-
bourer~ failed to return to their homes. This resulted not only in a
drainage of manpower from the reserves, but also in families being left
destitute. As Silas Fiknmeni Ipwmbu. a senior headman of the Kuambi
tribe, put it:
". .. many of the. .. [labourers]... became detribalized or had
Ovamboland were being neglected Zone and their own families in
152. The Administration was consequently asked hy the tribal au-
thorities concerned to take steps to ensure the return of these labourers.
'1,P. 147.
Proc. No.29 of1935(S.W.A. s).c6 (4). in TLnws ofSo&h W& Alrica 1935,
Vol.XIV, p.152,asamended. inlcalio,hy Proc. No. 38 of 1(S.W.A. )ec2.in
Th6Lowr of South Werl Africn 19Vol.XXVIII. p. 760.
' Vid6 Chap.IV.paras. 85-goi.nfra.
*Hahn. C. H. L., Nolivc PoliinSouth Werl Africo: Systcm of Indincl ink
Ouamboland and Ihc Kaokoveld (unpublished rnernorandum dated 27 Sep. 1945).
P.'In a staternent confirrning the request referred to below. COUNTER-MEHORIAI, OF SOUTH AFRiCA 27?
The most effectiveway this could be done was by limiting their sojourn
in the Police Zone to their initiai contract period, or to any extended
period, but not exceeding two and a half years in aü.
153, The initiai contract period of one year was increased in 1949.
with the ap rovai of the Chefs and Headmen of Ovambolaud and the
Okavango Native Territory, to 18 months l.Pursuant to requests made,
inter alia. by the said Headman Silas FikameniIpumbu, Chief Ushona
Shimi of the Ngandjera tribe, and Headman Angula Shilongoof the
Ndonga tnbe on behaif of their respective tribes, this period was, as
from I July 1961 ,gain reduced to the original one yeZ.
154. The Proclamation was also conceived to protect the Native
residents of the Police Zone from an influx of Natives from the north.
which would result in unemployment for many of them. That this pro-
tection is justified, becomes apparent when it is kept in mind that while
the northern Natives are in a position to make a living from agriculture,
many of the Natives in the Police Zone are dependent entirely upon
what they earn from employrnent. The fact that there isvirtualiy no
unemployment in the Police Zone fan thus be attributed chiefly to the
control exercised under the Proclamation.
155. It is significant that the Permanent Mandates Commission. ai-
though fuUyaware of the provisions of the Proclamation, never objected
to it.-
The object of the measui-ewas explained in the1935 annual report as
foUows:
"The principal object of this measure is to prevent nortbern and
foreign natives from flocking into the urban locations where they
become datribalized and faitu support their families left behind in
the reserves or locations from which they come. In times of re-
stricted em~lovrnent thev come into comoetition with local natives
and the ~dmiiistration &aç put to considcrable expense during the
recent depression in -epatriat-n~ sush natives from Windhoek and
other cenires...'"
156. In Respondent's submission the charge of arbitrary and dis-
criminatory restrictions in relation to the provisions of sec6i(4) of
the Proclamation is unfounded. These provisions were conceived solely
in order to promote the interests of the inhabitants of South West
Africa. both outside and within the Police Zone.
IV. RIGHTS OF RESIDENCE INURBANAREAS
(a) The Background tothe Influx Conlrol Provisions of the Natives
(Urban Areas) Proclamation
157.In paragraphs 141 to 144 of Chapter V of the Mernoria.' the
Applicantsobject to the influx control machines. created by sectioIO.
' Vide PIOC.NO. 59 of 1949 (S.W.A.), in The Lows ofSouth West Africa r9l9.
Vol.XXVIII. p.782.
' Ord.No. 11 of 1954 (S.W.A.). Th Lam ofSouth WestAfrico1954.Vol.
(S.A.IV).l. NO.-13 (i6 June1961). p. 19.f1961 (S.A.in Govnnnvnt Cazsttr
' U.G. 25-1936.para. 243. p. 42.
' 1. pp. 147-148.278 SOUTH WEST AFRICA
13, 22 and 25of the Natives (Urban Areas) Proclamation of 1951 ',
which replaced earlier provisions controlling the entry of Natives into
urban and proclaimed areas.
158. As early as 1924Respondent decided to pass legislation in an
effort to overcome the problems created by the influx of Natives into
wban areas in the Temtory. This was done by means of Proclamation
No. 34of 1924(S.W.A.), to which the following reference was made in
the 1924 annual report:
"The rnost irn1)ortant measure prornulgated during the par \vas
the Satives (Urban Areas) Proclamation So. 34 of 19-4. This
Proclamation ado~ts 311the main nrovisions of tliz Union Satives
(Urban Areas) Aci of 1923a ,nd o&ts only those which are not ap-
plicable to the conditions obtaining in the temtory.
It was felt absolutely necessary to make provision for the better
control of natives in urban areas in the interests of the natives as
weU as Enropeans. Experience has shown that there is a strong
tendency, for natives, hoth men and women, to drift into urban
locations where in many cases they neither want nor seek employ-
ment. As they simply loaf and do not eam money honestly they
resort to illicit liquor seliing, prostitution, gambling and other means
to obtain it and eenerallv deeenerate. Under the new law a DroDer
systeni of registrstion is>ro;,<led for, and the ~dministration \&II
be alde tu exercise effective control and keep urban locations clear
of loafers. But ths is not the sole obiect of the Proclamation which
makes for improvzd conditions of ;esiderice for natives in wban
areas. while the ser\.irz contract is in fact a protection to the native.
Not an uncommon com~laint is that Euroueans withhold waaes or
pay less than the amoÛnt agreed upon, &c. The service contract
will form proof of the conditions of employment 2."
159. Section II of the Proclamation made provision for the decla-
ration as a "proclaimed area" of any urban area in which an area had
been reserved and accommodation provided for Native occupation in
terms of the Proclamation. or of anv area in which Natives were con-
gregated in large numbers for miningand industrial purposes. In respect
of an area so declared the Administrator was empowered to impose,
inter alia ,he following requkements:
(i) aU contracts of service between White employers and male Natives
to be registered3;
(ü) al1male Natives to report thek presence on ahival in the area and
to obtain a certificate to beproduced on demand ';
(iü) al1male Natives ceasing to be employed to report and obtain cer-
tificates to be produced on demand s:
' Proc. No.56 of rggr(S.W.A.) secs.IO.ij,22 and 25. inThc Lawr 01 Soulh
West Africa1951. Vol.XXX. pp.io8ir0, 112-1141 .30.1361,40-14%
U.G. 33-1925,para. 98.p.27.
' Prac.No. 34ofr9z4(S.W.A.) s,c.Ir (1)(a). in ThLows O/South Wart Afdco
1924.p.183.
' Ibid.s.ecII (1)(b).p.r83.
' Ibid.s.ecrr (1)(r).p.183. COUNTER-MEMORIAL OF SOUTH AFRICA 279
(iv) Natives under the age of 18 years to be refused permission to enter
or reside in the area, with certain exceptions ';
(v) Natives in the areanot in employment to reside at a prescribed place
until employed or exempted
(vi) Natives failing to find employment within a prescribed period to
depart from the area and not to retum within a specifiedperiod
160. -~atives exempted from the ;hose pro\.isions &mpriscd: cliiefs
and headmen; Sative police; employees of the Administration. iiiinislers
of relirion u,ho were nianiace officers.tcactiera in srate-;iiiled sclioolsand
membuersof approved prof&sions *. '
161. Subsequent to 1924it was found that the provisions of the above
legislation were inadeqnate to prevent Natives from coming into the
whan areas in excess of the labour requirements of those areas. This
was due to the factthat the relevant provisions of Proclamation No. 34
of 1924 (S.W.A.) were directed only at requiring male Natives !n pro-
claimed urban areas to register their contracts, and at effecting the
removal of those who were not ernpl~yed. This measure did not prevent
the entryinto such areas of male Natives for whom there was no work
available. By Proclamation No. 4 of 1932 (S.W.A.)there was accordingly
inserted in section 6 of the original Proclamation a sub-section (6)which
provided that the Administrator could declare that no Native might
enter any specified urban area forthe purpose of seeking O undertaking
employment or of residing therein except in accordance with prescribed
conditions '.
The 1932 Proclamation also added provisions to section II of ,the
original Proclamation relating to proclaimed areas. These proviçions
authorized the Adrninistrator to prohibit the entry of female Natives
without certain certificates of approval, and required every male Xative
not under contract of service to reds-er with a prescribed officer.
162. As tinie \vent on the need for more comprehensi\,t. p~o\~isionsto
control the entv of Satives into White urban areas became apparent.
resultina in the eiiactment of the Satives (Urban Areas) l'roclnmation
(b) TheBasicConsidnationsof InfluxControl
163. The main consideration underlying Respondent's policy of in-
flux control has been the necessity of preventing urban areas from be-
coming overcrowded with unemployed Natives.
Experience in South Africa-and elsewhere-has shown the serious
social and economic problems that arise when there is an undue accu-
mulation of Natives in wban areas without anv recard to actual labour
requirements and existing housing facilities. ~Üccekve commissions in
South Africa revealed the consequences Bowingfrom the lack of proper
PVO~.No. 34 of7924 (S.W.A.). sec.ir (1)(d),in Th Lowr O/South WCSI A/nc5
1924 p.183.
Ibid..sec.rr (i)(g).p.184.
' Ibid.. sec.rr...(h.,P. 184.
* Ibid.,sec. Ir(2).p.184.
' Proc. No. 4of,932 (S.W.A.). sec.3. in Th6Lnws of South Wcst Atrica 2931.p-
56. Reference to the insertion of the new rub-wction was made in U.G. 16-1933.280 SOUTH WEST AFRICA
regulation of Native influx into. and of accommodation in, urban areas.
For example, the reports of the Native Affairs Commission of 1903-
culosis Commission of 1914me),Cau reveaied a most deplorable situation
in Native locations as a whole, where primitive conditions prevailed
and where, in the early years, scantattention was paid to sanitation and
housing, with the result that the health of the non-White communities
was adversely affected.
164. As early as 1921 the Transvaal Local Government Commission
(Staiiard Commission), appointed, inter dia, to investigate this very
matter, recommended influx control in the followingterms:
"In order that the problem should be reduced to dimensions
which the financial ana other resources of the municipality can
overtake. it is in our opinion necessary that there should be secured
to the munici.alit"--
(i) control of the ingress of natives;
(ii) continual remaval of masterless natives.
Inboth these matterswe consider the desired endsmay beachieved
by close CO-O eration between the municipal and Native Affairs
Deoartment of;iciak. and aiso those of the Department of -ustice'."
165. The permanent Native Affairs Commission in its report for the
years 1937-1938stated:
"Prior to Union there was no general le al restriction upon the
acquisition of land by natives in the threect,tes of the Transvaal,
the Cape and h'atal, either in rural or urbanreas. There was, how-
ever, a limitation in certain areas of the Transvaal proclaimed under
the Gold Law. In the Orange Free State the acquisition of land by
Natives outside the area of Thaba 'Nchu wasprohibited. Elsewhere,
there were no legal impediments. At this time, too, the influx of
Natives into urban areas had not reached serious ~ro~ortions. and
municipalities had not assunied the respoiisibilit~ fo; the welfare
of tlie people living witliin thrir borders which the). dissli:irge today.
Cnder the (arrsez-fa irnditions prevailing. iiiduitrinl iiark~rs.
wherc tliey could Tiiidit. In the caseof Satives. emplo)~ers.including
tlie Go!,erninentand local authorities. i>ro\,ided;riiommod:itiun for
their employees only at their own conGenience.
Where land was readily available near a town a location grew by
the natural segregation of the Natives themselves. In such cases
a hut or a simple house was erected by a Native on land he acquired
in leasehold or other tenure, which he rented to others. Asiaticsor
Europeans found it profitable to build a block or iron hutments-
for which Natives were always waiting-without regard to the health
or sanitation of the area. In this way the larger towns and their
environs, especiauy on the Witwatersrand, became dotted with
small agglomerations of Native dwellings which were leased to an
Natives and their families who were able to pay the rent. In suc K
' Vide para17,supra.
U.G.39-1gr3.
' U.G.34-1914,
'T.P. i-1922. para.271.p.48 COUNTER-MEMORIAL OF SOUTH AFRICA 281
manner theslums of our cities came into being and continued until
the evils which they encouraged forced themselves upon the notice
of the Press and the public, and compelled legislative actio'."
166. The Native Laws Commission (1946-1948). commonly kuown
as the Fagan Commission. reported as foliows:
".. .the influx of ~atives into many urban areas throughout the
Union, but especialiy into the large industrial centres. continued to
outstrip the capacity of public bodies to provide housing and other
amenities. The lag was accentuated during the War years (1939-
that served the war effort expanded rapidly and kept crying outs
for labour. Most municipalities in industrial areas were unable to
prevent overcrowding in their locations or in Native townships
within their jurisdiction. They naturally attempted to do so b
restricting entry. The result again was temfic overcrowding, wit
conse uent deterioration in conditions. in Native townships which.
like 9exandra outside Tohannesbure. are close to a big industrial
tom but outside the j&diction of i& rnunicipality; ancÏthe shanty
towns of squatters around the cities gcew to unmanageable pro-
portions.Iideed, in many cases it wouïd not be wrong to say that,
to the extent to which a municipality succeeded by stringent con-
trol, in preventing overcrowding of its own Fa, the squatting
settlements around it grew in size and congestion. Pretona. where
the rnunicipality told us it turns away about one thousand would-
turnover, is hemmed in on every side by squatters' viliages thatour
exist illegally on the neighbouring farms.... Johannesburg is stiU
grappling desperately with its problem of peri-urban squatte- of
whom over 50,000 have aiready been collected in the controlied
squatters' camps of Moroka and Jabavu. Durban has its Cato
Manor, and Ca e Town its Widermere and the shanty towns on
the Cape Elats 4."
167. ~ollot~n~on the re n of the StaUard Commission j. the initial
influx control lecislation !?uth Afriça, viz.. the Narives (Urban Areas)
Act of 1923 ',Gmed at making provision for the accommodation of
urban Natives in separate areas, and at the same time at limitiig the
numbers resident therein. The Act was subsequently amended and
consolidated in Act No. 25 of 1945 5.
168. In South West Africa there was a developrnent of conditions
similar to those in South Africa. During the last years of German rule
in the Temtory the Native urban population increased rapidl~~arti-
cuiarly because of the influx into the towns of Natives who lest
almost al1they had during and after the rebeüiou of 1904-1907. If thts
trend-likely to be accentuated at times by conditions of drought and
the like. and in general likely to become stronger with the growth,of
towns and economic activity-had been left unchecked, a situation
' W.C.54-1939, PP. 21-22.
U.G.28-1948. para. 3. p. 5.
' ActaNo.21 of1923,in Sfafulcsoth8U#im of South Africa 1923pp.14F197.
' InStaful6s of tUnMi ofSouth Africa rgq5, p108-207.282 SOUTH WEST AFRICA
would have arisen in the towns of the Territory which would have been
extremely detrimental to the welfare of the Native inhabitants. Respon-
dent already had before it the example of the conditions that had arisen
in South Africa as the result of the uncontrolled congregation of Natives
in the vicinity of industrial towns, and which necessitated legislation to
improve and control the position. In order, therefore, to prevent a similar
development in South West Africa, Proclamation No. 34of 1924 ' was
enacted. As has already been pointed out 2,the Proclamation was sub-
sequently snperseded by the Natives (Urban Areas) Proclamation of
1951 he purpose of which. according to its preamble, was-
"... to amend and consolidate the laws in force in the Temtory
which provide for improved conditions of residencefor natives in
urban areas and the better administration of native affairs in such
areas; for the registration and better control of contracts of service
with natives in certain areas and the replation of the in~ressof
nafives into. and theirresidencein. sucha~eas;for the restriction and
replation of the possession and use of kaffir bccr and otlier in-
toxicating liquor by natives in such arrds and for other inciilental
matters '." [ltalics added.)
169. ~es~ondènt has already shown that the Permanent Mandates
Commission waç kent infonned of its ~olicv to control the influx of
Katives into the iirbaii areas of the ~eAitorj In ttiis rcgard reference
ma). ~lsohe mcidr to ttie followingextract fromthe 1qj7 annual rrport:
"it is the policy of the ~d&nistration to restncti, far as po&ible
the congregation of large bodies of natives in the vicinity of Euro-
Dean areas wbch~-e~ ~ts. ~.if uncon~ ~ ~ed..in t~ ~ ~ ~amination of
the European as well as the n:itive: miscegeiiation; lower wage rates
wtiere thtre is a surplus labour supply; drunkeiiness througti the
consumption of dlicitly brewed intoxicants and the sprcad of
vencreal disease and tuberculosis tluougli overcrowded and in-
sanitary dwellings are the usual consequences of o\.ercrowded urban
locations. Unfortunatels hefore this lauf was auolied some of the
locntions were already overcrowded by natives 'detribalized during
the German wars or who flockedinto the towns after ttie occupation.
It is the policv of the Administration maduallv to remove this
surplus populaiion and settle it in the leer resekes '."
170 The serious problems created by the influx of Natives into urban
areas are not peculiar to South Africa and South West Africa. In 1953,
after a thorough investigation of au aspects of urban Native adminiç
tration in tropical and southern Africa, J.L. L. Cornhaire,then Assistant
Profesor of Social Studies at Seton HallUniversity in the United States,
came to the following conclusion:
"Housing appears, from al1 available evidence, to be the main
problem of urban native administration in Tropical Africa. Housing
conditions today are inadequate in alltowns. Reports of over-
crowding, of dilapidation of existing houses, of loweriqg of aU
' Vida para.158,supra.
' Proc.No.a56of,1951(S.W.A.P )r.eambls. inTheLam ofSwth West Africa 1951.
Vol.XXX. p.go.
' U.G. 25-1938,para. 291,p.47. COUNTER-MEMOKIAL OF SOUTH AFRICA 283
standards, come in from every side. The consequences of snch a
situation are as far-reaching as can be; if nothing is done about it,
medical, moral. and economicconditions may sink belowthe original
native standards. Why do so many Africans cling to their urban
dweiiin~sin these circumtances? Some at least must have no other
reasoncthan the opponunities provided for drinking and prostitu-
tion. and the hopes cnpe-idered by the better life which ;Iprivilegcd
few enjoy '." -
171. T.he following excerpts from the report of the East Afrjca Royal
Comwsion of 1953-195 are also in point:
"... We have been led by what we have seen during our tours of
East Africa and b the evidence submitted to us to emphasize the
importance of fin&g an ançwer to the problems which have been
created bythe rapidity with which urban areas have developed. .,..
A study of official reports and the evidence of witnesses wth
knowledge of urban matters convinces us that conditions of ùfe for
the poorer Asian and themajonty of the Africans in the towns have
been deteriorating over a considerable period. The unsatisfactory
nature of these conditions is indeed weli known. Moreover theu
deterioration has not yet been arrested. An attempt mu!t therefofe
be made to ascertain the precise nature of the causes whch underùe
~-em.
~hilst, as the foregoiug discussion clearly indicates, many ..the
~roblems are due to uovertv and bad housine, -. D~VS~C~ conditions
>e no~ ~he ~n~~~2a-se ~ ~2~"
172. A United Nations Committee on Housing and Urban Develop-
ment reported as followsin 1962:
"The process of urbanization is not a new phenomenon, but its
rate has greatly increased since the Second World War. In large
parts of the world there is a considerable excess of manpower,
wthout corresponding means of employment. Furthemore, urb?
attraction is combined with rural deficiencies, while industnal
development attracts more people to uties than are able to e-
their ùvelihood there. Most rural migrants expect to find in the city
not only a job, better housing and physical amenities, but ais0 a
richer social and human experience and access to national and
univer~a~ cultu~~~~.3."
173. In 1959 a United Nations survey ~wintedout that this migratioii
had developed into a \-icioiiscircle:
"M&~ under-developed countries have recognized that measures
taken in the uties to improve the levels of living of the urban pwr
will tend to increase the attractive power of cities and encourage
more rapid migration unless effortsare made at the same time to
improve conditions of living and productivity in mal areas.
The prospect of increased cityward migration 1sespecially trouble-
çome in countries where most of the migrants are youngmen and
' Cornhaire. J. L. L.Aspects of Urbon Adminiriralion in Tvopicd and Sm4lk
Atrico, Communications from the Schaol ofAfrican Studies (New Series NO. 27)
[Ju~Y 19531.p. 67.
' CU.N. Doc. STISOAISO,E/CN. 5/367/Rev. 1.para. 2.p. 1.284 SOUTH WEST AFRICA
former cultivaton of food crops, as in much of Africa and the
MiddleEast, particularly if the women and old people who are left in
the villagesfind it hard to grow enou h food for their own consump
tion and cannot supply a surplus toBeed the towns. Even the coun-
tries with rural over-population. however. may prefer that the rural
surplus should remain at home, or resettle in less-crowded rural
areas, since in these countries there is usuauy also urban over-
population, and the unemployed or under-employed present more
problems in the cities'."
174. The follo\ring quotations from reports of international organi-
migration of Natives to wban areas: the social ~>roblemscreated bv the
(i)western economicysystem to Africa has been the growth of krge
towns. The existence of these large agglomerations of the
population, where previously therehad been none. has brought
in its tram a host of social and administrative problems. Some
of these problems are associated with city lifeaUover the world;
some of them are due to the fact that many thousands of
Africans are being thrown into a situation for which there is
no set of prescribed behaviour in their traditions; others derive
from a confiict of political dogma and economic necessit2.''
Ci)groups: those resulting from theeGestions of a heterogeneous.
largely unskilled. partly illiterate wage-eaming population in
towns. and those resulting from the temporarv or permanent
absence of voun~ men andwomen from tÎibal &eas.?hese two
aspects are: of c~urse. part of the same proble'."
(üi) "The migration of labour-that is the voluntary movement of a
coiisiderable number of u.orkcrç within the boundaries of their
own countries or from ttieir own countries to other countries-
may, in the absence of any~p-otective measure. lead to social
eviis such as:
r destitution and vagrancy;
2 the spread of disease;
i31tin the normal birth-rate; communal life and a reduction
4) the wasteful dissipation of man-power;
unsatisfactory conditions of employment;
151amage ta the economy and development of the migrants'
own country and of the country to which they migrate *."
(iv) "Other 'evils of the city' represent a failure of adaptation-of
the individual in his habits of work. hveiene. consum~tion.
etc.. and of the urban community as awl;Glein.its instititions
and services. 1.ackof education and of skills anwide cultural
gap between the city and the countryside make adjustment
U.N.Dm. EICN. 51332STISOAJ)Q.p. 170.
*Social Implications of Indurfrinlirofion and Urbnnirafion in Africo South of th.
S~Iin~cz(1956p. 693.
'African Ldwur Cafn-. rrlhScrsMt. July 1950. Find Rcporl,I~I. COUNTER-MEMORIAL OF SOUTH AFRICA z85
difficult for the nual mimant and his farnilv. Rural customs and
practices that were usefÜlor only mildly haimful in their original
context are continucd into city lifc,wheretliry areinappropriate
and <:;inlead to various maladies of urban societv. New in-
stitutions and servicesrequired by the nature of théurban en-
vironrnent-for exarnple, in connection with various problems
of social security-are not developed or are developed but
slowly, to take the place of theold ones that disintegrate in the
~~~-m~-~~v 1."
175. In addition to the serious housing and social problems created
hy the unrestricted migration of Natives to urban areas. lack of influx
control can ai= lead to grave unemployment conditions, as appears
from the following extract from a United Nations report of 1962:
"In 1957unernployment, particularly on the Copperbelt. became
a problem of steadily increasing gravity. In Northern Rhodesia and
Nyasaland the attractions of the mining towns, consisting of sub-
stantial wages, bonuses and welfare amenities, are weU known to
European and African workseekers who are prepared to travel long
distances with nothing more substantiai than the hop of obtaining
employment on anival. During 1957, the fall in the price of copper
forced the mining companies to effect economies which were re-
flected not only in the numbers of their own employees but also in
the number employed by the contractors duectly or indirectly
de~endent on the mines. Most Eurowans affected found it ~ossible
to'movc eliawhere; oii leaiing &npfoyment the) were usudly able
to draw on sufficicnt savings to help thcm to travel to thcir ncxt
employment. Thus the nuniber of u?iemployed Europeans was not
especidy noticeable. By the end of 1957 the pool of unemployed
Africans had becorne very noticeable: there were at least ~o.ooo
in the Copperbelt towns. During 1958, unemployment continued to
be a mave social ~roblem. The s ri ceof coDoer continued to fall
during the earl of the year and this. together 4th production
roblerns. resuied in the dccision to ccase production at Bancroft
kine a<the endof March. 1058E .fforts were made to~lacc emi>lovees
at other mines but most 02-the African workers ac6epted the iom-
pany's offer of free repatriation to their home villages, and in this
operation about 3,300 men, 2,100 women and 3.400 children were
transported to the mral areas 2."
176. It is consequently not surprising to hd that other countries
have alçoapplied a policy of influx control. In Southem Rhodesia the
Registration of NativesAct of 1936 3 provided for control of the entry
of Natives into urban areas in terms wbich closely resembled those of
contemporary legislation in South Africa and South Wat Afnca. In
1951 there was enacted the Native (Urban Areas) Accommodation and
Registration Act
4 which provided for the regulation and control by
a U.N. Doc. STJTRiISER.Alr8. pp. 28-29.3 (Apr. 1957). pp. 112-"3.
Act No. 14of 1936 (Southern Rhodesia). in TSfefulLaw of SouliicrRho&sia
in forcea fha rsf Day of ]o*wry, 1939. Revised Edition. Vol. II. Chap. 76. pp.
2.--281.
A&No. 20of 1951 (Southem Rhodesia),in The SfillutaLawSoulhen Rho&sim
1951(1952) PP. 285-320. 286 SOUTH WEST AFRICA
local authorities of Natives seeking employment within the areas of
such authorities.
177. In Kenya. Natives not in employment are prohibited from re-
siding in urban areas for more than 36hourswithout a pennit 1.
178. Reference may also be made to replation 135 (1)of the North-
em Rhodesian Townships Heplations, which reads as foUows:
"Any nlitive who (lesires to reside in a location without erecting
a hiit or dwelling-liouse shnll, if he satisfies the superintendent that
Iic followi or intends to foliowa latrful oçcu~ation, receive from the
superintendent a permit dowing him to 'search for a registered
occupier with whom to reside. If. at the expiration of one week
from the receipt of such permit. such native fails to find a registered
occupier as aforesaid, the superintendent may order him to remove
from the location. and, if such native fails to comply with such order,
he shall be guilty of an offence. If such native satisfies the super-
intendent that there isroom nvailablefor him in any hut or dweliing-
house and that the registered occupier thereof consents, the super-
intendent shall cause such native to be entered in the register of
natives to whom permission has been granted to reside with a
re.2stered occuoier =." ..
179. Reference may further be made to the foilowing extract from a
study by M.J. B. Molohan, published in 1959:
~ ~
"In an attempt to control immigrat&ninto the towns the Belgian
Conao, Kenva. Northem Rhodesia and Southem Rhodesia have
hadfor some years pass systems. whereby Africans coming into
the toms in search of employment have to report their presence
to the local authorities for permission to stay in the African loca-
tions and to seek and obtain emolovment within a eiven ~eriod.
In some towns an elaborate s$st&n of registratik ha; been
evolved to keep a check on al1the inhabitants of the locations. but
the general impression 1 have formed is that even in tliose toms
such as Elizabethville, where control is exercised and where there
lias now been introduced a modem system of identification b
means of photographs and fingerprint classification, no metho 2 s
yet adopted are entirely effective and a considerable degree of
evasion continues to take place. Round-ups of the locations always
arriva1 to the authorities'."ers who have not reported their
180. It is simificant that in 1450 the Africa nabour Conference
recornmended hat legislation shozd be passed to control the migra-
tion of Natives to urban areas. The Conferencestated:
"It is. ..desirable, in the interest of the migrants and of the coun-
tries from which, within which. and into which thiçmigration takes
' Vidd Hailey. An African Sunicy(1957). p. 579. Ktwould seemhowever. that
this measurehas not ben fully applied in practiee.
a Replation 135 (r) in The Lams ofNorihem Rbdada. 1963Edition. Vol.VI,
Chap. 120.p. III.
' Molohan,M. J. B., Dctribalktition: A Study of the Areasof Tanganywhm
and Othcr MeasuresRcquircd to Meet the Prohlems Arising tharein (1959)para.e
5%.P. 38. COUNTER-MEMORIM OF SOUTH AFRICA 287
place that these countries should make provisions, individually b
iaw, or together by agreement, or by both these means combinez
or othenvise for the protection of the migrants.
These provisions should be directed to the following objects so
far as may be practicable:
... To prevent any migration not likely to lead to the employ-
ment of the migrants; ...
.. . To ensiire that any migrant worker and his family may
return, on the completion of a period of service, to his
home '."
181. In 1963 the President of Guinea issued a decree. "concerning
Zimitation of the rural exodus", articlIsand z of which read as foliows:
"ArticleI. The categories of workers without speciality, labourers.
caretakers, employees paid by piece-work. etc., constituting the
regimentation in matters of situations vacantubjeand employmentrous
wanted;
(a) No person shall apply for any employment in the public sector
(administration, State enterprises or societies) if he cannot give
proof of residence of at least five (5)years in the place in which
he applies for employment. Any person wishing to find employ-
ment not necessitating any specialisation shall join to his appli-
ities, signed by the Commissioner of Police and countersignedhor-
by the Commander of the Region concemed.
Article z.Any person effectinga displacement of long duration
officerof Police responsible for the security in the locality concemed,
who shaUbe competent to issue in his name a permit, indicating the
motives for and the duration of the absence 2." (Translated from
the French.)
182. In the result it is submitted that the control of the influx of
Natives into urban areas in South West Africa is neither an arbitrary
measure nor one which discriminates to the detriment of the Natives,
of the Natives. on the contrary, based on a consideration of the interests
183. It may then be asked why influx control is not applicable to
Ewopeans. The answer is that the circumstances which gave rise to
such control apply peculiarly to the Natives, and not to the White
ulation group or, for that matter, to any other group, e.g., the
Cooured group or the Rehoboth Basters. The urban and proclaimed
area occupied by the White group and were from the outset developedin the
by members of tbis group for the purposes of theu communal living.
There has never been any undue mflux into these areas by Whiteç.
Coloureds or Baters.
'ADecree No.43of18 January 1963in]a<malOflicicde la Républiqw dsGuinb.
No. 18 (rerfevrier 1963p.18.288 SOUTH WEST APRICA
(c) The Implementationof InfluxControl
184. The auegations in paragraph 141of Chapter V of the Memorials 1
are based on section 25 (1) and (2) of Proclamation No. 56 of 1951
(S.W.A.). Sub-section I.),reads as follows:
"(1)The Adniinistrator may by notice in the Gazetle declare any
urban ara to be an area in respect of which he may, on bcing satis-
fied that tlie number of Natives within that area is in excess of the
reasonable labour requirements of that area, exercise the foliowing
pwers:
(a) require the urban local authority within a specified eriod to
lodge with him a list of the names of the natives wKo, in its
opinion, ought to be removed from the urban area;
(b) determine which of the natives specified in that list shall be
removed from the urban area;
(c) make provision for the accommodation of the natives so
removed who are lawfully domiciled in the Temtory;
fdl notifv the urban local authoritv of the nmes of the natives to
' hc sorernoved and of the arrangements made for tlie accommo-
dation of those of them who are lawfully domiciled in the Tem-
tory '."
185. In terms of section 25 (2) of the Proclamation an urban local
authonty must, upn receiving notification from the Administrator (now
the State President) in terms of sub-section (1) (d), make man ements
for the removal of the Natives concerned according to such notktion,
and must furthemore offer to pay to such Natives the reasonable costs
of their removal '.
186. Section 25 further provides that if any Native on whom a notice
has been served under sub-section (2) desires to remove with his family
to any place within theTemtory, other than the place at whichprovision
for his accommodation has been made under sub-section 1 (c). the
Administrator may. if he is satisfied that suitable accommodation
exists for that Native and his family at that other place, authorize him
to remove thereto with his farnily '.
187. This section was designed to give effect to Respndent's influx
control poiicy b providing for the removal of unemployed Natives who
had entered ur an areas before efficient machines, to control their
influx was created. In practice, however. section 25 has never been
invoked as it has been found that adequate action can be taken under
section IO of the Prodamation and regulation 2 of the regulations for
Proclaimed Areas 6,issued under section 22 of the Proclamation.
' 1.p. 147.
Later the Governar-Generaland currently the StatPresidcnt; vidaAct No. 56
of 1954. sec. 3. in Statofth Union ofSoulhAfrico 2954. pp. 559-561.
Ploc. No. 56 of 1951 (S.W.A.)ser 25 (1). in Th Lawr of Soulh West Afdco
2941Ibid.. no1~0-112.0.
Ibid., se2; (3;;. 142. It may also be pointed out that in teofsec.zg (8)
[p.1421. Natives who are not laiafully domiciled inTemitor yust be removed
from urban areas belors Natives who are lawfdlv so domi~.ied. iso faras itis
practicable todaM.
G.N. NO. 65 of 1955 (S.W.A.).iD Th L~WS ofSoULhWest AfnCD 1955. VOL
XXXIV, p. 754. COUNTER-MEMORIAL OF SOUTH AFRICA ~~9
188. In the event of section 25 ever being invoked, it would on1 be
done after careful investigation and consideration at the highest okial
level. A Native lawfully domiciled in the Temtory wiii not beunduly
prejudiced by his removal under the section, since alternative accom-
modation willhave to be provided and the reasonable costs ufhis removal
paid by the State '.
reference is
189. In paragraph 143 of Chapter V of the Memorials
made to section IO of the Proclamation as it was originally enacted.
A new section ha,however, been substituted 3, and section IO now
provides that no unexempted Native may remain for more than 72
hours in an urban area unless permission to remain has been granted
to him by a designated person.
The effect of this section is that a Native who comes from outside
an urban area. and who does not fall within one of the exemptions, has
2 hours ' within which to secure permission to visit that area, or to
Lok for emplopent therein. In terms of section IO (2) he may then
obtain permission to seek work for a further period of 14 days. which
does not, however, mean that he must actually assume duty mthin that
period 5.
In terms of section IO (3) a Native who has obtained employment
in an urban area and who is then refused permission to remain in that
area. has a ri ht of appeal to the Chief Native CommissionerI
In terms ofsection IO (6) the Administrator may, at the request of
an urban local authority. declare the whole of section IO to be inappli-
cable in respect of the urban area concerned
190. In paragraph 144 of Chapter V of the Memorials reference is
made to regulation 2 of the regulations for Proclaimed Areasg, which
is one of the regulations providing for the registration and control of
Natives in a "proclaimed area", so declared in terms of section 22 of
the Proclamation. The regulation lays down, intedria, tlic powers. func-
tions and duties of the persons authorized to act on behalf of urban
-.cal authorities. and the duties and obliea-ions of Natives enterine a-
proclaimed area.
In brief, al1 unexempted male Natives entering a proclaimed area
must report within 72 hours and, if seeking employment, they can be
issued with permits valid for not less than seven and not more then 14
days. If employment is not found within the period of validity of the
1 Ploc.No. 56 of 1951 (S.W.A.),sec.25 (2).in The Lowrof South West Afrim
Ig.51Vol. XXX, pp. 140-141
1 1.p.148.
3 By Ord. No. 25 of1954 (S.W.A. )e.cs3 and 4,in The Lnws of South West
Africo1954. Vol.XXXIII. pp. 736741.
' It isubrnittedthat thispenodis ample forthe .ur.osesofobtainingthe said
permission.
5 VidaLoiusof SouthWestAfricn195+.Vol. XXXIII. p. 739.Theperiod ofvalidity
limitedtothevsameextent.Suchpermitsorare issued fperiodçwhieh wüloenablethe
holderr thercof tcomplete thepurpose of their v!rsto
' Lus of Swlh Wtsl Afrira 1954. VolXXXIII. p 739
Now the M<nisterofBantu Adrn~nstrattonand Develo[,mcnt
Lowr o/Souih Wtsi Afrrro1954. Vol XXXIII. p 741
9 Vide para.187,rupa.290 SOUTH WEST AFRICA
permit, an order to depart from the proclaimed area within a period
of not less than two days may be issued.
191. There is a certain measure of overlapping between the provisions
of the regulation and those of section IO of the Proclamation ', in that
a Native who has obtained permission to remain in a proclaimed area
in terms of the regulation, has automaticaiiy complied with the require-
ments of section IO, should this section be applicable to the particular
proclaimed area 2. The regulation, which was designed to enable the
authorities to keep a complete record of the arrival of al1 unexempted
male Natives in oroclaimed areas and of Natives em~loved therein. aoes
further than seciion IO,however.since such ~ativk must report&eir
arrival and not merely obtain permission to remain in an urban area
for longer than 72 hours, as required by section IO.
192. The Applicants allege that in terms of regulation 2 a Native
who enters a proclaimed urban area must register and upon registration
pay a fee of a shilling and remain within a reception depot until he
obtains employment, or is required by order to leave '.These aiiegations
are not correct. since:
fil Onlv a male Native wha is not exembt from the brovisions of th
., regfilation' has to report his amval in a proclaiked area t& the
registering officer,who then g.ants him permission to remain in such
arës5. -
(ii) Only a Native not born and permanently residing in a proclaimed
area, who has entered such area for the purpose of seeking or taking
up employment therein, may be directed to a reception depot,
"should such have been provided in the area and should accommo-
dation be available therein". If the registering officer issatisfied
that such a Native has obtained other accommodation approved
by the urban local authority, he may exempt him from residing in
the depot
(iii) No reception depots have as yet been established in the Temtory.
(iv) Only male Natives who are not exempted, and who are under
contracts of service, require certificates of registratiou if theywish to
remain in a proclaimed area for a period lager than 14 days. For-
such a certificate a fee of one shiiling is payable 7,but in practice
no fees have ever been charged.
193. The Applicants also refer to regulation 6 (I),which provides:
"There shaU be payable by every employer in respect of every con-
tract of service registered in his name in terms of the preceding
regulation a fee of two shillings (21-)for every month or port!on
thereof dunng the continuance of the employment of the native
Vidc para. 189, supra.
2 Sec. IO applies only to urbanareas and such areas are not necessarily pro-
clnimrdareas.Vide Ploc. No. 56 of1951 (S.W.A. )ec.zz (1).in TlicLnws ofSouth
West Africo r951.Vol. XXX. pp. 130-r34.
' 1, para. 144, P. 148.
The categoriesof Nativesooexempt are those contained in ProcNo.56 of 1951
(S.W.A.), sec22 (2).in TheLnws of South Wcrt Africa 1951Vol. XXX. p.136.
G.N. No.65 of 1955 (S.W.A.), reg.2 (1)[o),in The Lawr ofSouth WsstAHc4
r,<-.Vo-~ XXXIV. .'.",-.
Ibid., regz(1) (b).p. 754.
' Ibid., reg.(r)and (2)p.758. COUNTER-MEMORIAL OP SOUTH AFRICA zQ1
under such contract. The fee shall be paid on the registration of the
contract and'thereafter within seven days of the commencement
of every month '." .
The revenue derived from the registration of contracts is paid into a
special fund known as the Urban Areas Pass Iiees Fund. The moneys
so obtained are utilized for capital works and special services in loca-
tions and Nativevillages in urban areas for the direct benefit of Natives2.
1%. The system requiring Native workseekers entoring urban end
proclaimed areas to report to a designated officer in terms of section
IO (1) of Proclamation No. 56 of Iggr (S.W.A.) and to a registering
oflicer in tems of re ation 2 of the regulations for Proclaimed Areas ',
enures for the bene if'o'f such Natives. The designated oficer invariably
has a iist of prospective employers and is thns able to bring workseekers
into contact with such employers.
195 In order to give full effect to the above legislation, it was found
necessary to require dl newcomers-and not only workseekers-to
urban and proclaimed areas to report to the designatecl oficer wiLhin
a certain time. In the absence of such provisions it would be impossible
ta control the influx of Natives into such areas.
196. It has moreover been found necessary to extend influx control to
peri-urban areas. In paragraph 142 of Chapter V of the Mcmorials'
reference ismade to section 13 (1) of the Natives (Urban Areas) Proc-
lamation, which reads as follows:
"Except with the witten approvd of the Administrator ' given
after consultation with the local authority concerned and couveyed
in witing under the hand of the Chief Native Commissioner, no
owner. lessee or occupier of land situated outside an urban area
within five miles of the ~ound~rv thereof shall aUow natives to
congregate upon, or any nativt?w1;o is not bona fide in his einploy to
reside upn. or to occupy ans dwelling on, that land; and except
in accordance uith the aooro\.al of the Administrator so convc)'cd.
nati\,es shall not congrcgite upon, and no native who isnot bona
fidein the emplov of the oivnvr, lcssccor oszupicr of such land shall
reside uDonoi oicu~v anv dweilin~ on. the Iahd '."
A. . u .
197. Attention is respectfully drawn to the Appiicants' failure to
make auy reference to section 13 (5) of the Proclamation. in tenns of
which the 0th- provisions of the section donot apply to:
(i)anyNative who is the owner of suc11land as is rcferred to in snb-
section (1);
G.N. No. 65 of 1955 (S.W.A.).op. cil.reg.6 (r)p. 762.
1 Proc. No.56 of1951 (S.W.A.). sec. 18,in Thc Lnwrof South West Africa 1951,
oflSouth Wcrl Afvicn1953.dVol. XXXII. p. 403.f1953 (S.W.A.), sec3,in Th6 Lam5
'The regulations apply to the following prodaimed areas: Mariental. Omaruru.
Warmbad. Usakos, Otjiwarongo. Walvis Bay, Windhoek. Outjo, Ludentz. Karibib.
Xeetmanshmp, Tsumeb. Aus, Grootfontein. Xarasburg. Gobabis. Swakopmund.
Okohandja, Otavi. Maltahehe, Bethanie. and Leonardville.
' 1,pp. 147-148.
Now the Minister of Bantu Administration and Development.
Proc. No. 56 of1951 (S.W.A.) sc. 13 (1).in The Law ofSolh Wcrl Afrim
195r. Vol.XXX, p. rrz.292 SOUTH WEST AFRICA
(ii any Native who is the head of a kraal, the inhabitants of which
are in the bona fùleemployment of the owner, lessee or occupier
of such land;
(ui) the wife, minor child, unmamed daughter or bm /ide dependant
of any Native entitled to reside on such land; and
(iv) Natives residing in any Native reserve lawfuiiy established, or in
any township especially exempted by the Administrator (now the
Minister) '.
198. These provisions are an indispensable part of an effective influx
control systern. It will be recailed that the report of the Fagan Commis-
sion, to which reference was made above 2,stated, inter alia, as follows:
to which a municipality succeeded bystringent control, in preventing
overcrowding of its own area, the squatting settlements around
it grew in size and congestion" '.
Experience has shown that Natives who are not permitted to reside
in urban areas tend to congregate in squatters' camps just beyond the
boundaries thereof. From there they go into the urban areas to compete
for work and so create a real danaer of unem~lovment for the Native
residenrs of such ares. Furthem%re. becausi tt;w squatters' camps
fan outside the jurisdiction of urb~n local authoriries. no control can be
exercised over them. Thev are usuallv shantv towns and tend to become
hotbeds of diseaçe, vice-and crime: creat;ng a serious threat to the
heaith and safety of the inhabitants of urban areas and of surrounding
farms. And, as for the squatters, living under such appalling conditions
holds no future for them.
199. In the result it is evident that Respondent's influx control policy
is designed to promote the weii-beingof the inhabitants of the Temtory,
including. in particular, that of the Natives. The Applicants' aliegations
that the policy, or particular measures involved therein, are "arbitrary"
and "discriminatory" towards the Natives 4,that the Mandatory has
thereby "given consideration solely to the convenience or advanta e of
the Mandatorygovernment and of the 'European' citizens and resifients
of the Temtory" 5, and has thereby "foiiowed a systematic course of
positive action which thwarts the well-being, inhibits the social pro-
pss and frustrates the development" of the Natives ',are consequently
without substance.
(d) TheEstablishmentof Native UrbanResidential Areas
200. In paragraph 145 of Chapter V of the Memorials7 the Appli-
cants refer to section 2 (1) of Proclamation No. 56 of 1951 (S.W.A.) in
terms of which iirban locai authorities may, with the approval of the
Pvoc. No.56 of1951(S.W.A.), sec13 (5). inThe LowO,SouthWcslAtricnrggr,
Vol.XXX. p. irz.
Vide para. 166,supo.
U.G.28-1948. para.3, p. 5.
'1,para. 154(3). P. 151.
' Ibid.. 152.154(5). p151.
'Ibid.. p.148. COUNTER-MEMORIAL OF SOUTH AFRICA 293
Administrator (now the Mmister of Bantu Administration and Develop
ment), interalia:
(a) define, set apart and la out one or more areas of land for the
occupation, residence adother reasonable requirements of Natives;
(6)define, set apart and lay out any portion of a location or any other
area of land as an area or areas wherein Natives shail be permitted
to acquire the lease of lots for the erection thereon of houses or huts
for theirown occupation;
(c) provide huiIdings or huts within a location or Native village for
the accommodation of Natives not living under conditions of
-~~~~v life:
(d) pro&de~b&dings or huts within a location or Native village for
the accommodation of Native families '.
zor. In terms of section z (2) of the Prodamation, the approval of
the Administrator under sub-section (1)may he withheld until he is
satisfiedin regard to the suitability of the areaand the situation of the
land set apart and the title thereto; the general plan and lay-out of the
location or Native village; the situation, nature and dimensions of
any building, and the provision made for water. lighting, sanitary and
other necessary services for the location, Native village or hostel, as the
case may be *.
zoz. Reference has ~reviouslv been made 3 to the serious conditions
that arose in Soutli ~hica as aaresult of the uncontrolled convergence
of Natives in the towns. As long as a Iaissez-laireattitude was adopted
to Native urbanizîtion, there was no prospect of the Satives in urban
areas ever being properly housed. since fhe economic position of the
vast majonty was not such that the7 could make provision for them-
selves. It became clear that in the int.p~ts of the Natives the local
authorities had to assume responsibility for the proper accommodation
of Natives in their respective urhan areas, and the necessary powers
were accordingly given to local authorities by law.
203. Section 2 (1) of the Native (Urban Areas) Proclamation of 1951
merely nnpmue~s nrban local authorities to take certain steps to accom-
modate Natives in their respective areas. Section 3 goesfurther, however,
in providimg that whenever it appears to the Administrator', after a
local enquiry, that the facilities provided by any urban local authority
in its area for the needs of Natives ordinarily employed therein are in-
adequate or unsuitable. he may require that local authority to take aii
or any of the measures mentioned in section 2. The section further pro-
vides that no location,Native village or Native hostel shaUbe removed.
curtailed or aboiished without the consent of the Administrator and then
only upon suchtems and conditions as to compensation or otherwise
as he. after consultation with the urban local authontv.,.av d,rect.
204. It is consequentlp clear that the above provisions were conceived
with the positive abject of providing suital>leaccommodation for Natives
in urban ares. Respondent respectfully fails to appreciate how exception
' Ploc.No. 56 of1951 (S.W.A.), sez.(1).in The LarusofSouthWestAfricor95r.
P. 94.
' IM.. sec.2 (2).p. 94.
' Videpara. 163. ruplo.
' Now the Ministerof Bantu Administration and Development.294 SOUTH WEST AFRICA
can be taken to provisions which are so obviously intended to promote
the interests of Natives. It must therefore be assumed that the Appli-
cants' objection is duected at the fact tbat sefiarateresidential areas may
be, and have in fact been, set aside for Natives.
205. By reason of the ultimate objectives of Respondent's policy
regarding reserves and separate development, Natives are not entitled
in the Police Zone. Since Natives are, however, aiiowed to enter these
areas in order to obtain employment, it has been necessary to provide
proper accornrnodatioii for ihem for the purpose of such émpl~ment.
Such provision has tlius roceeded on an entirely different hisis from
that aoplicable to the dite residenrs of the towns who. in turn. are
not eniiLtledto reside in Native reserves.
206. An important consideration ha been the practical requirement
reasonably cheap-rates. The rental charged for the occupation of any
lot, house, hut or building let for residential purposes in a location or
Native vülage, or the amount charged for accommodation in a Native
hostel. must be such as the Administrator considers fair and reason-
able 1. However, section 19 (4)of the Proclamation empowers an urban
local authority to remit in respect of any resident in such a location,
Native village or Native hostel, the whole or portion of any fees and
charges for rent, water, sanitar . health, medical and other services.
payable by him or his employer Y.
207. In terms of section 6 (1) of Proclamation No. 56 of 1951, the
right of residence in Native residential areas is exclusively reserved to
Natives. for no White person (save a police officer, an official or an
approved religious or social worker) may reside in such areas ',nor may
members of the White group acquire any site or premises situated in a
Native village or location '.Smilarly, in terms of section 31 of the Pro-
clamation. only a Native may hire a site for trading or business, and
conduct a trade or business in a Native residential area.
208. In view of the customs and way of life of the Native peoples, it
has in practice been found to be to their advantage to enable them to
reside in their own separate residential areas,in an atmosphere not al-
together different from that of their homes in the reserves. Although
individual exceptions naturally exist, the majority are strangers to the
White man's wav of life: to his moral code and customs and to the re-
quirements of a Éurope& community and the European tradition and
views relatinf: to the exercise and discharge of civil rights. The Native's
ap roach and concepts in these respects are generaliy moulded on a
diierent pattern and derive from other conditions, institutions, customs
and traditions.
209. It is not swprising, therefore, to find that other countries in
which conditions basically similar to those in South West Africa pre-
Pmc. No. 56 of1951 (S.W.A.). sec.ig (1).in The Lawsof South West Afrirn
rg5rIbid., serg.(4). p"24.
' Ibid., sec. 9 (7)108.
' Ibid.. se6,pp. 98-lm. COUNTER-MEMORIAL OF SOUTH AFRICA 295
vail, have in the past also established separate Native townships and
residential areas.
210. In Southem Rhodesia, the Native Urban Locations Ordinance
of 1006em~owered the Administration to establishNative Locations and
to ktrod&e in them a registration and pass system l.The Private
Locations Ordiuance of 1908 authorized the grant to owners of licences
to lease land to Natives for residential purposes, and it ako enabled
a number of urban employers to erect barracks for the housing of their
employees on their property ?. But the result of thffie measures was
considered unsatisfactory, and the Land Apportionment Act of 1930,
as amended. provided for two alternatives: one was the creation by the
Government of Native ViUage Settlements outside municipal bounda-
ries, the other the establishment of "Native Urban Areas" by local
Town Authoritiess. In 1946 there was enacted the comprehensive
Native (Urban Areas) Accommodation and Registration Act No. 6 of
1946 '.The large statutory undertakings, such as the Railways and Iron
and Steel Commissions, now house their own employees. In the case
of other undertakings the ma'ority of Native em loyees are in practice
required to be accommodated in Native Urban Eocations provided by
the local town authonties '.
211. The position that prevailed in Kenya in 1956is stated as follows
by Hailey:
"The existing legislation makes provision for the establishment of
a Location in which only Africans may reside; except in the case of
those who are housed by their employers, they may live outside
the location only if they obtain a special permit. Africans may build
their own houses. in confomitv with municiual reeulations. on ulots
rented from the'municipality: or they ma3 rent"single-roomêdor
two-roomeà auarters erected bv it. Provision exists for eviction in
case of failuri to pay rent, orof more than one conviction under
the Liquor Licensing Laws 6."
212. Sections 21. 23 (1)and 23A. of the Northern Rhodesian Urban
African Housine Ordinance of 1048. as amendeà. read as follows:
- ,. .
"21. Every localauthority shallestablish oneor more Alrican Hous-
ing Arcas for the accommodatiori of Africans cmpl-yed within
th: boundaries of the area under its control.
23. (1) A local authority shall provide or cause to be provided
suitable accommodntion for the housing of evzry Afncan
em~ioyed within the boundaries of the area under its control
for'whom accommodation is not provided in licensed private
premises ...
' Ord.No. 4 of1906 (Southern Rhodesia),in TheSlniuleLaw ofSoulhem Rhodesio
(1939) V.olII,Title IX. Chap. 84.pp. 315-320.
' Ord.No. 14of ,908(Southern Rhodesia], in Th6 SfotutaLotu of Southcm
Rbdcsia (1939)V .ol. II. TitIX. Chap. 83.pp. 311.314.
' Act No.30of 1930(Southern Rhodesia), asamended, sea. zgand 32.in The
SUI& LawofSwlkm Rhodrsia(1939) Vol. V, Title XXIV. Chap.z4pp. 120-121.
' Act No. 6of 1946(Sauthern Rhodesia). in TheSfalulaLaO/Soutkm Rhodesia
1946 (1947) .P.6-30.
' Ibid.. p. 578ricon Survay (1957pp. 572-57,.296 SOUTH WESï AFRlCA
23A. A local authority with the consent of the Minister may au-
thorise non-Afncans to reside in an Afncan Housine Area.in
premises to be provided for the purpose where theunature of
the servicesprovided or the dulies performed by such persons
in the African Housine Are3make it desirable that thev should
reside in the Area '."-
Regdation 130 of the Northern Rhodesian Townships Regulations
provides :
"(1) The local Authority may fix the boundaries of a native location
(hereinafter called a 'location'),alter the site thereof and define
the streets therein. In case of any such alteration of site, the
local Authority shaü pay reasouable compensation to the owner
of any hut or dwelling-house that may reguire to be removed.
(2)The local Authonty may erect and maintain hutsand dwelling-
houses in the location. and may let such huts and dwelling-
houses to natives 2."
213. In South West Africa Respondent makes, as far as is practicable.
separate provision for each of the different Native groups, since the
majority of Natives refer to live in ethnicaüy grouped communities.
In an ethnic survey o&he district of Windhoek, Giinter Wagner remarks:
"The vast majority of Natives. however. live and prefer to live.
among their owu people. As among the mal population, kinship
counts for more thau friendship. In the comparatively few cases
where, e.g.. a Coloured lives in the Bergdama section, he usually
does so because he has married a Bergdama woman and maintains
closer contacts with his wife'sthan his own kin 3."
Apart from the fact that the Native; are in favour of ethnic grouping.
there are a number of positive advantages to this system:
(i) Schools can be sfted so that the; are withL easy reach of the
children of the same ethnic grou Thus education of children in
their mother tongue is simplifierand improved and the benefit
which they derive from education is enhanced accordingly.
(ii) The inhabitants choose as their leaders men who denve their in-
fluence from their status in the group or tribe of the area of their
origin. Such leaders are recognized by the officials and perform a
very useful function by maintaining discipline and insisting upon
law and order similar to that in their home environment. They also
enable better contact to be kept with the traditionally organized
oups in the homeland.
exist for sheltered economic and social advancement
of individual Natives. who do not have to fear competition from
members of the White or Coloured groups.as Faras the conducting
of businesses, the practising of trades. and the appointment to
officialpositions such as those of postmasters, police officers,school
' Ord. No.32 of 1948 (North- Rhodesia), asamended. secs.21.zj (1)and 23A..
in The Lnws ofNo*ihc*nRhodcsia. 1959Editian. Vol.VII.Chap. z3*, p.6 (secz.jA.
was inserted by Ovd. No.g of1960).
Reg. No. 130.in Th8 Laws of Norlhern Rhodcsia.rg6j Edition. Vol. IV, Cbap.
120.p. 110.
a Wagner.G., Elhnic Sumsy ofS&h WarfAfriro [unpublished].Part 1. Dislrid
of Windhoek, para. 300, p104. COUNTER-MEMORIAL OF SOUTH AFRICA 297
principals. municipaofficiaisetc., in Native residential areas are
(iv) Control by local authorities is simpiified and improved by the fac-
tors mentioned in sub-paragraph (ii) above. since the system of
selecting persons in postions of authority from the gronp itself in
preference to membersofother groups,tends to prornote harmonious
co-operation and to reduce friction.
(v) Opportunities exist forsheltered and progressive development of
the various ethnic groups in the administration of their own muni-
cipalaffairs.
E. Condusion
214. The A plicants have. in their cornplaints regarding rights of
residence.singed out certain statutory provisions involving restrictions
on Natives, &thout paying r ard to the compensatory ana reciprouty
aspects of the whole policyOY.which they fomi part, and without en-
q+g whether that policy, on the whole, genuinely stnves at the at-
tanment of an equitable state of balance. The Applicants' approach is
apparently that there should be no restrictions applicable to any popula-
tion grou Respondent has demonstrated that such an approach is
misguidec?and not in accord with the principles and purpose of the
mandate system.
215. The Applicants have further alieged that the restrictions con-
that in imposing them Respondent "bas given consideration wlely to the
convenience or advantage of the Mandatory government and of the
'European' citizens and residents of the Temtory"%,and that Respon-
dent-
"... hasfoliowed asystematiccourse ofpositiveaction whichthwarts
the weli-being,inhibits the socialprogressand frustrates thedevelop
ment of the great majonty of the population of the Temtory in vital
and fundamental aspects of their live'".
These are degations of fact. of which Applicants have offeredno proof
other than inferences sought to be drawn from the statutory provisions
themselves, singled out as aforestated and isolated from the context of
the totalpolicy of which they form part. Respondent submits that the
above survey of its policy, and of the context and reasons for the pro-
visions in question, am ly demonstrates that the Applicants' allegat~ons
are unfounded and witF oIt substance.
'I.paIa.154 (3); P15i
Ibid.para.154 (5)p.151.
'1bid.. para. 1(51p. '52. CHAPTER IV
FREEDOMOF MOVEMENT
A. Introductory
rials'hare thus summanzed !>ythe Applicants:53of Chapter 1'of the hlemo-
denied to the 'Native' population of the Territorv in a large number
and variety of way; hereinabove more part'icularly descnbed.
The U.N. Committee on South West Africa, in rendering its report
to the Fourteenth Sessionof the General Assembly in 1959s, ummed
up the situation by stressing the 'intricate system by which the
freemovement of the "Non-European" population and the "Native"
population in particular is restncted and controlled in the Temtory
of South West Afnca'. The Committee emphasized that there had
been no indication of any relaxation in the system of control during
r959.The Committee went on to express 'its grave concem over the
unwarranted restrictions, based on race or colour, placed on the
freedom of movement of the "Native" population of South West
of the Temtoryrm 2.''ovenvhelming majority of thetotal population'
2. The Applicants further dege:
".. .in the entire complex of ...tight restrictions upon ... (the)...
movement (of Natives), the Mandatory has given consideration
solelyto the convenienceor advantage of the Mandatory govemment
Mandatory has uniformly failed to promote the matenal and morale
well-being, the social rogress and the development of overwhelm-
ingly the larger part orthe inhabitants of the Temtory .. .in terms
of. ..their freedom of movement. On the contrary, by law and by
practice, the Mandatory has folioweda systematic course of positive
action which thwarts the weU-being,inhibits the social progress and
frustrates the development of the great majonty of the population
of the Tenitory in vital and fundamental aspects of their lives )."
3. While it is conceded that the freedom of movement of Natives in
Çouth West Africa is in certain respects restricted by laws-generally
described as pass laws-Respondent denies that such freedom has been
"alrnost completely denied to the 'Native' population of the Temtory";
that the system controlling the movement of Natives is "intricate". or
that the restrictions are "unwarranted and "based on race or colour".
tion only to the convenience or advantage of "the Mandatory Govem-nsidera-
ment and of the 'European' citizens and residents of the Temtory".
1, pp.148.15~.
' Ibid., para.15(5).pp.1151-152 COUNTER-MEMORIAL OF SOUTH AFRICA 299
4. As will be demonstrated, the Applicants' summary of the position
is misleading. in that it creates the impression that statutory limitations
on freedom of movement are applicable to Natives only. On the contrary,
and for reasons that wiii become apparent, limitations have alsobeen
imposed upon the movement of White and Coloured persons.
5. By reason of the fact that the Native groups have not yet succeeded
in creatine important points of economic growth in their own areas
which offs o~krtunitiës of em~lovment to themselves and to members
of other [email protected] has been'no need to limit and regulate in detail
the movement of other groups in Native reserves. On the other hand,
the area occupied by the White group has, since the assumption of the
Mandate. offered such extensive opportunities of employment to mem-
bers of other oups that even extra-territorial Natives have been flocking
to this area. fiis has made it necessary to create machinery for the control
of the settled White and non-White communities.der to protect the interests
by the White group were not controlled. it would necessarily lead to a
concentration in and around the towns and villages of this areaaolarge
number of Natives. for many of whom there would be no emp1oymen.t.
no adequate housing, and no other necessary facilities. This would in
turn lead to the creation of slum areas and al1their attendant evi'.
7. In what follows,esb bon wdieden tnstrate that when the restric-
tions imposed on the freedom of movement of the inhabitants of South
West Africa are judged against the background of socio-economic con-
ditions in the Temtory, it can not be said that the obligations imposed
by the Mandate have been violated.
8. Since the pass or permit system as applied in the particular Urcum-
stances of South West Afnca has been influenced by expenence gained
in South Africa, it will be necessary to trace briefly the hstory of the
system in South Africa.
B. The Pass System in South Africa
g. The system of control of the movement of Natives in the White
areas of South Africa by means of passes or permits has undergone a
long process of development from the various different systems pre-
viously in operation toa relativeiy simple and uniform system for the
whole of the Republic.
IO. During a period of more than a century this problem of control
has received the attention of severai commissionsof enquiry and of many
exmrienced administrators aii over the countrv and ithaS. furthemore,
sir;ce Union been under constant consideration by the Department of
Native Affairs (now Bantu Administration and Development). Questions
repeatedly considered were. on the one hand, the possibiFty of abolishng
the systemaltogether, and. on the otherhand, the retention of the system
but with elimination of cumbemme controls. duplication, and un-
necessani restrictions.
VideChap.III, paras. 163seg.supro300 SOUTH WEST AFRICA
These enquiries and experience over a long period have convinced
Respondent that a system of control is inevitable in a multi-group coun-
try like South Africa with so many conficting group interests, that it is
to the advantage of all the groups, and that it is essential for good and
healthy relations.
II. The system which is inthe process of being applied in the Republic
isbased on the issue to everv adult of an identification card. Movement
of memben of one coup inio and in the area of another group wiU,as
envisaged in this system. be controllcd bg the endorsement of such iden-
tificathn cards.
II. THEDEVELOPMEN OF THE PASSSYSTEM BEFORE UNION
12. It is unnece- to trace in detail thedevelopment of the different
~ass svstems in South Africa before Union. A bnef account willindicate
ihat ii was considered necessary in all parts of South Africa to exercise
some control over the movement of Natives.
13. In Natal provision was made in 1884 for inward and outward
passes ',and from 1901identification passes had to be carried by Native
servants, while employers had to keep a pass register and to enter a copy
of each pass therein 2.
rq. In the South African Republic (Transvaal) Article 37 of a resolu-
tion of the Voiksraad of 17 September 1858 3 provided that no non-
European ' could travel without a pass signed by a field-cornet. This
rovision was subsequently relaxed 5. but in 1895 both a general pass
raw 6and a law to control entry into, and egress from; certain proclaimed
gold areas 'were passed. In terms of the first of these measures a Native
required a pass from his emplo er when moving about in his district of
residence. and from a state ozcial when movine bevond that district.
~ ~ -,
15. In the Orange Free State provision was made for a greater variety
of documents in the nature of passes than anywhere dse in South Africa.
So, for instance, there were lnward and Gutward passes g, travelling
'Handbook on RnceRclntionr in Soulh Africa, ed. by E. HeUmann (1949). p. 277.
2 Vide Act No. 49 of igoi (Natal)secs.5, 6 and iz,in Acrs of the ParliomrntO/
the Colony of Naal. parscd in the Fifth Sessio01the Second Colonial Porliamrnf.
1901. pp. 169-170 and Act No. 3 of 1904 (Natal). in Acts of the Colony of Natal.
Parsid in Sccad Ession of the Founh Colaiol Pa~linmrnt. 1904, pp. 6-7.
Yi& Eybem, G. W. (ed.), Sclect Constilutimal Documnlr Illuslroling South
Alricon Hirlwy. 1795-1910 (~918). p. 413
+ It is truc that the word "Kleurling" (Coloured)appears in the Artide, but from
the context it is clear thatthe word must beconstrutoincluda "Naturel(" Native).
5 Law No. 6 of 1880 (South African Republic), in De Locale Wtllen de? Zuid
Ajriknnnsche Rcpubliek 1849-r885 (~887). pp. 748.75'.
Law No. 22 of 1895 (Suth Airican Republic). in De Locale Wcllm cm Volks-
rnodsbesluilcn dcr Zuid-Afr. Rcpublkk, benevens de Proclamatieo van ZHEd. den
Staatrpresident en de belangrijke Gouvernements-Kennisgeving gen.rende het
jaar1895 (1896). pp. 228-231.
' Law No. ag of 1895 (South Ahiean Republic). in Dc Locnk Wettrn en Volks-
raadsbasluilen der Zuid-Afr. Republick (1896). pp. z32-244.
Vide Handbook on Rue Relations in Soulh Africo (1949). p. 280. COUNTER-MEMORIAL OF SOUTH AFRICA 301
passes for aUnon-Europeans 1.urban residential passes Z,and rural r&-
dential passes '.
16. In the Cape Province there was much vacillation of policy from
1809, when a Proclamation of that year required every Hottentot to
obtain a certificate when leaving his fixed place of abode ',to approxi-
mately 1887, when most of the pass laws fell into disuse '.It ma be
pointed out, however, that Act No. 40 of =go= (Cape of Good dpe)
made provision for passes for Natives leaving and entering urban loca-
tions 6, and that Act No. 30 of 1895 (Cape of Good Hope) empowered
local authorities to make regulations prohibiting the presence without
a pass ofunexempted Nativesin public places between gp.m. and 4 a.m. '
17. Most of the efforts of administrations and of commissions which
havésin& 1900enquired into the operation of the pass kiws. have been
directed towards the simplification of existing systems. rnther than their
abolition. l'hus Lord Jlilner. wlien Hirh Comrnissioner for South Africa
after the Anglo-Boer War (1899-1904, in reply to representations by
the Aborigines Protection Society for the abolition of pass laws, said:
'The root idea of the old Ikss Law was not a wrongone. IfaI,orig-
inal natives are to come and go in large ntirnbers in swch of labour.
and to reside for considerable neriods in the midst of a white com-
mtinity, there must be some pissport system. else the place will be a
pandenionium. Alike for the protection of the natives and for the
~rotection of the whites. it isàbsolutelv essential to have some rea-
.~oriallearangements by wluchthe incorningnativecan bc identified,
and lus movcmeiits traceda."
It is sign+cant that Lord Milner found it necessary to retain nearly ali
the restrictions on movement of Natives imwsed bv the old Transvaal
legislature. at least as far as labour districtswere ccncerned.
18.Lord Milner, seeking to introduce a comprehensive Native policy
for South Afnca as a whole, in 1903appointed the South African Native
Affairs Commission. This Commission was under the chairmanship of
Su Godfrey Lagden, Commissionerof Native Affairs, whohad previously
dealt with the pass and labour problems in the Transvaal. and who is
recorded to have said:
"1 am convinced of the necessity of aUnatives being compeiied to
carry passes as much for the secunty and protection of themselves
as for the white people 9."
' VidcHandbwk a Race Relations in Soulh Africo (1949). p.280.
Lou,IO/the Otonge Rtcrr Colon)(igo~,.p.a220.~ Fm Statel.sec. z.in Th8 Statuts
' VideIlondbook on Rare Rtlortonr in So<eihAfriu (1949). p. 2and Law Su.8
of iXa0 (Oranne Free Scatel SC. i.in Thr Siawle I.ow O/theOronpe RI&,.Cohy
(1907);P. 265.-
' Vide Egerton. H. E.. A Short Hislor01 British Colonial Policy (6th ed.)171.
' Vidc Handboak rn Ras Rclctias in SoulhA/,& (1949). pp. 276-277.
Act No. 40 of 1902 (Cape of Good Hope). sec. 11(13). in Slntulcs of theColay
of lhcCape of GoodHop6 pvrrcd by Pnrlinmcnl during lhaSessions 190s-1906. Vol. V
LIW6). PP. 4515-4516.
' Act No. 30 of 1895 (Cape of Good Hope), sec.2.in Stntvlcs ofthe CDPLofGwd
HVc 1652.1895 V.ol. III. 1887-189(51895) ..3531.
Cd.904, pp. 23-24.
Itid..p.20.302 SOUTH WEST AFRICA
The Commission was specifically instmcted to compare the situation
in the Cape and Natal with that in the two former Republics of the
Transvaal and the Orange Free State. The Commission considered that
a pass system was necessary in most of the areas covered, though it
recommended, inler aliathat there should be less hindrance to Natives
by local regulations, less irritating and needless delay at border stations
and other points '.
III. THEDEVELOPMEN OTF THE PASSSYSTEM AFTER UNION
19.In 1923the Natives (Urban Areas) Act3 repealed some of the
earlier pass laws and regulations in force in the Cape, Transvaal and
the Orange Free State, and provided for a considerable measure of
uniformity in the pass regulations of the various provinces applicable
to labour districts and proclaimed urban areas. In its original form,
section 12 of the Act, inter aliarequired every Native entering an urba
area to report hk arriva1 and to obtain written permission to remain in
such area, and furthermore required any Native not finding work within
a urescribed ~eriod to leave the area. Natives holdine letters of exemw
ti8n. registekd parliamentary voters in the Cape, Lndowners, chieis,
headmen, and certain teachers. clergymen -. -and interpreters were
exempted '.
20. The report of the Native Ecnnomic Commission, published in
1932. contained the following comments in a section dealing with Pass
Laws and Exemption:
"724. Keasons generally given for the enforcement of the system
are:
. . It affords a ~rotection to the mral Native who comes into sur-
roundings which are entirely new and strange to him;
(2) in so far as the pass represents a service contract it affords a
further means ofDroteciion to the Native:
neces&ry as a meaiis ol identification;
employer in preventing .trange Salives from Living
or sleeping on his roperfy ;
it prevents absconing from farms orother formsof employment;
in general it prevents crime;
it affordssome means of stopping wholesaieentry of Natives into
towns, where, if not required to carry passes, a largeumber will
deliberately refrain from being employed and wiU loaf and
ultimately live on their wits.
725. These are reasons of practical convenience affecting the good
order and well-being of the community, but many people question
whether they are sufficient to justify the imposition of such drastic
restrictions on liberty of movement as the pass laws require. In
our opinion the reason and justification for them must be looked
VidaSouthAfrican Native Asairs Commission 1903-(1904-1905)Vol. 1,Rcpwl
01IhdCommission, paras.264.268,pp.50.51.
It i3 not Respondent's intention to deal fuiiy witb titis developmeody but
to touch on someof it.9moreimportant facets.
Act No. Zr of Xgzj,in StoluiO/Ihd Unim of South Africa rg13,pp.140197.
Ibid..sec.12,pp. 158-164. GOUNTER-MEMORIAL OF SOUTH AFRICA 303
forin the fact of the contact between the higher European civilization
and the primitive indigenous Society of the Native ...
726. As regards the town problem anyone who has had the
oo~ortunitv which the Commission had. of ins~ectine slums of the
larger towns of the Cnion. miglit heiitntc to asselit Ïo n statement
ttiat no control of entrance to and residcnce in the towns by Kati\.es
is necessary 1.''
21. In 1934 a Proclamation applying to the Orange Free State and
the Transvaal, relaxed same of the old pass laws by making it easier for
Natives to obtain certificates of exemption 2. In 1945 the various pass
provisions relating to urban areas were consolidated in the Natives
(Urban Areas) Consolidation Act 3,which, as regards Natives in urban
areas, replaced Act No. 21 of 1923 as the basic control measure.
22. The report of a Commission, under the chairrnanship of Mr.
Justice Fagan, which had been appointed to "investigate the Native
pass laws, ta examine the operation of the Natives (Urban Areas) Act
and if necessary to draft a new Bill", was published in 1948 '.The Com-
mission reaffumed the basic principles of the said Act, but recommended
simplification of the then existing pass laws. The main proposals of the
Commission with reference to influx control and freedom of movement
have been summarized as follows:
"ïhe Commission felt that control of the iarge-scale movement
of Natives and regulation to maintain racial separation were neces-
sary. It advised the establishment of a system of country-wide
but centrally-organized labour bureaux. Withthe object ofgraduaiiy
doing away with passes, the Commissionrecommended that identity
cards be issued to voluntary applicants (men and women over the
age of 18years), which would ailow a central record to be kept of
the whereabouts of the bearers. A standing committee of represent-
atives of the Departments of Native Affairs and of Justice should
consider from time to time howfar theidentity card system, the sta-
bilization andimprovement of the Natives' position, and the elimina-
tion of criminal elements would permit the removal of vanous
pass laws.
The Commissionako devised a plan whereby the non-production
of a document would not be an offence;a police officer,if not satis-
fied that a particular pass law had been-complied with and if in
reasonable doubt as to whether a summons could be served on a
Native and whether the ~ative would appear in answer to it, could
arrest a Native, on whom the onus would be to prove he had corn-
plied with the pass laws.
In the Commission's view, the registration of service contracts
' U.G. 22-1932. pp. 105-i06.
Proc.No. 150 of 1934 (S.A.)in The Union O/South A/ricn GovernmcniGaretlc,
Vol. XCVII, No. zzr6 (17 Aug. 193~).pp. 383-386. This Proclamation was pro-
mulgated byvirtue of the provisions oAct No. 38 of1927 (in StntuiofIbe Union
O/ Smlh AfriCa 1927.Vol. 1. pp. 314.35') which empoiuered theCentral Govern-
pass areas.nd orrepeal passlaws and to make rtgulations relating topasses and
Vide Act No. zg of 1945. secs.3,31 and 38, in StatuiroftheUnion of South
Africo 1945.pp. 154.163. 174-176 .90-ZW.
' U.G.28-1948.304 SOUTH WEST AFRICA
for workérswhose cash wages did minet-exceeted4eper week. ~h&e
earning over&4 per week did not need protection. The svstem should
be exténded fo the rural areas.
Were its recommendations to be accepted, the Commission felt
that possession of an identity cardcould be added to the list of
exemptions-save tliat service contract registration should apply
to al1Natives eaming up to £4 per week. The identity card system
would provide better machinery for tracing and identifying Natives
than any of the existing passe'."
23. A much simplified "pass system" was introduced in 1952with the
enactment of the Natives (Abolition of Passes and Co-ordination of
Documents) Act. the purposèof which w3s: "To repeal the laws relating
books to naticeso.-.2."s -y natives: to providc for the issue of reference
In terms of this Act every Native who has attained the age of 16
years is required to be in possession of a reference book incorporating
an identity card and particulars of tax payments, permits and exem
tions. The Act also makes it compulsory for al1employers to report Ie r
engagement or discharge of Native employees, and establishes a Native
Affaus Central Reference Bureau which keeps a record of aU Natives to
whom reference books have been issued. A reference book relieves,the
holder from carrying other documents. including passes. as prowded
for in earlier pas5 laws.
(now the State President) may. by proclamation in thehe GGazelte,anderal
subject to such conditions, modifications and exceptions as may be
prescribed. apolv the provisions of the Act to South West Afric3.
". An offiwil memorandum issued by the Department of Native
Affairs shortly after Act No. 67 of 1952 was passed. described the main
advantages of the new system as foUows:
"The object of this Act is to repeal the various Pass Laws which
have not effectively controlled the movement of Natives in South
Africa, and to provide each Native over 16 years of age with a Ref-
erence Book in which will be incorporated the identity card with
photograph preçcribed by the Population Registration Act, 195...
The advantaee to the Native of the new svstem. a~art from the
freedom of movement that it confers. is th& he isnÔt required to
carry a number of separate documents which he cannot readily
prove are actuaUy hi< own, and instead in one compact booklet
name and address of employer, particulars of tax payments. and
any other authorities or concessions that mi~ht have been granted
tohirn. - .
The advantage to the employer is that by comparing the photo-
graph with the holder ofthereferencbook.he wiUbereasonably sure
that there has 11een no imoersonation and. should he later wish
to contact the Native for aiy purpose. the~e~artment of Native
' Handbook on Race Rclalionr in South A(1949).footnote p. 291.
' Act No. 67 of r9Title, in SLlllukrof lha ofSouthAfricn 195p. 1013.
' Act No. 67 o1952,G+.cil., sec.p. 1025. COUNTER-MEMORIAL OF SOUTH AFRICA 305
Affairs will in most cases be able to supply his latest address. The
employer must, however, keep a note of the Native's identity
number. The employer will ah be,certain that he is not engaging
someone who 1sa deserter. or thatbis ownempl.ye.smay unlawfuily
leave his service ...
In conclusion it should be noted that the Reference Book is not
a 'Pass' book as the pass laws do not apply to the holder thereof.
-~ nroves who the holder is and what rights and privileaes he -
enjAys, particularly in European areas '." -
25. Most of the provisions of the Act have stood the test of practice
and are still in force. Apart from its primary purposes, the present
system of identification and control of movement has been found to
have many practical advantages for the majority of Natives. Some of
these advantages are:
(a) Impersonation and fraud, not infrequent in the past, in regard to
post officeand other savings accounts held by Natives. have now
become virtually impossible.
(6)The administration of deceased estates of Natives, which formerly
often gave rise to $rave problems. owing, for example, to the diffi-
culty of,tracing illiterate heirs and relatives, has been made easier.
(c) The claims of Natives entitled to payment of pensions, disability
allowances, etc., can now be more easily established and recorded.
(d) The present unifom system ofidentification has rendered it possible
to make the registration of Native births and deaths compulsory.
Before the introduction of the present system such registration was
hardly practicable.
(c) Reference books provide a positive means of determining age.
often a subject of dispute in the courts.
(1) Natives who are entitled to Workmen's Compensation now have
fessdifficulty in proving their claims, and delays in payment can be
reduced to a minimum.
(g) The sarne applies to compensation payments for sufferers from
miner's phthisis. Long delays were frequent in the past, as su~h
Natives often retumed to their homes in the Native territories
before their cases could be disposed of, making it difficult to trace
them through imperfect district records.
(h) Identification has been made much easier in the case of deaths or
senous accidents. Relatives can also now be traced and notified
with far less trouble than in the past.
26. Considering the simplicity of the system as applied in South Africa
today, it would hardly be possible to go further in the direction of
freedom of movement while retaining. at the sanie time, essentiai and
effective measures of control over the influx by Natives into European
and Native urban residential areas.
27. If regard behad to the long history of the pass system in South
AM, and if itis further taken into account that one of the grounds on
which Respondent founded its claim to South West Africa at th? Peace
Conference was that it wouid be to the advantage of the indigenous
population if Respondent appiied its Native policy to South West
i Memornndum mi ih. Noiiver (Abolitinof Pnrrcr) Art.r952(unpublkhed),
pp. 1-2.306 SOUTH WEST AFRICA
Africa ',it must be assumed that when the Mandate was conferred it
u.3~ witliin the contemplation of al1parties concerned that Kespondent
was Iikelj, to applg ro tlie Temrorv a [>~sspolicy in accordance with Local
conditions. -
C. The Developmentof the Pas or Permit Systemin South West Africa
28. A German lm~erial Ordinance. dated IO A~ril 1808. made
provision for ejt:iblish~ient of reserves for the indigeriuus grnups2. In
ternis of th; Ordinaiice persons who werz not memhers of tlie poup for
whom a ~articular resefie was established. were not allowedl without
the consènt of the Chief Magistrate, to enter such a reserve orto reside
or carry on business therein.
An Ordinance of the Governor of the Territory, dated 25 January
1006. ~rohibited al1Dersons.Savemissionaries and inhabitants of Ovam-
boland, from enter& thatarea Save with the consent of the Imperia1
Govemor. Entry into the Caprivi Zipfel without a permit was also
strictly forbidden 3.
29. After the rebeUion of 1904-1907the German authonties imposed
a rigid pass or permit system for the Natives of the Territory. An Ordi-
nance of the Governor, dated 18 August 1907 ',compelled al1 Natives
in the Police Zone-with the exception of children under the age of
seven-to carry passes in the form of metal registration badges. Natives
were required to have these badges with them at al1times, and to pro-
duce them whenever requested to do so by any White person. If a Native
wished to leave the district in which he resided, he had to obtain a
t~a\~ellingpass from a police station '.
Nativcs were also subject to curfew regulations. By virtue of section 8
of the above Ordinance, which required al1 local authonties to create
the necessary machinery for the purpose, regulations were made for-
bidding Natives to leave their locations between 9 o'clockin the evening
and 4 o'clockin the morning =.
30. It should be noted that Enropeans-and the Rehoboth Basters.
while they resided in the Rehoboth district-were not subject to these
regulations. but other restrictions were placed on their freedom of move-
' Vidc Book IV, Chap. IV, para. 36, of this Counter-Memorial.
* Hesse, H., Die Landlragc srid diFrnga der Rschlsgültigkcil dcr Konaersioncn in
Schutrgebietea (igo6). II. Teil. pp. 94-95.hen und finanziellen Entwickelung des
Vide Die deutschc Kolo,rinl-Gcsclrgebung. Sammlung der auf die deutschen
Schutrgebiete berüglichen Gesetre. Verordnungen, Erlasse und internationalen
Vereinharungen mit Anmerkungen, Sachregister. Zehnter Band (Jahrgang 1906).
rr. -J.-,.
' Ibid.. Elfter Band (Jahrgang 1907). pp. 347-349.
' Secs.1. 2.3 and 10 of the Ordinance.
Vide, e.g.the Notice dated 30 Nov. ,907 in respect of Swakopmund, in Dia
druirche Kolonial-Gcrctrgebung. Elfter Band (Jahrgang1907). para. 290, p. 421 and
the Notice dated 3 Dec. rgro in respect of Grootfontein. in Amldlalt für dns Schutr-
gcbirt D~ulsch-Südwrsintrika, 1. Jahrgang, No. zo(15. ]anuar igrr). 260. COUNTER-MEMORIAL OF SOUTH AFRlCA 3O7
ment. So, for instance, Europeans were barred from entering Native
locations at night-in the case of Karibib. Grootfontein and,Tsumeb,
from entering at all-without written permission from the Police '.
II. THEPASSSYSTEM DURING THE PERIOD1916-1920
31. When the South African forces occupied South West Africa many
Natives in the Police Zone were unemployed, and ivere roaming
over the Temtory as vagrants. In many cases families had been
broken up and there was an almost entire absence of any form of tribal •
control 2.
32. In the circumstances which prevailed the authorities were com-
peUed to introduce control measures for the purpose of restoring law
and order in the Police Zone. A memorandum signed by the Deputy
Secretary, Windhoek, on 3 August 1916,retained the main feature of the
German system, viz., that Natives should carry passes, but made it
applicable only to males above the age of 14, and. in urban areas, also
to females over 14years.
The memorandum envisaged three kinds of passes:
(a) Passes for Natives in employment, which were to serve also as
contracts of service.
$b-, Certificates of exem~tion. intended mainlv for Natives havina -
visible means of sup60rt. '
.c, Passes to seek work. intended for Natives who did not possess
certificates of exemption and were not in employment '.
It was also pmvided that a Native in employment had to obtain a
travelling pass from the Police when travelling for his own purposes. and
from his employer when proceeding in the latter's service.
33. The above provisions applied only to the Police Zone. In regard
to Ovamboland. the provisions of Martial Law Regulation No. 30 pro- *
hibited the movement of persons, other than government officers and
Native residents of Ovamboland, into and {rom that territory without
special permits '. Persons other than govemment officers also required
a special permit to enter the Caprivi Zipfel.
34. No legislation was passed to enforce this system. with the result
that it was not strictly or uniformly applied '.
1 Vidc the Polic Oerdinance datedr4 Nov. 1907in Dia deutsche Kolonial-GeSeli-
gebung. Zwblfter Band (Jahrgang 1908). pp. 26-27 and the LocalOrdinance dated
3 Dw. 1910. in Amtblnft lür das Schuligsbicf Deulsch-Südwcrlnfviko. 1. Jahrgang.
No.zo (15.Januar19~1). p. 259.
Vidc Chap. II. para.13.supa.
1 Prokcrwslc 01 Swlh-West Afvico, N~live Auairs :Memorondum caccrning (a)
lhc Lnws offtc/ing fk~N<lliuepopulririon in the Prolcctovau of South-West Africa:
(h) the practicc followcd by the pvcscnl Administration in carrying ou1the pauisions
of lhcrLeawr: and I.,the Notivc .oli," ccn~ra,iv.f the P~olc~loralcAdrninislralion
(2916). paras.1-14,pp.6-7.
South West Africain Mililav Occu+alianof the UniaalForus.uNo. 7 (15Mar.c1916).
P. 3.
Vi& para.48. infra. SOUTH WEST AFRICA
III. THE SYSTEM INTRODUCE ADFTER 1920
(a) Introduclory
35. To appreciate the necessity for introducing a system of control
by means of passes or permits. regard must behad ta the socio-economic
effect of the above-mentioned disintevation of tribal life in the Police
Zone.
In the life of the indigenous peoples aU activities centred primarily
around the existence and well-being of the tribal group. Within the
group there was assigned to each individual his appropriate role, deter-
mined according to sex, age. position and kinship relations. In such a
Society people are primarily responsible to a social code, which provides
its own sanctions controiling the behaviour of individuals.
36. The destmction of tribaiism, and the end of their traditional
form of communal living, forced the Natives concerned ta fend for them-
selves in circumstances foreign ta their customs and background. The
sanctions controliing the behaviour of individuals were greatly impaired.
and substitutes not yet properly appreciated. The discipline of regular
labour, which involves observance of obligations towards an employer,
not by reason of any traditional authority vested in him. but on account
of a relationship govemed by contract. was unfamiliar to the Natives.
forthe performance of tasks necessary ta provide for a living from day
to day.
37. Another relevant characteristic of the Natives concemed was their
nomadic habits. Basicaliy, the Dama, the Herero and the Nama were
nomads who had by no means settled down at the time of inception
of the Mandate '.
38. By reason of the above. many Natives, in their detribalized state,
P were inclined to drift from one place to another, taking up employment
for only limited periods, and moving on again when their immediate
needs had been satisfied. Many existed merely on what they could take
from others. A situation thus arose which threatened the safety and
peaceful existence of aU law-abiding inhabitants of the Police Zone.
39. To protect Natives living in the reserves against encroachment
by others. it was found necessary to introduce measures controlling
entry into. and movement in, such reserves.
As regards the area occupied by the White group, where opportunities
of employment in a modem economy and the attractions of town Life
would naturaliy be conducive to an influx of Natives, it was particularly
necessary ta create a system of control regulating entry into, and move-
ment in. such area.
@) Conlrolof Movmnt in10andin Native Resnves
40. Regulation II (1)of the regulations applicable to the Berseba
and Bondels Reserves provides:
"NOperson shali encamp, raide or be within, orenter the Reserve
without a written permit so to do, signed by the Superintendent
VideBook III. Chap. IIofthis Counter-Mernorial. WUNTER-MEMURIAL OF SOUTH AFRlCA 3O9
thereof or the Native Commissionei and any person not being the
lawfd holder of such a permit then in force who shall encamp,
reside or be within. or enter the Reserve shall except as hereinafter
provided, be guilty of an offence '."
41. In terms of regulation II (3) any Native ma enter these reserves
for the purpose of obtaining from the superinten gent a written permit
to encamp, reside or be within the reserves, provided that he proceedç
to the superintendent's office to obtain such permit within 48 hours
of having entered the reserve. It is further provided that no building
of any kind whatsoever may be erected in these reserves by any person
other than a Native Z.
Almost identical regulations apply to the other Native reserves in
the Police Zone.
42. Section 2 (r) of the Prohibited Areas Proclamation of 1928
provides:
"No person, not being a pemn employed by the Administration
or the Union Govemment, and travelling on public service, or a
native inhabitant of the District of Ovamboland as created and
defined by Proclamation of the Administrator dated the second
day of September, 1920 (Proclamation No. 40 of ~gzo),as altered
from time to time, shall enter or reside or bein the said Dis-
trict.as altered from time to time, unless he is in possession of a
ermit issued to him either b or on behalf of the Secretary for
gouth West Africa 'or by the 8fficer in Charge of Native Affairs at
Ondongua 51"
Section 3 of the Proclamation, which applies to the Okavango Native
Territory, the Kaokoveld, the Eastern Caprivi Zipfel and the Bushman
asea beyond the Police Zone. contains similar provisions, except that
rmits may be issued only by or on behaif of the Secretary for South
Gest Airica 6.
43. It will be observed from the above provisions that entry into,
and movement in, everyNative reserve are strictly controlied. As regafds
the reserves in the Police Zone, there is a measure of differentiation
between White and Colowed pesons on the one hand, and Natives
on the other, in that the latter may enter a reserve for the purpose of
obtaining permits, while the former must first obtain permits before
entering any reserve.
44. These measures of control were not only designed to protect the
'G.N. No. 130of1938(S.W.A.), reg.11 (1)in The Lows of South WestA/rica
193.3 V.ol. XVII. p.344.
G.N. NO.239of1930(S.W.A.). reg. 15.inThe Lems of SouthWesl Africii 1930.
P. 464.
Vida G.N. No. 68 of 1-2.~iS.W.A.1. inThe Lnws of South West Ahica 1924.
PP. 57-63.
'NOW theSecretary forBantu Administration and Development. ui& Old.
NO. 4of1955(S.W.A.). sec3 (1)(a). inThs Lawr 01SmU Wcsl Alrira r9.5V,ol.
XXXIv. p. 530.
'Proc. No.96 of1928(S.W.A.). sec.2 (1)in The LnwsofSouth WcatAfricn1938.
p.106.asamended by sec.2 and item qofthe First Sehedule of OrNo. 2 of1955
(S.W.A.). iTha Laws O/Smilh West Africa 1955Vol. XXXIV. p. 530.
* Itid..ss. 3,pp.lob-108.310 SOUTH WEST AFRICA
inhabitants of reserves against encroachments by others 1, but they in
fact serve that purpose, and tbus promote the interests of the inhabitants
concerned.
(c)Controlof Movemnt intoand in the Rehoboth Gebiet
45. Paragraph 14 of the Schedule to Proclamation No. 28 of 1923
(S.W.A.).p-ovides:
"No person other than a lawful resident of the Gebiet or a person
bonafidetravelling through the Gebiet shaii bepennitted to enter
the Gebiet Save with the written consent of the Magistrate of the
District of Rehoboth who shall in every case prior to according
or refusing such permission as the case may be consult with the
Raad of the Rehoboth Community. An appeal from the decision
of the Magistrate shall lie to the Administrator. Any person who
un1awfuUyenters the Gebiet without the required permission shaU
be liable to be punished and to be removed therefrom by warrant
under the hand of the Magistrate of the District of Rehoboth2."
46. By virtue of section 5 of Proclamation No. 9 of 1928 (S.W.A.) the
above provisions are not applicable to:
"(a) ... any officer of the Administration of the Territory or the
Railwavs and Harbours Administration for the Durpose of
carryink out hi3 officialduties. or of any ineniber of'thi house-
hold of any such officeraccompanying him; or
Ib) . . . anv person bonafidesearchina for stock sus~ccted to have
. , strayed Ôrbeen stole'n;or -
(c) .. . any person for the puy bo-.fide of transacting any
business with any officerof t e Administration of the Territory
or the South African Railways and Harbours Administration
connected with the oficial duties of such oficer 3."
47. In terms of Proclamation No. 36 of 1936(S.W.A.) the provisions of
Proclamation No. II of 1922 (S.W.A.)-which will be dealt with herein-
after twere, with certain modifications, extended to the Rehoboth
Gebiet 5.The effect of these modifications isi, nteralia, that a member of
the Rehoboth Baster community bas the same authority to issue a pass
to his Native employeefor travelling in theGebietas hasa White employer
in respect of his Native employee in the Police Zone 6.
(d) ControlofMovementintoandin theArea occupiedbyth WhiteCroup
48. A Commission appointed by the Administrator during 1920 to
enquire into the matter of Native locations, reserves and labour, made
the foiiowing observations:
' Vide para. 39.supro.
Proc. No. 28 of,923 (S.W.A.).Schedule. para.14.in The Lotrisof Soulh ives1
Africa 1993.p.56. Vide al30U.G. 41-1926. p. 202.
'Ploc. No.g of1928 (S.W.A.) .ec.5.inThc Law$ ofSovih WerlAfricn 1928.p.46.
' Vida paras6.2cl sep.. infra.
'Proc. No. Ir of 1922 (S.W.A.),in Tha Law* of Soulh Wcsl Africa 1915-19aî.
pp. 749-754and Pvoc.No. 36of1936 (S.W.A.) .ec.2and Schedule 1,in Th6 Lows of
South Wcri Africa 1936.Vol.XV, p.104
PIOC.NO.36of1936 (S.W.A.).ÇEhedule 1 (z).in Th6Lawr of Soulh Wesl Africa
1936.Vol. XV. p. 104. COUNTER-MEMORIAL OF SOUTH AFRICA 311
"Until about a year ago the administration of native affairswas
to a great extent regulated by the provisions of a memorandum,
and we feel sure that had these been observed in spint as well as
letter the question of native control would have been on a much
better footing than it is today. The absence of a pasç law and the
~romukation of the Master and Servant Proclamation of ~qzohave
Fenderd its provisions nugatory. and,created a osition uniler
wluch itis practically impossibleto e.uerciseany satis acrory control.
The written contract the visiting pus as well ;LFthe pas to seek for
eniployinent have been dispensed with and itcannot riowbe readily
ascertained :whether a Sative! found travelling along a road or
across countj is a vagrant or not ...
To ensure ... control the enactment of a ~ass law wiUbe neces-
sary, but unless its provisions are strictly iforced and uniformly
cmied out and unless the public render reasonable assistance, there
can be little houe of satisfictorv results beine obtained '."
The Commission recommended that provision be made for the follow-
ing passes: employers' passes for Natives travelling on their masters'
business; officia1travelling passes for Natives proceeding ta places of
employment or going out in search of work; visiting passes, and residen-
tial passes applicable to Native reserves 2.
49.It is against this background that there was passed in 1922a
Proclamation requiring Natives to obtain or cmy passes under certain
circumstances '.During the ensuing years it was also found necessary ta
require Natives from the northem territories to carry identification
passes whilein the PoliceZone, andto enact specificprovisions controlling
the entry of Natives into urban and proclaimed areas.
AUthese provisions are referred to in paragraphs 146to 153of Chapter
V of the Memoriais 4. and they will be dealt with below in the specific
replies to be furnished ta the ailegations of the Applicants
(e) Controlof Mouemcntinlo and in Native Urban ResidcntidAreus
50. Experience has shown that in order to avoid group friction, slum
conditions and crime, it is necessary to control the entry of non-residents
into Native urban residentiai areas. Provision for such control has conse-
quently been made in the regulations of locai authorities, as the following
examples wiUillustrate:
(i)Regulation 31(II) of the Native Location Regulations for Walvis
Bay provides:
"Any person desiring temporarily to enter, be or remainwithin
the location. shall obtain a vermit. hereinafter called a visiter's
permit, from the Superintendênt orfrom another person duly au-
thorised by the Superintendent to issue such permits during the
' Report O/Native RercrvrsCaimirsia (S.W.A.),8 June 1921 (unpublished).
PP. 14-17.
Ibid.. pp. 16-17
' Proc.No. rr of1922 (S.W.A.). Vi& para.62,infra.
' 1, pp. 148-151.
' Vide paras.62d reg.. infra.312 - SOUTH WEST AFRICA
absence of the Superintendent. Any person found in the location
without a visiter's permit. shall be gdty of an offence l."
Perso11.sexempted from the provisions of the sub-regulation are
clergymen. medical practitioners and officials 1.
(ii ~edation 32 of the Okahandja Location regulations provides
that no Europeans. save medical practitioners, clergymen and offi-
cials, may enter the location without written permission from the
local authorit concemed Z.
(6) Regdation 8 L )fthe Tsumeb Location remlationsreads as foliows:
.. -
"No other than a native shaUbekthin a Location at any
time, unless he is in possession of a written permit signed by the
Magistrate or the superintendent . ..3"
In terms of its pro&o. however, the sub-regulation does not apply
to medical practitioners, ministers of re-igion and officials.
51. In practice, permits are granted to Euro eans to enter Native
urban residential areas only for very good and fawful reasons, and at
night only in cases of emergency. During the period 1951 to 1960 ap
proximately ~o,ooosuch nnits were issued to Europeans in 12 of the
major urban areas in the emtory, averaging approximately 83 permits
per year per urban area '.
(f)TheAttitude ofthePnrnancnîMandates Commission
52. The Permanent Mandates Commission was fuUy aware of the
various measures relating to the control of the movement of the different
groups in the Temtory since the relevant legislation was referred to in
the annual reports to the League of Nations.
53. The foliowing is a summary of some of the statements in the
annual reports:
The rgîz report ': Particulars were given of the provisions of Procla-
mation No. II of 1~2 (S.W.A.) (the ori 'na1Pass Law) and of the
Curfew Regulations roclamation of 1922 f.
The 1924 report Detaiis were given of the provisions of Proclamation
No. 34 of 1924(S.W.A.) regulating, inte dia, the entry of Natives into
urban areas ln.and of the application of these provisions to Windhoek.
Reference was also made to the Regulations for Native reserves pub-
lished under Govemment Notice No. 68 of 1924 (S.W.A.) ".
G.N. NO. 243 of 1960 (S.W.A.). in OflinGnrcttE*froordinary ofSouth Wcd
Africn,No.2287 (14 Dee. 1960). p. 1196.
G.N. No. i70 of 1933 (S.W.A.), in OfliciGorclfcofSoulh Werl AfiiCi1. No.
536 (1Nov. 1933). P. 8677.
'G.N. No. 325 of 1952 [S.W.A.), in OficiGorrlleofSouth West Africa, NO.
1726 (1Nov. 1952).p.3570.
' U.G. zr-rgq. ipp. 3. 18..
Vi& para.62. infra.
' Vida para. 108. infio.
U.G. 33-1925, pp. 422. 27.
PIOC.NO. 34 of 1924 (S.W.A.). iTheLam of Saulh WestAfrica 1924. pp.
178-,go.
'O Vidc para. 92. infra.
'' Vida footnote 3 to para. 41, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 313
The 1933 report':Referencewas made to Proclamation No. 17of 1933
(S.W.A.) which amended Proclamation No. II of 1922(S.W.A.),in
respect of the issue of permits to persons other than Europeansentenng
thTheem1935 report':Attention was drawn to Proclamation No. zgof
which provides for the control of the movement of
northern and extra-territorial Natives in the Police Zone
The 1936report ': Reference was made to Proclamation No. 36 of
1936(S.W.A.) which extended the provisions of Proclamation No. II
of 1922(S.W.A.)to the Rehoboth Gebiet8.
The1937 report :A summary wasgiven of the principal lawsaffecting
Natives, including the pass laws.
54.During the Third Sessionof the Permanent Mandates Commission
in 1923a,fter Major Herhst, the South African representative,had dealt
with the requirement of passes for Natives, M.d Andrade, a member of
the Commission, said:
".. .that the passsystem was used in many of the coloniesof South
Africa and the territories of the Union. It was analogous tothe pas+
port system in Europe. The passes indicated the ongin of the native,
wtib was his chief,etc. It was no burden on the nat1°."
55. During the Fourth Sessionof the Commission in 1924, Su Fred-
enck Lugard asked Mr. Hofmeyr, the South African representative,
whether the pas systein "... was ahsolutely necessary, together with
travel"i".Mr. Hofmeyr replied by sa e'tg that1e... it was ahsolutely
.under present conditions, r"or no other reason than for the
safetyOe heS aayve" l'.
Replying to another question of Sir Frederick Lugard concerning
curfew regulations, Mr. Hofmeyt observed that-
"...regulations of this kind were neceçsary in towns. Natives living
in the municipaiities mi ht not he abroad in the streets between
nine in the evening and four in the morning. Dunng this time they
went to their location, which the white man was not aiiowed to
enter between sunsetand sunrise and where the natives might do as
they pleased 12."
No further discussion foiiowedthis reply.
56.During the same session M. Beau. another member of the Com-
mission,expressed the opinion-
"... that the system in force in aUthe reserves was comparatively
1U.G. z7-1934,p. 2.
* Vida para80.infra.S.W.A.i)nTb ~nmrof SouliWesfRfnca 1933.p.128.
' U.G. 25-1936,pp 4. 42.
J ProcNo. 29 of1935 (S.W.A. ).The Lorvsof South Wcrl Afnm 1935,Vol.
XIV. pp. 148-158.
' U.G.31-rg37.P.t3..
Vida para. 47,supro.
U.G. 25-1938pp. 48-49.
'OP.M.C.. Min.. III. 106.
Ibid.. IV,64.
'2 Ibid.. p.79.3I4 SOWTHWEST AFRICA
liberal, the natives having the right to leave them and the white6
not being aliowed to enter them nor to acquire land there '".
57. In 1937,dwing the 31st Sessionof the Commission, Mr. Courtney
Clarke, the South African representative, in repl. .o questions by Lord
Haüey<<said that-
... natives required a pas to go from one reserve to another. Any
native entering an urban area had to procure a pass, and to be
registered as soon as he obtained employment. The Native Affairs
Branch had powen to close any urban area against fresh natives
comingin to seekwork there. The policywas to restrict the resence
of natives in urban areas to the bare requirements of urgan em-
ployer~ 2."
58. In view of the fact that the Permanent Mandates Commission
never commented adversely on Respondent's passor permit system, it
is clear that the Commissiondid not regard the pass laws or the steps
taken in connection therewith as violations of the duties imposed by the
Mandate, or, indeed, as being in any way objectionable.
D. Reply to the Applicants'Aiiegations
D
59. The statutory provisions on which the Applicants rely in .para-
graphs 146 to 152 of Chapter V of the Memorials3 can conveniently
be dealt with under the foilowingheads:
(a) The movement of Natives in the areas inhabited by the White group.
(b) Egress from the Temtory.
(c) Entry into the Territory.
(d) The movement of northem Natives into and in the Police Zone.
(e) The entry of Natives into proclaimed areas.
(/) Curfewrestrictions.
60. As already indicated ', the Appiicants object only to those pro-
visions which restrict the movement of Natives. while no mention 1s
made of the control exercisedover the movement ofWhiteand Colowed
perçons '.In this way the Applicants create an entirely misleading im-
pression of Respondent's pass orpermit policy.
61.In replying to the Applicants' aliegations, Respondent will
demonstrate that their conclusion that "liberty of movement has been
effectively and almost completely denied to the 'Native' population of
the Temtory" 6, is unwarranted since:
(a) Natives enjoy complete freedom of movement in their own areas:
and
(b) the control exercised in the areas inhabited by the White group
does not unduly restrict the movement of Natives.
P.M.C.. Min. IV, p. 62
'Ibid..XXXI, p. 139.
31.rrn.-.--~.>.
' Vi& paras .-42prand 50,supra.
* 1,para. 154 (4)p. W. COUNTER-MEMORIAL OF SOUTH AFRICA 315
II. THEMOVEMEN TF NATIVES IN THE AREASINHABITED BY THE
WHITECROUP
62. ln paragraph 146 of Chapter V of the Memoriais the Applicants
alle.,:
"Under Section II of the Native Administration Prodamation
19~2n ,o 'Native' may travel within the Police Zone except 'upon a
pass issued [to him] ...'l"
This is not a correct statement of the legal position.
In the first nlace. it is not section II of the Proclamation which
creates a against travelling without a psi. This section
merely prescribes the perjons by whom passs mîy be issued to Natives.
The relevant orohbition is contained in section xoj. the matenal part
of which reads as follows:
"Every native found beyond the confines of the location, reserve,
farm or place whereon he resides or where he is employed shaü be
bound upon ... demand ... to produce his pass or his certificate
of exemption .. .4"
It is clear £rom section IO that is only required when a Native
travels outside his location or reserve or away from the farm or place
where he resides, or is employed.
In the second place, section r of the Proclamation defines "Native"
as "every male over 14 years of age one of whose parents 1sa member of
some aboriginal race or tribe of Afnca" 5.It follows that section IO does
not apply to Native women,and children, who may travel in the Police
Zone without a pass. In this respect it is apposite to note that every
White person-male or fernale-requires a pass or a permit to travel in a
Native reserve or to enter an urban Native residential area
In the third dace. section 6 of the Proclamation. which is not referred
to by the ~~piicants, exempts the following Natives fromthe require-
ment of obtainin~ and carrying passes:
- --
"(a) A native policeman or messenger while on,the service pf the
Govemment provided that he is in possession of a certificate
of employment signed by the head of the department to which
he belongs;
(b) any native to whom a certificate ofexemption hasbeen granted
by the Minister of Native Affairs 'under the hand of the Chef
Native Commissioner of South West Africa ;
' 1,para.154 [4),P.148.
1915-1912.p.752.oa5arnendedWbyPmc.ecNo. irof1927e(S.W.A.),sec3, in TheLawu
ofSoulh WcslAfricnr9a7. pp.110-~r z.d Ploc.No. 15of 1938(S.W.A.),Schedule.
in The Laws of Soulh WestAfrifnr9a8, p.80.
To whichreferenceü madeundertheheading"Security ofthePerson" uidc1.
para. 133.P.14s.
4 Pvoc.No. II of1922 (S.W.A.),sec.10,in The Law$ ofSouih WcsfAbiw 1925-
192%. pp.751-732,amended by Proc. No. irof 1927[S.W.A.).sec.2.in The LnWs
O/South West Afvica1927,p. HO.
' Pros.No. 11 of lgzz(S.W.A.),sec. 1,in Thr Lam of Swlh Wcsf Afn'ca rgI5-
19'21.P.750.
Vide paras.40-43and 50. supra
' Asconstrued in ter- ofAct No.56 of 1g54, inStiitulcs of Union of Sdh316 SOUTH WEST =CA
(c) any native missionary or teacher;
(d) any native in the emplo of a Ewopean master while ac-
companying such master Y. ,
63. The number of exemptions grented under section 6 (b) during
the years 1951 to 1960 was 676 out of a total of 918 ap lications (i.e.,
73.6percent.), whiie 350out of363applications forrenew arofexemptions
(i.e., 96.4 per cent.) wereapproved during the sameperiod. Factorsgener-
ally considered in applications for exemption are the applicant's general
intelligence, educational qualifications. character, age, etc.
The number of Natives automatically exempted-including headmen.
councillors, members of Advisory Boards, teachers, police otlicers,
messengers, clergymen, etc.-is approximately 1,000 '.
- ~
64. TO sum up. the ~pplicants'~aÜe~ationthat "no'NativeS ma traveY
wilhin Ihc Pol~ce Zonecxcept upon a pas5 issued (italics added) to hm
bv an authorized Derson.is.i~--~~~~- in that the relevant section of the
fioclamation doe; not apply to:
(i) Native females;
(ü) Native males of the age of 14 years and under;
(üi) anv Native traveüinrr vithin his reserve or residential area:
(ivj exémpted Natives.
65. The essence of the provisions of section IO, read with sections r
and II, of the Proclamation is consequently that, for reasons already
explained ', an unexempted male Native over the age of 14 years is not
permitted to travel beyond his place of residence or employment in the
Police Zone unless he 1sin possession of a pass issued by an authonzed
person.
The practice today is that passes are issued alrnost as a matter of
course to Natives who wish to travel in the Police Zone.
66. The various categones of persons who may issue passes in terms
of section rr-employers. magistrates. officersin charge of Native affaus,
Native commissioners. su~erintendents of reserves. ~oliceofficers. etc.-
show that Respondent hâs endeavonred to make'ii as easy as possible
for Natives to obtain passes.
A number of Native otlicialsin reserves have been empowered to issue
passes when, for instance, the superintendent is absent. Headmen have
been appointed in reserves where there are no resident superintendents.
67. For a person in employment application for a pass is ordinariiy
a simple matter. And if his employer refuses to issue a pas, he is freeto
appriach a prescribed officia1for one '.
68. In paragraph 133 of Chapter V of the Mernorials 6, under the
Alricn 1954. pp. 559-565 aod Ploc. No. rrg of ,958(S.A. n.The Laws of South
Wcsl A/rica 2958, VolXXXVII, pp. 133-141.
PIOC.No. Ir of 1922 (S.W.A.), sec. 6, in Th8 Lows of Smlh We$t Atrica 2915-
'912. P. 751.
Departmental information.
' 1.para. 146. p. 148.
' Vide paras. 35d reg.,supra.
' Proc. No. 11 of ~gzz (S.W.A.), secIL (r) in Tha Laruof South Wsrl Afnca
O/Smlh9zWcrl.A/&@ 19~7. p.ed112.Proc. No.rr of1927(S.W.A.), W. 3,inTb LDWS
1.P. 145. COUNTER-MEMORO IFLSOUTH AFRICA 3I7
heading "Security of the Persan". reference is made to section IO of the.
Proclamation, some of the provisions of which have been dealt with
above '.The Applicants apparently object to thefact that a Native who,
in certain circumstances, has no pas or neglects or refuses to produce
the same, may be summarily arrested by an authorized person.
69. In order to enforce the ass system properly, it was. and is,
necessary to confer on authorizefpersons the power to demand the pro-
duction of a ~ass and to anest a Native 2who fails to comolv with such
demand. ~liz'wholesystem woul<lbe rendered nugatory il ihércwere no
persans authorized to demand the production of pashes in ordcr to
establish whtther Satives travellina bzvond their rcserves or areas of
residence or employment have in fa& pérmissionto do so.
70. Respondent has already explained why provision is made for the
arrest of vagrants without warrant by certain designated persons 3.For
the same reasons the power ta arrest Natives offending against the pro-
visions of section IO of the Proclamation hasbeen conferred on author-
ized persons. If any such person exercises the power of arrest in an
arbitrary manner. the arrested Native can avail himself of the ordinary
civil remedy-viz., a claim for damages-available to all persons who
have been unlawfully arrested.
71. Vanous provisions of the Proclamation serve to avoid hardship
and to prevent anabuse of the pass system, viz.:
(a) Section 8 makes it an offencefor any person maliciously to deprive
a Native of a pass, or maliciously ta withhold it from him '.
(b) Section II (5)perrnits a Native to approach an authorized person
for a pass if he is unable to obtain a pass because of the absence of
his employer, or for other sufficient cause 4
(c) Section II (6)makes it an offencefor an employer ta neglect to give
a pus ta a Native travelling in his service 5.
(d) Section 12 (2) gives the Chief Native Commissioner the power to
issue a pass when an authorized person refuses to do so 6.
(el Section 12 (3)authorizes the Administrator ' to order the issue of a
pass to any Native
72. Reference has already been made9to the report of the South
AfricanNative Economic Commissionof 1930-1932.in which it was con-
cluded that enforcement of the pas system "affords a protection to the
' Vide para. 62.supra.
Videpara. 64, rupro.
' VideChap. II.para. 44.nrpro.
' Proc.No. rr of rgzz (S.W.A.). se8in TheLnwsofSdh WsstA/~ic<r1915-Igll.
P. 75~
' Proc. No. Ir of 1922 (S.W.A.), sec.II,as amended by Proc. No. Ir of 1927
(S.W.A.). sec.3.in The Lams of South WestAfricn1927, p. 112.
(S.W.A.), Schedule, in The Lawsoj Swth West.aAfvicar918, pp.o80-82.Vida para.
79. inha.
' Now the Minister of Bantu Administration and Development; vide Act No. 56
of 1954. inStotuter of the Unia of South Africa 2954,pp. ,559-565and PNo..119
of 1958 (S.A.), in The Lawof Swth W~sl Atricli1958.Vol. XXXVII. pp. 133-141.
* Roc No. II of 1922 (S.W.A.). sec.12 (3).in Th# Loms of Sdh West Afnca
1915-rgaa. p. 752.
' Vide para. zo.supra.318 SOUTH WEST AFRICA
strange to him". The system is also useful in removing diAculties for
many Natives-so, for instance, when a Native desires to travel to an
urban area, an officialfinds out in advance whether accommodation and
employment are available in such an area.
j3. It may be pointed out that other countries in which conditions
basically similar to those in South West Africa prevail or have prevailed,
have a&o found it necessary to apply a pas; or permit sy<tem. The
foliowing are examples:
(a) Sections 7, 8, 9 and IO of Chapter 77 of the Laws of Southem
Rhodesia read as follows:
"7. Every male native within the Colony over the apparent age of
14years shall re ister himself at the proper pass officeof the district
in which he resi es, or with a pass officerappointed for the purpose.
Provided that this section shall not apply to any native registered
under the laws heretofore in force.
S. At the time of being sa registered, a certificate in the prescribed
form shall be delivered to him.
9. Every male native within the Colony and being under the age of
14years shall immediately on attaining such age register himself
as in sectiosevenof this Act provided, andobtain a certificate in the
prescribed form.
;o. Anv native desirine to leave his district in search of work mav
ohtain jree of charge fGm tlie pas rifficerof the district in which hé
resides. or from the nearest pass officerin the direction in which lie
intends to proceed, a 'passto seek work' in the prescribed form.
which shall be in force for a period not exceeding 30 da'."
In terms of section20 no person may employ or take into his service
for a period longerthan four days any Native who is not in possession
ofThe followine eeneral information reeardine the a~olication of the
Southern ~hodës&n pass system shortl<aftervthe establishment of the
Central African Federation, is furnished by Hailey:
"In Southern Rhodesia every male- frica ov en 16 must obtain
a registration certificate, which isboth a document of identity and a
record of contracts of service. Within towns proclaimed nnder the
Native Registration Act and under the Native (Urban Areas)
Accommodation and Registration Act, every unem loyed African
male and everv nnem~loved African f~ ~~~~-~d chili'not accom~a-
nied by a husband otp&ent must carry a pass authorizing hikor
her to seek emplovment or to visit the tom: those residin~ in toms
must possess â cértificatethat they are eaming their living by em-
ployment within the tom area. Non-indigenous Africans on
entering the temtory mustobtain a registration certificate and pass.
In certain proclaimed towns every African in emplo ent must
possess a certificate of service (tom pas) renewab Ke "ve'y six
months. It is a special feature of the Southem Rhodesian system
that the registration certificate shows the rate of wages paid to the
-
Revised EditionVol.II.Chap.77.pp.287-288.a tha 1st DaofJonuary. 1939.
a Ibid.. szo,p.289. COUNTER-MEMORIAL OF SOUTH AFRICA 3I9
Afncan by his employer, and that a medical examination isrequired
before an African enters into a contract of service in a proclaimed
municipality or tom. Though the pas system in Southern Rhodesia
appears complicated, its practical operation is mainly confined to
the larger towns and the system is not in fact greatly in evidence
in thesrnalier towns and mral areas L."
(b) In Northem Rhodesia every male Native of taxable age must
register and, if he resides in or visits certain proclaimed districts,
be in possession of a registration certificate. In the townships
Natives not in employment must carry both a registration certificate
and a visitor's orresident's pass. Municipal and township regulations
further provide that Natives must carry passes if they are outside
(c) The main features of the pass system existing in Kenya in 1956,
have been summarized as followsby Hailey:
"ln Kenya the Registration Ordinance of 1915 introduced a
procedure under which ail Natives were registered and had to carry
a certificate ofregistrationkipande). This \vassubscquently brought
into use as a record of employment and discharge. A Native was not
called upon to carry his hifiandein his Reserve, but it came to be
treated as a pass when he left it, and more particularly when he
visited an urban area. As has been shown in a previous chapter,
the necessitv for carrvine the kibande has of late vears become a
politicaliss;e, and ¢ legisla'tionhas extended.registration to
ail communities in the territory, but the certificate of registration
now records identity only, notthe tcrms of employment ."
74. At the present stage of development of the indigenous groups of
South West Africa, the abolition of the system controlling the movement
of Natives would, in Respondent's opinion, be ill-advised.
Aithough Respondent denies that the system at present in operation
can be described as "intricate" as the United Nations Committee on
South West Africa has done ', it may be pointed out that a simplifica-
tion of the system is under consideration.
In view of the factthat the new svstem in omration in South Africa '
is provinfi a succejs. Respondent co~templates applying a sirnillr system
in South West Africaas soon as practical dificultics have been overcorne.
III. ECRESS FROM THE TERRITORY
75. In paragraph 147 of Chapter V of the Memorials the Applicants
allege that in terms ofsectionsII and 12ofProclamation No. IIof 1922-
"... no 'Native' may leave the Temtory of South West Africa
except upon a pass which may be issued to him only by a magistrate
or by the Administrator
76. Section II (2)of the Proclamation reads:
"A pass to leave theTemtory shaUonly be issued by a magistrate.
1 Lord Hailey. An African Surucy:Revised 1956 (1957)pp. 1422-1423.
Ibid., p1423.
1.para. 154(4).P.151.
+ VidaDara. 27.subra.320 SOUTH WEST AFRICA
native commissioner, assistant native commissioner or officer in
charge of native affairs'."
This sub-section should be read with section 5, which, provides that
no unexempted Native may leave the Temtory unless,he 1s inpossession
of a pass duly issued for that purpose by an authonzed penon2, and
with section I which dehnes "Native" as "... every male over 14 years
of age one of whose parents is a member of some aboriginal tribe or race
of Africa" 3. It is consequently clear that the foliowing Natives do not
require a pas to leave the Territory:
(a) Native femaies:
(b) Native males of the age of 14years and under;
(c) exempted Natives '.
77. The pass required by sections 5 and II (2) of the Proclamation
in the case of a Native who wishes to leave the Temtory. isreally in
the nature of a passport, which must also be obtained by a White or
Coloured person who intends to leave South West Africa. The only
difference in this respect between Natives and White or Coloured persons
is that a Native reqwes permission to leave the Temtory for any other
country, including South Africa, while a White or Coloured pemn
requires permission to leave the Territory for any country other than
South Africa '.
78. The reason for this differential treatment is to ensure that Natives
in the Temtory who are inexperienced, illiterate or in poor financial
circumstances. do not in ignorance embark upon trips to South Africa
without realizing the implications of such ventures. In cas= where apph-
cants are fuliy aware of the position and can meet the financial res nsi
bilities attaching to such visits, or if they wish to go to the Repub c for
educationai or other like purgoses or to visit relatives there. passes are
obtainable without difficulty .
During the period 1951 to 1960neariy 3,000 passes were issued to
Natives to leave the Temtory.
79. In paragraph 147 of Chapter V of the Memorials7 the Applimts
further allege that any person authorized to issue a pass under section
12 of the Proclamation, has a discretion to refuse to do so.The Applimts
fail, however, to mention the provisions of section 12 (2) of the Rock-
mation, in tems of which there iç an automatic review in every case
where a pass is refused. This sub-section reads:
"If any authorized pemn other than a native commissioner.
' Proc. No.II of 1922 (S.W.A.)sec.II (2)as amended by Proc. No. IIof 1927
(S.W.A.). sec.3. in The Lawa of South Wasl Africa 192p. 112 and Proc. NO. 15
of 1928 (S.W.A.), Schedule. in Thhuis of South West Africa rga8. p80.
Ploc. No. 11of 1922 (S.W.A.),sec.5, inTh Law of Smth West Africo r9X5-
19al. PP. 750-751.
Ibid.. secI.p. 750.
' Vidc Act No.134uof 1955, in Sl<lh<O/the Unia of South Afnca 1955.Part 1
[Nos. 1-55). pp. 238-245.
The maximum penalty for travelling witbin or leaving the Temitory withaut
Pass isin thecaseof a firît offencfmeanot exceeding one poun(LI)or in dcfanlt
of Payment imprisnment for a period not exceeding 14 days. (Proc. No. rr of
I9?2 (S.W.A.), sec.5. in The Larusof South WestAfnw 19x5-1911. pp. 750-751.) COUNTER-MEMORIAL OF SOUTH AFR~CA 321
assistant native commisiioner or inagistrate rçfuses to issue a pass
to lenve the Territory or tra\vl therein, he shall irninedi:itely report
such refusal to the native commissioner or assistant native commis-
sioner within whose area of jurisdiction the refusai takes place, and
if there is no such native commissioner or assistant native com-
missiouer, to the magistrate of the district; and the officer to
whom the report is made shaU issue or refuse to issue the pass,
as he deems fit. If the authorized person refusing to issue such
pass is a native commissioner, assistant native commissioner or
magistrate, he shall immediitely report such relusal to the Secre-
tary for South West Africa, who shall issue or refuse to issue the
pass, as he thinks fit '."
Moreover, in terms of section 12 (3) of the Proclamation the Ad-
ministrator = has authoritv to order that a oass be issued toanv Native
notwithstanding any prohhition or other prÔvisionin the Proclamation 3.
There are consequentlv ample safernard' to ensure that a pass will only
be refused for süfficietït reaions.
IV. ENTRY INTO THE TERRITORY
80. In paragraph 148of Chapter Vof the Memorials 'reference is made
to section 4 (1) of Proclamation No. rr of 1922(S.W.A.)in its original
form 5. The sub-section has been amended by Proclamations No. 17 of
1933(S.W.A.) and No. 24 of 1935(S.W.A.),and now reads:
"No persoii other than a European shall enter the Territory, and
no employer shall bring into the Territory as an employee any such
person as aloresaid, without a permit from the Administrator or
some officerdeputed by him '."
81. In terms of section 4 (4) of the Proclamation the Administrator
may, upon the conviction of any persou for a contravention of the pro-
visions of sub-section (I), direct the Secretary for South West Africa to
serve an order on such person to leave theTemtory It is consequently
clear that section 4 (1)\vas never intended to appl); to inhabitants of the
Territory. and, in conformance with the principle of municipal and
international lawthat a State cannot expel its own nationals 9,the section
has been enforced against foreigners only.
1 Proc. No. rr of igzz(S.W.A.), sec.iz (2).as amended by Proc. No. 15 of 1928
(S.W.A.), Schedule. in The Lows of South Wcst Africa 1928. pp. 80-82.
2 Now the hlinister of Bantu Administration and Development.
3 Pvoc. No. II of rgzz (S.W.A.). sec. rz (3). in The hws ofSouth West Africa
1915-1922, p. 752.
' 1, p. 149.
Proc. No. ri of 1922 (S.W.A.), sec.4. in The Laws of South West Africo r9r5-
19aa. p.750.
In the caseofa Native.the Minister ofBantu Administration and Development.
(V'dProc. No. ii of ,922 (S.W.A.). sec.4r(1).as9amended by) Proc. No. 24 of 1935
(S.W.A.J. sec.r.in The Lnm of South Wcst Afiico 1935, Vol.XIV, p. 140.
Pm. No. ri of,922 (S.W.A.), sec.4 (4). in The Lnws of Soulh Wcst Afnca
1915-1921, p. 750. If the convicted is a Native. "Administrator" and "Secretary
for South West Africa" are to be constmed as "Minister ofBantu Administration
and Development" and "Chief Native Cornmissioner of South West Africa" res-
pectively. (Vidc Act No. 56 of 1954 and Proc. No. irg of 1958 (S.A.).)
9 Vide Weis, P.. Noiiaality and Slntelessnessin Internalional Law (1956)p. 50.322 SOUTH WEST AFRICA
82. The purpose of section 4 (1) is to control the entry of foreign
non-Whites into the Territory. This rneasi~reis necessary for the pro-
tection of the non-White employees of the Territory, and ensures that
they are not replaced by non-\Vhites from the Republic and other
countries. The subsection also prevents foreign Natives from becoming
stranded in the Territory and having to be repatriated at government
espeiise. I:urthermore, it serves as a check on the entry of undesirable
persons.
83. Permits to enter South West Africa are readily granted to bona
fidevisitors and also to skilled and semi-skilled labourers who have been
offered ~ositions which cannot readilv be fil,ed bv inhabitants of the
'~t:iritork. .A\,.iil.il~iiif~~riii~tioii~tiuw tli.itniorc tliin j,«oosiicIi ptrmits
\vert:iasuc'clto Sutivcj durinl: tli- ~irriud i051 to.-t)Oo.
84. Since meinbers of the \Vhite group are easily absorbed in the
economv of the countrv. there has been no need to introduce measures
to regdate their entri by means of permitç or passes-indeed. their
settlement has. in the interest of the development of the country, been
encouraged.
Sj. Iriparagraph iq<)of ihlpter \' of the >lcriiurinls 'the Applicants
r&r 10 tlie 1~ruvisiuiisof sections 3 alid of the extrd-territorinl and
I\'ortlit:rri Snri<,és(:orilrol I'roclam:~tionof rg3j '. Sectiori 3, rexd with
scctiori5 1 :ilid2. pro\.l~ie~.Inlel uii tllat evcr). sativc \I.~IO~C(Iumiiile of
origiii i+ OU~E.I~L.IIXC I'olice%onemurt I>ein ~>usscssion ol an ~(lentification
1):isiwlieii in t1i:it Zoiic. ',:inil in trrins of ;rctioii CJsuch :iS:iti\.i! must
II:,~,:IIIILI+ \rit11IIIIIzit :IIItiiii~~:,nd prollux it (,IItli? denland ofany
aurhori~cd pcrsoii. nny poli<:vo&<cr :iiiil niiv I>rrs.r-to whom hi: cng;iges . ~
or offers toengage Iiimielf as a servant '.
86. The purpose of the Proclamation. as stated in its preamble, is-
". . . to make pro'\~isionfor the control of natives recruited beyond
the boundaries of the territory or beyond the limits of the Police
Zone, for labour within the said Zone 5,and for the control of such
natives as aforesaid who have voluntarily entered the said Zone 6".
' 1.p.149.
2 Proc.No. of ,935 (S.W.A.). in The Lnwr of Soulh Wesl Atrica 1935.Vol
SI\'. pp.i.,S.I~S.
3 In terins of tlieproviso to sec. 3-inserted by Proc. No. 133 of ,961 (S.A.),
sec.2. iiiThe Laws of Sot'tlz West .4/rica1961. Vol. XL. p. 5q8-every such Native
who i,iip~s.~:~~~ <~.t~ur~r.ui<I~lillC11~ .~CIVI<~<intr:~cti)*d~lcrlb~d in regulation
5 of (i.\'S.' ~5 i.f ia,j~(ï \V .\ )[Lomr of South Il'rrt .ilr8ra ,955 Vol SSSI\'.
pp :;.0-:6?].irihi, n..irieali:,lIw d~sincd IO coni1,ly wtlt the reluirement of I>eing
in possession of an identification pass.
' Proc. No. zqof 1935 (S.W.A.). sec. 9, in Th8 Lnws of South Werl Africn r935.
Val~ ~ ~ ~.. 1<.~
In terms of sec.5 of the Proclamation (pp. 150-152) the recruiting or labour
urgmization by which an rxtra-territorial or northern Native has been recruited.
is ohliged to hand to such Native an identification pass.
Proc. No. 29 of ,935 (S.\V.A.). Preamble. in The Lawr of Soulh West Atrica 1935.
Vol. XIV, p. rq8. COUNTER-MEMOR IF SOUTH AFRlCA 323
87. In anotlier cuntcxt ' I<cspondent hi; nlrendy dcalt witli scstion b
4) of the Proclainariori, \r,hicliprovi<lesth:it S<itir,cI;itioiircrsrccruited
rorn areas outsidc the I'oliceZonc m;lv rriii:iin \i.itliilie Zoiieorily fur
the period of employment provided for in the contract, and in no-case
exceeding two and a half years 2.It was pointed out tliat this limitation
on the sojourn of labourers from the nortliern territories was imposed
at the specific request of the tribal authorities of tliose areas who wish
to protect their people against detribalization.
88. In order to ensure the exercise of proper control over the influx of
extra-territorial and northern Native labourcrs into the l'olice Zone,
it was necessary to require that al1Natives outside the I'oficeZone niust
be in possession of identification passes when in the said Zone. In tlie
absence of such a provision it would be impossible to distinguish be'wceii
labourers and visitors, and impossibleto ensure tlie return of migrant
workers after the expiration of their contracts.
89. Identification passes are issued on a generous scale, as appcars
from the following list of such passes granted during the period 1950 to
1060 3:
Total
90. In view of the circurnstances dealt with above and in view of the
requirement that White or Coloured persons must have permits to enter
the northern territories. which are inhabited exclusivelv bv Natives.
esp ponde rntpectfiilli submits that there is no substance (n the alle:
gation that the relevant provisions of the Proclamation discriminate
against Natives on the ground of race or colour
' &'id&Chap. III,paras.148-156, supra.
Proc.No. 29 d ,935 (S.W.A.), sec.6 (4),inThe Laws of Soulh Wesl Afncn
1935,Vol. XIV. p. 152, as amended by Proc. No.37 of ,940 (S.W.A.),sec.3. in
Thc Lowr o/Souih Wesl Afric~1940. Vol.XIX, pp. 288-290; byPloc.No. 38 of1949
(S.W.A.), sec.2,in Th8 Laws of South W~riAtrica 1949. Vol. XXVIII. p. 760. by
Proc. No. 59of 1949 (Ç.W.A.), sec.i.inThe Lnwr ofSouth West Africn 1949. Vol.
XXVIII. .<. ,82 .~,-PIOC. NO. do o~ ~ < <>~~.Pi.~,.se~. Zin Th* Lawr al Sodh
Wcrl Atrica r95r. Vol. XXX, p. 64: and by Ovd. No.3 of 1955 (s.w.A.).'~~c.r,
in The Lnws of South Weai Africa zarr.Vol. XXXIV, ..D.-528.
~e~artmental information.324 SOUTH WEST AFRICA
VI. THE ENTRY OF NATIVE SNTO PROCLAIM AERDEAS
91. In paragraphs 150 and 151of Chapter V of the Memorials ' refer-
ence is made to some of the puwers conferred on the Administrator
by section 22 (1) of tlie Natives (Urban Areas) Proclamation 3.
In paragra h I@ of Chapter V of the Memorials', under the heading
"Riglits of Residence", the Applicants refer to regulation 2 of the
Hegulations for Proclaimed .4reas by virtue of which the Adminis-
trator exercised the powers mentioned in paragraph 150 of the same
Chapter of the Memorials.In the present context the attack of the A pii
cants is apparently directed at the power of the Administrator go;
the State President) to require Natives entering proclaimed areas to
obtain permission to be in such areas.
92. Respondent has pointed out that section 22 is one of a number of
sections of the Natives (Urban Areas) Proclamation designed to control
the influx of Natives into urban and proclaimed areas. It was shown
that provision for such control had been made as early as 1924by means
of Proclamation No. 34 of that year 6;that Proclamation No. 4 of 1932
(S.W.A.)amended section 6 of the original Proclamation by empowering
the Administrator to declare that no Native mieht enter anv s~ecified
urhan :ire= for the purpose of seekiiig or undert;&ing em1)loyieRt or of
rrsiding tlierein, euçept in accordance u,~tliprlscribcd cundiIiori~ '. and
thnt ii ail(1t.dorovisions io sectioII of tlie oriciiial Proclnmatii>nwhicli
authorized the prohibition of the entry of fëmale Natives into such
areas without certificates of approvals. Respondent also dealt with the
basic considerations of its influx control policy9,and demonstrated that
a similar policy has been applied in other countries ". It remains todeal
with the requirements of section 22 relating to the obtaining of permits
or certificatesIL.
93. The portions of section 22 of the Proclamation on which the
A~~iicants relv. orovide that the Administrator IZmav reauire everv
maîe Native e<te;ing a proclaimed area. unIess exempte? by ;egulatioi,
to report his arriva1 within a prescribed period; to obtain written per-
mission to remain in such area. and to oroduce such document on demand
to an authorized officer. Permission Cobe in a proclaimed area may be
refused if there is a surplus of Native labour available in such area;
- .
'1,P. 149.
Xow the State President: uidc Act No. of1954.
'Ploc. No. 56 of1951 (S.W.A.). in The Lam of South West Alrica 1951, Vol.
XXX. ."D. *0-1'1.
'1.p. r48.
'G.N. No.65 of 1955 (S.W.A.), inThe Lows of South West Africo 1955. Vol.
XXX1V.p. 754. I'ideChap. 111.par.1.igo.ruprn.
Pvoc. No.34 of 1924 (S.W.A.), inThc Lnws of South West Afri1924.pp. 178-
r9o.Vide Chap. Ill, para. 158. supra.
'Proc. No.4 of,932 (S.W.A.), sec.3, in The Law of South West Atriua r93a.
pp. 54-56 Vidc Chap. III, para. r6i. supra.
Vbid.. sec. 4, p. 58. Vide Chap. III. para. 161. supra.
' Vidc Chap. III. paras. i63-175, ru@..
"OPTO. No.56 of195118,(S.W.A. ),c.22.in TheLnws ofSouth Wsst Africa 1951,
Vol. XXX. pp. :3o-r37.
l1Now the State President; uidc footnotzto para.gr.supro. COUNTER-MEMOR IF SOUTH AFRICA 325
~ass lawa'.or ifhee1%under the age of 18mvears unless he is accomp~niedthe
by, is coming to, or is residing with, his parent or guardian In the
said area.
94. The. Administrator ma also prohibit any Native female from
entering a proclaimed area 7or the purpose of residing or obtaining
em~lovment therein, unless she is in wssession of certain certificates.
c hé p;ovisions relating to such certificit~.~are correctly set out in para-
-ap-i is~ of Cliapter V of the \lemori;i's
95. ~he ~~~licants fail to mention the provisions of section zz (z) of
the Proclamation, in terms of which the following Natives are exempt
from the aforestated requirements:
"(a) chiefs and headmen approved in such manner as may be
prescribed ;
(b) native ministers of religion who are marriage officersor who
carry and produce on demand to an authorized officera certifi-
cate under the hand of the European minister, priest or mis-
sionary in charge of their church in the Territory to the effect
that they are wholetime officers of such church; teachers at
state-aided educational institutions, members of a police force
established by law and members of any profession approved by
the Administrator 'by replation;
(c) Department;the South African Police or Criminal Investigation
(d) prison warders, messengers, interpreters of the various courts
of the Temtory ... while in actual employment;
(e) any native, to whom a certificate of exemption has been
granted by the Administrator under the provisions of paragraph
(b) of sectionsix of the Native Administration Proclamatio.n,
1922 (Proclamation No. Ir of 1922) . ..'"
96. The provisions of section zz (1)of the Proclamation-which do
not substantially differfrom those contained in sectioIIof Proclamation
No. 34 of 19245-were designed to create effective control over the
influx of Natives into proclaimed areas and are in Respondent's view
necessary for thispurpose 6.
In this regard reference may be made to the foUowingextract from
the 1932annual report:
"With regard to matenal conditions, as has been made clear earlier
in this report, the depression and consequent difficulty of obtaining
employment has affected the urban natives more seriously than
others. The position was relieved by the repatriation of considerable
numbers of unemployed natives who had come from areas outsjde
to this course could be perceived as the food supply in Ovam oland326 SOUTH WEST AFRICA
was adequate and it was felt that it would be much better forthem
to mark time where plenty prevailed, than starve in the towns or
use up the resources of other natives. Moreover, many of them,
being idle or short of food, began to resort ta crime and, in the case
of women, to prostitution. This action has undoubtedly helped and
those remaining behind can and are being helped through '."
97. The system for the control of the movement of members of the
Native groups into and in proclaimed areas has in practice worked well
in overcoming the difficultieswhich it was designed to remedy. Moreover,
this system is simple in its application. The members of the groups con-
cerned are fully acquainted with the system, and are in a position to
obtain the prescribed documents without undue hardship or inconven-
ience. Thus, a Native residing in areserve in the Police Zone whodesires
to proceed to a proclaimed area, applies to the superintendent of the
reserve for a pass to travel to the proclaimed area. On entering this
area such Native calls at the officeof the registering officer where the
necessary permit to look for work. or to be in the area for other purposes,
is issued to him. On termination of his employment or at the end of his
stay for other purposes, he obtains a travelling pass to return to the
reserve.
A rural Native outside a reserve. who desires to proceed to a pro-
claimed area, can obtain the necessary pass from his employer. or. if
not in employment. from one of the prescribed officiais,and can then
proceed to the urban area where the procedure is the same as stated
ibo\,e.
Sortliern Sati\,es proçeed to théoffices of ttie Sew South West Afrizÿ
Sative Labour .4ssociltion (which are \r.ellkriown ttirougliout the 'ferri-
torvl where thev are furnisheil with a11nrcessarv documents. and where
arr;hgements Ge made for their conveyance t6 their respective places
of employment.
98. Respondent has already pointed out that the Permanent Man-
dates Commission was kept informed of the policy to control the influx
of Natives into the urban areas of the Territory. Full details of the
provisions of Proclamation No. 34of 1924 (S.W.A.) ' were given in the
1924 annual report ', while Proclamation No. 4 of 1932 (S.W.A.) '.
which empowered the Administrator to prohibit Native femaleç from
entering proclaimed areas without certificates of approval. was reierred
to in the 1932annual report
99. In the 1922 annual report the Administrator stated that he con-
sidered it extremel undesirable to encourage Natives to crowd into
municipal locationsy, and in the 1937annual report the Commissionwas
informed that "It is the policy of the Administration to restrict,as far
as possible the congre ation of large bodies of natives in the vicinity
of European areas . . . '5,
U.G. 16-1933. para. 327, p. 69.
' Vide para.92,Isupra.. i58 and 169.supra.
U.G. 33 of1925, pp. 4.22.27. V;de para. 53. supra.
' Vidc Chap. III, para. 161, supra.
U.G. 16-rg33. p. r.
' U.G. zr-rgz3. p.13.
U.G. 25-1938. para.291, p.47. COUNTER-MEMOR OIFLSOUTH AFRICA 327
IOO.The. Permanent Mandates Commission did not ob'ect to thed
provisions of Proclamations Nos. 34 of 1924 (S.W.A.) an 4 of 1932
(S.W.A.), or to the policy as outlined in the above statements, and it
seems clear that the Commission did not regard influx control as a
violation of the obligations imposed by the Mandate, or as being ob-
jectionable in any other way.
TOI. The provisions of section 22 of Proclamation No. 56 of 1951
(S.W.A.) are not materially different from the influx control provisions
of the above Proclamations, and only provide more efficient machinery
for the control of the influx of Natives into proclaimed areas. The permit
system created by section 22 is. in fact,the most effective and the most
reasonable method of controlling the movement of Natives into and in
proclaimed areas. It is consequently submitted that if the restrictions
placed on the influx of Natives into such areas are justified-as Respon-
dent conteuds they are-it followsthat the permit system cannot be
objected to.
102. It is to be observed that section zz merelv enables the Adminis-
trator 'to exersise the pi,\r,ersto which the ~~~lic~iitsrefcr iripar;igr~phs
150and 151of Chapter 1'of the \Icmorrals 2.To d;ite the power t? pro-
hibit Sative femalcsfroriientering proclairnedareas has iiot Leeninvoked.
VII. CURFEW RESTRICTIONS
103. In paragraph 152 of Chapter V of the Memorials the Applicants
allege. with reference to section 27 (1) of Proclamation No. 56 of 1951
(S.W.A.) 3,that-
"The Administrator may at the request of any urban local
authority prescribe a curfew, under which no 'Native' 'shall be in
any public place within the area controlled by such authority during
such hours of the night as are specified . ..'Z"
104. The omission on the part of the Applicants to mention al1the
provisions of sub-section (1), or any of the provisions of sub-section (4)
of section 27, tends to create a distorted impression of the extent of the
powers conferred by the section.
Sub-section (1) reads aSfollows:
"The Administrator 'may. by notice in the GazetLeat the request
of any urban local authority, declare that no native, male or female,
shall be in any public place within the area controlled by such
authority during such hours of the night as are specified in such
notice unless such native be in $ossessionof a written @ermil.. ."'
(Itatics added.)
The permit required by the sub-section may be issued by an employer
or his re~resentative. an officerin char-e of a Dolicestation, or a designa-
ted official.
roj. In terms of sub-section (4) of section 27 any notice under sub-
section (1)shall not apply:
'Now the State President.
'1, P.149.
Proc. No.5601 195, (S.W.A.)sec. 27(8)inThe Lawr ofSouth West Afvica19.V.
Vol.XXX, p. i46.
+ The Laws ofSouth WestAfriçn 1951.Val.XXX. p.146. COUNTER-MEMORIAL OF SOUTH AFRICA 329
4 am., and the restrictions consequently cause very little hardship.
As has already been stated. a curfew notice restricts the movement
of unexempted Natives only in public places in the White areas of toms
and uties during curfew hours. If Natives desire to be within such
areas during these hours, they can obtain the necessary permits from
their employers with whom they are usually in daily contact, or from
authorized persons. In practice numhers of Natives are present in puhlic
places in White urban areas during au hours of the night.
III. When reasons are alleged to exist for the issuing of a curfew
notice-for example, crime committed hy Natives. or continual distur-
bance of the public peace at pight within White urban areas-the local
authority concerned consults the Native Advisory Board, and the local
anthority's application, together with the views of the Board, is then
transmitted to the Bantu Affairs commissioner or magistrate. who also
obtains the views of the Police. The said commissioner or magistrate
then submits the application and the reasons therefor, the views of the
Native Advisory Board and of the Police, together with his own recom-
mendation, to the Department of Bantu Administration and Develop-
ment, which in tum suhmitsits recommendation to the State President.
A curfew notice is consequently not lightly issued. It is only done if
the State President is satisfied that a curfew is necessary to establish or
mairitain peace and order in a particular urhan area.
112. With further advancement in the general educational level of
theNativepopulationsin thecities and towns, and their fuller adaptation
to the urban environment andliving conditions. it is hoped that dt be
possible gradually to relax curfew restrictions and that they wiU ulti-
mately disappear. In the interest of good group relations, however, a
too sudden repeal is in Respondent's view not desirable.
113. In conclusion, it may be pointed out that the type of restrictions
involved in a curfew is entirely reciprocal. The location regulations, to
whichreference has already heen made 1,control the movement of mem-
bers of the White goup in Native urban residential areas at least as
stringently, in that White persons may enter such areas only on the
authority of their superintendents whether by day or by night.
VIII. REPLY TO PARAGRAP1 H53 OF CHAITERV OF THE MEMORIALS
(a) ldroductary
114. In the said paragraph of the Mernorials the Applicants allege
that in their cumulative effect-
"... the multiple restraints upon the movement of 'Natives' and
the vulnerahility of the 'Natives' to arbitrary arrest press upon the
individual 'Native' with an almost suffocating weight
Relying on a number of provisions to which reference is made under
the headings "Security of the Person". "Rights of Residence". and
"Freedom of Movement", the Applicants then purport to portray "the
situation from the angle of vision of any individual 'Native" '.
' Vidc para. 50, supo.
1,p.150,330 SOUTH WEST AFRICA
The situation which the Applicants attempt to depict in this para-
mavh is a false one. As wiUbe shown. there can. in vractice. never be
Such a concurrence of circumstances and restraints in respect of any
"individual 'Native' " as is alleged by the Applicants.
II$. The provisions on whichthe ~~~licantçrely are those relating to:
jj) Undesirable persons in reserves.
(II) The removal of Natives within reserves.
III) The movernent of northern Natives into and in the Police Zone.
IV) Entry into the Territory.
(v) The entry of Natives into proclaimed areai.
(vi) Curfew res1:rictions.
(vii) The removal of Natives from urhan'areas.
(viii) Vagrancy.
(ix) The moveirient of Natives in the areainhabitedby the White group.
(xi) The deportation of undesirable persons from the Territory.
Before considering the applicability of these provisions, it will he
conw.enient,wvitha view to proper perspective, to restate briefly certain
of Respondent's replies to the relevant paragraphs of the Memonals.
(b) UndesirablePersonsin Reserves
116. In its reply to paragraph 132 of Chapter V 01 the Memorials 1
Respondent pointed out 2 that the replation providing for the removal
of undesirable persons from Native reserves was introduced to promote
order and good government in certain reserves in which there would
initiallv be little social cohesion and disci~line. It was also ~ointed out
that a;a result of the improvement of trlbal discipline, it 6as for a con-
siderable period riot been necessary to invoke this measure.
"7. The Applicants allege that the regulation applies to any Native
who is a resident of a reserve "whether within or outside the Poiice
regulation does not apply to reserves outside the Police Zone, nor to the
Berseba and Bontiels Reserves within the Police Zone.
It is consequeritly clear that the regulation. which at any rate was
invoked in the past only in very exceptional circumstances, applies only
in iimited areas, and does not affect the vast majority of Natives in the
Territory.
(c) The Removalof Natives wilhin Reserves
118. In replying to paragraph 139 of Chapter V of the Memorials
Respondent demc~nstrated 6 that the powers confemed upon the Admin-
istrator (now the State President) under section I (d) of Proclamation
No. 15of 1928 (S.W.A.)'-which includes the power to remove a Native
1, P. 145.
YidcChap. II, paras9.7-rar. supra.
' Ibid.,para.i07.
' Ibid..pp.5146-147..
Vide Chap. III. paras. rzg-rp. supra.
' Pvoc. No. 15 of,928(S.W.A.), sec. IId), inThe Lam of South West A/vica
1928. p.60. COUNTER-MEMOR OIFLSOUTH AFRICA 33I
resident in a reserve to some other place within it-are necessary to
implement Respondent's reserve policy, which was designed primarily
to promote the interests of the residents of the Native reserves.
119. The power to order the removal of a Native in a reserve can
obviously not be invoked in respect of Natives in urban or rural areas of
the Police Zone, and it is also evident that no Native will be ordered to
leave a reserve in terms of the regulation referred to in paragraph 1x6
above, and at the same time alsobe removed to someother placewithin it.
120. The provisions of section r (d) ofthe Proclamation are not only
very limited in their scope. but they come into operation only when the
Native concerned is himself to blarne for it according to the judgment of
his own group, as is demonstrated by the only four occasions-as far
as can be ascertained-on which the powers conferred have been in-
voked '.
(d) TheMouementof NorthernNatives into and inthePoliceZone
121. As has been shownZ in the replies to paragraphs 140 and 149
of Chapter V ofthe Mernorials 3,the provisions of Proclamation No. 29
of 1935 (S.W.A.). which require northern Natives to be in possession of
identification passes when in the Police Zone, and which restrict the
period of employment of such Natives in that Zoneto amaximum of two
and a half years ', were designed:
(i) to protect the Natives in the Police Zone-who are more dependent
upon wage employment than northern Natives-against unfair
competition from the latter; and
(ii) to protect and preserve the social life and tribal organization of
the northern Natives, whose tribal authorities requested that these
measures be introduced.
122. In paragraph 153 of Chapter V of the Mernorialsthe Applicants
create the impression that these provisions-which obviously do not
apply to Natives resident in the Police Zone-require a nqrthern Nat!ve
to be in possession of one pass for the purpose of entermg the Police
Zone, and, if employed in that Zone, of another pass or other proof
"showing his right to hold the job"5. This is not the case. since an
identification oass issued under section Q of the Proclamation confers
upon a ~ative'em~loyee from the northetn territories the right to enter
the Police Zone and to remain in it forthe period of his employment 6.
(e) EntryintotheTerritory
123. In paragraph 153 of Chapter V of the Memonals the Applicants
aliege that-
' Vid~ Chap.III,para.qo, supvn.
Videparas8.5-90 .upro.andChap.III. paras.149-154SUpvm.
' 1,pp.147.r49.
* Proc. No.zg of 1935(S.W.A.) s ecs3 and 6 (4)as amended,videfootnotze
tapara. 87.rupro.
' 1,p.r50.
6 PIOC.No.29 of1935 (S.W.A.!sec.g, in Th*talusofSouth IV& Africo 1935.
Vol.XIV.p.154.332 SOUTH WEST AFRICA
" ... wherever ... (a northem Native) .. . may be, whether inside
or outside the PoliceZone,he may be required at any time to produce
a pass sho~ing that he has a nght to be within the Temtory l".
In its reply to paragraph 148 of Chapter V of the Memorials2, Re-
s ndent has shown ' that section 4 of Proclamation No. rr of 1922
(.&w.A.), which provides that no Native may enter South West Africa
without a prescribed pass', does not apply lo Native inhabitants of th
Territory.
(f) The Entry of Natives inlo Proclaimed Aleas
124. In replying to paragra h 150 of Chapter V of the Memorials 2,
Respondent has :shown that t 5 e:provisions of section 22 (1) of Procla-
mation No. 56 of 1951 (S.W.A.) were designed to control the influx of
Natives into urban areas in order to prevent such areas from being
overcrowded with unemployed Natives.
These provisioiis do not apply to Natives resident in proclaimed areas,
and affect only newcomers to such areas. Moreover. in terms of section
22 (2) of the Proclamation, certain classes of Natives are expressly ex-
empted from the influx control provisions of sub-section (1) of that sec-
tion '.
(g) Curfm Restrictions
125. By alleging in paragraph 153 of Chapter V of the Memorials
that a Native "niust take care lest he find himself within a public place
(in an urban area) after curfew" '.the Applicants create the misleading
impression that curfew restrictions apply to:
(i)al1urban areas;
(ii) all public plricesin such areas:
(iii) al1Natives.
As has been pointed out in the reply to paragraph 152 of Chapter V
of the Memorials 9, this is not the case, since curfew notices have been
issued in respect of only 14 urban areas in the Temtory and in these
areas the restrictions do not apply to exempted Natives, or in any
Native residential area.
The scope of the existing curfew restnctions-which curtail freedom
of movement only during certain hours of the night-is consequently
limited.
'1, p.150.
Ibid., p.149.
' Vide para.81. supn.
'Proc. No. rIof r9zz (S.W.A.). S. 4. iTk Lowsof SouthWestAfrica 1915-I911.
P. 750.
'Pvoc. Xo. 562of,951 (S.W.A.), sec. zz(i)in ThcLnws O/ South WestAfri~ 1951.
Vol. XXX. p. rjo.
' Ibid., se22 (2).p. 136.
Vidc paras.106 and r IO.suprn.
'1. P.149. COUNTER-MEMORIAL OF SOUTH AFRICA 333
(h) TheRcmovalof Natives /rom VrbanAreas
126. In allegingin paragraph 153 ofChapter V of the Memorials that-
"... even if ... [a Native] ... succeeds in establishing his right to
reside and be employed within an urban area, he may be removed
at any time as 'redundant' "'.
the Applicants rely on section 25 of Proclamation No. 56 of 1951
1CWA)Z
IV'As indicated in the reply to paragraph 141 of Chapter V of the
Memorials', the provisions of this section. which were designed to
prevent urban areas from being overcrowded by unemployed Natives,
arenot enforced in practice, since the influxcontrol provisions ofsections
IO and 22 of the Proclamation are adequate to serve this purpose '.
(i) Vagrancy
127. In paragraph 153 of Chapter V of the Memorials the Applicants
further aUege:
"Even though lawfully employed, . . . [a Native] ... must he
constantly on guard during his moments of leisure. If he should
simply take a walk, he may be chailenged to prove that he is not
'an idle and disorderly person' ... If he should happen to be upon
any road crossing a farm. or near a dwelling house or shop or store.
he may be challenged as a loiterer and arrested without a warrant by
any police officer or any owner or occupier of land on whch he
may happen to be ...SM
As was pointed out in the reply to paragraph 130 of Chapter V of
the Mernoriais the A plicants create the impression that the provisions
of the Vagrancy ProcLmation apply to Natives only. This is not the
mit appiies to all persons.
As has also been stated 1°.the Vagrancy Proclamation is not enforced
in the northem territories and is seldom. if ever, applied in the Native
reserves within the Police Zone.
128. There is no substance in the aliegation that a Native-or for
that matter any person-who "simply take[s] a walk, or "happen[s) to
be upon any road crossing a farm, or near a dwelling house or shop or
store", may be arrested without a warrant ". Section I of the Proclama-
' 1,P. 149.
Pvoc. No.56 of 19.51(S.W.A.), sec. 25.in Tha LowofSouth West Africa1951.
vol.xxx. pp. 140-i43.
' Vide Cha.. III..vara187..su.ra.
' 1,P. 147.
' Proc.No. 56of,951(S.W.A.). secs. iand zz,in Th8Laws O/South WestAfrica
195r. Vol. xXX, pp. ion-rio. 130-137.
' VidcChap. II.para. 10,rupro.
VI,P. 144.
Pvoc. No. 25 ofigzo(S.W.A.). inTha Lnws ofSouth West Africo rgrs-r9za.
pp. 280-286. as arnended by Proc. No.32 of 1927(S.W.A.). inTh Laws ofSouth
Wcrr Alrico 1927. pp. 244-246.
'OVide Chap. 11.para.22. and fmtnate 3 topara. 23.ru@a.
" 1,para. 153, p.150.334 SOUTH WEST AFRICA
tion applies to "Any person found wandering abroad and having no
visible kiwfiil means. or iiisufficient ,lawful means of support .. .:'.
Possession of n pass, for esample. indicating employment or perinission
to look for employment, would by itself take a person out of this category.
Sectioii3 ngain applics to any pcrson found without the permission of
the muner "wnndcring" over a füriir, or "loitering" near a dwelling house,
shop. etc.
129. It is not disputed that the danger exists that an inhabitant of
tlie l'crritory may be unlawfully arrested by a pcrsori purporting to act
uiider the Vaer..cv P,oclnmation-but thcii the dane-r of unlawful
nrri,it <:xist<irli<:iic\.crn power of nrrcst conlcrri:d t>yIniv. And. as lias
bccn slroii.i3, <L.<~~uI15 of the I'roclnnint~o~irn:ikes it:IIoff<tiiccfor ;iny
person-
". .. who shall, under colour of this Proclamation. wrongfully and
maliciously, or aithout probable cause, arrest. or cause to be
nrrcsted, an:i persoii .. .'"
(j) The Alovemoi1 O/ Natives in the Area Inhabited by the While Group
130. The allegation in parngraph 153 of Chapter V of the Mernorials
thnt "if .. .[a Plative] leaves the confines of his place of residence or
pl:ice of employrncrit, he does so at Iiis peril. for he may be challenged
at niiy moment to produce a pass . .." is not correct, since, as has been
shownG in the reply to pnrngraphs 133 and 146 of Chapter V of the
Mernorials ', the relevant provisions of Proclamation No. II of 1922
(S.W.A.) do not apply to:
(i) Native females, and males of the age of 14 or less;
(ii) esempted Natives;
(iii) any Native when in a Native reserve or Native residential area.
131. It is consequently clear that the relevant provisions of the Pro-
clamation by no means affect al1 Natives, and in any event, do not
affect any Native while carrying on lus normal activities in the Police
Zone. It is only when a Native travels in the Police Zone beyond the
confines of his place of residence or employment, that these proirisions
come into play. and.as the required passes or perrnits are easily obtain-
able, the system tdoesnot cause any undue inconvenience.
It may be poirited out that on administrative instructions the Police
make summary zrrrests for contraventions of the pass laws only in ex-
ceptional circumstances.
(k) Idle Persons in ProclaimedAreas
132. Although the allegation in paragraph 153 of Chapter V of the
Memorials that-.
p.'280.c. Xo. 25011920 (S.W.A.l.sec.i, inTh Lawsof SouthW~slAfricn 1915-19z2,
2 Ibid,.sec. 3(I)p,.280. Vide Chap. II. para.8. supra.
Vide Chap. II, para. gr.supra.
' Proc. No. 25 of19'20(S.W.A.).sec. 15,inThe Lnws of South West Ajrica rgrg-
1922. p.284.
1,para. 153.p. rgo.
Vide para. 62ri reg., supra.
' 1.PP. 145, 148.336 SOUTH WEST AFRICA
(m) Sunimary: The I'osition o/ Natives in Reseruesin the PoliceZone
135. Of the provisions eiiiimerated in paragraph 115above, only (i)
or (ii) and (viii) could possibly apply to Natives resident in reserves in
the I'oliccZoi~c.It is eifidciit that any one Native would not be required
to remo\,e from a rescrvc, aiid to niove to another place in the reserve '.
It is inoreovcr iiiconceiv:ible that action under the Vagrancy Procla-
mation woul<lbe takeii against a Native in a reserve if it were decided
to order Iiim to remove from tlie reserve or to move to another place
iii it.
The otlier pro-visionscoulcl not apply sincc:
Re (iii):1'10c~im:itionNo. zg of 1935(S.W.A.) applies only to Natives
resideiit irithe nortliern territorics 3.
Re (iv) : Oiily forrigii Natives require a perniit ta enter the Temtory *.
Re (v): Sectioii 25of I'roclamation No. 56of 1951(S.W.A.) applies on1
to procl;iimcd ;ireas within the area inhabited by the White group Y.
Re (vi) :Curfewri:strictions do not apply to any place in a Native reserve 6.
Re (vii): The ui-ban arcas from which unemployed Natives may be
removed are al1sitiiated in the area inhabited by the White group '.
Re (is): In terms of Proclamation No. II of 1922(S.W.A.) Natives have
to be in possession of passes, inter alia, only when they travel beyond
the coiitincs of their rcscrves 8
Re (x): Tliere arc no proclainied areas in Native reserves 9.
Re (xi): Only foreigncrs may be deported from the Territory. "
(n) Strminar)::The Position O/ Natives in the NorthernTerritories
136. The only provision of those enumerated inparagraph 115above
which is applicable to Natives of the northern territories while resident
in their reserves, is that mentioned in (ii), in terms of which a Native
living in a reserve rnay be required to remove to some other place in it.
For the reasons set out in paragraph 135above, (iii) to (VI:)and (ix)
to (xi) could not apply to such Natives. Furthermore, (i)and (viii)could
not apply since:
Re (i): Only Natives resident in reserves in the Police Zone may be
required to rernove to another place in the Territory ".
Re (viii): The Vagrancy Proclamation is not enforced in the northern
temtories 12.
It is only when such Natives wish to enter the Police Zone that (iii)
comes into play :andthat identification passes have to be obtained ).
L Via paras. rrei-120supra.
Ploc. No.15 of 1920 (S.W.A.). Vide paras. 127-rzg.supra.
3 Vide para. izr, supra.
' VIdc para. rz3,rupra.
' Vide para. 124.supva.
6 Vidd para. 125. supra.
' Vidc para. i?6.supra.
Vidc para. rjo.supra.
Vid6 para. 133.supra.
'O Vide para. 117.supva.
Vidr para. rz7. supra. COUNTER-MEMORIALOF SOUTH AFRICA 337
(O)Summary :ThePosition ofNatives in theRural Areas O/ thePoliceZone
137. The following provisions of those enumerated in paragraph 115
above apply to a Native in,%e mral areas of the Police &ne (exclusive
of the Native reserves): (yiii), (ix) and, should he entcr :..iurban or a
proclaimed area. (v). (vi), (vii) and (x). As regards (ix). such a Native
requires a pass only if he leaves the placeof hisernployment of residence '.
and the possession of such pass would ensure that no action is taken
against Iiirn in terms of the Vagrancy Proclamation (viii) *.
The followingprovisions could not apply to such a Native nslong as he
remains in a mral area:
and (ii),which apply only to Natives in reserves ';
III),which applies only to northern Natives';
(iv) and (xi). which apply only to foreigners =;
(v), (vi), (vii)and (x), wkch apply only to urban and proclaimed arcas '.
r>
(p) Summary: The IJositionof Natives in Urban and ProclaimedAreas
138. Of the provisions set out in paragraph 115above, only the follow-
ing apply to Natives resident in urban or proclaimed areas: (vi). (vii),
(viii), (ix) and (x).
'Theother provisions could not apply siiice:
Re (i) and (ii): These prorrisionsarc applicable to Natives in reservcs '.
Re (iii): Only northern Natives require an identification pass '.
Re (iv) and (xi): These provisions apply only to foreigners I.
Re (v): Section 22 of Proclamation No. 56 of 1951 (S.W.A.)applies only
to newcomers to proclaimed areas '.
139. It is to be observed that if a Native is in possession of an exemp-
tion certificate action can not he taken against him under any of the
ravisions applicable to Natives living in urban or proclaimed areas.
Koreover, employed Katives in such areas would never he proceeded
against under (vii), (viii) or (x). since these provisions are dirccted
against habitually idle Natives.
E. Conclusion
140. In their complaints regarding freedom of rnovernent the Appli-
cants have stressed certain statutory restrictions on Natives, without
taking into consideration the provisions limiting the movement of White
and Coloured persons, and without paying any regard to Respondent's
pass or permit policy as a whole. Their allegations that Respondent-
". . . has given consideration solely to the convenience or advantage
of the Mandatory government and of the 'European' citizens and
residents of the Territory 9".
Vide para. rfr. supra.
Vidc para.128. supra.
' Vida para..12,.supra.rg,supra.
' Vidc paras. 123 and 134.suen.
Vidc parar.124-126 and 133. supra.
' Vidc para.124, supra.
Vidc para.95. rupro.
1. para. 154 (5)p. 151.338 SOUTH WEST AFRlCA
and that Respondent-
". .. has followed a systematic course of positive action which
thwarts the well-being. inhibits the social progress and frustrates
tlie developinent of the great majority of the population of the
Territory in vital and fundamental aspects of their live'",
are consequently based on a one-sided approach directed only to certain
facets of thesaid policy, and are unfounded.
141. ThéApplicants have further alleged that Respondent has by an
"intricate system" almost completely denied liberty of movement to the
Natives Z.No factual proof of this allegation has been fumished hy the
Applicants, and Respondent submits that the above survey of the con-
text and reasons for the provisions applicable to Natives demonstrates
that the allegation is without substance. CHAPTEK V
CONCLUSION
I. In paragraph 190of Chapter V of the Mcmorials ', under the head-
ing "Legal Conclusions". the Applicnnts allege that Respondent "has
uiolated, and continues10 violate ils obligationsas stated in the second
paragra$h of Article z of the Mandate and Article 22 of the Covenant"
in a number of resoects. As reeards "securitv of the pcrson", "rights of
residence" and "f;eedom of ;ovement", t"he Applicants enumérate2
almost uerbatim the charges contained in par~grap-~154of Chaptcr V
of the Mernorials '.
z. Reswndent has dealt with these charces in the preccding chapters.
and it is'consequently unnecessary to deaïwith the relevant "legai con-
clusions". Sufice it to reiterate that the said charges, and therefore also
the said conclusions. are unfoundedand without substance
1 1,pp. 162 8.
2 Ibid.. parargo (iii). pi64-:65.
Ibid., pp. 15i-r5z. BOOK VI1
CHAPTER 1
INTRODUCTIOT NOBOOKVI1
1. At pages 152 to 161 of the Memorials, Applicants deal very brietiy
with the system of education, educational policies and various aspects of
administration of education in South West Africa. On their description
of the ~olicies a~~lied in education and the facilities offered to the
diifereni populat;o~ groups, Applicants charge Kespondent witliunfair
<liscriminat~on against tlie Kative po[)ulation of the Territor),. 'l'lie
respects in tvhich thev alleee tliat there is such discrimination are
summarized by Applicants aSfollows:
"In sum, the Mandatoryhas failed to use thepossibilitiesof educa-
tion to promote the well,being, the social progress and the develop-
ment of the ovenvhelming rnajority of the people of South West
Africa. To the contrary, through deliberate and systematic control
of the processes of education, the Mandatory has taken positive
action which drastically restricts opportunities for education for
'Native' children and 'Native' young men and women, and which
curtails the opportunities. restricts the rewards and depreciates the
status of 'Natives' who do manage to acqu%e some vocational
education (e.g.teachers. nurses, engineering assistants). In this way,
the Mandatory has removed opportunities for any significant
improvement in the well-being, social progress and development of
added.!ponderantly 'Native'population of the Temtory '." (Italics
It isuponthe basis of these charges that Applicants advance theconten-
tion in their "Legal Conclusions" that with regard to education Res-
pondent has in several respects violated its duty under the Mandate in so
farastheNative populationoftheTerritoryis concerned.
2. In their introduction to Chapter V of the Memorials3,which deals
also with thesubject of education,Applicants make the general allegation
that Respondent-
"... has ... failed to promote ... [the] material and moral we!l-
being and social progress [of the people of South West Africa] in
any significant degree whatever".
3. Respondent denies that in its administration of education in South
West Africa it has unfairly. or with improper motives, discriminated
against any section of the inhabitants of the Teiritory. or that it has
failed in its duty to promote the well-being and progress of the inhabi-
tants.
4. To understand and to appreciate the reasons and objectives unde!-
lying Respondent's educational policies and administrative measures, it
' 1.pp.160-161.
' Ibid.. p. ro8.6.342 SOUTH WEST AFRICA
is necessary to view and consider the matter in the wider picture of the
history of South West Africa. the geographic and economic circum-
stances of the Territory, and the differences in the languages, cultures
and aspirations of the various population 5oups in the Territory ind
their varvina staaes of advancement.
It\\,ouidhe eni:rely unr~ali~ticsiniply to ilraw sup~rnci:ilcomp:~rijons
bet\veeiiconditioiis and facilitiesine~luiatioiias tticy exist for011tlie one
hand,the Euronean ~opulationaroun. and. on the other hand.the various
h'ative group~.'\i~ithoutdiie considératioii of al1relei;iiit circiiinit;iiices
and factors \vliicheitlier dircctly or indircctly be:ir iipon the foriiiulation
of zound i)olicicsof adriiiriistration. And likv\i,ibc in considcriric Lihtther
Kespondént h:.i. i,r has not, failed in its ilut!. to promoti: the ;;,ell-l)eing
and progrcss of the inliül>itaritiiithe iptiere of educatiori,itis necsssary.
inte~alia, to compare conditions in education as they exist in the Te&
tory today, with conditions as they werewhen the Mandate was conferred
upon Respondent, and with conditions in comparable States.
5. The subject of education will accordingly be dealt with hereinafter
against the background of relevant historical factsand in the light of the
~articular circumstances of SouthWest Africa and of its ~eonles.and an
account willbegiven ofprogress made since the inception ;>the Mandate,
with a comparison of conditions in other Territories in Africa where
there are more or less comparable communities or groups with the same
basiceducational problems.
6. At the outset it is, however, necessary to draw attention. in explan-
ation of Respondent's treatment of the subiect, to the followingmatters:
(a) ~lthough it is Respondent's contention that the an date has
la~sed '. Resvondent will nevertheless. in dealine with Anniicants'
charges, assime. for the purposes of argument. agit has d8ne in the
other parts clfits reply to Chapter V of the Memorials, that the
Mandateis still in foice
(bj Inasmuch ai hpplicantj' iasr is, as in the wholz of Cliûpter V of the
\lemoriûls. coiifiiicd to allegcd unfair discrimination ûgainct the
Natives of South West Africa. and as no cornplaint is made with
regard to'the education 6f Coloured ersons 2, full account of edu-
cation of the last-mentioned group 3 oes not appear to be necessary.
In the premises. and to avoid unnecessary burdening of what is
already an extremely lengthy pleading, Respondent will deal with
the education of Colouredpersons only in so far as certain aspects of
the education of that 5oup are touched upon by Applicants in their
"Statement of Facts". or in so far as it may othenvise be necessary
ofclarity, or thelike.laining Respondent's policies, or for purposes
IcJ Where reference is made bv Resnondent to educational nolicies
applied. or conditioiis I>rev;iliiig.'in orlier Statt.i,it is.ni is the
position thr<oiigliout this Counter-~lt!morial, not done with the
obiect of (lisi~araaintior criticiziiic suïh Statcî. It is donc for the
soie purpose'of denïon~tratin~ that particular cirnimstances and
conditions create elsewhere in Africa, as they do in South West
' Vide BookII. Chap. V. of this Counter-%Iemo"al.
conclusions atpp. 1ti5-166.ints at pp. 159and 161 of the Memorials and legal COUNTER-MEMORIALOF SOUTH AFRlCA 343
Africa, difficulties and problems which hamper or retard educational
advancement. or com~el the adoption of ~articular policies in
education. 0nlY hg cornParing co~ditions and standards in South
\Vest Alricn with those in other States ivlierethere :ire more or Iess
comparable communitieswith comparable educational problems, can
there he a fair evaluation of Respondent's achievements in South
West Africa. CHAPTER II
THE HISTORY OF EDUCATIONIN SOUTH WEST AFRICA BEFORE
THE MANDATEWAS CONFERRED
A. Establishment of Mission Schools for Natives
I. The history of education in South West Africa dates back to the
early ears of the nineteenth century, when European missionaries
starteJmission work amongst the Natives in the southern part of the
Territory. Until then no education in the western sense had existed
among the Natives. During the period 1805 of 1842 missionaries of the
London and W6:sleyan Missionary Societies established themselves in
the Territory, but they had to cope with immense difficulties and did
not make much progress. They finally left the field in 1842, when mis-
sionaries of the Rhenish Missionary Society started work in Damaland
and Namalaiid '. This Mission carried a lone burden in the Territory
until 1870. wheii missionaries of the Finnish Missionary Society came
to Ouambolandz. Thereafter. in 1888. the Catholic Church sent mis-
sionaries to Nan!aland, andin 1896ils; to Damaland. At about the turn
of the nineteenth century the Rhenish Mission started work also in
Ovamboland '.
2. The fust niission school in the Territorv was established bv the
London Missionary Society at Warmbad in thedsouth in 1805, but & was
almost 40 years before the next school came into being4. Progress was
made after the advent of the Rhenish missionaries. althoueh conditions
were by no means conducive to p&ceful d&elopment. 1s described
elsewhere in thi:; Counter-Memorial 5, the Native groups were often at
war with each other. and furthemore, their nomadic habits made it
extremely difficult to establish schoolswhich had any permanency 6.
3. After the establishment of the German Protectorate over the Ter-
ritory in 1884, the various missions were left free to carry on their
reli~iousactivitics and to establish schools. The education of the Native
po<ulat~onwxs lor al1practicnl purposes left completcly in thrir tiands.
The 'Territorial 1;ovcrnmrnt reser\,cd to it>rlf the right to inspect mis-
sion schooli. but there is no evidence tli:iitliis rinlit \vver cxcrci;cd '.
The Govemment's own efforts to provide education for Xatives were
confined to Windhoek, where a Ewo an teacher was appointed in 1894
to instruct yourig Native boys in (%man and arithmetic, and young
' Lemmer. C. J. C.. Ondcmyr in Suidmcs-Afrikn (Unpublished Thesis. University
of South Afnca. ,1134).pp. 3-4. Damaland was the nvme of the area occupied hy
the Ibid., p33.o were also referred to asthe Dama[ra]of the Plains.
Ibid., pp.33-3,+Vidc alsoU.G. 22-1929, p. 68.
' Lemmer, op. cil.pp. 3, 33-34.
Vidc Respondsnt'r general account of history in Book III of this Counter-
Memarial.
Lemmer, op. cir.p.31.
' Ibid.. p37. COUNTER-MEMORIAL OF SOUTH AFRICA 345
Native girls in housework. In 1895 courses in German and arithmetic
were instituted for Natives who were in the employ of the Government '.
AL1 the mission societies made it their task to establish schools in con-
junction with their religious activities, and by the end of the German
regime in 1915 there were, as far as can bedetemined, about sr5 mis-
sion schools, with approximately 5,490 puph, in the, whole of the Ter-
ntory 2.This number included pupils of al1ages-chddren and adults-
who attended school and Sunday-school classes. In Ovamboland, arti
cularly, much of the instruction giveu was of a purely religious kinbl
B. Subjects Taught in Native Mission Schools
4. The subjects taught in the different Native mission schools varied,
and the work done was not of a uniform standard. At the Rhenish
Mission schools the curricula and syllabuses were largely determined
in the light of local circumstances and according ta the ahility of the
teachers. In most schools instmction was given in religion, German,
reading, writing and arithmetic, and in some also in history. geography
and a few practical subjects3. In the Catholic schools attention was
largely devoted to religion and to practica! subjects such as woodwork,
building. brickmaking and gardening. whde girls were taught ironing,
needlework and cooking '.In Ovamboland. where conditions were more
primitive than in the Police Zone, the Finnish Mission schools con-
centrated largely on religious instruction. In these schools there were no
separate classes, and the same course was offered to ail pupils.The older
and more intelligent pupils usually cornpleted the course in two or three
years. while others sometimes took as long as six or seven years =.
C. Teachen in Native Mission Schools
5. InitiaUy the only teachers at mission schools were the missionaries
themselves, but with the passage of time they trained the more intelli-
gent of their pupils to assist them in their work 6. The fust training
school for teachers in the Temtory, called the Augustineum. was estab-
lished by the Rhenish Mission at Otjimbingwe in 1866. This school was
later transferred to Okahandja" In about 1905 the Catholic Church
established a training school at Doeb? near Windhoek 7, and in 1913
the Finnish Mission established a similar school at Oniipa in Ovambo-
land 8. These institutions gaveinstruction of a very elementarykind, and
were very little, if anything. more than present-day lower primary
schools.
Lemmer, op. cii.pp. 37,39
Ibid..p.36.
Ibid.,pp.39, 41.
4 Ibid.. p42.
9 Ibid.. p40.
Ibid.. P. 43.
' Departmental information.346 SOUTH WEST AFRIÇA
D. Financing of Native MissionSchools
6. The mission schools received no hancial assistance from the
German Government until 1902. As from that year subsidies were
granted to those schoolswhich could satisfy district boards that theyhad
given proper attention to the teaching of the German language and that
their pupils had made satisfactory progress in learning that language.
The subsidies were granted under a budget item styled "Zur Verbreitung
der deutschen Sprache". In 1902 the total subsidy was 5,000 RM; in
1903 it was 7,000 RM; and as from 1909 it was 9,000 RM per year '.
Save for such subsidy provided by the Government, the mission schools
werefinanced entirely by the respective missions.
E. Schoolsfor ColouredPersons
7. Both beforf:and during the German regime Coloured children, the
off-spring of European fathers and Native mothers of the Territory.
usually attended the same schools as Native children. These Coloured
children, calied "Hall-Whites" by the Germans, were not accepted in
Euroman societv and. in manv instances, also not in Native societv,
aiid iiutasfelt in'timr-ttiat their-iiitercsts would hest be seried in separaie
institutions. There is evidenct that as early a; the 1870s the prcsence
of sucli "llalf-\\'tiitz" cliildren caused friction 3t rnission schools wherc
the majority of pupils were Native children 2.Their numbers were very
small,however, and as they werescattered over a vastterritory,there was
never a sufficient supply of teachers to allow of any general scheme of
separate schools for al1 such children. A few separate institutions for
them were, howi:ver, established. In about 1890 the Rhenish Mission
established such an institution at Okahandja, and shortly thereafter
also at Keetmaiishoop '. In 1903 the Roman Catholic Church also
established a separate institution for Coloured children'.
The Rehoboth Basters, as already mentioned were a more-or-less
homogeneous grimp who inhabited their own Gebiet at Rehoboth as
from about 1870. A school was established for them in their area soon
thereaftcr, nniialthoügh some 'iati!.~ cliildrïii :il30nttciidcd tliiicliool.
tlic I%aster,t XIItimrs looked upon theinsélvesns a separate and distinct
group, and preferred to have separate schools for theiichildren.
F. Schoolsfor the White Group
8. The first scliool in the Territory for European children was estab-
lished by the Rhenish Mission at Otjimbingwe in 1876. and. excepf for
a short interruption during the years 1891to 1894,this school remained
in existence until 19or. when the mission station at Otjimbingwe was
closed down 6.
Lemmer. op.cil.p. 37.
Schutte.C. H. J.. Kleurlingonderuiys in Suidwcs-Aflikn(Unpublished Thesis,
Un'vIbid.pp. 17-18.Africa.1924).p. 14.
+ Ibid., pp20.21.
Vrdc Book III, Chap. III.paras.34. 37,88 and 89,of this Caunter-Memorial.
Lemmer, op.cil.. pp. 72, 73 and 736:s. COUNTER-MEXORIAL OF SOUTH AFRICA 347
The second schoolwas established at Windhoek in 1894forthe children
ofGermansettlers in the vicinity. This school was, however, closed down
after four vears as a result of disaereement between the oarents. some
;ontendini that the school offerez too little, while otheis maintained
that mnch ofwhat was tauaht was not needed in a pioneer community '.
From about 1000 conceÏted efforts were made bv the authoritiei to
establish schools for the children of European se<tlers, who were by
then no longer contined to Windhoek and its vicinity. By 1qo4there were
six eovernment schools in various oarts of the countrb. Thereafter the
wii; with the Hercro and Sitrn:~ ktarded dcvéloprne~tfor some tiriiz.
but I,<:t\i,een1906 and r()i:<four üdditioii;il scliools u,:rc estiiblished in
the iiortheri. art of tlie I'oliceZone, four in the centriil area. and seven
in the south <
9. Two secondary schools,one for boys and one for girls, were estab-
lished by the Catholic Chwch at Windhoek in 1906. The boys' school
was closedshortly afterthe establishment of the "Kaiserliche Realschule"
in Windhoek in 1909, but the girls' school was still in existence at the
time when South Africa assnmed the Mandate over the Territory 4.
The "Realschule" at Windhoek was modelied on a German "Real-
schule", except that English was initially taught as first foreign language
instead of French 3.A similar "Realschule" was established at Swakop-
mund in 1909 6,and a third atLuderitzbucht in 1911.The last-mentioned
school was. however, closeddown after some months because the German
Government refused to provide it with financial aid '.
At the end of the Gennan regime there were 17 primary schools for
European children in the Territory, two secondary "Realschulen" and
one private Catbolic secondary school for girls.
G.Factors in Development of European Education
IO. A fenture of the developnient ofeducation of the Europeans during
the Gcrnian regirnr iv;isthe ncti\.e part played by tlir. "Sctiul\~ercinz".
asso<:iationsof oarcnt; who interesttd ttiernscl\'z~ iiithe education of
their children
Another important factor was the introduction. in 1906, of a measure
which made attendance at school com ulsory for al1European children
living within 4 kilometres of a schwr In rgxr attendance was made
compulsory also for children living more than 4 kilometres froma school.
Save that they were not required to attend school for more than four
years. Children living within the 4-kilometre limit were obliged to attend
school for eight years 9.Circumstances made it impossible.however, for
al1 children to attend school, despite the Govemment's policy of pro-
viding hostel facilities at schools in towns and in the moredensely popu-
' Lemmer. op. cil., pp. 74-76.
1 Vide Book III, Chap. III, paras. 76-81ofthis Counter-Memarial.
' Lemmer, O$.cit., p. 78.
' Ibid., ppii.+-x5.
' Rcporf offhcEducnlion Commissia 1958 (S.W.A.). para. 13.p. 12.
Lemmer. op.cil.. pp120-121.
' Ibid.. p80.2-123.
Ibid., pp. 80QQ-,DO.348 SOUTH WEST AFRICA
latcd country arcas. The sparsa population. spread ovcr a \,ast ttrritory,
made it impossitile to bring schools witliin a reasonable distance of al1
children of school-eoine aec. A further coiisideration was that Afrikaans-
speaking settlers-from South Africa were averse to sending their
children to German schools, where an avowed policy of Germanizatlon
was followedthroughout the whole period of the German regime.
Famers from South Africa had been among the very first settlers in
South West Africa, and by the time the German Protectorate was
establishedin 1884there was already a fair number of them in the vicinity
of Grootfontein. Later. especially during and after the Anglo-Boer War
(1899-1902).rnany more came to the Territory. By the end of the century
settlers from South Afnca constituted about 22 per cent. of the entire
Eurooean uoouiation of South West Africa '. The German authorities
tnco;raged' t6e iinmigr~tiuii of k~rmrri from Soutli Africa. and the) werc
allo\ve<ltoestahlishprivare .iclioolsfortheir cliildren. From 1902onwards.
Iiowever. South .\frican parents were requircd to send thcir childrm.
when btt\i.çeii the ages of IO and 15.to governmcnt sctiools for a penqd
of at Icûst tiïo p:nrs. and diirinf 1h;it t~niethel. werc obliger1to sr:,!. in
hostels attached to such schools'.
H. Financingby the German Governent of European Education
II. The exact amounts spent on Européan education hy the Govern-
ment during the IGermanregime cannot be determined. Al1that is known
are the amounts reflected in the budgets from year to year. The total
recurring expenses budgeted for rose from 1,700Mk in the financial year
1896-1897to 329,600 RMfor the year 1914-1915 3.
Ry the end of the German regime the White section of the community
was served by a well-developed primary and secondary school system,
which provided education for about 800 primary and secondary pupils
in 20 schools, al1of which, Save 4, had hostel facilities *.
1.The First World War
12. The First World War disrupted the work of the missionanes
in South West Africa, and rnany Native mission schoolswere closed for
the duration of the war, and even for some time thereafter ':
The war also forced the Ewopean schools in the Territory to close
down, but this was not for very long.After the surrender of the Temtory
to the South African military forces 6, the military authorities allowed
the German schools to remain under the control of the,Germans in the
Territory, and these schools were then conducted as private schoolç by
the German "Schulvereine" '.
' Lemmer. op.il.,pp. i.86-89.
a Ibid., pp. 87-88.
' Ibid.. p108.
' Itwastonlyain19~3,mforexample. that the Rhenish Mission reopened thAugur-
tineum training schoolfor teachen at Okahandja, and it was not until 1924 that
the Roman Catholic training school at Doebra was reopened; vida Chap. V. para.
23.ixfrn.
On 9 July 1915.
' Lemmer, op.cit.pp. 129-130. COUNTER-MEMORIAL OF SOUTH AFRICA 349
J. The Period of Military Occupation, 1915-1920
17. Towards the end of 101% the families of civil servants. railwav
;;inné1 and mititary office&and men started to come to the Temtori
Em South Africa, and within a short time considerable numbers of
South Africans found themselves in al1 oarts of the countrv. These
eople, whose presence was necessary for 'proper administratioii of the
Fenitorv. required educational facilities for their children, and as the
only schools ihen in existence were German-medium private schools,
the provision of moreschools soon became apressingnecessity.
The first school for South African chiidren was,established at Wind-
hoek in November 19x5. In 1916 the South African Gavernment ap-
pointed an organizing inspector of education for the Territory. whose
task it was, inter dia, to build up a school system based on that of the
Cape Province in South Africa and to provide for the educational needs
...-.e c~----en of South Africans in the Terntorv '.
Rapid develo ment followed. and by the cime South Africa was
enttusted with t R e Mandate, there were in the Territory. in addition to
Geman-medium orivate schools2. 2-3 eovemment schools accommo-
d&ng 975 ~uropean pupils, 215 of ';vlïom were housed in 9 hostels,
with 55 teachers in employment
During the period of military occupation numbes of Cape Coloured
,o..r~-a-~~~r~m~ ~u~ -Afr~ ~~~mainlv to work on the railwavs in South
\Vesr Afrii~. TIie Sduth .4frican nut1,;rities irnported ~olourédteachers
[rom the Cape Province to teach the children of tlicse people in separate
. .
classes which wereinstituted at the mission schools.
K. The Position at the Time when the Mandate was Conferred
14. The aforegoing historical survey ghows that at the time when
the Xandate was assumed. Sative education iv3ç in the hands of certain
inissionary societies. whicli liad established and were conductiny mission
schools for .wme of the Sative groups. There were separate ncilities,
although limitcd. for the Coloured poup. including the Rehoboth
Basters. and separdte cove-nment and private schools for the White
group.
While Native education was still in an infant stage. the White group
was served by an established and well-developed system of primary
and secondary education.
At no time in the history of the Territory, either before or during the
German regime. had European and non-Ewopean children attended
the same schools.
1 Lemmer, op. c+i., pp. 157-158.
2 Vide para. 12.supra.
J Departmenial information. CHAPTER III
THE CONTROLAND ADMINISTRATIONOF EDUCATIONIN SOUTH
WEST AFRICA AETER CONFERMENTOF TIIE MANDATE
A. Legislativeand Administrative Powers
I. Pursuant to the powers conferred upon him hy the Treaty of
Pence and South West Africa Mandate Act, 1919 (Act No. 49 of 19x9) ',
the Governor-General of South Africa, by Proclamation No. I of 1921,
delegated his power to legislate by proclamation to Respondent's
representative in the Territory, the Administrator ofSouth West Africa
This Dower to leei~,ate for the Territorv. inter alaa. also in resDect of
educ;;tion. reiiiaine(l \,estiiitli~:A(lminktrator uiitil 1040.
I3yth? South iVejt AfricaCoiistitution Act. 1925(Act So. 42 of 1gz5),
the Üower to leeislate in relation to, inter alia" lÜrimarv or second-
education in scl%ols supportrd or aided froin tlit:'re\w~i;es of the terri-
tory"', was conierred also on the Lcgislativr .\ssembly of South West
Africa. This power could in trms of the said Act. ho\vever. be exercised
witliin the first thre~. years only \vit11the consent of the Governor-
Gericralprei~iousl~~obtained,and after the said period only if the Gowr-
nor.Genera1 L>y proclamatioii declare(l the Asstmt!Ly competent to
legislate in respeit of education +.
2. The positioii remained asstated above until 1949, when the Legis-
latlve Assembly of South West Africa became entitled by the South
West Africa Affiirs Amendment Act, 1949 (Act No. 23 of 1949). to
legislate,inler dia, in relation to education, without the consent of the
Governor-General. This is still the position today '.
The legislative powers of the Assembly are, however, subject to con-
trol in that the -4dministrator haç the right to reserve any Ordinance
for the signification of the pleasure of the Governor-General (now the
State President) of South Africa6.
Furthemore, full legislative powers over the Territory have been re-
tained by the Parliament of South Africa, which may by Act override
any Ordinance of the Legislative Assembly of South West Afnca '.
3. Full admini:jtrative powers relating to, inter alia. education in the
Territory, have at al1 times been vested, and are still vested, in the
Administrator ol South West Africa. Until 1949 such powers were
' Act NO.49of rgig. sec.2 (c). iThcLaws of SouthWest Africa r9r5-r92a. pi 1.
2921, p.46.. 1 of ,921(S.A.),z Jan. 192,.inThe LQWSof SouthWest Af~i~cz1915-
' Act No- 42 of1925.sec.27(r) (c).in Siatut~ofthc Unia ofSouth Africa 19'5,
P.754.
' Ibid.. sec. 27.pp. 754-756.
' sec. 27 OfAct Pio.42ofrgzg was repealed by sec.17ofAct No.23 Of 1949;
vide Thc Laws of SouthWest Africa 1949, volXXVIII, p. 178.
Act No.42of 1925,sec.31. inStatuicof the UnionofSouth Alrica19a5p ,.750.
'Ibid., sec44.pl>.764. 766. as arnendedby sec.22 ofAct NO. 13 of 1949; uids
The Laws otSoulh JVert Afriîa 1949, VolXXVIII. p. 180. COUNTER-MEMORIAL OF SOUTH AFRICA 35'
exercised b the Administrator with the assistance of an advisory
council, an2 since 1949by the administrator-in-executive-committee.
4. What is stated in the aforegoing paragraphs does not a ply to
that part of the Territory known as the Eastern Caprivi zipfef which
is at present not administered through the South West Africa Adminis-
tration '.
B. Administration of Education
5. The first law passed in relation to education in South West Africa
after the Mandate was assumed, was Proclamation No. 55 of 1921
(S.W.A.), which came intor operation on I Jannary 1922. This Pro-
clamation was, with,the exception of certain provisions thereof, re-
pealed by Proclamation No. 16 of 1926 (S.W.A.). which, as amended
from time to time, is still in force.
Proclamation No. 16 of I 26 (SW A )willbe superseded by Education
Ordinance No. 27 of 1962 (?.W.*.) 1 '
The said Education Ordinance will come into operation on a,date
to be notified by proclamation. Asyet such date has not beenproclaimed.
In terms of Proclamation No. 16 of 1926 (S.W.A.), as amended. as
was the position under Proclamation No. 55 of 1921(S.W.A.),the general
control. supervision and direction of education are vested in the Ad-
ministrator 3.
The Department of Education. in charge of which is the Director of
Education ',is the central educational authority and is responsible, inter
dia,for the performance of al1work necessary for,or incidental to, the
control of education. inclnding the establishment, maintenance and
general control of schools. the framing and application of syllabuses of
instruction, the instituting and conducting of examinations and the
inspection of schools, teachers and pupils '.
The Ahinistrator is empowered to appoint inspectors of schools
and other special officersto assist in the work of the Education Depart-
ment 6, while the Director may appoint departmental organizers to
assist in organizing and supervising the teaching of special sub]ects7.
6. In the exercise of the powers aforestated, appointments h ve been
made from time to time of an increasing number,of officers e 'lployed
as assistants to the Director, inspectors, supervisors and organizers.
The growth of snch staff over the years is reflected in the following
table:
Vide Chap. V, para. 82.infra.
Prornulgated under G.N.No. 116 (S.W.A.). 4 July1962, in Oficial Gazelle
Ex'rProc. No. o16Sof 1926 (S.W.A.), 15 Sep. 1926,lsec. z.in Law58of1Soufh Wcsl
A/*ica. Vol.II (rgz3-1927). p. 228. ProcNo. 55 ofrgzr (S.W.A.). rg Nov. 1921.
sec.2 (O),in The LowsofSouth West Africo 1915-r921. p. 633. Vide para. 4.rupla.
;c,to the position in the Eastern Caprivi Zipfel.
' Proc. No. 16 of,-26 ~S.W.A.L..sec...,r). in LawotSwfh Wcsi Afvica.Vol. II.
(1923-1927). P. 230.
' Ibid., sec4 (2).p.230.
Ibid..sec. 5p. 230.
' Ibid., sec. jb(1).p. 230.352 SOUTH WEST AFRlCA
1921 19sr 1961 1963
(a) Dirïtor (a) Director (a) Director (a) Director
ofEducation of Education of Education of Education
(b) i lnspoctor (b) 5 Inspectors (b) Deputy Director (b) Deputy Director
of Schwls of Schwls of Education of Education
(i mediçal) (c) Professional (ç) l'rofessional
(c) zOrganirçrs Assistant Assistant
(d) 7 Inrpectars (d)8 Inspectors
of Schwlr of Schwls
(8) 6 Organizers (c) 6 Organizers
(f) 4 Guidance (f) z fiofessional
Oficers Assistants to
Native lnspectorr
of Sehwlo
(g) 3Supervisors
(h) 4 Guidance
Oflicers
(i) Chief of
Language Bureau
In addition Io the staff aforementioned and the members of the
teaching staff ernployed in the various educational establishments, par-
ticulars of whicli will be given in Chapters V and VI1 hereinafter, the
Department of Education employs an administrative staff at head
officein Windhoek, the complement of which increased from 3in 1921 to
12 in 1951t, o 42 in 1961a ,nd to 46in 1963. CHAPTER IV
GENERAL POLICY
1. Before dealing with the education of the respective population
groups of South West Africa, Respondent devotes this chapter to a
treatmeut pf circumstances and considerations which respectively:
A. govem the application in the Territor of a systcm of education
whichrnakes provision for separate facilties for the various groups;
B. affectex~enditure on, and the ~rovision of particular facilities for.
the education of the v;irious gr;ups;
C. govern tlic question of cornpulsory education in tlic Tcrritory.
A. Separate Facilities for the Vanous Groups
1.CIRCUMSTANC AESD CONSIDEI<ATIO NOVBl<NING THE SYSTEM OF
SEPAHATF EACILITII:S
2. Elsewhere in this Counter-Mcrnorial 1 Kespondent dealt generally
with the application in South West Africa, by reason of the p;irticular
circumstances of the Territory and of its peoples, of a policy of differ-
entiation which aims at and allows for the separate development of the
various population groups.
That ~olicv is a~niied also in the educational svstern of the lèrritorv.
which m'ake;pro&ion. as far as is practicable, for separate educationil
facilities for the different mups.
3. The first educationaï la; passed for South West Africa alter the
.Mandate \vas nssumeJ Z.gave legislatit.~ recognition :ind sanction taa
practicr wliich had hecomc c.tahliihc<l iiithe Iiistory of the 'fi:rritory
before the Xlarid~re.viz, the ~irni~isioif sepirai,. cducitiorial lacilities
for. on the one hand. the EIÜo~ean mo... a.d. on the other hand. the
non-European groupi 3.
'Thisposition wnsni~intaincd iiProcl;imntioiiSc).IGof r,)zG (S.\V.:I.)',
under which the cdiicationnl svstem is orcanized in three nioin clivisi(ins.
in the sense that, as fa as is practicablè: seplirate schools are provided
and maintained for the children of the Xative, the Coloured and the
European or White groups. Under each oi these three sections there are
also subdivisions which willbe referred to hereinafter.
4. At no time since the inception of the Mandate has there been cause
for effecting a change in the pre-Mandate system of providing separate
facilities for the different g~oups.On the contrary, that there were, ?nd
stiUare. sound and cornoelline reasons for continuine with and extendincr
that systern. will beshotvn inThe followng paragraèiis. where the matte;
is dealt with in the Iight of the particular circumstances of South West
2 P~locNo.k55Vofrgzr (S.Ur,A.), inTh8 LnwrO/Soulb lVssl Afric1925-1922.
PP.6Vids Chap. II, supla.
' Vida Chap. III, par5,suplo.354 SOUTH WEST AFRICA
Africa and of its peoples. and with reference to Respondent's experience
gained not only in the Territory itself, but also in the administration of
education over a. longperiod in a plural or multi-group society in South
Africa. The reasons aforementioned au centre around the differences
between the popu1;itiongrdups which. in the field of education. give rise
to particul;ir irnlilications and problerns. Thesc wiii be dcalt with hercin-
afier under the iollowingheadings:
(a) Varying stages of advancement of the different groups.
fb1 Different larieuaees.
(cj Different syÜabÜses.
(d) Different sa:ial entities and parent communities.
(a) VaryingStagesofAdvancementof tk DiffmentGroufis
5.The population of South West Africa is composed of the following
main groups:
the Nama (Khoi.or Hottentots);
the Herero:
the Ovambo (collective name for the various tribes living in Ovambo-
land) :
the Okavango (collective name for the vanous tribes living in the
Okavango) ;
the Dama (or Bergdarna(ra). or Klipkaffers);
the Bushmen ;
the tribes in the Eastern Caprivi;
the other Coloureds; and
the White group.
Each of these groups had its own identity, its own culture, customs
the European languages, and the Dama the Nama language, as theyne of
still do). There were in these respects differences not only between the
White, Colourec! and Native groups, but also between the various
Native groups ifitcrse.There were, furthermore, as there still are, vast
differencesin the levelsand stages of development of the various groups,
articularly as gauged by standards of what is generaUy known as
Gestern civilization.
6. The membersof the White group werederived entirely from peoples
and communities regarded as bearers of Western civilization. At the
inception of the Mandate the were already served b 23 government
schools for South Afncan chiden in theTerritory, an an almost equal
number of private schools for Gerrnan children '.Both these sections of
the White population were displaying an active interest in the promotion
of education. Tliere was, therefore, as far as the education of White
children was coricerned, a sound foundation on which to base further
development after thepattern of the schoolsystems ofthe Western world.
As far as the indigenous groups of the Territory were concemed,
however. conditions were vastly different. Considenng the tradit!onal
systerns, custom.j and circunistances under which they had been living
before contact with members of the White group. and the limited extent
1 ViddChp. II, para. 1supro. COUNTER-MEMORIAL OF SOUTH AFRlCA 355
and brief span of such contact-in general less than haIf a ceiitury-it
wa-.inevitable that thestandards. skills and values of the White proup s
literary, monetary and technological civilization should hav; béen
whollv or lar~elv unknown, and indeed strance and foreign, to the
in the level of development-as was tbetween the White group and tlic in-e
digenous peoples on the whole-could probably be measurcd in terms
of centuries. IIthere are added the influences of witclicraft alid super-
stition, andthe effects of an unfortunate clash of arms betwccn someof
the indieenous peoplcs and the first European re~ime.it wiU be apparent
that a certain'mëasure of susoicion arÏd distrust of the stranic new
things introduced by the White'group was also inevitable.
In such circumstances, education of the Natives wouid necessarily
be a slow process and one which could. for some time at least, best be
promoted. as it had been done in the period before the Mandate, by
missionaries in conjunction with the? primary task of teaching religion
to and civilizine the Native communities amone whom they worked 1.
Tliat pmgress rr'ould.in al1 the circum~t;inces. bé sloiv. \vas ippreciated
by the lJermanent hlandatcs Commission. This appears particularly
from a stntemcnr in 1030bv M. van Kees, a meriiber of the Commission.
who is recorded to haci said. interalia-
". .. tliat the natives in South \\'est Africa wcrefor the niost psrt ina
very low state of civilization. Th:it I)eingso,he did iiot thiiik it wise
forthe Commission to show too meat impatience or to be too exact-
iriginsofarasthr.cdui;ition of na?i\.esin ihe rest.r\.cswas concerncd.
Such education inevitably took a long time. and was at the moment
in the hands of tlie Xlissions2."
Furthermore. as has already bezn stated ). among the Native groups
thems,:lves difiercnt staEcs of devçlolirnent had I)eeri:itt;iiiied; and diif-
erences in this resDect Grsist even todav.
In al1tliese circ~mstânces, the inrcn:sis of the S;itii,e groups could be
ser\,ed only by providing them with educationnl facilities wtiich took
acsount not onlv of thcir kinwaces. tra<liti<innand cultures, but also
of their varyingstages of devèiop;ent.
7. Mixedschoolswould not have served the best interestsof the Native
of the White group. For the latter the special adaptations requisite in the
case of education of Native children woulù have been unnecessary and.
indeed, wasteful as regards rates and standards of progress in education.
This could induecourse have resulted in a "levelline down" of the educa-
tional standards of the White group, without cornParable and compen-
satory benefits for Native children, to the detriment of the country as a
wholé.
The same consi?erations, though to a lesser degree, applied in the
case of the Coloured group. Though standing generally nearer to the
' Vide in this connection the rernarks of the then AdrninistratorOfSouth West
Min.. IV. p. 44).r, before the Permanent Mandates Commissionio 1924 (P.M.C..
' P.M.C., Min., XVIII, p. 138.
' Vidd Book III, Chap. II, of this Counter-Mernorial.356 SOUTH WEST APRICA
levelof civilization and development of the White group than the Native
groups, they were nevertheless much less advanced than the White
group. Whereas in the history of the Tenitory before the Mandate 1
the missionaries eenerallv admitted Coloured children to the Native
mission schools. ïhcrî were. by the time the Mandate was conferred.
separatv facilities for the Rehoboth Rasters: and. for the Cape Coloureds
tlint had çomefroinSouth Africaduriiig theperiod of militaryoccupation,
separatr classes tverc conducted in sume mission schools by Coloured
teichers imported fromSouth Africa
(b) Different Langua~es
8. Mention ha. already been made 3 of the number of different lan-
pages spoken in South West Afnca. Among the White group provision
had to bc made 621instruction in both the officiailanguages, Afrikaans
and English. and. in accordance with the policy of home-language
instruction followed in the Territory ',also for instruction in German,
at least up to a certain stage. In practice this entailed the creation of
different lan age medium schools or. at least, separate Afrikaans,
English and Ernian divisions at the same school.
Wde the vas? majority of the Coloured population spoke either
Afrikaans or English, the membe~ of the indigenous population spoke
one or more ofa niimber ofNative languages, depending oii the particular
group to whicli they belonged. The principal Native languages spoken
were, and still are:
.$uangali and 1)iriku (among the Natives of the Okavango) ; Ndonga,
Kulinyama and Kuambi (among the Natives of Ovamboland); Herero,
Nama. Rushmiin, Tswana (in the case of a small section) and Sikololo,
also knowii as Silosi lamon- the Natives of the Eastern Ca~.ivi).
9. 'Theniultipli.:ity of langiiagcs spokeri called for,and indîcd necessi-
tntc(l. the estnbli:ihrnrnt and iiiaintvn:ince of separate scliools aiid tlie
aonlic:itioii on r,>lit\ of differentiation not onlv ;is bzt\veen the \\'hite.
~'oiouredand ~âtive'grou~s. but, as far as practicable, also as between
the various Native groups.
From a priictical point of view, it would hardly have been feasible
to provide for ediication in the Native languages in schools where pro-
vision had already to be made for three European languages. Further-
more, quite apart from such practical considerations, sound educational
policy required tliat separate schools be provided for the children of
the various Native groups in which they could be taught in the verna-
cmilieu. teachers of their own -.u^ within their own social and domestic
It is Respondent's experience. in South West Africa as wcll as in
South Africa. that such policy. founded upon mother-tongue instmction
and its attendant implications. is necessary to ensure sound progress.
' Vide Chap.IL para. 7. rupo.
'Ibid.. para13.
VideBook III,(:hap. IIparas. 16. 28. 42. 58. 75 and 88, of this Counter-
Mernorial.
4 Vide paras. 15-z:nfrn COUNTER-MEMOR OIFSOUTH AFRICA 357
Molher-Tongue Education inSouthAfrica
IO.In South Africa the orinci~le of mother-toneue education. in so
far as the White oup of ihe pÔpulation was con~erned, found proper
application only yter the recognition of Afrikaans as one of the official
Iaiguages of South Africa. -
At the establishment of the Union of South Africa in 1910, Dutch
and English were made official languages, to be treated on an equal
footing and to enjoy equal rights in Parliament and elsewhere.
By legislation in 1925 Afrikaans was recognized as an official lang-
uage and from then on in practice replaced Dutch in the educational
as weli as in other spheres. Since 1925 the principle of mother-tongue
instruction has prevailed in South Africa and, consequently. separate
educationalfacilitieshave beenestablished for the Afrikaans and English-
speaking sections of the community Z.
II. The languages spoken by the Coloured people in South Africa
are Afrikaans and English. but preponderantly the former. In the case
of the Coloured people, as in the case of the Euopeans, the principle
of mother-tongue education finds application in the establishment as
far as is practicable of separate facilities for the different language
groups.
12.As regards the various Bantu groups in South Africa. it was only
natural that in the beginning most of them should have been taught
through the medium of European tongues. especiaily English, since
most of the missionaries were from Europe and taught the subjects
they knew in their own languages. Experience showed, however, that
few of their pupils stayed at school long enough to acquire an adequate
grounding in English, and that they consequently failed to absorb a
great deal ofthe instmction given in that language.
The possibility of effectively employing the Bantu vernaculars for
educational purposes had been realized at a very early stage by ?tain
of the missionary bodies, for example by some of the English mission-
aries in the Transkei (from 1831) and in Zululand, as weii as by the
Berlin Missionin the Transvaal.
13. A5 Bantu teachers in South Aftica increased in numbers and
capacity. mother-tongue instruction became practicable, although many
of these teachers had been educated in English and Afrikaans them-
selvesand were at first inclined to be prejudiced against teachirig,through
the medium of a Bantu tongue. The Native Education Commission of
rg.+g-rg$r, under the chairmanship of Dr. W. W. M. Eiselen, whose
report laid the foundation for the South AfricanBantu Education Act
of 1953. recommended very strongly that the mother tonpe of the
different Bantu groups "should be used as the medium of instruction
for at least the duration of the orimarv school". not onlv on purelv
educational grounds, but also behuse of the .' sitive fontributioR
which the schwls can make in the development OP"the Bantu languages
' AfrikaancouldLx dcscribed Jsister-languagcof modern Duand Flemish.
coloniration of the Capedong lines somewhat. though not entirely. divergent from
modem Dutch and ~lëmish. -
Being either entimly separate schwis. or separate divissame schwle
depending onpractical circurnota~ceî.358 SOUTH WEST AFRICA
both for their own use and for other institutions of Bantu life. e.g..
Bantu Courts and Councils" '.
This policy of promoting mother-tongue education, with its coroliary
of using Bantu teaching personnel to the maximum possible extent,
has been more vigorously implemented in South Africa since 1954by
the Deuartment of Bantu Education. While Enalish and Afrikaans are
being faught froni an early age, the poiicy is thai the medium of instmc-
tion in the primary standards should bethe vernacular.A Bantu language
board has been constituted to develop the recognizedlanguages as school
and teaching languages, and experts in various fields serveon this board
and its several language committees.
14.Initialiy a ;ho;age of suitable text-books, and the lack of an
adequate educational vocabulary and terminology in the various Native
languages, preserited serious difficulties, but the Department actively
encouraged experts to prepare the necessary books, and today tbere are
approved graded class-books in nearly al1 the major Bantu languages
spokenin South Africaforail the subjects taught in the primary schools =.
Refemng to the use of the mother tongue as medium of instruction
and to the development of the Bantu languages in South Africa, Paul
Giuiewski, a French author who visited South Africa recently, says the
foilowing :
"The principle is certainly valid in the primary and secondary
schools.
Transformation of the fluctuating, oral tribal culture into a
written culture, the elevation oflittle-known literatures to literatures
taught and analysed in class; the changing of dialects which are not
rich in vocabulary into teaching languages. must eventually enrich
these cultures, theseiiteratures. and these lan ages forthe benefit of
the people who posses tbem. .. The Bantu yanguages are being en-
dowed with the scientific termiuology required by modern education
in al1field~. the writine of textbooks will allow Bantu writers who
wish to rcno..ate their'ianguage to enter the domain of disciplined
and methodical creation. \ilitti recard to the Rantu cornmunit)..
encouraging the use of the motheÏ tongue certainly represents-a
positive mea!;ure )."
Mother-Tongue ErlucationinSouthWestAfrica
15. In regard to South West Africa, the 1958 Commission of Inquiry
into Non-European Education in South West Africa, after fully con-
sidering local coriditions as well as the experience gained from years
of Bantu education in South Africa, recommended the use of the ver-
nacular as medium of instruction in the suhstandards (i.e., the first
two years' schooling),andas far as possible also in Standards 1and II '.
' U.G. 53-1951, p.131.
This was no mean achievement. considering that at least seven major Bantu
languages are rpokn in South Africa.
' Giniewçki.P. Banlurtnnr: ATII~towwds theFuture (~961)p..103.ïhis work
ws originally published in French under the title Un fou* Prdldmc Colom'al:
l''fRcpovtdofthe Ci,mmissionof Inguiryinfo Non-Euvopcnn Educotion in South
Wcsf Africa (1958)Part 1. Native Eduultion. para. B~zp. 116. COUNTER-MEMORIAL OF SOUTH AFRICA 359
In Respondent's O inion, these courses are by far the most important
ones as far as the hPative groups are concerned, siuce the rnajonty of
Native pupik leave school afterthe first few years of schooling. These
coursestherefore aim at making the largest possible number of chiidren
of school-going age literate in their mother tongue and at pfoviding
them, at the same time,with a knowledge of Afrikaans and English.
The Commission also recommended that the " . . home language as
a subject should be taught with Afrikaans and English up to Standard VI
and alsofor the Junior Certificate "'.
stitute an innovation of principle as far instastiNative education in the
Territory was concerned, but endorsed a policy and aim which had for
tiou in the lower standards should, as far as possible, be in the pupil's
home language.
Thus in 1924 the Director of Education for South West Africa, in a
mission, said,c;ders alia:d before the Permanent Mandates Com-
"The chief native languages in the country number four: Nama,
Herero, Ovambo and Sechuana [Tswana]. In accordance with the
principle of mother-tongueinstmction. al1theselanpages aretaught
in our schools l."
Experience has shown that pupils absorb much,more when instmction
is given them in their home language, than when it is done in a language
not their own, and. also, that children who are first taught to read and
write in their own language generaüy learn a foreign language more
easily and quickiy than others.
16. That Reswndent's ~olicv in this reaard was in accord with the
views held by ihe ~ermahent'~andates commission, appears c1e.y
from reports by individual members of the Commission and from dis-
cussioni in the-Commission.
Thus in a report submitted by Mme Wicksell to the Commission
at its 12th Session, in 1927,there appeared, inbr dia, the following:
"The African schools have one great handicapthe number, of
different languages. which inakes it necessary to teach a.foreign
lanyage and, in some territories, even to carry on instmction m a
foreign language . ..
The African schools are, or ought to be, independent of European
school grades; their curricula can be and ought to be founded upon
African conditions and African mentality . ..
... the educational problems of Afnca are distinctly Afncan. The
success of the whole 'dual policy' depends, among other things, on
the African system ofeducation;theestablishment ofschoolscapable
of teaching the Africans themselves t? take over the agri~ltural
production of these nch tropical countve? is? necessary condition of
the fulfilment of the sacred tmst of civilisation '."
Lord Lugard is reported to have congratulated Mme Wickseii on the
WerfaAlricn (1958)Partr1,oNolivc Educatia. para. Brzz(6).p.n113. in Soulh
P.M.C.,Min., IV. p. 176 (Annex 4).
' Ibid..XII,p. 186 (Annex 6).36 SOUTH WEST AFRICA
report, which was printed asan Annexure to the Minutes of the 12th
Session. ..
In the Minutes of the Twentieth Session of the Commission, in 1431,
the following is ri:corded:
"Mlle. Dannevig thanked the mandatory Power for the very
detailedand valuableinformation on the education ofnativechildren.
As regards the statement in paragraph 312 she observed that it had
obviously never been the idea of the Mandates Commission that the
aim of education should be to Europeanise the natives but, on the
contrary, to oconvertthem intobetter natives 1."
And in 1934, dining the Twenty-sixth Session of the Commission,
Reçpondent was commended for its efforts in mother-tongue education.
The following is an extract from the Minutes of the Commission:
"Mlle. Dannevig. .. further referred to the statement in paragraph
172 that 'the new syllabus provides for more systematic instruction
in the mother ton e' What was meant by the 'mother tongue'?
Mr. Louw replieghthat, in the case of some Coloured children, the
mother tongiie wouid be Afrikaans or English, while, in the case of
natives. it w<,uldbe the vernacular.
Lord Lugard congratulateci the Administration on this encourage-
ment of the inother tonm-. Was not that a new ~ol.cv? . ="
17. A difficulty in making progress with mother-tongue education
amongthe Natives wasthat inthe earlier stages the staffs of the schoolsfor
Natives in South West Africa were composed of teachers of whom many
did not have an adequate knowledge of the Native languages. Gradually,
however, the position changed. Encowaged by the Administration,
many European teachers became fluent Xative linguists, and a large
number of Natives were trained to teach in the vernacular.
In 1010 it was re~orted to the Permanent Mandates Commission that
"The Pdic). ijto triin selestcd men in each rxce and appoiiit thrrii to do
the r<lucation;ilwork among their own people "1. Despite I<espondent's
efforts thcre has ;ilwavs beeria scarcitvinSouth \\'est Africa of tenchcrs
with an adequate kn6wledge of the various Sati\.e languages spuken in
thc Tcrritory. and a dificult position Irai been niade more diiJisulf by the
fact tliisorneof the Sati\.e EIOUI>Shave i~ri>ducedonlv alirnitcd number
of teachers to takecare of the teaching ~f'~u~ilsof thek language groups.
The Herero, in particular, show very little interest in the teaching
profession. with the result that there is an acute shortaae of Herero
trated by the statistics relative to Native teachers given in Chaptcr V- '
below.
18. The problem of giving pupils their initial schooling in their home
language is further complicated bythe fact that some areas are occupied
by members of niore than one language group. This is especially so in
certain parts of the Police Zone. In the northern temtories, where large
is much easier.ited by more or less homogeneous groups, the position
' Ibid.. XXVl, p.59.p.66.
U.G. 21-1931,para. 314.p.51.
' Vida Chap.V. paras.43and55.inha. COUNTER-MEMORIAL OF SOUTH AFRICA 361
-e--it~~- ~ ~ ~e difficulties. however. evew oossible effort is made bv
the ~dministration ta ensuréthat as many i>Lpilsas possible are tau&
throu~h the medium of their own lanmape by teachers of the same
language group. Wherever circumstanc6s aïlow-it ta be done, the ver-
nacular is used as the sole medium of instruction in the substandards,
and as the most important medium in Standards 1and II. During the
third and fourth years (i.e.. Standards 1 and II), an officia1language is
adually introduced as medium. In the higher primary standards (i.e..
gandards III-VI) an officia1language is at present the sole medium of
i~ -ruction. and this is also the oosition in the secondarvstandards.
It is tlic'ultimate aim that ihe vernaculiir ùe used as the medium of
iiistruction in al1stanilards. Sut this will take time. and wiUonly become
wssible when the various Native lanrniases have been sufficientlv
baveloped to be used as teaching Ianguag< inall the standards. and wheh
sufficicnt Sative teachers witti post-matrii:ulation qualinc;itioii~ becoiiie
available forthe teaching of seiondary classes.
19. In order ta promote the principle of "introducing the home
language as medium of instruction throughout the loyer and higher
primary schools"', the above-mentioned 1958 Commiss~onalso recom-
mended the establishment of an officialBureau for Native Languages
to develop Ndonga and Kuanyama (for Ovamboland), Kuangali (for
the Okavango group), Nama and Herero as writteu and àchoollanguages
and to provide the necessary primers, text-books, etc.' This Bureau has
been established and specifictasks which have been assigned toit are the
following :
(i) The composing of a gramrnar for each of these Innguages where
tliere is nnne in existence or published.
(ii) The composing of school redders and graded school text-books.
(iii)The production of wholesome general reading mattcr for persons
at various stages of development.
liv) The encouraeement of Sati\.e as weUas Eurovean teachers to write
, , and to collecf unwritten folklore.
(v) The development of subject terminology for school use.
(vi) The editing of a regular newsletter in the Native languages.
20. The Bureau officially came into operation on I January 1962.
but subcommittees thereof were established earlier in Ovamboland
and in the Police Zoneto commence thetask ofadding to schoolliterature
which had gradually over the years been built up by the Missionsand the
Education Department. The Bureau is headed by a European B~tu
pvologist, and posts have been created on the staff for five Native
assistants.
The establishment of such a Bureau, and the objectives pertaining
thereto, are in striking accord with ideals and methods that have been
advocated at recent educational conferences dealing \+th the problems
of education in Africa generally. Sa. for example, at the meeting of
Ministers of Education of African countries participating in the unple-
mentation of the Addis Ababa plan, held in Paris in March 1962, the
WcslRAfricoO(1958).aPartr1.para. B124.ip. 115. Non-Europcan Educdia in Soulh
Ibid.. para. Biz7. pp. 118-rzo.
Ibid., para. Br27 (d) (i)(iiand (iii)pp. 1x9-120.362 SOUTH WEST AFRICA
teaching of African languages was stressed as being of basic importance
for a number of reasons, inter alia, "as a factor in the rediscovery of
African tradition!; and a consciousness of African identity" 1.In regard
to the study of vernacular languages, it was pointed out that "the
desirability of Unesco aid for the creation of an Afncan languages study
institute has actually been mooted" 2.
21. In the particular circumstances of South West Africa, with its
multiplicity of languages, the policy of home-language instmction
obviouslyrequire:.that pupik ofdifferent languagegroups should betaught
in separate schools,or at least in separate classes. Wherever it is possible
to do so, pupils of the same language group are, up to the Standard II
stage, accommodnted in a school of their own. Where the numbers of a
minority group at any particular school, or in any particular area, are
not sufficient to justify the establishment of a separate school. every
Dossible effort is made to institute separate classes for such minoritv
group at miiting schools. The policy aipresent is to institutt ;tseparaie
class for a minority group at any school as soon ;isttiey nuiiiber 20 in al1
classes from Subjtandard A to Standard II. Separate scliools for the
higher primarv classcs are as yet not justified t>rcauscof the relatively
small numhers irivolvedat tlie various schools. but where tlie numbers do
warrant it, heparate classri in the sxmc sclioolare established.
ï'lizre are certain arcas wlierc.the pupils of a miriorit). language group
are so few in nuniber that even the establishmenr of separate classes is
not practicable. In most of these cas-. hou,ewr. tlic differcnt I~nguage
g~oupslive in the same area and understand each other's language, and
often the teachers, too, have a suffident knowledge of the languages
involved to be able to explain lessons to al1the pupils in a class. Only
very rarely does il:happen that so many language groups are represented
in the same clasri that no Native laneuae~,at al1 can be used as the
medium of instruction, but when such asituation doesarise,the Adminis-
tration allowsone ofthe offiriallanma-es to beused as mediurii.
zz. The language medium position in the Native schools in South
West Africa may be summed dp as follows:
(i) Of the102 schools in thePoliceZone at present, I offers instruction
in 3 languag~:~,and 20 in two languages. Herero. is the medium
of instructioii in II schools, and ro of these are attended almost
exclusively by Herero pupils, Nama is the medium in 68 schools: in
6 of these lessons are also explained in Herero. and in the others
Nama-speakin pupils form the ovenvhelming majority. Tswana is
the medium of instmction in 2 schools. at both of which Tswana-
speakingpupils form the vast majority 3.
(ii)Kaokoveld, the language most commonly used by the group con- the
in the southuihere, for reasons deait with elsewherein this Counter-
Memonal, intermingling of the .$roupshas taken place. R-ndent
has, however. every hope that in the not too distant future al1the
chiIdren in the Temtory will be given the opportunity of receiving
' UnescolEDlrgr, para. 73. p.17.
' lbid..para.76. p. 18.
' Departmental information. COUNTER-MEMOR IFLSOUTH AFRICA 363
instruction in their home language, at first only in the lower stand-
ards,but in due course alsoin the more advanced classes.
(c) Diffncnt Syllabuses
23. As education for the children of a particular community must
preferably, and as far as is practicable, be provided in their immediate
environment and in accordance with the needs, stage of development,
economic. cultural and social background of that community, it follows
that where population groups diKer as widely as they do in South West
Africa. sound educational policy requires different syllabuses for the
children of the various groups.
For the White group of South West Afi-ica.which had the advantage
of the educational tradition of Western civilization extending over cen-
turies. there was little difficultv in devisin-.a svllabus suitable to its
needs.
Provision of suitable curricula fof the Native groups in the Territory
was, however, in view of their particular circumstances, a matter beset
with various problems which have taken years to overcome.
During the German regime the missionsprescribed their own curricula
for the Natives in the various mission schools. Those prescribed by the
Rhenish Mission (in the Police Zone) were based on the curricula for
German primary schools:
". ..with the necessary adjustments to allowfor conditions amongst
the Natives in South West Africa. The standard of work ... was
lowered and adapted to the actual mental development of the
pupils '."
Outside the Police Zone each mission had its own approach, but the
object of education there was mainly to teach the pupils to read the
Bible. The educational needs of the Natives outside the Police Zone
were different from those of the groups in the Police Zone. particularly
because of the fact that the traditional life of the former, with their
subsistence economy. had not been affected by the impact of the Western
economy of the White group.
24. After assumption of the Mandate by Respondent, and upon the
promulgation of the Education Proclamation of 1921 2, education for
aii groups was reorganized. In order to ,lay a fo-dation for future
uniformity in education in Native schools in the Police Zone, the Direc-
tor of Education convened a conference in October 1923and at that
conference suitable curricula were considered 3.
There were. however. ~robiems which left the authorities no choice
but to emploi syllabuses'for the Native groups drawn up against the
culturai and traditional background ofthe White gro.p. .
The major difficulties werë:
(i) the lack of teachers qualified to teach through the medium of
Native languages:
' Report ofthe Commission of Inguiry into Na-Europeon Educnlion in Soulh
Wcrf Africn (rgljâP),rt 1, parB43 (a).p.36.
1 Ploc. No. 55of rgzr (S.W.A.).
3 Repovl of the Cornmirrion of Inguiry into Non-European Educafion in Soulh
Wdrl .4/ric(1958)P.art 1.paras.B47and48.pp. 40-41.364 SOUTH WEST AFRICA
(ü) the lack of suitable readers, text-books. manuals and other teaching
aids in the !;ative languages: in many cases the existingschool books
in Ena-ish (orAfrikaans Iiad to be uied.
nie provision::of the Education Proclamation of 1921,were, however,
not applied to s<:hoolsoutside the Police Zone: at that stage, because of
the undevelopecl state of education in that $art, of t+.Territory, it
would not have been reasonable to expect the innish Mission to assume
the greater educational duties involved 1.
Nor were the provisions of the Education Proclamation of 1926 en-
forced outside the Police Zone. The Finnish Mission,therefore,continued
to provide its om adaptable syiiabuses. and the other missions which
started educational work there at a later stage were aliowed to do the
same.
zj.1:roni 1933to 1951rcvised ~yllabuses,prcscrihed by the Education
theless, despite the efforts of the Organizer of Sative Educationcte=-. lack
of uniformity in courses persisted until 1g52, when uniform syllabuses
for Native schools were introduced throuehout the ~ - ~ ~rv.
The aforesaid 1958 Commission rico&nended that the Lyllabuses in
use in Bantu schools in South Africa for. inter alia, the lower primarv.
higher primary. junior certificate and lower primary teachers'-cour&.
should. with suitable ada tations to meet local conditions, be introduced
in the Native schoolsof f outh West Africa '.
Special Syllabuscs in Bantu Schoolsin South Africa
26. By 1958good progress had been made with the special s Ilabuses
in Bantu schools in South Africa, particularly as a result oYputting
into practice the findings and recommendations of the South African
Native Education Commission of 1949-1951.In its report this Com-
mission referred to recommendations in regard to the need for differenti-
ated syllabues made over the years by other commissions and com-
mittees of inquiry ',and stated that these earlier recommendations had
largely been ignored in practice, due mainly to-
"... insufficient attention beina devoted to the social,economic and
administrativr structure which determines very largely the role
of the schocls and theu success in fulfillingit 3".
The Commission held the view that the content and methods of Bantu
education mut to a very large extent be dictated by the fact that it
has to deal with-
' Vide Chap. V, paras. 49 and 63, infra.
Vida Chap. III. para. 6. rupa, and ChapV. paras.41-42,infra.
' RcPorl of IhcCommission of Inpuiry into Non-Europcnn Educntia inGoulWesl
Alricn (r958). Part 1. para. B~z(b), pp. rii-1x2.
' 'IneSouth Afi-ican Native Afiairs Commissionofigc3-igog. the Sdect Com-
CommissionNaof ra)3~?-1932,and the Inter-Departmental Cammittee an Nativeic
Education. 1935-1936.
' U.G. 53-1951. p. 8. COUNTER-MEMORIALOF SOUTH AFRICA 3%
". .. a child trained and conditioned in Bantu culture, endowed
with a knowledge of a Bantu language, and imbued with values.
interests and behaviour patterns learned from a Bantu mother '".
Consequently. the Commission rccomiiiended, inter alia. tlidt the
svllabllçes in South Africûfor I9dntu schoolsshould be revised to provide
forthe specialneeds and conditions of the Bantu groups. with gticular
emphasis on literacy in the mother tongue and the cultivation of a
proper pride in the groups' own national customs and traditions, without,
however, neglecting the study of the two officiallanguages (Afrikaans and
English) :
economic matters. and as a means of securing contact wth then
knowledge of the wider world 2".
27. On the basis of the aforementioned recommendation, the Depart-
ment of Bantu Education in South Afnca secured the services of ex-
penenced educationists for the purpose of drafting a series of special
syllabuses for Bantu schools, and appointed speualist organizers for a
number of subjects to ensure that teaching in those fields would be of
maximum benefit to the pupils following those cotmes. as well as to
the Bantu communities to which they belonged and which they would
eventually serve.
The standard of these syllabuses is in no way inferior to that of the
syUabuses used in European schools, but they do. to a certain exteut,
involve a difference of approach, content and method, determined in
the light of the pupil's environment and cultural background.
28. The introduction of special syllabuses in Bantu schools in South
Africa has been acclaimed by educationists and others.
Thus Mr. P. A. Moore. an Opposition hlember of Parliament and
former Inspecter ofSchools,isreported to the effect-
". .. that there is nothing 'inferior'about it [the prima9 cui~icdy
for Bantu children] compared with the syllabus of White children in
the same classes 3''.
The Rev. Dr. J. B. Webb, eminent chwchman and President of the
South African Me~ ~di~ ~Conferen~ ~ ~a.~ in a broadcast over the B.B.C.:
". . . w2 educiltionists regard the neiv syll:ibiises ns an improvcinent
on the old ones" '. (Trans1;ition.) Another educationist. Jlrs \Vhyte,
Adult Education Ofhctr of the Soutli Alricin Institute of liace Relations.
said: "ln theory at least. the ~o~ernment's Bantu education programme
was a good one. and tlie syllahuses ainong the four best iii the world."
Paul Ginieufski ' wrote the follou,inc in resard to some of the subiects
in the Bantu primary school syllabugin Souih Africa:
"As for the four practical subjects in whichpeople have seenproof
of the 'degradation' of Bantu education-manual work. Bantu
craftsmanship, gardening and that extraordimary course in 'tree
planting and soi1conservationv-these should be made compulsas.
' Ibid.,p.132..p.131
The sin,,Ï Dec. 1954,p.g.
' Die Tvansuoler.rg Aug. rg55.p. 7
' Vide para.14.supra.366 SOUTH WEST AFRICA
throughout Africa and Asia.Are not trees and soi1the basic problems
in this new black-yellow world taking shape on these continents? '"
And :
"lt seemcito inc exccllcnt tti:iIiistory. geography aiid etliics are
cood ideangtotestrnd tliis vriiicir>l10s\\'hite ssliuoli. Ir 1s.:iftt:r aII.
normal thal: the emphasis'sliouid be put OII the Uantu environment
rather than on tlie heritage of Western civilization and at a given
moment one must stop talking about 'ou ancestors, the Nomans'.
to the descc:iidantsof Chaka and Dingaan =."
SpecialSyl1abus~:isn Native Schoolsin South West Africa
29. The recoinmendation of the 1958 Commission of Inquiry into
Non-European 1':ducationin South West Africa concerning special syl-
labuses was adopted by the South West African Administration.
Suitably amendi:d lower and higher primary syliabuses were introduced
in the areas outside the Police Zone in 1961.Their introduction in schools
witliin the Police Zone was postponed for one year in order to give
teachers and other interested versons an ovu..tunity ofmaking pro-.als.
forTlir junior ïurrinc;it~ syllabii01tl,c Hniiru Cducation Uepÿrtmriit has
I~t:i:iiiiitroduci~t ;ilteacher traiiiiiic scliools\i,liislivreparz students for
the junior certificate examination, iFhile the lowei pRmary teachers'
syllabus has tlius far been introduced at the teacher training schools in
Ovamboland.
30. It is not at this stage intended to give full particulars of the
various syliabuses. Respondent merely wishes to stress the fact that the
syliabuses in use in the lower and higher primary schools since 1961 (in
the northern territories) and since 1962 (in the Police Zone) have been
specially designed to meet the needs ofpupils ofthe varionsNative groups
in the Territory. Based on the syllabuses used in South Africa's Bantu
schools, and amended in tlie light of conditions in South West Africa,
they are. as compared with the syllabuses previously used in the Terri-
tory, much betier suited to relate the subject-matter taught to the
pupil's cultural background and experience, and to the problems of his
own environment.
The subjects taught are the same for al1language groups, but regard
is had to the faci that the various groups speak different languages, that
they have different traditions and cultures, that they live, to a large
extent. in different areas, and that the education of the young has to be
canied on in a particular social and domestic milieu. The syllabuses
are accordingly of an elastic nature, and allow of differentiation and
adaptation to meet the needs of a particular community or group living
in a particular area. This is particularly true in regard to thestudy of the
pupil's home language, and the subjects environment study, social
stWithoutnatuentering into details, the approach to the syiiabuses canrses.
be illustrated by a reference to the teaching methods employed in a few
courses. In environmeut study and in social studies (which is a continu-
Giniewîki,op. cii., p. ioz.
Ibid.p. 16.
Vida para.25. supra. COUNTER-MEMOR IF SOUTH AFRICA 367
ation of environment stndy, and which includes history and geography),
the starting point is the pupil's own home, village and group, and from
there the course progresses in ever-widening circles until the history and
geography of South West Africa, Africa and the rest of the world are
included. In health education the conditions under which pnpils grow up
form the starting point, and wherever necessary pupils are informed of
group pecuiiarities and customs which may be detrimental to health,
and acquainted with more salutary forms of living. In general, it may
be said. the svllabuses stress the im~ortance of makiric the child's own
en\,ironnient ilie starting point of ail furtlier e<lucation.:ind of leadirig
the cliild from what tieknowj and underitands to that \vliishis iinkiio\r,n.
31. Upon the basis of recommendations in that regard by the 1958
Commission, the educational anthorities are aiming also at a certain
students çoas to adapt their education tothe special needs of their group.
The smaii number of pnpils involved, however, creates practical diffi-
culties.
(d) Difluent Social Entities and ParentCommunities
32. Continuation of the system of separate schools, whi? operated
before the inception of the Mandate, was in accordance with the pre-
vailing social order in the Territory. There had been no social integra-
tion between Europeans and non-Europeans either before or during the
German regime, nor had there been any such relationship during the
period of the country:~ military occupation. The introduction of a mixed
school system would have run directly counter to the prevailing social
order, and wouid, for that very reason, have failed.
33. The provision of separate educational facilities was also, to a
large extent, in accordance with the prevailing relationship between
Natives and Coloureds. As already stated ',the Rehoboth Basters were
and had their own schools. For the Cape Coloured group separateheir own
facilities had, as far as was practicable, been provided from an early
datez, and the so-called "Half-Whites" were not welcome in the Euro-
pean society, and, in many instances, not acceptedinthe Native society '.
Practical difficulties have, to this day, prevented the complete imple-
mentation of the policy of having separate schwls for al1 Coloured
children, though various Coloured communities have from time to time
urged the Administration to provide separate facilities for them. In
testifying before the 1958 Commission of Inquiry into Non-European
Education in South West Africa, several Coloured witnesses objected to
the fact that Coloured school children were still at times "forced to
attend schools for Natives"', and to the tact that "Bantu teachers
[were]sometimes appointed to Colouredschools" '.
34. The desire not to integrate socially was, and still is. apparent
also as between various Native groups. \men regard is had to the differ-
' VidaChap. II, para. 7, supra.
Ibid., para13.
West Afvicn (1958). Part II, Colwred Educofia. para. Kr15 (k), p. 38.outh
' Ibid.. para. Krrg (m). p. 38. Vide also subpara. (n).368 SOUTH WEST AFRICA
ences between these groups, it is only natural that the members of any
particular group shouid prefer to associate with other members of thw
own group. This tendency is also apparent as far as the schooling of
children is conccrned. A few exam~les mav be cited. The Ovambos.
who Iiave frequciitly indicated tlieir desire foi separate schools for their
children, recently made rcprcsentations to the Administration to
have a separate school for jouiig Ovambos in the iiew Native town-
ship of Katutura, at Windhoek. In the Okavango it has been the ex-
erience of the Finnisli Mission that Okavango parents prefer
gaving their cliildren taught by members of their own group, and that
they encourage Clkavangostudents to become teachers. Kecently, when
a second Native cclioolwas built in the Katutura township of Windhoek.
Nama-speaking parents and teachers urgently requeçted the Adminis-
tration to make this school a school for Nama-speaking pupils only. And,
as afinal exampk:: at the end ofI~GI there was a vacancy on the teaching
staff at the Herero school at Okakarara in the Waterberg-East Reserve:
Due to a shortaje of Herero teacliers, the Chief Inspecter of Native
Education offered the principal of the school a Nama teacher. The
principal refused to have him on Iiis staff, and when asked the reasons
for his refusal. lie politely stated tliat lie doubted whether a Nama
teacher would be acceotable to Herero oarents and children. and that a
Nama teacher would 'be unhappy amÔng the Hereros of the Reserve.
The attitude of the respective moups. is as far as possible, respected
by providing sepiirate fadities fo; them.
35. CloselyaUied to the considerations aforestated is the desirability.
in Respondent's view, that, as sound educational policy, the parents of
a group or community should take an active part in the control and
management of ieducation and in the determination of the content of
education. Respondent belkves that in this way educâtion can become
a livingrealjty which evolves with the group. It is consequently Respon-
dent's aim that the parents of every group shouid fom an integral
part of the school system in the Territory. Thi being the position, it is
more practical and more conducive to good group relations if separate
schools with separate parent organizations exist for the groups which
form different social entities and which have different needs and as-
pirations.
36. The White group in South West Afnca has always taken an
active part in the education of its children. Provision for Ewopean
school committei:~ was made in the fimt Education Proclamation for
the Temtor ' and was retained in the subsequent Proclamation, No.
16of 1926 6.w.A.)~. Parents serve on these committees and assist in
the promotion of the education of their children.
The Native gmups, however, were in thi respect, at any rate during
the earlier years, not sufficiently advanced to make any real contribu-
tion. It was onlv after recommendations were made bv the 1o58 Com-
mission that active steps were taken to promote thei; partic&tion in
the education of their children.
1915-1921,pp. 635-638.(S.W.A.), secs.9-19. in TheLawr of South WsrtAfrico
Proc. No. 1of 1926 (S.W.A.),secs. 10.2in Laws of Soulh WesAfvicn.Vol.
II (rgz3-1927). p232-242. COUNTER-MEMORIAL OF SOUTH AFRICA 369
The evidence given before the Commission in this regard is sum-
marized as foiiows in its report to the Administratioti:
"Most of the chwches and the mission sosieties havc drawn the
parents into rendering service to their schools by cstablishiiig scliool
conimittées. The\ have al1 come to the conclusioii. Iiowc\.cr. tliat
suchcommitteeswouldnot beable to makeany realcontributionwith-
out the guidance of European chairmen. Certain circles expreçsed
the opinion that bodies of parents would be incapable of bearing nny
important responsibilities in school matters. Even the Teachcrs
Association felt that school committees and school boards would be
undesirable for purposes ofcontrol. And yet.it wasremarkable towhat
extent the idea of servine on such bodies and exercisin~ authoritv
;ver their schwls stirredthe imagination of Native parents, tribal
councilsand chiefs,without exception. Everywhere great onthusiasm
w~sshown fur suih a system of control and-tliey \vCrcal1qiiitii con-
fidenttfint the). \vould be al>lcto fultil the dutics expl;iir~c<tlo thcm.
'l'heyespresscd tlie desire tliat such o.~nrtunitiei should I>ccrt.;itcd
as swn às possible '."
The Commissionrecommended that the system of community scliools
in South Africashould be introduced in the Territory.
TheSystemofCommunitySchoolsinSouthA/rKa
37. The desirability of the parents of each group playing an active
part in the planning and administration of its own educational services
was recognieed in South Africa from a relatively earl[,date., There
were, however, special reasons why the development O ~uch institu-
tions as schoolboards and school committees was a slower process among
the non-White groups than among the Europeans. There was no edu-
cational tradition in the Western sense among the non-White groups,
and it was thus inevitable that they coutd not provide the necessary
bais of educated adults until several aenerations had ~assed through -
the schools. -
In the case of the White group in South Africa. provision for parti-
cipation by parents in the education of their children has been in exis-
tence for many years in the form of school boards and school committees.
Similar provision was made later also in regard to some Coloured schools,
and current le~islation contemplates the extension thereof to al1Coloured
schools. -
38. In the case of the Bantu groups. however, it was not until the
passing of the Bantu Education Act in 1953that a similar system was
introduced. This was done on ,the basis of a recommendation by the
Commission on Native Education I,.,-19,- which pointed out in its
report th:it "Bantu parents should as far as pract~&blç h;i\,ea share
in the control and life of the schools". since it is "only in this way that
children willrealise that their parentsand thc schooli are iiot comptitors
but that theyare complementarv". and that "the scliool, willrducûrr tlie
parents in certain social values" 2.ASa means of bringing into c.uiitcnce
1Riport of Uc Cornmirrion O/Inguiry inlo Na-Europrnn Educolia inSouth
WcrtAtrica (1958) Part 1.para.Bi06 (b). p.80.
U.G.53-1951,para. 766 (i),p.131.370 SOUTH WEST AFR~CA
an "educational system [which]should have educative results not merely
on the children biit on the wholecommunitv" '.the Commissionstressed
"the importance of giving the Rantii a realihaie in the respotisibility for
tlieir educntion". and regard4 itas "fundanientally impirtant that the
Ilantu sliould Iinven share iii the finnncingof schools. in the formulatiori
of policy, iii tlic sfi;iping of syllabi, in the manngrnient of Rintu sstiools
and iiitlie es;iniiii;itiori of tlir ~)rofessioiialwork of thesc scl2.ols"
In im~lementation of the aforesaid recommendations, the Bantu
EducatiÔn Act, 1953 (Act No. 47 of 1953). and regulations thereunder,
made provision for the establishment of Bantu community schools in
South Africa.
19. The svsteni of communitv schools offers Bantu aren ncornmuni-
ti&-the opportunity of playing an active part in the cÔntrolof the edu-
cation of their children, and at the same time affords them an excellent
training ground in self-management and citizenship.
Community schools, while subsidized by the State, fail under the
local control of Bantu school committees. each consisting of seven
members, elected by and from amongst the parent community con-
cerned. Bantu scliool boards. again. exercise control over ailcommunity
schools in given areas, determined on the basis of language groups and
community interests. Someof the members of a school board are elected
by the parent communities concerned, while others are appointed by
the Department and by the local authority concerned to represent
religious and local interests.
There have been established, throughout South Africa, school com-
mittees for more than 4,700 schools and also more than 500 school
boards, each concisting of at least ten members. This means that more
than 33.000 Bantu men and women are now taking an active part in
the control and promotion of their childreu's education-and, at the
same time, gainirig valuable experience in managing their own affairs.
Bantu commuiiities have shown an ever-increasing interest in the
education of their children since the introduction of community schools
and the system of Bantu school committees and school boards, and
this has in no small way contribiited to the big increase in the number
of children at school during the past few years. In 1955it wasestimated
that 40per cent. of al1Bantu children in South Africa between the ages
of7and 16attended school,and by 1960the percentage had risen to 60.
40. Paul Giniewski deals with the system of community schools,
school cornmittee!; and school boards in the following tems:
"These figures are important: they represeut 4,500 meeting
places where 30.000 Bantu persons can have a controlling interest in
their own afïairs and a training ground for their active participation
in the management of their destiny. Through the education of the
children the whole community is being educated, through the con-
crete problems of running a school, populations which have been
spnfed for generations are taught that a book. a pencil, a sch?ol
bench. a teacher, mean money and that they arenot manna comg
from the omnipotent and far-off government in the town but the
' U.G.53-1951 para.962. p.152.
Zbid., para. 963.p152.
' Vide para.14. siipvn. COUNTER-MEMORIAL OF SOUTH AFRICA 371
fruits of an effort that the community which benehts from them
must make. The system as a whole is tlius certainly on this level, a
positive contribution to the development of the body ,civic of the
Uantu and fitsin very wellwith the guiding thought which theoreti-
caiiy underlies the whole edifice of apartheid: apprenticeship of
national indepr:ndence '."
The community school system, with its school boards and school
committees, has been generally welcomed by Kantu communities in
South Africa. In the Bantu newspaper llanga Lase Natal of 19November
1955, M..H. S. Makhanya, Supervisor of Uantu Schools, is reported to
have said at a meeting of the Natal African School Supervisors' Sdciety:
"We are grateful .. .to the Department of Bantu Education for
this hne gesture in @ing us Africans a bigger share in the responsi-
bility of African education. This will mean a greater gain çventually
to Bantu education and we would like to assure the powers-that-be
that they willhavenothingto regret in the fine step,they have takfn.
The thinking Bantu is hailing. with much appreciation, this giving
them of a largesharein theresponsibility of African development! *"
Communèly SchoolsinSozidhWestAfyica
munity schoolsme'dwas adopted by the Administration.ning com-
Implementation of the new system commenced in 1961, when the
Administration took over the lower primary schools, 85in number, of
the Finnish Missionin Ovamboland. A school committee was estai>li+ed
for each of the schools, and Ovamboland was furthermore divided into
six school board districts*. The implementation of the system in the
Police Zone began in 1962 '.
After its experience thus far of community schools in Ovamboland,
the Administration has every confidencethat the system willbe a success.
School committees and school boards. acting under .the guidance and
with theadvice of the Administration's ofiicials,are doing good work.and
it is hoped that al1Native parent communities will in time utilize to the
full the opportunity which has been given them of promoting education
through their own efforts.
42.With regard to the Coloureds,Ordinance No. 27of 1962 (Ç.W.A.)
makes provision for the election of school committees, composed of
Coloured parents, for government Coloured schools.
43. The system of community schools does not only afford the,parents
of each group an opportunity of participating in the planning and
administration of its own educational services, but it also serves as a
step in a process of development which has as its aim the eventual
assumption by each group of control of its education-that is, when
the groups can shoulder the necessary administrative and financiai
responsibiljty.
' Giniewski,op.cit.. 104.
' Vidc para. 36. supra.ov. 1955.p. 15.
' Vide Chap.V, para. 35,infra.
Vide further Chap. V, para. 36, infra.
Vide Chap. III. para. 5, supra.372 SOUTH WEST AFRICA
In this regard the 1958 Commission stated that it had: "... leamed
from Native representatives and bodies that the idea of greater financial
burdens was acct:ptable" l.
And the Cornnimon pointed out that-
"As a matter of fact, the principle has in part been accepted
already, as witness the volunt help and contributions given by
communities with the erection ?mission schools, and further the
raising of voluntary levies for educational purposes and the
appropriation of these levies from the tribal funds 2."
11. THE ATTITuI)E OP THE LEAGUE OF NATIONS TOWARDS RESPONDENT'S
POLICY OP DIFFERENTIATION
44. The policy of having separate schools in South West Africa for
Euro~ean. Coloured and Native children was one of which the Pema-
nent kaildates Ci>mmijsion.and therefore also the Councilof the Leaguc.
was at a11times full! aware. iïot only \vue the Educatiori ~'rocl:im:ifions
of 1021 and iazG broueht to the noticeof the I,e;iriic but irRe;~oii(Ient's
annkal repris to the-~eague the education of Euopean, ColÔuredand
Native children was dealt with separately. A few references should
suffice as illustration. In Respondent's annual report to the League of
Natio~ ~ ~ ~-,21 i~ wa~~-~at~ ~ ~
":in 13<luc<tioiPiroclamation on tlic linesof the CapeCunsolidated
OrJinance \vasissued in No\~embcr.1021,and came irito forceun 1st
Janua~y, 1922. It contains important provisions for educational
administration and school management by committees, on the
grading, emoluments, and pensions of teachers, on native educalion,
on private sc.hools.and on the medical inspection of schools, as well
as other important matters 3."(Italics added.)
In 1922 it was reported that-
"Since the amival of the rnissionaries, from the earliest times, the
teaching of the nativc children has been entirely in the hands O/ the
Missionaries who were subsidised by the late Government'."
(Italicsadded.)
In 1923it was stated:
"Ail the native schools are Denominational Mission Schools at
present. Thry cannot do without the constant guidance of the
local missionary 5." (Italics added.)
In the same year ~ajor Herbst, ~es~ondent's representative. is re-
corded as having informed the Permanent Mandates Commission that-
". .. the establishment ofState schoolsfornativeswas contem~lated.
This idre has. howcver. beeii~baiidoricdfur the prtsent as the'recent
missionary conference to \\,hich referencc has beeii made, proved
entirely <atisfactory, under the arrangements which now eist the
Director of Education has a say in the syllabus and the nght of
'Report of the Ct,rnmirrionO/Inquiry into Non-Europcnn Education in South
Wcsf Africa (1958). Pari 1. paraBx46. p. 138.
Ibid..pp. rj8-139.
' U.G. 32-1922, p. 15.
' U.G. zr-,923. p. 20.
' U.G. 21-1924. p. 33. COUNTER-MEMORIAL OF SOUTH AFRICA 373
inspection of mission schools, and the missions are working in close
co-operation with the Administration. A change, therefore, seems
unnecessary.
1 think it is generally the policy to leavethe pionen work in con-
neclion with native educationto missionaries. the Govemment ren-
dering fuiancial assistance '." (Itaiics added.)
45. In 1924 Mr. Hofmeyr, the then Administrator of South West
Africa, furnished the Permanent Mandates Commission with particulars
of Native schools in the Police Zone and in the northern tetritories.
Gel1as of estimated expenditure on Native education 2.He also gavé
the Commission a summaw of what had been accomplished during his
t--m of office.and in that Geard he stated, inter alia: - -
-
"An Éducation Law, making provision for the recognition of
mission schools, details of which have been supplied, was promul-
gated. According to the terms of this law, colouredalrdnative schools
are under the direct control of the various Missions . .."' (Italics
added.)
He also said:
"In order to work out a common plan and promote co-operation in
native andcolourededucation,1 instmcted the Director of Education
last vear to cal1 a conference to which al1churches and missionarv
orga6isations intzrested in educational work wereinvited. A comnioh
understanding was rcached as to the syllabus to bc drawn up for
mission schoGls. and later on a vacatiin course for native teachers
was held. We have in course of preparation elementary reading-
booksin the native langu~ge~for the use of these mission schools '."
(Italics aàded.)
Respondent's 1926annual report contained the following:
"Proclamation No. 16 of 1926. The new Education Proclamation
provides, infn alin, for improved salary scales for teackrs in the
colouredand Native schools,. ..5" (Italics added.)
46. In 1930 the South African representative, MT.Courtney Clarke,
in addressing the Permanent Mandates Commission, said that Native
education: " .. .was being conducted through the Missions. and, in the
case of backward races, that was the hest possible method6." In its
report for that year Respondent outiined briefly its policy with regard
to the education of the Native population in the followingterms:
"The aim is definitely not to europeanize the natives. They must
retain their language and their customs as far as the latter do not
clash with the great general principles on which civilization rests.
Hererosmnst develop into better Hereros, the Hottentotsintobetter
Hottentots, etc.'"
Count de Penha Garcia. a member of the Commission, is reported to
have said:
' U.G.21-1924. p.3s.
P.M.C.. Min., IV. p.5r.
Ibid..p.gq.
' Ibid..pp.51-52.
' U.G. 22-1927, p. 56.
P.M.C.. Min.. XVIII, p. 137.
7 U.G.21-1931 ,ara. 312.p.5'.374 SOUTH WEST AFRICA
"... The ediccationof the African native was a difficult problem. In
many parts ofAfrica. when natives weregiven the same education as
white men, the resdt was often the opposite of what was intended.
A class of haIf-educated natives, if he might so use the term, was
created,which only too often exercised a harmful influence over the
primitive naiive...
The native had not the same mentality as the white. Educational
methods mus! be adopted which were suiled 10 Ais mentality and 10
his processO/ molution towards a civilisation which was not always
that ofthewhiteman himself l."(Italicsadded).
In 1936 it isrecorded thatthe Commissionnoted "with satisfaction":
sphere, and in particdar the opening of a first Governmentnative
schoolin a nztive reserve.It hopes that it may be found possible to
open similar schools in other native reserves ..Z" (Italics added.)
47.The policy ofhavingseparate schools, which was applied in South
West Africa when South Africa assumed the Mandate, was the policy
which was followed during al1the years of the existence of the League
of Nations. While fully aware of the application of tbis policy, neither
at any time suggested that the policy was not in keeping with the terms
of the Mandate, and at no time was Respondent requested to adopt a
different policy. On the contrary, a reference to the proceedings of the
Permanent Mandates Commission shows that the members of the Com-
mission were at al1time aware ofthevast differencesbetween the various
groups in their respective levels of civilization. their traditions and
cultural backgrounds. and it issubmitted that they appreciated and did
not oppose Respondent's view that the interests of the various groups
could best be sewed in separate schools.Of particular significancein this
regard is the attitude adopted by the Commission towards Respondent's
policy of mother-tongue education 3.
III. SEPARATE EDUCATIONAF LACILITIES IN OTHERMANDATED
TERRITORIES
48.That separate educational facilities for different population groups
also existed in c.ther mandated temtories dwing the lifetime of the
League. appears from the Minutes of the Permanent Mandates Com-
mission. The followingextracts from these Minutes are cited as examples.
(a)T.k PacificIslands-under TapaneseMandate
In a note read by the Japanese representative to the Commission
during the fourteenth meeting of the Third Session, in 1923, it was
stated,interalia:
"... an improvement has been made in the system of educatiori with
a view to de;ding more adequately with the present situation in the
P.M.C. , in..XVIII.pp. 138-139.
* Vide para16.supro. COVNTER-MEMORJAL OF SOUTH AFRlCA 375
islands. There are two kinds of schoolsprimary schools for non-
natives and public schoolsfor the natives '".
@) NewGuinea-nder Australian Mandate
At the fourth meeting of the Thirteenth Session in 1928, in reply to
a question by Lord Lugard concerning "the facilities forthe education
ofwhite, Chineseand half-caste children". the Australian representative,
Su Glanville Ryrie, isrecorded as having stated:
"... that there was a good school at Raboul staffed by white
teachers ... the nurnber of pupils attending the school at Raboul
was 22, and the numbers of pupils attending the Chinese schools
were 43, 57 and II respectively. There was also the school for
Europeans at Kieta 2."
And at the seventeenth meeting of the Thirty-sixth Session, in 1939.the
Australian representative, Mr. Halligan. is recorded as having said:
"European, Chinese and native schools were maintained during the
year.. ."'
(c) Tanganyikalrnder British Mandate
The followingstaternent is recorded iiithe Minutesof the sevrntrenth
nieetii-rrof the Thirteenth Session.in 1~28:
"Additional funds had also been voted for opening agirls' schoolin
Tabora, the first effort ofthe Government to undertake the education
of girls. and for setting u a central school for Indian children in
Dar-es-Salaam. Moniesha f also been voted for the instruction of the
chil-ren of Euro~eans in some of the main centres '."
And at the third meeting of the Eighteenth Session, in 1930, the Man-
datory's representative is recorded as having stated that-
". .. ihe Advisory Committee advised the Government solely on
matters relating to native education. The two Advisory Boards (on
Indian and European Education) would be confined respectively to
Indian and European Education. They would be three quite separate
organisations 5."
IV. RETENTJON OF THE SYSTEM OF SEPARATE EDUCATION
49. The cucumstances which brought about a system of separate
education in South West Africa still exist today.
The difference between the levels of civilization and development of
the European and Native peoples of the Temtory in 1920was such that
it could not be elirninated in a generation or two. Steady progress has
been made in the education of the Native grou s during the last 40
years, but, on the whole, the gap is still a wi& one. Moreover, the
cnstoms, cultures and traditions of the Native groups have remained
' P.M.C., Min., III, 80.
Ibid., XIII. 37.
' Ibid.. XIII. 141.41.
Ibid.. XVIII. p37.376 SOUTH WEST AFRICA
vastly different irom those of the Europeans, and, in addition, still vary
irom group to group. The languages spoken by the several Native
groups are aU different from those spoken by the Europeans and the
other non-Whiti: groups. GeographicaUy, the majonty of the Native
pulation are domiciled in separate, demarcated areas, where they
gave their 0, ~:otnmunalinterests.
50. The policy of separate education as appljed in the past is also in
accordance with the wishes of the vast maiontv,of .he ~opulaAiAn of
the Temtory.
In the case of the Natives. each group wishes to retain, its own identity
and culture. Th,: Coloured people prefer that their children be taught
in schoolsof their own. On the side of the White population differentiaton
exists even amongst the three language groups. The White group, like
the other groups, prefers that its children be taught in separate schools.
In the cùcumstances Respondent sces no aay of meeting the needs
and desires of the various groups, and of preser~ing harmonious relations
between them. without retaining a system which makes provision for
separate schools for them.
51. It is Respondent's belief, furthermore, that the olicy of having
separate schoolsfor the children of the White, Coloure and the various
Native groups is, in the cùcumstances which prevail in South West
Africa, educationaliy sound. It is the considered opinion of education-
ists of standing throughout the world that the interests of any particular
community, which is clearly distinct from other communities, can
best be served bv providina education for its children in their immediate
en\,ironment and in accordance with their specific needs. their stage of
develoi)mrnt. ~nd their ciilturai background.
52. In regard10 Native, or "African". education in particular, modem
educationists agree that such education caUs for an approach whch is
different from that followedin the case of Europeans.
Thus D. G. Scanlon, Assistant Professor of Education at the State
Teachers College,Newark, New Jersey. U.S.A., and former member of
the Unesco Funclamental Education Project, in 1954 wrote in an article,
"Education and Social Change in Weçt Africa":
"Formul(:ducationmus1becarriedon within thesocialand domcstic
milieu of thr.young African. Village schoolswhere the child remains
in his own home while receivinghis early education are imperative."
And:
"The curriculum O/ the uillagc schoolsshould be designed 10meet
the needs of the community.. . Each area should be studied before
constructing a curriculum for the school. Too often, curricula are
copied from countries whose needs and cultures are vastly different
from those of Africa. Such a curriculum, usually of an academic
nature. contributes little towards helping the child in his culture.
Teaching materialsshould bc producedwhichwill be meaningful 10
thechildren,inthevillage l."
P. P. Tempelri. a missionary in the Belgian Congo for many years,
wrote:
' Scanlon. D. G.. "Education and Social Change ia West Africa". Tcaihcrs
CollcgcRccwd. Vol.56. No. 3 (DK. 1954).p. 134. COUNTER-MEMORIAL OF SOUTH AFRICA 377
"We experience more and more that our ciuilisation,our idcas, at
kat in their Wcslnn form. do not aùùeal 'a the Bantu: their souls
¬ touched thereby. ',
... Who amongst those responsible for their education and evolu-
t~-. build uDona sound. real Bantu foundation?
The resuli is on the whole rniserabla. We have at prescnt to deal
witha mas3of 'h.olués'who Iwk down with disdain on niembers of
their race, but who are themselves at sea with iife because they have
lost the meaning of it '."(Translated from Dutch.) (Italicsadded.)
Clement Odunukwe, lecturer with the Emergency Training Scheme,
Lagos, has stated:
"American education isdifferent from British education. American
education isgoodforAmerica because it iswhat the people want and
are wiliingto pay for. It must be presumed that British education IS
good for Britain. Neither as such is good for Nigeria. Educationis a
social lunction which must fit the environment for which if is de-
si~ned 2." (Ital~-s a~ ~d.)
-~"
hlillion Seqniq. I>irector of Kcsearch and Curriculum I)e\,elopment
in the Ethiopean Ministry of Education. hÿs written:
"The curriculum of the schools must hcadapledlo thepeculiarilies
O/ the culiurol. social and ecnvironme>tlaclhararleris/~cs O/ Elhiopia.
It cannot be sufftcientlir stressed that our needs aiid ~roblt-msare
different and cannot be solved by adapting other naiions' educa-
tional systems 3." (Itaiics added.)
Jan Eigenhuis quotes Albert Schweitzer as saying:
"1 grow steadiiy more convinced that the Europeans, who are
being sent out by the missions to educate the natives can only do a
part of the work. The realeducator of the negroes is the negro hm-
self. Therecanbe noreal@rogressuntil the negroesJeelthecal1to sme
as the educatorsof their people '."(Italics added.)
P. B. Ballard.a British educationist. has written:
" ... training in tlic use of the mother tonye-the tonguein which a
cliild thinks and drams-becomes the first essential ofschoolingand
thc finest instrument of human culture'".
In a "Study of Discrimination in Education", issued by the United
Nations Economic and Social Council in 1956i. t is stated:
'They [the experts] accept as axiomatic, on psychological, so-
ciological and educational grounds, that the best medium for
teaching a childis hismother tongue. Consequently. they recommend
that every effort should be made to provide education in the mother
tongue to as late a stage of education as possible 6."
' Tempels. P. P., Bantoc-Filarof e946). p.108.
Odunukwe. C.. "Education in a Dvoamic Societv". West Africa* Journal of
Educntia. Vol. z.No. 3 (Oct.1958). p.93.
' Neqniq, M.. "The Most Urgent Needs inths Expansion of Ethiopian Edn.tion".
Etbiopul Obsewer, Vol. II,NO. 4 (Mar .958). pp. 138-139.
' Eigenhuis. J.. AlbevSchwcitac (igzg), p. 97.
' Yi& U.N. Docr. E/CN. 4ISub. zlrôr. 71934)Nov.171956, para. 527. Pp. 168~169
and EICN. 4lSub. zlr81IRev. 1.p. 109.3 78 SOUTH WEST AFRlCA
53.There can be no doubt that in the viewoftheeducationistsreferred
to above the education provided for the children of any of the Native
groups in South West Africa must, in certain major respects at least, be
different from that ~rovided for White children in the Territorv. It is
ako clcar that the s;ccessful application of tlie various principl~s men:
tioned above dernands that Native children should receive ttieir education
in their own schools. where full effect can be given to the principles
-.vo..ed.
These principles furthemore entail that there should be differentiation
languages, cultures and traditions.ative mo-os Ahen thev have different
54. In addition to the views of the educationists referred to above,
attention is drawn to the educational programmes which have been
in recent years. -4vailable information shows that African countries have
generally decided that existing patterns and systems of education for
Africans should be discarded as being "European" and foreign to the
African background and cultural heritage; that education should be
"Africanized; that educational cunicula and teaching materials should
be adapted to ~lfrican conditions and interests and that they should,
particularly at the primary and lower secondary level, be adapted to
rural and village life; that education at aiilevels should rest on a foun-
dation of specificaiiy African culture, and that education should serve to
revive African civilizations.
Respondent refers in this regard to the report on the proceedings of
the "Conference of African States on the Development of Education in
Africa", held at Addis Ababa from 15 to 25May 1961. In Chapter I (1)
/,l,of the reoort it is stated:
"The leaders of education speaking of their countries' needs, have
stressed a s~:condmajor aspect-the desire to accelerate the reorien-
tation of the education patterns and systems to the economic and
socialneeds of their individual areas. Theywishtogiveproperstressin
educational al1leuelsand by dl possible means to their own culture.
As the students of Africa are exposed to the scientific and cultural
aspects of tlie outside world. they need to be thoroughly grounded in
a fim knoviledge of their own cultural heritage. The education for
the future citizen of Africa mut be a modem African education '."
(Italicç added.)
The followingis said in regard to text-books:
"The problem of the production of textbooks adapted to new
cumcula requirements and African conditions is cnicial. On the side
of content, scientificand technological books in many casesproduced
for non-African consumers. must beadaptedtoAfrican teachingcondi-
tions. For bistorv. literarv and social studies subiects. there is an
urgent necci for >dapialton O/texlbooksmorcrcleva'nlIo A/rtcan ll/c
and culture '." (Italics added.)
55. In regard to &al education, the said report contains the following:
"Tbere ir. interest in adapting educationalcurricula, particularly
at the prirmry and lown secondary level, to rural andvillage life.
* Ibid., para12.p. 5.. 6,p. 3. COUNTER-MEMORIAL OF SOUTH AFRICA 379
Efforts are being made to bring the school to the countryside physi-
cally and in terms of a programme more in line with rural needs
and interests. This new direction wili be an important factor in
raising the productivity of the agricuitural economy. in enriching the
commÜnityÏife in tlievillages.ad in increasing employmerit O pjrtu-
nities in rural ans. lt will help diminish the iiumber ofscliool
lcavers who flock to the towns and cities for employment which, in
certain areas often is almost non-existent. Conceni was expressed
overtlieprobhnisposcd hy tlieuprooting of youngpeopletoo abniptly
from their rural and family suroundiiigs, producing individuals
~romammes to rural conditions. consideration was &en to ex~eri-onal
in rural school curricda combined with rira1 comnzunity
programmes,to the potential role of agricultural extension serv1c.s in
improving mral education and to the importance of developmga
new sense of thecrucialrok of agriculiurd actiuityand rural livingin
theflroductiuelife of Africa'."(Italics added.)
The report also deals with "The Need of Development of African
Culture" in the foliowing terms:
"Against this description of urgent needs and plans forthe expan-
sion and modemization of education in Africa ?nd the progressive
ricula and teachingmuterials be adapted to African conditions andr-
intercsts. This can only be brought about through the development
for al1levelsof education of textbooks and teaching materials whch
illuminate the familiar envzronmmlof thehflils and reflecftkr cd-
tural hisiory. In adult education pr&amries as weli. materials of
instruction can be more thoughtfully adüptrd to localcultural needs.
At the hieher levels of instmctioii. therc is need for the training of
specialisti in African history, languages, culture and art.
Whether in the fieldof adultand civic education, in fonnal educa-
tion, or in the broad and important area of the creative arts, the
growth of a wider consciousness andunderstanding of African cul-
tural values,illonly be effectivelydeveloped by a greater study and
knowledge of the sources of African cultureand by an expansion in
each nation of programmes ofresearch on the traditions. the ways of
thought and living particular to each country.From this willgrow a
larger conception and appreciation of Afncan culture as a whole and
of its contribution to the common cultural heritage of mankrnd2."
(Italics added.)
56. In Chapter V of the report the fouowing is said, inter aha. in
regard to "The reform of the content of education":
"The Commission discnssed at length the problem of reforming the
content of education in the African countrieç. and heard a most in-
formative statement on the subject from the Unesco consultant. Mr.
Joseph Ki Zerbo of Upper Volta (se Annex IV).
The need for such adaptation is generally recognized. The educa-
tional systems in force were modelled, hyand large, on those of the
former metropolitan countnes. Moreover,even in the latter they fre-
' Unesw/ED/~-/=, para. 18.pp.5-6.
' Ibid.. para24-25.p. 7.380 SOUTH WEST AFRICA
quently require overhauiing, as they had been worked out long
since. They are in line neither with existing African conditions. nor
with the postulate of political independence, nor yet with the
dominant features of an essentiallv technolorrical aee or of the
imperatives of balaiictd cc~nomiz'develo~~m~ntin\%lving rapid
industrialization. Based as thty are on a non-African background.
thev dow iio room for the African child's intelliaence. wwers of
obsérvation and creative imagination to develop frëely, nÔrdothey
help him to findhis bearings in the world. For the Africanpersonality
to assertitself, it is naessary torediscouertheAfrican culturalhcrilage
towhichanimbortantMaceshouldbeallottedin education.Stress mut
be laid on th; cultutal and social features common to the African
countries. thus strciigthening African uiiity and Iiclpingthe countries
of the coiitinent to eet to know each other hetter. An understaiidina
of African ciistoms,-lanyagcs, psychology and snciologycannot bu:
facilitate the work of medicnl personnel. demographic e.per.s.
statisticians and other specialists.'
... curricula should be correspondinglyreformedby allotting less
time to the teaching of dead languages and ending the preferential
treatmentgiven by the formermetro litan powers to the teachingof
history and geography little relateEo Africa or African needs l."
(Italics added.)
57. Mr. Joseph Ki Zerbo, referred to in the ahove-mentioned report.
said in a "Backgmund Paper", entitled "The Content of Education in
Africa", that if education was to fulfil its many functions satisfactorily,
it would have to be "African", that is. "it must rest on a foundation of
specificallyAfrican culture and be based on the special requirements of
African progress in al1fields" 2.
58. The said Conference adopted what is called an "Outline of a
Plan for African Educational Development" '. In this "Outline" the
importance of a i.eform of teaching materials is stressed in the following
terms:
"Tkc exisls a persistent need for the reformof teachingmaterials
at al1 levels. School experiences should contribute to the learner's
greater understanding and appreciation both of his cultural heritage
and that of al1other nations and of al1aspects ofbis nation's present
and probable future. His basic and supplementaty matenals for
study should be born of African conditions and interests. Throughout
thetextbooks theAfrican childstudies shouldrun thefabric of African
life andculture.Production of such material wiUrequire considerable
research, writing, and publication. but its importance to the develop
ment of proper concepts and of iearning experiences appropnate to
the African child makes it a need of crucial urgency '." (Italics
added.)
The Conferenci:expressed the view that "the present content of educa-
tion in Africa" ulas 'hot in line with.. .African conditions", but,was-
S'... based on a non-African background. aliowing no room for the
Uncxo/ED/181. paras. 23-24. 26pp. 38-39
Ibid.. Annex IV. p.55.
Unesco/ED/18o.
' Ibid.. para.(h),p. 8. COUNTER-MEMORIALOF SOUTH AFRICA 38r
African child's intelligence, powers of observation and creative
imagination to develop freely and help him find his bearings in the
world.. . '".
and accordingly recommended, interalia, that-
"... African educational authmilies should revisc and reform the
contentofcducationin theareasofthccunicula, textbooks,andmcthods.
so as to take account of African environment, child deud@ment,
culturalhwitagcandthedcmandsoftechnologicap l rogressandeconomic
deuelopment,especiallyindustrialization. ..1." (Italics added.)
59. In this regard, reference may be made also to two statements by
leading Afncan personalities. On IO December 1962, according to a
ress report, Dr. Julius Nyerere, the President of the new Tanganyika
gepublic, told Parliament that traditional Tanganyika music and dances
would be revived to foster pride in the country's indigenous culture,
and that a Ministry of National Culture and Youth had been set up to
carry out the task. While warning his listeners that to revive one's own
culture did not mean that one should refuse to learn from foreigncultures
he is reported to have said:
"Of al1 the crimes of colonialism, there is none worse than the
attempt ta make us believe wehad noindigenous culture of our own.
Some of us, particularly those who acquired a European type of
education set ourselves to prove to OUI colonial &ers that we had
become 'civilise#, and by that we meant that we had abandoned
everything connected with our own past and had learnt to imitate
only European ways.
Our young men's ambition was not to become well-educated Afri-
can~~ b~.~ ~ ~~ ~ ~o~ .ns - 2."
And in November 1962, according to a press report, the Director of
the Ghana Institute of Artand Culture. ChiefKobina Nketia IV:
" ... advocalcd th:it the peopleofAfrica should rewrite their history.
abolish European customs and practiccs and revive thcir indigenous
traditional i~stitutions",
and told members of the Soviet Association for Friendship with Peoples
of Africa that ". .. the European association had made an evil impact
on African culture and civilisation" '.
60. From the preceding paragraphs it appears clearly that educationai
authorities in many African countries (includin the Applicant States.
Ethio ia and Liberia) subscribe to the viewthat t 1 econtent and methods
of "~kcan education"-education forthe indigenous peoplesof Africa7
must rest on a foundation of Afncan culture; that it must, therefore. in
part at least. bedifferent from European education, and that a European.
or Western,orientated education cannot possibly serve the best interests
of children who have an Afncan cultural hentage.
These views are readiiy appreciated by Respondent. As indicat+
above, they have been recognized and applied for a number of years in
Bantu education in South Africa, and are ah put into practice with
regard to the Natives of South West Africa.
ThasSLnr.118Dec.a1962,p..7.. 23.
' Ibid.1,5 Nov. 1962,p. z1.382 SOUTH WEST AFRICA
61.Just as European. or Westerii orieritated education cannot do
justice to the African cultural herita~e, it wiii be appreciated that the
converse must be equally tme: an ëducation basëd on true African
fundamentals cariiiot do justice to a Europeaii, or Western cultural
heritage.
It seems clear that there can be no systcm or pattern of education
which can rest oii a foutidation of specifically African culture and at
the same tinie oii a foundation of specifically European, or Western,
culture; that there can be no text-book throughout which there can run
"the fabric of African life and culture" ' and, at the same time, the
cessarily followstliat no single, or joint system of education can serve the
best interests of ùoth White. or European, and African children; that
no teacher with a European background and a European cultural
heritage can be a tme educator of children with an African background
and an African ciiltural heritage. and vice uersa; and that no single, or
so-called "integrated" school or çlass can properly serve the interests of
both European and African children. In this respect the following
statement by W. C. Taylor with regard to education in Liberia is of
particular significance:
"Teaching of American and European childrenin the same schools
and classes as the Liberian children is im#racticable, owing to the
language bartier and to the uery large differences in the children's
age in the first grade of the Liberian schoolsis 14as compared with
6 in the American and European school. For this reason alone, the
classes could not be integrated. A school building is provided for
educating the children of the American and European staff 2."
(Italics addecl.)
62.In the light of the above considerations and Respondent's ex-
tensive experienor. of multi-group interests and needs, both in South
Africa and in South West Africa, it is Respondent's firm belief that it
would be failing in its duty under the Mandate if it were to abolish its
substitute for it schools which will be open to al1the groups. Not only
would such a system lead to dissatisfaction and group friction, but it
would also result in the neglect of the needs of al1 the groups and in
irreparable harm to the Temtory as a whole.
B. Circumstancesand Considerationsaffectingthe Question of Expenditure
on, and the Provision of Particular Educational Facilities for, the Various
Population Groups
63. Particulars of expenditure on the education of the Sative and
Whitc population groups of South \Vest Africa are given in Chapters V
and VI1 hereinaft,:~. It\vil1be observed from such particulars that ever-
increasing amounis have o\.cr thc !.cars been spent on the education of
each of the group. and that expenditure per pupil in each aroup has
UnescaiEDir80. para. (h). p. 8. Vidcpar58. supvn.
Taylor, W. C.. The Fiv~stac Opevafias in Libni(1959),p. 76. COUNTER-XEMORI OAFSOUTH AFRICA 383
also risen steadily. It will further be observed that, on a relative basis
of comparison, more has been spent on European education than on
Native education, and that more has been spent on Native education
in the Police Zone than in the areas beyond that Zone.
Various factors relating to the question of ex enditure on, and the
provision of particular educationai acilities for, tEe different population
voups, will be dealt with in Chapters V and VII. In this Chapter it is
intended to deai with only one basic aspect of the problem, namely
the question of educational expenditure as seen against the background
of development of the Territory as a whole, and of the economicstatus
and level of advancement of each ofthe population groups.
64. The differences in the social and economic levels of development
of the various pouulation mouus in South West Africa have at al1times
had a governiig*influencë on-the educational requirements of the re-
spective groups, and consequently also on the expenditure involved in
providing therefor.
In the case of the White erou~. with its lone tradition of education.
it was only natural that thvereShould from tuheoutset have been an
almost universal demand for education for its children, and that the
demand should over the years have increased with regard both to the
quantity and the quality of educational facilities. Moreover, with its
dynamic and progressive economy, the White gmup was able not only
to generate more wealth than the traditional economies of the indigen-
ous groups. but also to provide better opportunities for employment
and other wealth-earning potentialities, which in turn served as an in-
centive forthe advancement of its children in education.
In the circumstances it was natural. and almost inevitable. that the
demand for educntion on the part of the \!'hite group should; iiot only
iii the interestof t1i:igroup. I)iit;ilswitli n view to the de<~elopment
of th,: 'Cerritoas a \vhble have bezn acceded to b\. l'<eir>ondciit.
In the casé of the indigenous groups, howevér. thé situation was
vastly different. There was, on their part, not only an absence of an
tion-bound economies, also of those qualities and incentives whichtradi-
characterize a modern economy and which make for the creation of
economic opportunities and potentialities. It was for these reasons. inter
alia,that the education of the indigenous groups could initially best be
leftmainly in the hands of missionaries who could, in conjunction with
their primary task of teaching religion, best inculcate in the children of
these moups the desire for education.
It has oily been in recent years that it has been possible for Respon-
dent to assume a major share of responsibility in this sphere, especially
as regards thenorthein parts of the Territory.
65. Respondent was virtually compelled to adopt the course .afore-
stated by the facts of the situation as it tound them on taking over
control of South West Africa: and such course in turn regulated the
application of funds in providing educational facilities for the different
position that al1groupç should at al1points of time be treated equally
in the allocation of funds-also in the educational field-would have
been completely artificial in the circumstances of the Territory. It would
not only have operated in disregard of the needs of the different popu-384 SOUTH WEST AFRICA
lation groups. but would have prevented any reai progress on the part
of any of them.
peoples, and Hespondent's own efforts in that regard particularly inous
more recent years. have brought about considerable advancement of
these peoples, the differeiices between the various groups, for example
in economic outlook, stiii exist. althongh to a lwer degree. One of
the greatest problems in promoting provess among the non-White
groups arises from the difliculty of altering their traditional attitude
towards organized and regular work. Realizing that the educational
advancement of these groups. as in the case of the White group, must
go hand in hand with their economic and social progress, Res ndent
1sactively engaged in what might well be calied the ecoiiomic excation
of the non-White groups-i.e., encouraging them to make use of the
opportunities wluch are broqht about in the development and im-
provement of their economic lile. which in tum will stimulate a desire
for more advanced education aiid, at the same time, increase their
capacity tocontribute towards the education of their children.
67. The planning of educational facilities for a community against
the social and economic conditions of its members a pears to be in
accord generally witb modern tliinking on the subject. fhus, in a paper
repared for the guidance of the Conference of African States on the
bevelopment of Education in Afnca (Addis Ababa, May 1961). Pro-
fesser W. Brand. Professor of Economics at the University of Leyden,
--.-, ...~r ..~....
"lt should be appreciated that in planning the expansion of educa-
tion.,variouc alternritive routes may be followeddepending upon the
wliticnl. rconomic and social climate and other factors '.'
After surveying various factors which may influence expenditure on
education, he said:
"This list of factors rliich needs to hc weigtied in costing an edu-
cational plart isnot ineant to tieexhausti\~e. but isgivcn to emphasize
that different choices exist in attaining certain educational goals.
Wliat means will bemost feasible willdepend to a large extent upon
rhe circumstances prevailiiil: iii a pnrticuiar country 2."
And development b; stages in an -society. and especially in under-
developed societies, has been stresselin the following terms in a recent
United Nations report on the World Social Situation:
"As a nile, economic and social factors complement or support
each other iri the objective process of development. With certain ex-
ceptions, and in varying degrees, progress in any one field(industry,
transportation. education, labour, welfare, health, etc.) tends to be
held back by failure to advance in other fields 3."
"The General Assembly of the United Nations, as well as the
Economic and Social Council and its Social Commission, have
adopted a number of resolutions in recent years em@asizing the
im#ortanceof 'balanccd'and 'integraled'socialand cconomicdeuelop-
' UnescolED/r81. Annex IV.p. 32.
' IM.. p. 33.
U.N. Dm. E[C1i.51j46/Rev. I.ST/SOA(4z. p. 96. COUNTER-MEMORIAL OF SOUTH AFRICA 385
mcnt and urgingthal action in lhesclwo fias go 'hand in hand' '."
(Italics added.)
While the idea of balanced development stresses the complementary
aspect of the relationship between social and economic advancement
at different stages of general development, it also lays emphasis on
balance in respect of available resources-it allows for the competitive
aspect in allocating resources. Sa,for example, it is pointed out in the
report that-
". .. there is also competition amongsectorsand [between economic
and social objectives] for the expenditure of availahle resources-
com~etition far monev and manpower. particularly skiUedmanpower
-sÔthat in this respéctprogrecs in one fieldcan hamper progiess in
other fields.. . Similarly,in thecaseof publicexpenditures, thereare
bits to investment in a given fieldbeyond which further investment
wiUappearto have. broadly considered, a negative net effect '."
Looking at the same problem mainly from the educational point of
view, another body of United Nations experts recently formulated their
findings with regard to progress in Non-Self-Governing Territories in
the foUowingterms:
"It mav he noted that the less develowd the Territorv is, the
grrater th;:need for concentr:iting resour<cs on the ba~iciconomic
stmcture (communications. agriciilture, etc.), su lhut propress in
edliuratio?rns/ruicesis likrlvIo be sloacst in arcas wkre the needis
greatest'." (Italics added.).
68.Colour and racial origin,#o se do not determine the distribution
of educational facilities or differential expenditures on education in
South West Africa. In other countries in Africa particular local cir-
cumstances. economic conditions and historical deve!opments hve
brought about similar differences in the education of African population
grouqs.,
This is weUiilustrated in an article by Phillip J. Foster published in
the October 1962 issueof the ComparativeEducationRnnm.
The author States, inter alia:
". .. it wili be indicated that regional inequalities in provision of
schools are uirtr&alliyneuilablein areas where therehas heen a diun-
ential internalrate of economicand sociai change. This has been the
case in virtually every African territory..."' (Italics added.)
After a survey of the historical development of certain of the,ethnic
country by 1948, tas fouows:descnbes the position of education m that
"By 1948 the geographical pattern of inequality was very clear.
The proportion of the popuiation with six years of education or more
stoodat5.8percent. in the Colony,3.9percent. in Ashanti,'but only
0.21 Fr cent. in the Norihem Temtories. The contmuing close
association between education and urbanization processes stood
' Ibid.. p96./CN. 51346IRev .,ST/SOA/42 p.. 23.
' U.N. Doc. STITRIISER.A)I.~IV O.~..37.
Poster.P. J.."Ethnicity and tùc Schoob in Ghana", ComparetiorEducniia
Rmiew, Vol.6.NO. z (Ott.1961).p. 128.386 SOUTH WEST AFRICA
out very c1e;irly;average education levels in the larger towns were
between two and three times that for the population as a whole.
This kind a/ rctureis commonenoughin most+arts of Africa and
is inevitable!:fon'gas localrates of socialand economicchangedifler
somarkedly '." (Italics added.)
The author states further:
"During the colonial pexiod, low levels of education among parti-
cular ethnic goups did not necessarily militate to their diiadvantage,
but there is riowa belated recognition by some of these groups, par-
ticularlyin tlienorth, that ethnic demands for educational parity in
the schools niust be asserted if they are to achieve their share of the
'commanding:heights' in the new polity. Consequently,the present
government /us had to face the criticism that it has discriminated
againsl certain ethnicminorities in the provision O/ education.That
such criticisnis are largely unjustified in view of the historical evolu-
tion of Ghana is beside the point. Inequalities do enist and provide
powerfui wezrponsin the hands of separatist or regionaiist political
leaders 2." (Italics added.)
And alter anaiysing certain statutes, he states:
"Tliough spaci precludes lulier analysii of the J:ita, there is little
doubr rhat apparent ethriic inequalities are almost entirely explain-
able in termr, of these other v~riations in student background. 'îhis
type of evidence accords \\.el1with Our general hypothesis that
ethnic iiiequalities stem largely from diiferential interiial rates of
socialand ec(inomicchanrreand are not arrrihurat~le 10 the o~erations
of ethnic factorsper se 3."
And later, in conclusion:
"It may be possible to indicate very rational causes for such in-
equalitv but such exulanations do not satisfv ethnic minorities who
~érceifethe issue asÔneof discrimination. .'
l'erhaps the peatest tragcdy is tliat the inimediate requircments
Ior masrm:il-ecoiioriiiccro\r.th somrtirncs suggesttli:iirit:qualitiesin
educational urovision are not disastrous and are themselves a
nçiessarv. if'tempor~ry. corollary of development. Efowever. such
judgments do not determine the nature 01 educational expansion
;iricmn oura rato the political aspirations 01the masses. For them
parity of acccssand the universal diffusion of formal education is the
point ar issue. Indeed. political demaiids so frequeiitly mn counter
to actual development Ïequirements )."
69. The "tragedy" referred to by this author in the quotation above
results inevitably from differences in the tempo of development between
groups with a dynamic progressive economy and outlook, and other
groupswhich,forreasons often beyond the control of any administration,
are still tradition-orientated and live in a relatively static economy.
In South West Affica, during the entire period before the SecondWorld
War,when the economic situation of the Temtory was such that avail-
1Foster, P. J., "Ethnicity and the Schaols in Ghana",ConrporafivEducatim
Review. Vol.6. No. 2 (Oct. ,962). p. 129.
Ibid.. p130.
3Ibid.. p134. COUNTER-MEMORIAL OF SOUTH AFRICA 387
able funds wese severely limited. it was essential for Respondent to bear
this fact and the foregoing considerations constantly in mind when
determining the amounts that could with advantage be invested in the
education of the various population groups.
In the main the problem as at that phase can be said to haye con-
cemed the awakening amongst the greater portion of the ~ndigenous
population of a desire to receive even elementary education. in contrast
with an almost universal dernand and ne- for relatively advanced
educational facilities on the part of the White population group. Since
the war the financial position has improved considerably, and there
has been a general increase in the interest shown in education by the
members of the Native groups. Nevertheless,; aspects of the ab0v.e
considerations have stiii. and perhaps now particularly, to be borne
mind. Of special importance at this stage of development are the con-
siderations of "limits ...beyond which further investment ... have. ..
' negative net effect" l, and of co-ordination between educational and
economic advancement, with a view to rendering available suitable
employment opportunities for members of the non-White groups at
various stages of educational progress 2.These considerations require
to be taken into account not only in determining the total amount that
can be expended on education in competition with other phases of the
development progr9me. but also in aiiocating amounts to various
aspects of the educationalprogramme itself.
70. The need for maintaining "balanced socio-economicdevelopment,
is iilustrated by the contemporary problem in many underdeveloped
countries of finding employment for the growing number of the "edu-
c~~ed". and of ada~t.nr:~.ducational ~olicv to domestic needs. In this
conneciion a croup of wcll-known sctioijrs hai recently. ina publication
entitled The /:'merfingNalions, strcssed the poiiit thnt-
"The dangers of training iiien inappropriütely arc as gredt as the
dancers of riot trainina them at 211.li education:il goals, cumcula,
and-procedures base' on the practices O/ develoqédsocielies are
applied haslily to underdevelo9edareas. the result zs lzkely to be a
class of educatedunemployables who may be the most +srwplive,ele-
mentin a transilionalsocietv.To be effective in develo~inr:the hnds
of humxn capital most n&ded. technic:il assist;incc'experts in al1
fieldsmust have a rleepanderstandrn~no/onlyof theeconomicbutalso
01 thesocialand callur~lneeds O/th?aeob'e in thecountriesto which
they are assigned j." (Italics added.)'
71. In this context also Professor W. Arthur Lewis, Principal of the
University CoUegeof the West Indies. has made the fouowing observa-
tions:
"Apart from its cost,universalprimary education, if attained with
speed, raises problems of absorption. In a community where only
20percent. of children enter pnmary school. and only IO per cent.
finish the course, the demand for primary school graduates is such
Nha.Vide U.N. Doc. E/CN. 513461Rev r. ST/SOA/.+z.p.96, quotedin para.67.
--. Vide para.66, supra.
' Millikan. M. F. and.Blackmcr. L. M. (eds.),The Emnging Noiionn: Their
Gmwth and United StatePsolicy (1961). p117.388 SOUTH WEST AFRICA
that thev command considerable salaries in white colla iobs. If the
numbcr éntcring primari school is pushed up from ;IO bo Gr cent:
of the age group withm ten Yeats. as has happened in some West
African couiitnes. the result is frustration. The childrzn wurine out
of the primary schools look to the town for clerical jobs, ana are
disappointecl when they do not bd employment. The towns iill up
with disconlented youths, faster than houses, jobs, water supplies,
orother amenities can be provided. and wban slums and delinquents
multiply while the countryside is starved of young talent l."
And later:
"The 1imil:edabsorptive capauty of most West African economies
today-especially the backwardness of agriculture-makes lm-
trationanddislocation inevitableif more than 50percent. of children
enter school. This, coupled with the high cost due to the high ratio of
teachers' salaries to average national income. and with the time it
takes to train large numbers of teachen properly, has taught some
African countries 10firoceedwilh cautia-to set the goaO/ universal
schoolingtwenty years ahead or more ratherthan the len years ahead
orless which wasassociatedwith the t.rs1.ushof indeaendencemove-
metiis. This decision is highly controversial 'to tiose for whom
literacy is a iini\~ersalhumnn right irrespective ofcost. to those who
feeltliatitisbetter to be tauetit bv untrained talchers than not to be
taught at all, and also to th&e who see in the frustrations generated
by incapacity of the current social fabric to absorb the very stuff
which will rlromote needed change raoidlv. On the other hand.
children age66 tonrqoare in szhool. a goal of jo percent. wvithinten
years ma). b? lield to constitute revolutionary progress'." (Italics
added.)
72. In South West Africa the position is, generaüy. that the demand
for educated non-Whites in certain professions and vocations has not
teachers, nurses. policemen and civil servants among al1the non-Whitequalified
groups. This shortage is largely due to the slow response of these oups
to education, owing, no doubt. to the absence of a keen feeling orYthe
need for such servicesat their present stage of socialevolution.
To overcome the problem to some extent, Respondent has been
obliged to accept lower qualifications for such posts than those pre-
scribed for corresponding posts in the case of the White group. So, for
example, despite all efforts made and encouragement given in the past
to raise the qualifications of Native teachen, the Native grou s are at
present to a large extent still served, as far as the education ofchiidren
in primary schools is concemed. by teachen who have only passed
Standard VI plus a teachers' training course. while the White group is
served by teachers who have passed Standard X plus a teachers' training
course. or who are in possession of a university de ee And, because
the Native teacher is not so weUqualified as the Fo10wed or White
teacher. he natur;dly commands a lower salary than those whose educa-
tion has cost more.
' Lewis. W. A.. "Education and Ewnomic Developmcnt". Ouars. QuartmIy.
Vol. 2.No. 8 (Dec.1961)p. 233. COUNTER-MEMORIAL OF SOUTH AFRICA 389
Another consideration ta which weight has had ta be given is that a
teacher's salary should bear a relationship to the normal income of
other mernbers of his group soas to ensure that he does not become '
separated, or estranged, from them as a result of an artificial financial
baisier. When this happens, the teacher ceases to be able to exercise
the required iduence over his own people, and accordingly fails be
an effective instrument in advancing their spiritual and matenal pro-
gress. As the socio-econornic structures within the Native groups are
..i~l~ ~ much lower levels of deveio~ment than those within the White
oup, it &-inevitable that their t&slizrs should at present comrnînd
Ker remuneration than the teachers of the Whitegroup. In thisregard
the Coloured groups occupy an intermediate posi?ion; in accordince
with their socio-ecanomiclevek of development.
73. European Powers adrninistering other African Temtones en-
countered problems similar to those experienced by Respondent re ard
ing scales for govemment servants, and, more particularly. for ahitè
and non-White teachers and civil servants.
The Commission which conducteù an investigation into the structure,
remuneration and superannuation arrangements of the civil services of
Kenya. Tanganyika, Uganda and Zanzibar in 1947-1948.reported, inter
alia, that, in formuiating scales of salary, govemments cannoignore
ideology, disrupt the economies of their countries by paying salanes
which are out of all proportion to those paid for similar work in out-
side employment. that regard shouid be had to relevant local circum-
stances, such as, cg., the ruiing incorne levels amongst those classes
from which public servants are recruited, and that at least some of the
differences in salaries paid to Eurons and Asians, on the one hand,
and to Africans, on the other hancested not on racial but on other
and more fundamental grounds '.
Some idea of the differential %alerecommended by the Commission
rnay be gained from the following table of grades and salary SC+
proposed by the Commission for the suggested general and clerical
divisions of the civil service in Kenya, Tanganyika and Uga2:a
Ewropcan Arion Atncan
£ L
- 75 x 3-90'x 3-108
"I' 1 295 X 22.5-565 180 X 10-240X 100x 6-136'X
15-3'5.X '5-375 6-172
580x 20-720 390 X 15-450 154x 6-178x
9.223.x 9-268
IZI 740x 20-800 450 x 20-550 276x 12-348
*Etfr&ncyBrrr
' Vida RcpWIof Ihc Commission oTh Civil Scniicof Kenya. Tanganyika.
Vgnnda and Zadar 1947-1948C.olonial No.213,paras,.77-87,pp. 14-26.
' W., para.lm,pp. 29-30,390 SOUTH WEST AFRlCA
74. A policy of promoting balanced growth for the respective popu-
lation groups of South West Africa-the only policy which can. in the
light of Respondent's experience, reaily roduce lasting results-must,
in the particular circumstances of the T%ritory and of its people, in-
evitably bring a5out differences in the amounts spent on the education
of the various groups and in the facilities provided for them. This is the
natural and inevitable reçult of the many differences between these
groups, riifferences in stages of developmënt, in social. economic and
educational needs. and in their desire for education for their children.
General progriss and advancement of the various groups will gradu-
allv and ~roerejsivelv brine about increased and better educational
fachties forthe rion-White &ups, withresultant increases of educational
exoenditure on !suchmoups, thereby reducing the margin of difference
C. CompulsoryEducation
75. Education in South West Africa is free for alichildren who
attend school-:European, Coloured and Native-and is also compul-
sory for al1European children in the Temtory.
Although it is Respondent's desire and aim to make education com-
puisory for aüclddren in the Temtory. it has as yet not been advisable
or practicable to do so in respect of the children of the Coloured and
Native groups.
In Respondent's experience it is only when a group or community
has reached a stage where it feels the need for education. when it realizes
that its youth needs to be educated to equip it for the role which it has
to play in the lifeof the group, and when it isprepared to make education
part of its life, that compuisory educationcan usefully be introduced for
such a group. Premature measures of compulsion can only cause hardship
and resentment, and thus retard progress.
76. At the inception of the Mandate the three sections of the White
groupAfnkaans. English and German-were at a stage of educational
development which rendered them eager and active in the promotion of
education for tlieir children. Even during the German regime there
existed a form of compulsion for the education of European children '.
And for the White South Africans who came ta the Temtory during and
after the First World War, the system of compulsory education was
nothing new.
In the South West Africa Education Proclamation of Igzr (and
also in the Proclamation of 1926 '.which superseded it), provision was
made for compulsory education for al1 European children between
the ages of 7 and 16.Save that exemption could be granted to children
who had passed Standard VI before their sixteenth birthday and who
were engaged in regular employment. It was. however. realized at the
' Vidr Chap. II. paraIO,suprn.
zgr5-x9îz. p.655.of rgzI (S.W.A.). se69 (o). in Thc LawsofSouth West Africa
Proc.No. 16 of ,926(S.W.A.). sec87. inLawr of SouthWest Africa.Vol. II
(1923.1927). p286. COUNTER-MEMORIAL OF SOUTH AFRICA 391
time that it would be difficult to apply the law strictly, and provision
was accordingly also made for exemptions in cases where parents could
not afford to send their children to distant schools, or.to pay for th&
boarding. Subsequent events proved that for someyears ta comeit would
not be possible to achieve in full the purpose of the law. During the
di5cult years after the First World War, many parents could not afford
ta sendtheir children ta school, and in 1923,for example, between 1,600
and 1,700 European chiidren of school-going age were not at school.
With the development of the Territory this number graduaily decreased,
but during the severe economic depression of the 1930s the number
aeain increased. In 1432. there were 682 Euro~ean chiidren of school-
goiiig age not at schodrand itwas only in the laie 1930s.after conditions
iri tlie 'l'erritohîd greatly impro\.e<l.that ifbzcamz possible to :ichcve
the ultimate purpose of the coÏnpulsory education law, namely to have
ail European children of school-going age at school '.
77. The aforementioned statutory provisions remained in force untii
1955, when the minimum scholastic attainment for exemption from
compulsory attendance was raised frûm Standard VI to Standard VI11 Z.
Development over the years had made this change not only possible,
but also necessary in the interests ofthe country as a whole. For a long
time a Standard VI certificate had given Europeans access ta various
fairly remunerative fields of employment, but this situation graduaiiy
chanaed, especiallv after the Second World War. and in t'me there
remahed h&dly any worthwhile employment open to th&e whopossessed
no more than a Standard VI certificate. The raising in 1955of the scho-
lastic attainment for exemption from compulsory schoolattendance was
to enable voune men and women better to ~~ld their.own in a modern
post-war ;ociei{, which provided increased opportunitics of employment
for Europcans ivith higher educational qualificatioris. The White group
welcornedthe new orovision. It has caused iio rra1 hardshir, and criminal
proceedings to enfÔrceit occur only by way of rare excepiion.
78. In the case of the Coloured group, more than 80 percent. of ali
children of school-e~.ne ..e-at oresent attend school. and the numbers
are increasing e\.cry ycar. .I'he;.eis. howwer. still large mesure, of
early school-leaving. Ascording to the report of tlie 1958 Commission
of Inquiry into Son-European Education. this is due, >ntu alla, to lai:k
of interest ancl ambition on tlie part of pupils anclpoor parental control
and Iack of encouragement '.
The Commission \vas requested bv the South West Africai Coloured
Teachers Association to Gcommend the introduction of compuls?ry
education for Coloured children, save for those who attend mission
schools *. The Commission suggested that the initiative in the matter
be left to Coloured school boards, the establishment of which it recom-
mended 5.
' Lemmer. op. cil.. p. 159.
Proc. No. r6 of 1926 (S.W.A.). sec87 (r) (c) assubotituted by Ovd. No.
1955VideUReportvof theCommission of InpuiryinloNon-European Edw=Iiol>286ia
Wcsl Atrica (1958), Part II. para. Kizg.p.42.
' Ibid.. para. K1r5 (j). p. 38.
' Ibid.. para. K236, p. 81.392 SOUTH WEST AFRlCA
The new Ediication Ordinance of 1962 1 gives the Admhistrator
the power to introduce, on the recommendation of the Department.
compuisory edusation at any state school for Coloured diildren 2..
Having regard to their present rate of advancement and with the
growing demands of economic life in the Temtory, it seems reasonable
to exoect that the Coloured oeoole will before lone show themselves
suffic&ntly convinced of the vhuêof educatiqn to dow of the success-
ful introduction of compulsory education for aüColoured cùiidren.
79. For the Native &oup;of South West Africa there is no system
of com~uisorv education. and at no time in the oast has it been oossibie
to intrhduce ;uci a systbm.
The position as it exists at present must be viewed against the back-
mound of the Icvel of civiluation and develooment of the indicenous
&oupsat the tim.: when Kespondent berne reCponsiblefor the a&inis-
tration of South Wat Afnca. and in the light of the historical develop
ment of education amongst the various Native groups '.
For reasons wluch have largely been indicated, the extension of educa-
tion to the various indigenous groups was a slow and difficuit process.
There were numerous obstacles in the path of progress. some of which
have even now not been entirely overcome. The various difficuities
eneountered by the missions, and in time also by the Administration.
as it began ta ~:stablish government schools for Native diildren, are
dealt with in Chapter V below '.
80. When the 1958 Commission of Inquiry into Non-European
Education in South West Africa conducted its hearings, none of the
Native groups ~.equested it to recommend the introduction of com-
pulsory education. The Commission considered that Native parent
communities haii reached a stage of development where they couid,
with assistance from the Education Department, be entrusted with the
local control of their own schools. and that the initiative in the matter
of compulsory education should 'be left to Native school boards, the
establishment of which it recommended. The Commission's recommen-
dationsin regard to compulsory education read as fouows:
"l. , that the Education Deoartment should not take the initiative in
introducing compulsory attendanse at Sative schools:
(b) that it!;liouldbe left to every school board to decide whether it
wants to introduce compdsory attendance at the schools
within its province with due regard to the facilities available;
(c) that the co-operation of school boards should be obtained to
ensnre regular attendance by cùiidrenonce enrolied 5".
81. With regard to the northern temitories outside the Police Zone,
no one has ever senously suggested that education couid at any time
in the Fast have been made compuisory. In reply to an enquiry by the
Adminiçtration in 1961 as to whether compuisory education couid
possibly be introduced in the northem territones, the Finnish Mission
' Ovd. No.27 of1962 (S.W.A. );e Chap.III. para. 5. supra.
' Ord. No.27 of1962 (S.W.A. se.c97 (2).inOmo1 Golrtts Eztrnordinary of
So'iVide para.6.rïprs.z+rj (4July 1962)p.. 911.
' Vide Chap.V, bras. 2-30.infra.
' Report of the (;ommirriaof Inguiryinlo Non-Europcan Education in South
West Africo (1958)P.art1.para.Bi36.pp.132-133. COUNTER-MEMORIALOF SOUTH AFRICA 393
replied: "Not yet in the Okavango. Before the community rcaches a
certain stageof development it is not possible ar advjsable'."Kegarding
the position in Ovamboland. the Finnisli >lisson said:
"CompSory aducation is not yet practicable because the supprt
of a maiority of the wpulation isnecessani for such a step. As for the
future.-and- with a-v;ew to its ~ossiblekventual introduction. an
&perikent couid perhaps be made in respect of certain schoolboard
districts to test the practicability thereof '." (Translated from
Afrikaans.)
In the Police Zone. too. circumstances have in the past never been
such thar any systemof compulser education could siccessfully have
not send their chüdren to school,even when schoolsareofavailable nearby.
for no other reason than that they do not want to do so and see no good
in schools. Likewise there are many who allow their children to go to
scliool. but take them out aeain asoften as thes need their services at
home, or as soon as they coisider them old enough to go out to work.
It may be suggested that this isthe very reason why education +ould be
made com~ulsorv. but exwnence has taupht the Administration that
the ~ativc'~oii~s in the ~erritor~ are genefilly of a constrvntive nature,
and that thcy resent being forced into anything they do not know. In the
liaht of its exwnence. the Administration has no doubt chat any system
o~comoulsor~ education. unless it can be introduced with the consent of
the ~itive &oup conceked and with full appreciation on its part of
what it will entail, will inevitably lead to dissatisfaction and probably
also destrov much of the -ood work that has been done ui the ~ast.
82. Requests for compulsory education have o~casionally,in the past
been received from Native arents. But almost invariably it appeared
tion wouid place on themselves the burden of seeing to it that theira-
children attended school regularly, and that their failure in that regard
wouid make them subject to penalties at law. As an illustration may
be cited a request for compulsory education which was put to the Chief
Inspector of Schools and the Chief Bantu Affairs Commissioner at a
Herero tribal meeting in the Waterberg Rese~e,during October 1960.
The Natives present were taken aback at the idea that compulsory
education entailed the punishment of parents who failed to send thex
children to school without lawfd exnise. The Chief Inspector then
suggested that the Reserve Board indicate centres in the Waterber
East area where a number of smd schools couid be built which woui 8
be within easy reach of aü children in the are.. and that by way of
experiment a system then be introduced whereunder parents who faded
The Reserve Board was asked to consider the suggestions made vd toard.
inform the authorities of their decision. Noreply has as yet been receiv-.
The Administration is prepared to introduce compuiso~~edu~tion
wherever and whenever or',ti~ ~le. but untd such time as it ISsatisfied
that cornmunitics in any partidar area desire the introduction
of such a scheme and fuily a~preciate what it entails. its introduction can
only create hardship and câïse resentment,
' Departmental information.394 SOUTH WEST AFRICA
83. Quite apart from ail that has been said above, there has at au
times been,and there stillis, an insurmountable obstacle to universal com-
pulsory educatioii. This is the scarcity of teachers, which has atalltimes
hampered the extension of Native education 1. The position in 1960 in
the Territory, excluding the Eastern Caprivi Zipfel. may be taken as an
example. In thac year, on the assumption that children of school age
constitute 23percent. of the total population 2, there would have been
4,929 Native children of school age. In the same year there were 1,074
!IUand part-time teachers, and 37,801 childreti actually at school. If it
is assurnecithat 1.074 teachers could cope with 37,801 pupils '.it follows
that 2,698teachers would have been required to teach the whole school-
goingpopulation of 94,929pupils: i.e.. an additional 1,624teachers would
have had to be found. The supply of teachers at present available is
barelv able to co~e with the ~u~ilsenrolled. and this in itself renders
unreaiistic any sGgestion tha't tkere should,'or can, be universal com-
puison/ educatioii. There cannot be anv virtue in having a provision for
compÜlsory education on the statute book when it cannof possibly be
implemented.
84. The A(lininistration is ne\,erttieless anxious to iritroduce some
form of compuls~iryeducation for Sative children on a regional basis at
the enrliest tio:siole moment. It is tioned thnt i\vil1In?oossible to do so
in selected 'areas as the position in'regard to teacheg might permit,
and as the Native school committees and school boards become firmly
estabiished in their areas of jurisdiction, when their members can, by
virtue of their leading positions and the active role which tbey play in
the promotion of education, create such a favowable attitude towards
schools and educ:ition in general aswillenswe the successful introduction
of compulsory echoolingin theu areas.
The new Education Ordinance of 1962' contains no provisions in
regard to compidsory education for Native children. The attitude of
the authorities i:; that it will be time enough, and an easy matter, to
ampiify the law when the Native groups show themselves ready for
the introduction of a system of compulsory education.
85. Despite aUthe difficulties encountered, steady progress has been
made in the fieldof Native education. During the last ten years especiaUy
progress has been substantial, and in 1961 approximately 44 per cent.
of the school-age Native children in the Temtory were enroued at
schoo15. Serious difficulties still remain, but the foundations for sound
and more rapid development in future have now been firmly laid, as has
been indicated above. Of particular importance in this regard are: the
development proiect of the majorNative languages as teaching languages,
so that more pupils wiUbe taught in their home language by teachers of
their own group 5 the introduction of syuabuses adapted to the needs
and backgrounds of the various groups 7; and the O portunity for Native
parents to serve on the school committees and koa'rds which control
' Vide Chap. V. paras.22-30infra.
Ibid..para. 57.
An assumption which involves an average of about 35 pupiis per teacher
'Ord. No.27 of ,962(S.W.A.); nideChap. III. para. 5. su+.
' VidaChap. TTgara. 58. infra.
Vide para.19, :iuprn.
' Ibid.,paras.29-30. COUNTER-MEMOR IF SOUTH AFRICA 395
commuiiity sçtiool~,and thereby to t>etrained to takesn;icti\.epin the
education of tlieir childr'.Kes1)ondentfirmlv believes ttiat the Sative
groups will henceforth progress iapidly towaids the stage where they
themselves will feel the need to introduce a system of compulsory
education in theu own schools.
II. COMPULSOR EDUCATIO NN OTHERSTATES INAFRICA
(a) Sodh Africa
86. In South Africa it took two and a half centuries of educational
development before school attendance was, after the turn of the nine-
teenth century, made compulsory for European children. Previously
the widely scattered White settlements, and an insufficiently strong
pelic opinion in favour thereof, had made attempts to promote the
pnnciple of compuisory education abortive. Today the principle appiies
to its fullest extent to the Whitegroup in South Afnca,and prosecutions
of parents for faiiing to sendtheir children to school are almost unknown.
This can. in Res~ondent's view. be ascribed 1ar.eelvto the fact that the
system was not htroduced until social and eco%&c conditions. as well
as a sufficient measure of favourable public opinion, made it practicable
to do so.
87. The conditions which made it practicable to introduce com-
pulsory education for the White group in South Africa do not yet exist
to a sufficient extent in the case of the Coloured people to justify the
introduction of universal compulsory education for them.
Many Colouredparentsarenot yet converted to the idea ofcompulsory
education. And for some thereare also financial difficultiesinvolved.
However, schooiing has been made compulsory for Coloured chiidren
in certain areas where there is a demand for it and where circumstances
permit. A steady increase in the number of Coloured pupils, especiaily
over the last ten ears, indicates that the system can gradually be ex-
tended also to otxer areas until it can eventuaily with advantage be
made of application to al1Coloured children in South Africa.
88. For the Bantu mou~s in South Africa there is asvet no urovision
for compulsory educ~tioi ~he same basic factors w6i. go;em and
retard Native education in South West Africa have been evident in their
case. Although greater progress lias bten made by tfiemin overconiing
the dificulties involved. tlieir stage of dcvclopment, social and economic,
still rcnders compulsory school attendanze premature as a general
measure. and consëouenilv,no ~rovision was made therefor in the~Bantu
ducati ib Act of 14~~.
As regards progress made towards the achievement of the ideal, it
may briefly be noted that the number of Bantu pupils in, state and
state-aided schools in South Africa increased from 56.845 ln 1917 to
747,026 in IgSo, and to 1,500,ooo in 1961. In addition, there are at
present approximately go.ooopupils inunaidedchurch schools.The Bantu
literacy rate in South Africa, which was z1.8 percent. in 1952 rose to
in the Republic were able to read and write. The present Southantu
' Vide paras4%and 43.3g6 SOUTH WEST AFRlCA
African Bantu literacy rate is the highest in Ahica 1. It is expected
that therate wili rise to go per cent. within the next generation and
that at the closeof the century racticaüy ali the Bantu in South Africa
will be able to i.ead and write .'In 1960, as was pointed out above 3,
about 60 per cerit. of all Bantu children between the ages of 7 and 16
attended school.
In at least certain areas in South Africa the goal of compulsory edu-
cation for the Bantu has almost been attained. So, for exam le. in
deaiing with theTranskei the most advanced Bantu homeland in &h-
Africa. where the temtorial authority is about to assume responsibility
for control of educational policy and senices, Mr. F. J. de Villiers, a
former Secretary for Bantu Education in South Africa. after quoting
statistics of enrolment, said:
"If the Tianskeian Territorial Authority, therefore. should assume
control of primary school education in the near future. as it well
might uridergovernrnent policy, it will bein a fair position to enforce
conipulsory attendance for the age-group 7-14)'cars,at least in those
school boani areas that are asking for it '."
@) Otfm AfricanStates
(i) Generally
89. In general, the factors which have hitherto impeded the imple-
mentation of a policy of compulsory education for the cNdren of the
Native groups in South West Africa and for the chiidsen of the Bantu
groups in South Africa are basicaily similar to those experienced by
educational authorities in other parts of Africa.
As regards the immediate pst-war period, Lord Hailey says, inlm
dia :
"Some te:mtories are now coming in sight of a system of uniyers.
education. Tt has been made compulsory for Asian boys in Nairobi.
Mombasa, and Kisumu. In Nyasaiand and Tanganyika enrolment is
optional, but the attendance of children once enrolied is compulsory.
Northem Rbodesia in 1943introduced compuisory education in the
Broken Hill, Choma and Livingstone areas for chiidren from 12 to
16 living within three miles of a school. It will. however, be realized
that the efficacyof any such regulation depends on the maintenance
of an efficient body of School Attendance officers,a class that is not
readily secured in present conditions in Africa '."
Athe author says:h certain temtories where educational fees are charged,
"It has to be remembered that, except in the fom of experiments
Repuhlic afSouth Afnca.:,962.pp.i899;invidealsoU.N.atDoc. EICN. 513241Rev. r.
STI*OVidc Sfolr of .SouthAfricoop.cil.p. 90.
' Vidcpara. 39. supra.
'de Villiers. F. J.. Bontu Educntion; W~the Moncy Coms from-and Wherc il
Gwr (An Addra on the Financing of Bantu Education delivered at theAnnual
Council Meeti-n of the S.A. InstituteRace Relations at Cape Town on 18 Jan
196,).p.ro.
Lord Hailey. .4n Afvicnn Surv~: Revised 1956 (1957). p1169. COUNTER-MEMORIALOF SOUTH AFRICA 397
in ümjted areas, compulsory education of Afncans does not reaily
exist. and that as children assist their parents in the house and
'garden' they are not willingly spared for long periods '."
go. In discussing the difficulties encountered by various administra-
tions in th& efforts to attain the ideal of universal and comp%ofy
education, the compiiers of ProgressoftheNon-Selsoucrning Tmtorres
under theChartm.Volume 4, EducntionnlConditions,make the following
observations:
"Apart from hancial aspects,a broader range of economicfactors
tended to impede progress towards universal primary schooling.The
child's place in the family economy iswellrecognizedin agricultural
areas and many Territoriesreported the difficultyof ensunng regular
attendance during harvest seasons or (where boys herd cattle)
throughout the year. Moreover. schooling may mean more than
losing a useful hand in the home-it involves direct and indirect
costs to the parents-tuition fees in one case, clothing and general
maintenance in the other.
Theattitude ofparents to schooling was a factor of great impoc-
ance. In some cases the demand for schools exceeded existinf! faci-
hties, whilein others parental resistance to sendingchildren tojchool
was reported. Reasons for this are social as well as economic: an
a~~recation of the advanta~es of schoolina. meciaüv whererrirlsare
côncerned. requires a certai; Ievel of edu&tiinal atiainmenïon the
parents' part. Whzn family conditions are unsettled through migrant
labour. or where the entirr familv movcs with a pattern of shifting
cultivatio~ o~ ~omadism.~~t is no~e~ ~ matter te develo~ a stablë
school system. In parts of Africa tlie I;opulation is scatteied ovcr a
wide nrea wnthfew centres of even \.illage importance. Thc problem
here isone of sitine a school and of the distance over difficult terrain
which pupils mus? cover to corne to school. Communications and
weather are obstacles to remlar attendance in most Temtories.
Under such circumstances. the need for ~arents to be fullv convinced
of the usefulness of schooling becomes'thr greater. wa;tage in the
school system and a high rate of absenteeisin indicate. among other
thines. a Dubiicdissatisfaction witli the school svstem. or a lack of
inteÏest \;hich produces the same resiilts. During the past decade
education authorities in the Temtorics incrcasingly turned their at-
tention to measures such as local uartici~ation ifi control, improve-
ment ofthe curriculum and of teaihing methods, and parent-tëacher
groups, au designed to make the primary school a recognized part
of the community 2.''
Most of the factors referred to in the quotation above are only too
well known to Respondent from experience both in South Africa and
inSouth West Africa 3,and in both countries these factors have sewed ,
to retard the educational advancement of the indigenous population
PUps.
gr. Further indication of the extent to which Respondent's expen-
ences have been paralleled in other parts of the African continent. is
' Lard Hailey. op.cil..p. rzzg.
* U.N. Doc. STITRIISER. A/r5/Vol 4.p. 38.
* Vide Chap. V. paras.2-go, infra.3g8 SOUTH WEST AFRICA
aflorded by the foliowing extract from the publication quoted in the
previous paragraph:
"E'roniavailable statistics, it appears that in the rapidly growing
school systeins, particularlyhose of African and Asian Territories,
tthe great bulk were found in the two lowest grades, and thereafter
numbers dwindled fast. A previous study of this question by
UNESCOdrew attention to the roblem and provided a statistical
awuroach to the measurement OP wastaze in the school svstem. In
bnef. wastqe results from two factors: d;oll>iiig out. wlieÏe ctuldren
lea\.c school before prob~essinl:fsrtliéladder, and failure. where
pupils are not promoted to Che next grade but are kept back to
practices iaschoolsystem wheremost of the pupils arefoundin theo
lowest grades. .
From studies re~orted bv territorial authorities. such as those of
~ritkki ~loii<iuras.'~orthcr~lihodesia. puer~ico.and Zanrit~ar.it
ise\.iJentli:i\rastace in the hroad sense wa coniiecred with a num-
ber of educafional auëstions. In reeard to oremature school-leavine a
Zanzibar study sh6wed that ~frizan boys dropped out of
school classes for a variety of reasons: movement of family (26 ver
cent.;oemploymentpa(22tper cent.);and maniage. illness. decease,r
over-age, distance from school (together5per cent.). These figures
revealed that 'the attitude of parents to the school and theu control
of theu chilben are major factorsin the occurrence of wastage'. In
tum, lack ofinterest by parents and children may stem from educa-
tional as well as social or economic causes. When the school curricu-
lum isunrela.ted to life. the quality of teaching i5poor, or the pupd
inevitable. hIany of the reform measures reported by Temtoriesis
were in fact designed to bring the school closer to the comrnunity.
and thereby deal with the wastage problem at its root'."
The publication notes that the principle of universal compulsory edu-
cation "was n-nerallv recom-zed in Non-Self-Governing Temtories",
and that-
".. . delay in putting tlie principle into practice drpeiided inore upon
the resource:, available (funds. teachen. buildings) than upon the
unwillm-nes!;of the authorities to nccept the princip'".
92. Primary education for girls, as in many arts of South West
Afnca, presents special problems in the on-~elf-l! Teorrtoeie,nin~
some of which are dealt with in the said publication as foiiows:
"While CO-educationwas generally accepted, thefact remains that
attract girlsoschool. The reasonswere social, economic and educa-
tional in tuni. The status of women in Societywas one determining
factor. Where girls traditionally remained in the home, married
early and periormed economically necessary tasks in the family, it
was not easy to persuade parents to send them to school. More
' U.N. Dm. STITRIISER. A/I~/VOI.4.pp.41-42.
Ibid., 42. COUNTER-MEMORIALOF SOUTH AFRICA 399
espccidy. and undiversified economy provides fewopportunities for
eirls with education to find em~lovment. so that incentives to the
Tamilyare lacking. Sinceeducation:whether fees are charged or not,
represents a cost to parents, preference is usually given to main-
taining the boys at school.Amongeducational factors,the shortageof
women teachers appeared to have great importance. Where educa-
tion of girls lagged behind that of boys, it was relatively more
diicult ta recruit women teachers, vet it was among women
teachers that the turnover was grealesi. because of ma&age: and
the absence of wonieiion primary-school staffs in turn inlubitcd the
cnrolrncnt of girls. The process was thus a vicious circle'."
(iiParticdar Territorics
93. In a United Nations Special Study on EducationalConditionsin
Non-SelfGoverning Territories, published in New York during 1g602,
there appeared a significant tabulation of officialstatementsand rernafks
in regard to compulsory education in African territones. The following
are statements and remarks concerning the situation in particular
territories':
I. CentralAfrican Territories
Siatus of CompulsoryEdrrcalion Problems andPolicy Trends
Belgian Congo
"The colonial authorities do not "The Government is doing
yet feel that the time has come to everythin possible to increase the
make school attendance in the number ofprimary schools so that
Belgian Congo compulsory. There al1children may be accommodated.
must first be enouch non-fee-~av- Onlv later when the Govemment
ing schools to a&ommodat; ;II has'su~cessfully transformed the
diildrt:n of school age. (\VSk:'56.) native mcritality in the more bîck-
&lucation for Europeans is wards regions will itbt imssible to
neither free nor compulsory. consider'the introductiin of com-
(NSGT '56.)" pulsory education. At present the
main obstacles areundoubtedly the
shortaee of schools and teachers,
and. in-didifferenrtegions. thedisper-
sion of the population over very
large areas, the iowbirth rate. poly-
Oam<,.an- the attitude of the
natives, who are not always con-
vinced of the benefits to be denved
from education, especially where
girls are concemed. (WSE '56.)"
French Equatorial Africa
"Education is compulsory in so "When there are sufiicient
far as the accommodation and schoolsand teachers, the provisions
U.N. Doc. STITRIISER. Alr~/Vol. 4.p. 49.
U.N. Doc. ST,TRI/SER. Alr6.
Ibid., pp. 41-43,4O0 SOUTH WEST AERICA
nurnbers of teachers . available regarding compulsory attendance
dow of it ... in force in France will be made
Chiidren come to school of their enerally a plicable. The only
own accord arid no recouse to factorimpe8uig the extension of
compulsion isneeded to get them primary schooling to the whole
there. (WSE '57.)" child population is finance-lack
of funds for the building of ele-
mentary rimary schools and of
specialise8 establishments for
Northern Rhodesia teacher training. (WSE '57.)"
"Compulsory education for Afn- "Compulsory education is in
cans is not przctical in Northem sight for African chiidren in towns.
Rhodesia omp to the shortage of (WSE '58.)"
staff and buildings and the hea
cost involved. Compulsory atteny
ance remilations were at one tirne
applied?n the urban areas but, be-
cause of shorta~e of accommoda-
tion. are not be enforced at
preçent except in &ingstone. A
number of Native Authorities have
applied compulsory education for
the four yeax lower prirnary
ioritv of Native Authoritieç have
kadé orders for enforcingthe regu-
Jar attendance of voluntady en-
roiied pupils untii they have-com-
pleted their course. (Korthem Rho-
tlesia: AfricanEducaiion,Trininial
Nyiisaland
"In Nyasalandschoolattendance
is not com ulsory (WSE '58.)
Some fgative iuthoriti, have
sory attendance of chiidren volun-
tanly enrolied ;it assisted schools.
(NSGT '55.)"
2.East AfricanTmitorics
British !Somaliland
"Education is not compulsory at "Up to 1957 even the existing
any stage for any race within the elementary schools were quite
Protectorate'. (Somaliland: Educa- inadequate and could not accept
tion Department,Triennial Suruey, more than a proportion of the boys
1955-1957.)" seeking admission. (Somaiiland:
Education Department, Triennial
Survcy,1955-1957.)'' COUNTER-MEMORIALOF SOUTH AFRICA ,401
French Somaliland
"Attendance at school isnot "Education isill at the 'pene-
in thisTemtory. tits expansion. the Administratione
is developing urban school units
and settingdu schoolswher-
(WSE '57.)"uEtiolargeenough.
Kenya
"There is no compulsory educa-fforts areng made to pro-
tion for African children. (date al1(African)children living in
'5Compulsory education appliurban areas. (WSE '58.)"
only to Asian boys between the
ages of 7 a15living in Nairobi,
KiThere is no compulsory educa-
tion forab ch'idr...There is
education for Euro-
pean chl enbetuee' ~and 15
Depadmnt.agkviennialSurve.lion
19.55-1957,)''
Uganda
compulsotfor the children of any is to provide pnmary educa-
race. (NS~T '55.)'' tion for al1children; t+- more
mediate policy is toaemini-
in walking distance of the home of
every child, and to build up pro-
essivelythe four qade schoolsto
% six-grade pnmaryschools.
(WSE '58.)"
Zanzibar and Pemba
"Educationisnot compulsory "The objectives of the 1955-59
since itimpo+ible for reasons ofod, as regards pnmary educa-
finance to provide enough schoolsare as fouows:to start schools
forail school age chil(WSE. toaccomm~ateaUboysofprima
'57.)" in rural areas; to develop girls'
~rharv education; to extend as
hany ichools as possible to Stand-
ard 8..(WSE '57.)" SOUTH WEST AFRtCA
3. SouthernAfricanTc~ritories
Basutoland
"Primary education is not com- "Provision ismadein the Educa-
pulsory. (NSGT '55.)" tion Proclamation for the making
of niles to order the compuisory
attendance of African children at
any school, to fix the ages and
levels of attainment for such
compulsory attendance. .. How-
ever. thelarce ~ercentaee of child-
ren in schd 'and theabsence of
any large centres of population
have noï vet made it nëcëssarv to
(WSE '57.)"endance in any &ea.
Bechuanaiand
"There is as yet no question of "The main goals of the Depart-
com ulsory education [for African ment may be summed up as being
chilgen]. (WS13'57.) to bring primas. education within
European edocation is not com- the reach of a much larger propor-
pulsory but nearly al1chiidren of tion of children of school age.
school age attend school. (Bechu- (WSE'57.)"
analand: Annual Re$& of the
Edtccation De$art>ncnt, 1956,
Mafeking.)"
Swaziland
"Education is not compuisory "Apart from the financial proh-
forAfrican chiidren. ..Education lems involved in such a step [com-
from 7 years of age until the com- puI5ory education for African
pletion of the sixteenth year or theandldgeographical obstacles. Theal
prior completion of the eighth Swazi do not live in villages but
standard ...The srnall Eurafncan in family kraals scattered through-
comrnunity is sewed by Govern- out the Territory. Children stiil
ment-aided mission schools ... play an important part in the
Education is not com ulsory by economiclifeofthe kraal (theboys'
law [for Eurafricans] fut practi- duties as herdsmen often make for
callv the same result has been irregular attendance), and until
achieved on a voluntary basis. considerahle social changes occur
(WSE '56.)" compulsory education eXcept in a
few urban areas '.(WSE '56.)"
Thissentence iiacompleie. COUNTER-MEMOR IA LOUTH AFRICA
4. West African Territories
French West Africa
"School attendance is compul- "Efforts have beenconcentrated
sory until the hi11quota of pupils on the quantitative development
for the preparatory stage of pn- of primary education. (NSGT
mary schools has been reached... '55.)"
Parents and guardians of children
of primary school age who are cer-
tified as tniants are liable to im-
prisonment not exceedingfivedays
and/or fine not exceeding 1,200
frPrimary education iscompulsory
to the extent that the available
accommodation permits. (NSGT
'55.)"
Gambia
"Education is not compulsory, "Apathy has to be overcome;
though great progress has been thereisconsiderable wastage, the
made in providing increased faci- migratory nature of the po ula
lities for primary education espe- tion causing children to Peave
ciaily in the Protectorate. (WSE school before they have acquired
'57.)" basicskills. (WSE '57.)"
Federation of Nigeria
"[The introduction of free pri-
mary education in the Western
Region] is regarded as the first
step towards achievingcompulsory
education . . . In the Northern
Region there are no irnmediate
pians for introducin compulsory
education. (WÇE '58f"
Sierra Leone
"Education is not compulsory as
vet in either Colonvor Protectorate
because of the éxpenditure in-
volved. (WSE '57.)"
9. In feg?rd to some African temtories not mentioned,in the afore-
cal difficulties in regard to the introduction of compulsory educationti-
also have their parallels in these temtories:4O4 SOUTH WEST AFRICA
I. Tanganyika
The foliowing citation is from an officialreport:
"675 Thme isno provision for compulsory education in respect of
the non-African population. As regards the African opulation pro-
vision exists under the Townships Compulsory ~fucation Ruleç,
14~7. and corn~ulsorv attendance Orders made under the Native
~Üihurit~ ~'rd;nance:Ca~ 72. The general introduction of compul-
SOI)'education wùl not be practicable unril adequate educational
faciliticsare~\~~ihblefurdcluldrenof schoolam. At the mesent btaee
of developrnent compulsory attendance oraers are 'confined 70
certain townships where conditions are particularly favourable and
school accoinrnodation is adequate. A considerable expansion of
primary schook for Africans within the Dar es Salaam municipality
istaking place.andit is expected thatthe position should be reached
in the fairly near future, provided that the necessary staff can be
trained, when consideration can be given to the introduction of
compulsory education in thisimportant area.
678. There is no restriction under local laws upon facilities forthe
education of girls. Although in some parts of the temtory there was
in the past considerable opposition on the part of the people and
native authorities to African girls' education, this attitude has in
general chariged in recent years, and there is now wide-spread and
keen enthusiasm for such education . ..
688. The i.eeulantvof attendanceat African ~rimarvschoolsvaries
considewbly rn différentparts of the temtorjr and may be largely
affected 1)).localand seasonal conditions. The conditions experienced
in some areis durina the rainv season are not conducive fo remlar
attendance. particul&ly wlierechildren have some distance to 60 to
school. and seasunal agriciiltural activities are often an important
factor. Mucl, depeiids not onlv on the aeneral attitude of the local
communitv i:owâ~dseducatioibut also Gnthe individual enerev and
enrhusiasm of teachers and nativeauthonties in maintaining attend-
ances at a high average figure.The same coiisiderations apply to the
auestion of 'education31 w'astaee'but swakine eenerallv this is be-
6oming progressi\,ely less of a ~roblem.'I'ro\~i~& exist; for the en-
forcement ol the rcplar attendance of enrolled pupik in compulsory
attendance orders madeunder the Native AuthGit; Ordinance. Non-
attendance and wastage do not present problems in non-African
primary education 1."
2. Ethiopia
Emest W. Luther. who did research work in Ethiopia from 1950 to
1956. makes the following comments on the Ethiopian primary and
secondary school situation at about the time when a new education
programme was beginning to take effect:
Tnnganyikn under Unilcd Kingdom AdminirlralionReport by Her Majesty's
General Assembly c,f the Llnited Nations for the yearr958.Colonial No. 312.pp.
168-169.171-172.40~ SOUTH WEST AFRICA
95. Fromthe aforegoingit is clearthat virtuaiiy al1of the countries
in Africawhich share Respondent'sdesire to introduceuniversal com-
pulsoryeducation experience the same diiïiculties as Respondent in
attemptmg to translatethis ideal into practice. CHAPTER V
NATIVEEDUCATiON
I. In this Chapter a detailed account is given of Native education in
higher education and adult education, which are dealt with in the next
Chapter.
Inasmuch as the charges made by the A piicauts concern the educa-
tion of Natives generally, it is not propoIeIo deal separately with the
education of each of the Native coups, which, in any event, would
entail an excessively lengthy record. \Vhere, however, particulax cir-
cumstances or conditions are peculiar to certain groups, or affect them
alone, attentionwiUbe drawn thereto.
At the end of the Chapter a separate account is given of education in
the Eastern Caprivi Zipfel, whichis at present not administered through
the South West AfricaAdministration 1.
B. Retarding Circumstances and Factors in the Development of Native
Education in South West AMca
z. The development of Native education in the Temtory and the
progressmade since the inception of the Mandate, can be considered and
ëvduated only against the background of particuiar circumstances
and factors which have hampered and retarded the educational advance-
ment of the Native 5oups.
The more important of these circumstances and factors, although
broadly indicated in the previous Chapter. will in the next succeeding
paragraphs be dealt with more specificallyin the foUowingorder:
1. Attitude of mind towards schoolsand European influences.
II. Nornadichabits and scattered populatioii.
111. Vastness of the Tcmtorv and the low dtnsitv .f ~..ulation.
IV. Economic and hancial düficuities.
VI. Shortaee of teachers and difficulties encountered in teacher
training.
3. The extension of education to primitive societies with no traditjon
ofiiteracy is inevitably a slowprocess. Although pnor to the assumption
of the Mandate missionaries had been active in some parts of South
West Africafor many years, that had resuited in little more than making
European influences than others. On the whole, the indigenous peopies
1 Vi& para.82,infra.408 SOUTH WEST AFRICA
stiil had al1the conservatism and aversion tochange whicharecharacter-
isticof ri mit ivesoueties.
~orebver. the !qative po ulation, in theu way of kfe at the the, had
Littleneed of education as Lown to and understood hy Europeans. The
rim mit i vastoralist. who Lived offhis cattle as his forbears had done. the
irimiti~e~easanl: f&er, who knew that there would not be enough to
eat when there w;s no rain, and the roving hunter who lived offthe veld
and its garne, could not easily be persuaded that what their children
could be taught in a school could be of any use to them. Until their old
way of Lifechangcd, and new demands were made upon them, they couid
not imagine wha.t need there was of something which they had not
required before. As they saw it, they had aU the education needed for
lifeas they lived it '.
By 1920 only an insignificant nnmber of Native parents had been
to school, and there were many thousands who had not even seen a
xhool. It was only natural that such communities wouid see no need for
schools, and that they would regard them as useless innovations. Thus
in Respondent's annual re rt tothe League of Nations for 1925it was
stated. intcd ria: "The geros as a race do not believe in education
for their children 2."
This attitude of mind is also illustrated by an experience of the year
1gz5.The Rhenisli Missionofferedto open a schoolin the Herero Reserve,
Otjituo, and a meeting of the Reserve Board was held to discuss the
question. The magistrate who presided at the meeting reported that not
a single member of the Board had anything to say in favour of schools.
and that. ona vote being taken, the idea ofhaving a school in the Reserve
was rejected unanimously 3.
Another examr>leis recorded in the Minutes of the Permanent Man-
dates ~ommissioRof the Fourteenth Session. during the year 1928. >ille
Dannevig. having commented on what she described as "a sad picture
of native conditions" in the Temtorv. said that she-
, .
". .. fuUv re.ilised the difference between the whites. who desired
educati4 foi.their ctlildrzn. and the natives, who did not. but she
thou~ht it wzsejsential that education shouid be aiven to the child-
ren ofthe natives in order to prevent them from-becoming as lazy.
improvident and immoral astheir fathers and mothers "'.
The reply of the South African representative, Mr. Werth, is recorded
as foliows:
". . .>Ille.Dannevig had made an indictment that was certainly not
deservcd bv the Administration. Shehad herself laid her fineeron the
-
' This kind of attitode is paralleled also in other part? of AfriSo.cg.. C.L.
Simpson. former Vice-President ofLiberia and Liberian Ambasador in Washington
and London, says. intealin. in The Symbol ofLibcrid(1961).p. 117:
tional authorities have had to contend with difficulties unknown in Europeana-
countris. For it is a fact that the native African's approach to education. that
is to Western e<lucation.isdiEerent from that of a Europea... To a Liberian
tribesman in bis own environment Western education does not necessarily
convey the ide;, of these socialnd economic advantages. unless he envisages
transplanting bimwlf into an entirely different rociety."
U.G. 26rgz6. p. ,Ir.
' U.G. zz-19-27, para. 39. p. 33.
' P.M.C.. Min.. :<IV. pp. 108-log. COUNTER-MEMORIAL OF SOUTH, AFRICA 409
real difncuity, the fact that the natives did not want education. Mr.
Werth had ersonally visited Rehoboth with the object of .certain-
ingwhat yci?ookshould be constructed there, but the ma'ority of the
Rehoboths had refused to send their children to the SCLook subsi-
dised by the Govemment. He was not going to cause a native war in
the attempt to thrust education upon people who did not want it '."
And the Chairman, the MarquisTheodoli, is recorded to have said that
he- .
"... knew that Dr. Kastl [a Member of the Commission] could
conh Mr.Werth's statement from his own experience. He thought
the Mandates Commission would therefore confine itself to takmg
note of the accredited representative's statement, and to recom:
mending that everything possible should be done ta remedy the
presentitate of affh 1."
4. Not only was there the attitude that schools could serve no useful
urpose. Schools. and the resuitant drawing away of children from
gome and the duties normal1,yperformed by them, were regarded by
Native parents as factors wiuch were dismptive of nonnai, traditional
life-as, in a çense, they were. In this regard the Director of Education
s+ jn a Memorandum submitted to the Permanent Mandates Com-
mision in 1~24:
"~ccord;n~ tothe native ideas the man isthe head ofthe Iiomeand
sbodd not have to work. Hiswife ISexpected to do rnost of the work
and shemakes the children help her. \men the children can be spared
they are sent to school, but it very frequently happeiis that a school
child has to stav at home to carrv water. to mind the baby and to
tend the sheep or to work in the fiëlds2."
As long as such ideas prevaiied, it was to be ex cted that schools
would be lmked upon with diifavour. In a report wEch was put before
the Permanent Mandates Commission in 1930, Dr. Vedder, historian
and ethnologist. who was at that time Praeses of the Rhenish Mission
Society and Principal of the teachew' training school at Okahandja,
dealt as followswith this attitude on thepart of Nativeparents and witb
the efforts of ~ ~~ ~ ~~onaries to convince them of the value of education
forth& children:
"As the possibilit~ is affordedthem [Natives in R~mes] to lead.
their lives in the Reserves in the same manner as the= forbears had
done of yore, they think more of their cattle than of theu children.
They, moreover, fear that the schools in the Reserves wdi preveut
them from employing their children as cattle herds. Hence the tek
has arisen forthe Missionfirst of all to prepare the soi1by their mis-
sionaries and itinerant teachers and to impress on the parents
the significance of the school for their later liv'."
5. The task of "preparing the soir and of trying to convinc~ parents
of the value of education for their children waç further comphcated by
a measure of mistrust of European intentions on the part of çome of the
Native groups.
PMC.. Min.. XIV, p. rog.
1bid.IV,p. 17, (Annex 4).
' U.G. 21-1931. p.60.41° SOUTH WEST AFRICA
Respondent's annual repri to the League of Nations in 1930 stated
in this regard:
"The educationist who wishes to achieve success mut first zain
the confideni.eof the natives. Alter the bitter wars of comparatiTely-
s ,akirig reci:nt yws betweeri Europcari and native in ttuicountry
t sis not an easv matter. The nati\.es. and iinaniculnr the tlereros.
are of a suspicio& nature. The progress made ihus far in this connec:
tion may be regarded as sound and satisfactory. Any attempt to
forcethe pace, however, would defeat its own purpose 1.''
To win the corifidence of people with such views and attitudes, and
to inculcate in them the correct attitude of mind towards theeducation
which the Europeans tried to bring to them, were matters which required
tact, patience and time. In 1939 the Organizing Inspecter of Native
Schools re~orted to the Administration that-
"GeneraUy ... parents do not regard their responsibiiity as pro-
ceeding beyond the duty of refraining to prevent their children
from atteuding school 2."
And the AdmiListration itself stated:
"...parents were dehitely unwilling to aiiow their children to
attend school for more than two or three years. To the Native the
adolescent cldd is a source of income, the attendance at school
extendhg ovwmany years an unnecessary loss of support '."
6. Although staady progress has been made over the years, there are
still many parent!; who do not send their children to schonl for no other
reason than that they see no good in schools. To this day, also, many
arents stüi look upon their young sons as a source of income, and
[eepinn them at school for more than four or five vears is rwarded as an
un6arÏanted lossof support. Amongst certain grgups, again: girls mas.
when very young, and sending them to school for any len~th o- time 1s
re arded asan unnecessary sacrifice and loss of se~ces.
hat such attitudes of mind still prevail, particularly amongst the
less developed groups, is iilustrated by the position in the Okavango,
trasted with that in Ovamboland. where the Finnish Mission started as con-
work in 1870.In 1961the Finnish Mission,in answer to arequest whether
they were prepared to transfer their schools to the Administration in
.order to bë ionverted into government community schools, repiied
that in their view snfficient progress had been made in Ovamboland
forsuch a step to be taken, but thatit could not successfuüy be done in
the Okavango, wliere their activities had commenced only in 1926. In
regard to the Okavango they said:
for the greater part still heathens and they look upon the schools as
their enemypreventing the children from taking over al1the work in
and around their homes. The Mission is the onlv bodv able to keev
the schools going by influencing the parents tisend'their children
to schoolregularlv '."
.
' U.G. zr-1931. p.51.
1 U.G. 30-1940, para.550, p.'04.
' Zbid.p.ra.547, p.103.
Departmental inlomation; vidcalsoChap. IV, para. 81supra for theview of COUNTER-MEMOR OlISOUTH AFRICA 411
II. NOMADIC HABITS:SCATIERED POPULATION
7. Reference bas already been made 'to the scattered and disrupted
state of most of the indigenou ~ps in ce Police Zone at the time
when Respondent assumed the a rmnistration of the Territos.. Having
no settled homes, smaü groups of Natives continually moved from
place to place. Others, nomads by nature. were always on the move in
search of veld foods and game. The establishment and maintenance of
fwed schoolsfor such noups were matters of weat difficulty, and dur.ng
the first years progresi wai seriously hamperëd by this facior.
Speaking of the members of such nomadic groups. the Director of
Educntion. in a memorandum placed before the Permanent Mandates
Commissionin rgzq, stated, intn dia:
"He is imorovident. If he has hunted down and chased ali the
game away {rom his surroundings, has dug up ail the edible roots,
and burnt up aü the fuel. he moves to another plac2."
And, later in thekemorandum:
"This nomadic instinct ,is so strong with him that even when he
livesunder civilised conditions and the for~oing mducements no
longer apply, it is found that from time to tlme he stU insists on
making a change for no apparent reason. The 'wanderlust' becomes
so strong that he must move.
As a result of this characteristic, those whowork for the advance-
ment of the natives, fuid their influence frequently mtemptedand
the long intervals during which they are away from missionary
centres nullify the ood work that has been done. In the schools a
large percentage Of the children make little or no pro eçs,and
because of their constant corning and going the classgation of
'u.ilç into standards becornes a verv difficult matt3."
8. The aforementioned difficuities were graduallv ovcrcome as the
scattered rrmnants of tnbes were settled in Keserves of their own. and
as it became possible to restore order and to reconstnict social Life.To
this day, hoGever, the problem isa very real one in the case of the
Bushmen.
III. VASTNES OSP THETERRITORY AND THE LOWDENSITY OF POPULATION
g. The extension of education has at au times been hampered by
the vastness of the Territory and the low density, of the populatipn.
Serious enough in themçelves, these are factors which create well-nigh
insuperable difficuitieswhen teachers are in short supply, as has at al1
times been the position in South West Afnca.
The difficulties experienced by the Administration will readily be
understood by al1who'have had to cope with similar problems elsewh~
in Africa. A recent United Nations publication deals ,as follows wtth
education in sparsely populated regions in Tropical Afnca:
the Mission regarding the feasibofiintrodoeing compulsory education in the
Okavango.
Via Bmk III. Chap. nI.paras. 84-89, of this.Cnunter-Mernorial.
P.M.C. M.in.. IVpara.(c)p. 176.
Ibid., par(a) and (1).4IZ SOUTH WEST AFRICA
"Education isstiü impossible for most young Africans unlw they
are re:idti)travel great distances or quit their homes altogether-a
solution whichisaccepted at spinch for boys but rarely forgirl..
The situation is pnrticuhrly serious in sparselypulated regions.
ln a large part of Ethiopia, in Somalia and in tRe " uge senu-arid
plains whiclistretch from the Sile to the Atlantic between the Sahara
and the forest zone there are less than five inhabitants per square
kilometre. 13utit is not even necessary to take these regions, where
developmerit will requise especiaiiy strenuous efforts: they are not
the onlyunder-populated areas.Three countries-Liberia, Guineaand
Sierra Leone-to ether cover an area of 432,323square kilometres-
i.e., more than Ereat Britain or Japan. Their total population is
rowhlv the same as London's and much less than Tokvo's. It has
be& ciaimed thnt undw+opulation represmts a perma>;entobstacle
10economicdeuelopment;certainly il is disastrous in its effecton the
dcvelopmentof an effectiveand conplete network of schods. It may
be said that the percentage of African children attending school IS
always related to the density of population. Examples are provided
in Madagascar by the Tananarive region or, on the west Coast, by
southern Ghana and the southern ~rovinces of Nie-ria. In the latter
country. the western and eastern régionsare the most densely popu-
lated and arc the ricliest in towns, roads and transport: more than
70 Dercent of the children attend school. Tlieir voune Hausa com-
pa&ots are less fortunate; their neighbours of the up&r Volta, the
Niger and the northern Cameroons stiU less: they are victims of a
eographicai accident. The authorities, however inadequate the
funds available, are always ready to provide a school and the
necessary teachers if requested to do so by a town with a population
of ro,ooo but they admit their helplesness when it is a uestion of
(Italics added.)me facilities for 50 villages of zoo inha%itantl."
And with regard to teachers the report stated: "It is the teacher who
makes the schocil,not the building. The real problem is the problem of
teachers 2."
IO. hlucliof what issaid in the above citation applies with even greater
force to South \Vcst Africa. As has been pointed out',the Tcmtory has,
next to Uechuaiialand, the lowest population density in Africa south of
the Sahara.
The Temtory isalmost twice the sizeof the 432,323sq. kms. ofLiberia.
Guinca and Sierra Leone combined, and its total population isnowhere
near "rouchlv the same as London's": it amounts to little more than
6 per cent: of the population of Greater London.
Whilelargepartsof Ethiopia, Somalia andthe semi-arid plains referred
to inthe above quotationare said to have "less than five inhabitants per
square kilometre", it may be pointed out that in 1960 the density of
population in the Okavango was 0.0077 to the hectare (or 0.77 to the
sq. km.), and, in the Kaokoveld, o.oor8 to the hectare (or 0.18to fie sq.
km.).
Asio, AI& SlafesAfvicn:Educofion unPm~css (1961)pp. 52-52,
Ibid., p. 52.
Vida Book III. hap.1,para.4.ofthis Counter-Mernorial. COUNTER-MEMORIAL OF SOUTHAFRICA 4I3
In parts of the northern territories of South West
in innumerable smaii scattered kraals, while in the
two Native families often fmd themselves on European farms which are
far from schools. And what was said above in regard ta the situation
in the countries of Tropical Africa, is also tme of Native education in
South West Airica. namely "the real problem is the problem of teachers".
II. As far as the educatiori of l:uropcan children in the Territory is
concerned, roblems presenteù in ths regard can be sol~erl-as tliey have
ken soli,c.d)b\, a nolicv of ccntr;iliz;ition and the establishinent of
school hostels invar~ous Cowns '.European parents can provide for their
children's travelling expenses and bear the major part of t@ boarding
expenses of their children at such hostels, and there isa sufficient supply
of teachers ta make such a policy practicable. In the case of Native
education such facilities have thus far been found practicable only to a
very iimited extent. Quite apart from a lack of means on the part of
Native parents. the problem in the case of Native education is inextri-
cably bound up with the shortage of teachers. As long as teachers in
short supply, schools can be provided only where there are sufficlent
concentrations of Natives to iustifv their establishment.
At present there are in th; ~olcce7ane 31 whools for Sative childrcn
with boardinx facilitiec, aiid 27 in the area outside the t'oli~.eZone.
Wlicreas the establishment of more hostels would en;<l~le alar~cr nuniber
of children to attend school than is the position today, the esfablishment
of hostels hy itself cannot solve the problem to any appreciable extent,
for the main obstacle is the shortage of teachers. The supply of teachers
presently available is barely sufficient to cope with the needs of the
children now at school, and even then many of these teachers haye to
teach children in a number of standards combined-a situationwhlch IS
not satisfactorv. but which cannot at ~resent be avoided. Moreover, a
fair proportioi;of thc teschers empioyed in Sative schools are part-time
teachers who are iiot properly qudified, but \r,hose services must be
retaiiied in an efforttoeducatc as Inany Sati\.e cliildren as possible
12. A problem of~articular difficultvin the PoliceZoneisthe schooling
of ~ativk children ivhose parents are'emplosed on European farms. In
this Zone. especially in the arid regions in the suutli. farms are large. as
thev have to be iiiorder to funcrion as economic units Farm home-
steads are often miles anart. The children on anv one ~articular farm are
seldom, ifever. enoughio warrant the establishment a scparate school.
and. in vicw of the shortaae of teachers, the emplovment of a teacher or
teachers at a lace wherë there is not a subitaitial concentration of
Natives would'not only be unreasonable, but impossible. The children
of two or morefarms could not readily attend thesame school.uniess f;tm
schools wcre built with hostel f~cilities.or transüort to and from school
were providpd every school day. In view of the'exceedin ly high crsts
that would be involveci.and the relatively imall numbers ofchildren that
would henefit. such ~roiects can in vicw of the tcacher shortaRe hardly
rank equally with fhe'claims of areas where t@re is a concentratëd
Native population, Nevertheless, a real attempt 1sheing made to cape
with the problem in a practical way, as will appear from the next SUC-
ceeùing paragraph.
' Yi& Chap. VII, paras. 2.5infvn. 4'4 SOUTH \VEST AFRICA
13. The 1958 Commission of Inquiry into Non-European Education
in South West Africa fouiid that about 17per cent. of al1Native children
on farms were at school. The Commission advised the establishment of
farm schools, and recomrnended:
"(i) that the minimum enrolment for a farm school be put at 15
pupils;
(ii) that a small-salaried teacher, even, if need be, unqualified, be
a poinred to such a school;
(iii) dat the,owner of the farm should taketheinitiative in establish-
ing aschool and that he be expected to put up the building him-
self and either to manage the school himself or to nominate an-
otlier siiitable persoii as manager;
(iv) that a farm school should be Slutc-uided and the teacher be in
the senice of thefarmer;the Department. however, paying the
teacher's salary and providing allowancesfor equipment. books,
etc.'"
The pnnciple of farm schools as recommended by the Commission,
was a~~roved bv the Administration. and under section 102 of the
1962 ~~~~cntioii~Ordiiiancegraiits-iii-ad \i,i11hr available to eiiable
farmers IO build aiid in;iiiitain schools for S;rti\.e çhild2.n
Since the principle of having such schools was adopted. three farm
schools have been established at Dabib, Mitgard and Duwisib. AU
three are one-teacher schools, with enrolments in 1961 of 19, 40 and 15
children respectively. In au three instances class rooms have been
provided by the farmers concemed. The Education Department pays
the teachers' sakuies, and provides the necessas. furniture. equipment
and teachers' text-books, and also pays 50 per cent. of the price of aU
books and statioiiefy supplied to pupils. The three teachers are paid on
the same scale as teachers at other schools.
In supp1ement;ition of the above scheme, steps have now been taken
which will enable the missions to ~rovide hostel facilities for farm
children either ori farms or in ~ative'residential areas in towns in the
Police Zone. The Administrator-in-Executive-Ch oasmidtcieed
to assist the missions with loans for the erection of bostel buildings,
the loans to be repayable free of interest, or else at a nominal rate of
interest, over a period of 30 years, and. furthermore. to subsidize such
hostels in accordance with the number of boarders. The same assistance
will be available in respect of mission hostels erected in Native Reserves
in the Police Zone.
The Rhenish Mission has informed the Administration of its desire
to erect hostels l'or farm children at 22 different laces where it has
schools, and the Koman Catholic Church bas also indicated its prepared.
ness to assist inthe scheme.
IV. LANGUAGD EIFFICULTIES
14. The divrrs:ty of Sative languages spoken in the Territory '.
wupled with a lack of suitable teachen wvithan adequate knowledge of
WestRA/~m (1958).CParts1. para. Brzo(8)(6).op. log.ropenn Educafion in South
' Ord. NO. 27 of 1962 (S.W.A.),sec. 102,in Oficiol Gnrcffc Exfraordinnvof
Smfh West Atrica. No. 2413 (4July 1962).p. 9x2: vidcChap. III. para. 5suHo.
' Vide Chap. IV, paras. 8 and9.rupro. COUNTER-MEMORIAL OF SOUTH AFRICA 4l5
those languages, has been a serious retarding factor in the education of
Native children.
In 1924the Duector of Education referred to the language difficulty
in the following terms:
"Some schoolsareattended simultaneously by children who speak
three different languages, and in practically al1the schools there are
children speaking two different langua es In each school one of the
two officiallanguages of the Union of toith Africa must be taught,
so that to the list of four languages must be added English and
Dutch. This makes a total of six languages for which we have to
prIn larger centres where thereare two orthree schoolsit would sim-
plify matters if the pupiis could be divided into the different schools
according to their home languages. The attachment of the native to
his own particular church is,however, so strong that this scheme for
the present is not feasible on any appreciable scale 2."
With regard to the language qualifications ofteachers. he said:
"Our native teachers are very poorly qualified. The great war
at times teachers have to be appointed whose qualifications do notthat
extend beyond being able to rad, write and speak one of the six
languages mentioned '."
separate schools for all children who speak the same language. In some
parts of the Police Zone where members of different language groups
are found in the same area, the limited number of teachers with an
adequate knowledge of the various languages ha .to date made a com-
plete division on purely language lines impossible.
15. As already stated '.in practice aiipossible steps are taken to @ve
young pupils their early instruction in their home language, and since
1952special efforts have been made to give separate instruction to
minority language groups in schools. There have at al1times. however.
been serious practical difficulties. and the result has been that young
pupils have often had to receive their initial training in a language
foreian to them-whether another Native lanma-e .. one of the offic~al
langÜages.
In view of the fact that the Native peoples in the Temtory had no
literary culture. the task of providing for Native languages as school
media and schoolsubjects has been a formidable one. When South Afnca
assumed the Mandate, there was not a single suitable reader in any of the
Native languages for use in the schools. There were no philologists or
trained linguists who could make an expert study of the vanous languages
and prepare suitable reading material, and it wasonly by the painstaking
posed for use in the schools.ver the vears that somebooks could be com-
The Native languages of the Temtory are, furthemore: the languages
of nomads, peasants and pastoralists, and although theu vocabulanes
P.M.C., Min.,fIV,tpp. 176.177(Annexeh4). since grown;vi& para.16. infra.
'Ibid.. p. 177.
' Vide Chap. IV, paras21-22,supn.416 SOUTH WST AFRICA
are rich enough to meet the day to day needs of people living in a sub-
sistence environment. they are all poor vehicles of abstract thought.
Without modification and development they couid not be used as
teaching lanyages. Over the years the missionaries, who, from the
nature oftlieir work and their close contact with the Natives, possessed
a greater knowledge of the various languages than other Europeans,
did mnch to biing about the necessary modification and development.
16. Itwould Iia\,e been an impossible task. however, to prepare school
books in eachot the various hiiguages or dialects spoken in the Territory.
or to convert i:ach of them iitoi teachinn lan- -ee. and the ~oliiv
conwiquently was to concentrate on the dev~opmcnt of those laniua6&
whicli are sp0k1.nI>ymost of the Satives. 'l'husfar Sdonga. Kuanyama.
Kunnrltli. HereroSama and 'Tswanahave actiic\fedthe status of school
lanyiges, but, because of insufficient developmentas yet. mother-
tongue instruction is generally not yet feasible beyond the Standard II
level in these languages. Since the establishment of the Bureau for
to efiect tfe?further development of these languages as teachingation
languages, and to prepare suitable school books in each of them.
In the final iesult, however, it will be for the groups themselves to
contribute to the development of their languages tot alleducational
needs.
V. ECONOMI CND FINANCIA DLIFFICULTIES
17. Referenct: has already been made to the efiects during the 1930s
in South West Africa of the then world-wide economic depression.
Coupled with a severe drought, which lasted till the end of 1933. and
an e idemic of ioot-and-mouth disease during 1934-1935.the depression
resuGed, inter dia,in the drop of the total national income of South
West Africa from approximately R14 million (11 m7illion) in 1929 to
R4,zoo,ooo (f;a,:roo,ooo)in 1933, and a decline of about 60 per cent. in
development in the Territory. including development in the educational
field.
it had beenipreviously. and the Administration did everything in its as
power to increa5.eits ex nditure on education.
At a me et inof the Ennanent Mandates Commission in 1931. Mlle
Dannevia-isreüorted to have said that she was swe-
"... that the Commissiona~~reciated themeat interest taken bv the
Administration. and the p&mss made h the last three ye& in
native education. which ras al1the more remarkable in view of the
great economicdifficultie3".
In the financial year 1932-1933 Respondent was, however. obliged
to decrease by 30 per cent. the amount expended on Euopean and
Native Educatirn 4.
Chap. IV.par.=. 19 and zo.
VidcBookV ofthis Counter-Mernorial.
'P.M.C..Min..XX,p.57.
+ U.G.27-1934, para. 150.24. COUNTER-MEMORIAL OF SOUTH AFRICA 4I7
In 1933 Mlle Dannevig expressed her appreuation of the efforts of
the Administration "to maintain the standard of education in spite of
hancial diîiiculties", and she noted that white expenditure on education
had been cut down, the cut had been less in the case of Native education
than in the case of European education '.
The Permanent Mandates Commission noted increases in expendihrre
on European and Native education at its meetings in 1936 and 1937 2.
19. Like other sections of the community, the Native population,
particularly in the Police Zone. was hard pressed by the difficult condi-
tions of the time, and many parents kept their children from school to
do chores at home. or else took them out of school as soon as they
thought them old enough to work or to contribute to the familyis
support in some other way.
The detrimental effect of these conditions on school attendance of
Native children in the Police Zone during the period 1930-1940is ilius-
trated by the enrolment figuresover the said years 3.
20. After the Second World War there was a substantial improvement
in the economic position of the Territory, and from then on sustained
progress in the educational fieldbecame possible.
21. The point which it is desired to emphasize is that there were
serious intemiPtions in the devçlnpment of &ive educntion at nn e:irl)'
and crucial stage of its developnient. and that the position would no
doubt ha5.ebeeii more favour:ible thdn itis today ifit had not been for
such interruptions.
VI. SHORTAG EF TEACHER S ND DIFFICULTIEE SNCOUNTERE IN
TEACHER TRAINING
(a) SouthWestAfrica
zz. As already stated, a shortage of teachers in South West Afnca
has in thepast retarded rogress. and it doessountil thisday.
The training school Por Native teachers at Okahandja (the Augus-
tineum) and the training school at Doebra, referred to in Chapter II
above '.are stili in existence. A third training school was established
by the Roman Catholie Church at Tses in 1927, but it survived for only
.-~~vears I.
1;the-northern territories heyond the Police Zone, the first training
school for Native teachers. established at Oniipa, in Ovamboland was
transferr~d to~Onmiedira~in ~ ~<.and is stiil in existence. A second
training school in ?Ivamholand'~~s estahlished by the Anglican Mission
at Odibo in1~16.It remsined inexistence until r(,Go.when n shortage of
wrsonnel foGed it to close down. Secondarv -classes for theolo~cal
Gtudents of the Xfissionwere later introduced ai rhis institution. In ig48
a training school for women students waï estahlislied by the Finnish
.\lission at Ongandjers. and it is still in existence.A further training
P.iM.C., Min.XXIII,p. 93.
2 Ibid.XXIX, p.135: XXXI, p.118.
Vide table, parqj. infra.
' Para. 5.
J Vida para.24.infra.
VideChap. II.para. 5,supra.418 SOUTH WEST AFRICA
school was established at Oshigambo in 1952b ,ut it was converted into
a secondary scliool in 1960.
23.As statetl in Chaiter II above ',Native education in the Temtory
virtualiy came to a standstill during the Fust World War, and au the
training schoolij. Save the one at Oniipa, were closed down. This was
still the position when South Africa assumed the Mandate.
In 1923 the Illienish Mission. with the assistance of a fantri-aid by
the Administration, reopened its training school at Oka andja, and tn
1924 the Roman Catholic Chnrch reopened its training school at Doebra.
These trainuig schools had to draw theu students from pupils who
had been to the mission primary schools, and the aim was to recruit
as many as possible of those who had passed Standard II and to train
themfor three years thereafter.
For some yezus the teachers produced were, on the whole. of a very
poor quality, but in the cucumstances this could not be othenvise.
Great difficultiis were experienced in finding a sufficient number of
trainees who had passed Standard II. The annuai report to the League
of Nations in 1930,after stating Respondent's policy of training selected
men in each race to work amongst their own people 2.continued as
follows:
"Previous reports have repeatedly made mention of the fact that
it is this ~hortage of suitable teachers which makes more rapid
progress irripossible.
The conditions oftraining have been made as easy and as favow-
able as possible. Instniction at the Training Schools is free and the
Department pays a grant for the maintenance of the students so
that their course of training costs them nothing. The succesful
completion of the first four years of the primary school course is
ordinarily required before admission is grauted to the Training
School, but to get more students the Department frequently has to
sanction the admission of students who have completed the third
year only. On occasionseven the secondyear has heen accepted '."
It was not piacticable to recruit Native teachers in South Africa-
where there waz.,in any event, aiso a shortage-for they had no know-
ledge of the various Native languages spoken in the Territory. The
same position obtained in regard to European teachers in the Territory
and in South Africa. The only solution to the problem was to try to
achieve agradua1 improvement in the quality of Native teachers and in
the general standard ofeducation. In aUthe cucumstances progresscould
not but be slow and difficult.
24.In 1933 a revised and improved primary school syllabus was
introduced. and the same year saw the establishment of the first school
with classes up to Standard VI. Due to the lack of trained teachers,
however. few schools had classes beyond Standard II, and the raising
of the minimum qualification for admission to the training schoolscould
not yet be contemplated. The Administration offered bursaries to de-
seMng students to further their studies in South Africa. butthe numbers
of those who availed themselves of this opportunity were smaii. In 1938
' Chap. II. para12.
VidsChap. IV,para. 17.supra.
J U.G. 21-193r, pp. 51.p. COUNTBR-MEMORIi\L OF SOUTH hFRlCh 4I9
the training school at Tses was forced to close down for lack of sufficient
suitable candidates, and generally there was such a disinclination oii the
part of Native parents to keep theirildreri at school for morï than three
or four years that the Director of Education. despairiiig of the situation,
suggested to the Department of Education in 1939 that an allowance be
pad to those parents who were prepared to allow their cliildren to be
trained at the training schools.
In the years immediately preceding the Second LVorld War the
Administration considered the feasibility of taking o\.cr the training
schools, and of establishing schools with classes up to StandardVI in
conjunction therewith. sa as ta ensure a steady flow of pupils with a
Standard VI certificate to the training schools. However, financial
considerations, the impossibiiity of obtaining the services of lecturin
the virtual certainty that it would have lesssuccess than the missianaries
in recmiting suitable candidates from amongst the Natives. caused the
Administration to postpone a decision in the matter. Reference to the
difficulties experienced at the time was made by Rïspondent in its
annual report to the League of Nations in 1939in the foliowing terms:
"Ex~erience has shown that about 40 per cent. of the candidates
adriiiticd ta the first y:ir of a three year, training cuurst:. coninien-
cing eu-Standard Il in missiun trxining schwls h.id ta be elirninatcd
on both mental aiid moral arounds bcfore the com~~lctioriof that
course. From this it wouldÜuear that the enrolmentof larce classes
fiom standard 11upwards whd benecessary to ensure ultimate suc-
cessin thetrain inof teachers. The actual position, however, wasnot
encouraeine. Onlv few ~rimarv schools oroceeded bevond Standard
II,findXg:t veri difficÛltto haintain Standard ICI class, mainly
because parents were definitely unwilling to allow their children
to attend-school for morehan &a or threë vears. To thc Native the
adolesceiit child ;source of incorne. butili;itten<lünceat school
extt:ndlng o\.cr rnariy ),ca;truiiiiccesinry loss of support. As a
result othlinttitudc of mind t;,kcn uu It11~S:ttl\.t,s flicr~'cruiting
fieldwas narrowed down considerably ind coiisequently the mission<
in spite of the great influence they exercise over the minds of the
Natives, did not succeed in enrolling the desireù number of pupil-
would probably meet ivith even greatcr difficulties in its efforts to
secure the required number of pupils in its preparator school or
schools toensure a steadv flow of uuuil-teachcrs to 2 overnment
training school. In additlon to p&iding free clothes and mainte-
nance in hostels the Administration would probably have to con-
sider the matter of granting parents an allowance~for pemitting
their children to complete their training. It is hardly doubtful that
the initial stages would impose a hcavy burden on the State if
snccess were to be secured regardless of cosl."
The outbreak of the Second World War delaved the takine of immedi-
ate steps on any ofthe lines mentioncd. In~~4 howe ver. TheAupti-
neum trniningschoolat Okaharidja kvastakcn oiw by the Administration.
It bec.ime 3 full govcrrimciit training sclio;<ii<subseqiient dcvclop420 SOUTH WEST AFRICA
ments at this institution enabled it to make an important contribution
to the advancement of Native education in generai.
25. A step foward was taken in 1947when Standard III was made
the minimum requirement for admission to the training school at the
Augustineum. Of the 36 applicants for admission to the training course
in 1948.26had l~assedStandard III, three Standard IV, six Standard V,
and oneStandard VI. Of the 37applicants for admission in 1g51,16 had
assed Standard III, fiveStandard IV,seven Standard V. eight Standard
P 1rand one Standard VII.
26. A further advance was made in 1952, when the successful com-
pletion of Standard VI was made the minimum qualification for ad-
mission to the training schools at the Augustineum and at Doebra.
As was anticipated, the introduction of this higher entrance qualifi-
able to enrol for a teacher training course. In 1954, for example, there
were 39 pupii-teachers in training as againsIII in 1951. It was felt,
however, that in au the circumstances the step was iustüïed, as it would
lead to an im~rovement in the oualitv of teachers ~ioduced and. eventu-
aüy, to a riçe'inthe general standard of education'.By 1960the number
of teacher trainees in the Police Zone had increased to5. and in 1q61
thenumber was94with 44at the Augustineum and 50at Doebra.
27. In Ovamboland the minimum qualification for admission to the
boys' training school at Onguedira was raised to Form 1(i.e., one year
after Standard VI) in 1961,and, in the same year, to Standard VI in the
case of the girlstraining school at Ongandjera. Prior to tbis date the
minimum qualification had been Standard IV.
The number of pupil teachers in Ovamboland in 1960was 83. In 1961
the number was 60. the fa11in numbers being due to the raising of
entrance qualifications as stated above.
28. Asfrom thi:beginning of 1964Form 1(i.e.. one year after Standard
VI) will be the minimum entrance qualification to both the training
schools in the Police Zone.
It is the aim of the Administration to raise the entrance qualification
to the training school at the Augustineum to Form II (Standard VIII)
as soon as such a step shonld prove to be racticable. At present there
are not enough students with a Standard $11 certificate to justify such
to too few teachers being made available to take up teacbing posts. Theead
position is improving, bowever. and in 1961, for example, four pnpil-
teachers with a Standard VI11certificate completed a twoyears' training
course.
29. Every effort has been made to encourage teacher trainees at the
al1parts of the country, and to give them as sound a training, as pos-
sible. They receive free tuition. free books, free board and lodging, free
transport to and from their homes, and aiso a smd sum as pocket
money every week. The lectwing staff consists mainly of Europeans. ,At
present there are II Euro~eans on the teachine staff and three Native
ieachers. two of whomgi\fe'instructiointu aliayin the Native languages.
AU tluee Native teachers have Standard VI11 certificates. and two of
them have also t.ad two years' professional training. The objective 1s COUNTER-MEMORIAL OF SOUTH AFRICA 421
to fil1al1the osts at the Augustineum with Native teachers asand when
suitably quSJ fied persons become available.
Desoite di the advantaaes offered. however. particularlv at the
~u~u;tineum. the results arënot what might bc cxpécted.Thénumbers
who enrol for teacher training remain disappointing, and of thosc rhat
do enrol a large percentageare lost on the way by rëason of cither moral
instability or inability to maintain the sustaincd effort required to com-
plete the prescnbed two-year course. The situation ü one which rcquires
Sympathetic handiing.
30. At the beginning of 1957 a scheme was set afoot which, it was
honed. would enable at least some of the teachers alreadv in service
Khpro\.e their qualificationA.course of evening classes was instituted
at Windhoek b.eina initialla Standard VI11 cl;isswith an enrolment of
14. Teachers who Cookthe-course were required to pay a tnition fee of
R20 &IO) each per year. and the Administration provided European
lecturers. The scheme,however,proved a failure. Due to poor attendance
and lack of interest the class had to be discontinued at the end of the
year.
A similar scheme was introduced in July 1961, when, 40 students
were enroUed in five different secondarv courses. The tuition fee was
fixedat R8 ([4)per year. Once again théscheme was a failure. and by
the end of the year the number of students had dwvindledto ni1'.
There is little reason to believe tliat similar schemes wiU at present
meet with any greatcr succes. and the main hope for improvement in
the qualifications of Native teachers seeins to bc a gradua! raising of
the minimum reiluirernents for admiqsion to the various training schools.
(b) Olhe~ African Tmitm'cs
31. The many problems encountered by the Adminitration of South
West Africa in its efforts to produce teachen for Native children, and
to improve the quality of such teachers. have been experienced by
Respondent also in the administration of Native education in South
Africa. And these basic problems also have their parallel in many States
in Africa where it has been the task of the authorities to bring modem
education to African communities which have no or little tradition of
in this fieldhas been slow and difficult, and serious problems still remain,
communities concerned is very much oldertorvthlnibin South West Africa.
In most of these countries the initial burden of teachng children and
training tcachen was carried almost whollv bv missionaries. Much has
been done by the missions and the various govemments to awaken
underdeveloped indigenous communities to the benefits of modem
education, and to bring education to them. But a great deal stiil remains
t~ be~done. and it~ ~ ~s-~hat. as in South West Africa. Dromess WU be
hampered for years to come b$a shosage of teachers. .. -
The paragnphs belowgivean indicationofconditions in a fewcountries
in Africa relative to teachers aiid their training.
1 Vida Chap.VI, para.45.infra. SOUTH WEST AFRICA
422
(i) SouthernRhodesia
32. With regard to teacher-training, the foliowingstatement appeared
in an officiaipublication of Auguçt 1962:
"Until the opening of the first Government Teacher Training
Schoolin Umtali, 1956,aUteacher training had been carried on by
the various missionary institutions. To these institutions must be
given most <ifthe credit forthe very great advances which have been
made in the training of teachers '."
As in South West Africa, the minimum qualifications required of
teachers could only be raised by degrees. The minimum qualification
for untrained teachers w3s raised to Standard IV in 1937 (s" years'
schooling). to Standard V in 1945, and then to Standard VI in 1951
In the Handbook Lothc. Fairnationof Rhodesiaand Nyasaland, 1960,
the followingstatisticsare given regarding the qualifications of teachers:
"In 1950-1951.58.5 per cent. of the country's teachers were
untrained, :and the percentage of untrained teachers in aided
primary schools was 70.5 per cent. At the present time the per-
centage of uncertiiïcated teachers is 43.8 per cent., whiist the
percentage of untraiied teachers in villageçchoolshas been reduced
to47.6 per cent. "'
(ii) Nyasaland
As in many other countnes in Africa, the teacher training schools in
Nyasaland have to draw their materiai from a small field. According
to an estimate made by the Director of Education in 1957, about 57.7
er cent. of the total number of chiidren of school age do not proceed
kyond Standard 1 (i.e., three years' schooling), and only about 3 per
cent. receive education up to Standard VI.Those who receive education
up to Standard VI11amount to 0.25 percent. of the school-agepopula-
tcon.and those who receive education up to Standard X, 0.07 per cent.'
Official figures for 1960 show that there were 6.974 primary school
teachers in assisred and unassisted mission schools in that year, and
that of that total 3.395 (about 48.7 per cent.) were classifiedas "Un-
quaiiiïed teachers" s.
(üi) SierraLeone
The position in Sierra Leone in 1962is stated as follows:
"There is stili an acute shortage of qualified teachers at ali levels,
with the possible exception of the university level. The primary
pupil-teacher ratio of 35 toI and secondary ratio of 20 to I appear
satisfactory, but only 1,181 of the 2,625 primary school teachers
have teaching qualifications. The comparable figures in secondary
schools are 347 out of 436; but of these 347. 82 hold qualifications
Afvirnn Educaltm in Southcm Rhodcrio. Southern Rhodesia Information Sheet,
No.25 (1962)p.ara.35.P.7.
Vidr Th8 Pvog*8rrof Africansin SoulhcrnRhodcsia (1958).pp. 10-11.
' BrelsfordW. Y. (ed.). Hnndbook to thc Fedcrrilion of Rhodesio nnd Nyasahnd
(1960) ..493.
' RcPo~ta an E<aaic Suwey of Nymlond 1958-195 C9.Fed. 132.p. r74.
' Nynsaland: Reportof theyear1960(rg6r)p ..roo. COUNTER-MEMORIALOF SOUTH AFRICA 423
suitable onlv for~nmw school teachina, and onlv 204aremaduates.
andth2 thave fuU technical or specialist qualifications other than
degrees '."
(iv) Nigeria
The following is a statement in a publication of 1955 relative to the
eeneral nosition of teachers in Nieeria:
n s~ .,
"The need to increase the output of teachers is. of course, obvious
and urgent. The major problern is the securing of candidates and
providing adequate staff forthe training college~ '."
(v) Chad
The shortage of teachers in Chad has been described as fouows:
"~here is anacute shortage of teachers throughout the country '."
"Pnmary education suffers from a senous shortage of teachers.
There are 925 teachers for 84.993 ptpils. i.e., 91 pupils per teacher.
This theoretical fimre produces in reality classes of up to 300 puplls
under one teache;'." -
(vi) Cameroon
The foUowing quotations refer to the problem of the shortage of
teachers in the Cameroon:
"The need for teachers has increased at aUlevels '.!'
"As a result of the rapid increase in school enroents, both in
primary schools and in secondas. and technical education. the need
forteachershas increased tosuchanextent that al1levelsofeducation
suffer from a shortage of qualified staff. Overcrowded classes, the
lack of school premises, the uçe of yqualified teachers are ail
brakes upon the development of education in the country '."
(vu) Liberia
In regard to education in the early years of Liberia, Dr. G. H. T.
Kimble writes:
"For the first 80 years or soof its history [from 18471,the Libenan
Republic had the unenviable distinction of being the most ilhterate
sovereign state in the world. Even some of the presidents had
difficulty with their reading and writing. The only education to be
had wasprovided by the few undernourished Christian missions. ..
and the initiation schools 7."
The Liberian Govemment took an increasing interest in educational
matters as from the beginning of this century, and in I 12 a law pro-
viding for compulsory elementaty schooling was passed ?.This law. as
'Rerwrces and Nccdsboofor Training FacdilicsVfa19Africanr in British Africa,
Ethi@ia and Libcvin (1955)p ..210.
International YcarbookofEducalion, Vol. XXIV (1962). p. LX.
*Ibid., p. Si.
'Ibid.,p.LIX.
Ibid.,p.65.
'Kimble. op. di, p. 125. 424 SOUTH WEST AFRICA
already stated ', has remained a dead letter. The main problem has
been one of teacliers.
Anofficialpublication of the year 1959 refers to the position of teachers
a- --l~ow..
"Eighty five per cent. of our elementary school teachers are not
qualified to teach in the schools... .We cannot fight in raising the
standards of ow schoolswhen wehave teachers who are not quaiified
and wiü not avail themselves of the opportunity to ieam Z."
(viii) Eihiopia
The position n:garding teachers in Ethiopia was described by Ernest
W. Luther as follows:
"The quality of most of the teachin isinferior.often no more than
a case of the blind leading the blini. Fewer than one-Kith of the
teachersareforeien.an ofdtheseeare incom~etent. ... For one
reason or anothè;, most Ethiopians who have had a little schooling
quickly conclude thît they have learned enouah '."
In ig5 the Ethiopian ~inLtry of Education Ginted out that of the
2.013 Ethiopian teachers then in service, only four had studied at the
college or university level; ten had completed the secondary school;
and 31had completed two years of secondary school. A total, therefore,
of 4s. or less thaii7 Der cent. of allEthio~ian teachers. had com~leted
moiethan eight at school 4.
Writing in 196:; G.. A. L-psk--gave the following. .ticulars in reg.rd
to teachérs: -
"The teacher shortage and the inadequatetraining of teachers are
among the most pressing problems of Ethiopian education. In 1958,
a majority of the country's 3,627 native teachers. 346of them
women, were qualifiedonly to teach the primary grades one through
four. Middle school grades (fivethrough eieht) are generally taught
by teachers from India. Secondary and hrgher schools are staffed
alrnost exclujively by teachers from Europe and the United States.
a total of 469in 1958 '."
C.The Role of the Missions in Education
1. Mrssro~ ~CHOOLS IN SOUTHWESTAFRICA, AND THEIR CONVERSION
INTO GOVERNMEN SCHOOLS
33.In South West Africa the question arose at an esrly stage whether
the Administration should assume completc control of dl Kative educa-
tion in the Territorv. or whether the various missions should be allowed
t? romote the wock which they had pioneeredand be granted financial
ai2 by the Administration to assist them in their efforts. In 1923, at
' Vid6 Chap. IV. para94 (3). supra.
* The FourfhAnnualRcporf of fhaDeparlmnf ofF'ublicZnrtfi<~IiaR.L. [LLberia]
cnuning lhr pcriod Sep. r. r~s84c31, 1959. pp53-54.
' Luther.op. cil.. pp. 27-28: vida alsoChap. IV. p94 (2)su@.
W. A.. "Organirationand Problem of Education in Ethiopia", Journabylf Ntgro
Educdia. Vol.XX\'III.No. 4 (1959)p. 416.
' Lipsky. G. A.. 13ihiopia;Pcopls i,s Society, ifs Cul(1962).p.96. COUNTER-MEMORIAL OF SOUTH AFRICA 425
the aforementioned conference between representatives of the Adminis-
tration and the various mission societies, it was agreed that. having
regard to the state in which most of the Natives stiU found themselves,
it wouid be in the best interests of Native education if the missions
were left free to establish schools wherever and whenever they could,
and be granted financiai aid by the Administration to assist them in
their efforts.
In 1930 Respondent's annual report to the League of Nations con-
tained the foiiowingstatement by Dr. H. Vedder ':
"The question may beasked whether it is nece,ssary and wise to
tackle the education of native children from two sides-the Govern-
ment and the Mission-in close CO-operation. It is reasonable to
demand that the Govemment, the sole responsible authorityforthe
education of the upgrowing youth, should do the work alone. .. .
Even in missionary circles this question has again and aga been
dis~us~ed and debated~~~u. ~liese discussions invariablv led to the
conclusion not to recommend nor to bring about aiif change for
the present. 3s this might rhiiplplsead toirreparablz detriment to the
school systern which is bevcloping in such a gratifying manner at
present.. . .
No matter where one looks to discover a way by which the aim of
education may be reached in another manner, oneis again and again
brought back to that line which has been followedsince a decade =."
It was in regard to the question whether the Administration should
take over mission schools in the Native Reserves that Dr. Vedder
expressed the view already cited above that it was still necessary for
the missions to "prepare the soir 1.He added:
"It may be that in the course of a fewdecades,Govemment willbe
able to take the first step towards taking over the Mission schools.
Nobody can conscientiously recommend it to take this step at th
juncture 2."
It appears from the Minutes of the eighteenth session of the Perma-
nent Mandates Commission in 1930 that the Chairman remarked that
"the education of natives in the reserves ... inevitably took a long time,
and was at the moment in the hands of the Misions" ).
34. The first government Native school was established at Rietquefie
in the Aminuis Herero Reseme in 1935.A number of government s,~h?oIs
bere estabiished thereafter, whiie a few schools which the missions
concemed had difficulty in maintaining were taken over by the Adminis-
tration.
Develo ment and the passage of time eventually called for a reassess-
ment of tRe policy of leaving the ma'or responsibility for Native educa-
tion in the hands of the missions. in testifying before the 1958 Com-
mission of Inquiry into Non-European Education in South West A,ca,
the various religious bodies concerned were not ?greed on the quest!on
whether the time had arrived for the Administration to take over,mssl?n
schools. Headmen and tribal councils were. 6th few exceptions, in
favour of such a step, and so was the Native Teachers' Association.
Vidapara. 4,sup..
2 U.G. 21-r931, pp. 61-62.
P..U.C.. Min., XVIII, p. 138426 SOUTH WEST APRICA
The Commission exoressed ereat admiration for the work which the
various missions liaidone invth<:past but ne\,ertheless thought tliat the
existing s).stcni Iiad certain shoncomings nhich called for a change.
Thrse shortcominas. accordinr!to the Comniission.kre tliat missionaries
couid as a result'of pressureof other work not always exercise proper
supervision over al1their schools, and that parent communities had no
share in the control. manacement and hancine of schools. This latter
factor. the Cornmission thoüght. was not condu~i\.e to parents taking a
proper interest IIthc educationof their children '.
The Commi\siuii foiind a diffcrrrice of opiliion on the questioii whether
mission schoolsshould be converied into governrnent community schools,
of which the local control and management wouid be entmsted to Native
school committe~; and school boards. A summary of the evidence given
before the Commissionin this regard has already been cited 2.
The Commissioiirecommend~d, in hrief, that the missions controlling
Native schools be asked to transfer their schools to the Administration,
and that-
(a) teacher training schools, secondary schools and vocational schools
requinng the employment of European staff be made government
schoolsunder the direct control of the Education Department, and
(b) that al1primarv schools. as well as schools without Eurooean staff,
be madégovariment co&munityschoolsunder the local management
and control of Native school committees and school boards 3.
35. The Administration adopted the aforementioned recornmenda-
tions, and section 16 of Ordinance No. 19 of 1960 (S.W.A.) amended
Proclamation No. 16of 1026(S.W.A.)so as to eive the Administrator the
power to take over misscon ichools as "~ovehment Native Schools" '.
Section rg of the same Ordinance made provision for the institution of
managing bodies for government Native ichools '.
When implemeiitation of the new policy commenced in 1961. there
were already 15 government schools for Natives in the Territory. The
Administration took over the lower primary schools, 85 in number. of
the Finnish Mission inOvamboland. SchoolCommittees of Native parents
were established for al1these schools, and Ovamboland was divided into
six school board districts, each under the jurisdiction of a school board,
wbose mernbers are Native parents. The school boards, each assisted by
a full-time paid secretary, have been in operation since August 1961.
under the guidance of the Inspecter of Schools and the Organisers of,
Education in the ~iorthem temtories. The school committees and school
boards are statutory bodies and perfom duties prescribed bj.replations
made by the Administration 3.
' RW4 of the Ccmmission ofInpiry into iVon-Eur@6on Educatim in Soulh
West Africo (1958). Part 1. paras. Br06(a).Bxa8 (b) and (c). pp. 79, 85-86.
Vide Chap. IV, para. 36. supra.
Repovt of the Commission ofInquiry in10 Non-Europsan Edwcntion in Smth
Wcst Africn (1958). Part 1.para. Br30 (i) and (B), p.123.
' Ovd. No. ig of1,360 (S.W.A.), sec. 16, in The LawofSouth West Africo1960,
Vol. XXXIX. p.68,.
' Sec. 130 ofProc. No. i6of r926 (S.W.A.), as amended (in Lows ofSouth Wcsl
Africn, Vol. II (1923-1927). pp. 306-308as substituted hysec. 17 ofOvd. No. 19
of 1960 (S.W.A ) (in The LotuofSovth Wcst Africo 1960,Vol. XXXIX. p. 683) and
sec. 156 (d) (tcr) oProc. No. r6 of 1926 (S.W.A.) as inserted by sec. zoof Old. COUNTER-MEMORO IAFSOUTH AFRICA 427
The Finnish Mission agreed to the taking over of their schools in
Ovamboland, but requested the Administration ta postpone the taking
over of theu schools in the Okavango territory, where the Mission
considered that a sufficient stage of development to warrant such a step
had not yet been reached '.The Administration acceded ta this request.
The Rhenish, Roman Catholic and African Methodist Episcopal
Missionshave agreed ta the taking over of their schools by the Adminis-
tration. The Anglican Mission is not yet prepared ta do so, and has
chosen to continue on the old bais of being subsidized by the Admini-
stration-which it will be allowed to do, the policy at present being
to take over the schoolsof those missions which are prepared to transfer
them to the Administration.
3G. The implementation of the policy ottaking o\.cr niission scliools
aiid converting them into governulent coiiiriiunity sctioolj carried
a steu furth~.rin 1062.when some of the scliools of tlie I<henish3lisiion
in th; k>oliceZonek,e& trarisferred to tlie Administration and converted
into co\.ernmcnt corniiiunity scliools. Opposition to such transfer ancl
conversion was first encouniered in the Reserves occu~ied bv members
of the Herero group, and later some of the Damas and am anstheir
respective Reserves also adopted the same attitude. This has caused a
delay in the further implementation of the policy, and thus far only six
s~ ~o~s in the Police Zone have been converted into communitv schools.
~cs~>ondentis firnily iinder the inipressioli tliat the attitude of the
6rouls whicli rnised ohlcction \vas brought about bj, externnl politicnl
insti~.itioii. tlir inipn:ssion is supportcd by the Lct tliat not one of the
roupj concerned lins bcen able to advance reasons of any substance
for itj attitude. However. Rcspondent is coritinuing its attcmptj at
securing the co-operation ofthesë groups.
With regard ta Native education generally, the stage has been reached
in South West Africa where the Govemment and the Native parent
communities play a more important part in education than ever before,
and where the Government has assumed the major portion of the burden
which was, in the early years, camed largely by the missions. Whilst
development will in future no doubt take place at a faster rate than
in the past. sight must not he lost of the fact that such accelerated
development will have been rendered possible only by the valuable
pioneenng work done by the missions in the past.
II. MISSION SCHOOL SN OTHERAFRICAN TERRITORIES
37. In many other parts of Africa mission societies played a role
similar to the one they performed in South West Africa. and gener+y
the development of education followed much the same pattern as in
South Wed Africa.
The following paragraphs deal bnefly with the educational activities
of mission societies in a few African temtories.
No. 19 of,960(S.W.A. ()p.683)The prescribed regulatiarecontained iG.N.
No. 8 (S.W.A.).1 Feb.196..inThe Lows of South West Atricri 1961,VoXL.
PP. 1332-1377,
' Vide para6,su@=.428 SOUTH WEST AFRICA
(a) Southern Rhodesia
The history of the development of Native education in Southem
Rhodesia, especiaiiy dwing the early years, is to a large extent the
history of the e:<pansion of Christian missionary work. From the very
beginning the various missions regarded the establishment of schools
asan important adjunct to their religious work. The London Missionary
Society established the first mission station in the country in 1859.
and by the end of the nineteenth century there were ten missionary
societies at work in the Temtory 1.
The fust govemment school-an industrial and agricuitural school
-was established in 1920. An officialstatement relating to the position
in the year 1950reads as foilows:
"The mi!;sions are stiil providing the vast buik of educational
services; in1950between 97 percent. and 98 per cent. of the pupiis
were attending mission schools. The missions have played and will
continue to play a most important part in African education,
especiaiiy iii the reserves2."
In 1961 there were 479,565 pupils enroiled in 2,758 govemment-aided
mission primar:! schools as against 45,858 pupds in 56 govemment
pnmary schooh '; 3,563 pnpils in 26 aided mission secondary schools
as against 1.606in eight govemment secondary schools '. and 612 pnpils
in eight aided mission technical and vocational schools as against 793
pupiis in six such govemment schools 5.
@) Nyasaland
Christian missions played a major role in the education of Afri~n
children in Nyasaland. In a govemment report relating to the penod
1958-1959the followingisstated:
"Until 1,349,the Missions provided and staffed practically al1
Afncan schi~ols,assistance heing 'venin approved cases in the fom
of Govemrnent grants-in-aid. Ence 1949 the Govemment has
established its own secondas. schools and a number of primafy
schools in the main urban centres. A start has also been made in
providing technical training faciiities at artisan level, and in supple-
menting the Missions'teacher training faciiities bythe establishment
of Govemnient teacher training centres. A smali number of local
authority pnmary schools has also been established in recent years.
but thesedonot as yet make any appreciable contribution to the total
educational facilities availahle to Africans. In spite ofthe educational
facilities provided by the Govemment, the majority of Afncans are
educated in Missionschools %'"
In 1957there were the foliowingschools in Nyasaland: IO government
'
' ThedAlrrcanrintSourhsmRhodrrin. SNo.h1.Edducotia.p.12.8p. 9.
'Almcon Eduriiria inSourhrrn Xhoderlo. Southern Rhodesin InformationSheet
No. 25 (1962).table I,p. 4.
' Ibid., tabl4. p.5.
' Ibid., table 5. 6.
Report on nn Ecnomic O/ Nyasoland 1958.1959, C. Fed. 132,para. 3.
p. 168. COUNTER-MEMORIN OF SOUTH AFRICA 429
schwls, 26 local authority schwls, 747 govemment-aided mission
schools and 2.245 undded mjssion sdiools '.
(c) Liberia
It hasbeen said of the missionaries in Liberia that they ". ..laid the
foundation for wkt is King accomplished in bnnging the life of the
aborigines of Libena into accord with civilization"=.
In 1944.it isstated in an officialreport ofthe United States ofAmerica,
about threequarters of al1 school children in Libena were enroiied in
private and missionschools 3.
Dr. Kimble says that until the end of the Second Wo. War ':... 80
percent. ofthe educational work was being done by Christian missions" '.
In 1959 a,ccord+g to the annual report of the LiberianDepartment
of Public Inst~ction. there were, in addition to tribal and private
schools, 366 elementary and secondary govemment schools, and 170
eleThe Liberian government is appreciative of the good work done by
the missions in the educational field. and encourages thw efforts.
R. Earle Anderson writes in this regard:
"The Americo-Liberians themselves are a religious people, and the
Liberian Govemment gives to the missions the idlest co-operation.
In retnm, it is required that each mission station operate a schml.
thus making of the missionsthe backbone ofthe Liberian educational
system. Therehas redted a sprinkling of small element~y schools
throughout the hinterland and counties, and the establishment of
schools for the Americo-Liberians, includin~ so-e of high-school
statu5 6."
"lt has been a Government reqwement that ail mission +ations
their Tranchisec'."trv have elementary schools as a condition to
religions. hilanthropic, and govemmentaiat exiactivities in the educa-
tional fiel$, a general pattern is beginning to be evident, the rudi-
ments of an integrated educationalsystem
(d) Ethiogia
In Ethiopia, according to W. A.Shack-
"Mass education before 1935was primarily of eccle?iastical
character with the centres of study in certain monastenes and
churches. In return for fees of food and grain. pnests and monks
1 Thse parüeulars have been taken from Rwrl rm an Econaic Suniey of
Nyaralondrg58-r959, C. Fed.132. able 2.p. 171.
3Forcim Lnbor Intwmation: :Ldw in'sLacrion (Mav ro60). P4. 197.
. .-...
' Tha Emrih Annull Rcporf5.oftb Dcporimnnfo/ PublicInstnïlion R.L. [Libmal
covrringth6 p~riodSep.1, 19584d. 31. 1959, table III. AppendiceYI and VII.
Anderson. O*.cil.ri.198.
Ibid....208-
Zbid.,p.zro.43O SOUTH WEST AFRICA
taught children to recite the Psalter, sacred passages in Ge'ez,some
writing of Amharic and simple arithmetic. Others were often
engaged in tutorial work forthe families of the ric'."
The first govemment schoolswere established during the first decade
of this century Z, but for some time the main burden continued to be
carried by the cliurch and by the missions.
Though the Etliiopian Government has never favoured the educational
activities of foreign missions in the traditionally Christian areas of the
countr ,it acknowledges the value of their educational services in other
areas. h. A. Çhack points out that "hludim and pagan areas are open
to proselytizing by missions which are wiUingto provide medical as well
as educatioiial sf:rvic'."
In 1959-1960, according to an official report. there were 224,934
pupils in the schook of the Empire (Ethiopia and Eritrea). Of tlus
total 180,163 were in government schools; 20,497 in mission schools;
14.790 in ~nvate schools; 5.095 in community~schools; and 4.389 in
Church schools '.
(e) Ruanda-Urundi
quaüfied for govemmerit aid when they complied with certain con-ools
ditions. Apparently, there were no government schools before 1954'.
schools of au types in Ruanda-Urundiatist',and 3,002 govemment-aidedt
mission schools !,The enrolment in the govemment schook was 6,060 6,
and in the aided mission schools 243,102 '.
Mission schools. aided by the govemment. played the ma'or role in
education dwing the Belgian administration of ~uanda-dmndi. In
this regard Dr. Kimble states that the Belgians' African educational
licy was. intn alia, based on the belief "that al1educatior. isthe better
Er being in the bands of men of faith" 8.
(f) FrenchCameroons
Education in thcCameroonsowesagTeat deal to the Christian missions.
The foUowvingv:as said in a report published by the International
Labour Officein regard to the position in 1953:
"In the ~rench ~ameroons the missions have played and still con-
Sback. The Jolirnd of Nepo Educolion. Vol. XXVIII, No. (1959).p.405.
Kimble.op. cit.. p.127.
"Minirrry of E#fucnlionand Finc Adr. Bureou of Educolionnl Rerrnrch and
Statistics, Goucrnnrrnl,MisrPrivota. Conniunily nnd Church-Scho1959-1960,
=.6-.
Ruanda-Urundi pctidonl I'Ann19591(1960)p.ara152,pp. 253-254andpara.153.e du
P.257.
' VidcRa+$ sur I'Admimislraion Belge du Ruondo-Urundi pcndanl l'And<
'959 (196).P. 472.
Ibid.p.474.
' W.. p.475.
Kimble . pcil.. p. rrg COUNTER-MEMORIAL OF SOUTH AFRICA 43I
tinue to play, a major mie in the development of educational
facilities; tn 1953,in the fieldof pnmary education, the enrolment at
state schoolswas 42.770 and at mission schools 113,381 '."
(g) Ghana
In Ghana, Christian missions laid the foundations of education. and
thev have at all times plaved an important part in the educational work
of the country. As in'other countiies, thegovernment encouraged the
missions in their educational work, and granted financial assistance
to the mission schools of which it approved for purposes of financial
assistance. F. M.Bourret says the followingin regard to mission schools
in Ghana:
"They take amajor part in the educational work ofthe country. In
1957. for example, of the 4.882 primary and middle schools thqre
were 2,189under the larger Protestant Missionbodies (Presbyterian.
Methodist, Anglican) and 1,162 under Catholic auspiceç,[a total of
3.351 Mission schools]. Onthe secondary and teacher training level.
the same high proportion of missionary-directed schools obtains.
Actually, then, only a small percentage of the country's schools is
under fuli government control, but the education department grants
substantiai sums to aUapproved schools, and thus bears a good pro-
portion of the expense 2."
In 1959 there were 663,439 students in al1 educational institutions
inthecountry. Of this total, 618,905 (approximately 93.3 per cent.) were
enrolled in "Approved Schools". In government institutions there were
in al13,924 students (approximately 0.59 per cent.). There were 4,274
students in teacher training colleges, and of these 3,749 (approximately
87.7 percent.) were in "approved institutions '.
D. Types of Schoolsfor Natives in South West Africa
38. Schools for Native education in the Territory are of the following
kinds:
1. Government schools.
11. Go\,crnrnent teacher tra~nin~schools.
III. Mission schools.
IV. Mission trachcr training schools.
V. Private schools.
IV. Fam schools.
Proclamation No. 16 of 1926 (S.W.A.) makeç provision forthe estab-
lishment by the Administrator of government schools and govemment
training schools '.The highest and lowest standard in any çuch school,
as well as the subjects of instmction, are subject to the appoval of the
Director of Education 5.Government schools may be established when
the Director is satisfied that the educational needs of the locality call
.., .- - ---. -- ..., . --,,r. >,.
Baurret, F. M.. Ghana-The Rood ;O Indrpcndcnrc 1919-195(7 1964. p.218.
Vida Educniion Siotislics 1959, Statistical Reports (Ghana) Ser. 1.No. 6.p.7.
'Ploc. No. 16 of 1<-. ,~.W.A-, as~~e~ ~~-- . s~ ~122 ~-,.in Lnws ofSdh WCsl
Afiica. Vol. II (1923-1927). p.302,
Ibid., sec.izz (2).p.302.432 SOUTH WEST AFRICA
for such establishment, that a regular attendanceof at least.20 pupils can
be maintained, and that the accommodation to be uezed 1ssuitable for
the purpose '.Similar conditions apply to the establishment of training
schools, save tl1a.tno minimum number of students is prescribed.
39.'Shecontrol and management of govemment schook,and govern-
ment training schoolsvest in the Director of Education or in a manager
appointcd by hini, butthe Director may, with the consent of the Adminis-
trator, institute managing bodies for such schools 2.
There is one govemment training school in the Territory, the Augus-
tineum at Okahandja '.
Proclamation No. 16of 1926(S.W.A.) makes provision for the es-
tablishment of mission schools and mission training schools4, for the
recognition of such scliools and training schools, and for ovemment
grants in respect thereof The control and management Of recognized
schools and training schools vest in the church or missionary body or
other persan responsible forthe establishment of the school concerned,
but the ap ointment of the manager of each school is subject to the
approval ofthe Director of Education, and the manager must perfomi
his duties to the satisfaction of the Diector 6.
40. There are at present three mission teacher training schools in
the Temtory: the Roman Catholic institution at Doebra, near Windhoek,
and two Finnish training schools at Onguedira and Ongandjera. in
Ovamboland 7.As from 1964 the two last-mentioned institutions will be
financed by the Administration on the sanie lines as in the case of the
Augustineum. although they wiiiremain under the control of the Finnish
Mission. There ;are a few private schools in the Temtory, conducted
mainlv bv the Xfrican Methodist EDiscoDaiChurch. At Dresent there
are th& hm schoolsin operation iriihe~êmtory
The 1~6z Education Ordinance empowers the Administrator-
(a) to Gtabfish and maintain "~ative schools to beknown as State
Native Schools" 'O;
(b) to subsidiae and assist in the establishment or maintenance of Native
community schools I';
(c) to make gants-in-aid to any "state-aided Native scho~l"'~. This
Af*ica,cVol..II (1912-1927). p.pz.as amended. sec. 122 (4),inL~ms0fSoufh West
PIOC.NO. 16 of 1926 (S.W.A.), sec.i22 (7). as substihited by Ord.i9of 1960
(S.W.A.). sec. 15; vide The Lowr ofSoulh West Africo 1960, Vol.XXXIX. p. 681.
Vide also para. 35. supo.
' Vida para. 24. supro.
' Proc. No. 16 of 1926 (S.W.A.). sec.123, in Lawr ofSoulh West Ahicn. Vol. II
(1923-r927). P. 304.
' Ibid., sen.rz5.126and 127. pp. 304-306. Aoto thenumberof schooMvern-
ment and bliseion--uida paras. 43 and 55, infra.
Proc. No. 16of 1026 (S.W.A.I. sec.128.in Lowr O/South Wcst Africa. Vol. II
('923-1927). P. 36.
' Vide para. 22,suko
Vide para. 13.supra.
Vide Chap. III. para.5. supva.
'OOrd. No. 27 of 1962 (S.W.A.). sec. ior(1)(a). in Ofiçiol Gazelle Ertraordinnry
0fSoulh Wtrr Apira. No. 2413 (4 July 1962!.p. 912.
'1Ibid.. sec102 (11 ,. 912.
l2Ibid.. sec. IO(1).p. 9rz. COUNTER-MEMORIAL OF SOUTH AFHlCA 433
tm includes those mission schools or mission training schools
recognized by the Director under the Educational Proclamation
No. 16of 1926(S.W.A.).
E. Officersand FieldStaK for NativeEducation
41. For many years therewereno officersof theEducation Department
speciaiiy detailed to organize or inspect Native schools. AU the work
was done by officers and ins tors who performed their duties in
res ect ofallschoolsin south & Africa.
& 1945 an officer, styled organizer, was appointed to organize and
supervise Native schools and teaching in the areas outside the Police
Zone, and in 1953 a second such organizer was appomted. These two
or-anizers were also responsible for the inspection of schools in those
areIn 1952 an organizer of Native Education wy appointed for the
Police Zone, but inspections continued to be carried out by the same
insnectorç who inspected Eurouean and Coloured schools.
hs a result of iecomrnendaiions made by the 1956Coinmission of
Inquiry into Son-Europcan Education, ccrtau chanh.es were bro
about with avicwto ci vinS:ati~c schools in the Territury bettrr prxz
sional supervision and mOre specialized attention.
In 1960 a chief inspector of Native schools was appointed, and also
an inspector of Native schooIs for the Police Zone. The aforementioned
t of organizer, which had been created in 1952, was then abolished.
p1~61 an ad4niçtrative organizer was appointed for the Police Zone.
whose function lt is, in general, to assist andguide schools and school
board secretanes in their work. Three posts of supervisor of schools have
been created for the northern tenitories: two of these posts have already
been filied by Natives, whilst the third is presently filied by a Finnish
missionary pending the appointment of a suitable Native candidate.
Two similar posts have been created for the Police Zone. A supervisor's
professional work. togive professionalguidance to teachers, and to supet-her
vi- ~ ~ ~ ~ ~ ~n eiven in the ~~other toneue in the sub-standards and
lowerprimary classes.-- ~ -
As already stated ',it has been decided to appoint five Natives on the
staff of the Bureau for the develooment of the Native lanmaees m the
~e&itor~. Two of these have already been appointed to as&& duty on
I Jannary 1964. Posts have also been offered to two others to assume
duty on the same date, and a suitable candidate is being sought to fil1the
fifth pst. These men will have a sound knowledge of the following
languages: Herero, Nama, Ndonga, Kuanyama and Kuangali.
42. As far as the areas outside the Police Zone are concemed, ,the
posts of organizer and second organizer have been done away ?th.
but the services of the officersholding the positions have been retained
as professional assistants to inspectors of schools. In 1961two inspectors
of schoolswere appointed, and alsoan administrative organizer.
In addition to the aforementioned oflïcen, whose duties relate solely
to Native education, there are an organizer of domestic science and
' Vub Chap. IV,para.zo.ruPa.434 SOUTH WEST AFRICA
neediework andan organizer of handwork for boys, who serve European.
Colouredand Native schoofsin the Police Zone.
The present complement of rofwional officen, field staff and adrnin-
istrative stafl iconcerned wi& Native education in the Territory is
reflected in the iollowing table:
HeadO&ce(seruingal1groupsin theTerritory)
director of education
deputy director of education
professional assistant
admini~ ~ative st-~f-~6 ,n ~--ber
Field Staf (seruingal1groups inthePoliceZone)
organizer for ilomestic science and needlework
organizer for handwork for boys
organizer for music
Field Staf (serving aly Native groups,bothinside and ouisidethe Police
Zone)
chief inspector of schools
Fieldstaff (seruingonlyNatiuegroupsinthePolicezone)
inspector of schools
administrative organizer
professional aaistant
FieldStaf (seruingh'atiuegroupsoutsidethePoliceZone)
z inspectors of schools
I professional assistant
3 supervisors
z administrative organizers.
F.Sumey of Native Schools,Pupils andTeachers withinthe Police Zone
43. In the table below particulars are given of schools, pupils and
teachers in the PoliceZonein various years since 1922.
The mission s<:hoolsreferred to are reco nized mission schools. Schools
which did not. or do not, comply with t 5e requirements laid dow by
the Department of Education arenot included in the table.
The number of students given forthe years ~gzz and 1930 include a
comparatively cmall number of Coloured pupils who were then in
Native schools.
Ycar / Schoîls Pupilr Teoch~rs
,922 Rhenish 2,430 47 (including 3 Euro-
Wesleyan peans)
Roman C. 18 , 26 (part-tirne)
Anglican
Wesleyan 2 l
i49 (induding izEuro- COUNTER-MEMORIAL OF SOUTH AFRICA 435
Schwls 1 Pupiis Teacherr
Government z Government 240 146 (including 32 Eura-
Rhenish 50 peans)
Roman C. 24 Mission 4,216 1 45 (part-time. including
Wesleyan 1 1 24 Europeans)
-= l - 1 --
78 4,450 191
1950 Rhenishent 45 1 Governrnent 553 194(inpeans)g 28 Euro-
Roman C. 26 Mission 6.080 65 (part-tirincluding
Wwleyan I 25 Europeans)
Anglican
i - -
1 79 6.633 259
-
1960 Government 13 Government 2.1gi 1 334 (including 37 Euro-
Rhenish 56 peans)
Roman C. 26 Mission 9,476 '07 (part-time, including
A.M.E. 1 37 Europeans)
-
1962 Government zo Govemment 4.065 368
Rhenish 50 Mission 10,704 10.4(part-tirincluding
Roman C. 27 45 Europeans)
A.1M.E. 1
- -- .. ... -
98 14.769 472
1963 Government zz Govemment 5.52r 410
Rhenish 48 Mission 11,243 119 (part-time, including
Roman C. 27 4s European?)
A.M.E. -5 - -.
102 16.764 529
44. The figures in the above table show, regard heing had to the vari-
ous factors which have served to retard development. that steadv..ro-
gress has been made.
In 1922there were only 44 Native teachers, few of whom had had any
reaitraining. The teacher training school at Okahandja wason!y reopened
in r9z3 ', and three years later 12 students completed their training.
Thereafter-save during the 1930swhen economicconditions Fd serio.
effects on educational development 2-there was a gradua1 increase in
the number of teachers, and they were also progressively better trained.
Between 1950 and 1960 the position improved considerably, and the
number of full-time Native teachers increased from 166 to 297, Le., by
almost 79 percent. That there is stiU a shortage of teachers, however, 1s
shown by the large number of part-time teachers who have to be em-
ployed.
' Yi& para.23,nipro.
Vida paras17 to19. supra. Sub-sfondards Standards
Ycar
v VI VII' 1 VIII 1 IX X
19
-- 3.3 1.1 -
1962 . . ..... 4 3
1963 ...... . 459 282 79 20 4 3
Until the end of 19a sub-standard "a"preceded subotandards "A" and "B. As from 19the first year of schooling bas been
suh-standard "A".
In this column are included students in Forms 1and II (i.e.. one and two yem respectively afofStandard VI). COUNTER-MEMORIAL OF SOUTH AFRICA 437
Reference has already been made to the detrimental effect which
economic conditions during the 1930s had on schwl attendance '.This
isreflected m a comparison between the number of pupils enrolled in
1930and the number enrolledin 1940.After 1940there wasfair progress,
and excellent progresswas made during the years 1950to 1960,when the
number of pupils rose irom 6,663 ta 11,667, representig an increase of
almost 76 per cent.
45. In the table above are shown the enrolment figures in the various
sub-standards and standards in schools in the Police Zone during the
years 1949, 1951, 1954, 1955, 1960. 1961, 1962 and 1963. and compari-
sons with xw in the lowest sub-standard as basis. The table does not
include pupils in teacher training schools or in the industrial classes at
the Augustineum 2.
46. Theabove table shows that the vast majority of pupils are in the
lower prirnary standards, but that the numbers of those in the upper
primary standards are becoming progressively lar er The factthat ali
schools do not have a full ran e of classes up to ?tandard VI partially
accounts for the comparativ y low enrolment in the upper primary
standards (i.e., Standards III to VI), but it must be borne in mind that
until the end of 1962 the only condition for instituting a class higher
than Standard II was that there had to be at least fivepupils for such
a class; and, that if the number fell below fivin the course of a year.
such clas nevertheless continued till the end of that year. Since the
beginning of 1963 the position is as iollows: if a Standard III class
starts with fivepupils,such class continues till the end of Standard IV,
even if the number falls below five in the course of the Standard.111 or
Standard IV year; if a Standard IV class starts with five pupils, it con-
tinues till the end of the Standard IV year even if the number falls
below five in the course of that year; if a StandardV class starts with
five pu ils. it continues tiü the end of Standard VI, even ifthe number
These re uirements aredictated by the shortage ofteachers.d VI year.
The $-on in numbers in the lower primary classes cannot be attri-
buted to any lack of facilities, and when regard is had to the decline in
numbers in the lower standards. it is not sumrisine to find that so few
of those who go to xhool proce& to the ~~~er'~rim$ standards.
It is an encournginf!fact. however. that of those pupils who do go
beyond the lower $riSary standards, progressively'more proceed to
Standard VI. In 1 49. as the table above shows, there were rg students
in Standard VI. 2leven years later, in 1960, the number was almost
ten times as great. namely 186. In 1961. for no apparent reason, the
number fell to 153,but it roseagain to 206i1962 ,nd in 1963it was282.
47. Secondary education for Natives in South West Africa is of fairly
recent ongin. Junior secondary courses (up to Standard VIII) were in-
stituted at the Augustineum in 1953, and senior secondary courses (up
to Standard X) in 1958. Junior secondary courses have been offeredat
Doebra since 1956.
Emolments in the secondary coursesin 1963are reflected in the above
table as follows: 79 pupils in Standard VII, 20 in Standard VIII. 4
in Standard IX and 3 in Standard X.
a Asdtosuch clasevideChap. VI,para. 3inp.438 SOUTH WEST AFRICA
Not nearl ful use is made of the facsties offeredat the Augustineum
and at ~oegra, and many more students can be accommodated than
are resently takiig secon,darycourses.
T ge Augustineum provides for three different courses: an academic
course up to Standard X, teacher training, and techni:al training !n
masonry, woodwork and tailoring. It 1sopen to aii Native students in
the Temtor , and, as already stated ',ali students receive free tuition,
free book, Zee b.oard and lodging, and free tranyrtt? ?nd !IO? thek
homes as wd a:; pocket money. The Roman atholic institution at
Doebra is subsidized by the Administration, and tuition and boarding
are free.
AS. As stated above 2.the Administration started to take over the
Rdenisli Jlission !;ch& in the PoliceZone in1962.
As soon as the mission schools in the Reserves within the Police 7~ne
have been taken over. the Administration intends establishine at least
one higher prima~ school in each Reserve and of making fucds avail-
able for the erection of hostels in conjunction therewith, while lower
urimarv schools wiii be established at evexv so-calied "wst" in the
heservés where there is a suficient concentraiion of inhabiiants to war-
rant the building of a school.
G. Conditions relating to Education Outside the Police Zone
Ovamboland
49: At the 1gz.3educational conference, a provisional syUabus for use
in primary class~,up to Standard II was agreed upon by the Adminis-
tration and the various missions re~resented at the Conference. As
aireadg stated 3.the ~innish hlission did not sec its way clear to adopt
this syllabus. It was felt that. having regard to the stage of developrnent
of the oo~ulation in the northern areas. it wastüiin the best interests
of the'pèople to devote more time to religious instmction than the
syiiabus would have permitted. Another major difficulty was the lack of
teachers who had received sufficient traininrr. Of th304 teachen in
O\wnbolaiid in 1pz4.only 61 had received an; teacher training. and the
general standard of work was understandably very low. Most of the
schools-there wt:re 168 in 1qz4-were nothine more than rnere bush
schools. and the instmctionéi-~n~ ~ ~s mostl? of an elementarv and
religious kind. It wasonly gradually. as the quafity of teachers irnp;o\.ed.
that instruction couldbe given on sornewhat broader lines.
There wss onlv one teacher trainine school in Ovamboland in 102'-
that at Oniipaland it was only in hat year that the Roman Cktholic
and Anglican Missionsstarted work in Ovamboland.
50. Improvement in the standard of the scliools was slow. althou h
special efforts were made to raise the quality of the main station schoo s,
to which Euro ean princi als were appointed. and where hostel facilities
were created. flsc:ful worf: was done at the Oniipa training school and
at the Onguedira industrial school. established by the Finnish Mis-
Vide para. zg,suplo.
2 Vide para. 3snpm.
Vide Chap.IV.para.24
' Vida para. 2nrp.. COUNTER-MEMORIAL OF SOUTE AFRlCA 439
sion in 1928, where a three-yem' practical trainingcourse w+ aven in
carpentry, agrinilture, cattle raising, gardening and tree- lantmg. Inas-
much as they did not comply with the conditions whic E would have
qualified them for the subsidy paid to recognized schools, the Adminis-
tration made annual grants to these institutions.
In 1936 the Director of Education viUted Ovamboland to.inveçtigate
the possibility of introducing measures to improve condit~ons at the
mission schools and to find a basis for subsidizing the schools ,$hout
their having ta comply with the conditions which had been laid down
as a quacation for govemment aid. In the interim. until steps could
be taken to put education on a sounder footing. it was proposed to
qualifications.ards meeting the salaries of teachers with the necessary
51. The SecondWorld Warprevented the taking of any positive steps
cation was appointed in the northem temtories and from then onwards-
the financial aid granted to schools increased appreciably. Grants were
made in respect of trained teachers in day schools, to industrial schools.
training schools, so-called boys' and girls' schools. and also to district
inspectresses in the service of the missions. From 1952 onwards subsi-
dies have been paid to missions not in respect of particular, services,but
in the fom of a global surn to each mission, to be used at its discrehon.
In time the standard of the schools improved, and although a great
deal was still left to the discretion of the mission concerned, the activi-
ties of the Organizer of Education and his assistant, appointed in 1953.
did much to achieve greater uniformity amongst the various schools;
the progressive adoption of more advanced syilabuses, and a gradual'
adaptation to conditions applying in the schools in the Police Zone.
I'11s'.The Mission also imported a fewteachers withruni ver shodegrees
%om Finland, who were thenenrolled at a South African university to
take a teacher's course and to learnAfrikaans. and some Native students
were sent to SouthAfrica to be trained as teachers.
Ovamboland students wrote the Standard VI examinations conducted
for ~u~ilsin the Police Zone for the first time at the end of 1~60.and
the Areiults bear Gtness to the progress that has been made in r'ecent
years. Of the 130 candidates who entered for the examination 110
passed (i.e., 85 per cent.). Of the 166 candidates in the Police Zone, 109
passed (i.e., 66 per cent.). A concession was made to the Ovamboland
students. They wrote English on a Standard IV level but, on the other
hand, they offered one subject more than the Police Zone students in
that they also wrote an examination in their home language.
52. Further evidence of progress is the fact that. as from 1961, Form
1 (Le..one year after Standard VI) has been the minimum requirement
for admission to the training school at Onguedira, and Standard VI
the minimum requirement for admission to the training s+ool at On-
quality of teachers and of the work done at schools. As stated above3.
' Videpara.zz.rupn.
Vida para27.supra.
Vjdepara.40.supra.440 SOUTH WEST AFRICA
both the training schoolswiiiin future be banced bythe Administration
on the same linesas the Augustineum.
Another imoc~rtant advance in education in Ovamboland was the
introduction in 1961 of secondary courses at the training schools at
Ongandjera and Onguedira 1.
As alreadv stkited2. the lower ~rimarv schoolsof the Finnish Mission
in Ovambolkd were converted hto goCernment community schoolsin
1961,and the Roman Catholic Missionhas agreed to transfer its schools
in Ovamboland to the Administration. Fifteen higher primary schools
of the Finnish Missionwere taken over by the Adminitration in 1963.
The Administration has also decided to establish. as soon as possible,
lower primary schools at ali so-calied "psts" in Ovamboland where
there is a sufficientconcentration ofinhabitants to warrant the establish-
ment of such si:hools. The minimum requirement for establishing an
upper-primary class in Ovamboland is ten pupils: elsewhere in the
northem territoiies the minimum is five,as in the PoliceZone 3.
The Okavango
53. The Okavango is a vast area with a population, according to the
1960census. of :28,252 '.
It was only in 1910 that the fvst missionaries started work in this
area, when a Roman Catholic school was established at Diriko. The
first Finnish missionaries came to the Okavango in about 1930. At
present there are 46 mission schools in this temtory, seven of which
are higher primzuy schools.
The bulk of ?opulation is concentrated along the Okavango River,
where most of the schools are, but almost the whole of the occupied
portion of the axeais served by schools.
At the requcst of the Finish Missionz, the Administration has
decided, at leasr for the present. not to convert the mission schools in
the Okavango irito government community schools.
Tk Kaokoueld
54. The Kaok:oveld,about 5,560.00oha. in extent, has a population.
according to the 1960census, of ro.ogg, which givesa population density
of about 0.0018 to the hectare.
The inhabitants of the Kaokoveld led a completely secluded existence
asfar as missionary activity was concerned until the late 1920s. In
1927the Finnisli Missionstarted conducting services a few times a year
Zessfontein as from 1930. It was not until 1946.however, thate at a school
was established in the area. In that year the Rhenish Missionstarted
a school at Zessfontein. The services of a teacher trained at the Aurcus-
tineum were obtained. and the Administration granted an allowancë in
respect of his salary. AUsubsequent attem ts to obtain a second teacher
failed. Teachers cannot readily be persua&d to go to the Kaokoveld. a
' Vidr para.68.infra.
' Vidr para.46,supa.a
' The population density is 0.00tothe hectarev;ida para10. su@#, COUNTER-MEMORIAL OF SOUTH AFRICA 441
wild and isolated temtorv. whilethere is a demand for their services in
moTeattractive parts of Checountry.
The enrolment at the aforementioned school rose from 44 in 1947 to
,0~~ ~~,"".but in 1460it was onlv 50and in1462 it was 65. Exmnence
has shownthat veryfew pu ils.h&diy moreth& 15per ceni. in,âny year,
stay at xhool after comp eting the substandarents have consistently
school are Nama and Bergdama: Herero attitude being that they
are not interested in mission schools.
In view of the attitude of the Hereros. the Administration took steps
to estabiish a govemment school in the area. In 1955 a school building
was erected at Okorosawe from South Afncan Native Tmt funds, but
the Department of Education could not find a suitable teacher who was
prepared to take up duties there. When the 9tch Reformed Church
entered the fieldsome time thereafter, they decluied to make use of this
school building at Okorosawe-being unwillig to encroach on the
landof the Hererosiivhg there-and in 1961started a schoolat Ommana
instead. It was not until1961 that the Education Department succeeded
inobtaining the servicesofa teacher forits roposedschoolat Okorosawe.
This teacher agreed to takeuphisduties t ere at the beginning of 1962,
and in January 1962. the school at Okorosawewas started as a govem-
ment school.
H. Survey of Native SchoolTerritoriesd Teachen in the Nortbern
55. In the table bdow particulamare given O! schools, pupils and
teachers in the aforementioned areas outside the PoliceZone.
It must be pointed out that what werereferred to as "schools" in the
early years would not all be classifiedas such today. At that time there
were no prescribed syilabuses and most of the education given was
aimedat teachin the Natives to read, ,with the gpecificpurpose of pre-
paring them forsible study and religion. And in many instances the
pupils attending such "schools" wereadults.
Ycnr Schoals )Pvpik ) Tcecliarr
raz4 1Finnish 168 1 4.6891 304lincludinIOEurom)
1932 /Finnish 1 g.378 1293(indudiUg20Eui0pSuS)
1Anglican 179 I 1
Finnish rm 13.655 (Inforniation not available)
1g3g lAnglican 14
32
I 146
Finnish 16.026 WI (including 19Europeans)
Romn C.
Anglican
1 Rhenish COUNTER-MEMORIALOF SOUTH AFRICA 443
SIandnrd 1960 1961 1961 1 1963
Sub. A .............. 15,819 16.999 15,714 15.232
Snb. B .............. 3,522 5.105 6.340 6.895
Std. 1............... 2.793 4.653
3,378 4.7.59
std. 11.............. 2.269 2.663 2.379 2.795
1,085 580 1.163 1.445
std. IV. ............. 270 374 456 745
.............. 178
146 250 389
Std. VI. ............. 95 96 Ir9 7.0 1
Fo- 1 (Std. VII........ 20 32 28 63
Form II ............. - 19 18 13
- -
Form III. ........... 19 17
Form IV. ............ - - - IO'
P
Teacher Training........ 83 60 56 75
1 Tbwlogical stsduita at Odiba; vids22,rupm.
1. Schwl Attendance
1.PERCENTA OGFE ATIV EHILDRE NTTENDING SCHOO IL
SOUTH WEST AFRICA
ecause census statistics donot record ages of pepns anumcr-
it ISimpossible to detennine with absolute precision w9t per-
centage of Native diildren of school-going age attend schools m suth
West Africa.
For the purpose of presenting certain calculations to the Court, it is
assurnecithat children of school-go-.g age constitu23 per cent. of the
total populationl.
Workmg on the basis of 23 per cent., the following calculations can
be made.
Thepercentage of the total populahon retorbeof schml-golog egsmust
ofnecessitvaryaccordmg w what u considercd w be"whool agThe~mmittee
..............fn..-.. .- r..~t.................nhlv the Umted Nahons
in 1954took non-European children of rchoointhe Police Zoneto uinstitute
zo per cent. of ihenon-Euiapepopulation of that area. (VidaO.H...inlh
SesrSue. No. i4 (A1266b)p. 30.) The ,958Commission of Inquiry inw Non- , ,
444 SOUTH WEST AFRICA
Accordingto the census taken in 1951the Native population of South
West Africa (excluding the Eastem Caprivi Zipfel, which isdealt with
separately hereinafter) was 351,397. Based on the assumption afore-
mentioned, there must in that year have been 80,820Native children of
school age. The chiidren actuaiiy at school numbered 24.527 ',which
means that 30.3 percent. of ail Native chiidren of school-going age
were at school in that year.
In 1960,according to the census taken in that ear, the Native popu-
lation of South West Africa numbered 412.735 &xcluding the Eastern
Caprivi Zipfel). In that year there were in fact 37,801 Native ciuidren
at school, and, calcuiating in the manner aforestated, it means that
39.8 percent. of al1Native chiidren of school-goingage were at school
in that year.
58. The aforegoing calculations show that substantial progr- was
made during the pcriod 1951to 1960.And what isof articuiar sipifi-
cance. is the fact that the number of children enroueJ ose much more
rapidIy than the number of children of school age. The increase in the
number of chiidren of school age was approximately 17.4 per cent.
(from 80,820 to !)4.929),and in the case of chiidren emolled it was no
less than 54.1 pes cent. from 24,527to 37,801).
It was particukly d un.g the five years 1955 to 1960,that rapid
progress was made. During that penod the number of Native children
enroiied in the Police Zone increased by 47.8 per cent. (from 7,893 to
11.667).and in tlienorthem temtories by 4g.~pe~ cent. (from 17,515to
26,134).
The enrolment figures for 1961 again show a striking increase over
those of 1960.In the northem temtones the increase was 12.7per cent..
and in the PoliceZone it was q.1 percent.
If it bessumed that the 1961population figurewas 2 per cent. higher
than the 1960figure (givinga total population of 420,990for 1961).and
that 23pcr cent. of the population were children of school age. it would
ioliow that theri? were 96,828 Native chiidren of school age in 1961.
The children actuaily at school in that year numbered 42,750, which
means that s1ighl:lymore than 44 per cent. of ail Native children of
schoolage attended schoolin 1961.
It iç confidentlv exoected that under the new svstem of rrovemment
community scho& Ghich has been introduced in.the ~e&tor~. there
will be an even more rapid increase in the number of children at school
than there has been of recent \.carsThis has certainlv been the experi-
encein South Afiica, where thérewas an increase of 33 per cent. in the
number of Bantii schools between 1956 and 1960 as compared with an
European Educaticn in South WestAfrica twk the percentage to 25 (vidthe
Commission'sReport. Part1.para. Br19 (b), p. 99). Respondent considem that
a percentage of 23 is reasonahle. In 1960, whcanhe assumed. aU,European
children of at Leastthe cornpulsory agew(i.e., up to their sixteenth year) wers
at schwl. the total numher of European children actuatinchool constituted
22.2per cent. of thc total European population.
'The nurnkrs of childregiuen in the tables in paras. 4355. niploreflect
enrolrnenu at the teginning of the refond semesterycamtconcerned t:at u.
during the htsemester.pupiir vbo enroUedat the heginningof and left schwl COUNTER-MEMORIAL OF SOUTH AFRICA 445
increaseof 8 per cent. during the preceding five years. and where the
percentage of Bantu sdiwl-age cydren enroUed in 1960 was approxi-
mately 60as compared with approxlmately 40m 1955.
II. SCHOOA LTTENDANC IEOTHERAFRICAN TERRITORIES
59. That good progress has,been made in South, West Africa, and
that the results comparewellwith what has been achieved in other parts
o.-t~ ~continent of Africa. even where education hashad a much longer
history, is shown in the iollowing paragraphs, which are devoted to a
brief survey of schoolattendance inother temtones in Africa.
(a) Liberia
It is im ssible to determine with any meas. of exactness the per-
centage o chddren of school-goingage in Libena who actually attend
school. inasmuch as no w.u-ation census has, as far as isknown, ever
been taken.
Accord'mgto Dr. Kimble, until the end of the Second World War
"only ...p.ercent. or soof theschwl-age population wasactually attending
SChOOk .
A United Nations publication gives the percentage oftotal population
enroiied in the primary, secondary and technical schwls of the country
as 2 and 3.5 respectively in 1950ind 1955=.
In a publication dealing, idedia. with educational developments in
Liberia in 1961-1962,it isstated that, according to "the latest figures",
63,989t3.Calculated on tRebasis that the total opulation of the country
was r,250,000 at the time. and that childrenfoschoolage wnstitute 23
percent. of the total population', it would mean that about 22.26
cent. of a school-agepopulation (calnilatecl at 287,ooo)were enrol8"'at
the time.
As far asis knowii. no population census has !ver been taken in
Ethiopia. and it is, therefore. impossible to detemune wth any exact-
ness the Dercentaeeof children of schwl-aee whoat tend school. In 1956,
acwrding to a finited Nations' estimate. the total population kas
20 million % and in 1960,acwrdin~ to the Ethiopian Ministry of Infor-
mation. it was 22 million6.
~m&t W. Luther estimated the number of children at school in 1956
as"comprisiigonly a very small fraction+ertainly under 5 per cent.-of
the schd-agë population" '.
' Kimble.op.ci*.p. 125.
Vida U.N. Doc. EICN. 5/324/Rcv1.STISOAIJ~(Apr. 1957)p.. 80.
' vida para57,su*..Yarbooh of Educoh'onVol.XXIV (1962)p. 223.
' VidsU.N. Dos. EICN. 14/28p. 13.
' Efhiopio:Fats and Fiwru (1ç-50).p. 3.
' Luther ,P.citp. 27.46 SOUTH WEST AFRICA
In 1959-1960.according to officialEthiopian sources.thetotal number
anf8 church schools was 224,934mm'.tIf, for purposes of calculation, the
total population in 1959-1960is taken as 20 miilion. and if it be further
assumed that the school-agepopulation constituted 23 per cent. of the
total population 2.it foilowsthat about 4.9 per cent. of the schwl-age
population attended school in 1959-1960.
Another United Nations publication gïves the primary school enrol-
ment in 1960-1961as about 177,000 3,and the secondas. school enrol-
ment as about S.500' (a total enrolment figure of 185.500). According
to the same sciurce the official population estimate for 1961 was
Ig.~oo,ooo'.
(c) Ganally in African Tnntories
The position of school enrolment generaily in Africa is described as
foiiowsin a United Nations publication of 1961:
"The recent phenomenal expansion of school facilities, however.
has by no means brought educational opportunity for African
children and.youth to a desirablelevel. Today, for the AiricanStates
asa whole,only 16per cent. of the children ofschoola eare anrolled
SC] rn schcal. The situation varies from State to 8 tate. ranging
Lom lessth;m 2 per cent. of the school-agepopulation in school in
several States to nearl 60 per cent. in others. In the majority of
cases,the proportion orchildren out of schoolexceeds 80 per cent.'"
60. The foiiowingtable reflects:
in column(AJ: the estimated total population of various countries in
Africa in the years indicated:
in column (B): the total enroiments in such countries in the said years:
in column (C) : the calculated percentage of thetotal population enrolled
in the various countries in the said years.
The articulars contained in columns (A) and (B) have been taken
from tRe International Ycarbook of Education, Vol. XXIV (1962).
Educational Statistics, tables 1and II.
Minisfry of Education and Fina A*&. BureauofEducdiad Raienrch and
Sf<rridicrGouanintf. Mission, Priude. Conmunily and Church-Scholr rg59-1960.
p.6.
' Vi& UNESCOIEDIX~I,table 1,p. 153.
* nid., tablIIp. 154.
' Ibid.p.81.
* Vi& UnescolEDl180. p. 5. COUNTER-MEMORIAL OF SOUTH AFRICA 447
(A) (B) (C)
%of
Country Pepulaiimi Total populntim
I enrolnicnts cnrollcd
Burundi (1961) .............. 2.224.- 103.178 4.639
Cameroon (1959) ............. 4.066.000 423.793 1.042
Central African Republic (1961) ..... 1.227.an> 75.386 6.143
Chad (1961) ................ 2.680.000 96.435 3.598 .
Dahomey (1961) ............. 2.050.000 roz.z+5 4.987
Ethiopia (1960) .............. 20.000.000 182.246 o.gro
Gabon (1961) ............... 448.000 66.376 14.816
Ghana (1959) ............... 4.911.000 653.491 13.30
Guinea (1961) ............... 3.059.000 r2z.801 4.014
-
Ivory Coast (1960) ............ j.160.m z5o.zrj 7.918
Liberia (196r) ............... 1.3rg.o~ 58.132 4.421
Madagascar (1960) ............ 5.393.000 475.277 8.813
Mali (1959) ................ 4.100.000
55.313 1.349
Niger (1961) ............... 2.870.000 25.201 8.781
Nigeria (1961) .............. 35.752.000 1.966.612 8.298
Senegal (1961) .............. 2.980.000 r34.713 4.521
Sierra Leonc (1961) ........... 100.648 4.11
z.450.000
Somalia (1960) .............. z.oro.m 24.589 1.233
Tanganyika (1960) ............ -
9.~39ooo 465.171 5.035
Togo (1961) ................ 1.480.000 iez.039 8.246
Uganda (1960) .............. 6.677m 564.203 8.45
U.A.R. (1961) ............... 26.578.om 3.255.075 12.247
1.61
Upper Volta(1960) ............ 3.635.- 58.488
The correspondhg position in South West Africa in 1960 was as
follows :
Total Naiivc pop<&rion '10 of
(excluding the Eastern Caprivi Zipfel) Enrolnnil populdion
anrolkd
4'2.735 37.801 9.2
61. It is subrnitted. with reference to the aforegoing statisticç. that
good progress has been made in the education of the Native po ulation
of South West Africa.especiaiiywhen regard is had to ail the dikculties
that have been encountered and to the relativeiy brief history of the
education of the indigenouspeopleofthe Temtory .448 SOUTH WEST AFRICA
J. Courses, Syilabuses and Examinations for Native Pupiis
62. Tlie curri~.ulumin every government training school. govemment
Native school. recognized mission school and mission training school is
deterrnined and reylated by the L)irector of Education l.
1. PRIMARS YCHOOLS
63. A rovisional cumculum was formulated at the education wn-
ferenceoEg23 between representatives of the Administration and various
missionary bodies conducting Native schools at that time. Because
of a lack of teachers, it was agreed that the ordinary course in such
schools would at ht cover only classes up to Standard II, and that the
curriculum couid later be amended or extended as circumstances de-
manded or perrnitted. As stated before 2,the Finnish Missionin Ovambo-
land did not see their way clear to adopt the provisional syllabus, and
held the view that more time had to be devoted to religious instruction
than the syllabus would have allowed.
The provisional syllabus was:
(a) Religious instruction.
(b) Reading and writing of the home language.
(c) Speaking, ri:ading and writing of one officiallanguage.
(d) Elementary arithmetic.
(8) Manual instruction in at least two branches of handwork (Boys:
woodwork, :metalwork, gardening, building. etc.; Girls: needlework.
basketmaking, housework, etc).
(1) Hygiene (piactical application rather than theory).
(cl singins.
63. In 1931 the provisional syllabus was extended and thoroughly
rewed. The main characteristics of the revised syllabus, which came
into force in 1933.were:
(a) The introduction of a furtherschool year, Standard III. The +ck
of adequately trained teachers did not permit of the introduction
of any higher standard at that time. Pupils under the age of !7
who had completed Standard III were permitted to re-enrol in
Standard III and to do such further work as could bearranged
for them.
%b, More svste~natic instruction in the mother toneue-.with the helv
of bettér books.
(c) Initial instruction in an officia1lange through the mother tongue.
(d) Higher demands in arithmetic andrygiene.
(e) The introduction of geography as a subject.
65. The syllabus thus revised was amended and extended hm the
to time, and remained in force until the end of 1q51.
The 1952syllabuses made provision for the completion of the pri,mary
wurse in nine years, and applied to al1Native schwls in the Terntory.
The subjects were:
(a) ~ible history and ethicsas an examination sub'ect
(b) Hygiene asan examination subject from stand~r toStandardVI.
Proc.No. 16of ,926 (S.W.A. a) amended, sec.129.inLiws of SmUh Warf
AwcaVida para49,9mpo.927 p).6 COUNTER-MEMORIAL OF SOUTH AFRICA 449
training (compulsory).
(homelanguage) from Sub (a to Standard II.
one of the two official anguages, taught as a
second language from Sub (a) to Standard II.
(f) Third language: the other officcallanguage, taught frnm Standard
II.
( ) Drawing: from Sub (a) to Standard IV.
(il Wnting: up to Standard IV.
(ij +thmetic: from Sub (a) to Standard VI.
(1) HistoT ? Sub (a)-Sub B in home language.
Std. 1-Std. VI in an officiallanguage.
$1 $
(m) Handicrafts for boys: SubA to Standard VI.
(n) Needlework for girls: Sub A to Standard VI.
(O) Singing: Sub (a) to Standard VI.
lased on those in use in the Bantu schools in South Africa and adapted
ro local conditions. were introduced in the northem territones. In 1962
they were introduced in the schools in the Police Zone.
66. The new courses are divided into a lower and higher primary part.
Thev make ~rovision for eight school years and for the use of the mother
ton&e as a-medium of in<tniction in the sub-standards and, asfar as
possible, also in Standards 1and II.
The subjects in the lower primary course are:
Scripture, Mother Tongue. Afrikaans, Englisli. 'aithmetic. environment
study, hygicne. writing, sin 'ng.drawing, clcîning work, iveavingand
clavwork. needlework (~irl..scrai, work .UO\.~)c.ardenin-.
The subjects inthe higher primary course (Standards III-VI) are:
Scripture, Mother Tongue, Afrikaans, Engliçh, arithmetic, social studies,
hygiene, nature study, singing. gardening. tree planting and soi1
conservation (Boys),wood, leather and scrap work (Boys),needlework
(Girls).handicrafts.
Because so many pupils leave school at an early stage, the lowef pri-
mary course is intended to be a more-or-lesscomplete course, giving a
grounding in elementary knowledge in several fields.
Standard VI has been retained as thc final year of the primary course
in Native schools ' bccause comparatively few Native students progress
beyond Standard VI, and because a Standard VI certificate entitles
Nativestudents to be enrolied at teacher training sci:ools.It furthemore
opens various fieldsofemployment to Native students.
AUpromotion examinations up to Standard V are conducted by the
schoolsthemselves, subject to the control of the Education Department.
The Standard VI exaxynation is.an extemal exam,ination and is con-
ducted bythe Examination Committee of theEducation Department.
-
1 As compand with a change in1956in European and Colouredschwls fram
Standard VI to StandardY; vi& Chap. VII. para.25,infia SOUTH WEST AFRICA
II. SECONDAR SCHOOLS
67. As already stated ', junior secondary education was fust offered
at theAugustineum in 1953,and at Doebra in 1956.The subjects offered
were:
At the Augustin~?umA : frikaans, English, history, geography, biology,
hysiology and anthmetic, plus non-examination subjects such as
Kandwork, physicaltraining,singingand Biblehistory.
At Doebra:Afriltaans, English. Arithmetic, Latin, mathematics,history
and biology. plus non-examination subjects such as Bible history,
sin~in~-physical trainingand handwork.
Both courses prepared pu$~~for the Junior Certificat~ examination
of theUnivemit), of South Afnca. which body &O conducted the exami-
nations until 1960.
As from 1960 the syllabus used for the Junior Certificate examination
has been that of the Bantu Education Department of South Afnca, and
at the end of 1961candidates wrote the Junior Certifiate examination
of that Departnient. South African Native candidates for the Junior
Certificateexamination offerseven sub'ects instead of six as is requked
in the case of European and ~oioured pupils. the extra subject bag
allowed to offerionlysix subjects, the Native languages of theTemtory
having not yet Ixen developed to a stage where the teaching of them
is feasible on the Junior Certificate level.
The examination and non-examination subjects are:
ExaminationSubi& Non-examinationSu6jccts
Auguslineum
Afrikaans Religiousinstruction
English Singng
Biology Physical culture
Socialstudies
Arithmetic
Agriculture
Doebra
Afrikaans Religiousinstniction
English Singing
Latin Phyucal culture
Mathematics
Biology
Socialstudies
Ouamboland
Afrikaans siging
English Bible history
Mathematics Physical culture and
General science health education
Socialstudies Mother Tongue
Agridture!necdlework
The South Wert African Education Department has a representative
on the Examination Board of the Bantu Education Department.
' Vidapan. 47.SU*#. COUNTER-MEMORIAL OF SOUTH AFRICA 451
The Iunior Certificate course extends over three yearsasin the caseof
~urogan pupils. but Native puplls spend one moÏe year at the primas.
school. The extra year in the case of Sativr pupils is necessary largely,
because of lanw~ae dificulties. and in order to bring the standard of
t-~ir work on*with that ofEuro~ean students
68. Secondary courses wcre introduced in I~GI at both the (raining
schools. Ongandlera and Origuedira, of thc Finnish Yiuion iii Ovambo-
land. Thesvilabususcd there is that of the Bantu Educ~tion Department
of South Akica.
the Augustineum isthat of the Joint Matriculation Board of South at
Africa, and the subjects are: Afrikaans. English, history, geography,
culture and biology. There is no difference between the standara
done in the senior secondary course at the Augustineum and
thatdone in European schools,nor in the standard of the finalexamina-
tions. The only djfference is that, because so few Native students enrol
for the course, no subject differentiation has so far been possible. In
1960. forexample, there were in the Territos. 275 European candidates
for the Senior Certificate examination as against only I Native candi-
date. In 1962 the relevant figures were: 321 European candidates and
2Native candidates.
K. School Buildings, Equipment and Books for Native Pupils
1. GOVERNMEN STCHOOLS
70. In urban areas schools for Native children are erected and main-
tainedbythe responsible local authority. For this purpose the Adminis-
tration grants the local authorities loans at low rates of interest. The
Native inhabitants in the area of the local authority concerned contribute
to the cost by way of a small increase in the rent they pay for theu
dwellines. In the new township of Katutura, ex.. the increase is20 cents
per ho& per month. ~ativej do not own propertv in such areas. and
arenotsul~ject to urban taxcition. From Fehruary 1962to May 1963the
sum of the increase was K4.500. whilr the total cost of the three new
Native schools in the towns'Gpwas R55.470.
In some Native Reserves in the Police Zone buildings have been
erected by the Department of Bantu Administration and Development,
and the cost defrayed out of tribal funds. The Administration has also
decided to contribute towards the cost of erecting schools and hostels
in conjunction therewith in the Reserves where tnbal funds are not
sufficient to bear thexpense. For the financial year 1962-r963. R~oo,ooo
IEC>o,ooow ) as set aside for this purpose. The Administration intends
making continued provision for such expenditure in future. Money so
set aside isspnt in providing materials and skilled labour forthe erection
The contribution by parents is at present limited to unskiiled labour,
rendered ona voluntary basis. Such parents receive asmaUremuneration
for their services, andlsorations where necessary.
In the case of govemment community schooIs,the Native communities
concerned are responsible for the erection and mamtenance of school
buildings, the Administration providing the building materials. As in the
case of the schools referred to in the paragraph immediately above.452 SOUTH WEST AFRICA
however, parents who assist in the erection of school buildings are paid
a srnail reward for th& senices. School committees are reswnsible for
providing hostel facilities. aJrents are expected to &nuibuteto
the form of iubsidies.hildre?he Administration-grants assistance in
Furniture anil tquipment are provided free by the Administration,
whiie books anc. stationery are supplied to students at reduced prices-
at uresent so Dercent. of the costl Text and reference bouse bvi
teâchers& sÜppliedfree to ailschools.
To encourage the purchase of library books, the Administration sub-
sidizes schools for the non-European groups on a R6 g3) Rzr KI)
basis.
II. MISSIONSc~oors
71. In the case of mission schwls the necessaq buildings are provided
by the mission concerned. and must be approved by theDirector of
Education for piirposes ofgovernment financial assistance. The Adminis-
buildings at approved schools, calcu ated on the basis of not more than
50 cents. S.)perannum per pupil enroUed.
The provision by the Administration of fumiture, e uipment, books
and stationery,and the grant of subsidies for li9,ary boo s, are the same
as for govemment schools.
L. Salariesand Emoluments of NativeTeachers in SoWest Afnea
72. Native teachers in South West Africa receive the foUowing
remuneration in respect of their services:
1. A salary, base6 on qualifications, and fixed in accordance with
scaleslaid clownfrom time to time.
II. A cost-of-li~ine allowance. the amount of which dewnds on the
salary. scxndUmmiagestatus of the individual.
III. A refiional sllowance. pavable to teachers in the Police Zone.
IV. A principal's allowancc. whe.. a~ulicable.
Particulars of the aforegoing are given in the paragraphs below.
73: The sale, scales applicable to Native teachers in South West
Afnca. as laid Clownfrom time to time, and in force unt1961 are
set out in the tables on pages453and 454. C<iUgayacuxdingio
qudifi~ionr 1916 1947 1951 1953
R96 x 8-144 Rr20 x 8-168 R144 x 16-228
&law Std. VI U72 x 8-114)
(1.18x 4-72)
Equivalent to StdVI Ri44 x 12-288 Rigz x 12-336 Rz16 x 24-360
(L72 x 6-144) (L96 X 6-1MO cc108x 12-180)
Std.VI plusI yearfvrther training R168 x 12-312 Rzoq x 12-348 R228 x 24-372
or schooling U84 x 6-156) Uroz X 6-174) (Ali4x 12-186)
Std.VI plus zy- further training Riza x 12-zoo R~gz x 12-336 R240 X 244-384
or schmling L/b X 6-IQ)) (L96 x 6-168) Ur08 x 6-180) (Lizox 12-192)
-
Std. VI plus 3 yeafurther training Rzr6 x 16-360 R228 x 16-372 Rz56 X 24-400
orschooling (Li08 x 8-180) Uir4 x 8-186) (LI28x 12-Zoo)
Std. VI plus 4 y- further training R240 x 1&384 Rzqa x 16-384 R272 x 24-416
(Ln0 x 8-192) UIZO x 8-192) (Lx36x 12-208)
or schwlùlg
Std. VIplus 5 yem fufther training R264 x 16-404 Rz64 x 20-404 RZgo X 30-440
or schooling (LI~z x 8-202) (Li32 x IO-zoz) (LI45 X 15-220)
Std.VI plus 6 yearfurther training R288 x 16-428 Rz88 x 20-428 R3io x 30-460
orschooling Kr44 x 8-214) CC144 x 10-214) Kr55 x 15-zlo) P
Y.
WOMBN: PER ANNUM
Coicgmyaccordinf io
gunlific<iiimtr 1926 1947 1951 1953
I
&iow std. Yi R96 x 8-144 RIZO x 8-168 Ri44 x 16-228
(l48 X 4-72) (lb X 4-84) (L72x 8-11.1)
Ri20 x 12-240 Ri68 X 12-288 R192 x 24-312
Equivalent to Std.VI
(Lh x 6-120) (La4 X 6-144) (L96X 12-156)
Std.VI plusi year further training RI*+ x 12-264 R18o x 12-300 Rzo4 x 24-324
or sehwling (l72 X 6-132) U9 X 6-150) (l~ozx 12.162)
Std;VI plus 2years further training R166 x 12-288 Rigz x 12-312 Rzi6 x 24-336
or schooling (La84X 6-144) (L96 x 6-156) (L108x 12-168)
Std.VI plus 3 years further training R96 x 8-160 Ri92 x 16-320 Rzaq x 16-332 R228 x 24-348
or schwling (L48 X 4-80) (L96 X 8-160) (Lx02x 8-166) Ki13 x 12-174)
-
Std.VI plus 4 years further training Rzr6 x 16-344 R216 x r6-344 Rz44 X 24-364
or schooling Kr08 x 8-172) (l108 x 8-172) Ur22 x 12-r82)
Std.VI plus 5 years further training R240 X 16-368 R240 x 16-368 R260 x 24-380
or sehwling (Lu0 x 8-184) (lm0 x 8-184) (li30x 12-19)
Std. VI plus 6 years further training R264 X 16-392 R264 x 16-392 R276 x 24-396
orschooling (Lx23 X 8-196) (L132 X 8-196) Ur38 x rz-~gB) COUNTER-MEMORIALOF SOUTH AFRICA 455
74. New scaies for profwionaüy qualified Native teachers came into
operation on I Apd 1961 '.These scales, which are still applicable. are
as follows2:
I. hwer primary Teachen certihcate
Men ................ Rz4o x 18-402 Ur20 x g-201)
Women .............. Ri80 x 12-joo x 6-150)
2. Higher primary teachers cetiihcate
Men ................ Rz76 x 18-492 (L138x 9-246)
Women .............. Rzo4 x 12-372CC102 x 6-186)
3. Matriculationplus professionaicer- 1
tihcate
en ................. R360 x 24-720(Li80 x 12-360)
Women .............. Rz60 x 16-532 (LI~o X 8-266)
4. Four degrec cou- -lus~professiona1
certihkte
Men ................ R396 x 24-756 (Lx98X12-378)
Wamen .............. Rz84 x 16-556 gr42 X 8-278)
5. Eight degra con- .lus-professiona1
iertificate
Men ................ -32 X 24-792 (LZI~ 12-396)
Womm .............. 1 R308 x 16-580 (£154 X 8-290)
6. Degree plus professionai &=te
Men ................ Rs16 x 2+qw (L258x 12-450)
Women .............. R364 x 16-652 (Lx82x 8-326)
Al1teachers in service at the date of coming into operation of the
above scales who held qualifications lower than the minimum pro-
fessional qualification recognized for teachers (viz.. the Lower F'nmary
Teachers Certificate, or Standard VI plus two years teachers' training).
are deemeà '. for salary purposes, to have such minimum qualification.
Persons entering the senrice after the said date without any teacher's
qualihcations are paid a fixeà salary, which is lower than the above-
mentioned scales for teachers.
New saiary walo for Nativeteachers, to operote with retrospcctive easect
hm a date in 1963. are at present under consideration.
2 These scalffi apply tal1qualihed teadienin thePolice Zone. to qualined
kachen at govemment eommunity schools in the northern territoriand to
qualihed teachers of thosemission?, in theMid temitories whieh haagrredto
theirwhools bein" ~ ~~n ovu bv the A-dm~nistrationIn thenorthern temtario
m& teaehers with a ~oweror ~i~her Pnmary ~iachers Certihcate teaching in
lowm primary schmIs are paid according toths scafffi applicable in caseof
women.
3 By vimie of a resolution of the Adminjstntor-in-E-utCornmittee.adaptcd
in Janoary 1961.456 SOUTH WEST -CA
75.In addition to th& salarie aii,teachers receive a cost-of-living
allowance. The aliowances payable annum in respect of difierent
salariesfor quaiihed teachelsare as Eows:
Solnrypoufi Monrrd men 1Si~glama,and vomm
III. REGIONA ALLLOWANCE
76. Teachers inthe Police Zone are paid a re 'onai aliowance in
addition to their salhes. The allowance is R80 t40) per annum in
the case of manied teachers, and Qo @O) per annum ui the case of
unmamed male and femaie teachers. Th aiiowance is paid to teachers
in the Police Zone because, firstly. their saiaiies were already higher
than those applicable in South Africa when it was decided in1961 to
adopt the scaies applicable in South Africa. and, secondly. because
the cost of iivinishigher in the Police Zone than in the areas beyond
the Police Zone .
' Vidspara74..n<pla.
As fromJanuary 1963Nativ eachers atthe Augostineuarepaid an addi-
tional annuailowancof RIW &O). COUNTER-MEMORIAL OP SOUTHAFRICA 457
IV. PRINCIPAL'ASLWWANCE
77. In addition to their basic salaries, principals of schools.including
those called "fust teachers:' at mission schools, are paid an annual
principal's ailowancewhiisdetermined in accordance with the enrol-
ment of upils at their schools. These allowanceswere increased as from
April 1t'.and are now as follows:
Enrollnimt 1 Allownçcpcvannum
78. At resent the cmd%g incm of a manied male teacher
what isdeemedtoebeits equivale'is R51z (£256)per annum, cahhted
as follows:
(,$O).there,has. accordingl , been an increase of 326.66percent.
The muxtmum incorn OYa mamied male teacher in the Police Zone
with the lowest qualifications increased from Rzoo (froo) in 1926,to
RB30 &15) in 1961 (i.e., salary of R402 &ZOI),plus cost-of-hwng
aiiowance of R348 @74). lus a regional dowance of R80 u40)).
This represents an increOf315percent.
M. Expeudihue by the Administraiionof SouthWest Airka on
Nativ Eeducation
79. '!le table belowcontains particularsof the expendiwe on Native
education in the Police Zonein 1922and cenm yem thereafter.
The amounts in the table do not include moneysspent by the Adminis-
'vuh para. 7). *a.4s8 SOWH WEST AFRICA
stration in connt:ction with education or training in institutions whidi
do not faIl undcr the jurisdiction of the Education Department (for
example, training of nurses). Nor do the amounts inthe table include
moneysspent by the various missions,particuiars ofwhicharenot known.
The iïgures in the above table show that over the years inaeasingly
largeramounts have been spent on Native education in the PoliceZone.
From 193prg40 to 1962-1963 the per ca %taexpenditure on Native
pupils increased by 361percent. (Le.,from &.95 to Rz7.45)
II. THENORTHERT NERRITORIEO SUTSIDE THE POLICE ZONE
80. Until about 1945 only smaü annual subsidies were granted in
respect of certain mission schools, the reason being that the missions
in the northem territories did not comply with the conditions which
would have entitied them to the payrnent of snbsjdies. After 1945,
aithough the missions were stiU not complying with sudi conditions,
larger subsidiesweregranted.
In the table below particuiars are given of the amounts spent by the
Administration in1947-1948and vanous years thereaiter: COUNTER-MEMORIAL OF SOUTH AFRICA 459
The figures in the above table do not indude amounts spent by the
various missions. During 1960, for example, the moneys spent by the
Roman Catholicand Fimish Missionson their schools in the northern
tenitories amounted to Rrz7,qgo E63.745). No particulars are available
of the amounts spent by the other missions.
The taking over by the Administration in 1961of the Finnish Mission
lower primary schools in Ovamboland 1 immediately brought about
inneased exoenditure. The amount ment bv the Administration in
rg61-1962 (K'16~.6~5( )£84,847)on edu&tion * the northern tenitpries
was71percent. higher tban the amount spent in 1960,and expendture
wiii increase as more mission scbools are taken ovrr bv the Adniinis-
tration.
III. PERCAPITA EXPENDITUR ON NATIVE EDUCATIO IN
SOUTH WESTAFRICA
81. In the aforegoing paragraphs separate expenditure ligures were
given for the Police Zone and the northern temtories. As an indication
of the $87capitaexpenditure on education in the whole of South West
.4frica (exdudiq the Eastern Caprivi Zipfel), the rg5g-1g60 figures
reveal the foiiowing:
Totalbobulatioli Totalexbnidifurc
(1~6; fensus)
412,735 ' Police Zone: &z9,994 '
Northern temtories: R 82,590 '
Total R382.484
Exfienditureper Capita of
Total P@ulnlim in 1960
Ro.93 (9s.46.)
N. Education of Natives in the Eastern Caprivi Zipfel
82. The control and admitration of the area known as the Eastern
Caprivi Zipfei was, in terms of Proclamation No. 147 of 1939 (S.A.),
vested in the South African Minister of Native Affw (nowdeçignated
Minister of Bantu Administration and Development). Education in +e
area is under the control of the Department of Bantu Administration
and Development. which has the benefit of the services of o5ce. of
the South AfricanDepartment ofBantu Education in so far as education
in the Zipfelis concerned.
83. The history of education in the Eastern Caprivi Zipfel has been
Vida para57.supra.
Vidc para79,supra.
' Vidc uara80.subrn.
~orn~arative fi& in the case of the Applicant Stanegiven in thIn&-
noliaal YearboobotEduroria, Vol.XXIV (1962). ble VI. p496:
Liberia: ex~eoditureDerinhabitant othe-.uulation i19611.6U.S .oll~ =
~i.14.
Efhiopio:upendihire perinhabitant of the populati1959: 0.U.S. doUW =
Ro.43.4% SOUTH WEST AFRICA
very much like that in the most isolated parts in the northem areas of
the area was even wilder and less developed than Ovamboland and thete,
Okavango. The uhabitants made their firçreal contactwith civilization
onlv in about rozo. when a missionam of the Seventh Dav Adventist
~hkch came to'the arca. MissionariG werc given a free Land in the
educational field,and in time they established a fewschoolsinconjunction
with their rcligioriswork. Most of the instruction given in these schools-
as was the position in Ovamboland and the Okavango during the early
years-was, howzver. of a reiiiious kind.
In 1q34,whcn there were six mission schools in the area. the mission-
aries açked for, and were given. permission to establish 12 schools, but
a serious famine in the foliowingyear saw the closing down of aiischools.
In 1936 there were six schools. viz., at Katima Mulilo, Sikanjakuba,
Kalembeza. Ikaba. Luhofu and Linvandi. with a total enrolment of
i70 pupils. The n\issionaries. howeverfdhada dificult task inmaking their
influence felt. anj as rime went by they seemed to achieve lcss and les.
Io 1939 there were four schools ;vitha total enroiment of 169 pupils.
B 1942the enroiment in the four schools hadfallen to 136,and in 1943.
wfTenthere was only one school, the Seventh Day Adventists ceased
their educational activities, and retained only a few Church sites.
the field, and in the years that foliowed progres was made. The task
facing the Churcli-and civilization-in the area has. however, remained
an immense one. Even today the two Churches together have no more
than approximately 900 adherents out of a total population of 15,840 '.
84. In 1944four schools were established by the Catholic Church. and
three years later four more foliowed. In 1953 a school with classes up
to Standard V was established-the first school in the area with classes
beyond Standard II. The first govemment school, with lower and higher
pnmary classes. and conducted on the same lines as the community
schools in South Africa and those recently established in the rest of the
Territory, was established in 1960, and it proved an immediate success.
Most of the Native parents concemed welcomed the opportunity of
playing a part in the education of their children, and in 1961 a second
lower primary community schoolwas established.
At present thme are 18 schools in the area. Higher primary classes
are offered at the aforementioned higher primary community school and
at both the boys' and girls' sections of the higher primary Catholic
school at Katima Muliio. A Form 1 (Le.. one year after Standard VI)
class wiil be instituted at the Catholic School at Katima Mulio as from
the beginning of 1964. Hostel faciiities are provided for both boys and
girls at this schad.
85. Particularr; of enroiment of pupiis, and of teachers employed, are
given below.
Censusfigurein 1960(unpublished). COUNTER-MEMORIALOF SOUTH AFRICA 461
PUPlLS
1961 1969 1963
Sub-A ............ 601 810 668
SU~.B ............ 337 387 361
Çtd. 1............. 234 294 345
Std. II.. .......... -- 139 175 239
Çtd. III............ 85 113 126
std. IV. ........... 70 72 -- 69
Std. V ............ 34 62 65
--
Std. VI. ........... 3 27 . 50
1.503 1.940 1.923
1
Female pupilsusually constitute about 25 per cent. of the total enrol-
ment.
TBACHSRS
1961 ........ 39Native teachers2ofrphom wcre women, and 3
Europeanteachers
1963 ........ 41Native teachers, 2 of whom were women, and 3
European teachers
Five additional teachers' posts have been created, and will be filled.
asfrom1964.
86. The comparatively smd number of female pupils. and teachers.
is dueto the fact that girls oftenrry at an early age,and tosend them
to school. or to keep them at school for anylength of time, 1sregarded
as an unnecessarysacrifice bymanyparents. The women in the area are
required to work either at home or on the lands, and many parents
believe that by attending school their daughters become lazy, and,
accordngly. less attractive to prospective husbands.
Apart from an unwillingness on the part of parents to keep their
daughters at school for long,manyboys are ais0 kept £romschoolbecause
they have to herd cattle and work in the fieids.
87. When due regard is had to the difficulties which have to be coped
with, and. in particular, to the short time which has elapsed since any
real start could be made witb education in the area, there can be ?O
doubt that good progress has been made. The standard of work done m
the schools has shpwn substantial improvement suice the early years
when rnost of the uistruction was of a retigiouslond on1 The mission
schools have,since1960 ,t their request, been usingsy~acuses baçed on
those prescnbed by the Bantu Education Department for its schools in462 SOUTH WEST AFRICA
South Africa. An indicatioii of a growing interest in education is the
fact that each of the two ~nnintribes iii the area has shown itself pre~ared
ta graiit liurs;irii.s frai11tribil lunds to students who \r,ishta hë tesined
as tcachcrs. Hcc<.iitIytlicsc tribus grnntcd bursaries ol I<roo (&O) a year
to t\vo studaiits iakiiic tc&<:l.ctrr.tiiiinc courses in Soiitli Africa.
88. In qGo, accordiiig to the census taken in that year the Native
population of the Easterii Caprivi Zipfel was 15,840. Te total school
enrolmeiit in that year was approximately 1,300. If it be assumed that
children ofçchool age constitute 23 percent. of the total population ',it
followsthat the school-age population in 1960 must have been approxi-
mately 3.634 and that the percentage of children of school-age who
attendcd school was about 35.7. In 1963, with 1,923 piipils at school
out of an estimaled total population of 17,500. the percentage of school-
age children actually at school is about 47.7.
89. A sliorta~t:ol te:icliers has at al1 tirna hampered development in
tfiç :ire;,. I<ecnu!.~.f I~riguage ditficultics, tcûchers cannot readily be
ol)t.i~ii~d~ ~ ~i S<iutl~Afri~ ~ ~ ~e--l South :\frican Sxtivc teachzrs have
in the past been-rccmited for servicein the-area,but not one rem-ned
for morï thin a few months. Al1found the area tao isolated, and con-
ditions gencrally toostrange, to work there rather than in South Africa.
The only renl tield for recruitment has been across the Zambesi from
among tlie Silozi.speaking people, who study iii Rhodesian schools and
teacher-training r;chools.
At preseiit liejpondent aiinually offers two bursaries of Rroo (£50)
a year for tliree or fiveyears (depending on the duration of the course)
ta deserving students who wish to take teacher-training courses at insti-
tutions in South Africa and who are prepared to give an undertaking
to serve as teachïrs in the Eastern Caprivi Zipfel for a period of at least
three years aftei completing their courses. Students in the Eastern
Caprivi are, however, not keen ta go to distant South Africa. Those
who wish to train as teachers, or to further their stndies cthenvise,
prefer to attend nearer schools across the Zambesi in Rhodesia, where
they find themselves amongst members of related tribes who speak a
language they uiiderstand. At present there are four Caprivi teacher
trainees at the Botswana Training School at Mafeking in South Afnca,
two on Rovernment bursaries, and two on tribal bursaries.
go. The Church schools in the area are under the contra1 of the
Church, but there is close co-operation between the ,Misdon and %e
Bantu AffairsConimissionerstationed in the area. This officeralso main-
tains close c0ntaî.t with the eovernment communitv schools and the
Rantn Education ~e~artrneii. An Inspecter of tl;e Department of
Bantu Educntiori stnticried iii I'retona. carries out periodic inspections
of al1schools in the area,and also conductsvacation courses for teachers.
gr. Al1education in the Eastern Caprivi isfree. The Department of
Bantu Administration and Development subsidizes the Church schools
to the full extenf. of teachers' salaries and aiiowances on the scales set
put below, and ari annual lump-sum payment (at present Rgoo (L450))
1smade in respect of the salaries of the three European teachers. The
Department also snbsidizes the Church schools in respect of books and
schwl requisites tothe extent of jo per cent. of the actual cost thereof.
Vide para. 57, rup*a. COUNTER-MEMORIAL OF SOUTH AFRICA 463
Each of the two community schools receives an annual ant of Rzoo
@oo) for this purpose. A pn capitaallowance of 30 cents Es.) per year.
based on the average yearly attendance, is paid to Church schools in
respect of school equiprnent and repairç to buildings, and an annual
subsidy is paid to the Church in respect of a school-feeding scheme at
Katima Mulilo.
gz. The salary scales applicable to teachers, operatasefrornI April
1961, are set out below.
(a) Men and WomenwithnoProfessional Qualifications
(i) Standard IV. R108 (£54)per annum.
(ii) StandardV. RIZO I" per annum.
(iii) Standard VI. R13z £66) per annurn.
(iv) Form 1 (Standard VII). RI# 72) per annum.
(v) Junior Certificate
(Standard VIIIl R168 (.- ..-r annurn.
(vi) &nior Certificaie
(Standard X). Rz34 (£117)per annum.
(b) TeacherswilhProfessional Qualifications
(i)Std. IV plus zyears'
training. R13z (£66)per annum.
(4 training.us 2vears' RI# (£72)per annum.
(iii)ower Primary Teachers'
Course II (1 year after
Form 1).
(iv)Elementary Primary
Course (Rhodesian)
(2 years after Std. VI).
,,lLower Prirnarv Teachers'
Course III.
Men
Women
(vi) Higher Prirnary
Teachers' Course.
2uvears Std. VI oluslus
5 years.
Men R276 x 18-qgz (L138x 9-246).
Women Rz40 x 12-372 @?O x 6-186).
(vii) Matriculaiion plus Pro-
fessional Certificate
(i.e.2 years)
.....
Wornen
(viii) Four degree courses plus
Professional Certificate.
Men
Women464 SOUTEWEST AFRlCA
(ix) Eight degreecoursesplus
ProfescionalCertifiate.
Men R432 x 243 z 216 x12-396).
Womeri R308 x 16-580 t154 x8-290).
(x)Demeeplus Professional
Cdificate
Men
Womeri
93. In addition toeir salaries, aii teachers receive a cost-of-living
allowancein accordancewitb the foiiowingscales:
SalaryGroup AnnualCosl-of-LivingAIlowanu
Marricdmcn Unmarriutmen
andwmen
R GR108 R81.60 R40.80
(Aq54j K4~ 16s.) g20 8~)
KIO~-RIZO Rgr.20 R45.60
g51zo-R13z R1oo.80.) Rso.40s.)
RI~z-RI* Rrro.40 R45.20.)
K6-72) K554s.) (£22125.)
RIW-RI~~ R12o.m R60.w
K72-£78) (£60) (£30)
RrgbR168 Rrzg.60 R64.80
(£7-84) Li328s.)
R16GR18o R69.60
6i84-490) K69 12s.) (£3416s.)
RrLRzoo R15z.m R76.00
£90-£1a>) K76) K38)
k zoo-Rzzo R168.w R84.00
(£84) (£44
(L22--k:tO)240 R184.m R9z.00
Rqo-Rz60%0) Rz00.00 R~oo.w
Rz60-R3000) k240.00 R1200).00
(L13~L150) K120) (£6060)
R3-4400 R320.00 R160.m
(£ISO-goo) (£80)
R4oo- 600 R2oo.00
(£z-poo) K240)
R6-m- 700 R560.00 Rzoo.oo
(£100)
Rzoo.00
K350) (£320) KIW)
94. Principals of schoolshave since1961meiveri a principal'saüow-
ance. The aüowance, determineciin accordance with the number of
pupilsat a particularschooasfouows: COUNTER-MBMORIALOF SOUM AFRICA 4%
Nwnbn ofpvpils Allowancc -
-JO R24 (Ln) per annum
51-100 %a (124)
101-zoo R72 (L36)....
- ....
95. The followingamoyts have been spent by Respondenton edu-
cationintheEasternCapnvisince 1944:
The aforementionedarnountsof expenditwe do not include moneys
spent by themissionsorfromTmt Funds. CHAPTER VI
VOCATION.4T LRAWiNG,HiGHEREDUCATION ANDADULT
EDUCATION FON RATIVES
A. VocationalTraining
1. The syliabuses used in the primary schools in South West Africa
have always made provision for training in manuai subjects, suchas
neIncluded in the curriculum of lowerprimary schools at present are
wea\,iiig. clay\vurk. needlework. scray\voik andgardenii~~. 1; tla kiigher
r8riinary course training is given in gnrdening. treeplantinfi aiid soi1
conserv:ition, woodwork. lextticru,ork, scrauwork and necdlework.
Agriculture i!;offered as a subject in the junior secondary course at
the Augustineum and at Onguedira in Ovamboland. In the first year
of the said course, instruction in leathenvork, scrapwork and tinwork is
given to boys, while girkdo needlework.
In the senior secondary course agriculture is offeredas a subject.
II. SEPARATE INDUSTRIAS LCHOOLS
2.The Rhenish Mission. with the financial assistance of the Adminis-
tration. rstablished an industrial scliool at ~tjimbingwe (in the Otjirn-
biiig\i.e Kcserve) in 1924, and another at Krantzplatz (in the Gibeon
I<tser\.el in raz?. Trained Eurooenn craftsnien were ernulo~cd as
instnict'ors, an& $or some time thêseschools functioned wen, but the
ultimate results were disappointing in that students who had completed
their courses were loath to leare their own neighbourhood to take up
employment elsewhere. Interest gradually waned, and the school at
Otjimbingwe was closeddown for lack of support in 1940nd the school
at Krantzplatz, for the same reason, some years later.
III. INDUSTRIAC LOURSES AT THE AUGUSTINEUM
3. In January 1956separate industnal courses were instituted at the
Augustineum. This school offers a three-year training course in one of
threetrades, carpentry, tailoringand maçonry, and isopen to al1students
who have passed Standard IV. The instructors are properly qualifi~d
Europeans. In ;iddition to the practice and theory of the three main
subjects, the syllabus includes instruction in practical Afrikaans ?nd
English, practical arithmetic, practicalhygiene, singing, phystcal
training and reli$ion. At the end of the course a theoretical and practical
examination is conducted bythe Education Department.
Like the other courses offered at the Augustineum, this training
course 1s entuely free, and students receive free board and lodging. COUNTER-MEMORIAL OF SOUTH AFKICA 467
free transport to and from their homes, and also a small sum as pocket
money every week '.
Regard beinc had to the facilities offered,the number of pupils that
enroluior the vÜriouscourses is disappointiiig. Many more studènts can
be accornmodated than are taking the course. In 1961, when there were
61students in training, 110:a single student enrolled for the masonry
course. The poor support given the courses generally is shown in the
foiiowing table of enrolments in the last quarter of each ycar since 1956.
Numbev ofpupils enrollcd
Course O/training 1956 1957 1958 1959 1960 1961 1962 1963
IV. TEACHER TRAINING SCHOOLS
A. As stated in Chaoter V 2. there are four institutions at which
teacher training facilitigs arc provided for Sativcs inSouth West Africû.
Two of these. the Auwstineurn at Okahandja and the training school at
Doebra. are in the Police Zone. The othei two are at Onmiedira -nd
~ngancljera in Ovamboland.
The Augustineum is a government institution '.while the other three
institutionsare mission training schools.
The course of training followed at the Augustineum and at Doebra
is as follows:
(a) principles and method of teaching ;
(b) school organization ;
(c) practical teaching;
(d) blackboard work and writing;
(8) Afrikaans;
(1) English;
(g) Nama and Herero;
(h) history;
(9 geography;
(7) nature stud (including soi1erosion, gardening, treeplanting) ;
(k)hhygieneand>first aid;
(1) religion ;
{m) etfietic;
(4 smging;
(O) physical training;
(9) practical work (woodwork,leather work, building, needlework).
The syllabuses wed in the training schools in Ovamboland are not
Vide Chap. V. paraszg and 47. supr~.
* Para.22.
Vidc Chap.V. para. zq,supra.468 SOUTH WEST AFRICA
quite the same as in the trainine schools in the Police Zone. but are
graduaily being brought into hnë thercwith. As aiready stated l, pie
training schook in Ovamboland will be iinanced by the Administration
as from 1q64on the sarnc lines as the Aumstineum, and the intention is
to estabish' vocationai trainin0 s--~~----in coniunction--ith teacher
tIaining,as at the ~u~ustineum.
The fial teachers' examinations at the Aumstineum and at Doebra
are ~artlv interna1 and ~artlv external. Interial examinations are con-
ducied i;tlie following;ubjécts: arithmetic. history, geography. nature
study. hdth education. Bible study and practiwl work. Question
~a~ers and scrirtts in these subiects ire moderated bv the Education
biPartrnent. Td: examinations iRthe other subjects arekxternal. and are
conducted by the Examination Committee of the Education Department.
In O\fambolaiid the final examinations at the trainine sçhook are
conducted intemaily. but examination questions and scri$s are moder-
ateJ by the lnspector of Sative Education. .4s frorn 1964. when the
scliools uill be financed bs the Administration. the svstem will be the
same as in the Police Zoné.
The aforementioned schools are at present sufficient to cater for
ail Natives who wish to be trained as teachers in the Territory. In fact,
many more studi:nts can be accommodated at these sdiools than attend
them at present.
V. FACILITIE SOR VOCATIONA A ND TECHNICAT LRAINING IN
SOUTH AFRICA
5. Native students who wish to take technical or vocational coursesfor
which no provision is made in South West Africa, can obtain financial
assistance in the form of loans and bursaries from the South West
African Administration 2.
Students who have ~assed Standard VIII. IX or X mav en101at
agricultural schools for~antu in South ~frica, and the ~drnkstration
is prepared to mant financial assistance to aU suitable ap..icants who
wiih Coreceive?raining at such institutions.
VI. NURSING
(a) Training ofNuises
6. Before 1960there were no facilities for the training of generai
nurses (Europeaii or non-Ewopean) in South West Africa. In that year
a training school for European general nurses was established at the
Windhoek State Hospital.
Prior to 1960steps had been taken to determine whether it would
be feasible to introduce simiiar courses for non-European girls with the
necessary qualification (i.e., at least Standard VIII), but the resuits
showed that the introduction of such a trainine scheme in South West
Africa would no1 "et be warranted. There wergtwo Native girls with a
Standard VI11ccrtificate. but they were not interested in nursing. There
1 Chap.V. para.40.
1 Vide paras~4.25.infra. COUWTER-MEMORIAL OF SOUTH AFRICA 469
were 15 Coloured girls with the necesças. qualifications, but most of
them gave preference to teaching.
The Administration consequently set afoot a scheme for trainii
non-European girls asauxiliary nurses, and since 1959 training schools
for such nurses have been established by the Administration at the
state hospitals at Windhoek, Grootfontein, Otjiwarongo, Gobabis,
Wal.~~ .~.~ ~.~rn temtories outside the Police Zone the Finnish Mission
Hospital at Onandjokwe was approved as ;ttraining scliool for auxiliary
nurses by the Nursing Council in rq6rT .his hospital had becn training
auxiliyi nursei for 50 yéars.At present therî-are 27 pupil auxiliari
nurses in training at tbiç centre. The hospital at Runtuinthe Oknvango,
has also applied for reco~nition as a training school for auxiliary nurses.
7. The prescribed course for auxiliary nurses is the same as that
foiiowed by the Transvaal Provincial Administration in South Afn? for
the training of non-European auxiliary nurses. The course as originally
introduced in South West Africa in 1959 took three yearç to complete.
but the penod bas since been reduced to 16 months.,Certificates granted
toqualified auxiliary nurses by the South West Afncan Administration
are recognized by the South African Nursing Council.
8. When the scheme for training non-European auxüiary nurses was
instituted in1959, the response was poor. In Windhoek, for example,
there were only 29 applicants for 69 posts, and nearly a ted of the
applicants were from South Africa. Facilities and opportunities for the
training of non-European auxiliary nurses in South West Africa are
ample. and even more will be cfeated when the new state hospital at
Okatana in Ovarnboland, which is now in the course of construction, is
completed.
The minimum schoiastic qualification for non-European girlts a
train as auxiliary nurses, as originally laid down, was Standard IV. It
was soon found, however, that girls with only a Standard IV certiiicate
could not cope with the theoretical part of their training, and most of
the Standard IV girls have, despite all possible personal attention by
the teaching staff. elimiiated themselves. As from 1961 the minimum
requirement for admission to the course was accordingly raised to
Standard VI. Since the inception of the course, 97 girls have qualified
as auxiliary nurses.
g.The Administration is keen on offering training as general nurses
also to non-European girls, and will do so as soon aç there is a suecient
number of students of the required educational standard 2. In the mean-
time. non-European girls with the necessary scholastic qualifications
are going to South Africa for training as general nurses. Since, 1958
approximately a dozen Coloured girls with the necessary minimum
qualificationshave proceeded to South Africa for training. Two Herero
girls have already completed their training as general nurses in South
Africa, and at present two others are followinga nurses' coursein South
Africa.
The Administration's experience is, however. that few of the small
Al1 non-Euopean hospitals in the Police Zone arestate hospitals, aaU
mission hospitds are state-aided.
1 Vidcpara. 6. rup*o.47O SOUTH WEST AFRICA
number of Native girls who pass Standard VI11 are interested in nursing
as a career, and the ex ence of the Finnish Mission in Ovamboland
is the same. In 1961, Por"example, one girl passed Standard VI11 in
three girls in Standard VIII, but not one was interested in becomingere
a nurse.
1,540beds for non-Europeans and 182for Europeans.t Africa provide
There are71 posts in state hospitals for trained non-European general
nurses and 196 for auxiliq nurses. At present there are 64 upil nurses
from the Temtci in training as auxdiary nurses, and al!o 26pupii
auxiliary nurses ?r'm South Africa. Of the 71 posts for trained non-
European general nurses, 29 are iïiied, and of these only one is iïiied by a
person from the Territory.
It will be obsr:rved from the above that the basic problem in regard
to nurses in the Temtory has been the shortage or absence of persons
academicaiiy quaiified for training as nurses. The greater advancement
solely from the differences in educational background-inview of which
the interest thus far displayed by the non-White groups in the nursing
profession must probably not be regarded as entirely unsatisfactory.
The response to the opportunities offeredhas been slower than washoped
for, but probably no slower than could reaily have been expected.
Modern health education in particular is something entirely foreign to
thetraditional1ift:of theindigenous groups, and something to which they
can only be conditioned gradualiy by a process of social evolution.
However. with the opportunities being offered, and to be offered in
future, these grou s will continue to be encouraged towards providing
respective commiinities.rly trained nurses to cater for the needs of their
(b) RegistrdionofNurses
II. Inasmuch as Applicants deal in their Memorials ' with certain
provisions of the South African Nursing Act, 1957 (Act No. 69 of 1957).
which is applicable in South West Africa. Respondent proposes to give
a brief account in this section of the reasons for differentiation in the
Act between the different population groups in the nursing profession.
12. As in South West Africa, the non-White groups of South Africa
originally had an entirely different attitude from that of the White group
towards modem knowledge of disease, medicine and health services.
other developed nations, was absent in their case and for a long time
thev could not be interested in health matters as understood bv the
1Vhiitegroup. This was particularly tme of the Bantu groups. In'these
circiimstances it was inevitable thst the medical profession and its
auxiliary services in South Africa and South West Africa should initially
have been organized and controlied entirely t~ymembers of the White
group. and that oigînized nursing and healtli servicesdeveloped mainly in
' 1. pp. 155-156. COUNTER-MEMORIAL OF SOUTH AFRICA 47I
the area of the White group and in accordance with the views and ide&
of that group.
13. As in the case of education. the mission churches were thefust to
take active steps to influence the non-White groups to chan e their
traditional attitudes to medicine and health services. Therea ter the
State began to play its part, and. with the assistance of the schook.
vigorous efforts have been made to educate these groups to accept
modem scientific views about health and health services.
At present there are 27 training centres for Bantu nurses in South
Africa, 10 training schools for midwives, I foy mental nurses, and II
training centres where Provincial Nursing Certificates can be obtained.
These institutions are ofamodern typeand of a high standard '.
14. In regard to the Coloured group in South Africa. equally remark-
able progress has been achieved in recent years.
At Dresent there are in the Cave Province a number of well-eauiu~ed
~o1ou;ed hospitals, nursing hom&, clinics, etc., where almost th; ;;tire
staff consists of Coloured doctors, niairons, sisters and nurses.
15. Over the ye&s increasingly large numbers of non-Europeaus
have joined the nursing profession in South Africa. In 1933 only 2 per
cent. of the entnes for the final examination for general nurses were ,
non-Europeans. In 1938the percentage was 18; in 1948,36; and in 1960,
43.
In 1960and 1962the numbers of persons on the South African registers
for nurses were as follows:
16. In vizw of the considerable difiereiiccs in thetocial btckground,
habits and customs of the various population g~oups.it has ïlirays been
Kes~ondent's wlicv to ~rovide seinrate hospitalization and health
sedces for th6 respectivé groups, and ta maie provision for each of
the groups to be served as far as possible by its own members. At fust,
as may readily be imagined, the White group provided such services for
ali the groups. But as the other groups advance in this sphere, their
members are given preference in the service of their own groups.,Many
members of the non-White groups are still work'ingunder the guidance
of better-oualified members of the White erou~. but Res~ondent's wlicv
envisages ihat when they have gained su&cie~texperie~ce and a niaturé
sense of reswnsibilitv. complete control of theu own health senices will
be handed ;ver to thérespéctivegroups themselves.
17. Although the courses for non-White nurses have always been the
same as those for members of the White group, it has been found
necessary to provide separate training facilities for them.
The reasons for providing separate training facilities forthe different
Vide The ProgresrO/the Banlu Pcoplar lowardr Nnlionhood (S.A. Department
of Information), p5%.472 SOUTH WEST AFRICA
groups are basidy those which have been dealt with in Chapter IV
above relative to education generally. coupled with the additional fact,
as far as nursing.concemed, that provision, inaccordance withRespnd-
ent's policy of :separate hospitalization and health seMces for the
different opulation groups, Wtualiy makes separate training inevitable.
From tKe point of view of the nursing profession there are also parti-
cuiar consideraticbnsmotivating separate training of nurses. In memor-
anda submitted to, and evidence heard by, the Parliamentary Select
Cornmittee on the Nursing Amendment Bili, later passed as the Nursing
Act, 1957 (Act No. 69 of 1957 ),the following considerations were,ide*
alia, raised:
,rl That bv reason of the differences in the social. educational and
culturd bacl<ground and development of the various groups, the
average Native nurse takes longer than the average European
nurseto coniplete the same course, and it would be-doing an in-
justice to the Native nurse if she were treated on a par with the
European nurse as far as her training is concemed.
Although the training. syllabuses and examinations are the same
for ali sections, the period of training for the Native nurse is six
months longer than that for the European and Coloured nurse.
Ex~eriena: has shown that the Native students need more time
to adâpt theinselves, and the first (additional) six months is devoted
largely tothat purpose.
(ii) That in the trainingof nurses consideration must be given not only
to the physical, but also-and particularly-tothe psychological and
socialneedsofthe patient. Whereas the psychological and socialeeds
of patients differ from group to group, it isimpossible to do j-tice
to the tuition of nurses from different groups-having entuely
different social, educational and cultural backgrounds-if they are
put into and trained in one class.
l.i,)That in the case of the non-Eurooean. and ~articularlv Bantu.
nurses. more detailed attention is Recessary in respect of certain
aspects of training,.g.. control and.guidance in fosteri~g r~sponsi-
bity in their professional work.
18.With regard to control and registration of nurses. each province
of the Union of South Africa had, prior to 1928i.ts own medical council
in which the control of the Nursing and Midwifery professions vested.
In 1928 the contiol of nursing and midwifery in the Union was placed
under the South African Medical and Dental Council by the Medical,
Dental and Phannacy Act. 1928 (Act No. 13 of 1928) At that time the
number of nurses and midwives. ovenvhelrningly members of the White
group, did not justify the establishment of a separate council for %ese
services. With the ever-increasing demand for nursing and midwifery
services, howevei, control by a separate body became desirable. The
result was the enactment of the Nursing Act, 1944 (Act No. 45 of 1944).
This Act set up a Nursing Council, which was intended to serve the
interests of the public as a whole. and a Nursing Association, whtch was
to look after the interests of nurses and midwives.
Under the Nuning Act of 1944 no distinction was made between
Africn1957,Part111,Nos.45.83;~~.61086-1133.inSMuks of the Unionof Swth COUNTER-MEMORIALOF SOUTH AFRICA 473
Empan and non-European nurses in any respect whatever. There wa.
only one register. and ali members of the Nursing Association. were
enhtled to vote in the elechon of members of the Nursing Cound and
of the Board of the Nursing Association.
The aforementioned Act had not been in operation for yery long
before certain problems ?se which indicated that differentiatiqn be-
tween the groups was desuable. These problems were dealt with m
testimony before the Select Cornmittee referred to in paragraph 17
above. Someof them can be briefiy indicated as follows.
(i) In practice it appeared that non-European members O! the Nursing
Association,were @dent about expressing their news in joint
meetings wth them European colleagues. and nursing branches ln
fact proceeded to form separate Ewopean and non-European
sections, which held separate meetings. It was found tbat in their
separate mcetings the non-European nurses dtscussedtheir problems
---..-~r~f~ee~ ~nd satisfactorilv than when thev .et as a minor-
ity group amon& a large numbe;of ~uro~eans.
(ii) Experienced members of the profession expressed the view that
separation ?Ithe training ofthe gmups naturally madefor separation
in registration ofnursesofthe different grou s,and that the ultimate
aim therefore shouidbe separate and se&ontrolled nursing pro-
fessionsfor the vanous groups. At the same time. however, these
members considered that members of the non-European sections
had on the wholenot yet reached a stage of sufficientmaturit): and
responsib'ilityin the profession to control autonomous professional
organuations of their own.For sometime the non-Euro~an sections
would require the assistance, guidance and supervision of the
Ewopean section, not only intheir training as nurses but also in the
control of the professionthrough its organizations. This should be
further advancement ofthe non-Europeans to ultimate self-controlof
their members in the profession.
[fi )or the reasons mentioned in sub-paragraph (i) above. it was
considered inadvisable that members of the non-European sections
should be eligiblefor election to the Nursing Council.a body w&ch
not only vontrols the profession but shapes its educ+ional plicies.
and throqh its Committees takes disciplinary action in cases of
transgressions. It wasfelt that in the transitional sta e the interests
of the non-European nurjes would be beçt serve d i:.they were
represented on the Council by more expenenced members of the
White group, and that such an arrangement would also avoid
possible friction in the profession.
19. To overcome the difficulties referred to above. and to provide
for a s tem which wiu operate until the non-European groups have
reachel=a stage of development where they can exercise the controland
mana ement of their own professional organuations, the Nursing Act,
1957&ct No.69of 1957).makes provision for, interalia:
(i) the keeping of separate registers and roik "in respect of white
persons, coloured persons and natives"";
Act No.69 of rg57.sec.rn(4).inSlafulsO/ LM Ukon ofSwfh Africo 3957.
Part II. prra,.474 SOUTH WEST AFRICA
(ii the appointment or election of White persons only as members
of the South African Nwsing Council1, or as members of the
Board of the South African Nursing Association 2;
(fi )he establishment of an advisory board for Natives and an advisory
board for Coloured persons, which boards may advise the councll
on such matters relating to nurses or midwives who are Coloured
persons or Natives, as may bereferred to such boards by the Council,
Council 3;ch matters as any board may wish to report to the
(iv) the division of membership of the South African Nwsing Asso-
ciation into lbree separate categories. viz., "white persons", "col-
oured persons" and "natives", and the holdingof separate meetings
for these cattxories'.
20. The number of trained nurses in South West Africa is too smaii
to warrant the establishment of a separate nucsing coutrol organization
for the Temtory.
In the whole of South West Africa there is, at present, only one trained
non-European general nurse (a Sister) who hails from the Territory.
Otherwise the only South West African non-Ewopean nurses affectedby
the Nursing Act c.f1957are those who are in training or have qualified as
auxiliary nurses.
Under the provisions of the said Act. nurses of the Temtory. both
European and non-European, are benefited in that, inter ah:
(i) they may avaii themselves of the facilities and the organization
ofthe Nursing Counciland the NursingAssociation;
@) they receive the benefit of the Nwsing Council's training regu-
lations and examination facilities; and
(iii) they can, by registering with the South African Nwsing Council,
extend their possible field of employment to the Republic of South
Africa and to those other countries with which the Nursing Council
has reciprocalregistration agreements.
B. Higher Education
1. FACILITIE ~OR HICHEREDUCATION
21. There are no facilities in South West Africa for higher education.
The number of students who qualify for a university education isnot
sufficient to warrant the establishment at thjs stage of any institution
for such education in the Territory.
Over 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 I 2 2
Coloured 7 5 3
Europeaii 157 199 156
- -
-165 -06 -161
' 16id.sec.35 (4)p.."20,it., sec.(1)(cJ.p. iogz.
' Ibid.sec.16.... rro8-irzo.
+ lbid.sec.33 (1)p. 1118. COUNTER-MEMORIAL OF SOUTH AFRICA 475
And, naturaiiy. not ail who attained the necessary qualifications were
desirous of taking a University education.
22. The establishment of a university or university coilege is not a
matter that can be undertaken lightly. A certain stage of development
has fust to be reached. and there mut be a sufficient number of students
with the necessary school education. ability and desue for further study
before such a step can be contemplated. In other words. in ciriunistances
suchashave~revailed. and still ~rçvail in South West Africa, and to a
laree extent in manv arts of Africa. universities can onlv come after a
long process of deveioi>ment.
The problem of financing a university in underdeveloped countries is
one which has Dresented itseif in manv , .rts of Africa. In this r-ard
Kimble says:
"The reasons that may beadvanced for the slowprogres ofsecond-
ary education apply even more strongly to coilege and University
education. It is at once the costliest and most demanding of al1
scholastic enterprises. It is also, from the standpoint of priorities, the
least urgent. For many years the number of Africans capable of
taking advantage of such education was so small that governments
and mission boards found it much cheaper to send those who did
measure up to the required standards to foreign universities than
to attempt to provide local facilities. Those colleges that did offer
post-secondary courses of instruction, for example Achimota
College in Ghana, were habitually hard-pressed for funds and
faculty 1."
Professor W. A. Lewis, Principal of the University CoUege of the
West Indies, in a paper entitled "Educatiou and Economic Develop-
ment" which he prepared for the Conference of Afncan States on the
DeveIopment ofEducation, held at Addis Ababa £rom 15 to 25May 1961.
included the following comment on this subject:
"Absence of a universitv in the territorv is not faial to a small
country, since it ischeaperio send stude-nts'touniversities in I:urope
tlianitisto train tlirm in small iinivtisitiri nt hoTi>ùr economic,
a liberal arts school of the American type needs 500 students.
while a British type combination of Famlties of Arts, Science an$
Social Science needs about 1200 students. Medicine to be economic
Most of the new universities founded in Africa since the war haveh.
cost theircountries tivoto threc rimes:is much per itudent per ünnum
as itcosts to maintain n univzrsity Jn Europe. Tlic largt-r African
countries need universities of thek own. büt the smailer African
countries would be \viser to sliare university facilities on a reponal
basis. where this is feasible. aArough guide. iiian African,coiintry
of ~,ooo.ooo inhabitants. the number of wrsons aaed 21 is about
20,ooo.If 0.5 ercent. of these go to a uni6ersity, the UniversitwiU
have only a gout 400 students.) The most important economic
advantage of having a university on the spot is that one assembles
in the teaching staff a group of scientists and scholars who do
research on local problems, and play a part in the life of the commu-
nity. This justifies spendiig more than it would cost to seud the
'Kimbk. ap.oit.pp. 121-122.476 SOUTH WEST AFRICA
students to foreign countries; but these same advantages can be
achieired b;. establishing univerhitics on a regional basis, at least in
the bes-nninr- wtule the number of students involved is still smdl '."
23.Native students of South West Africa who desire post-matricula-
tion education can. like Europeans and Coloured students, proceed to
institutions for higher education in South Africa.
Higher education facilities for Native students are available at several
----~tutions~in~-~uthAfrica. Thev are:
(a) the Univemity CoUegeof Fort Hare, at Fort Hare. Cape Province;
(.)~the University College of the North. TurAoop, Pietersburg. Trans-
vaal ;
(c) the University CoUegeof Zululand, Ngoye, Natal;
(d) the MedicalSchoolfor non-Europeans of the University of Natal.
AUfour institutionsare residentiaiinstitutions.
The standard of work done at the university colieges is in no way
inferior to that at Eurouean universities. The members of the vanous
lecturing staffs are weh-qualified European and non-European pro-
fessors and lecturers. Many of the European members of the staffs
previously held positions at European universities in South Africa.
Native studeuts. like Europeans and Coloureds, can also enrol at the
University of South Africa, which is not a residential University, but
conducts ail its teaching-save for vacation courses-by means of
correspondence.
Subject to certain conditions, Native students may also. with the
written consent. of the Minister of Bantu Education, enter European
universities in South Africa 2.
The facilities for hi her education in South Africa-bath for its own
Bantu population an ! the Native population of South West Africa-
compare very favourably with the facilities for higher education in O!-r
African temtories. A reference to the position in regard to,universit!es
and University colleges in the Non-Self-Governing Territones of AFca
south of the Sahara shows that in 1958 there were ten universities,
universitv collelresor institutions of an eauivalent status to serve a total
populatick of a~proximately zoomillion ':
In South Africa a population of about IO million Bantu is served by
five institution!; for higher education, and aü these facilities are also
available to the Native population of South West Airica.
II. F:INANCIA ASSISTANC EOR HIGHEREDUCATION
24. Native students, iike Europeans and Coloureds, can apply to the
Administration for loans to enable them to study at institutionsin South
Africa. There L.no limit to the number of loans that may be granted,
and the Administration would welcome more applications tban there
have been in the past. - -
Few Natives bave matriculated in the Temtorv. In 1062 onlv two
applications forassistance werereceived. Both appli'cationske 6nted.
One of the students is now busy on further studies, but the second one
' Unexo/ED/iB~. Annex IV. p. 78.
Vida Act No. 45 of1959. sec.31.inStotufcsof fba Union ofSouthAfrico 1959.
Part 1. Nos.1-50.p.506.
" Vida U.N. Doc. STIîRIISER.Alr6. p. 66. COUNTER-MEMORO IAFSOUTH AFRICA 477
has not made use of the assistance offered. This was the second occasion
on which the latter had applied for, and was granted, a loan witliout
making use of it. Since 1962 one further application was received from,
and granted to, a Native student presently çudying at the University
College of the North, Pietersburg, South Afnca. Because so few appli-
are consequently made to applicants wsat ReOewould on ment have beenans
rejected if they had been Europeans.
The loans are usudy for an amount of RISO K75) per year for each
year of the course proposed to be followed, but there isno hxed limit
to the amount. Loans are similaxly available to students,who have not
matriculated but wish to take a course for which no facihties are avail-
able in the Territory. for example,,a teacher in servlce who wishes to
followa special course at an institution in South Africa.
25. The Administration annually awards a maximum of sis bursaries
(grants) of Rqoo-500-600,Kzoo-z50-300) to students who wish to take
a secondary teacher training course, and a similax number of bursaries
of the same amount in respect of courses other than teacher training.
These bursaries are open to al1students in theTemtory, and are awarded
on merit. In practice al1 applications for bans from non-European
students are carefully scmtinized to see whether the applicants cannot
-a---i,v-for anv of these bursanes. but thus far no Xative student hasin
any way meriied such an award.
From the beginning of 1963. bursaries of Rqo per annum have been
made available specially for Xative students who take pst-matricula-
tion teacher training courses in South Africa. At present there are thtee
such students studying in South Africa on loans granted
Deoutment of Education. and in each case R40 of the
be'regarded as a free grant.
As £rom January 1964. a bursary of RI~o-175-175-200 K75-87.5-87.5-
100). or for the normal dnration of the particular course followed, wül
annually be made available specially to a deserving Native student who
proposes to followa pst-matriculation course in South Africa.
who are full-time stvdents at any university or other educational insti-s
tution in South Africa are entitled to free rail transport to and from
such institutions at the beginning and end of each quarter. To al1other
scholars and students who are the children of residents in South West
Africa rail transport to and from South Africa is provided at rednced
rates.
26. Inasmuch as the Applicants draw attention in their Mernorials '
to Respondent's poiicy of providing separate universities for the different
population groups in South Africa. Respondent proposes to give a
bnef historicai account of the development of separate university facili-
ties in South Africa.
27. Higher education in South Africa developed from very small
' 1. P. '57. beginnings during the period of colonial rule in the old Cape Colony,
now the Cape LJrovinceof the Iiepublic of South Africa. As was only
natwal, regard being h:id to tlie respective levels of development of the
Europeaii and noii-kiuropean population groups at the time. the first
facilities for education on a higher level than was normally offereà by
schoolsin tlie Coloiiywere created by Europeans for European students
who desired snch education.
'l'lie~ctual I>.giiiiiofi:isystciii of higli~rcducatioii m:iy be traced
to the ye:ir i&?r),whcii tlic South hfrican Collegr:w;is established at
Cape l'owii. 'l'liisiv;isn;iunivcrsitv iiithe modern seiisç of tlie word.
althouc- some ~ost-secondarv schod courses were offered. and it w&.
not re:illy uiitil ihe estal>lislii~ciitof tlie Ciii\.c.rsityof tlii~GOG of
tlopi in)>tirsii~nceof the Uiiiversit!~hctof 1S73that :in! re31ad\.ance
to!r,;uils tlie ~r.~visionof ;ideoii;itc f:icilitici f-r liiclier education was
niade.
The aforemeiitioned University was succeeded by the University of
Soutli Africa as frum z April 191s. and at the same time the University
ofCape Town (whichhad meanwliilegrown out of the institution referred
succeeded the Victoria College,established iri 1881)became separate and
independent universities in terms of Acts of Parliament passed in rq16.
togetlier as constitiient irollçg~~ai.nuniber of institutions of semi-univer-
sitv status. and to asiiit iii tliéirde\~elor>iiieiitinto uriiveriities of full
statu5 which wciuldserve different parts-of the country. As a result of
this policy, the Transvaal University College in Pretoria became the
University of Pretoria as from 1930, and the South Afncan School of
Mines and Technology in Johannesburg became the University of the
Witwatersrand in 1922. By a similar process of development elsewhere
there came into being the independent University of the Orange Free
State, the Rhodes University at Grahamstown, the University of Natal,
andthe University of Potchefstroom.
The Universitv of South Africa. which no loiieer has constituent
collrjies.lias coii<i~iuedto mi-t ns an es:imiiiiii~ body and for the purpose
of con111ii:tinco-rés~or~dcrica.:>ur.<i:.oif u~ii\.~:riiryjt;iiid;ird for stiidents
(amongst whom thère are many non-\Vhites at the present time) who
are unable to make use of facilitieç offered at residential institutions.
28. Al1the universitieç mentioned above are autonornons institutions,
and, although subsidized by the State, conduct their own affairs through
their governing i:ouncils and Seiiates.
The University of South Africa has a mixed student body, but at
the pther eight universities the vast majority of students are Whites.
The Universities of Pretoria, Potchefstroom, the Orange Free Stateand
Stellenbosch are attended mainly by Afrikaans-speaking students, and
those of Cape 'Town, the Witwatersrand. Xatal and Grahamstown,
mainly by Engli!;h-speaking students.
It will be seen from the foregoing paragraphs that the development
of higher eàucation for the two main Wiite groups in South Africa has
been a process of gradua1 growth from very modest beginnings to the
elaborate and modem system which exists today, where universities
afford education in the arts and sciences. and professional training in
medicine, dentistry, agriculture. engineering, economics,law, etc. COUNTER-MEMORIAL OF SOUTH AFRICA 479
29. The fust step towards providing Xatives with education of a
higher level than that offeredat the ordinary schools was taken in r841,
when Lovedale Institution was opened as a so-called "seminary of
higher learning", and a "CoUege Department" was established l. This
Institution, it should be pointed out, was not a university in the modern
sense of the word. There was, at that rime, no demand for a university
for the Native population of South Africa. Lovedaie Institution was, in
fact. a state-controlled high school, and it was graded as a first-class
school by the Cape Education Department 2.The CollegeDepartment,
however, offered a course wh'ichwas more advanced than the courses
normaliy provided for at schools. In 1872 this course of study included
history, English literature, mathematics, philosophy, political econo-
my, Latin and Greek l.This course was taken by Europeans as well as
by a few Natives, but history records that few Natives completed it '.
In fact, it seems clear that the Institution as a whole failcc1to achieve
the goal which it had been intended to achieve in regard to Native
students. The Principal of the lnstitution declared in 1908 that-
". .. the ~resent situation was one of miserable failure at Lovedale.
Out of si.xt),oîevïnt),)'curig men whohnd joined the school higlizr
classesthai yew. not so man). as fi\.ewouldevcr reach even matricu-
lation, and-of course matrCculation was only the beginning of a
University course; not one of them could hope to reach the tme
goal )."
The failure of the Institution has been ascribed to the fact that the
courses were designed for Europeans, and not for pupils who came from
a completely different cultural and social background. In this regard
an educationist, C.T. Loram. says:
". .. the state of affairs... is due to the imposition of a hard-and-
fast curriculum, designed for European pupils. upon the children of
another race differing in environment, institutions, mental develop
ment, and future occupations '."
Loram also points out that the Native students entenng the CoUege
were so deficient in Enrr"içh that the^ could not understand the matter
of the text-books
30. The next landmark in the history of higher education for Natives
was the publication in 1905 of the report of the South African Nat!ve
Affairs Commission of 1903-1905. The members of this Commission
re~resented al1the colonies in South Africa. Rhodesia and Basutoland.
aid, chiefly because of the general shortageand poor quality of Kative
teachers, they recommended the establishment of-
"... soie centralinstitution or Native college?hich might have the
advantage of the financial support of the different Colonies and
Possessions, and which would receive Native students fromthem
al1 6''.
' Loram,C. T.,The Edwafion of theSoulh African Nolivc (1917)p.296.
IDid., p129.
' Ibid.,p.297.
' Ibid.. footnote z.
' Ibid., p. 130.
South Afvican Nalivc A@nirs Commission 1903-5 (=go+-rgo5V )o.l.1.Report
of the Cmmisrion, para. 347, p. 74.480 SOUTH WEST AFRICA
The immediate advantages of such a scheme, the Commission stated,
appeared to be--
"... the creation of adequate means for the efficient and uniform
traininc of an increased number ofNative teachers. andthe ~rovkion
of a coke of study in this country for such Native studenisasmay
desire to prasent themselves for the =gher School and University
Examinatioiis 1".
A scheme was therwpon launched to establish such an institution,
and, to test the opinion of the Natives of Sou3 Africa. a convention
was held at Lovedale in December ~goj. at which 152 Natives, repre-
senting "65 districts and countries" were present2.The convention was
unanimous in supporting the scheme, and promises of substantial han-
cial aid came £rom various sources. At a second convention, held at
Lovedale in 1908, it was decided to establish the proposed CoUegeat
Fort Hare, about a mile from Lovedale. It later appeared, however,
coming, and after some delay the College, cded the South African forth-
Native CoUege,was opened at Fort Hare in July,~grg, with aclass pre-
paring forthe Cape Matriculation, a class in agriculture, and a class in
theology 3.
This coUege, established as a result of co-operation between certain
individuals, the South African Govemment, the Native Counuls of the
Transkeian Temtories and Basutoland, and certain mission societies,
was primarily intended to serve the Bantu of South Afnca and neigh-
bouring temtories. At that time, it may be pointed out, there were also
teacher training /and industrial schools to cater for the needs of the
Native populatioa '.
Educationists at the the, having learned from the expenence of
Lovedale, expresséd the view that too great emphasis should not be
placed on purely academic subjects, and that the CoUegeshould aim at
practical education.
31. Although primarily intended to serve the Bantu, the CoUegeat
Fort Hare also admitted, until fairly recently, a certain number of
Colowed and Indian students. Their numbers had alwavs been sd.
lioa.c\.er: so. for example. there were 23 lndian and 36~olowed students
in 1949, as against 284 Bantu students l.Separate provision has since
been made for Coloured and lndian students at Caoe Town and Durban
respectively 6.
The Higher Education Act, 1923 (Act No. 30 of 1923) placed the
CoUegeof Fort Hare under the control of the Department of Education,
and, in terms of the provisions of Act No.Ijof ~pg i,was tem rarily
Council of Rhodes Universitv: at Grahamstown .As was state8 by the
"The affili:~tionis considered to be a temporary measwe which
South Afncnn miua Agairs Cornmirrion 1903-5 (1go4-1905),VoL 1. Re01rt
th6 Commission. pan. 347p.74.
*Lorarn.op. cilp. 298.
Ibid.. p.300.
' Ibid.. pp.13151.
' Vida para. 38,irttrn.le LXXIII.para.380,p.69.
' ActNo. 15of 1949,sec33,inStatutasof fha Unia of SouthAfnca 19p.126. COUNTER-MEMORIAL OF SOUTHAFRICA 481
brings the Native CoUegeacademic standards under the control of
the proposed Rhodes University until such time as the Native
CoUegecan be established as a completely independent institution
fornon-Europeans '."
During the early years, when the numbers of Bantu, Coloured and
Indian matriculants who desired a University education were s,mall,it
was found necessary, p~ely as a temporary measure, to admit those
students who àid not wsh to go to Fort Hare. or who wished to take
courses for which no provision was made at Fort Hare, to certain Euro-
pean Universities, i.e., those of Cape Town and the Witwatersrand,
where non-White students attended lectures with European students,
and also that of Natal, where separate lectures were arranged for Indian
and Bantu students.
32. The position in regard to higher educational facilities for Bantu
students in South Africa before the passiig of the Extension of Univer-
sity Education Act of 1959 was described as follows by the Commission
on Native Education 1949-1951:
". .. Bantu students are admitted to one University institution con-
ductedchiefly forBantustudents,withdirectStatt woaricentlo
founded private institutions (Kolegeya Bana ba Afrika, at Pretoria,
and the Pope Pius XII University Colle e at Roma,Basutoland): to
two South African Universities chie y providing for European
students (CapeTown and Witwatersrand); to one university wliich
provides separate facilities for non-Europeans (University of Natal):
~o c~ ~ ~ ~ndence coursesof the Di\,ision of Extemal Studies of the
University of South :ifric;i; :ituîorrcsp~ndence coiirs~sconducted
by private correspondence collcges prep.aring studcnt; fur the
............minarions of the L'niversirv of Soutli Africii 2."
The number of Rantu University students admitted to various insti-
tutions in the year 1948 was as follows ':
Institution
Fort Hare ............................ 226
Kolege ya Bana ba Afnka ................... 37'
Pope Pius XII. ......................... 26
University of Cape Town.................... 18
University of Witwatersrand.................. 65
University of Natal....................... 56
University of S.A. (Extnnal Studies............. 317
Strydom TraininS gchool, Bloemfontei............ ?
Private Correspondence College................
Total... 749
33. The Native Education Commission of 1949-1$ 1n5estigated the
whole field of Native education in South Africa, including university
1 U.G.53-1951. para. 376, P. 69.
3 Ibid., para. 391, p. 7r
' For theyearX1949. para. 391P. 71482 SOUTH WEST AFRICA
education. With regard to the latter the Commission, alter remarking
on the small number of Bantu students attending uuiversities and em-
phasizing the importance of university education for the Bantu, ex-
~ressed itseif as follows:
"Your Commission is of tlic opinion th:it the follo\ving tliree
prinsiples .irr iinportarit iiiconiieitlon \i,ittthc provision uf the
iicses~;uvflcilitiés for univerjirv educ:iti~~nfur the IJantu. VIL.:
(a) that adequate facilities sholld be provided by the State with a
sity;ti~the eventual founding ofau independeut Bantu univer-
(b) that Bantu students who wish to study suhjects for which their
own institutions do not yet make provision should temporarily
be pro,videdwith the necessary training facilities in conjunction
with European institutions within tlie Union of South Africa;
(c) that future development of university education must largely
depenclon the Development Plan and tlie einployment possibil-
ities which evolve from it 1."
University Education BiU in 1959 appear from statements made bysion of
Members of the Government during the relevaiit debates in Parliament.
During the dehate in Parliament on z6 February 1959,and subsequent
days, on the introduction of the Bill, the Deputy Minister of Education,
Arts and Science pointed ont, interalia, that in 1910. following on an
offerby two prominent public men (Messrs.Wernher and Beit) to provide
funds for the establishment of a university at Cape Town to provide
"equal opportuiiities to au who require university teaching", General
Smuts, then Minister ofthe Interior, had stated as follows:
"ln regard to tlie stipul;ition of 'equal opportiinities fodl'. tliere
can hr no ~bossihledificulty as regards the \Vliitc people of South
rifrica. . .ft will orobabl\r be found desirable at iorne latrsr <Ince
to make separate p;~~isionat a suitable centre for the higher educa-
tion of Natives.. .it would be a mistake to lay down today that
should for al1time be conducted at the same institution andZ."tives
The Deputy Minister continued:
"Here we have a principle which is as old as the Union of South
Africa itsell ... The universities established in South Africa, and
particuiarly the University of CapeTown, were established with the
money made available by Messrs. Wernher and Beit, and it \vas
distinctly uiiderstood between those gentlemen and the Government
of those dayj, asexpressed by General Smuts . ..that the university
would provisionally be allowed to have non-Whites as students,but
that in the course of time separate facilities shouid be created forthe
non-Whites, asthis Bill aims at doing '."
Speaking duriiig the same debate,the Minister of Bantu Administra-
tion and Development said that the vast majority of non-Whites in
South Africa were in favour of separate universities for their sections
of the community and had in fact for a long time pleaded forit. Having
' U.G. 53-IQJX. para. 959. p.rgr.
' U. of S.A..Pori. Deb., Hourof Ar.scntbly.Vol. 99 (1959.ol.1544
' Ibid..Col.'545. COUNTER-MEMORIALOF SOUTH AFRICA 483
stated that the non-White population corisidered the White universities
too expensive for them, that certain White universities dowed only a
certain quota of non-Whites, and that non-\Vhito could not aspire to
teaching posts in White universities, the Rfinistersaid:
"lt has been said here that we are interiering with academic free-
dom. But this wholesystem willresult in the non-\Vhite universities
being developed as fast as possible and to the highest possibledegree.
In addition we have the fact that these people say that theydonot
have the opportunity of ever becomingprofessorsor lecturers in the
In these universities they will be encouraged even to become pro-s.
fessors and lecturers in the course of time. Care WU be taken to
ensure a hieh standard of academic qualifications and education.
'l'lieopportunitics art: beiiig crc:<tcdand tlie way is beiiig opened to
thc Bmtu to seric hi? o5vripcaplc in the acadtmis sphere and to
brinc his owiiuiii~cr.;itietuthe hipliest poisiblc I~YcIa,nd tb utilize
those universities in the service of thèir ovin people. .. . Every
section of the population has a duty towards itself, and the Bantu
also have that duty. Just as the White man is entitled to the bat
nniversity training, so the Bantu and the other non-White groups
are also entitled toit; and it is the duty of thisse to seethat this
is done '."
35. Later the hlinister of Bantu Edncation, in the same debate, ex-
~lained the four fundamental considerations on which the Bill was
based.
The following is a summary of the hlinister's speech:
(a) The first fundamental consideration was the need for university
training for non-Ewopeans in general, and forthe Bantu in partic-
ular. The Govemment's policy of separate development required
that non-Whitffi shonld be given every opportunity to,develop as
individuals and for development as separate communities. If there
that every iiidividual national unit should produce, from its own
ranks, the necessary leaders, thinkers, educationists,,pofessional
and technical people. This wodd open up new possibilities for in-
dividuals in their own communities, and, in the rnterests of balanced
development, particularly of the Bantu national community, there
emerged the necessity of replacing as won as possible the White
persons working as teachers, doctors. ministers of religion, agricul-
tural extension officers,etc.,in the Bantu areas, withBantuperSons.
Ail this would require large-scale training of the Bantu also at
university level.
After surveying the advancement of the Bantu and the Coloured
pop!e in the fieldofeducation, the Minister indicated that the poten-
tialities and tendencies were such as to justify,the establishment of a
and Coloured groupsons2.or the higher education of both the Bantu
(b) The second fundamental considcrulion was the conviction that
' U.of S.A.. Parl. Dcb., HouofAssembly. Vol 99.Cols. 1548-1549.
'Ibid.. Vol100 (1959)C.ols. 3259-3263.484 SOUTH WEST AFRICA
higher education could best be provided in separate institutions
for the differentveroA~s. In thisr"eard the Minister said:
"Every nationalgroup of any consequence, if it wishes to hold its
own should have its own sçhools and its own university or universi-
ties-unirersities that not only serve as the focal point of its pride
and self esteem. but as a means to educate the cornmunitv inthe
true nieanirig ar;d iolue ol university training :is such. ~n):s~stem
\vhiiti is iiot dtvised to enable the memt~ersof a particular national
unit (volki<.enhcid)ultimately to constitute the cuuncil. the scnate.
the studçnt body and uther bodies concerned with the rinancing and
control of a uni\.ersity. any system which <lot% not provide for that.
is a system that \\.itliolds from the cominunitv ttie niost valuable
opportunity thcre can be for self-development . . .
Iri the second place itiçself-eiidznt tticia unii,er,ity whicliin the
kst instance does not serve a particular national community and
whiclidra\vj its studentj from h~terogenzous national units. wiU not
only find it3ifFiult to pro\.ide for the spccid nçeds of nation31iinits.
but more olten tlian not no re~ard at aUis 1i:i<I to the nççds of par-
ticular national units. Tbat iJtme, particularly where you have
national groups at different levels of development as in South
that if a uriiversity institution serves a particular national group.
the students are more easily and better equipped for living in and
serving the community to which they belong ...
When studentsstudy at a university serving a particular national
group. they are not required to go through a difficult and frequently
unnecessar) process of adapting themselves, sociaUy for instance.
Students belonging to a minority group, and moreover a less devel-
oped group. are continually in danger of being ovenvhelmed by the
majority. Then it is extremely difficult, and more often than not
impossible, ior such a student to avoid having his own cultural roots
uprooted arid destroyed and rendered contemptible to him.,
A fourth reason why higher education can best be provided in
separate inr.titutions. 1s the fact that the task of the teachers is
IGilitnted because the ?tu<lcntsare drawn froni one cu1tur;ilgroup.
somethinl: that undcriiably \vil1raise aca<lemic standards and
acceleratë cultural development . . .
In the fifth place it is important that the members of the cornmu-
nity as well as the students should have an opportunity to take an
active part in al1aspects of university life.Ifit is impossible forthe
community and the students to participate in ail aspects of uni-
versity life, as it is impossible at the mixed universities. anas it is
impossible at one which, although it is only for non-Whites. such
asFort Han?.tries to serve a wholelot ofgroups. then the university
cannot have its full share in the development of that community;
and the corisequence for instance of the attendance of Bantu or
non-White persons at mixed universities. as we know them.today,
is a çomplete misconception of the whole nature of a university and
of its task of mouldiig the individual as weU as the community.
That is why 1 say higher education can best be provided in uni-
versities intended for particular national groups '."
' W. of S.A.,Parl. Deb.. Housaof Asscmbly,Vol. Im (1959). Cols. 3263-3265. COUNTER-MEMORIAL OF SOUTH AFRICA 485
(c) TF, +rd, basic considcrationwas that the State should take the
initiativeinestablishing and maintaining the non-White universities.
The fundamental approach, said the Minister, was that control of
any university should ultimately vest in the community that is
served by that university and within which it is established. The non-
White groups were not yet in a position to take control of the uni-
versities provided for them, and the State, as the guardian of the
non-White groups, was the only body that could take control and
later transfer ta them, judiciously and in accordance with the rate
oftheu development, control of their oivn institutions '.
(d) The fourth fundamentalconsideralionwas the conyiction that the
continued admission of non-Whites to the White universities should
. .to~ned. In this reeard the Minister said:
"In the first place it should be remembered that the admission of
non-Whites to certainWhite universities is a practice that arose not
as a result of a carefully planned policy. lt was merely an un-
important gesture at a time when facilities for the non-Whites did
not exist or were quite inadequate. But since adequate provision is
now being made for non-White university institutions of a com-
parable standard, the continued admission of non-Whites to the so-
caiied open universities-the mixed universities-really has no
other significance than a complete negation of the principle on
which the policy of separate development is based. If it is still ta be
permitted, it will create the fatal impression that apartheid is
something which is applied and should be applied only until the
non-White has received his matriculation certificate, that is to Say,
until he has overcome a certain defect or deficiencyin his being, and,
of course. there is no suggestion at ail that the policy of separate
development is the result of a defect or deficiency in the non-Whites,
or the result of inferiority. It is a question of separatedevelopment
of different racial pups each of which is and ought to be proud,of
its own cultural heritage ... But in the second place no university
which,like the mixed universities,,is controlled by \%'hites,where the
personnel consists almost exclusively of Whites, where the over-
whelrning majority of the students are Whites. universities which
have been established to provide forthe needsof a White population
group-today no such university in South Africa can be in a position
to provide the kind of higher education that has regard ta the
needs of the non-Whites *.'
36. In regard to the Coloured group, the Deputy Minister of the
Intenor, in the course of the said debate, informed Parliament that
throughout the preparation of this legislation there had been negotia-
tions and the closest possible consultation between the Department of
Education and the Department of Coloured Affairs.He stated that the
interests of the Coloured people had been taken into account throughout,
that the Department of Coloured Affairs had been consulted, and that
it was the intention to establish a separate Coloured university3.
37. The Extension of Univmity Education Act, 1959 (Act No. 45 of
'Ioid.Cob.,3267-3268.,Hmrrd ofAsscmbly. Vol.100 (1959).ols .265-3267.
W., Col .438. 486 SOUM WEST AERICA
1959) authorized the .\lini>ter of Uaiitu Education to establisli univer-
sity colleges to \i.tiiionly non-\\ihires were to be admitted. and alter
a period of transition-to allow for the provision of aiternative fadiues
foi certain courses not then avdable in a separate basis at Fort Hare
or elsewhere-noii-Whites were no longer to be admitted to White uni-
versities in South Africa.
38. The particular institutioris for higher education in South Africa
serving th; &intu groups have been deicribed in paragraph 23 above.
As re6.~nlshiglcereducation 1.11the otlier two main non-White groups
of Soutli Africn'syopul<itioii,viz., the Coloured people and thc Iridians,
progress has also beën made in providing separate Üniversity facilities.
The distribution of the Coloured people, who are mainly concentrated
in the western part of the Cape, and of the Indians, of whom most are
resident in Natal, has made it impracticable at this stage to have more
than one university college for each of these groups. The University
Coliege of the Western Cape for Coloureds was opened at Rellville
near Cape Town in 1960, and the University Collegefor Indians at Dur-
ban, in 1962. The University College for Coloureds is controlled by,the
Department of Coloured Affairs,and the University Collegefor Indians
by the Department ofEducation,Arts and Science.
Prior to the esfablishment of these separate institutions, as has been
pointed out above'. some Indian and Coloured students attended the
South African Native College at Fort Hare, while small numbers were
also admitted to the three so-calied "open" universities (Cape Town,
Natal and the Witwatersrand). At the University of Natal classes and
lectures for non-White students were separate from those for White
students.
14. In Cha~ter IV above. Res~ondent relerred to the views of educa-
ti&sts \vho ;upport the policy Ofproviding education to suitthe cul-
tural background and needs of different cornrnunities, and to the present
trend in other States in Africa to "Africanize" education for the Afncan.
Respondent suhmits that its policy of providing separate universities
for the different population groups in South Africa accords with such
viewsand with the trend of education in the other African States.
In this regard it is only necessary to refer here to views expressed
concerning university education.
40. In 1948Dr. Kenneth MeUanby, the first principal of the Univer-
sity College, Ibadan, said that-
"The standards of the University Coiiegemust be equal to those
of the best universities of any country, but the college must also
have an African bias, and whilenot neglecting any branch of learning
must concentrate on subjects of special interest and importance to
Afri~ ~ ~"
Mr. Herbert Momson, former Fore' Senetary in England (now
Lord hlomson of Lambeth), is repart 3" to have said in the House of
1 Vide para.31,supla.
Kirnhle.op.cil.p.122. COUNTER-MEMORIAL OF SOUTH AFRICA 487
"\iliU tliz hon. Gentleinan's Del):irtrnent [Cornmonivealth Rz-
latii,ns] kecp iii niind the desirallility also ul universities in Africa of
an :\fricaii rharacter and tliat thi.sometliii-u tu bc said for the
Afriuns ha\.inguni\.ersity fasilitizsof theirownin tlirir owncountrics
rathcr than that the aeneral run of thern shoiildcome to Uritisliuni-
versities and go bac2 with somewhat un-African ideas? "'
And Kimble says of the University of Dakar:
"The doors of the Universitv are oDen to aU ouaiified students.
However, its curricula are designed pri&arily to se;ve 'the aspirations
and needs of the African peoples'. and to 'give the modern African
an opportunity to re-examinethe values of 6s own culturalheritage
values from the West'eZ."nowledge of other technical and moral
41.In reply to a published lecture by Sir Eric Ashby, Master of Clare
Coiiege. Cambridge, entitled "Universities under Siege"', which was
theivarious groups, Professor Dr. C. H. Rautenbach, Rector of the Uni-r
versity of Pretoria, Chairman of the Council of the Bantu University
CoUegeof the North and Chairman of the National Advisory Education
Council of the Kepublic of South Africa, made the foiiowing points,
among others, in a pamphlet entitled "Open Discussion on Closed Uni-
versities":
"Sir Eric endswith a peroration that we only too readily would
quote:
'1am not too familiar with the cumcula in Arts faculties in South
Afri~anuniversities~sothat 1cannot comment on what happens here,
but when 1 visit the universities of tropical Africa 1 find a social
mimicry of European education which is at once touching and de-
pressinfi. Evcry ).car Xigerians who arc going to iidniinister their
people as district otliccrs leave the uni\,ersitv with honours degrees
concentrated upon Latin and Creek and Ancient History. The) have
never studied the political and economic systems of theu own people
nor their relieious and social traditions and folk-lore. nor their lan-
guages. ~uesïions such ashow to transfer ideas from Ibo to English:
what kind of ideas there are which cannot be transferred from one
lan-ua,. to the other: what is the imo.ct on an African mind of
Euri~pea~iideas of jiistica and equity; horvsyitcrns of social ivelfare
occur in the African when hebecomeswhanised and has to disciplines
himself to a routine aiid work eithrr with Euro eans or Iike Euro-
palis; questions such as thesz arc ncver studdeby the majority of
students in tro~ical African uni\.ersitics. verhaos not in South
African univers;ties either. Yet upon ai ÛnderStanding O! such
questions as these the fate of the Continent depends. 1s tt (for
example) necessary to accept Western ethics and standards of
behaviour along with Western technology? Or will the Afncan, like
Porlinmenlary Debates (Honrerd), Haure ofCommas. Filth SeriVol. 601
(1958-rg5g)cois .85-886.
Kimble.op .l..p. ~rz.
pp. 18-29. E., "Universities under SieMinrrua.Vol: 1.NoI (Autumu 1962).488 SOUTH WEST AFRlCA
the Japanese. adopt Western material values while retaining
indigenous !;piritual values? 1s the new Africa going to produce the
most vui~ai civhtion the world has ever known-a niahtmare of
~uro~>ean~.td~etswirhout even the mdimentary ~uro~e& morality
which stU runrives in our cities? Or will the Africans in the end do
and courter;y and rejecting our phrenetic money-making econo-ity
my?' ...
He indcec.brings somrthmg newin his heautiful peroration quoted
supporters of apartheid. \Vhat he says there about the need for thee
Africanization (adjustment or adaptation to Africari cultural-
~hiiosoohic;tl oatttrnsl of universits institutions in Africa is for us
ihe vej cnut 'ofthe matter in our blicy of separate development.
Experiencecl British offiuals of the colonialera in Africa and else-
wherelong ;igorealized and experienced what Sir Eric now preaches.
We refer to the artide in the British Universities Quarterly of
September 1958 on: The Idea of an African University. This is
however thi: first time that 1 have, from the mouth of an eminent
British university man, heard such ringing oratory in complete
accord with this line of thought. We are indeed making progress '."
The Bulletin of the International Association of Universities, pub-
lished in October 1962,contains extracts from a paper read by Su Eric
Ashby on "Patti:ms of Universities in Non-European Societies" in which
he said. inlm dia. the following with regard to universities in West
Africa :
"However. des~ite minor adiustments in cumcula to suit local
conditions. the c;mcula in ~cit African universities are dra\rn up
on the assu~n~tionthat the African has no indiaenou culture worth
studying and no organisation of souety wosh the attention of
undergraduates. We do not go so far as to advise Africans-as
Indians were brashly advised a hundred years ago-to despise their
culture becluse it 1sdegrading: we simply discourage them from
paying seriou attention toit by the device of excluding it from the
requirements for a degree ...
The diffirulties in the way of incorporating African studies into
the undergraduate cumculum are of course,formidable. .. (But)
if universities are to put down roots in tropical Africa the first step
must surelv be to studv traditional African societies and the wav
they chan& under the influence of the West, as a compulsory su6-
ject at the core of the curriculum; not simply as a somewhat un-
conventional option, as it is at present in ihbse places where it is
taught at all. For the danger in West Africa is simiiar to the danger
to which lndia has succurnbed: that the inevitable gap between the
intellectualr; and the mass of population will widen until in the end
even kinship ties andtribal loyaltymay be unable to bridge it2."
Of the aforementioned extracts, only a part of which is quoted above,
Professor Rautenbach says that they-
' RautenbachC ,. H., Opcn Dirnirsiaon Closed Univnsitie(bans. by M. W
Smuts) (1963)p.p.3-5.
Idemational .<lssodnlion ofUniuorilies. BullVol..X. No. 4 (Nov.1962).
P.254. COUNTER-MEMORIAL OF SOUTH AFRICA 489
"... unwittingly &ive home the argument in favour of separate
academic faalities for the Bantu with ... remarkable vigour and
eloquence ...'."
42..AI an international seminar on "Inter-University Co-operation in
West Africa". Su Eric Ashby isreported to have said:
"There areno ~est~frick universities-yet. There are British
and French universities in West Africa but they are importations;
they are no more indigenous than the motor-cars. They have minor
modifications, of course, just as motor-cars have sun hoods. But the
West African University is stiii to be born ... The West African
University,when it agpears, wi; be a slowandnatural outgrowth ...
Its rootswiii be in t e universities of Europe, acknowledged every-
where in the world aspart of the international family of universities,
but it will hareitsown West African identity. In brief, West African
universities likeBritish orFrench orAmerican or Russian universities,
servetheir purpose on1 if they fulfü a dual loyalty: aloyalty to theu
own Society and a loya ti"to world standards of higher education 2."
Respondent does not know whether Sir Eric is correct in saying that
West African universities do not yet have a West African identity,,but
would point out that if Africans of West Africa must have universities
with a West African identity, and not British or French "importations",
Southern Africa's Bantu peoples (who are also "Africans") should also
be entitied to their own, specifically Bantu. universities. South Africa's
White universities-which are. with certain adaptations, European "im-
have a Bantu "identity". And theconverse toS.aof course, equally tnie.nnot
C.AduitEducation
43. It is the policy of the South West Africa Administration to pro-
vide facilities for adult education as faras is practicable. Its efforts in
this regard in relation to the Native groups have met with many set-
backs, and progress has been slow, for reasons basicauy the same as
have been noted in the discussion of other aspects of Native education.
Sometimes apathy was to blame, sometimes lack of real incentive or of
disciplïned perseverance. Agam this has probably been inevitable, and
can be countered only by patient and sympathetic,continu oaftieon
efforts,as part of thesteady advancement of education generally.
M. Various attemvts have been made bv the Administration to pro-
vide'schooling for addt Satives. A scheme If evening classes was st&ted
at Windhoek in 1948a .nd thereafter evening clasîcswere also instituted
at v;uious other towns. Instruction was aiven in Enalish and Afrikaans,
and in al1primq-school subjects. soas'io give studentsan opportunity
ofobtainin~a Standard VI certificate. Qualified Eiiroj>eanteachers were
appointed io condnct the classes.
There appeared to be a good deal of enthusiasm in the initial stages,
Fbutenbach. op.lit.p. iz(pmtsaipt).
2 Arhby. E., "African Higher Education". in Oucrs~oQuarterly, Vol. 3.2No.
(June ~962).. 44. (Reprint of an address by SirEric Ashby given at aninternational
seminar on "Inter-University Co-operatinWest Africa", held at the Univerrity
College of Sierra Leonein Freetow.ec.1961.)4g0 SOUTH WEST AFRICA
but students socln lost interest, and seemed to be incapable of the
sustained effortnecessary to achieve success. The dass which begai~with
45 pupils at Otjiwarongo in 1951came to an end in the same year for
lack ofattendanm. The schoolat Tsumebopened with 30 pupils in March
1954, but after the June vacation only II returned, and by the end of
the year the school had petered out completely. The school at Omaruru.
which started in September 1956, had 40 pupils at the beginning of
rg57, but by August of the same year had to be closedfor lack of support.
The school at IVindhoek was, to some extent, an exception. It existed
for about seven years before it was closed down for lack of attendance.
During this period a few students who displayed the necessary per-
severance passed Standard VI.
45. At the request of the Organizer of Native Education, the night
school at Windhoek \vas reopened in 1956 Whereas instruction had
been provided free before,a tuition fee of 20 cents (21.)per quarter was
levied. lt washoped that such payment. small asit was, might encourage
those wlioattended the classes to setgreater store by what was provided
for them. The classes commenced in April 1956 with 33 pupils and two
European teachers, but by September of the same year the number had
dwindled to o. and thereafter the school was closed.
In 1957 e&in6 classes were&ain instituteds Windhoek, this time
with a view to enable teachers in service to improve their aualifications.
A junior certificate class with xastudents commenced thecourse at the
beiinning of the year. but due tb poor attendancc the sdieme provcd a
coriiplete fnilure, aiid tlie class ha<lto bz discontinued at the eiid ofthe
year '.
Evening classes were again started at Windhoek in Juiy 1961, when
courses were offered on both the primary and the secondary level. It
was decided that tuition in the primary classes would be free, but that
secondary students would be required to pay a fee of R8 (£4) per year.
There were 40 students, taking five different secondary courses, when
the classesstartecl, but by the end of the year their numbers had dwindled
to 6, who were taking one subject only. The attempt at providing pri-
mary education wasforsome the more successful, and in the last quarter
of the year there were 251 pupils in the various classes. During the first
half of 1962 the iiumbers in the primary classes increased to 282, whiie
there was no improvement in respect of the secondary classes. The
number of pupils in the primary classes at present total 93, whiie the
secondary classes have come to an end for the lack of support.
46. The 1962 Education Ordinance emmwers the Administrator to
"establish and maintain evening or continiation classes ivith 3 vieii to
training and instiuctinç Sative pupils or perçons" 3.The 'idrninistrator
mav also. in terrns of tlie Ordinance. o..scribe:
"... courses for the instruction and eaining or further instmction
and tfa+in of persons who, uuder normal circumstances, do not
faii withm tfheiimits of the school-goingage, with a view to-
(a) combating iiüteracy in so far as this may exist;
Vi& Chap. V. para. 30,supvn.
Vide~C~ ~s II--,r-~-~*, ...r.-.
Ord. No. 27 of1962(S.W.A.). sec. IOI (1)(6). in O,p&d Garrfk Exlrnordinaw
o/Soufh Wcsl Al.ico, No.2413 (4 July 1962).p. gr^: COUNTER-MEMO RFISLUTH AFRICA 49I
(b) affosdingpemns an opprtunity to acquirebetter equipment
forthemselvesandforcivillife ''.
It is hoped that attempts at encouragingadult educationforNatives
willin future provemoresuccessfulthan has been the experiencein the
past.
Ord.No. z7of1962 (S.W.A. se,4 (~)(d(iv). inOJticiol Gnrel~~ztrwrdinary
ofSouth WestAfrica.No.2413 (4 July1962)p. 882. CHAPTER VI1
EUROPEAN EDUCATION
A. Introductory
I. The nature of Appiicants' cornplaints ' makes it necessary to deal
also with the edtication of the European group in South West Africa.
This Chapter is dcvoted to a brief account of such education.
Before the particuiar educational facilities provided for the said
group are dealt .with. mention will be made of certain circumstances
and factors which generally affect the education of European children
in theTemtory.
These will be dealt with under the following heads:
1. Centralizaticin of European education.
II. The different European language groups.
III. Medium of instmction.
B. General Circumstancesand Factors Affectingthe Education of
European Children
1. CENTRALIZATIO ONEUROPEAN EDUCATION
z. Before 1915the education poiicy of the German authorities relat?ve
to Euro~ean children in South West Africa was characterized bv a hgh
measurèof centralization, and it was only in the towns and morëdensdy
populated areas that schools were estabiished. The country was thuily
populated, and, because of the vast distances involved, it was impossible
to hring schoolswithin reach of al1chiidren. Children had to be brought
to the schools and housed there, and the resuit was the development of
an extensive scheme of school hostels 2.Allowances were made by the
German authorities to parents whose children boarded at these hostels.
3. After 19151:heSouth African authorities, realiizingthat it would he
more economical to brin^children from far outlvinc districts to hostels
at centrallv situated sch~ols than to establish a scnes of small schools
in distant and sparsely populated arcas. continued with the policy of
centralization. tliou~h not to the same extent as under the German
regime 3.
D~fficulties were soon experienced, however, when the number of
school-~oina children mew apace and the avaiiable hostel accommoda-
tion prGved inadequafe. nfoney was in short supply in the post-war
recession of 1921-~gzz,and in 1922 the Administration was forced to
abandon. at least temporarily, its policy of centralization, and to estab-
lish more schoolc.on farms in the country districts. The 1921Education
Vids Chap. 1,para. r, supra.
Vide Chap. II. par11.supro
Lemmer. op.cit.p.176. COUNTER-MEMORIALOF SOUTH AFHICA 493
Proclamation made no provision for grants-in-aid of private schwls,
with the result that a number of farm schools wcre established '.
4. The crippling droughts and economic depression in the late 1920s
and early 1930s prevented the Administration from providing the facili-
ties which it would have liked to provide, and the result was a consider-
able increase in the number of privatc schwls, which then received
subsidies from the Administration in tems of thc provisions of the
1926 Education Proclamation. 'ïhere were 22 privatc schools in 1926.
and by 1931 the number had risen to 74. The number of thcsc schoo!s
decreascd as conditions,in the Territory improved and farmers again
became able to send their children to schools in the towns. and by 1937
there werc orily II piivate schools left3.
Increased yrosperity and the dcsirc for progress crcated a demand
by the European group for improved educational facilities. and because
of the country's thinly scattercd population. and for economic rcasons,
such facilitics could. with justification, only be provided in certain
Incalit~.~.~This necessitatecl thc huildi"e and maintenance of hostels at
many of the larger centrcs.
At present nearly 40 pcr cent. of the European school children in the
Territory are accommodated in hostcls.
j. The 19jB Education Commission found that the average annnal
cost of accommodation per European pupil at mral hostels was Rrro.80
(L558s. 3d.) and at urban hostels R120.76 ($607s. Bd.), and thkt while
parentspaid 82 per cent. of such actual cost in 1948,the percentage was
only 69 in 1957 '. The Administration thereafter decided that hostel
- - -- - -d be so determined that oarents be reauired to r>.v. ..roxi-
mately 80 percent. of the actual ch involved. A
The ever-increasing demand for better education. and the tendency
on the part of parents to send their children to schools in the bigger
centres to obtain such education have led to decline of the,smallcr
mal schools. It was found by the 1958 Commission that practical and
economic considerations required that primary schwls in the thinly
populated southern areas should be about IOO miles apart and. in the
more densely populated northern areas, about50 to 60 miles apart 5.
The advantage of the policy of centralization. despite the high cost
involved in the hostel s stem which it necessitates, are undeniahle {rom
an educational point oAiew. It may be said, in geneml, that it allows
of facilities being offered which would otherwise have beeri impossible.
There are at present 67 hostels for European children at,government
schools (one being a state-subsidized private hostel) and six hostels at
private schools.
II. THEDIFFERENE TUROPEA LNANGUA C E OUPS
6. A special problem anses from the need for providiiig for the ednca-
tional reiluirements of three language groups-Afrikaans. English and
' Lemmer. op.cil.p. r76.
Vide Chap. V. para.17.rupla.
' Vida Rrpoflof lh Educatia Commisrion 1958 (S.W.A.). para35.p. 19.
' Ibid., para278, p.IO<).
Zbid.,paras.311.313. pp. ~~3.127.494 SOUTH WEST AFIIIC?
German-ana. iii particiilar. of the two rrroups which are iiumericallv
in tlic niiiiority\.hi..tlie Eiiglisliand Ççniïan @oups.
'l'li\.:il rii;.jority of Europcaii pupils arc hfriknans-speaking. and
oiilv;il,oiitivcr iriit ol th, riilttciid i>ri\.ates~liouls;iltlie otheri bcina
in iovernme~t schools in the ~crritoÎy, except for a smaU number wh;
areIn 1961 only aboutolsin6.8uper cent. of ail pupils at government schools
were Eiiglish-speaking. There wcrc tlien II governiiient scliools wliich
offercd English niediuni classes to a total of 1,023 pupils. In oiily two
of these scliool!;the Englisli medium groups wcre fairly large, but in aU
other schools they were very sninll. The 1953 Education Commission
found tliat tliere were three schools with less than 30 Englisli-speaking
pupils in aUclnsses from sub-Standard A to Standard V. ln one school,
the Commissioii pointed out, the Eiiglish iiiedium group, coiisisting
of zg pupils, was divided into two classesof 10and ro pupils each. with
z teachers, whereas iii tlie same school I tcicher had 48 Afrikaans-
speüking I>upilsuiider lier care in Standard 1 '.
With regard to Gerinaii-speakiiig pupils the positioii is only slightly
more favourable. In I~GI.1.324 ptipils received instruction through the
medium of Ci:rinaii (i.e..as fllr as Stniid:ird V) in rz government schools.
This coiistituted 8.84 ycr ceiit. of a11 pupils nt govenimeiit schools.
7. I'rovidiiig educatioii for the ininority language groups itisuch
circunistaiices i'equires tlioroush org:iiiizatioii on the part of priiicipals
of schools and of the Educ;itioii Departnierit. Every effort is innde to
ensure the most ecoiiomical use of teachers. who are alreadv in short
supply, I>iit~reat clifliciiltit~ircronin. l'tic 1oii;erteaclrer-pupi1;Iilot:i :ind
thc f:i,:tli;itt1ii:n:;ire fe\r.c.rpiiliils ;i~I:issrooriithaii in the cise of
the majority group, necessarily fesiilt in a higlier espcnditure per unit.
A possible answer to the problem may bü to make only a limited
number of schools avaikiblc where instnictioii cati be received in EngLish
and Germnn, or to have separate scliools to cater for the needs of the
minority groupi;,but bath tliese mcthods willcreate difficulties,including
hardship for iii:iny of the parents and pupils concerned. and there is, in
reality. no easy solution to tlie problem at hand.
In 1962, it iiiay be pointed out, circumstaiices rendered it necessary
for the Administration ta establish an Eiiglish-medium goveriiment
higli school in Wiiidhoek.
III. MEDIUM OF IKSTHUCTION
8. Of the three European Iniiguages spoken in the Temtory. Afri-
kaans and English are officia1languages.
In September 1920 General Sniiitç stated nt a public meeting at
Windhoek that the South Africaii Governrnent had no intention of
suppressing the Gernian language, but that the education of German
children would. in their own interest, be made part of the Govemment's
school system ?. The intention initially was that in government schools
' Vida Report ,31the Education Corninisrion 1958 (S.1V.A.) .ara. 320, p. 133.
VidaLemmer. @. cil.p. 133, COUNTEIt-MEMOI<IAL OF SOUTH AFRICA 495
Geman would be permitted as a medium of instruction up to tlie end of
Standard IV only, +t in viewofthe opposition ofthe "Laiides-verband",
a central association of the German "Schulvercinc" ',it was finally
decided that German would bc a meriium of instruction up tu the end
of Standard VI, and this rcmaiiicd the positiori until tlie encl oi 1943.
From the beginning of 1944 Gerin;in could be used as a medium of in-
struction only up to the ciid of Standard IV, whilc in tlic Standards
above Standard IV one or more subjccts. as detcrmincil by the Director
of Education, had to bc taught in oni:of the olficialIüny:iges. In 1946
in the aftermath of the Second World War-it w;~sdccidcd that Gcrman
couldno longerbe used as ;iinedium of instiuctioii in govcriiment scliouls.
but this restriction was removed in ro.io. Germai1was thcri ag;iin aliowcd
as a medium of instruction up to tlic Staiidard IV stage. As from 1960,
as a result ofrecommcnd:~tionsm;id<:hy tlic 19581iduc;ltionCommission,
German is used as a medium UIJto the end ofStandard V, witli tlic pro-
viso that in Standard 1Vonc, and in Standard Vtwo,subjects arc timght
in eitherAfrikaans or English so :~sto give Gcrman-spcaking pupils some
preparation for thcir secoiidary school work which is, as far as govcrn-
ment schools are concerncd. limited to English and Afrikaans as media
of instruction.
In German private schools German is used as medium up to tlic cnd
of Standard VIII, and the Education Department conducts its Junior
Certificate examinations in German as wcll as in English and Afrikaans.
g. As far as Afrikaans and Englisli-speaking pupils are concçrncd,
the policy has always been that inst,mcti?n should be given in a pupil's
home language, at least as far as his primary school education ?scon-
cerned. The standard up to which such instruction had to be given in
the home lanyage has, however, not always been the same. Double
medium instruction (English and Afrikaans) was introduced in 1944.
when, after the fourth standard, one or more subjects, as determined
by the Director of Education in his discretion, had to be taught through
£rom the beginning of 1949, however, this arrangement became permis-
sive.
IO. At present the position is as follows:
(a) Home-language instruction is compulsory for al1 Afrikaans and
English-speaking pupils up to the end of Standard VIII,.with the
proviso that ifthe parent dcsires to change the pupil's medium when
he proceeds to the secondary classes (Le., Standard VI onwards),
this is allowed if the principal of the school concemed and the in-
spector of schools are satisfied that the pupil is sufficiently weii-
versed in the second language to have his instniction in this medium.
(b) Home-language instruction is compulsory for German-speakgg
pupils up to the end of Standard Vin al1subjects excluding English
and Afrikaans in al1Standards. health education in Standards IVand
V. and geography in Standard V. In the secondary standards one of
the officia1languages becomes the medium of instruction in al1
government schools. but instruction in German as medium may be
obtained in German private schoolsup to the end of Standard VIII.
' Vide Chap. II, para. ro,supra. SOUTH WEST AFRICA
496
(c) Where a piipii, on coming to school for the first time, knows and
underst:ind!i two lanmanes equally well, hi parents are entitled to
choose liis niedium of in<tmc&on. -
Expcrience in South Africa and in South West Africa has con-
vinced eduixtioiial authorities of the soundness of the policy of
home-langiiage iristruction. and tlie policy is, furthemore, approved
of and desired by the vast majority of parents in the Territory.
C.Types of Schools
Ir. Proclamalion No. 16of 1926 (S.W.A.) makes provision for the
establishment oi the following types of schools: primary schools; farm
schools; secoiidary schools; Iiigli scliools; teacher training schools;
industrial scliools: special sclioola; private schools '.
12. Printnry sclioolscover the lower standards up to a iimit approved
by the Director of Educatioii. At preseiit the general upper iimit is
Standard V (i.e., seveii years' scliooling), as against Standard VI prior
to IO=&. For :i rhrimarv school to I>eestablislied. tlie Director must be
&ti&>d of tlie iieed for siich school. of a prospective regular attendance
of nt Icast 15 piipiis and of the suitability of the proposed accommo-
d-ition :.
In view of the policy of centralization 3, aiid in order to avoid un-
economical use of staff, the establishment of a priinary school is, as a
matter of present poliçy, only considered where the enrolment is likely
to remain reasoiiably constant and justifies at least four teachers where
there is a hostel attached to tlie school, or nt least two in other cases.
13.Farm schoolsare estabiished for instmctioii in the lower stand-
ards. The proprietor of the farm or land on which the school is situated
is expected to :supply. free of charge, school-rooms and board and
residence for the teachers at sucli schools. Such a school may be estab-
lished only if ttiere is reasonable certainty that a minimum average
enrolrneiit of ten pupils can be maintained '.
14.Secondary schools are for instruction up to Standard VI11 (ten
years' schooling). A school may be recogiiized as a secondary scliool if
the Director is satisfied of the need thereof in the locality and of the
efîiciencv of the aork done at the school. and if a minimum averaee
enrolmeh of zo pupiis in the fourth and fifth standards combined h;s
been maintaiiied for at least one year
The Dresent ~olicv is to consider the establishment of a secondarv
school 6nly ifa'ininimum enrolment of 50 pupils per language medium
in Standard VI is assured, unless there are no facilities for secondary
education over a large area.
Vidc Ploc. No. ru of rgz6 (S.W.A.) as amended, secs. 29-36. r77-112Mr. in
Lows of South Wmi'Atrico, Vol. II (rgz3-1927). pp. 242-148. 300-30%
Ibid.. sec. 3(2)(a) and (b), p. 246.
' Vidc paras. 2-5.supra.
ofSmlh PWest Atrica. Vol. II (r923-192p..246. (r) and (2) (a) and (b), in Laws
' lbid.. sec. 3(1)and (2) (b) and (c). p. 244. COUNTER-MEMORIAL 01; SOUTH AFRlCA 497
15. High schuols are for instruction up to. Standard X (12 yem'
schooling). A school may be recognized as a high schwl if the Director
is satisfied of the need of such a schwl and of the efficiencyof the work
done, and if a nunimum average enTlment of40 pupils in Standards VI1
and VI11combined has been maintauied for at least one ycar '.
The present policy is to consider the vtablishment of a high school
only ifthe number of pupils will be sufficient to justify adequate differ-
entiation in the coones offered.
IG. Teacher training schook: although the Education Proclamation
provides for the establishment of tcacher training schook, no such
schools are coiiducted for the White group in South West Afnca. The
facilities for training of European teachers in South Africa will be dealt
wiih hereinafter ?.
17. Industrial schoolsare for the training of pupiis in industrial pur-
suits, including agriculture '.
18. Special schools,are schools with special curricula, approved by
the Director, and suted to the peculiar needs of the localities con-
cerned '.
19.Private schools: the Education Proclamation provides for the
establishment. of schools by private initiativy, and for grants in aid of
such schools. To ensure proper standnrds, pnvate schools are subject to
inspection by the Deyartment's Iiispectors, anclappointmeiits of teachers
are subject to the approval of the Director
The geiieral policy is not to subsidize private schools in centres where
there are government schools. Sonie sucl! schools do receive assista~ce,
but in their case the numher of students in respect of whom aid is given
has been limited. Otherwise the policy is to subsidue private schools
which offer educational facilities not provided by government schoo~s,
for example, schools in localities where tliere are no government schools,
or schools which offer secondary education through the medium of a
lanyage not offered as a medium at a government school.
D. LocalControlof Schouls
20. The local contra1 of every government school for European
children is vested in a school committee elected by parents. In general
the duty of a school committee is to interest itself in the welfare of the
school and to advise the Director of Education on such matteCs as
school buildings and grounds. school hours, parents' representations,
misconduct on the part of teachers and pu ils. l'd mattefi referred to
the committee by the Director for its views .
1 Vide Proc. No. 16 of 1926(S.W.A.). sec.30. p.244.
Vide parm. 38 and 39. in/?@.
Vida Proc. No. 16of 1926 (S.W.A.). sec. 3in Lams of Sm<fkWestAtricn. Vol.
II (1923-1927). p246.
' Ibid.WC. 35.p.248..
" Ibid..secs. 117-rzrbis. pp. 300-302.
Ibid.secs. ro-28p,p.232-242. SOUTH WEST AFRICA
E. Officersand Field Staiï
21. 111additioii IOtlie Directdr of Education. the Deputy Director and
tlir Atliiiiiii~trati~r Staff of the 1)ej~ürtrnentof Education at Windhoek 1.
the \\'liit~.grou. ijscrved bv the followina -r*fessional and field staff:
4 Inspectors of Scliools;
org:inizer for doiiic.;ticsciciice and ncedlework;
0rg:iiiiztr fur11.~(Iwurk for boys;
org.iiiizer for II~IISIC;
orgaiiizïr for Gcrman-medium classes;
organizer for infant school method.
The orgaiiizers, Save tlie two last mentioned, serve ali groups of the
population-European, Coloured and Native. The Organizer for infant
school method is concerned only with schools for Coloured and Em
peari cliildrcn, arid tlie Organizer for Gennan-medium classes only wjth
13uropennchildr~:n.
F. Sumey of Schools, Pupils and Teachen
22. In tlie table below particulars are given of the number of schools,
pupils and teachers over various years:
Ycor Scl,wls l Pupils TC<IC~IS
23 1Goucrnmenf : 975 1Goucrnmanl : 55
-~
1930 GoHighmrrzt: 2 Gaicmmcnt : Gouernwnl :
I Secondrry z Secondarv 4.232 1 Uncertificated 19I
- -
-.457 -196
Priv~tc: Pviunfc:
Primary 99% Certificated 60
Secondary - 83 Uncertificated -32
High Gaiernmcnf : GCertificated 208
Secondary Secondary 5.495 Uncertificated 3
Burger'
- -
-
P,ivafs: Prianf6:
Primary - 618 l Certificated 44
Secondary 1x2 1 Uncertincated 7
Vide Chap. III, para6, supra.
The "Burger"and "Agriculhiral" schoolasredealt with in para. 36. hereimibr. COUNTER-MEMORIAL OP SOUTH AERICA 499
--.-.. .--
Secondary 719 Utihtd io
Primary 45
- -
Privale : Privale ;
Prirnary r,o47 Cartificated
Secondary 134 Uncertiocated 11
- -
1,181
- . -
Govcrnmant : Govcrnmcni :
I>rirnury 11,174 Certificated 559
Sec~indary 3.236 Uncertificated rz
, . ... -.
- Privais : - Privafa ;
9 Primary 1.539 Certificated 88
Semndary 314 Uncertificated 7
- -
Goucrnm~nl: Gnucrnmenl: Govrrnwtcnl:
High 9 l'rimary rr,SGr Certificated 621
Secondary 4 Secondary 3,978 Uncertificated 17
I'rimary 46
Special -1
- - -
Privale ; Priuafe : Privnlc :
9 Erirnary 1.599 CertiCccated 95
Secondary - 443 Uncertificated - 7
Gounnmcni; Goutrnnrcnl: Governtncnl:
High IO Primary 11,624 Certificated 650
Secondary 3 Secondary 4.332 Ilncertificated 20
Primary 47
S~ecial I -
- l
-5.956 670
Privnlc r PriuarC :
Primary 1,640 Certificated 113
Seeondary - 525 Uncertificated - IO500 SOUTH WEST AFRlCA
The substantial increase in the number of secondary students in
1960 as compared with 1950 isto a large extent to be ascribed to the
fact that Standard VI became the hst year of the secondary course
as from 1956 l.
G. Enrolment of European Pupils in Govemment Schools in Different
Standards
23. In the following table particulars are furnished of the enrolinent
in the different stand;~rds in government schools in various pcars, and
comparisons witli IOOin sub-Standard A.
Un-
ticd
1940 615 594 682 731 709 630 620 483!237 139 63 52
100 95i~3.i117.0113.4100.S 99.2 78.137.9 22.2 10.1 8.3
949 SSI 974 gr5 969 SGÎ 810 622 326 228 7,) 76 12
54.829.92l.5 18.2
B. Percentage of European Children at School
24. Virtually al1 European children of school age in South West
Afnca attend school. A small number of such children attend schools in
South Africa. COUNTER-MEMORIAL OF SOUTH AFRICA
1.Courses, Syllabuses and Examinations
the German regime the courses and syUabuses which
apphed in ermany were, with certain modifications, foUowed in the
Europeau schools in South West Africa. After the Mandatory Adminis-
tration was established the courses offered were based on those of the
Cape Province of South Africa.
Up to 1956 provision was made for an eight-year rimary course,
namely the two sub-Standards A and Fi and Standar cs 1 to VI. This
was followed by a two-year secondar course for the Junior Certilficate,
anAs fromth1956wthese courses were reorganued to provide for a seven-
vear primary course up to the end of Standard V. a three-year secondary
course for the Junior Certificate, and a further two-gear secondary
course for the Senior Certificate.
The primary course has always been what can be described as a
"flat course". There is no choice of subjects and al1 the puplls have
to take the same courses, exce t that girls and boys are offered different
handwork subjects and that Zeman-speaking pupils study German in
addition to the other subjects. The subjects are: English, Afrikaans,
arithmetic, history, geography, nature study, handwriting, religious
instruction,health education. music and hand!vork.
As from 1956 the three subjects history, gcography and nature study
have been combined into one siibject, caUed environment study, for
the two sub-standards and Standards 1and II.
The syllabuses used have always been those of the Educatiori Depart-
ment of the Cape Province, modified, where necessary. to suit local
conditions.
26.The secondary courses, which until quite recently were almost
exclusivrly of an academic nature, at present allow for some measure
of differentiation. Pupils can now follow:
(a) a strictly academic course;
(c) a practical course (with two handwork subjects);
(d) a commercial course.
The handwork subjects referred to are woodwork and metalwork for
boys. and needlework and domestic science for girls. The number of
pupils taking these subjects is, however. very small. Only three schools,
for example, offer metalwork at present. and in order to place the
teaching of these subjects on an economical basis, the Depa~tment is
considering limiting the number of schools at which such sublects may
be The commercial subjects offered are: bookkeeping and typewiting at
high and secondary schools, and shorthand at high schools. The number
ofpupils taking commercial subjects issatisfactory, so that these subjects
can be taught at aUhigh and secondary schools.
27. Subject differentiation is, however, limited by the foUowing
factors:
(a) The number of pupils in each class must be sufficiently large to502 SOUTH WEST AFRICA COUNTER-MEMORIAL OF SOUTH AFRICA 503
dow of a choice of subjects, for if the section of a class takin
any partic* subject is tw small, it results in an uneconomic 3
use of staff. It foliows that little, if any, differentiation in subjects
ssible at the smaller schwls.
schools are obliged to 'offer courses.which prepare pupils for
university entrance, and when this Jeqwement haç been met, the
choice that remailis is limited, especially inthe smalier schools.
(c) Lack of sufficient qualified staff often prevents the introduction
of certainsubjects.
II. EXAMINATIONS
28. All exiuninstions in the primarv standards are taken internally,
and proinotions are çontrolied by tlie inspccrors of scliools. In the
secondan, courses ilitemal examinntions are also takeniiiStandards VI,
VIIand Ix.
Public examinations are written at the end of Standard VI11and X.
The South West Afncan Department of Education conducts its own
Junior Certificate examinations. The Standard X candidates write the
Senior Certificate Examination of the Education Department of the
Cape Province of South A*.
J. Salaries andEmoluments
29. The remuneration of European teachers in the service of the Edu-
cation Department is at present composed of 1:
1. A salary. determined in accordance with prescribed salas. scales,
based on the teacher's qualifications.
Special scales apply in the case of principals and vice-principals
of schools. dependingon the ade of the school concemed.
II. A speoal allowance, payab e to teachers who hold a teacher's
30. The salary scales which were applicable in the case of European
male teachers. as detennined in the years 1926, 1947. 19.53 1955and
1958,are reflected in the table opposite:
1 No particulam are given of the cost-af-living allowancwashpayableto
Enropan teacbem untilI Oetober 1958when incnased dary scales came into
opration.Nor arepMiculars given of the non-pensionallowaneewhich becamc
which no longer applia to teamers entering theservice afIeApnl 1963 InaUowance, and
re~pectofteacberin receipt of sueh non-pensionable allowancs1April 1963.
s@al provisions apply to bring their emoluments into eonfowittheisalar~
scalc snopmation at present. SOUTH WEST AFRICA
504
F ............. Rggo x 50-1.800
(L475 x 15-900)
G .............. RI.^ x go-t.900
(L55n,X 25-9501
' The categorieç A to F have at ail tirnersoughly represented from one to six
year's successful and recognired training after matnculatio(Standard X). Cate-
gory G was a special higher category.
Women's salary scales were, as they stiii are, sornewha; lower than
those applicable to men, on the principle that male teachers should be
enabled to provide for the needs of themselves and their families. These
scales, as determined in the years 1926, 1947. 19531 ,955 and 1958, are
n~~ set ~u~ ~~-~.
31. Thc salnry scnles set oiit iiithe tables below have been applicable
to Europcan male and fernale teaclicn in primary and stcondary schoois
since IApril 1963.
MEN (FER ANNUM)
- l
D (i) Without recognired univcrsity
degree ................ R1.716 X roz-1,920 X 120-3.360
(ii) With recol;nized universitdegree Ri.gzo X rzo-3,360
- --
E ..) Without ieco-nired HonouTS or
Masters degree ............ Ri,gzo x izo-3,600
fiii With recomired Honours or 1
.Masters dejr&e ............ 1 R2.160 X 1zo-?,600
F (i) Without recognired Doctor'sdegree
(ii) Withrecognired Doctor's degree Rz.160 X 120-3.840
Rz.4oo X rzc-3.%0
Ditto COUNTER-MEMORIALOF SOUTH AFRICA 505
woaaan (PBR ANNUX)
Cdsgory' Stols
A. ................. R1,ozo X 60-1.440 X 84-2.280
................. RI,I~O X 601,440 x 84-2,280X 120-2.400
B.
C. ................. RI.320 X 60-1.440 X 84-2.280 X 12~2.5ZO
D (i) Without recogaued uni- R1.440 x 84-2.280 x izo-2.880
versity degree....... R1,6gz x 84-2.280 X 120-2.880
(ii) With recognired univcrsity
degree.
E (i) Without rscgnized Hon-
ours or Mastem degree... R1.6gz x 84-2.280 X 120-3.120
(ii) With recogniredHononrs
orMastersdegree. ..... Rr.860 x 84-2.280 X 120-3.120
F (i) Without recognired Doc- .
tor's degree......... R1.860 x 8q2.280 x ~zo-3.360
(iidegrec.r...........ctor's Rz.oz8 x 84-2.280 X 1203.360
8 The categoiies A to F have at ail times rovghly represented {rom ontosix
ycar's successiul and recognized ming after matriculation(Standard X).Cate-
gory G was a speciai higher category.
32. Special scales, detennined in accordance with the grade, of the
school concemed. apply in the case of principals and vice-pmcipals of
schmlç. Asfrom I Apnl1g63 thesescalesare:
PRINCIPALS
Wmn (W annum)
Grnda ofSchool Men (pcr annum)
Higher special ....... R4.650 (hxed) %,zoo (hed)
Higher or Secandary A. .. R+,soo (lked) m.080 (lked)
Higher or Snondary B. .. %,350 (hxed) R3,96O (fued)
Higher or Secandary C ... %,zoo (hxed) R3.840 (hxed)
Higher or Çecondary D ... R4.080 (hxed) R3.720 (fued)
Higher or SecondaryE ... R3.960 (fixed) R3.600 (fixe4
hwer special. ....... h.350 (w) R3.960 (f=ed) -
Lower A. .......... %,zoo (fixed) R3.720 (hxed)
LorwerB. .......... R3.960 (lked) R3.480 (lked)
Lower C ........... Teacher's salm plus Teacher's salary PIUS
4 notches ta mzi- 4 notches to maxi-
mum R3.720 mum R3.240
--
Lower D .......... Teacher'ssalaryplus Tescher's sdary plus
3 notchesto maxi- 3 notches tomaxi-
mum R3.480 mum R3.000
Lower E. .......... Teacher's salary plus Teacher's sdary plus
z notches to maxi- 2 notches to maxi-
mum R3.240 mum R2.76056 SOUTH WEST AFRlCA
VICE PRINCIPUS
Gradeofschool Men (pcrarinum) Women(PCVnnnum]
Higher speci....... Rq.200 (fixed) R3.720 (fixed)
Higher A.......... Rq.080 (hxed) Rj.600 (fixed)
Higher B.......... R3.960 (hxed) R3.480 (fixed)
Lower spec........ Teacher's sdary pluTeacherSsdvryplus
4 notches to maxi- 4 notch~ to maxi-
- mum R3.840 mum R3.36
Lower A........... Teacher's saylus Tescher's saplus
4 notchetomaxi- 4 notches to maxi-
L- mum R3.720 mum R3.240
33. In addition to their salaries, al1 European teachers who hold a
This allowancewas int;oduced;n 1952to attract and enc&ra&teaghersar.
to exercisethek profession inSouth West Africa.
34. As will appear from the aforegoingtables the commencing salary
of a married male teacher in the lowest category increased from R360
L18o)in 1926to R1.206 (£603).plus a special annual aiiowance of RZOO
Croo),1.e..a total of.R1"..6-.L703.-in 1963.This represents an increase
of 291 per cent.
The maximum salary of such teacher increased from R81o (£405)in
i.e., a total of Rz,g60 @,@O), in 1963. ~his represents an increase of
265 per cent.
K. Expenditure by the South WesAfricAdministraüon on
European Education
35. Particulars of expenditure by the Administration on the education
table:opean children overrious years are reflected in the foliowing
Goucmmcnfrchoo:s Govrrnmcnf apival8
rthools combi:cd
and per capita ~ld per capita folnland per capita COUNTER-MEMORIAL OF SOUTH AFRICA 507
Goucvnnienfschools: Privaie school: Gouernmenfand privafe
fofnl foin1 schoolrcombined;
andper capita and percapita lotaland per capita
1950 T0td:
R448,906 U224.453) R2.608 (L1.304) %51.514 iL225.757)
PLIcflpila:
R61.75 (L~ o7s. 6d.)R1.59 (LI 5s. rrd.R54.51 (L275s. 1d.)
1960 Totd:
Ri.47+.930 (L737.465) Rq4.638 (Lzz.319) R1,519.568 (L759.784)
Per çapiia:
R1o7.11 (L53ris. ~d.)R25.46 (LIZ4s. 7d.)R97.89 (L4818s.r~d.)
1963 Tou:
Rr.830.125 Ugi5.062) R61.478 (L30.739) R1.8gr.603 (L945,802)
Pm capita: R30.18 (£151s.gd.) Rio7.62 (L53 16szd.)
R117.78 u58 17s.gd.)
The amounts reflected in the above table as per capita expenditure
donot includehostel expenses, as the major portion thereof 1srecoverable
from the parents of pupils boardmg in school hostels '.
L. vocational andTechnical Training
36. Two earl attempts were made by the Administration to provide
for training O1 European children in agriculture. The first was the
establishment of an agricultural school at Gammams, a fann near
Windhoek. where a practical course of two yean was offered to students
who had passed Standard VI. On completion of the course, tfainees
were placed with progressive farmers for furthe1 practical trarning =.
The second !vas the establishment at Stampnet, in 1928, of a "Burger-
skool", a country school where the main emphasis was placed on instruc-
tion in agricultural and practical subjects. Here boys and girl sho had
passed Standard VI could foiiow a two-years' course in horticulture,
pultry fanning, woodwork and metalwork (for boys), and domestic
science (forgirls). Cultural subjects, such as religious instmction, lan-
pages. history and civics, were also taught ).
By 1943both these attempts at roviding vocational training for
future fanners had been abandoned or lack of support. Most parents,
it appeared. prefened to let their children take the academic course
offered at thesecondary and highschwk.
Yi& para. 5,w@n.
* V*bLrmmer, op.cil.p. 162.
Ibid., pp. 163-r66.508 SOUTH WEST AFRICA
At present thas Agriculturai Branch of the Administration offers a
two-year practicril training course in agriculture at the Neudamm Agri-
cultural CoUegenear Windhoek. European boys in possession of the
Jyior or Senior Certificate are enrolled for this course, but preference
is gtven ta those who have obtained the Senior Certificate. The CoUege
can accommodate a maximum number of 32 students.
II. SCHOOLS
37. In the difierentiated secoiidary courses offercd since 1955. pro-
vision is made lor instmction in certain handwork subjects, such as
woodwork and metaiwork for boys, and domestic science and needle-
work for eirls '.These courses also Drovide for the teachine of certain
commercial subji:cts, bookkeeping. iypewriting and shorth&d 1.
A systeni of evening classes for apprentices was introduced at Wind-
hoek in 1461. Three ïecturers were-i~uointed for the vumse. and in
1962 a toial of 47 apprentices attendéd lectures in mot& mechanics
theory, mathematics and machine construction and drawing.
Periodic investigations have shown that the demand for technicai
training is not such as to justify the high costs which would be involved
in the creation of such facilities. Students wishing to receive technical
training can praceed to any one of a number of technical schools in
South Africa.
In 1955 there were 33 students from South West Africa at such
institutions in South Africa. Four of them were girls taking courses in
domestic science, while the 29 boys were taking 11 different courses at
II different schools Z.At present there are 76 boys and 17 girls taking
technical courses at institutions in South Africa.
38. Before the Second World War very few matriculants from South
West Africn took up teaching as a profession. There were never more
than three per year, and in the 15years from 1925to 1939 an average of
less than two per year. During that period South West Africa depended
almost entirely on South Africa for its supply of Europeanteachers.
Since the war there has been a considerable increase in the number of
teacher trainees, both for primary and secondary work. This is prohably
to be ascribed largely ta increased salary scales for teachers, and to the
financial aid offt:red since 1950 by the Administration in the form of
bursaries and loans.
Nevertheless there has been, and stili is, a considerable shortage of
properly qualified teach-rs. To relieve the situation, many married
women are employed on a temporary basis. and use has to be made of
persons not fdy qualified to teach certain classesand101subjects.
It has as yet riot been considered feaçible to train European teachers
within the Territory. Student teachers have to attend teacher-training
institutions of the Provincial Departments of Education in South Africa.
Vidc para.26. .supra.
Vidc R~porlO/ ihcEducnfion Commission 1958 (S.W.A.),para.114 (b). p.52. COUNTER-MEMORIAL OF SOUTH AFRICA 5O9
39. A!1 teacher training provided for European students in South
.Africa since 1928 is post-matriculation. Alost of the institutions offer
a course of two years for women, with the option of a third-year's
specialized course in infant school method, needlework, domestic science.
music, art, physical education, or academic sublects. Men usually take
a three-year course, specializing,in subjects sucli as handwork, physical
education, music. art or academic subjects.
Secondary teacliers are trained at universities. The Lower Secondary
Teachers' Diploma is obtained after three-years' post-matriculation
study, the course being partly academic and partly professional. The
lowest pst-graduate certificate abtainable is the Secondary Teachers'
Di lama.
{tudents at universities can also take degrees in education. . .,,,
! I,.. < .
IV. TRAINING OFNURSES ,... <$,
i , -- iti
40. As already stated '.there were no facilities in South West ,Africa
for the training of European nurses before ry6o.,ln that year a trainhg
school for Eurouean eeneral nurses was establishedat the Windhoek
-
State Hospital.
Trainees must hold a matriculation certilïcate. althougli a Matron
may admit ta the training course students who have obtained a first
.dass oass in Standard VI11 with. inter alia. mathematics and science a. .
snbje'cts.
In 1960 there were 47 trainees, in 1961there were 53, and in 1362,62.
M. HigherEducation
ar. The onlv ~ost-matriculation education for Euro~ean children in
the'TerrGry ii provided bs tlii: S\'eii<lamr~ ngri~:ultural'Collc~c l.. . .
The dcmand for hig1ii:re<lucntionhas ncver Iwen sucli as 10 warrant
théestahliskirnt:ncof a localuriiversitv. orac<>llcicfto:r vocational traininn.
Al1students who wish to attend a iiiversity o) a college for vocation$
training proceed elsewhere,mainly to institutions in South Africa. .' ' ,
42. The Administration grants financial assistance of the following
nature to such students:
(a) A maximum of 50 ment bursaries of RIZOg60) per annum (plus
loan of R3oo (£150)per annum) are awarded each year to students
who wish to take up teaching as a career. Candidates agree to take
up teaching posts in South West Africa after completion of their
studies for as many years as they receive financial assistance, but.
in any event for a period of at least two years.
.b, Amaximum of six bursaries. each of R400-~00-~00-600 (Lzo@-
-.,-ZGO-<~0) <~, are awardkd~~ ~ua~ ~ ~o ,tudents who wish to
qualify as secondary teachers.
These bursarieç-which, like those mentioned under (c) below,
are available tn Eurooean. Native and Coloured students-are
awarded on ment, andAapp1icantsundertake the same obligations
to the Administration asset out in (a) above.
'
VVidepara. 36,,rupro.6.supra. RESPONDENT'R SEPLYTOTHEALLEGATIONI SN THE ; .,
APPLICANTS' MEMORIALS
1. In Chapters II to VI1 ahove Respondent dealt with the history
and developrnent of education in South West Africa in the light.of the
particular circumstances of, and the conditions prevailing in, the Terri-
tory.
This Chapter deals specifically' with the allegations made'by '~p~li-
cants in their hlemonals relevant to education-Le., in Chapto V.
Section B 2, and Chapter V, Section C 3. , ,
z. With regard to Applicants' "Statement of the Law" +,~gs~ondent
refers to its submission in IJook IV of this Counter-Mernorial relative
to Applicants' formulation, with reference to the provisions of Chapters
XI, XII and XlJI of the Charter of the United Nations, of so-called
"legal norms". Kespondent is, however. in agreement with Applicants to
the extent that its own conception of its duties under Article 2 of the
Mandate iricludes (to employ the Applicants' words) the "educational
advancement" of the people of the l'erritory. and their "social develop-
~en-~.. . based unon self-res~ect and civilized recoe-ition of their rvorth
and dignity as hÛman heing;" 4.
Respondent has, as indicated in the aforegoingaccount of the history
and deveio~ment of education in the Tersitorv. conscientiouslv striven
artFr attairhent of tliese idenls. and has comkto a stagc whcre. after
long perseverance, subsrnnti:il resiilt~ on an çver-incrciising sc;ile :ire
being nchievid with regnril to Sntivc education.
3. Paragraphs 155 and 156 +.
(a) Subject to what is stated in sub-paragraph (6) below with regard
to the Eastern CapriviZipfel, these paragraphs are admitted.
Particulars regarding the control and administration of education
in South West Africa are contained in Chapter III above, fromwhich
it will appear that Respondent exercises control over educatlon in
the Temtory (excluding the Eastern Caprivi Zipfel) through its
representative, the Administrator, in whom vests the "general
control. supervision and direction of education" 5.
(b) Education in the Eastern Caprivi Zipfel is also under Respondent's
control. but through the agency of the South African Department
of Bantu Administration and Development b.
On theassumption stated in Chap. 1, para6, supra,namelythat the Mandate
isstill in force.
1,pp. 152-153.
3 Ibid.,pp. 165-166.
4 Ibid..p:z52-
Ploc. Na. 16 of 1926 (Ç.W.A.). sec.2.inLaws ofSouth West A/&. Vol. II
(192Vide Chap. V. para.82, supra.5'2 SOUTH WEST APRICA
This paragraph i$ correct in substance. The Commission and its
report have repcatedly been referred to in the aforegoing Chapters. In
regard to Native Education thc Commission's suggestion, referred to
by Appiicants, in façt read that "consideration should be given to the
desirability of lransfemng Native edncation in South West Africa to
the [South African] Department of Native Affairs (Uantu Education)" 2.
It was decided. however, to leave the position as it was-at least
for the time being.
(a) It is correct that the educational system of the Territory isorganized
in tliree separate divisions, in the sensc that separate schook are
maintained for Europcan, Native and Coloured children.
At the time ivhen the Mandate aras assumed there were separate
facilitiesforthechildren ofthe Whitegroup, andfortheh'ativegroups,
and to a le!iserestent also for the children of the Coloured group'.
Under the Mandate the educatioii laws of the Temtory provided for
separate faciiitiesfor the childrenof the differentpopulation groups 5,
a position wvhichis still maintained.
It is denied that the policy of separation as applied by Respond-
ent in the Temtory constituted, or constitutes, the application of
any doctrine, called by whatever name, according to which-
"... the slatus, rights, duties. opportunities and burdens of the
population of the Temtory are determined and allotted arbitrarily
on the basis of race, color and tribe, without regard either to the
needs or capacities of the individuals or groups affected or to the
duties of [Respoiident] under the Mandate 6",
as is alieged by the Applicants. As fully explained in Chapter IV A
above, the lmlicy of continuing with the provision of separate facili-
ties does not rest on anv arhitrarv basis. or on disregard for the
needs and cnpncities of the \~ariou;groups nnd individds atkcted
theret)!..noi \vasir inconnict with the duties irnposed upon Respond-
ent by the Mandate.
On the contras., Respondent's policy in this regard is based on
what are considered to be sound reasons. concerned solely with the
needs and capacities of the respective groups, including specifically
their "Social development ...based upon self-respect and civilized
recognition oftheirworthand dignity as human beings" I. Respond-
ent believes that in so far as education isconcemed, the provision of
separate schoolsfor the various groups isthe best, and most probably
' 1,p. 152.
* Rcpwl ofthe <~omniisrionofInguiry in10 Non-Europcan Educalion in South
West Awca (rg~8)P,art 1,para. B.rs7 (c).p. 144.
' 1,pp. 152-153.
' Vide Chap. II, rupn.
' 1,P. 153.. IV. paras. 2-4.supro. COUNTER-MEMORIAL OF SOUTH AFRICA 5I3
the only effectivemethod of discharging its obligations under the
Mandate in respect of each of these groups.
(b) The honourable Court is respectfully referrcd to Chapter IV A
above;,where it is shown, inter alia, that differences between the
Wliiej;qativ,e and Coloured population groups of the Temtory in
regard:to.levels,of development, cultures, languages and needs and
capacitieshave at a11times caUedfor a policy ofdifferentiation in the
schooling of the children of the various groups '.
The system of having. separate schools for different population
groups. not only in South West Africa. but also in other mandated
territones, was.well known to the Permanent Mandates Commission
and the Counul of the League of Nations, and at no time during the
existence of the League was it suggested that the system was educa-
tionally. unsound .or in confict @th Respondent's duties under the
Mandate 2. , .:: . . . .
Not only 1sthe sy'stemof ¶tescho61in.g iu accordan- with
the wishes of the vast majority of the populaton of the Tfrntory ',
but it is also in line with the viewsof educationists of standin' and,
in particular, gives effect to those vlews in so far as the Native
population of the Territory is concerned: and ais0 to the desire,
shared by Africans generally in African territones, that education
for the African should rest on a foundation of specifically Afncan
cultures and should serve to revive African civilizations5.
(c) Asystemof mixeùschooiingin the Tenitory would prevent Respond-
ent from doing justice to ail the population groups, more particu-
larly in the followingrespects:
(i) promoting the development of the different languages spoken
bv the various moups, and appI.ying the sound and accepted
$licy of motheÏ-toigue educiGon
..i)-providing suitable syUabuses in accordance with the needs of
the diffeÏent groups ';
. (iii) fosteringamong the differentgroups, which constitute different
social entities. an interest in the schooling of their childre~d
promoting participation by the differentparent communtties in
such schooling
(iv) providing facilities for each group in keeping with itsP articula
need of education, in step with stages and trends, O, develop
the course of creation. ofernolovment foritiitseducated youthin ';
. .
and generall in the developrnent of education withdue rega;d to the
customs, c d tures and stages of development of each of the popu-
lation voups.
1 Yi& Chap. IV, paras.2-43.supra
Ibid.. paras44-48.
Ibid.. para50.
6Ibid.. paras.4-6'
6 Ibid.. para.8-zz.
Ibid., p-. 13-31.
s Ibid.. para32-43.
9 Ibid.. para.3-74.5I4 SOUTH WEST AFRICA
. :,,;
Applicants' statement that a Ewopean chiid liG to +eqd school
"until the age of 16 und completion of Standard VIIIl:i(itali- added)
is not correct. The tme position is that a child is obliged @ atte-~dschool
until completiori of the year in which he becomes 16unless,he has passed
Standard VI11 before that time '. Ijefore.rg55 the minimum scholastic
attainment required for exemption fro.m,compulsory. attend-ce was
Standard VI 3.
The cornparison of the education offoed th Euopean children in
South West Africa with that given in the United Kingdom,,the United
States aiid the <:ontinenta1countries of ,Western Europe is substantiaiiy
correct, except for local adaptations and,limitations that will, to some
extent, be apparent from Fe, djscussion of Ewopean education in
Chapter VI1 above +. . .
:. . . ; ', , .'- ' -
7. Paragraph 160 ': ,, :.::,,,, ,, ,,.,,i,. -, . : '.
'..?<,? ,.+ :,,i> :i , , . . ,
(a) It is true tliat education for thé"ar!oF Native groups and for the
Coloured group has not yet been made compulsory in Çouth West
Africa, but in so far as it is suggested that this is because of unfair
discrimination against the groups concerned, such suggestion is
denied. Any suggestion that compulsory education for the Coloured
have beeii introduced bcfore now is born of a failure to appreciate
the facts and the factors involved-factors which are basicaiiy
similar to those encountered by govemments in many African
territories.
Respoiident does not wish to repeat what has already heen said in
this regard :andrespectfully refers to Chapter IV ahove'.
(b) In regard to compulsory education for Coloured children, the
position is that more thaii So per cent. of al1 Colowed children of
school-age riow attend school, although the wastage factor is stilI
high, and that a stage has been reached where compulsoryeducation
can be selectively introduced for the Coloured group in particular
areas. The rggS Coinmission of Inquiry into Non-European Educa-
tioii recomniended that the initiative in the matter beleft to the
Coloured school boards; and the Education Ordinance of 1962
empowers the Administrator to introduce compulsory education at
anv state school for Coloured children '.
(c) Inkegard to tlie question of compulsoryeducation for Satit-cchildren
in Soiith \\'est r\fricn. referenctxshould IICniadc to Chapters IV 'and
V8 above. where Kespondent dealt with vvious dificultics which
. =.-""-
a Ploc. No. r6 of 1926 (S.W.A.) asamended, sec. 87 (1)in Laws ofSouth Wcsl
Af'iVida Chap. IV. paras. 76-77, auprn.
' Inkr dia. the particularsof coursesofferedas sct out in paras. 25-27thereof.
' Vid6 Chap. IV. paas. 75-95. supro.
Joid. pa,ra. 78.
' Ibid., paras. 79.83.
' Vide Chap. V. paras. 2-30, supl@. COUNTER-MEMORIAL OF SOUTH AFRICA 5l5
have served to retard the education of Xative children in the Tem-
to%milar dificulties have been esperienced with regard to the
education of Natives in South Afnca' and in other territories in
AfWhile it is liespondent's desire and aim to make educ~tion'com~
pulsory for all children in South West Africa ),it is, in view of the
difficultiesaforestated, as yet not advisable or practicable to do so in
respect of the Native groups, although selectivc application of the
principle in particular areas may becorne feasible in the foref~eable
future +. In other African temtones universal compulsory education
has, for similar reasons, not been feasihle af yet 2.or has. where in
fact iitroduced by law, been impossible to implement
(d) Respondent's efforts in qromoting the education of the Native
groups in South West Africa have resulted in the enro!ment,as at
1961ofapproximately per cent. of the school-ageNative children
in the Temtory 6. which compares very favonab- with what has
been achieved in other parts of the continent of Afnca where
education has had a much longer history, including the Applicant
States '.
(e) With regard to Applicants' allegalion that "segments of the 'Native'
and 'Coloured' population have requested compulsory education"
Respondent respectfully refers to Cliapter IV ,above 9. where it
isindicated that the 1958 Commissionof Inquiry into Non-Eurnpean
Education in South West Africa was requested by the Coloured
Teachers Association to recommend the introduction of compulsory
education for Coloured children, but that the Commissionmade the
more qualified suggestion that the initiative in the matter be left to
the Coloured school boards
None of the Native groups requested the said Commission to
recommend the introduction of compulsory education for Native
childrenlO. Occasional requests for cornpulsory education from
Native parents in the past have shown that such parents failed to
a preciate that failure to send a child to school under a system
ofcompulsory educationwould make itsparents liable to penalties at
law ".
It is the ~olicv of the Administration to cive attention to ail
relevant fncbrs tkfore dcciding th:it cnmpulso;\' education c.1"with
advantngc he introduc~tl fur some or al1of the S;~tivcpups of !he
Tenitorr.. and to deterniine the tjrnc niid manner of the intro(luction
thereof consultation with the groups concerned.
' Vida Chap. IV,paras. 86-88, supro.
* Ibid., paras. 89-9supra.
'Ibid., para. 75.
' Ibid.. paras. 84-85.
'Xd.. para. 94 (3).
*Ibid.. para. 85. and Chap. V, paras. . supra.
'I. p.153.. V.paras. 59-60,supa.
*Para. 78.
IoIbid. p.ra. 80.
" Ibid.. para. 82.5x6 SOUTH WEST AFRICA
Tliis parngrnph is admitted. 1701particulars as to the type of schoolç
for Natives in South West Africa, reference should be made to Chapter
V above2. The provision for the recognition of mission schools has
proved beneiicial for Native ebucation: it encourages missions to ro
vide bctter facilitics. and serves to erisure a unifonnly ydA3stan 1ard-
of work. It is significant that n siinilar system seems to ave en fol-
lowcd in othçr parts of Africa, ie., of subsidizing "approved:', or "aided"
schools '. . .
(a) It is correct that comparntively few schools provide a course of
instmctioii beyond Standard VI, but it is incorrect to say that
"0pportunit:y for education beyond 'Standard VI' for 'Native' and
'Coloured'cliildrcn is aimost negligible". There are at present four
schools for chiidren of the Native groups in the Terrjtory which offer
secondary courses. including one high school (the Augustineum').
AI1four of tliese institutions have Iiostcl facilities.,At ,the Augusti-
neum, as poirited out before 5,students receive free 6oard and lodg-
ing. free books, and free transport to and from their homes. Despite
ail the facilities offered. the numbcrs of those who are willing to
utilize them are disappoiiitiiigly smal15. There is no objection of
principle or ]nLicy to establislung further government high schools
for Natives. but there can be no point in doing sowhen fulluse is not
made of the f:sistiiig facilities at the Augustineum.
As far as Coloured education beyond Standard VI is concerned.
there is at present one high school with hostel facilities. This is just
about sufiïcient to cope with the present demand, but a new high
school with fuUhostel facilities is now in the course of construction
at Rehoboth and further schools will be built at Wiiidhoek and
Keetmanshoo~ in the near future.
(6) As to ~~,~licahs' alle&tion that instruction reaches the Standard
1'1 level' oiilv when there are sufiïcient pupils to make the addition
of cI:isst:;incteachers aomar iustifiable to the Territorial Adminis-
tration", the position is'that a class can be established when there
is a minimum of fivs.pupils for such class, Save in Ovamboiand,
where the minimum'is ten 6.
view of the :;liortage of teacher,. which necessitates regulation to
ensurc that available tenchen are utili7.edin a manner wluch wo*
benzfit the maximum irumber of children. Kespondent refersin this
regard to Chapter V above ', where particulars are given of the
' 1.P. '53.
Paras3 .8-40.
Vida Chap. V, para. 37 (a) (Sauthem Rhodeia); para. 37 (b) (Nyasaland):
para. 37 (e)(Ruanda-Umndi); para. 37 (g)(Ghana).
' Vide Chap.V, paras. 47.52.67. 68.
' rbid., para47.
Ibid.. paras46 :md 52.
Ioid.. paraszz-.p. COUNTER-MEMOR IF SOUTH AFRICA 5I7
efforts which have been made to train Native teachers and ta im-
prove their qualifications, and of the difficulties which have been
encountered inthat regard. It aisoappearsfrom the samechapter that
a shortage of properly qualified teachers has similarly retarded
education in other countries in Afnca '.Such shortages inevitably
result in most education being limited to the primary level.
Moreover, the position ohtains in European schmls also that the
highest standard IIIthe curriculum of any particular schoolissubject
to the a~~rovalof the Director of Education Z.
~~Ili ,t$6j. for exaniplc. only 13 gorernmcnr sclioolç out of a tord
of 61offered cl:isses:ibovz Standard V J.
Such reeulatioii of cumcul:~. both in the case of European and
Native sch\ols, is apractical one designed to operate in thêinterests
ofeducation, and nothingsinister attachesto it.
Applicants, for the purpose of comparing enrolment at school of
European and Native children in Çouth West Africa, make certain cal-
culations which are partially based on estimates.
It would be safer to make calculations on known, rather than on
estimated, figures. According to the 1960 census the European popula-
tion in that year was 73.464. The number of Eu~opean children at
govemment and private schools was 16,257, which means that about
22.13per cent. of the total European population attended school in
SonthWest Africa
The Native population of theTemtory (excluding the Eastern Caprivi
Zipfel) in 1960 was 412,735, and the number of children of the Native
groups at schoolwas 37,801 5.This means that about 9.16percent. of the
total Native ~o~ulation attended school.
As has beên'shown in Chapters IV and V above6, many factors
beyond Respondent's control account for the difference in school attend-
ance hetween the groups-factors which have, to a greater ,or-!esse
degree, also manifested themselves in a number of other terfitories in
Africa where school attendance statistics are remarkably similar to,
and in some cases considerably lower than, those of the Native groups
in South West Afica '.
Perhaps the most important feature, however, is the constant ^d
steady increase in the percentage of children of the Native groups III
South Weçt Africa who attend school. In 1951, as show above5, the
percentage of children of school-age who attended school was ?bout
30.3. and by 1960 it had risen to 39.8. The percentage increase IIIthe
1 Vide Chap. X. paras.31-32,
Pmc. No. 16 of1926 (S.W.A.). sec. 3(1).inLawrof Sylh Wcsl Africa, Vol. II
(1923-1927P ).. 244-246.
Vide Chap. VII. para.22.SU+IO.
i Chap. IV, para~.-8~-g~,-and Chip. V,5'8 SOUTH WEST AFRICA
Native population between 1951 and 1960 was abaut 17.4. and during
the same period the school population increased by 54.1 '.
In 1961 the percentage of Native children of school-age attending
schools in South West Africa was approximately +$ '.
The system of recognizing mission schoolsfor the purposes of payment
of subsidies is not applied in the northern territories. For a long time
the generai standards of the schools were such that few. if any. could
comply with the requirements for recognition as applied in the Police
Zone. In the interests of education the Administration therefore decided
on a policy of p;iying lumpsum subsidies to the missions concemed, to
be used at their discretion. instead of giving recognition-and, therefore,
financial aid-only to such individual schools as could possibly be
regarded as complying with the requirementstherefore 3.
Itistmethat inthenorthem territories most missionschoolsoffercourses
of study up to approximately Standard III only. Until 1961. in the
northem temtoiies, and until 1962 in the Police Zone, completion of
Standard III represented six years' schooling, viz., three sub-standards
and then three years thereafter. Since the years mentioned relative to
the said areas, completion of Standard III has represented five years'
schooling.
Educational advancement in the northern territones has been slower
than in the Police Zone, where education has had a longer history + and
where the Natives have been in closer contact with the education of
the European and with economic development. The particuiar condi-
tions in the northem territories which have retarded educationai de-
velopment, and the gradua1progress that has been made. were descnbed
in Chapter V 5. A factor which particularIy inhibited progress was the
great shortage of teachers with the necessary qualifications to teach
pnpils beyond the lower primary standards 6.For a long time circum-
stances were such that the minimum requirement for admission to a
en with such qu:ilifications could hardly be entmted with the teaching
of children beyond Standard II or III, and there were no European
teachers who could be employed to do the necessary work. The only
remedy was to try to raise the qualifications of teachen gradudy,
and it was not until 1961 that the minimum entrance qualification to
a teacher-training course in the northem areas codd be raised to Stand-
ard VI in the case of the one training school and to Fonn 1 (Standard
VII) in the case of the other one '. In the Police Zone Standard VI
hecame the minimum qualification in 1952
In 1961, as shown in Chapter V above 9.the lower primary schools,
' Vide Chap. V, gara. 58.
1'P. 154.
Vide Chap. V, paras. 51and 80. supra
' Vide Chap. II. paras1.2.supra.
' Vida Chap.V, paras. 49-54.
Ibid., paraszz.30.
7 iùdd., para27.
Ibid.. para26.
Ibid., para. 35. COUNTER-MEMORIAL OF SOUTH AFRlCA SI9
85 in nuniber. of the Finnish Missionin Ovamboland were taken over by
the Adniiriistration aiid coiiverted into govemment comiiiunity schools.
T---.was~ ~ ~~ ~as a art of~~~oli~, to take over ail mission schools in the
Temtory. There a;e alréadyindications of more rapid progress under the
new svstem whereb\, Native pueiits pla. an.active part in the promotion
of edccation.
It is tme. as is alleged by Applicants, that the largerpart of the Native
y&ation live in the northern territories beyond the Police Zone.
le itISalso true that most of the schools in the northern temtones
at present offer courses of study up to approximately Standard.111
only, it is misleading to suggest that Standard III "represents the hmt
of education practically available to most of the 'Native' children" '.
The establishment of higher classes depends only on the enrolment of the
requisite number of pupils to constitute a class and, naturally, on the
availability of a teacher. This is a provision which also applies in the
Police Zone 2. As has been indicated 3,there has, in recent yean: been
a steady increase in the number of pupils enroUedin the higher pnmary
standards. and it is confidentlv ex~ected that the numbers will rise even
more rapidly in future, parti&~ady as more schoois are converted into
government cornmunity schools.
12. Paragraph165 '.
It is true that there is only one high school for children of the Natiye
groups (i.e., up to Standard X), but, as has been shown, the facilitles
offered at this school are not nearly utilized to the full despite free
provision of everything required by pupils, including travelling, board
and lodging, books and pocket money '.It is also correct that there is,
at present, only one high school for Coloured children. In this regard
Respondent refen to what has been stated above as to present demand
for and provision of more facilities 5.
In paragraph 165 of the Memorials the impression may be created
that ali Ewopean schools have a fullrange of classes up to Standard X.
This is not so. Onlv IO of the 61 euvemment schools, and - of the 13
private schools, aréhigh schools 6.
The facilities provided for the different groups accord %th the de-
mand for high-school education in each group.,The system itself th--
fore provides, in the case of each of the population groups, m so fa: as IS
requued, a full range from the sub-standards through the pnmary
standards, the secondary standards and the high-school standards, t0
Standard X.
(a) It is correct, as the Applicants state, that in 1959 there were 61
hostels for European children in the Territory: of these, 60 were
' 1.p. '54.
Vide Chap. V, paras.46 and 52.supro.
a Ibid. p.rap. 55-56.
' Vidc Chap. V, para.47. supra.
6 Vidc Chap. VII, para.22,asto government schools. COUNTER-MEMORIAL OF SOUTH AFRICA 521
erection of hostels in conjunction with such schools '. In the case
~f ~ommunitv schools. the Administration has undertaken to sub-
sidizs sclioolhoards for tlis crection of hostek iitlieir areaP.
(1) improve the educational facilities for non-\\"hites wlio are employed
oii Kiiropcan fams II)'encuurdging farmcrs to ejtiiblish larm scliools
which arc subsidized by the Administration. and lias already suc-
ceeded in doing so to a certain extent '.As was also pointed out
above the Administration has agreed to gant long-term loans to
mission societies to enable them to erect hostels for farm children,
and, fnrthermore, to subsidize the missions in respect of the pro-
visionsof board and lodging at such hostels. The missions may erect
such hostels on fanns, in the Reserves. or in Native residential areas
in towns in the Police Zone. As has also been stated above, the
IZhenish Mission has alreadv indicated its desire and ~re~aredness
to erezt Iiost<ls3t 22 p1:ices;vhereit h~ssili~~li,anrl it ;s lh~pedthat
this new system uiU progressively alleviate the ~>ositioiiiri regard
to the schoolinr of Sative ctiildren on Euroman farnis.
(g)In regard to tce statement by the 1958 m mission of Inquiry into
Non-European Education, as quoted by Applicants in paragraph
166 of the Memorials ', Respondent admits that it was, at the time
when thestatement was made, the policy not to allow schoolhostels
in Native locations in urban areas. The said po5cy waç part of
Respondent's general policy to avoid arrangements. wtuch conld
tend or contribute towards an undue increase in the numbers of
s.iti\.i~residcnts in urban areas. I3rc:iuseof the slow proqess ofthe
systeni of farm schools for Native chiidren, 3srecoinmended by the
said Commission. Rnmndent has since decided to rhmnit the estab-
lishment of school hosteis in Native residentiai areas in urban
centres '.
(h) It will be evident from the above that by merely'comparing figures
without considering any attendant facts and conditions whch serve
to present a balanced pictnre, Applicants must necessarily arrive
at erroneous conclusions.
(a) The Neudamm Agricultural CoUegeis not entirely "above the level
of the high school", for students who have passed Standard VIII
can be enrolled. Othenvise the paragraph is admitted. This College
provides facilities for 32 European students '.
It is specially designed to cater for the famung needs of the White
group which, at present relative stages of development, difier from
those of the Native groups. In viewparticularly of the small number
ofNatives that have thus far reached the Standard VI11educational
Vid8 Chap. V. para.48. rupro.
a Ibid., para. 70.
' I&d., Pm. 13.
4 1,pp. Ï54-155.
Vide Chap. V. para. r3, suFa.
' 1. p. 155.
' Vide Chap. VII, para.36, supro.522 SOUTH WEST AFRlCA
level ',it follows that a simila school in the Territory for those
interested in agriculture would at the present stage be too far
advanced to be practicable 2. Kespondent, however, realizes fuiiy the
need for the teaching of dementary farming methods at a more
primary level to rural Native children generally, and particuiarly to
those children who are likely to go back to the land and to those
who may, as teachers or otherwise, later be caiied upon to take an
activepart iii rural development projects.
It is.interdia, for these reasons that a more pronounced agricui-
tural bias is being given to primary education in Native areas, and
that agricultirre is taught as asubject in secondaryclasses '.In future
it will probably have to be considered whether there should not be
adopted a system such as operates in South Africa. where each
major Bantu groupeither already has, or wiü soon be provided with,
its own institutions for more advanced agricultural training-e.g., at
Fort Cox in the Ciskei. Tsolo in the Transkei. and Arabie in the
Sorthern Transvaal-and where specific instruction is given in
regard to the types and methods of farming practised in each
particular area. Native students of South West Africa who have
passed Standards VIII, IX or X may enrol at agricuitural schools for
Bantu in South Africa. and the Administration iç meuared to mant
financial assistance to al1 suitable applicantç whÔ &h to rGeive
training at such institutions '.
(b) Although separate industrial schools for Natives were established
in the Territory, such schools had to be closed for lack of support
Industrial (coursesof a type which are considered necessary for the
development of the Temtorv are. however, offered to Native
studeits at the AugustineG6. Since 1956 three-year training
courses have been offered at thiç institution in cartry, tailoring
and masonry. The training is entirely free,and stu ents receive free
board and loriging.The numbers of those who enrol for the various
courses are disappointingly srnail. and since 1961. e.g., not a single
student has enroiied for the masonry course 6.
As has already been stated7 the Administration intends to insti-
tute vocational trainine sections in co~ ~~ ~ion with the teacher
training scli~o~liin O\,liml>oland.
(c) non-Europeaii. who are interested in advanced voca9onai trainingan and
does not at present justify the establishment of institutions in the
Territoryfor such training.
Facilities forsuch trainineare. however, readilv available in South
in South Afri.:a are manted financial assistance in the form of loanses
-
and bursaries 8.
' Vidc Chap. V, piras. 45.47, 51 and 56.supvn.
Vidc also sub-p;ira. (6).inIra .s tothe lack of support for other technical
coursesoiiered to Natives.
' Vide Chap. VI. para. I,nrpra.
' Ibid., para. 5.
' Ibid., para2.
Ibid., para3.
' Ibid., para4.
Ibid., paras.5-iid 24.and Chap.!VlI, para. 42. supra. COUNTER-MEMORIAL OF SOUTH AFRICA 523
15. Paragraph 168 '.
(a) Applicruits' stntement thnt Sati\.es niny rcccive training as tench-
ers at only two training schools witliin the Territory is not correct.
Within the Police Zone therc aretwo institutions for the training
of teacliers. namely a gù\,emmcnt institution. the .4ugustiiicum at
Okahandja,and a Roman Cathotiç trainiiig scliool 3t Uoebra. ln the
northern temtories outside the Police Zone there are also two
training institutions, namely at Onguedira and Ongandjera in
Ovarnboland Z.
(b) These training schools are at present sufficient to cater for aü
Native students who wish to be trained as teachers. In fact many
more students can be accommodated at these institutions than
attend them at present, despite aii the speual encouragements
offered 3.
No teacher-training schmls are provided for the White group.in
the Territory. This isso because the numbers involved do not justify
the establishment of such institutions in the Temtory '. Europeans
who wish to become teachers can avail themselves of training
faciiities in South Africa.
16. Paragraph 169 1.
a) In so far as this paragraph may create the impression that nothing
( is being done in the Temitory to introduce non-European women
-in contrat with European women-into the nursing professiou,
it is not correct.
As stated in Chapter VI above 5, there were no facilities for the
training of general nurses, European or non-European, in the Tem-
tory until rg60, when a training schoolfor European general nurses
was estabiished at the Windhoek Çtate Hospital.
Even before that date a scheme was introduced for the training of
non-European girk as auxiliary nwes in the Poiice Zone, and smce
1959tr"ig schools for such nurses have been estabhshed at the
state hospitals of Windhoek, Grootfontein. Otjiwarongo, Gobabis.
Walvis Bay, Keetmanshoop and Luderitz
At present there are 64 non-European student nurses in training
as az~xiliarynurses in the PoliceZone
(b) In the northern territories outside the Police Zone auriliary nurses
have been trained at the Finnish Mission Hospital at Onandjo+'e
for more than 30 years. This hospital was approved a a training
school for auxiliary nurses by the Nursing Council in 1967, and at
present there are 27 pupil auxiliary nurses in training at th centre.
The hospital at Runtu in the Okavango has also applied for rewg-
nition as a training school for auxiiiary nurses
'1, P.155.
' Vidce.g..Chap. V, para.zg,Csupra.I. para. 4. supla.
' Vide Chap. VII. para.+i.supro.
' Vide Chap. YI. para.6,supra.
Ifid., para.ro.524 SOUTH WEST AFRICA
(c) Facilities alid opportunities for the training of non-European
auiliary nurses in the Temtory are ample, and even more will be
created when the new state hospital at Okatana in Ovamboland
which is now in the courseof construction. is completed '.
(d) With regard to the training of generalnurses. it has already been
in the Temtory to non-Europeau girlsen on=.There are, however, as yet
too few non-European girls with the necessary scholastic qualifi-
cations (at least Standard VIII) who are interested in nursing to
justify the establishment of such a training scheme '.
Until such a scheme can beintrodnced in the Territory, non-Euro-
pean girls fromSouth West Africa who have the necessary qualifica-
tions and are desirous of being trained asgeneral nurses can enrol for
training courses in South Africa. Çince 1958approximately 12
Colouredgirlsfrom South West Africahave proceeded to South Afnca
for training :ansurses. Two Herero girls have completed the nurses'
trainiig course in South Africa. and at present two others are follow-
ing a nurses' course in South Africa 2.
17.Paragrafihi 170 to 176 +.
{a) Responderit denies the allegation that the faciljties and opporiuni-
ties available in South Africa to Natives or Coloured persons for
training as nurses are limited.
Facilities and opportunities in South Africa for the training of
nurses, whether Native, Coloured or European. are more thau
adequate 5.
(b) provisions, interralia,Aas set forth in paragraphs 171to 176of theains
Memorials, and that the Act is applicable in South West Afnca.
Respondeiit, however, denies Applicants' charges that Natives and
Coloured persons can enter the nursing profession "only on a plane
maintained and stigmatized as inferior' or that there is a "scheme
to confinethem to a status ofpublicly proclaimedinferiority".
(c) The Act gives effect to Respondent's polic of providing, as far as is
practicable, separate hospitalization andl health services for the
different population groups. .4s natural corollaries, the separate
training of the different groups in the nursing profession 6.and the
enrolment of the groups in separate registers ',werein practice found
to be in the best interests of each of the groups concemed.
{d) The training of non-Ewopean nurses is in no way inferior to that of
European nurses. The training is the same. Al1those in training
studythe same syliabuses and take the same examinations, both for
registration and for enrolment in terms of the Kursing Act. The only
difference is that the period of training for Native nurses is six
months longer than for European and Coloured nurses
' Vidd Chap.VI, para 8.
'IIbid.. para6 md g.
'1,pp. 155-156.
' Vide Chap. VI. paras. 13-1.up..
" Ibid.. para1,.
' Ibid.. paras. 18-19. COUNTER-MEMORIAL OF SOUTH AFRICA 525
Experience has shown that Native students need more time to
adapt themselves, andthe first six months of their course is devoted
largely to this purpose. The extra period of training for Native
trainees was introduced for their benefit, and treatrnent on a par
with trainees of the other groups would in this respect be to their
detriment '.
There is no difference in the types of posts which European and
non-Ewopean nurses can hold. Non-Europeans in South' Africa
occupy, e.g., the posts of matrons of hospitals.
(c) It is true that, in terms of the Nursing Act, nonduropean nukes
have lesser rights in the conbol of the nursing, profession than
European nurses, but this is no "pubhcly proclaimed inferiority"
in the sense that non-European nurses are held in less esteem than
European nurses. On the contrary, thepurpose of the arrangement
is that it is to be temporary and transitional only. so as to permit
non-Eur~.an nurses to develov towards self-control of thw own
professionnl organizations in du; course 2.Such separate prpfessional
orsanizationsare intended to beestablislied forthe non-\Vhitegroups
as'Soonas thev have reached the stae- where thev can assume contÏol
thereof 3.
Meanwhile the non-European groups play an effective part in the
profession by means of their advisory boards and cornmittees. and
under the guidance of experienced European members of the
greater experience and developing a greater sense of responsibility
and independence. These arrangements accordingly provlde an
effective traininggound for non-European nurses to take complete
charge of the nursing of their own people. and of the management
and control of their own respective branches of the profession-far
more so thanwoe haye been the case in ,circurnstances of their
participation, as minonty groups, in one mtegrated professional
organization '.
18. Paragraph 177 5.
(a) It is correct that there are no facilities in the Territory for higher
eduwtion for any of the population groups. The demand iherefor
has nrver been such as to iustifv the establishment of such institu-
tions 6.
Itisdso correct that the Administration grants financi~lassistance
in the form of loans and bursarieç (grants)to enable students from
the Tcmtory to pursue their studiej in South Afnca l.
The particulan givcn by the Applicants for the yem 1953-1954
and 1954.1955 are not correct. In 1953.44 students received loans
or bwaries (30 in respect of education courses, and 14 in respect of
1 Vide Chap. VI, para 17.
Ibid.. paras. r8-19.
' lad.. paras. 17-19.
26% para. 18.
' 1. P.157.
Vi& Chap. VI, para.21.sue.
' Ibid., paras24-25. 5z6 SOUTH WEST AFRICA
other cours~s);in 1954.33 students received such aid (20 inrespect of
education courses, and 13 in respect of other courses).
Although most recipients ofaid take teaching courses, the position
is that applicants can take whatever course they wish if it has the
approval of the Administration. Aid is uot limited toany particular
course, save where bursaries are made available speciaüy for teaching
cowses 1.
(6) It is true tliat no non-European students have as yet won any of
.the merit biirsaries referred to above.
It is only as from 1957 that Coloured students have attained
Standard X. certificates in South West Africa, thereby becoming
eligible for such bursaries. Since then study loans have been
granted to 39 Coloured Standard X students to foliow teaching
courses in South Africa. One Standard X student was granted a loan
to take a medical course in South Africa. At the end of 1961 five
applications for aid were received by the Administration from
Coloured perçons, and four were granted. Two are matriculants
takine a B.Comm. course at the Universitv Colleee ofvthe Western -~.--.
Capeh South Africa.
(c) As faras Natives are concerned, it was only at the end of 1960 that
the fint stiidents wrote the Standard X examination . Three
Sativeî ln\..thiis far applied for and been graiired loans for furthe;
study '.'llierisno liinit to the numher of loans thatmay begranted.
and the Adniinistration would welcomemore a~olicA.ions bv Sative
students.
As has beau stated ',provision has now been made for bursaries
It is only because of the fairly recent establishment of high-school
courses, aiid the smd number of non-European students that have
completed siich courses, that relatively few loanshave thus far been
applied for 1-ynon-European matriculants. In the there wiii no
doubt be more non-White applicants for loans and bursaries.
19. Paragraphr. 178and 179 5,
.
(a) In South Africa there are separate facilities for higher education
fEuropean.f the population groups-Bantu, Coloured, Indian and
(b) Higher-education facilities for Natives of South West Africa are
available at the foliowinginstitutionsin South Africa:
(i) The University College of Fort Hare, at Fort Hare, Cape
Provincf:.
(ii) The University College of the North, Turtloop, Pietersburg.
Transvaal.
(iii) The University Coliegeof Zululand, Ngoye, Natal.
(iv) The Medical School for non-Europeans of the University of
Natal.
Al1fourinstitutions are residental institutions.
Vidc Chap. V. plua.47,supra.
VidcChap. VI. para. 24,rupro.
* Ibid., para25.
' 1.P. 157. COUNTER-MEMOIiIALOP SOUTH AFRICA 97
Native students can also enrol at the University of South Africa,
which is not aresiùental university, but conducts al1its teaching-
Save for vacation coiuses-by means of correspoiidence. With the
consent of the hlinister of Uantn Education, Xativcs inay also enrol
at European universities in South Africa'.
(c) There are several universities for Europcans in South Africa. and
a separate university collegcfor Colouredstudents at I3ellvillc. near
Cape 'l'ownz.Coloured students can also enrol at tlie University of
University of Natala1.With the permission of the respoiisihle Minis-
ter, Coloured studentsmay also enrol at European uniyersities.
(d) Respondent has dealt with the reason for the legislation in accord-
ance with which separate facilities for the higher education of
the different population groups are provided 1n South Afnca3.
Respondent considers that its policy is in the best interests of each
of the population groups. that it is educationally sound and in
keeoiiie with the Dresent trend in other States in Africa to "Afri-
~~~~ educationfor the African <.
(e) The facilities for higher educatjon for Natives in South Africa
compare favourahly with those in other African territories '.The
standard of work done at the non-European university collegesis in
no way inferior to that of Europecinuniversitie'.
(1) With regard to Applicants' ailegations, it is not appreciatcd why
topportunity" for European students, while the existence of similarant
institutions for Coloured niid Native students should be stvled "a
rrmiiider of opportriniiits dciii~dIO iioii,Europe:in stu<lenis, even
tliough non-15uropc;iii siu~lciits furrn<?rlyattendcd sonic of the
Euroi>can universiries.l'lit<:iri:iiinst:in~in:ivliicli tliis vrdcrice
aras; and its temporary nature, have been fully cxpl:iinedc.
\ihy Applicants spcak of "only two limited cx<:cptions"in para-
graph 178 is not understood. whcn the tnic facts are as set out in
sub-paragraphs (b) and (c) ;~bove.
The statement regarding the University of South Africa in the
last sentence of paragraph 178 ismisle:i<ling.Al1students of the
University of South Africa take their courses hy w;iy of correspnd-
ence. Vacation courses are also held, :ind the samc lectures arc given
to al1students-non-White and White-who attend them.
Hare should be called the "onlyd w...tuniversity of any sort" to the
exclusion of the others mentioned above.
20. Paragraeh180 6.
(a) The matter raised by Applicants in this paragaph of the Memorials
must he viewed against the background of South African history ofsz8 SOUTH WEST AFRICA
social and economic conditions, past and present, and of certain
basic consi<lerations wliich contribute towards the motivation of
Kespndent's policy of the separate development of the European
and Uantu population groups of the country.
In view of tlie consideration already given to these matters in
earlier parts of tliis Counter-Memorial, lcespondent does not propose
to deal witli tliem in detail again, but wiii make brief reference
oiily to certain aspects whicli are relevant to the issue raised by
Applicants.
f'bl lt is Kesvondent's belief tliat tlie interests of the Eurooea. and
lntiv,: gruupbi;in best be served. and tliat ]>eaicfulso-~.xistencebe-
twccn tliem cati bcst be seciired, I>ya policy whichprovides for their
seoarntc dc\~eloonieiit.the eoal ;iim*:d;itheine a situation wliere the
Hantu groups ;vil1bave saf-government an;, eventually, full in-
dependence in their own homelands, and wbere economic relations
between these liomelands and the White areas will be such as to
amouiit to a oositinn of econom~ ~~~ter~ ~~~'nc~~-
Iii ~lieI>r<k!cssf ;idv;tiiccnient toivards tliis goal. rncasures have
bccn and art:co~ista~~tlbeiiigtaken to devclop the Ihntu areas. and
it is Kcsporidcrit'sIielief that the Ikiiitii tlieiiisel\~esshould play an
acri\.c]i.irtin this dc\~tlopmi:nt. Iiithis Iiroccss of de~elopment
Kespoiidcnt. rhrough its Departmc:iitsof Daiitu Administratioii and
Raiitii Educiitiun. cniolovi :~iidtrains 13antuwliocan contribute to
the developrnent of théirareas and to the advancement of tbeir own
people.
(c) A fact of which Respondeot must. and does, take cognizance. is
that there hiis,throughoutSouth Africa'shistory. beeiisocialsepara-
tion between the White and Bantu groups; that the members of
each group preier to assouate with members of their own group;
and tliat certain kinds of closecontact between members of the two
Fiction.particularly in the more intimate spheres, tend to create
(d) The aforementioned factors. accentuated in al1 probability in the
caseof the European group by the fact that they have for a long time
occupied a position of guardiaoship and leadership over the Bantu
groups. also inthe economicfield.have limited relationships between
Europeans and Bantu lasgely to those of tutors and employers, on
the one Iiand. and pupils and employees, on the other, and have,
furthemore, as at the present stages of development of the respec-
tive groups. resulted in the factual situation that many Europeans,
in al1 probability the vast majority, are not prepared to serve in
positions wliere Bantu are vlaced in a position of authority over
them.
(e) A further iniportant facet of the aforementioned factors is that a
Bantu who qualifieshimself fora professionin which he wiil,because
of the stagëof advancement of Lis own group. have to depend for
his liveliho~l on the servicesof European employees.or on European
patronage, runs a grave risk of total frustration.
(1) The matters referred to in sub-paragraphs (c), (d) and (e) above
are social phenomena which esist as facts, independently, of any
govemmental policy. legislation or administrative practices-as
indeed the manifest themselves, to a greater or lesser estent. in
mixed or p ?ural communities throughout the world. Depending upon COUNTER-MEMORIAL OF SOUTH AFRlCA 5=9
the exact circumstances of a particular situation, the phenomena
maypartake of thenature ofgroup preferences, group self-protection
group assertiveness, group conceptions of differences in social and
cultural level. or sometimes simply group prejudices. Whatever their
exact nature or causes. and whatever the mord rightj or wrongs
pertaining to them in particular situations, there can be no denial
th~-~~--- ~rouo reactions exist as facts ofwhich dileco~nizancemust
needs be taken by any realistic governmcnt. -
(g) In more recent times policics have been dcvised iii various parts
of the world with the s~ecilic ideal. to which 12espondent whole-
~ ~ ~
heartedly subscribes, of &adicating, avoiding or red;cing to a inini-
mum al1undesirable aspects and manifestations of such group reac-
tions. such as unfair discrimination, domination of one group by
another, and the like. The problem does not lie with the ideal, but
with practical mcans of achieving it in tlie divorse conditions
existing in various plural communities; and frequently an important
aspect of the problem i.; to îind a just and propcr balance between
legitimate but competing or confl'ictingaspirations ofvarious goups.
Whereas policies aiming at ;i solutiuii of the problem are iii some
countriesprocerdingin thedirection olatternptsat forcedintegration,
with or without qua1ific:itions.Kespondent is, for reasons explained
earïier, fully convinced that such policics canliot possibly achievea
just and fair solution either in South Alrica or in SouthWest Africa,
and that a solution is to be sought on the basis of separate develop
ment as set out, inleralia, in sub-parograph (b) above.
(h) .4n important motivating factor in regard to this policy has always
been the advantage which it involves for educated and more ad-
vanced members of the Bantu groups, in that they can step into
highergrades of employment specially intended for themin planned
and positive programmes for advancement of their own peoples-
vis-à-vis the large rneasure of friction, negation and frustration that
must inevitablv arise for them. independently of any government
licy or legislation, from attempts at iree competition with mem-
crsof the White population group in the higher strata of the eco-
nomic, social and professional life of that group.
As a counter-part to the factor just mentioned, the policy of
separate development takes due cognizance of the fact that its
application is at present passing through a stage of transition, and
aims at doing sowith a minimum of group friction and the negative
consequences that could result therefrom. The transition isfrom the
easlier genre, mentioned in sub-pnragraph (d) above, of White
: guardianship and leadership in every sphere of a partially integrated
economy to equality of opportunity for members of the non-White
groups in the form of leadership in largely separated, though
mutually interdependent, economies of their own groups. With a
viewespeciallyto securing the maximum support from al1the groups
for this transition, Respondent has found it best. as a matter of
practical policy, to respect the nnwillingness of members of the
White group to serve in positions of subservience to members of the
Bantu groups. but at the same time to create compensatory oppor-
tunities for higher employment of members of the lastmentioned
gronps through acceleration, as far as practicable, of the develop
ment oftheir own homelands and economies.53O SOUTH WEST AFRtCA
(i) A realistic approach to the problems of the transitional stage is,
which.-at the present stage of developments;offer theiri avenues of
employment and future advancement, and to civaid creating a
situation where Bantu qualify for professions in which they wiil
find tliemselves dependent on White patronage, which might not
be forthconiing, or in wlùch either Kespondent or other potential
employers will not be able to make use of their services in a field
wherethevwviii.ofneccssitv.,have to be olaced in ~ositions of author-
ity uver Icuropean cnip1oycc.ior 3ssist.iii...
(1) 'l'lieconsid<:rariorisrnentioncd :ibove Ii.ivc bcïii a suhject of con-
tinud aiiJ rcr>e:itc.d~olitical dehnte in Suiitli Afrira over a consider-
ablenumber i>f),c:i& and the speccliof rhe .\liriiit,:rol 13;intu1:duca-
tioiiiiiPar1i:iment '.referrecl iot>y :\ppli~::iiitis to be rad with
tliis f;ictur in miiid. The Yiiiiîter knen tliat hi3audieiice \vas aware
of the iinplications of relevant aspects of the policy of separate
development, as explained above.
lkl The Minister referred to applications bv Bantu students to foiiow
engineering courses at EuÏÔpean univérsities, and he pointed out
that Uaiitu engineers could, in esisting circumstances, only expect
to be employed by the Department of Uantu Administration and
Developmerit. but that, since such employment would entail their
being placeii in positions of authority over European engineering
assistants, there being no qualified Baiitn in the country who could
fùi the role of such assistants. it was essential. as the initial ste...
fvst to establish a base of Bantu engineering assistants.
(1) The tvlinister accordingly outlined the steps that would be taken
to create facilities for the training of Bantu engineering assistants.
He stated tliat such facilities would be created at Bantu university
colleges and that students could, in the meantime, take a suitable
avoidiiig a loss of study time. He said, further, that as assistants
became available, engineering courses would also be introduced at
Bantu university colleges,and indicated that due recognition would
be accorded ta the practical experience and knowledge gained by
engineering assistants if they wished to take such engineering
courses. His statement is this regard is recorded as follows:
"Once thi:y have been trained as assistants and have be n to
gain experience, then we could, as soon as there are suKient
assistants for us ta employ engiiieersalso, also institute a course for
them and then it is a shorter period of training for them thereafter,
having regard to the practical knowledge and background they wiU
havehad '."
(m) Applicants' formulation tends to create the impression that the
Minister stated that the engineering profession would be completely.
and permanently, closed to the Bantu, and that they should accord-
ingly content themselves with becoming assistants ta European
engineers. This is not correct. The Minister dealt with what was a
new and. in the circumstances, difficult situation where Bantu were
beginning to show an interest in the engineering profession, and
he spoke of practical steps that would have to be taken before
' Vid6 U. of S.A.,Pari. DL~..Hours O/ .4rrmtbiy. Vol105 (1960).Col.7872. COUNTER-MEMOK IFISOUTH AFRICA 53'
engineering courses could be instituted for Uantu students. Appli-
cants limit their remarks to what the Minister said about engineer-
ing assistants, and fail to mcntion tliat lie also said that engineer-
ing courses would be introduced for I3;intustudcnts, as cited above.
(n)There is no reason to suggest, as Applicants appear to do, that the
Minister's concern about "fmstrated people" was iiot genuine. The
Minister made it clear that he was dcaling with what was a new
development, and said, interdia:
"... 1 am not prepared to help to keep people at a university for
six, seven and eight years at a great cost and tlien let them corneout
of it, without there being a livelihood for thcm. 1 do not want
fmtrated people in our colleges. 1 want the person who comes out
of it to be in a position to render service tohs own people. That is
why 1do not want us to start building the house from the chimney
downwards as regards th's development. We must build up from the
foundations '."
(O) At the beginning of 1961 a three-year course in "drawing and
drafting" was instituted at several Bantu secondary technical
schools. The first candidates will complete this coluse, which is at
Junior Certificate level, at the end of 1963,and will then be offered
posts as engineering assistantsby the Departmeut of Bantu Admin-
istration and Development. They will then receive practical in-
service training. and willfurthennore periodically follow"sandwich"
courseç at a technical school until they become fully qualified
engineering assistants.
Steps are also being taken to introduce a Senior Certificate
Technical Course at srne of the senior technical schools as from
January 1965. Students who complete this course will be fully
qualified engineering assistants, and will, in addition, be granted
--~~~cul~tion exemotion with the necessary subiects to follow a
degree course in engheering.
21. Paragraplrr8r (wronglyprinted as rgr) *.
The Minister's statement, referred to in paragraph 20 above, in no
way supports the alleged complaint of Senior Headman (also referred
to as "Chief") Hosea Kutako. There is, in fact, no relation between the
two things. It is difficult to know what Applicants, or Mr. Kutako,
conceive the "ço-called Rantu education system" to be, but it issufficient
to say that any allegation that any educational systein in South Afnca
has as its objective "to teach the non-Europeans from childhood,that
they are inferior to the Europeans" is completely unfounded. Similarly
any allegation that any educational system in South Africa or in the
Territory has such an objective is untrue and probably born of motives
which have no relation to education.
What have been introduced in the Native schools in South West
Afnca, are syiiabuses based on those used in Bantu schools in South
Africa but adapted to local conditions'. The syllabuses. founded on
sound educational principles, are better adapted to the needs of those
Vide U. of S.A.Pori. Dcb.. Houscof Assembly,Vol. rog(1960) C.ol.7872
' Vidd Chap. IV. paras23-30,supra.532 SOUTH WEST AFRlCA
whom it ih sougt-t to teach tlian those previously used. and the system
of community schwls 'offen: Sative p;irents tlie opportuiiity of playing
an active part in tlie pmniotion of the educatioii of their cliildren.
22. Paragraph 182 =.
(a) The allegations in this paragraph are not correct. Particulars of
the salaries and ailowances pmd to European teachers as determined
from time to time are set out in Chapter VI1 3,and those paid to
Native teachers, in Chapter V '. Respondent admits, however, that
the salaries and allowances for European teachers are higher than
tliose for nori-European teacliers.
If Applicants' coiitention is that al1teachers should be paid the
factors rclating to the determination of salaries and allowances of
teachers in tlie different jiroups are dealt with in the following
parngraphs. - - -
(6)In the first place. the qualificatioiis demanded in the case of Euro-
pean teacliers are generally Iiiglier than in the case of non-European
teachers aridit stands to reasoii that teachers with higher qualitica-
tions should command better salaries.
(c) The range of economic alternatives open to prospective teachers
is also, in conjunction with the qualifications aspect, an important
factor in the determination of salaries.
1701persons ivitli the qualifications of the European teachers there
are many alternative employment opportunities, not only in the
Temtorv itrelf. but also in South Africa. The salaries of these
teacherSmust, tlierefore, always bear a reasonable relationship to
salaries paid in the otlier spheres of emp.oy-ent which are open to
them.
In South \Vest Africa the position is that the Territory has never
been atile to l~roducethe tcacliers it needs. Salary scales for European
te;ichers in tt.e'l'erritoare the same as those a~~licablz to teachers
of equal statiis in South Africa, but in order to âitract teachers from
South Africa to the Temtory, it has been found necessary to pay a
special allowance to them 6.
The aforenientioned considerations do not apply to nearly the
same extent in the case of Native teachers in the Territory. For rea-
sons previou;ly given 7, the shortage of qualified Native teachers
cannot be alleviated by recmiting teachers from South Africa. The
problem israther one ofinducing a sufficientnumber in the Territory
to obtain even the lowest qualifications necessary for teaching
purposes. There has in the past been little competition for the
servicesof such persons on comparable salas. bases, and the determi-
Vi& Chap. IV. paras. 35-41, 43.
*1, p.158.
' VidcChap. VII, paras. 30-33, supro.
Vidc Chap.Y. paras. 72-77, supra.
Vidc Chap. VII. paras. 3-31, 39rupro,eornparedwith Chap. V. paras. 73-74.
supra.
Vi& Chap. VII. para. 33. supr~.
' Vide Chap. V, para. 23. supra. COUNTER-HEMORIAL OF SOUTH AERlCA 533
nation of their salaries hasrather been dependent on the considera-
.-.---mentioned below.
(d) A teacher's salary should, in Respondent's view, bear a relationship
to the normal income of other members of his group, otherwise he
mieht becomesenarated orestraneed -rom them aÏesult of an arti-
fic&l financial b'arrie1.
The Native groups are in general stiil much less developed in the
economic snhere than Euro~eans. and their whole structure of
income and'of cost of living is'genega~ylower. In this regard it may
be pointed out that in the payment of regional allowances ta Native
teachers in the Police Zone, consideration is given to the fact that
cost of living in the Police Zone is higher than in the northern
territories2.
These factors result in a situation that salaries paid to Native
teachers are lower than those paid ta European teachers, even where
qualifications may be comparable.
(e) siderations in African circumstances, appears from the fact that
similar differencesare to be found between the salaries of Native and
European teachers also in other African territones '.
If) The situation is naturallv not a static one. and is subiect to con-
,,, tinual adaptation and ;hange. as udl appear from Che,account
already given of iiicrcases arid alterations from timc to time in salary
scales and allowanct5 '.The opening up of a numljer of cornpetinç
avenues of higher employment tlirough progress made in the policy
of zeparate development, as recountrtl in other portions of ths
Counter-\lemorial. cou~led ivith tlie teachcr shortage in regard to
Native education. mu& naturally tend to increasë the 6asis of
remuneration of Native teachers. \%th continued social and eco-
nomic progress on the part of the Native population groups, thegap
between salaries for Native and European teachers must in the
ordinary course be narrowed and, eventually.,disappear. It.co+d,
however. do incalculable harm to anticipate this process by smghng
out Native teachers for paytnent to them of salaries which would
produce a complete economic imbalance between them and Wtually
all other members of theu communities.
It is correct that in South West Africa there was a general increase
of Rzzo (£110) in the salary scales of European teachers in 1955:1956.
Native schools. al1European teachers, and not only to those teaching in
The aliegation that-
".. .there was made available for 'Non-Ewopean' teachers only the
possibility of an additional increment of £15 for men Kr2 for women)
Vidc Chap. IV, para.72.supra.
2 Vide Chap. V. para. 76. rupn.
4 Vida Chap. V, paras. 73-78, rupvo.
1 1, p.158.534 SOUTH WEST AFRICA
per annum for eadi of three years making a maximum possible
aggregate increase of £45".
is correct onlv i~iso far as Native teachers were concemed-it did not
abply to ~olkured teachers '.The payment of the additional inciements
was made subiect to recommendation bv the Director of Education.
Applicants ire apparently unaware of-the fact that adjustments of
the salary scales of the various groups are not necessarily made at the
same time. So, for example, new salary scales for Native teachers came
into operation in 1961 without any change in the then-existing scales
for European teachers'. There was no intention to raise the salary
scales for Native; in 1955-1956,as was the case with European teachers.
The additional uicrements for Native teachen were merely intended to
augment the sakiries of those teachers who had already reached their
maximum salary .
24. Paragraphs184and185 '.
(a) In these paragraphs the Applicants give certain figures of expend-
itureç in South West Africa on Euroman and Native education
respectively during the years 1953-1954;o 1955.1956,and So make
c~lculations of per capiia expeiiditure for tlic year 1954-1955.'i'tie
alltgatioii is made ttiat tliese iigurts aiid calsulations show a "fan-
tasnc discrc?aiicy". and a pareiitly judging by their sumrnary in
paragr~ph i:i6 and tlieir "!&al conclusions" 5.it isthe Applicants'
contention tliat the fimres iustif). an inference of unfair discrimi-
nation against the h'aGvep6pulaGon of the Territory.
Respondeiit denies the correctness of the figures given by the
Applicants, and of the pn capita caiculations made. It is admitted,
however, that amounts spent on Native education have at al1times
been substaiitially less than the amounts spent on European edu-
cation, but it is denied that this fact justifies any inference of unfair
discrimination against the Native population, and Respondent
says that although there has been differentiation, there has in fact
been no unfair discrimination.
.b, Partimlars of amounts soent bv the Administration on Native and
European education <ldng vaiious years ha1.eiilready becn given,
and in thisreg:ir(l the honourableCourt is referred to the information
contaiiied in Ctia~ters V 6and Vlf 'above.
It is ~es~ondênt'ssnbmission that, in the light of the circum-
stanceswhiclihaveprevailedand stillprevail in the Territory, a com-
parison between the two thingexpenditure on European education
and expenditure on Native education4annot pn se be indicative
ofunfair discrimination against the Native gcoups.
Conditions which have governed, and still govern. European and
' Vidc G.N. No. Ilof 1955 (S.W.A.).r Apr. 1955, iLawr ofSoulh West
1955.Val. XXXIV, pp. 796-798.
Vidc Chap. V, para.74.supra.
Vidc also tabler.Chap. V. para.73, and Chap.VII, para.30. nipo
' 1.p.159.
Vide Chap.V.gparas. 79-8195h(Caprivi).supla.
' Vide Chap. VII,para.35. su*. COUNTER-MEMORIAL OF SOUTH AFRICA 535
Native education. have been, and are, vastly dissimilar, and al1com-
parisons based on mere differencesin expenditure must inevitably be
invalid in the context of charges as made by the Applicants. The
same considerations apply, though to a lesser extent, to Native
education in the Police Zone as compared with Native education in
the areas beyond it. There is no indication that Applicants have in
any way taken account of the different conditions.
(c) The question of expenditure on education of each of the population
social and economic status and levels of development of each of the
groups, and their respectiveeducational needs.
Respondent refers in this regard to what has already been stated '
conceming the differences in these respects between the vanous
groups.
The various factors and conditions which inhibited the iutro-
duction and development of education in the case of the Native
groups 2,rendered it almost inevitable that expenditure on education
in the Territory should have begun on a basis of substantial excess
on the side of European educationover that of Native education.
With the progressive extension of education to the Native
groups, increasingl~ larger sums have. however, heen spent on
Native education. and with the coutiuued social and economic
advaucement of the Native peoples of the Temtory, the difference
in expenditure on Native and European education must, in the
cours; of time, of necessity disappear:
At present there are still factors which, as in the past, render the
education of European children relatively more expensive than that
of Native children. These factors are referred to in the paragraphs
below.
(d) As stated in paragraph 22 above, the salary scales of European
teachers are higher, and, being better qualified, European teachers
are therefore placed in higher categoriesof their salary scales.
The average European primary-school teacher employed by: the
Administration generaiiy spends about six years more at training
institutions than the average Native primary çchoolteacher.
Native teachers in a category higher than the lowest. The lowest 29
teacher's certificateobtainable bv a Native student is at the end of a
two-year course aftir standardk~. Many Native teachers are paid
salaries on the basis that they have obtained the minimum qualifi-
cations required when in actüal fact the? have not done so '.
(c) The expenses per pupil in the higher standards are higher than,in
the lower standards because of higher qualified and better salaned
teachers, and higher cost of equipment,materiais, etc., and thereare
many more European pupils in the upper pnmary and secondary
classes than there are Native pupils. In 1960, for example. there
were 4,597European pupils in Standards V-X in government schools
(i.e., excluding private schools)as against 795 Native studentsin the
same standards in the whole of the Territory. In Standards VII-X
' Vida Chap.IV,paras. 63-74, supra
Vidc Chap.V. paras. 3-3SU~V".
"Zbid.,para.74.536 SOUTH WEST AFRICA
the comparative figuresin 1960were: Europeans 2,151, Natives III.
*,, The Permanent Mandate~~~~~~-ssion. it mav , ~~,oointed out..a~o~ ~
compared e>:pt.nditures on European éducation with expenditures
or1Native eilucation. but it did more than that. It also considered
actions taken by Mandatories in the light of the general problems
with which a.particular territory was faced and of the progress made
in regard to similar problems in other temtories sirnilarly situated.
Bv doine so. it is submitted. the Comniission was able to maintain
a inore 6alaiiced view and abetter sense of perspctive than would
otherwise have been possible.
In this regarditmay be ap >ositeto quote froin the minutes of the
said Commip,jion.In 1933MI] Dannevig. the llember tntnisted by
the Commissionwith the study of Kat& education, {vasrecordcd to
have stated that she
"... appreciated the efforts of the Administration to maintain the
standard of education in spite of financial difiiculties. Expenditure
had heen cut down. she noted, less than in other fields, and native
education less than European education. She alsonoted the excellent
work done by teachers in spite of adverse circumstances. She thought
that the average expenditure per scholar-Europeans £21 6s. ~od.
and natives £2 15s. 7d. .. .-being comparatively high accounted
for this good result'."
The minutes for the year 1937contain the following:
"Mlle Darinevig noted from the first statisticai table (page 34 of
the report) and the budget estirnates ( age 13) that there had been a
steady increase in expenditure on ejucation during the past few
years. The amounts spent on the education of native and coloured
people were comparativel smaU. only about 10% of the total
K13.805 oui: of a total O7 £127,691) and the estimate for native
education for 1936137was reduced, while that for European was
increased. At the same time, the cost of education per pupil was
very high as compared with the expenditure in other territories. and
was said to be £22 os. rod. per head for Europeans, £4 19s. 3d. for
colouredchildren and £2 13s.id. for native children2."
And in 1939 she stated that she "fully appreciated, of course, that
schools for European children must cost considerably more in
proportion I."
(g) In regard to expenditure on Native education it should be borne
in mind that the sums mentioned in the respective tables 'do not in-
cludemoneys spent from Native Reserve or tribalfunds, noramounts
spent by the various missions concemed. This is of particular im-
portance in the case of mission schoolsin the northern territories. In
1959-1960,for example, the Administration's contribution b way of
subsidies to :;choolsin the northern temtories was R82.590 (A1.295),
whereas the amounts spent by the Finnish and Roman Catholic
Missions alone totalled Rrz7.490 (£63.745).As already stated, the
taking over of the lower primary schools of the Finnish Mission in
P.M.C. M.in..XXIII. p.93.
1Ibid.,XXXI. p. rz8.
' Ibid.XXXVI, p.33.
* Vide Chap.V. paras.79-80. 95(Caprivi). ru*o, COUNTER-MEMORIAL OF SOUTH AFRICA 537
Ovamboland in 1961led to an immediate and substantial increase in
the Administration'sexpenditurc. and as more schoolsart?taken over
increasingly larger amiunts wiübecome involved '.
tionz are items such as hostel fees, study loans, book mone s,ca-
examination fees,etc., which are either wholly or in part recovera le
from parents and whichare more substantialin the case of European
education. In 1960-1961, for example, the to. amount recovered
b the Administration in respect of such items w?s R365.562
&(lz,78~) in the case of European educat'on as against R13.508
86,754) in respect of Native and Coloured education.
fparticular significanceis the fact that increasingly larger amounts
(fi) have been and are being spent on Native as well as Coloured educa-
tion. In 1934-1935,for example, the expenditure on non-European
(i.e.. Native and Coloured) education amounted to about 11.9 per
cent. of the total amount s~ent on education in the Territory. In
1y62-1y63,taking into accoiint mu~ieysrecovered in rcspcct oi items
such as those mentioned insub-paragraph (g) above. the eexpenùiture
on non-Euro~ean education amounted to 25.6 - -er cent. of tlie total
~ ~ ~~ ~ ~.~~n e~uc~ ~~ ~ ~ ~
The expenditure on Sative education will inevitably increase as
emolurneats incrvast.: as more Native schools are stablished: ss
Native teachers obtain oualifications which command hi~her
salaries. as the cconomies of the Native groups develop and eïpind;
and as more students procecd to the highcr prirnary and sccondary
standards.
25. Paragraph1863.
It is denied that the Native pulation in South West A!rica "guffers"
under a "burden of negation, Estration and unfair discrimination". or
that there is a denial of educational opportunities to Native, children.
It is iikewise denied that there is any policy or practice, dehberate or
othenvise, to "restrict and sha the education of the young so asto
perpetuate the denial of possigfities for self-improvement". There is
no denial of possibilities for self-improvement, and there 1sno plicy to
relegate the Native population "to a status of imposed infenority".
On the contrary, as Respondent has shown. the Native groups are
being provided with opportunities for self-development and self-re+-
zation, and despite the many dinicuities involved, progress in this field IS
being made in an ever-increasing measure.
Respondent's task iç in essence one of advising, encouraging +d
assisting the various groups by providing fadties consistent with
their needs and &din them towards self-help. Whether. and to what
extent. the groups ma f e use of the opportunities offqed rests 1argel.y
with themselves. Thev will. however. continue to receive svmpat.etic
assistance and gtuidanie from Respondent.
The allegations containeri in suh- aragraphs (1) to (7) of paragraph
186are a reptition, in summarized fonn, of the Applicants' allegations
1 Vi& Chap. V. para.80.
Ibid., pm. 79-80.and Chap. VII.para. 35.supa.
' 1,pp. 159-161.538 SOUTH WEST AFRICA
in paragraphs 1551.185of the hfemotials, and save for what is said below.
Respondent does not wish to repeat its answers to the various ailegations.
(a) Sub-paragrap.ia(r), and Applicanls' Legal Conclusion (iv) (a) al
pages165-166.
While it is admitted that a smailer percentage of Native children
small fraction" compared with the percentage of European children who
attend school. Ln1960about 39.8 per cent. of Native children of school-
going age attend(:d school and in 1961 the percentage was about 44 '.
It is unrealistic to compare European with Native attendance figures,
as wiil be readily appreciated by aU those whose task it has been to
extend education to underdeveloped communities in Africa. To see the
matter in proper perspective, reference should be made to school attend-
ances in other part sf Africa. and to the difficulties which have con-
ironted educational authorities in those arts in regard to teacher
training. The honourable Court is referrelto what has been said in
Chapter V above 2.
(b) Sub-parag7ap.h(2). and Applicants' LegalConclusion(iv) (b) at page
166.
The honourable Court's attention is invited to what has been said
in (a) immediateiy above. The Applicants' ailegations are greatly exag-
gerated in so far as they relate to availability of education, as a refer-
ence to Chapter V above wiil show. Without going into any detaii, it
is stated that, although comparatively few schook have classes beyond
Standard III, the only conditions for establishing an npper primas.
dass at a school are a minimum of five pupils (tenin Ovamboland), and
the availability of a teacher. Full use is not made of existing facilities
effort is made to train as many teachers as possible. In this regard also,
full use is not made of the opportunities offered.
(c) Sub-paragraph. (3). and APPlicanls'LegalCondusion (au) (c) at page
166.
It is true that there is only one high sdiool (Le., with classes up to
Standard X), but it is also true, as indicated in paragraph 9 above, that
the facilities provided at that school are more than sufficient to meet the
preseut demand fimhigh school education for Natives in the Temtory,
and are not fuily utilized.
(d) Sub-paragraph (4), and Applicants' LegalConclusion(iu) (d) al page
166.
Ample facilities are available for the training of Native teachers in
or Coloured teachen. Higher education is not provided for any of theean
g~ups in the Temtory because the demand does not justify it. Indus-
tnal schook that were established for Natives had to be closed for lack
of support. Industrial courses have since 1956been offered to Native
students at the Aiigustineum, but these are poorly supported.
' Vih Chap. V,priras. 57-58. 88 (Caprivi).suplo.
Ibid., para31-22,59-60. COUNTER-MEMORIAL OF SOUTH AFRICA 539
(e) Stcb-paragraph(5) .nd Applicanls' Legd Conclusion(iv) (e) at page
166.
There are ample facilities in South Afnca for higher and vocational
education for Natives. It is not true to Say that such facilities are only
"theoreticaliy" available. And it is wholly untrue to Saythat the pursuit
of education is discouraged by the South African Govemment.
That the pursuit of education in general by Natives is not discouraged
by Kespondent, appears abundantly from the record.
To spend large sums of money on the education of the non-European
groups-as has been and is being done-would indeed be a curious way
of discouraging the pursuit of education. Similarly, efforts which have
resulted in having as at 1961, approximately 44 per cent. of h'ative
children of school-a e at school-a percentage which is higher than
that obtained in eit 'er of the Applicant States-surely disprove any
suggestion that the pursuit of education is discouraged.
As fat as opportunities for higher education in South Africa are
concerned, the facts given above ' regarding loans and bursaries for
Native students from the Temtory again refute the allegation of dis-
couragement.
(f) Sub-paragva+h(6). and Applicants'LegalConclusion(iv) (f)a/ +ag5
166.
vocationaiiy trained for no professions Save those of teachers, nurses
and engineering assistants. This isnot so. Students of au groups are
generaiiy free to take any higher education courses they wish, and
nothing prevents them from doing so.
The allegations made by Applicants in regard to teachers, nurses and
engineering assistants are not correct, as will appear from what has
already been said.
Respondent has shown that historical and economicreasons existfor
the fact that Europeans earn more than Natives, and that this 1s a
matter which is subject to fluctuation and change, also in accordance
with ordinary economic principles which will tend to increase Natives'
salaries as progress is made in the &-round economic and social ad-
vancement of the Native groups.
Respondent denies that it imposes "a publicly proclaimed inferiority
of status" upon Natives who enter the occupations referred to by Appli-
cants,.or at all.
(g) ~ub-pa?agraph(7). and Applicants' LqaZ Conclusi(o iv) (g) afiage
166.
It is admitted that lessbasbeen spent on Kative education than on
ciation of the various factors which have played and still play a part
in this regard. Respndent does not wish to repeat here what has already
been said, but wishes to emphasize that it was natural and alrnost
inevitable that education for the European group in South West Afnca
sh0.d have started off on an advanced basis, while education for the
Native groups was at the inception of the Mandate at an infant stage;
1 VidaChap. VI.paras.24-25supra.54O SOUTH WEST AFRICA
of the various groups, have alinost inevitably rendercd educationlopment
for Euro~ean children more expensi\,e tlian for Sative children. evcn on
a prop&ionate basis; that expenditure on Native education has shown
a marked upward trend in recent years: and that progress has been
made not only in overcoming the impediments and retarding factors
regarding Native education, but also in a broader sense in the ad-
vancement of the Native groups on al1fronts, material, moral and social.
The important factor at the present stage of development is therefore
not the existence of a difference of expenditure in a particular year or
years, but the upward trend in expenditureon. andthe advancement of,
Native education.
(h) Sub-paragraph(8).
A refeÏence to what has been said in the preceding chapters wiil show
that the aileaations in this sub-paramaph are without anv foundation
of fact. - - --
It wiil appear from what has been said that Respondent is following
a policy in the l'emtory which accords the highest recognition to the
identity and cult;ural heritage of each of the Native groups, and that
its policy endeavours, as far as possible. to provide for the particular
needs of al1the groups. To achieve this object, every endeavour has been
made to enable the children of each of the groups to be educated sepa-
ratelv in their own laneuaee and bv their own teachers. This in itself is
a vact undertak1r.g bu;. i~~es~on~ent's view.e neçessaryone. Syllabuses
have been desicn?d to fitthe culturaland historical background of al1the
Native groups,-aiid parent communities in these groups have been given
dations having iiow been weU laid. the groups themselves are beingl foun-
afforded every cipportunity to co-operate in their own development
to the highestlevel they can attain.
It is therefore not tme to Say that Respondent has failed to use the
possibilities of education to promote the well-being, the socialprogress
and the develo ment of the Native population, or that it has deliber-
ately restrict2 opportunities for the education of Native children, or
that it has remaved opportunities for any significant advancement of
the Native woulation '.On the contrarv. the vast and difficult task of
Sative educaiiori lias reached a stage &jr&ess which not only com-
pares well with that in comparable African territories. but promises
healthy and acceleratcd further growth. Opportunities for Native educa-
tion are becoinin: incrzasingly favousable; and, in conjunction with the
political and economic aspects of Respondent's policies dealt with
earlier in thisCounter-Ilemorial. the system of education is providing
substantial and orderl "improvement in the well-being, social progressr
and derdopment" of txc Native population of the Temtory.
Respondeot hri dealt abovewith the Appli-tsspecific allegations regarding
Native teaehem and engineering assistants, anisnot intended to repeat what
has beensaid before.PRINTED IN THE NETHERLANDS
Books V-VIII