INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIAv.SOUTH AFFUCA;
LIBERIAvSOUTH AFFUCA)
VOLUME N
COUR INTERNATIONALE DE JUSTICE
MEMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPLEC.AFRIQUE DU SUD;
LBÉRIA c.AFRIQUE DU SUD)
VOLUME iV Counter-Mernorialfiled bythe Governmentofthe Republicof SouthAfrica
LIST OF ABBREVIATIONS
A.D.
Apof South African of the Supreme Court
A.F.P. Agence France Presse
A.J.I.L. The American Journal of International
Law
A.M.I.C.E. Associatehlember of the Institute of Civil
Engineers
A.P.S.R. The Amencan Political ScienceReview
Bib. Un. Bibliothèque universelle et Revue de
Genève
B.Y.B.I.L. The British Year Book of International
La.#
C. Blue Books: United Kingdom
C.L.J. The Cambridge Law Journal
C.L.R. Commonwealth (Australia) Law Reports
cub. cubic
OC. Degrees Centigrade
ft. feet
G.N. Government Notice
GrotiusSoc.
Ha. Hcctare(s)ns of the Grotius Society
H.Af.S.0. Her/His Majesty's Stationery Office
I.L.A., Rep. International Law Association, Reports
I.L.O. , Intemationûl Labour Organisation
in. inches
K.B. King's Bench Division (England)
km. kilometre(s)
L. of N., Assembly, Rec. League of Sations, Assembly, Records
1.. of N., Council,Min. League of Nations, Council, Minutes
L. of N. Dac. League of Nations Docunient
L. of N., O.J. League of Nations, OfficialJournal
L. of N., O.J.. Spec. Sup. League of Nations. OfficialJournal,
Special Supplement
m. metre(s)
hlk. Mark (unit of currency)
mm. .millimetres
N.A. Archive ofthe Secretary ofNative Affairs,
Cape Colony
O.R.R. Officia1Recordsts
Ord. Ordinance
P.AI.C.,Min. Permanent Mandates Commission.
Minutes
Proc. Proclamation
Quellen Quellenzur Geschichtevon Südwestafnka
R. Rand (unit of curency)R.D.I. Revue de droit international et de légis-
lation comparée
K. of S.A., Parl. Deb., Republic of South Africa, Parliamentary
I-louseof Assembly Debates. House of Assembly
S.A. South Africa
S.A.L.J. The South African Law Journal
S.A.L.R. South African Law Reports
SC. Securitv Conncil
sq. square
S.K. 6i 0. Statutory Rnles and Orders and Statn-
torv I~strunerits
south West Africa
High Court of South West Afnca (onlyin
South West Africa Native Labour Asso-
ciation
T.C. Trilsteeship Conncil
T.P.D. Transvaal Provincial Division of the Su-
preme Court of South Africa
U.N. United Nations
U.N.C.I.0 United Nations Conference on Interna-
tional Organization
U.N. Doc. United Nations Document .
U.N.P.C. United Nations Preparatory Commission
U. of S.A., Parl. Deb., Union of South Africa, Parliamentary
House of Assembly 1)ebates. House of Assembly
U. of S.A., Parl. I)eb., Union of South Afnca, Parliamentary
House of Assembly/Senate Debates, House of AssernblyISenate
U. of S.A.. Parl. 1)eb.. Union of South Africa, Parliamentary
Senate Debates. Senate INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
-
SOUTH WEST AFRICA CASES
(ETHIOPIAv.SOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)
VOLUME IV
COUK INTERNATIONALE DE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIEc.AFRIQUE DU SUD;
LIBÉRIA cAFRIQUE DU SUD)
VOLUME IV The present volume contains Books VI11to X andthe Supplement
to the Counter-Memorial and the Reply filed in 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 zo May 1961
(South West Africa, Order of 20 May 196r. I.C.J. Reports 1961,
p. 13).Two Judgments have been delivered, the first oZI December
1962 (South West Africa, Preliminary Objections,Judgnzent, I.C.J.
Reports 1962, p. 319). and the second on 18 July 1966 (South West
Africa, SecondPhase,jzidgnient, 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 is indicated by a roman numeral in bold type.
The Hague, 1966.
Le présent volume reproduit les livres VI11 à X du contre-
mémoire. lesupplément au contre-mémoireet la réplique déposés
dans les affaires dSud-Ouestalricain. Ces affaires ont étéinscrites
au rôle généralde la Cour sous les nos46 et47 le 4 novembre 1960
et les deux instances ont étéjointes par ordonnance de la Cour
le zo mai 1961 (Se~d-Oueslafricain, ordonnancede6 20 mai 1961.
C.1.J. Recueil 1961, p. 13). Elles ont fait l'objet de deux arrêts
rendus le zr décembre1962 (Szld-Ouestafricain, ezceptionsprélinzi-
naires, arrêt, .I.J. Recuei1962, p. 319) et le18 juillet 196(Sud-
Ouestafricain, deuxièmephase, arrêtC , .I.J. Recue,1966,p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiéspour tenir
compte de la pagination de la présenteédition. Lorsqu'il s'agitd'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. APPLICATION INSTITUTING PROCEEDINGS
AND PLEADINGS
PREMIÈRE PARTIE. RE~UETES INTRODUCTIVES
D'INSTANCE ET MEMOIRES
SECTION B. PLEADISGS (continued)
SECTION B. MEMOIRE (szlile)
5. Counter-Mernorialfiledby the Government of the
Republic of South Africa (continued)
BOOK VI11
Page
Section A. Supplemental material in regard to the alleged violation
by Respondent of Articlez of the Mandate .........
Chapter 1. Introductory..................
Chapter II. Extracts from petitions relied on by Applicants . .
Paragraph B.1: extract from a communication dated 30 Oc-
tober I 56 from Hosea Kutako to the Chairman of the
ad hocC?ommitteeon South \$'estAfrica. ........
Paragraphs B.2 and B.3: estracts from communications
dated IO January 1958 and 31 July 1958 from Johannes
Dausab et al. ....................
Pavember 1957 from Hosea Kutako to the Secretary-General
of the United Nations. ...............
Paragraph B.5: extract from acommunication'dated 13June
1957from Nghuwo Jepongo to the Secretary-General of the
United Nations. ...................
Paragraph B.6: extract from a communication dated 3August
1957 from hlr. Toivo Herman Ja Toivo and eighty other
Ovambo to the Chairman of the Trusteeship Council ...
Paragraph B.7: extract from a communication dated 30 Sep-
tember 1958 from J. G. A. Diergaardt etal.to the United
Nations .......................
Paragraph C.1: extract from a communication dated 25 Feb-
mary 1959 from the Rev. Markus Kooper to the United
Paragraph C.2: extract from a communication dated 14 Sep-
tember 1960 from Chief Hosea Kutako to the Secretary-
General .......................X SOUTH WEST AFKICA
Page
Paragraph C.:$:extract from a communication dated 2 Sep-
tember 19j.4 from Hosea Kutako t.t al. to the Secretary-
General ....................... '7
Paragraph C.4.:extract from a communication dated zo June
1958 from Johannes Dausab et al.to the Secretary-General 18
Paragraph C.:;: extract froni a communication dated 16 July
1956from Jacobus Beukes to the Secretary ofthe Committee
onSouth W'estAfrica ................. '9
Paragraph C.6: extract from a communication dated 30 Sep-
tember 1958 from J. G. A. Diergaardt et al.to the United
Nations ........................
Paragraph D. 1:extract from a communication dûted 20 June
1958 from joharines Dausab et al.to the Secretary-General
Paragraph D.2: extract from a statement by Hosea Kutako
South West Africa by the Rev. Michael Scott in a com- on
munication dated 22 July 1958. ............
Paragraph D..j: extract from a statement by Hosea Kutako
elal. referred to in Paragraph D.z ...........
Paragraph D..+:extract from a communication dated 17 Octo-
ber 1957 from Mrs. Kathe van Lobenfelder, Outjo, to the
Trusteeship Council. .................
Para raph D.:j: extract from acommunication dated 30August
1~80 from Rfr. S. Rlifima, chairman, South West Africa
People's Organization. Cape Town, to the Committee on
South West Africa ..................
Paraera~li D.15:extract from a communication dated 7 Aueust
xg& [rom South West Africa People's ~r~anization, ivynd-
hoek, Soutli West Africa, to the Committee on South West
Afnca .......................
PaT,graph E.1: extract from the statement cited in Paragraph
U.2 ........................
Paragraph E.2: extract from a communication dated 22 NO-
Secretary-General of the United Nations.ther........to the
Paragraph E.3: extract from a communication dated Novem-
ber 1953frim AlissAIargeryF. Perham to the Chairman of
the ad hocCommittee on South West Afnca .......
Chapter III. The Petitioners ................
Section B. Alleged violations by Respondent of Article 4 of the
Mandate. ........................
Chapter 1. Statcment of the law ..............
Chapter II. The alleged military bases in South West Africa .
A. General ......................
B. The Regiment Windhoek. ..............
C. The alleged military landing ground in the Swakopmund
district of South West Africn .............
D. The alleged military camp or military air base in the Kao-
koveld .......................
Chapter III. Conclusion .................. CONTENTS
Page
Chapter IV . Submission .................. 63
Annex A. Paragraphs 61 to 66 of the "Report presented hy
of the League of Nations conccrning the adniinistration ofl
South IVcst Africa for the year 1929" (U.G. 23-1930 .
pp. 10.11)......................
Annex B . Affidavit of G. H. Olivier. Registrar of Deeds.
South \$'est Africa..................
Annex C. Affidavit of E.E. Smith. Surveyor-General. South
West Africa .....................
Section C. Alleged violations by liespondent of Article2 (1) of the
Mandate and Article zz of the Covenant ..........
Chapter 1. Statement of the law ..............
A . Introductory ....................
B . The alleged "duty to refrain from unilatcral annexation".
C. The alleged "duty to advance the political maturity of the
Territory's inhabitants sotliat they may ultimately exercise
self-detennination" ..................
D . Applicants' statement that "the phrase 'integral part' gives
the territory. if such action amounts to juctoannexationing
or incorporation" ..................
Chapter II . Relevant historical background .........
A. Generally as to the facts relied upon by Applicants ...
B. The League of Nations period .............
C. The period after the dissolutioii of the Lcag......
D . Conclusion .....................
Chapter III . Respondent's alleged intention.........
A. Introductory ...................
B. The statement of the South African Prime llinister in the
Senate on 21 llay 1956...........
C. The speech of Mr . Basson in the House of Assembly on
D. The statement of the South African Prime Minister in the
House of Assemhly on 23 April 1956 ..........
E. The statement of the South African Prime llinister in the
Senate on 14 June 1957 ...............
F . Conclusion .....................
Chapter IV . Confcrmcnt of Soiith African citizenship upon the
inhabitants ofSouth West Africa .............
A . Introductory ....................
B. The resolution of the Council of the League of Nations of
23 Apd 1923 ...................
C . Extension of South African citizenship to British subjects
in South West Africa prior to1949 ...........
D. T1949 (Act NOu.44 of 1919)...............izenship Act.XII SOUTH IVEST AFRICA
Page
Chapter V. Incliision of representatives from South \+'est Africa
in the South African Parliament ............. IOI
A. Introductory .................... IOI
B. national status of the Territory".con...........h the inter- 101
C. self-deterniination" tandAct"excludes 'Natives' from the
processes of self-government" .............. 103
Chapter VI. Administrative separation of the Eastern Caprivi
Zipfel. ........................ 105
A. Introdiictory .................... 105
B. The control and administration of Native affairs generally 105
C. Administrcition of the Eastern Ca~rivi Zi~Ael..*QZI to 1, , 106
D. The periocl 1929 to 1939 ............... 109
E. The perioil 1939 to date ............... IIO
F. Present administratio~i of the Eastern Caprivi Zipfel ... III
G. The allegation that administrative separation of the East-
ern Caprivi Zipfel is "inconsistent with the international
status of the Territory" ............... 112
H. The views of the Committee on South \t'est Africa, as en-
dorsed by Applicants. ................ 113
1. The alleged frustration of opportiinities for progress
towards self-detennination ..............
"7
Chapter VII. The transfer ol administration of Native affairs to
the minister of Bantu administration and development. and
the vesting of South West African Native reserve land in the
South Africari Native triist ............... 119
A. Introductory .................... 1x9
B. Transfcr of administration of Native affairs to the miiiister
of Bantu :administration and development ....... 119
C. The vestirig of South West African Native reserve land in
the South African Native trust ............ 122
1. The i-esolution of the Permanent Mandates Commis-
sion of 7 July 1924 ............... 122
II. The objects and purpose of the South African Native
trust. ..................... 126
III. The effect of vesting South West African Native
reserve land in the South African Native trust. .. 128
D. The view:j of the Coinmittee on South West Africa, as
endorsed by Applicants ............... 129
E. Applicants' allegation that the measure in question is an
element "of a plan for political integration ofthe Temtory"
andthat it tends "substantially to impede progress toward
the objec1:ivesof the Mandate" ............ 130
Chapter VIII. (:onclusioii ................. 132
Chapter IX. Submission. ................. 133 CONTENTS XII1
Page
Section D. Alleged violations of Article 7 of the Llandate..... '34
A. Introductory ..................... 134
B. Statement of the law .................. 134
C. Statcment of facts ................ 135
Respondent's alleged intent ............... 135
Kespondent's alleged acts ................ 136
D. Submission .................. 136
BOOK IX
A glimpse of South West Africa ............... 137
Indes ........................... 138
BOOK X
Table of cases ....................... '39
List of documentation ................... '41
SUPPLEMENT TO THE COUNTER-MEMORIAL
Introdnctory ........................ 197
Government and citizenship ................. 198
Development projects ................... 198
Administrative and financial arrangements ........... 199
Altnexes io theSf~pplemenl to theCo~~nter-ilfernoria l...... zor
A. Meinorandum containing the decisions by the Government of
the Republic of South Africaon the Recommendations of the
Commission ofEnquiry into South West Africa afiairs .... zor
A. The reasons for the appointment of the coinmission.... 201
B. The Government's attitude concerning the future course of
development ..................... 202
C. Decisions hereby announced .............. 203
Supply of water and electricity ............. 203
Tr.an.sport...................... 205
Mining ........................ 207
Agriculture .................... 207
Education ..................... 208
Health Services .................. 209
Purchase of land ................... zro
Appointment of a special committee of experts ...... 210
Coloured housing and community centres ........ 211
D . Matters on which the nuthorities concerned will take their
own decisions .................... 211
E. hlattcrs to be decided upon later ............ 212
(a) Long-term ~rojects .............. : . 212
(b) Recommendations which reqnire further investigation
and consideration ................. ZIZ
[c) Recommendations standing over for special reasons 213
Homelands ................... 213
Administrative and financial relations ........ 214XIV SOUTH WEST AFRICA
Page
Recommendations connected with the foregoing ... 214
F. The Government's attitude concerning the case pending
before the International Court ............. 215
G. Financial irnplicatious ofdecisionsand interim arrangements
for their implementation ............... 216
The fivefin;incial and administrative arrangements .... 216
Liaison conimittee .................. 217
B .Comparative table .................... 218
C. List of the relevant documentation ............ 219
6.Reply ofthe Governments of Ethiopia and Liberia
Chapter 1. Statement of the case............... 220
Chapter II . Histoiy of the dispute since 1960 ......... 222
1) 1961 ....................... 222
p)) 1963 ....................... 228
onclusion ....................... 230
Chapter III . The nature of the Mandate ............ 231
A. General con:;iderations ................. 231
B . Nature of the Mandate as viewed by this honourable Court . 242
C. Nature of the Mandate as viewed by thePermanent Mandates 246
Commission ...................... 246
I. Composition and character of the Commission ..... 246
a.The composition of the Commission ......... 246
b. The cliaracter of the Commission.......... 247
2. Legal ba!;is of Respondent's obligations........ 249
3. Purposes and objectives of the Mandate ........ 251
4. Conc1usic.n~ .................... 253
Chapter IV. Respondent's violations of its obligations toward the
inhabitants of the Territory ................ 255
A . The relevant submissions ................ 255
B. Territory....................... to the inhabitants of the 260
2. Respondent's policy: decisive and undisputed facts ... 262
3. Analysis of Respondent's policy............ 268
a. General considerations .............. 268
b. Relevant evidence ................ 277
r. Juilgments of qualified persons with first-hand know-
ledge of South Africa and South West Africa ... 277
(B) Viewsof South Africans with "first-hand know- 278
ledge" of Respondent's policies ....... 280
(1)"White" South Africans ......... 280
(b) Religious leaderst............ 283 CONTENTS XV
Page
(d) Political leaders .......... 2286
(e) Authors .............. 287
(2) South African "Natives" ........ 289
(3) South African "Coloureds" ........ zgz
(4) South African "Asiatics" ........ 292
2. L'iewsof governments ............. 293
3 .The weight of contemporary scientific authority . . 302
(A) Respondent's coiiteiitionregarding "difference"
without "inferiority"............ 305
(B) Respondent's contentioii of inevitable "frustra-
tion" ifal1inhabitants of the Territory are ac-
(C) Respondent's contention that as....a "realistic 306
government" it must support existing "group
reactions"................. 307
4. History and character of the system of "homelands"
or "territorial apartheid"............ 312
Afnnex I ."Separatk development and South West
Africa: some asoects of the Odendaal
report" ............... 328
Annex 2 .Extract from working paper prepared by
Annex 3 . Extract from report of the United Nations 341
special committee on the policies ofapart-
heid of the Government of the Republic
of South Africa (1963) ......... 349
Annex 4'.Extract from reuort of the United Nations
special cornmitGe on the policies ofapnrt-
hcid of the Government of the Republic
of South Africa (1964) .........
c. of its policy...................s of implementation
I .(A) General policy................
(1)Introduction ..............
(2)General policy .............
(3) Categorizatioii.............
(B) Nature of education in the territory .....
I) Segregation by race ...........
l) Se.a.ation by trihe ...........
(3 Limitation of objectives in syllabus....
(C) Extcnt of education in the territory .....
(1) Laissez-faire..............
(2) Compulsory education ..........
(3) Disparity in expenditure.........
(a) On education in general .......
(cj Conclusions.............. ......X\'1 SOUTH WEST AFRICA
Page
Annex 5. Racial separation in educatioii in depend-
ent territories, as viewed by the United
Nations . . . . . . . . . . . . . . .
2. The economic aspect . . . . . . . . . . . .. .
(A) Introduction . . . . . . . . . . . . . . .
(B) General considerations . . . . . . . . . . .
(C) The reserves. . . , . . . . . . . . . . . .
\,I The Police Zone . , , . . . . . . . . . . .
(1) I<acialdiscriminatioii in respect ofadmission
to e. ..yme.t aiid access to vocational
(2) hleasures having the effect of compulsion to. .
labour wbich involve racial discrimination
(3) IZacial discrimination in respect of freedoni
of association and the right to organize. . .
(E) Conclusioii . . . . . . . . , . . . . . . .
Anviex 6. Sectioii (1): Integratioii of inhabitants
iiito the economies of dependent tern-
tories, as viewed by the United Nations .
Section (2): Extract from report of the
labour.L... . . . . . . . .tce on.F. . . . .
3. Government and citizensliiy. . . . . . . . . . .
(B) Statemeiit of law. . . . , .. . . . . . . . .. . .
(C) Suffrage aiid participation iii the territorial
government . . . . . . . . . . . . . . . ~
(D) General administratioii (civil service) . . . . .
(E) Local government . . . . , . . . . . . . .
(F) Government within the "Native" tribes and
"Native" reserves . . . . . . . . . . . . .
(G) Conclusions . . . . . , . . . . . . . . . .
Annex 7. territories,ndas vicwed by thedependentUnited
Nations . . . . . . . . . . . . . . .
4. doni of movement . .on, rig,t. . .res,d.nc.,. . .fre. . .
(B) Analysis of measures of implementation . . . . . of
apartheid with respect to residence, freedom of
movement, and security of the person . . . .
(C) Statement of law. . . . . . . . . . . . . .
(D) Legal conclusions , . . . . . . . . . . . .
Chapter V. Legal basis and legal nature of respondent's obligations
toward the inhabitants of the territory . .. . . . . . . . .
I. League of Nations period . . . . . . . . . . . . . . . .
2. The United Nations Charter. . . . . . . . . . . . . . .
3. The Universal Declaration of Humaii Rights . . . . . . .
4. Draft declaration on rights and duties of States . . . . . . CONTENTS XVIl
Page
5. Trust territories agreements . . . . . . . . . . . . . . 501
6. Resolutions of the General Assembly . . . . . . . . . . 502
7. Resolutions of the Security Council. . . . . . . . . . . 503
8. Human rights covenants. . . . . . . . . . . . . . . . 504
9. United Nations Declaration on the Elimination of al1fomis
of racial discrimination . . . . , . . . . . . . . . . . 505
IO. International convention on the climination of al1 forins of
racial discrimination. . . . . . . . . . . . . . . . . . 507
II. International Labour Organisation Constitution aiid coii-
12. Regional treaties and declarations. . . . . .. . . . . . . . . 508
509
(A) The European convention for the protection of humaii
(B) Cliarter of the Organization of American Stntes . . .. . . . 510
(C) Amcrican Declaration of the riglits and duties of inaii . 510
(D) Draft declaration of the international riglits aiid duties
of man. . . . . . . . . . . . . . . . . . . . . . 510
Conclusion. . . . , . . . . . . . . . . . . . . . . . . . 510
Chapter VI. Respondent's violations of its oblig~tioiis toward the
United Natioiis. . . . , . , , . . , , . . . . . . . . . . 520
A. The relevant submissions . . , , , , . . . . . . . . . . 520
BC. Analysis oflegal basis and natureof Respondent's obligations . . 520
toward the United Nations . . . . . . . . . . . . . . . 52 1
I. Respondeiit's obligation as statcd iii Article 6 of the
under to the United Nations as the "orgrinized inter-there-
national community" . . . . . . . , . . . . . . . . 525
a. Tcommunity".f Nat. . .as . . . . .iii. . . .ern.t.on. . . . 525
b. community".Nation. . .th, ,or. . .ed-in. . .tio.a. . . . . 537
2. The comproinissory clause in Articie 7 of the Mandate
is in effect, and the said clause assures the judicial protec-
tion of the leeal interest of the oreanized international
community inurespect of the "sacredutmst". . . . . . . 540
D. Conclusion . . . . . , . . . . , . , , , . . . . . . . 546
Annex 8. Brief survey of legal arguments previously
thereof previouslymade by this honourable
Court, with respect to Respondent's obli-
gations toward thc United Nations . . . 547
1. Proceedings leading to the Advisory
Opinion of 1950 . . . . . . . . . . 547
2. The Advisory Opinion of 1950 . . . . 548
3. The Preliminary Objections . . . . . 549
A, Tudeuent on the Preliminarv Obiec-
' <ions . , . . . , . . . . .- . . .. . 550
5. Tlie law of the case. . . .. .. . . 55%XVllI SOUTH WEST AFRICA
Page
Chapter \'II. Respnndent's violations ofits obligations both toward
the inhabitants of the territory and toward the United Nations
A. Respondent's violatiotis of Article 4 of the hlanùate . . , .
1. Statement of law . . . . . . . . . . . . . . . . .
2. Statement of facts . . . , . . . . . . . . . . . . .
Annsx g. Supplementary material with respect to
the Mandates vi.la, , , o. . . .le . , . . .
B. Kespoiideiit': violations of Article 2 (1) of the Mûiidate and
Article zz of the Covenant . . . . . . . . . . . . . . .
I. Iiitroduction . . . . . . . . . . . . . . . . . . . .
?. Argument . . . . . . . . . . . . . . . . . . . . .
I. Conferroeiit of South Africaii Citizensliip . . . . . .
2. Inclusion of representatives from South West Africa in
the South African Parliameiit . . . . . . . . . . .
3. Administrative separation of the Eastern Caprivi Zipfel
from the Territory . . . . . . . , . . . . . . . .
4. Vesting of South West Afnca Native Reserve Land in
5. Transfcr of Administratiori of "Native" Affairs to the . .
South African Minister of Bantu Administration and
Development . . . . . . . . , . . . . . . . . .
C. Respondent'a violations of Article 7 (1)of the Mandate. . .
Chapter VIII. Submissions. . . . . . . . . , , . . . . . . .
Annex IO. Observations concerning the memorandum
of the enquiry into South West Africaon
affairs reproduced in the Siipplement to
the Counter-Mernorial . . . . . . . . .
Anner II. Supplementary material containing ad-
ditional views of South Africans with
"fir. .hancl knowledge" of Respondent's
policies . , , , , . . . . . . . . . .
(1) "White" South Africans . . . . . .
(a) Scholarly authorities. . . . . .
(b) Religious leaders. . . . . . . .
(d) Journalistsea. .s . .. . .. . .. . .
(31 South African "Asiatics" . . . .. . .
Annez m. Supplementary material containing addi-
tional views of contempornry scientific
nutliorities . . . , , . . . . . . . . .
List of the relevant documents. . . . , , . . . , . . . . . .
Table of cases . . . . . . , . . . . . . . . . . . . . . . . BOOK Vlll
SECTIONA
SUPPLEMENTAL MATERIALIN REGARDTO THE ALLEGED
VIOLATION BY RESPONDENTOF ARTICLE z OF THE
MANDATE
CHAPTER 1
INTRODUCTORY
1.Chapter VI of the Memorials contains, according to Applicants.
"Supplemental material in regard to the alleged violation by [Respond-
ent] of Articlez of the Mandate", and it is alleged tlierein that whilst
Cli;ipter V of the Memorials sets out fa".s..derived principally from
oficial sources, including laws, proclamations, and administrative
illustrates"The manner in which the dailv lives of inhabitants arech
affected thereby . . .". This material, it is statéd, is derived from ". . .pe-
titioiis received I>ythe United Nations Cominittee on South West Africa
from various pekons and organizations irithe Territory", and it is
tilleged that the ciunulative effect of such petitions ". . .reinforces.
in general, the factual allegatioiis contairied in Chapter V" of the Me-
morials '.
It is alleged, furthermore, tliat the "probable accuracy in substance"
of the allegations containedirthe petitioris is "confirmed by the fact
that manv incidents recounted in the ~etitions are ~redictable conse-
quences the pattern of [~cs~ondent's] administration in the Terri-
tory", and it is stated that the petitions were received from a "...e
va&ty of independent s~urces"~~.
The extracts from the petitions cited iii Chapter VI of the LIemorials
are submitted to the Court, so it is stated, "as typical and illustrative
applications of[Respondent's] policies in the Territor'.
z. In Chapter II below Respondent deals with the extracts from the
petitions relied on by Applicants.
A large number of allegations contained inthese extracts amount to
of the Memorials. In order to obviate unnecessary duplication, Respond-
cnt will not give a detailed answer to al1 the allegations contained in
the said extracts, but will from time to time, as convenience dictates,
refer to those portions of this Counter-Memorial in which matters raised
in Chapter VI of the Memorials have already been dealt with.
Respondent will, in its reply to the allegations contained in the said2 SOUTH WEST AFRICA
extracts. demonstrate that the ~etitioners have eenerallv not hesitated
to exaggerate or misrepresent conditions in ~outhwest Africa, and that
the complaints raised in the extracts are substantiallv, and in some
cases eniirely, witliout foundation.
3. In Chapter III below Respondeiit deals with Applicants' allegation
tliat the said petitions emanatefrom a "wide ... variety of indepeiideiit
sources". It will be shown that the majority of petitioners caii in no wüy
bc regarded as "iridependeut", but that they are persons who, as rep-
resentatives of certain sectionalinterests in the 'ïcrritory, have resorted
to the regular practice of petitioning the United Nations Orgnnization,
al1in furtherance of a general campaign directed at bringing about, by
whatever means, an end to Respondent's administration of the Territory,
and at establishiné:for the Territory "governmeiit of. . .Africans" 1.
' Vide Chap. III. para.2.inlra. CHAPTEK II
EXTRACTS FROM PETITIONS RELIED ON BY APPLICANTS
Paragraph B.1: Extract from a Communication Dated 30 October 1956
from Hosea Kutako to the chairman of the Ad Hoc Committee on South
West Africa'
iiili;ibitaiits of the :\minuis I<eser\,cto add to tlic iai.1 rç5'r:<portionhe
of the strii) hct\\.cen the rescr\.e 2nd the Uecliiixiialnnd burtlcr. kiiown as
the Corridor (the Aminuis Herero caU it Kuridora), in exchange for
two inferior portions of the reserve which could not be effectively used
because of a lack of a sufficient supply of water.
Due ta a shortage of water, the Corridor had been uninhabited for
many years. Attempts to findwater had not met with success until efforts
were made by the Administration ta bore for water at great depths
with a vieiv to opening up the Corridor for development. It was necessary
to bore to a depth of over 1,000 feet before the operations proved success-
ful. Twenty-two boreholes. yielding good supplies of potable watcr,
were the result of these efforts. It was considered that a portion of the
land thiis iinproved should be made available to the Aminuis inhabitants
-hence the proposed exchange.
2. Accordinr to amicultural exoerts. the vortion of the Corridor oro-
posed to be adudedtz the reserve ;vas far more valuable from a farihg
point of view thaii the two portions of the reserve prop-sed -o be ex-
ihanged for it.
3. Headman Hosea Kutako and the inhabitants of the reserve xvere
consulted with regard to the proposed exchange. At the time of such
consultation no decisiori had been made with rerard to the future of
thc tir0 ~wriiurtsof the rcseriw ini.vli.ed in the profoscd ~..sshnnh.c..
'l'lie;idi,:int;tg<s attnchiiig tttiiproposeil eschnngc \vere cxlilnincd
Io rlie raidciits of the rcservc.ni hc"nc, i11rliu:
(a) The land to be added to the reserve \vas larger than the laiid ta
beexcisedtherefrom, andit wasalso better prepared fordevelopment.
The portion of the Corridor which it was proposed to add to the
reserve had no less than 16 boreholes, and the carrying capacity of
the area was in the vicinity of10,ooocattle. The land proposed to be
giaen in exchange had only three satisfactory boreholes, and its
carrying capacity was about 3,000 cattle units.
(b) In tenns of money. the value of the relevant portion of the Corridor
was estimated as follows:
16 IIoreholes at about K4,68o (&z,340)
each . . . . . . , . . . . . . . . . R74380 (£37.440)
Pastoral and Agicultural value of land. . Rj50,ooo (&27j,ooo)
Total. .. R624,880 (&312,440)
'1, pp. 167-168. SOUTH WEST AFRlCA
4
The value of the portions of the reserve proposed to be exchanged
\vas estimated as foilows:
Borehole at ":post 500" . . . . . . . . R1.024
Lister engine and equipment .,. . . . . R600 [f$u{
Cement reservoir and drinking trough R376 (LIS&
Value of the<: further boreholes, approxi-
mately.. . . . . . . . . . . . . . li6,ooo (L4.000)
Pastoral and :igricultural value of land. . K300,ooo (LIjo.ooo)
Total . . . K310,zoo (LI~~,Ioo)
4. Tlie proposal wns rejccted by Headman Hosea Kutako aiid liis
followers. Although the proposed excliange complied with the provisions
of section 5 (1)of Act Xo. 56 of 1954 ',the Ifinister of Bantu Adminis-
tration and Development had no wisli to force the exchange upon the
inhabitalits of Aniinuis lieserve. The proposed excliange was therefore
ahnndoned.
5. Altliougli th2 :\dniiiiistr.ition Iild, prior tn the alorcni~iitioiicd
iit~gutiniiuiis,~>rol~~ivodl'rning up tlie Corridor for Europ~.:.nicttlenieiit.
it \vas sub:eaue~itl\' decidcd tlial tliéCurriilur \vould iiot I>esubdivi<lcd
into farms. bbt w&ld remain as an area which could be made available
to farmers for grazing in times of drought. It was also decided that
applications for grazing on that area, by Natives, including residents of
the Aminuis Reserve, would receive the same consideration as appli-
cations by European fanners2. Subsequent to the latter decision,
grazing and water points in the Corridor werein fact placed at the disposa1
of the inhabitants of the Aminuis Reserve.
6. With regard to the proposed exchange here in issue, Kespoiideiit
wishesto emphaske:
(a, 'i'tiesihangc: \\ai iii~eii<lcdto;tll~\tlir S:,ti\.c popiil.irioii of th2
Anilnuis J<eitrv~.IO share in the bencfiti of thc :ire1 (the Corridor)
which lin<l,a!;;irciult of costly improvementi. been o[>r.iie< III)for
development by the Administration.
(b) The exchange \vas intended to be. and would have been, entirely
tothe advantage of the inhabitants of the Aminuis Reserve.
(c) Nothing ivas done without consultation, and ivhen it transpired
that Hosea X:utako and his followers were not in favour of tlie ex-
change, the proposa1 was abandoned.
7. Apart from the facts relating directly to the proposed exchange,
as dealt with above, the extract from the petition here in issue also
contains Hosea Kutako's alleged reason for objecting to the proposal.
The first allegation in this regard 1s:
". .. our &st Native Keseive was at Augeikas near Windhoek and
the Govemment removed us from it in order to eive the land to the
Europeans. We were then given Otjimbondona &omwhich we were
removed in order to make room for Ewopean farmers. Finally we
' Act NO. 56 of rggq.sec.5 (I),in Slatules Ua Uxion of South Africa1954.
p. 563.The said section requires. in the event of any part of areservebeing
exciseda.substitution of "land of at leaçt an equivalent pastoral or agricultural
value".
para. 14. p168. Fourlecnlh Scss., FourlComm., 915th Meeting, ig Oct. r959. COUNTER-MEMOR IAFLSOUTH AFRICA 5
wcregiven Aminuis Native Reserve with the assurance that it would
be our permanent home '."
The alleeation insinuates that reserves ~reviouslv established for the
inhabitant: of Aminuis were taken awa? from them for purposes of
European settlement.
This insinuation is without substance. At the ince~tion of the Man-
dateit was necessary to reassemble Herero who wereicattered over the
Territory, and to establish them in reserves2. Among the reserves
established for them, were Aminuis and Epukiro in the Gobabis district,
which were set aside by Government Notice No. 122 of 1923(S.W.A.)
\Vhile the said reserves were being prepared for occupation, the prospec-
tive inhabitants were first assembled at farms such as Aukeigas, and
from there, and elsewhere in the Territory, moved to other farms,
including Otjimboudona and Scheidthof, dong the road to the afore-
mentioned reserves. The Herero who were on their way to Aminuis and
Epukiro were accommodated on these farms purely temporarily, and
had to wait there until the Aminuis and Epukiio reserves were ready
for occupation. At the time when Hosea Kutako and his followers were
temporarily accommodated as aforestated ou Aukeigas and Otjimbondo-
na, neither of these farms was a Native reserve. Hosea Kutako is thus
incorrect in saying ". . our first Native Reserve was at Augeikas ..." '.
(Italics added.) He is also incorrect in stating that ". . .the Govemment
removed us from it in order to give the land to the Europeans" '.In
fact the said farm was not after their~d~oarture therefrom eiven out
for liiiropcnii si.ttlemcnt nt ;IIt.rciiiliiied un:illocnted land fora niimbi:r
uf yens until it\vasproclairncd nrL..;erv,:foroccupntiun I)!.Dnm:iiii 1932.
'Thest:,temeiit: "\Ve \ver<rlien civcn 0tiimbonduri:i from \i,liich we
were removed in order to make room for European farmers" ', is also
incorrect. The said farm servedmerely as a place of temporary accommo-
dation,as stated above, and was not intended to be, nor was it in fact,
a Native reserve.
8. With regard to the ailegation that ". . . the previous removals
caused much hardships and were responsible for the loss of much of our
Iivestock and other property" ',Respondent points out that the previous
moves referred to took place in the early rgzos. and were unavoidable if
the Herero people were to be brought together and granted permanent
homes. Everything possible was done to facilitate these moves and JO
minimize the loss of livestock on the \rray. In any event, the earl!er
moves, which were over long distances. could hardly be compared with
that which would have been involved if the proposed exchange had been
accepted. The latter would have entailed a removal of only a small
number of people over a short distance to an nrea directly adjoining the
~ ~~~~~~~~-rvr ..
9. Kcgnr<linKthe allegatioii thnt ".. . Ainiiiiiis Y3rii.e Reserw is too
sin;ill for its iiili;il>itnn.".l,IZespoiidcntdenies that this \\.astlic case
in io5G \i.lierliii;illecation \\.as ma&?.2nd furtlier statcs thlt this lias
not bëen the case at a6 time up to theiresent.
1 1.p. iU8.
' G.N. No.k 122,ofh1923I(S.W.A.),in The3Lawr tofsSouth WcstlAfricaa1923, pp.
84-88.6 SOUTH WEST AFRICA
- .. .. . . - . ..
VideBook III ,hap. 1.para. 31, of this Counter-&fernorial.
2Departmental information.
' Kohler O.. A SludyofGobobis Distri (StouthWeslAfrica). Ethnological Publi-
cations. Xo. 42 (rg59), para236, p. 70.
'1. pp. 168-r6g. COUNTER-MEYORI OABLSOUTH AFRICA 7
community", and that the newarea aiiocated tothem, viz., Itzawisis,
was "useless land".
II. The farm Hoachanas, 14,253 ha in extent, is inhabited by a
number of Red Nation Nama and some other Natives.
In order to understand the petitioners' contentions, a short history
of Hoachanas is necessar
In August I~OI, the &man Colonial Office authorized the creation
of a reserve of not more than 50,000 ha., in and around Hoachanas, for
the Red Nation Nama. Nthough demarcated during 1903, the proposed
reserve was apparently never proclaimed as such. This may have been
due to the outbreak of the Herero-Nama rebellion in 1904, during
which the Red Nation Nama also rose against the German Government.
On 26 December 1905, an Imperia1 Ordinance providing for the
expropriation of Native properties in South West Africa was enacted.
By virtue of powers vested in him by this Ordinance, the German
Governor issued a Notice on 8 May 1907 confiscating, inter alia. the
property, movable and immo\~able,of the Red Nation Nama of Hoacha-
nas *.
The German authorities thereupon proceeded to dispose of portions
of the area originally demarcated for the proposed reserve.
The farm Hoachanas was thus German property which, Save for the
portions disposed of by the Germans as aforestated, accmed to Respond-
ent in its capacity as Mandatory at the inception of the Mandate.
12. A small number of the Red Nation Nama who had not taken
part in the rebellion were allowed by the German Administration to
remain on Hoachanas and to graze their stock on the farm on payment
of grazing fees. These Nama were stiil on the farm when Respondent
assumed control of the Territory.
During the first fewyears of the Mandate. Respondent treated Hoacha-
nas as a temporary reserve for its inhabitants. The Native Reserve
Commission of 1921. appointed to investigate and report, inter alia, on
the setting aside of land for the Native population of the Territory,
recommended the creation of Native reserveç and, at the same time.
recommended the closure of certain small temporary reserves, including
Hoachanas. The Commission snggested that land at Tsesshould be made
available for the then residents of Hoachanas 2. Because of practical
difficulties at the time, this suggestion coiildnot be carried out.
13. Although the Red Kation Nama who had occupied the farm
dwing the last years of the German regime had been granted only
temporary occupation and grazing rights, the Administration at different
times promised the said occupants that they could remain on the farm
and exercise such rights for the rest of their lives. The Administration
has consistently honoured these promises.
' Vide Die deutrche I(olonio1-Cesetrgebung. Sammlung der auf die deutschen
Schutzgebiete bezüglichenGesetze, Verordnungen, Erlasse und internazionalen
Vereinbarungen mit Anmerkungen, Sacliregister, Elfter Band (Jahrgang 1907).
pp. 233-234.This noticwas confirmed by a subsequent notice dateIISep. 1907.
Vide Deutscher Kolonialblatt: Arntsblatt für die Schutrgebiete in Afrika und in der
Südsee. XVIlI Jahrgang. No. 20 (rg Oktaber 1907)p.. 981.
Report of Native Rcscrncs Co>nmirrion (S.W.A.). 8 June rgzr (unpublished).
p. 22and Annex R; also AfinulexofMeeting 01fhc Nafioe Rescrves Commissiof07
South Wesl Africn: hclal Wirtdhoek on the arJifn~,rgzr [unpublished). p. 5.8 SOUTH WEST AFRICA
Save in the case of the small number of inhabitants to whom the
above life rights were promised, occupation of Hoachaiias has at al1
tinies been permiti:ed ooly on a temporary basis. This arrangemeiit wns,
however, ai unsatisfactorv one, inasmuch as the farm, not beiiirr a
1)r~cl:~iinedreicr\?, SOUIJiyotbe <le\.c~Iul)cpdropcrl!.. So trust fiiiid. fÏuiii
wliicti impro\~cnieiitscould be fiii;inreil, iould be creatcd uiirler tliipro-
\'isioiisof the Sntivc I<t.,crvcj 'l'rus 1-uiidsl'rucl:iiii;ition So. i,of 102.1
(S.W.A.) 'As an interim measure it was arranged that the féeswl6cIi
residents paid for the right to graze their stock on the land would be
utilized for limited improvements. The ex~enditure incurred on im-
proving the water suppl$ was met in this \va);,as well asthe cost of tools
and food for those engaged on minor improvements, such asthe building
..
of small dams.
14. In 1956the Administration decided that positive steps should be
takeii to end the .temporary arrangement described above, and to pro-
vide the inhabitants of Hoachanas with a permanent homc. A committee
\vas nppointed to investigate the matter of acquisition of land for this
purpose. This conimittee inspected and commented favourably on the
farm Itzawisis. The said farm is larger than Hoachanas, and adjoins
the Nama reserve Rerseba, as well as the Tses reserve. where a number
of Nama are resi~lent. It is close to two rnilway sidings, and medical
services are more readily available, than at Hoachanas. ridam had beeii
built and a borehole, yielding n good water supply, had been equipped
with the necessar!l plant. The committee recoinmended that additional
dams should be built and boreholes drilled to provide for future needs.
The nLzine w, ,eood- ~ .ecia.lv for small stock ~ ~ ~ 2.
I j. Sixt\-four of tltc rcsid~.ntson Ilu.icIi:in:is ;iiccpted the oif~r to
niovc to Itza\riii;. and did io \.oluntnrily nt tlict:ii~lof 19j6. 'l'liein:iji>rity.
tio!vr.ver,iiiidcr tlic Ic:idcrsliir>of \l;irkiis Koopc'and others, refiised 10
move, maintaining that theyivere entitled to in area of 50,000ha. in and
around the farm Hoachanas. and that the Administration intended
depriving them 01'their land. They claimed restoration of 36,000 ha. of
land of which. according to their allegations, they had previously beeii
deprived by the South West African Administration, and added certain
other claims. The Administration, on the other hand, recognized only
the enjopent of life rights granted to the original occupiers who had
received grazing ]>rivilegesduring the German regime, and maintained
that the remainder hnd no legalright to remain on Hoachanas. A test case
was brought in the High Court of South West Africa against Varkus
Kooper, the Administration praying for a declaration that Hoachanas
\vas governmeiit land, and for an ejectment order against hlarkus
Kooper.
On zr July 1gj8 the High Court gave judgment to the effect that
Hoachanns wns rrovernment Iaiid. aiid thnt Markus Koo~er was an
uiila\\.fiiIrejideii;itHonclian:~~. Iri reasti~>iito tliis jii<lgmïnt petitioners
I):~iisnband Kool~erall,:qt:ilthnr tlic Ili~li Court h;iil ~ivcn 3 prejudiced
decision, based on perveited facts
' Proc. No. 9 of rgzq(S.W.A.). in The Laws of Sot'th WestAlrica.Vol. II (1923-
1927).PP. 179-181.
Vidcstaternent inG.A., O.R., Fourteenlh Sess., Fourth Co>nn,.,915thMeeting.
19 Oct. 1959,paras. r7-18, pp. 168-169.
' The petitioner referred to in para. C.I 1, p. 170. COUNTER-MEMORIALOF SOUTH AFRICA 9
Each and every one of the ~~etitioners'allegations \vas incorrect, as
well as the allegation in the extract qnoted by Applicants, viz., that-
"Because the 'Nation' has strengthened liis hands Dr. Verwoerd,
the minister of the Union Department of Native Affairs sent his
secretary Dr. Eiselen to inform the officers of the SWA's adminis-
trat~ ~ ~~~ ~fect our removal from Hoachanas '."
'l'hc dccision ro lirupuîc the rcinuvnl of the inlinbit:iiirj of Hoacli:iiit~s
\va, m:iclc 1)'. rlic 5~11th :\fric:in :\~liiiiiiiirr;~tion. :ilrlioutta
Miniater of Sativc. Affnirs w:iscoiisulrcd :ind ncoiii~s<:i.d irithc riruiioit!d
action, which, as has been shown, had been kuggested by ihe'1gz1
Commission 2.
16. Respondent denies that the proposed removal was motivated by
a desire to make rooin for "Euro~ean settlement". and further denies
rliat itti:id,or his, ;iiiint~ntiuii of dt!pri\.iii;:thc inti:il>itarirsof 1Lu.iclia-
n;ls of land n<,ccsinryfur clicir prtsvnt and fiiriirc riecds. l)ti<:priii~~rily
io irs siiinll SIZC. Hu;iclinnns \r,:irccarrlçd ;is unsuittiblc for :iS:itivc
Rcserve. The proposed move to ItzaGsis was motivated by a desire on
the part of the Administration to provide the temporary inhabitants of
Hoachanas with a permanent home, which could be properly developed,
on land adjoining reserves permanently occupied by fellow Nama. It
must be noted that, although the small number to whom life rights of
grazingon Hoachanas had been granted, were,in the interests ofthe whole
group, exhorted to move with the others, no attempt was ever made or
contemplated to move them against their mill.
17. Kespondent denies the aiiegation that it has "reduced" any "agri-
cultural lands" of the farm Hoachanas. and further denies the allegation
by the petitioners that Itzawisis \vas "useless land which is just good for
the purpose of grave yard" '. At the time when the move to Itzawisis
\vas proposed, the grazing and the prospects of augmeiiting the water
supply werc good. Al1 the efforts subsequently made to improve the
water supplies were, Iiowever, disappointing, and a most severe and pro-
longed period of drought followed. It was found that in sevcre drought
conditions the ivater supplies on Itzawisis would be insuficient for the
purpose of snstaining al1 the inhabitants of Hoachanas. The Adminis-
tration lias therefore decided to defer the removal of illegal residents
on Hoachanas until satisfactory water supplies, sufficient also during
severe pcriods of drought, have been developed at Itzawisis, or until
other arrangements have been made to provide the inhabitants of
Hoachanas with an area for their permanent occupation.
Paragraph B.4: Extract from a Communication Dated 27 November
1957 rom Hosea Kutako ta the Secretary-General of the United Nations '
18. The following allegations are made by Headman Hosea Kutako
in this extract:
(a) that he and his followers were removed from their lands to the
present Native reserves to niake room for European settlement;
(b) that the said removal was effected by force. and that the Govern-
' 1.p. iug.
2 Videpara. 12,supra.10 SOUTH WEST AFRICA
ment burnt down their houses and cut offthe water supply, rendering
the people homeless;
(c) that the "average person" (apparently intended to denote an adult
male as head of a family) in a reserve possesses 15 head of cattle
and about 20 goats with which he has to maintain a family; and
that he isnot allowed to have more than three oxen;
(d) that cultivation of crops for human consumption is practically
non-existent, and that the Government does not allow the water in
the reserves to be used forirrigation purposes;
(e) that the inhabitants live on milk only, but that even this is not
sufficientto maintain a family because cream has to be sold to obtain
money with uihich to buy clothing;
.., that water is so scarce in the reserves that inanv ~e,.leli.e six to
se\.cii i1iilc.îa\i.n!.from rlie w;iter, \i.liiclitlic)'Iiavc to transport. ;and
\i.hich issometiinej inudilv and ~iiidrinkable '.
19. Kespondent denies that the Herero were removed to the present
Xative reserves from land which belonged to them. Amongst the con-
sequences of the :rgo4-1go7rebellion was the confiscatioii of al1Herero
property north of the Tropic of Capricorn Z.They were further pio-
hibited from keeping large stock. At the inception of the Mandate the
Herero therefore liad no lands of their own, and it was entirely to their
advantage that they were reassembled and giveii new homes in reserves
set aside for them.
20. Respondent denies tliat the rcmoval of the Herero to the reserves
set aside for them was accoinplished by force. Respondent further
denies that their ivater supplies were cut off, or that their Iiouses were
bumt doivn in order to effect such removal. On one occasion a firm
waming of forcib!e expulsioii was necessary in respect of a few dissen-
tients aniongst a groiip that had been housed temporarily on a farm
called Okatumba. which was not a Native reserve; but the warniiig
served its purpose, and actual force was not required. The group was
first accommodated on Okatumba in 1916. In 1924 they were required
to move to the Epukiro Reserve, which had meanwhile been opened up
for them. They tiad previously, at Respondent's invitation, inspected
Epukiro aiid had expressed complete satisfaction. When the time for
moving came, the majority complied without difficulty, but a dissentient
rninority of 108 remained, raising a complaint about the opening up of
water at Epukiro. Upon being satisfied that the excuse was not genuine.
the Administrator cansed the aforesaid warning to be issued. A full
account of the in(:ident was given in Respondent's annual report to the
Council of the League in 1924 3.
21. The allegations by Headman Hosea Kutako as to the number of
livestock owned I>yXatives at the time when his petition \vas drafted,
are grossly incorrect. It is not certain whether the alleged figures refer
to the stock in al1 the Native reserves in the Police Zone, or whether
the figures refer to the Aminuis lieserve alone, as the words "in the
reseri,e" (singular) are used, whilst the petition as a whole purports to
' 1, p.1%.
-rial.de-para. II,:supra,and Book VI, Chap. III. pur*. 27,of this Counter-Mc-
U.G. 33-1925. pp.zo-zr. COUNTBR-MEMORIAL OF SOUTH AFRICA II
deal gencr.,lly with con<litioris in restr\,cs in thc Polici: Zonc. II tlie
aver:ige figwej were inrci~dcdto portrit) the position in 311 tlie reicrves
\i.irliirithc Police Zoiic. the co~~cctrwsitioncitthe rime wliéiiHcadm:in
Kutako's petition \vas drafted (in' 1957) \vas as follows: The 6,513
families living in the Native reserves in the Police Zone (total popula-
tion then approximately 28,ooo) owned 201,564 head of cattle and
379,379 small stock-i.e., about 31 head of cattle and 57 head of smd
stock per family. Apart from a substantial number of stock sold out of
hand, the organized stock sales in the reserves yielded 1q54.866
(f;227,433)during 1956 and K500.036 (&250.018)during 1957. The sale
of cream by the inhabitants of the reserves yielded K88.984 (L44.492)
during the financial year 1956-1957 '.
If the figures given by Headman Kutako were, however, intended to
relate to the position wlthin the Aminuis Reserve only, they were also
grossly incorrect. During 1956 there were 30,618 head of large stock and
1,678 head of small stock, owned by approximately 700 stock owners
within the Reserve, which then had a total population of approximately
2,800-i.e., 44 head of large stock and 2 head of small stock per owner.
The number of large stock increased to 37,430 in 1959, and to 47,048 in
1963. The number of small stock in 1959 and 1962 were 10,490 and
25,367. During the first half of 1963 two organized stock sales in the
reserve yielded Rroo,591 (&50,29510s.).
22. With regard to thc alieged restriction on the number of oxen
allowed. the position is as follows: The government notices relevant
to the pFeservation of soi1and the control of stock in reserves contain
no provisions which restrict the number of oxen which a stock-owner
may owii or keep in a reserve. The regulations promulgated by Govem-
ment Notice Xo. 68 of 1924 (S.W.A.) provide that a stock-owner may
not, without the Administrator's permission. keep more than roo head
of large stock and 300 head of small stock in a reserve. These restrictions
were introduced to protect tlie ioterests of al1stock-owners in reserves.
Without such a measure of control overstocking would become a serious
problcm, and the iiiterests of the smaller stock-owners could be subjected
to those of the richer ones.
23. With regard to the allegation that "thcpeople live on milk only" ',
Respondent States that the Herero people have traditionally and always
lived on a diel consisting principally of milk. And, as to the statement
"... even the milk is not sufficient to maintain a family because they
have t? sel1 cream to get money with which to buy clothing" '.the
suggestion of starvation due to an insufficiency of milk is unfounded.
The stock figues and income statistics qiioted above are self-explana-
tory. Quite apart from income derived from the sale of stock and cream,
many inhabitants of the reserves also derive income from wages as
employees ontside the reserves.
24. Rcgcir(liiigthe nlleg:itioii conceriiing ivatcr siil>pliesaii<ltlic cul-
tivation of croi>;. Respondent States that in most of tlie reerves in the
Police Zone, ason moit farms. the water supply is a paramount problem.
' G.N.rNo. 68 of rgz(S.W.A.), Schedule. ioTltLaws ofSouth Werl Africo1924.
pp. 62-63,
' 1,p. 1%.12 SOUTH WEST AFRICA
Water supplies an: obtained mainly from underground sources and are
generally only suliicient to meet essential needs, that is, for human
and animal consu~nption. There are no restrictions on the use of water
for irrigation purposes where the supply of water permits of such use.
In view of the fact that a shortage of water is the overriding problem
in connection witli farminc in the Poiice Zone, meat effortshave been
made by liespondent to increase water supplies'in the Native reserves,
and to have faciiities distributed evenly so as to eliminate undue con-
centrations of the w. .ation.
Sorni~lly iioreasoii exijts \ihy people should \vaII;six to seven miles to
fct<:li\\.:ite:o i-.:$llt:ged.'l'tieiiiiottiingtu lirc:\ent the rcsidcrits of
rescrves froiii rt:si~lingor establishing thcir honics in close proximity to
\mtcr supplies. Scr is tlicre Iny rclion \\.11!witli proper iise of cxijting
facilitics. \i.itcr shuulrl bc iiiudclyor undrink3ble.
Paragraph H.5:E.\tracl frorn a Cornniunicalion 1)ated 13 June 1957 from
Nghuu.o Jepongo Io the Secretary-Ceneral of the United Nations'
25. The foiiowiiigallegations are contained in this extract:
(a) conditions of lifefor Ovambo Xative labourers in South West Africa
are scandalous;
(b) there is û system of forced labour, the majority of S.W.A.N.L.A.
recruits being forced to takeup employment where they do not wish
to, and they i:ventually sneak away.
26. In the absence of ipecific allegations explaining in which way
conditions of life are alleaed to be scandalous. Res~onAent is not in a
position to deal specificall$ witli the charge made.
Respondent noies, however, that the petitioii from which only the
above extract is quoted by Applicants, contains a number of statements
regarding the alleged conditions of iife of Ovambo workers, whicli
statements Applicants-presumably because they themselves can attach
no credence thereto-have chosen not to include in their charges. So,
for example, the petitioner refers to an alleged indiscriminate and
wholesale murder of Ovambo workers in the following terms:
"The Ovambo farm boys were decreased by their farm employers
by shootings Some Ovambo victims were forced to dig their own
graves; man). of Ovambo corpses were burned to ashes by farmers
and thus were concealed; Ovambo corpses were thrown in deep dry
wells; some Clvambo corpses were hiddeii uiider big heaps of cattle
manures. Few farmers accused of murders were fined fifteen d(15)
poundsonly I)yCourt. This above mentioned amount is often part of
an Ovambo victim's sacked monies (savings) 2."
Respondent submits that no credence can bc attached to a general
allegation that "conditions of life are a scandal" by a petitioner biassed
to such a degree that he is prepared to allege such gross falsehoods as
the above.
27. With regad to the living and working conditions of Native em-
ployees in the Police Zone, Respondent refers to its reply to paragraphs
58 ta 76of Chapter V of the Memorials ',and denies the allegation that
1.1,.170.
C.A.. O.R. ,hirleenlhSess.Su#.No. 12 (A/3906).pp. 59-60.
VideBook V, secsB and C. ofthis Counter-Mernorial. COUNTER-MEMORIAL OF SOUTH AFRICA 13
scandai".ns of life for Ovambo Native labour in South West Africa are a
28. Respondent denies that any system of forced labour exists in
the Territory. If recruits accept work with certain mining conceriis,
they forthwith enter into contracts with their prospective employers.
In the case of otlier work, e.g., ori farms or as domestic servants in
urban areas, it is often impossible to specify the particular employer at
the time when the prospective employee is recruited in Ovambolaiid.
In such cases the recruits enter into preliminary agreements with the
recmiting agency, Xew S.W.A.N.L.A.. to accept work of an agreed type
with employers to whom they may be allocated, at iiot less tliaiiri
specified wage. Before leaving for Grootfontein, the nearest railhead to
Ovamboland, the preliminary agreement is fully explained to the recruit
bv the Bantu Affairs Commissioneror his assistaiit. niid anv recruit who
opportuiiity of rcfusiiig to t~ke such \r,ork.li tl,e sr& oilerid, lins cvL.ry
~\ft<:r;irriv;il nt Cri)otfuiir~iii. the récruiti ii.11not::tlre.itli. I><:cii
contracted to specific employers, are allocated to employers. 1t'is the
policy to return a recmit to his previous. employer if the recruit so
desires. Contracts between the employees and the employers are then
completed, if the former agree. The terms of the contracts are explained
to the recmits, and al1contracts are attested by the Uantu Affairs Com-
missioner or his assistant, who inquires from the employee whether
he is satisfied with the agreement. The recmit has every opportunity
ofrefusing to assent to the said contract.
cruits eventually "sneak away", Respondent says that only a sinall-
percentage of recruits leave their employers hefore the expiration of
their contracts. So, e.g., out of :itotal ' of 35.oG3extra-territorial :iiid
northern Natives employed in the Police Zone on contract during 1959,
1.143 (Le., approximately 3 per cent.) left their employment before the
expiration of their contracts and without such contracts having been
cancelled. The petitioner's allegation in this regard is a gross exaggera-
tion.
Paragraph B.6: Extract from a Communication Dated 3 August 1957
from Mr. Toivo Herman Ja Toivo and Eighty Other Ovambo, Io the
Chairman of the Trusteeship Council
30. This paragraph also deals with the system of labour recmitment,
which was the subject of the preceding paragraph. With regard to the
first sentence of the extract here in issue. Respondent denies that the
contract system is "compulsory". as is aiieged. Contracts are entered
into voluntarily, asexplained in paragraph 28 above.
31.With regard to the "demand" that evcry young man should be
free to choose and serve his master as long as they understnnd each
other. Respondent States that, as far as choice of employer is concerned,
Police Zonein ig~g.i.e.including those previously ernployed whaîe contracts hadhe
been extended.*4 SOUTH WEST AFRICA
a maximum effort is made by the recruiting organization to place a
prospective employee in employment of his choice. It is in the interests
also of the organiz;ition to do so. Recmits are not assigned to employers
whom they do not wish to serve. Al1Native labour contracts must be
iii writing. and before a contract is coiicluded tlie namc of the employer
is disclosed to the prospective cmployee, and the terms of the contract
are fuiiy esplaincc1 to him by the Bantu Affairs Conimissioner or his
assistant. Any recmit may refuse to enter into a contract.
32. As far as tlie duration of service is coiicemed, the special cir-
cumstaiiccs müke it impossible to permit Natives an unfettered discre-
tion. In thc first place, they are allowed into the Police Zone only for
a saecified oeriod. viz.. the contract aeriod. which mav not exceed a
niakimum period.'fised'in consultation with the northerh tribal author-
ities been fixed at one veap. In the case of fürm labour there is ~rovision
for an alternative 18months contract, and al1contracts may be êxtended
bv mutual consent for furtlier i~criodsof six months each UD to a total of
24 months in the case of mariied, and 30 months in tlie &se of single,
men. In the second place, tmployers making use of contract labour of
northern and extra-territorial Katives are obliged to provide the latter
with freerail and Ilus facilities from the place of recmitment to the place
of employmcnt and, on the termination or cancellation of the contract,
with similar faciliries, frec of charge, to the place of recmitment. Em-
ployer~would not be prepared toundertake tliis responsibility if employ-
ees were allowed an unfettcred discretion to terminate their contracts at
will. Furthermorc, the task of ensuring that al1recniits are returned t?
their homes after espiry of the contract period, as demancled by their
tribal authorities. would beconie impossible if cmployces were permitted
to chanc..their eino.ov.eiit at willwithin their coiitract period. Adequate
l>ro\ijioiiis.lioiv~.:cr,ni.iilcfor:in <:iiiplo\'ccto rt:<lucs:Ic:iiic~ll.iiioriof
Iiiicoiitr.ii:t if tlic ciiiploycr doci iiot ~..npl\vit11tlic tt:riiis tlicreof, or
in any way ill-treats the employee.
33. The "demand" that inarried wonieii inust be alloive<lto accom-
paiiy their husbarids to their place of employment and that unmarried
women must he permitted to enter the Police Zoiie to look for work,
conflicts with the policy of the tribal authorities in the iiorthern areas.
A matrilineal system is in operation in those territories, and the tribal
authorities are particularly concerned that their women should remain
in their homelands to prevent detribalization. Furthermore, by remain-
ing at home, the women are able to carry on the traditional farming
activities and to provide for their families during the absence of their
husbands. Consequently, at the request of the northern tribal authori-
ties, women arc not permitted to accompany their husbands who take
iip employmerit in the Police Zone. For the same reason unmarried
women are not permitted to seek cmployment in the Police Zone.
34. The "demaiids" of tlie petitioners are, in the circumstances, either
based on incorrect facts, or otherwise represent a minority view which
is in conflict with the specific policy of the tribal authorities in the
northern areas. COUNTER-MEMORIAL OF SOUTH AFRlCA 15
Paragraph B.7:Extract from a Communication Dated 30 September 1958,
from J. G. A. Diergaardt et al. to the United Nations1
35. The fust allegatioii in the extract Iiere in issue is that-
"Although the railway and the Aclministration's roads run tlirough
a large part of our territory, al1 the jobs on the railway and the
roads arc reserved for the whites '."
The words "our territory" in the extract referto the liehobotli Gebiet.
The charge is denied. Although particulars of employment of Re-
hoboth Rasters on the roads or railways are not available, it is pointed
out that more non-Europeans than Europeans are employed in both
departments throughout the Territory. The 1963employment figures, for
esample, are as follows:
Roads Railways
liuropeans ........ 952 3.228
Xon-Europeans ...... I,gjo 5.237
There is no ground for contending tliat "al1 the jobs on the railway
and the roads are reserved for the whites".
36. Kespoiident denies that industrial developmerit in the Iiehoboth
Gebietis in any way hampered or restricted, or that Respondent or the
South West African Administration is unsympathetic towards industrial
development within the Gebiet.
In 1935 ai1industrial school wüs established at Rehoboth. In spitc of
representatioiis made to the Baster Rand to encourage support for the
school, the attendaiice dropped to fivc pupils, aiid frequently to as low
as two or tliree. The principal eventually resigned his post to take up
more lucrative employment elsewhere, and, owing to lack of support,
the Education Department was unable to reopeii the school at the begiii-
iiing of 1937Z.
The inhabitarits of tlie Gebietarc eiitirely free to iiiitiate riiiy iiidustry
which they wish. They rire entitlecl to owii and opcratc mines within
the Gebiet.Thev are free to vr,s~ec. iii the Gebiet.whilst no Euro~eans
froin oiitiide thc (;ebirliii:iy pro;psct or carry oii :iii!.,iiiiniiig ol~er~tioiis
tlierein !vitlinut tlic coiisciit of the I3nR<irr.iIjcjl>itcii<~oiiragcmeiit,
tlic iiihnhitnnts of the (;abi,have not \,et shoivii the iiiiti:itivc nccess:ir\.
for the establishment of industries. Abart from the erection of a smail
shoe factory by Mr. H. C. Reukes, tlie only sign of initiative to establisli
industries was a decision of the Baster Rnnd in 1956 to set aside an area
in the Gebiet for industrial development. No such area has yet been
demarcated. Should any of the inhabitants attempt to open factories or
erect industries within the Gebiet, they will receive the wholehearted
support of the Administration.
37. Economic life in the Rehoboth Gebietis based primarily oii agri-
culture. Practically the whole of the Gebietis equal to thc best pastoral
land in South West Africa, and the inliabitants arc almost esclusively
farmers. In the development of their agriculture, the inhabitants rcceive
the full support of the Administration. Breeding stock can be obtained
from the Administration's experimental farms; the full range of ad-
visory facilities of the Ag+icultural Branch is at their disposal; they
Vide U.G.31-i937, para."9. p.38and U.G.?5-i938. para.253.1).42. 16 SOUTH WEST AFRICA
may obtain free ti:clmical helb for the building of dams; the healtli of
their stock is walched and guarded by Administration officials, aiid
veterinary services are available.
Paragraph C.1: Extract from a Communication Dated 25 Febmary 1959
from the Rev. nlarkus Kooper to the United Nations '
38. The petition Iiere in issue emanates from the Rev. Markus Kooper
formerly of Hoachaiias, and refers in part to the position at Hoachanas
whicli lias beeii dealt withabove 2.
The allegatioiis contained in the extract irom the petition appear to
be tliefollowing:
(a) The franchise lias beeii extended to Europeaiis of the age of 18,
wliilst it is deliied to the Native population.
(b) Oiily the old lion-White people who were adults duriiig the Gerni;ni
regime have a say in "the niatters of the territory", and this is of no
value while l.lie Natives who were children during the Germaii
regime are regarded as "non-originals" and "strangers", and are
refused "any voice in the country of their birth".
(c) The consequences of the policy as referred to under (ta)and (b)
above are, firr.tly,that it brings the Natives back to wlierethey were
more than a Iiundred years ago, and, secondly, that it weakens tlie
power of the Natives whilst increasing the voting power of the
\\'hites.
39. In reply to the allegation set out in(a) above, Respondent admits
tliat the franchise has been granted to Europeans who are 18 years old.
liespondent further admits tliat the participation of tlie Natives in
the affaus of the Territory does not include the right of franchise as far
as the election of representatives forthe Legislative Assembly or for the
South African Parliament is concerned. This matter is dealt with else-
wliere in this Counter-Memorial3 and need not be discussed here agaiii.
40. Respondeiit does not fully understand the statements referred to
in paragraph 38 (6) above. The allegatioii certainly canriot refer to any
distinction made in the Territory as a whole betweeii Natives who were
adults during the German regime, on the one hand, and al1otlier Xatives,
on tlie other. Xo !suchdistinction exists. The allegation must have been
intended by the Rev. Markus Kooper to refer to a iiiiique situation
which obtains only in Hoachaiias. As an act of goodwill, officialsof the
Administration g;ive an undertaking to the inhabitants of Hoachanas
who had been given grazing rights on that property during the Ge~maii
regime that they would, during their lifetime, be permitted to reside on
Hoachanas and exercise grazing rights thereon '.
During consult:itions with the inhabitants of Hoachaiias concerniiig
their proposed move to Itzawisis 5 one meeting was held spccifically for
the purpose of obtaining the views of those residents to whom the afore-
mentioned undertaking had beeii given. The main object of the Chief
Native Commissioner, who presided, \vas to endeavour to persuade this
' 1, ,>170-171
Videparas. ro-ii,supra.
Vide Book V, sec. E,ofthis Counter-Mernorial.
' Vide para. 13. supra.
' Vide paras.14-15,supra. COUNTER-MEMORIAL OF SOUTH AFRICA 17
group of reçidents, whose life rights on the property were recognized,
also to move, so that the communitv would not be sulit uv-a few on
however, the younger mëmbers of the community, &O were not entitlëd
to such life rights, were allowed to participate in the discussions, and
they took full advantage of the opportunity to do so. The reason for
special consultation of the group to which the above undertaking had
been given, was at al1times obvious.
41. Respondent denies that the menibers of the indigenous popula-
tion of the Territory, or any section thereof, are regarded as "non-
originals" or "strangers", or that any voice in the country of their birth
is refused tliem. The existing systems under which non-Whites partici-
pate in the government of their own people are described elsewhere
in this Counter-Memorial ',and need not be dealt with here agriin.
42. Kespondent denies that its policies have set the indigenous popu-
lation back to where they were a hundred years ago Z.On the contrary,
the facts set out in this Connter-Memorial show that there has been an
orderly and continuous advance in the welfare of the indigenous popula-
tion.
43. With regard to the final allegation, viz., "It also weakened our
power while the voting powers of the whites are increasedW3,Kespondent
is uncertain to what the word "it" was intended to refer. If "it" was
intended to refer to the extension of the franchise to 18-year old Euro-
Deans. Reswiident denies that such extension overated to weakeii the
po\r.vruf tlic iioii-Europe:iiis. Ciidcr I<cil>ond?nr'sayîtt:iii r~fgo\krni!ieiit
th2 "pu\ver" of tlic non-131iropeaiisdocs nor cuinï iiitd sonipctirioi\i.itli
the '\,otirie vo\vcrs" of th<:Euroueaiis. î'he ext~:iisioriof rlie franitiiit: to
18-year old Europeans has no êffecton the participation of the iion-
Europeans in their own processes of government. If, however, the word
"it" was intended to convey a notion of differentiation betweeii in-
habitants of the Territory who were adults during the Germaii regime
and the younger generation of indigenous inhabitants, Respondent's
answer is that no such differentiation exists as far as participation in
processes of government is concerned.
Paragraph C.2: Extract from a Communication Dated 14 September 1960
from ChiefHosea Kutako to the Secretary-General
and
Paragraph C.3: Extract from a Communication Dated 2 September 1954
from Hosea Kutako et al. to the Secretary-Genera13
44. Theallegationsin these two extracts are, in essence, the following:
(a) the indigenous population is kept voteless;
(b) the indigenous population is not participating in the political
development of the Temtory, and has no representatives in the
councils of State;
VideBook V,sec.E. of thiç Counter-hfemorial
2 Vide para. 3(c),rupla.
1, p.171.18 SOUTH WEST.AFRICA
..l t.e above measures are motivated bv the desire that volitical
rigtttj must rcmdin in thc Iijnds oi tlie l:iirupenii iiiiiiurity. ind
(d) th< entirc indgenous ppul:,tioii is liviiig iii n sttitç of po\,crty as a
rçsiilt uf tliIL~Sof itj lands and low \i.-ic<,i.
4j.The complaints set out in sub-paragraphs (a), (b) and (c) above
have been leveiled against Respondent iii practically identical ternis in
Chapter V of the Memorials. Respondent has dealt with these charges
in its reply to Chapter V of the illemorials 1,and further discussioii there-
of is not iiecessary.
46. Witli regard to the allegation tliat "The entire indigenous popula-
tion is living in a state of poverty as a result of the loss of their lands
arid low wages"', Respondent denies that the "entire" indigenous
population is livini: in astate of poverty. Respondent has dealt with the
economic position of the indigenous people in its reply to Chapter V
of the hlemorials 3, and respectfully refers the Court to what was there
stated.
Respondent states that oiily a small percentage of the indigenous
~ouulation exists in a state of relative novertv. but denies that those
hémbers of the indigenous populatiori who do fi"e in n state of poverty
have been reduced.to such position "as a result of the loss of their lands
aiid IO\\.~3jies". ?O inilijiï~ioiisgroupj have Io.;t 1;iiid:;Iruiilr of aiiy
act of I<':spndcni. 011 tlic iuiitr;iry, evçr-incrensiiig areas of land Ii:iv~.
becn set :iside for tlic sole ilse and occuv3tion of thc indi~erioiisi)oi>iil:i-
tion. ;inclpositive iiicnsiires tiovc ken idol>ted to prevrni ttic nli'eiilitiuii
of sui11Inii<l,aiitl in prcserve itfur tlic indigenous p~oplt:~.
Of the iiiiall cerceiit.i-e of th,: iniliai:noiii.i.oi>iilatioriwlio lin: iii
poverty. sonic arc paiiprs I)cc;iujethçy Crc,tluoiigli old ax,:or iiifiriiiity.
iiut in :IpositioiiIO \ifork.\VIi~.rt:siicli 11~.oplien thc l'olicc Zone ;ire iiot
3nd prolonged di-oughts have from tin% to time caused temporary
cmergency coriditions leading to indigence. During such periods govern-
ment feeding schemes have been put into operation. Respondent denies
that its policies or administrative measures are in any way responsible
forthe measure of poverty existing amongst some inhabitants.
47. Inasmuch as the extract here in issue gives no particulars relating
to the complaint of low wages, and since Applicants themselves do not
cornplain of low nages in their Memorials, Respondent does not propose
to deal with the petitioners' vague and general allegation in this regard,
Saveto say that. 1.0the best of Respondent's knowledge. wages in South
West Africa compare favourably with those paid in other parts of Africa.
Paragraph C.4: Extract from a Communication Dated 20 Juoe 1958from
Johannes Dausab et al. to the Secretary-General '
48. The allegations contained in this extract can be summarized as
follows:
' VideBook V, sec.E. of this Counter-Mernorial.
3 V& Book. V, secs.Band C, of this Counter-Mernorial
'1. pp.171-172. COUNTER-MEMOR IFLSOUTH AFRICA '9
(a) the indigenous people of South West Africa have no voice or repre-
sentation in the government of the Temtory;
(b) they are helpless, voiceless, outcasts, and are severely oppressed;
(c) the offices of Chief Native Commissioner, Welfare Officer, and
Location Superintendent serve no satisfactory purpose, and are
"deadly offices" seen from the point of view of the indigenous
population;
(d) if Europeans can be represented by Europeans in the goverilment of
the country,there is no reason why non-Europcans cannot represent
their own people, and there is no justification for aEuropean who
has been elected to the governing bodies by European voters to
represent non-Europeans who had 116part in his election.
49. Regarding the allegations set forth in sub-paragraphs (a) and
(d) above, Kespondent respectfully refers to its reply to similar allegü-
tions by the Applicants in Chapter Vof the Mernorials '.
50. Respondent does not propose to deal with the vague and general
allegations as set forth in sub-paragraph (b) of paragraph 48 above.
Theyare baseless, and are denied.
51.With regard to the allegation set out in paragraph 48 (c)above,
Respondent states that the offices referred to by the petitioners were
created and are maintained for the,specific purpose of serving the best
interests of the indigenous population. The progress of the indigenous
population has to no small degree been facilitated by the efforts of the
Cliief Xative Comniissioner, the \Velfare Officers and Location Super-
intendents. On the whole the relations between these officials and the
groups served by them are of the most cordial, and the fact that the
petitioners in this instance speak otherwise, indicates that they are
either voicing a mioority view or acting in bad faith, with ulterior
political motives. The Applicants' allegations are deiiied.
Paragraph C.5: Extract from a Communication Dated 16July 1956 from
Jacobus Beukes to the Secretary of the Committeeon South West Africa
and
Paragraph C.6: Extract from a Communication Dated 30 September 1958
from J. G. A. Diergaardt et al. to the United Nations
52. The allegations contained in these two paragraphs refer to the
Rehoboth Baster community. The petitioners' complaints concern the
system of government of the said community through an advisory
board. This system is alleged to depart from the "patriarchal law and
fundamental principles" of the community, which may. so it is feared.
jeopmdize the community's future existence and "right of self-determi-
nation".
53. Respondent states tbat a hrief review of the history of the Reho-
both community will clearly show that Respondent has consistently
attempted to obtain the CO-operationof the Rehoboth community with
a view to their assuming a greater share in the administration of their
own affairs.
' Vide Book V.scc.E. of this Counter-Mernorial.
1.p.172. 20 SOUTH WEST AFRICA
54. The meiiibers of the Rchobuth commiinit). src knoivii ns "Keho-
botli I3;istcr.i". who regird themsc.lvcs as a separate race. As st:itcd
clscwlicrc.in tliis (:ouiircr-.\lciiio',thcy sçttl~~l:II Kchobotli iii iS;o.
The!, liad tlieiro\rriisystcni ufgo\~eriiiiiciit.ofi\.liiclithc chicffc:iturc.iir.crç
a Volksrirad(Parbliiicnt) and Kcrl>lpin[~':ipt;iii'.Iiiiqolj tlir:Gcrni~ns
abolislied the officeof Kilhlei~raiid reolna.rd the Bastcr iinrliameiir wirli
a council of nine burghmi(citizens), bhose election wa; subject to the
approval of the German governor Z.The German magistrate at Rehoboth
acied as chairman of thécouncil, except when purely domestic matters
were under discussion Z. The Germans made laws for the Gebietso that,
in practice. the Basters lost their former rights of self-government.
55. After the Mandate had'come into existeiice, the Administrator
of South West Africa, acting on behalf of the Union Government,
commenced negotiations with the Rehoboth Basters which, in 1923,
culminated in an Agreement betwecn Respondent and the elected Kaad
of the community, on behalf of the Basters '.
In terms of the Agreement the South African Government acknow-
ledge the right and title of the liehoboth community to the Rehoboth
Gebiet,and granted to the commuiiity the right of local self-government
according to the laws of the community, and subject to the provisions
of the Agreement itself. It was agreed that certain laws of South West
Africa would be applied to the Gebietand that the Adrninistrator would
have the right to apply other laws from time to time. after consultation
with the Raad of the community. In the event of a dispute between the
Administrator and the Raad in relation to any inatter arising from the
Agreement, the Raadwould have the right to petition the South African
Parliament itself '.
56. Soon after the conclusion of the Agreement it became evident
that the majority of the Burgherswere dissatisfied,demanding nothing
lessthan full independence for the Gebiet.The result was a state of near
chaos, and in December 1924 the Administrator was forced to intervene.
He suspended the powers, functions and duties of the Kafitein(Capta!n),
Volksraad (Parliament), judges and magistrates of the community,
vesting them in the magistrate of Rehoboth. who was to exercise such
powers. functions and duties in accordance with the laws of the com-
munity then in force, and in conformity with the provisions of the
Agreement of 1gz:j.It was hoped that by this action law and order would
be restored in the Gebiet.Unrest continued, however, and in April 1925
the Administrator was forced to declare martial law to avert imminent
civil war. In contravention of martial law a number of Basters and
Herern took up ms, with the result that troops were despatched to
Rehoboth. The irisurgents surrendered without a shot being fired. A
number of insurgents were arrested and charged, but those who
were convicted were almost immediately thereafter released under an
amnesty proclaimed by Proclamation No. II of 1925 (S.W.A.) 5.
Ibid., para89. Chap. III, para. 88. of tCounter-hlernorial.
' The Agreement was proelairnedand ratifiehy Proc. Ko.28 of 1923 (S.W.A.),
in The Lnwr of South West Africa.Vol.II (1923-1927), pp. 144.~53. "ide also U.G.
41-'926, pp. 1oo-n>7.
' This right hasneverheen exercised.
' In The Laws of .buth West Africa 1925, pp. 45-47. COUNTER-MEMORIAL OF SOUTH AFRICA 21
57. In 1928an Advisory Board of six Baster members was constituted
to advise the magistrate of Rehoboth in his administration of the affairs
of theGebiet1.Three members of the Board were elected by the B~<rglsrs
of Rehoboth, and three werenominated by the Administrator. Since 1935
al1six members of the Board have been elected by the Burghersof Reho-
both.
The Board, although de jure purely an advisory body, plays an im-
or tant role in the administration of the Gebiet. Even the ~etitioner
hrr. Jacobus Beukes commented as follows on the ~oard's' function
on another occasion: "... whatever the Council (Advisory Board)
decides, whether good or bad, is final'."
In practice the Board virtually exercisesfull self-governing powers in
all interna1 affairs, subject only to the laws of the land that have been
applied to the Gebiet The function of the magistrate, in practice, is to
guide the Board as far as heis able.
58. In view of the role which the Board in fact plays in the adminis-
tration of the Gebiet,extended powers of local self-government for the
Kehoboth community have been under consideration for a nnmber of
years. Inasmuch as requests had from timeto thne been made by different
Advisory Boards for the restoration of the 1923 Agreement, it was
decided by Respondent that, as a first step towards the grant of in-
creased powers of self-government, the Agreement of 1923 should be
restored toits original fieldofapplication. It must be noted that although
certain provisions of the Agreement were suspended by Proclamation
No. 31 of 1924(S.W.A.) ',the Agreement itself was never cancelled.
Most ofits provisions arestillin force.
59. On 13 May 1961 the Administrator informed the Board that the
Agreement of 1923 could be restored, if the Community so desired, and
that thereafter there would be no objection to an amendment of the
Agreement. The assurance was further given that the Administration
would continue to assist the community in al1spheres.
The Board decided that the burghersof Rehoboth should be requested
to make their own decisions about the Agreement. It was thereupon
decided that the magistrate, together with the members of the Board,
would conduct a series of meetings throughout the Gebiet to explain
the whole situation to the burgl~ers.Fifteen meetings were thereafter
held, during which it transpired that the majority of the burghers,re-
garded restoration of the 1923 Agreement with a measure of suspicion,
preferring to postpone the matter to draft a new agreement. The bur-
gherswere specifically informed that the choice was entirely their own:
if they chose restoration of the 1923 Agreement. it would be regarded
as a great step in the direction of further development; on the other
hand, ifthey rejected the proposa1for restoration of the 1923Agreement.
they could approach the Administration witli alternative suggestions.
On IO June 1961the community, by an ovenvhelming vote. rejected the
' PVOCN. o. 9of1928 (S.W.A.), iThe LotusofSouthWerf Africn 1928,pp. 38-52.
Whose petition iç the firofthe two here under consideration.
Stntement dated 26Mar. 1957,inG.A.,O.K..Twelfth SessSup. No.12 (A13626).
P.42.
' Proc. No. 31of 1924(S.W.A.),inThe Lowr ofSouth West AfriçnVol. II (1923-
1927). PP. 187-rgr.22 SOUTH WEST AFRICA
proposed restoration of the 1923Agreement, whereupon the Board
agreement.a desire to enter into negotiations for the drafting of a new
rn September :cg61the Board was invited to submit proposais for
a new constitutioii for the Gebiel.Al1reasonable facilities and assistance
in the drafting of a new agreement regarding the form of future govern-
ment for the Gebictwere offered, and have in fact been made available
to the Board. Afrer continued meetings and postponements of discus-
to the form which they desire their future government to take.ision as
Pending a final decision on the part of the Rehoboth community as
to their proposal:j for new constitutional development, the statirsquo
must of necessity be maintained.
Go. In regard to the allegatioii that the Magistrate (Captain) of Reho-
both told the Board that he was " 'alone' entitled to make decisions
in inattcrj iuiicerning Rehoboth and tli.it tlie Ad\.iîory Bonrd wnztlicre
merely for ttic liiirlxl>cof ndvising hini" '.1Zq)ondcrit sayi that nt the
ssid iiic.ctirigthe Zlagiitrate es1)l;iiiit:the legal position as dc:llt with
in pnr;igraIitij7 :il>uvcVIL..that the Ilonrd \vas de litrpurcly niiadvisor).
hoclv.biit th3t in practice tvery coiiii<leratioiiw;isgiv~iito thc wijlici of
the 13oard.
Paragraph D.1: Extract from a Communication Dated zo June 1958from
Johannes Dausab et al. to the Secretary-General
61. The all-embracing and sweeping complaints contained in this
extract show an extreme measure of bias on the part of the petitioners.
The first allegation in essence amounts to a charge that the White people
of South West Africa have depnved the non-Whites of practically al1
rights and advantages, including their "right of citizenship", their
money, their eclucation and their land. III the result, it is aileged, the
non-Whites of South West Africa are sirangers in the land of their birth.
with no land of tlieir own, without mone< without education, without
aid. without a roof to cover them, without road motor services, without
railroads, without telegraphs. without advantages of any sort. It is
further said thal: courts of justice are merely "presumed to exist.
Finally, the petitioners aliegc that the Whites are making war upon the
defenceless non-INhites, are seeking means to torture them, and that
the petitioners could be killed in "this campaign".
62. Due to the lack of particularity in the petitioners' allegations,
specific replies thereto are impossible. Respondent, however. denies the
allegations individrially and collectively. The non-\hites have suffered
no deprivation of the rights mentioned by them. On the contrary, as
indicated in this Counter-Memorial. there has been a consistent advance
of the indieenon:; inhabitants in the material and social fields. directlv
:ittribiiinble to Hesponilent's effurt to prornote progrcsj. The s\i.eepin&
st:itement tti:ithe indigeiioiis inhabitants enjoy IIO ndvnntng~:~is with-
out ;in! fuiiiid;iti,~n.'ltirir econoinic position. thtir erliic;itioii:ilfncilities.
' 1. p. 172.
Ibid.. pp.172-173.24 SOUTH WEST AFRICA
Afterthe SecondWorld War the Native locatioii at Windhoek was still
much what it had been many years before, but its population had so in-
creased that the a.rea was badly overcrowded, and the conditions pre-
vailing there. hygienic and otherwise. left much to be desired. In fact.
the old location liad been found unsatisfactory for a long time, and
plans to improve or to remove it had been discussed repeatedly. It was
felt that an attempt to improve the existing location would not be good
enough, and that a completely new township with modern iacilities
should be plannecl. The considerations underlying this view were the
following:
(a) The intention was to establish a mode1 township, designed on
modem lines, and providing for arespectable modeoflifeand healthy
living conditions.The new houses were to be larger thau those in the
old location; they were to be built on larger plots, and the snbdivi-
sion of plots, or building of more than one house on one plot, as
had heen thepractice in the old location, was not to be allowed.
As faras space was concemed, replanning of a new township on
the site of th<:old location was impossible. The old site would have
accommodated only a quarter of the inhabitants after replanning,
and the considernbly larger area needed for the proper planning of
the new township, with sufficient ground for wider streets, schools,
playing fields, parks, etc., did not exist there. Furthermore, there
would have been rio possibility of satisfactory and economic
future expansion of the township.
(b) A scheme of providing new housing for the Native inhabitants of
built one bv .one,as and when old huis were demolished. To maketo be
tticrnojt I>&t';tablcuse of I:iboiiraiid to keep cos&ns loas possible,
rn:tiiproduction inetliods Iind to bc ujcd. as iiiconimoii vr.icticc
wherever suhsidized housing schemes are undertaken. A large
number of f:unilies would have been honieless for considerable
periods if a new housing scheme were to have been undertaken on
the site ofth,: old location.
(c) The Native P.dvisory Board, the body representing the inhabitants
of the location, were duly consulted, and there was no doubt that
the majority of the location residents preferred the establishment
of anew towriship. In ~qgj, for example, the Board presented to the
Minister of Native Affairs an address in which he was asked to use
his influence with the Municipal Council to expedite the removal to
a new site.
In 1954 the Executive Committee decided to grant the Munici-
pality of Windhoek a loan of R2.500.000 (~r,zjo,ooo) for the
establishment of a new Xative township.
68. The Municipal Council considered various sites for the new town-
ship,and after the site at Katutura had been chosen as the most suitable
in al1respects, the Native Advisory Board was again consulted, and it
agreed to the site chosen.
It may be added, furthermore, that neither Hosea Kutako! nor an).
0th spokesmen of the location residents, had at any time during which
the matter was iunder consideration, and when a decision could still
have been revoksd, requested the authorities to build houses at the
old site instead or'erect<nga new township. COUNTER-MEMORIAL OF SOUTH AFRICA 25
With regard to the petitioners' statement "We have been refusing to
be moved" ', Respondent wishes to point out that up to the stage when
the petition here in issue was submitted (July 1958)n, o spokesman of
the location residents had infomied the authorities that any Natives
would refuse to move to the new township.
60. The remaininr ~ortion of the extract here in issue is concerned
with the coiitentsofÏ~pl:ition.i alleged to-". .. Iia\.a been drawn up by
rhcGovcriimeiit to control al1the locntioiis in thc towns of Soiitli \\'est
Africa" '.
In this regard Respondent States that at the stage when the said
petition was submitted, no new regulations had been promulgated for
the Katutura location (or for any other location in South West Africa).
Proposed regulations for Katutura were submitted to the Native Advi-
sory Board for their comment, and regulations applicable to the new
township were subsequently promulgated by Government Notice No. 16
of 1962 (S.W.A.) Z.
These, or similar, replations have not been promulgated for any
other urban Native location in the Territorv. The onlv other urban
location \rhere similnr replations tiavc been iiroiiiulg;ite~, is at \Valvis
lin).'.\rlticli do<, iiot Iorm part of Soutli \\'est Afric:~.
70. As the Applicants' allegations relating to location regulations
appear to be concerned with the Katutiira township at Windhoek, Res-
pondent will deal with the charges in relation to the regulations appli-
cable to the said townshi~.
TI~C firit aiiegation m;tdc in titis regnrii is--.'one repintion sûys tti:it
rlie \\.liolc;ir,?aof the location ihl;ifa.iiied\rith only un- ente Ic:diiiF:
to the town" '.
No such regdation exists. More particularly, there is no provision
that "the whole area of the location must be fenced", nor that there
must be "only one gate leading to the town" '. In fact, at no time has
Katutura been fenced in. It is, however, necessary to erect stock-proof
fencing along certain stretches of the boundaries, for example, along a
boundary which is contiguous to a highway, or along the boundaries of
adjoining farms. Furthermore, there are no entrance gates to Katutura.
71. The next group of allegations is that whenever a person leaves
or enters the location he or she must be searched by a policeman at the
produced, which permit must specify reasons for leaving the location be
or entering it. These allegations are again unfounded. No inhabitant of,
or visitor to, the location is searched on entry into or exit from the
The policehave no authority to issue permits. and such permits as may be
required are issued at the Location Superintendeqt's office. No reasons
for leaving the location, or entering it, need be specified in any permit
From time to time a check is made to determine whether unauthorized
persons are present in the location, and it is only on such occasions that
' 1,P. I73.
Africn No. 2369(IfFeb.1962).pp.54.103.dal GaeelteExlraordinary of SouhtWest
' VideG.N. No. 243 of1960(S.W.A.) i, Ofin'nl GazeltEzlraordinoryof South
West Africn, No. 2287(14 nec. 1960.p.1178.1227. COUNTER-MEMORIAL OFSOUTH AFRICA 27
no provision limiting the right of residence in the Katutura location to
such people as have "been there continuously for tliree years without
absence for even one day" '.
73. It is correct that in the Katutura township at Windhoek ethnic
grouping is maintained as far as ispracti.abl..Such ethnic grouping is in
accordance with the traditions O the indigenous population, and ex-
perience has shown that the vast majority of the non-White people
prefer to live in an ethnicdy grouped community. So, for example,
ethnic grouping developed in the old location at Windhoek as a result of
persona1 choice of the inhabitants, and without the authorities in any
grouping within locations Esis an important factor in the elimination of
group friction and that it facilitates constructive participation by the
inhabitants in the administration of their townships.
There is, however, absolute freedom of movement between ethnic
groups within a location, and the allegation: "When a person wishes to
go from the Ovambo to the Hererosection he must apply for a permit and
state the purpose of his visit" ' is without foundation.
74. With regard to the type and quality of the housing provided at
Katutura. the ~etitioners com~lain about the size of houes, their
pl~nning. ttieir ~meriitiesaiid iiiéthodsof construciion. ,l'licy;illcge thnt
tlie houscs ha\,e only one door and two \virido\r,i(one;il tlie froiit and one
at the back). that 6here are no doors between the rooms. that there are
po kitchen;& bathrooms, that the construction is dangerous since the
houses are made of prefabricated bricks without cement being u-ed, and
that the distance bêtweenone house and another is 6 ft.
The true position is as follows: the minimum size of a plot in the
Katutura township is4oft. by 70 ft. Different types of houses are erected,
viz., four, three, and two-roomed houses, in accordance with National
Housing Officeplans and specifications. Each house has a kitchen as well
two doors (one at tlie front and one at the backl and a window for everv
room. The Sizeof a four-roomed house is24ft. bi 21 ft.,and the minimu;
distance between anv two houses is 16ft. The houses are constructed
accordina-to scientific methods and al1bricks are cemented in,
I<:iiliiretn p:iy rrnij,iiternis of the re$il;itioiis, an olfciicc. Tliuugli
theoreticnll\, poïsiblc, nrrcits :iii)niade in r~r:ictiscfor contraventions
in this regGd.
75. With regard to the right of occupation of such houes, the alle-
gation is made that only a man. his wife, and minor children up to
18years wiU be allowed to stay in such houses. while perçons over 18
years of age must be housed in compounds k These allegations are not
entirely correct. The holder of a valid permit, together with his family,
hasthe right to occupy a dwelling. "Family" is defined in sectionI ofthe
Regulations as meaning:
"(a) the wifeand al1unmarried children under the age of 18years of
such holders;
(b) al1unmarried or widowed daughters of the holder of suchsite
or residential permit who reside with such holder, together
with their childrenunder the age of18 years;
' 1.P.174.28 SOUTH WEST AFRICA
/cJ anv uarent or mandoarent ofsuch holder or of his wifewho are
. ,
dcbend<*ntup;n such holdcr ;isa rcsult of old age, weakriejs or
:in!. orhcr i~icapacity; and
,CI, ;in\.orhcr ocnon w!tlio .ritlic oniniori of tlic Siincrintc~ident. is
bona/id,?dépendent ubon such'holder '".
Children over the age of 18years who do not fall within categories (6) or
(d), may still live with their parents, but then a lodger's feemust be paid
and a lodger's permit obtained. Such children may also, ifthey so elect,
stay in a hostel in the location on a hostel permit.
76. The petitioiiers further allege that "Anyone living in the location
may not paya visit out of the location for more than 30 days", and that
"If those 30 days expire before he returns his houe does not belong to
him any more" Z. This allegation is incorrect. As far as a residential
permit relating to the hire ofa house isconcerned, the regulations provide
that the holder shaU not absent himself from the house or from the
location for a period of more than one month without the written per-
mission of the Superintendent. If the holder does absent himself for a
longer period witliout such permission, his residential permit may (not
must) be cancelled by the Superintendent by giving the holder one
month's written notice 3.
77. A number of complaints are levelled against the regulations which
control the building by residents of their own houses. The aliegation is
made that anyone who wishes to do so must be a man over 21 years of
age '.This is not so. Where the applicant is under the age of 21, a site
permit isissued in the name of this guardian for the period ofhis minority.
It is frirther alleged that the applicant must have resided in Windhoek
for three years without having resided anywhere else. This is not so.
There are no such restrictions on the issue of site permits.
Another allegation is that the applicant must produce an architectural
plan of the propc'sed building. This allegation is partially correct. The
applicant must submit a properly drawn plan of the proposed dweiiing,
approved by the Council'sengineer and medical officerofhealth', butthe
plan need not be drawn by an architect. If the applicant wishes to build a
dwelling according to a standard plan of the housing scheme, such a plan
is provided by the Councilfree ofcharge 5.
The alleeation is furthei made that the au~licant must eet a health
inspector ad an engineer to survey the building plot. This icnot correct.
An allotted site is measured and demarcated by the Suwrintendent 6.
78. The petitioners fnrther aUegethat:
"When buying the materials the Superintendent will direct where
these materials are to be bought. They rnay not be hought at the
cheapest place 2."
' G.N. No. r6 of 1962 (S.W.A.). in Oficial Gazette Extvaordinory O/South Wcsf
Afvica. No. 23-59(1 Feb. 1962). ~.~ ~
1,P. 174.
' Reg. 28 (1).G.N. No. 16of 1962 (S.W.A.), in Oficiol Gozefte extra or di naof ^
South West Africa. NO. 2369 (1Feb. 1962). pp. 66-67.
' Reg. 22 (2)(i), G.N. No. 16 of 1962 (S.W.A.). in OflicinlGazette Extraordinary
of South West Africa. No. 2369 (1 Feb. 19621,p. 62.
Ibid.. Reg. 22 (?). p. 62.
Ibid., Reg. 23(6)p. 63. COUNTER-MEMORIAL OF SOUTH AFRICA 29
The first allegation is only partidy correct, and the second allegation
is incorrect. As the Council constmcts a large number of houses at the
same time, a substantial reduction in the price of materials is obtained
from certain merchants. Substantial building loans are. on application.
granted by the Council, and one of the conditions of such loans is that
the Council may require that au buildin materials be obtained from
a merchant, selected by the applicant from a list approved by the
Council, or that the Council may itself snpply such materials, at cost 1.
Where no building loan is required, tlie Superintendent will. in the
interests of the applicant, normally suggcst where materiais may be
purchased. He does not "direct" an applicant where to buy materials.
It is in the interests of the inhabitants to be able to obtain building
materials of good qnality, either from the Council at cost, or from oneof
the approved merchants at tlie reduced prices negotiated by the Council.
.0, The ~etitioners also alle"e:
"The house must be built by a qlialified builder and carpenter.
The Superintendent will provide a Supervisor to overlook the work.
This will be someone of his choice but he must be paid by the person
building the house a sum equal to 5%ofthe total cost ofthe building.
The value ofthe house must benot lessthan (25- - 2."
The correct position is that the construction of honses in the town-
ship niust be undertaken by capable building workers approved by
oficials of the Council 3.A supervision fee equal to z per cent. of the
cost of the dwelling and outbuildings erected on the site is payable '.
No dwellina, the estimated cost of which. toeether with that of the
normal outbui~din~s,amounts to less than g~o~(~zoo), may be erected
in the township-.<.
So. The followingare further allegations:
"When it is built only the house is yours not the plot onwhich it
stands. Except for building a kitchen if a permit is granted nothing
can be done on the land outside the house. The rent of this plot of
land will be decided by the value of the house constructed on it.
The house will belong to the person who built it for thirty years
only 2."
It is correct that inhabitants of the township do not obtain owner-
ship of the lots on whicli they build. The position was the same in the
old location at Windhoek. A residential certificate (for purchasing the
right of occupation) or site permit (for erecting a house) confers on the
holder the right of the sole use and occupation of the site and dwelling
thereon for a period of 30 years 5. At the expiration of this period,
the holder may apply for an extension of the permit or certificate. Such
extension (and further extensions) may each be for a period of 30 years.
' Reg. 27 (3)G.N. No.16of ,962(S.W.A.) i,Oflicinl Gorette Exlrnordinofy
South West Africa, So.2369(IFeb. 1962)p..66.
= 1.p.174.
South West Africa. No. 236(rfFeb.1962)p...64.n,OfficialGazette Exfraordinary of
' Reg. 25 (4)P. 64.
' Regs. 26 (4)and 23 (1)(a), G.N. No. 16of 1962 (S.W.A.) n OfficiaGn~alla
Exlrnovdinavyof South Wut Africa,No. 2369 (1 Feb. 1962)p.p.65and62.3O SOUTH WEST AFRICA
Kesidential sites and dwellings may be used only for residential pur-
poses. In a garden on the site fruit, flowers and vegetables for domestic
use only may be grown '.
The allegation that the rent of a site will be decided by the value of
the house constructed on it =,is incorrect. The fees payable for a site
permit are fixed ai 19s. 6d. (R1.95) per month, irrespective of the value
of the house erectcd thereon.
81. The conclucling portion of the estract here in issue reads as fol-
Lows :
"We are afraidthat the building of this location will bring new
restrictions aiid op..ession uoon the oeoi~le. . the towns. For
iiixnnce oiic of tIie r~.guliitionjI;i!., tlutvii th:~t\vhcne\,c>rmorct1i:iii
peoplc are gnthcrcd togctlier :iI3onrdrnüiiiiiu.it bc. f~.tclied:ilid
:,.;liedto reiiiaiii jo tliat 1icrikii<g\v\vlint iheinu-dijciissed 3."
The fear here expressed is groundless. The regulation mentioned by
the petitioners asan example, viz.-
"... one of tlie regulations lays down that whenever more than five
people are gathered to~ether n 13oardmanmust be fetchedand asked
io rëmain & that he m'ayknow what is being discussed '",
does not exist. The only regulation applicable to gatherings in the town-
ship provides that every person who proposes to convene or address a
publicmeetingor :in assembly of persons shall notify the Superintendent
at least 48 hoitrs before the intended meeting or assembly; and. that if
there are reasonahle grounds for believing that any such meeting or
assembly in the location might provoke or tend to lead to a breach of the
peace, the siiperintendent may, subject to certain provisions, prohibit
such meeting or xjsembly '.The above provisions, however, do not apply
to any meeting ior assembly for bona fide wedding, funeral, church,
educational, sport, concert, or entertainment purposes, or for the
arrangement of di~mesticaffairs 5.
82. In view of the eïaggeratioiis contained in tlie extract dcalt with
iiithe preceding paragraphs. certain facts regarding the document from
which they have been taken by Applicants may be of interest to the
honowable Court. That document purported to be a statement by
Hosea Kutako et al. which was forwarded to the Chairman of the com-
mittee ou South West Africa asan enclosure to a communication. dated
22 July rgj8, froin the Rev. Michael Scott, who stated: "1 am sending
the statement to you direct as 1 am not sure whether you have received
the original 6."
However, thestatement sent to the same Cominittce by Hosea Kutako
cl al.d,ated 29 July 1958,differed totaily from the contents of the state-
ment fonvarded by the Rev. hlichael Scott (and relied on by Applicants)
' Reg. 23 (3). p.(.ï
1, P. 174.
lbid.,p..175.
' Regs. rr (1) ancl ir (3). G.NNo. i6 of 1962 (S.W.A.), inOfficilaGazette Extra-
NO. 56yoff1951 (S.\?.'.A.)sec.32o(2)3(r). in The Lnwr.ofpSoulh WesteaAfrica 1951,
Vol. XXX, p. 160.
' Reg. 11 (4).p. 60.
C.A.. O.R., Thirleanlh Sers., Sup: No12 (A/3go6). p. 53. COUNTER-MEMORIAL OF SOUTH AFRICA 31
as far as the alleged locationregulations are concerned. The statement of
29 July 1958, though identical in practically al1 other respects to the
statement forwarded on 22 July 1958. omitted the aUegations relating
to the location regulations here in issue, and substituted a new text in
this regard, difiering in al1respects from the previous allegations '.
It would accordin~l-.aune,, as if Hosea Kutako et al. theinselvcs
:ib;iniloned the ratli~r wilJ û1lcg;itioiis iii:i~: ,~.or :~-:ribed ri,. tlitin
rcgnrding the contciits of tlic location rcgulntions iiitli~.eutract Iiereiii
ISSUL.,ushichall~gntioiis;irenïverthcless jiillrclicd oiiby the Applicsnt,.
Paragraph D.3: Extract from a Statement by Hosea Kutako et al.Refened
to in Paragraph D.2
83. The first portion of this extract purports to bc n stritemcnt by an
unnamed person, which statement is intended to show the practical
dificulties which would have confronted the said person's rnother,
resident in a reserve. if she had heard that he was il1and had wished to
visit him during the illnessin an urban area. The said person isunknown,
and there isno information as to the town in which he was working at the
time.
The author of the statement alleges that his mother would uot have
been able to enter the town without a special pass from tlie location
Superintendeiit. This is not correct. There are no provisions prohibiting
entrv of Native females into ~roclaimed urban areas. and Native females
inai travel freely without a'pass. The author'smothercorrldlegully huue
proceededfro~tithe reserueto the urban areuwithozrtbeing in possession O/
uny permit. If, howcver, she had nevertheless, for reaions-of her own,
wished to have a pass or permit. tlie Welfare Officerin the reserve woiild
have issued it to her. After entry into the urban area, she would have
been entitled to remairi there for a neriod of 72 hours without a Dermit 3.
~f shc Iia<i<iesirï<ito reniniii in t~igiirtnia& for longer tixin 72 !ioiirs.
she \i,ould Ii;i!.esp~ri~iiccd iio <lifiiiilty in obtnining periiiiis!ori to
remnin in tlie iirl>;iniircrti 3visilor (111ri1tl:e ~xriodof lier son's111ncss.
-.
84. With regard tothe allegations concerning restrictions on the move-
ment of Natives within urban areas, the position has heen fuUy dealt
with elsewhere in this Counter-Memorial 4. The allegation in the extract
here in issue to the effect that people working in Windhoek must carry
passes when travelling to trials, or to pay house rent, or to attend a
burial, need therefore not be dealt with here.
85. The further allegation is made in this extract that: "If you are iU
and are founù in the location without a permit from your master or your
doctor you are srrested 2." It is iiot clear to Respondeiit what isintended
to be conveyed by this allegation. If a h'ative is entitled to be within n
location, he cannot be arrested, and the fact that he may be il1is irre-
levant. If, on the other hand, he has nnlawfully entered the location, he
' 1.P. 175...ThitlcenlhSers.. Sup. Xo iz(A13906) pp. 53. 56-57.
Proc. No.56 of1951 (S.W.A.) sec.io.in The LorrisofSoulh WeslAfrica 1951.
Vol. XXX. pp. 108-110. assubstituted hy Ord.No. 25of1954(S.W.A.) s.ec.3. in
ïhe Laws of Soulh Wesl Africa 1954.Vol. XXXIII, pp. 737-741.
' Vide BookVI. Chap. IV. 32 SOUTH WEST AFRICA
is liable to be arrested. but if he is ill. he will not be arrested. In such
circumstances he willeither be allowed to remain on a visiter's permit, or
else be removed to a hospital, if necessary, to receive treatment.
86. The final allegation, viz., that pass carrying is becoming ever
harder, is denied. The matter of passes is dealt with elsewhere iii this
Counter-Memorial1, and it is not necessary to repeat what has been said
there.
Paragraph D.4: Extract [rom a Communication Dated 17 October 1957,
[rom MIS.Kathe von Lobenfelder, Outjo, to the Trusteeship CouncilZ
87. The allegations iii tliis extract relateto an application by a certaiii
Walter Willi Werner Peschel for a permit to enter South West Africa.
In his applicatioii Mr. Peschel allegcd that he was not subject to the
Aliens Act No. I of 1937. as he had beeii born in the Territory in 1918.
satisfied that Mr. Peschei's allegation concerning his birth in the Terri-
tory \vas correct. According to Respondent's normal procedure in such
matters, Mr. Peschel was requested to submit documentary proof of
his birth within the Territory. Mr. Peschel was, at the time of his appli-
cation, a married man with a wife and two childreii. living in Geriuaiiy.
In hisapplication he described himself as a German national.
Mr. Peschel was unable to produce documentary proof of his birth
in theTemtory. Normally the submissionof a biith certificate isrequired,
but hlr. Peschel could not produce such a document, and on iiivesti-
gation Respondent found that there \vas no record of registration of his
birth in the Tervitory. Mr. Peschel was also unable to produce any
record of baptisni in the Territory, or any other document tending to
show his presence within South West Africa at the time of his birth, or
at a youthful age.
88. On 2 February 19j6 the petitioner, Kathe von L~benfelder,
signed a sworii deposition declaring, inter alia, that on 7 January 1918
she gave birth to an illegitimate son in the district of Keetmanshoop,
South West Africa; that,to the best of her knowledge and belief, there
\vas no person ali-irewho had been present at the birth; that the birth of
the said sonwas at no stage notified for registration, and that the said son
was not baptized in South West Africa. She further declared that the
fatber of the said son was a certain Paschel,that the said Paschel took
the child to Germany in 1924.and that he had the said child baptized in
Germany as "WernerPaschel" 3.No deposition bythe alleged father ofthe
said illegitimate son was ever submitted, nor was any other documentary
proof forthcomin: which could substantiate that the applicant, Walter
Willi Wemer Peschel, had in fact been bom in South West Africa.
As Respondeiit's iniinigration officialsregarded the evidence submitted
as insufficient to convince them that the applicant had in fact been
born in South West Africa,his application foran entry permit, based on
the allegation of iiis birth in the Territory, was not granted. COUNTER-MEMORIAL OF SOUTH AFRICA 33
89.Respondent denies allegations of discrimination against the
petitioner or against hlr. Peschel on the grounds of "apartheid", as is
alleged '.111fact, the Administrator of the Territory personally en-
deavoured to assist the ~etitioner in obtaininrr un entrv p-.mit for the
applicant, Mr. Peschel.
' No satisfactory proof having been furnished of the applicant's alleged
birth iii the Territory, consideration \vas given to the possibility of
allowing him to enter the Territory as an alien in ternis of the Aliens
Act, Xo. I of 1937 2. Pursuant to the Administrator's efforts, the peti-
tioner. Kathe von Lobenfelder. was informed that the matter would
receivé further attention whenit was known whether the applicant's
wife and two children also intended applying for domicile in South
West Africa. and what arranr..ents would be made to ensure a liveli-
Iioixi for ttic appliiant ul~uiihis ;~rri\.;il.This inform:itiu\<.aic.is~.nti.il
to permit con;idcr3tiuii of the matter bcçnu.;~..;iltliough tlic petitiurier
tntes in the extrait h<;rcin issuç "lkiriz III:in81o\r.nii)c 3 fnrni 1\\.uiild
like to bring my secoiid son here to help me" ', she wis at no relevant
time the owner of a farm. The tme position was that she hired part of a
farm at a rental of Lz5per month, hacl less than zoohead of cattle.
including calves, and could not always pay the rental. It was clear,
therefore. that it would have been impossible for the applicant, his wife
and two cliildren to make a living on the said property. No reply n',as.
however. received from the petitioner, and no further consideration
could accordingly be given tothe matter.
Paragraph D.5: Extract from a Communication Dated 30 August 1960
from MI. S. Mifima, Chairman, South West Africa People's Organization,
CapeTown, to the Committee on South West Africa
and
Paragraph D.6: Extract from a Communication Dated 3 August 1960
from South West Africa People's Organization, Windhoek, South West
Africa, to the Committee on South West Africa '
90.The twvoextracts here in issue purport to deal with alleged depor-
tatioiis and banishments by Respondent of members of the indigenous
population. A general allegation is made, without specific detail, to the
effect that "people have been deported from place to place,and banished
from their areas to forestshundred of miles away from tlieir familles and
friends", that they have no "means of making a livelihood", and that
"there is no hope of seeingthem any more" '.
gr. Respondent denies these allegations, and will reply in detail to
the charges made in the two extracts with regard to specific persons.
In general Respoiident statcs that only foreigners can be deported to
places otitside the borders of the Territory. Native inhabitants of the
northern areas who have entered the Police Zone without permission to
1,p. 176.
In The LarusofSouth West Africa 1937.Vol. XVI, pp. 40-5L
' 1.p. r75.
' Ibid., pp176.177.34 SOUTH WEST AFRICA
remain there, or whose contract periods have expired, can be returned
to their homelands.
92. The aUegations made in this regard are incomplete aiid incorrect.
Louis Nelengani, ;Native born in Angola, and subject to the provisions
of the Extra-territorial and Northerii Natives Coiitrol Proclamation, No.
29 of 1035 ',coubi iii terms of such provisions only remain within the
Police Zone while in possession of a proper iiidentification pass, or an
exemptioii certificate. Furthermore, he could only remain within the
proclaimed urban area of Windhoek if he was employed there and had
permission to remain there. During July 1960 it came to the knowledge
of the authonties that Louis Kelengani was unemployed, and had no
permissioii to remain in the urban area. An exemption certificate pre-
viously issued to Iiim was then canceiled. He \vas therefore advised that
he had no right 1.0remain in the urban area of Windhoek, and that,
unless he returned to his place of domicile of his own accord, he would
probably have to face a charge under Proclamation No. 29 of 1935 or
under Proclamation No. 56 of 1951, and that, if convicted, he would
probably be repatriated. The allegation in the extracts here in issue to
was not deported to Ovamboland, or anywhere else. Neither \vas hengani
arrested, nor was any other action taken against Iiim.After being advised
that his presence within the proclaimed urban area of Windhoek was
unlawful, Nelengani disappeared, and it \vas later ascertained that he
had left the Territory and entered Bechuanaland. He has not returned
since.
AU allegations with regard to Louis Nelengani contained in the two
extracts. including the annexure to the letter from which the second
extract has been taken, which are inconsistent with the above statement
by Respondent, are denied. Respondent further denies that any orders
were ever issued by it with regard to action against Louis Xelengani.
The allegations ta this effect in paragraph D.6 ai.etherefore denied.
93. In paragraph D.5 it is alleged that the above two Natives were
"kept nnder hon~e arrest at the chief's kraal". Respondent is unaware
certain Jackson I<ashikuka, an Ovambo who had entered Walvis Bay960 a
without permission to be, or to remain, within the Police Zone. or the
proclaimed urbar: area, was retumed to Ovamboland. Respondent is.
however, unaware of any action taken against the said Jackson Kashi-
kuka by the tribal authorities in Ovamboland. The tribal authorities
in the northern Native reserves are vested. intea rlia. with criminal
jurisdiction, and have their own powers of arkt, detention and punish-
ment. In the ext:rcise of these powers the tribal authorities function
' Proc.No.29 of1935 (S.W.A.), in Tkc Laws of Soulh Wesl Africa 1935,Vol. XIV,
pp 148-1.58. COUNTER-MEMORIAL OF SOUTH AFRICA 35
according to Native law and custom, and are not under the direct
coIf auy action was taken against Jackson Kashikuka. it must have been
by the tribal authorities in Ovamboland.
As faras Herman Ja Toivo is concerned, Respondent is aware of the
fact that for a few months Toivo \vas required to remain at Chief Jo-
hannes Kambonde's kraal, and was not allowed during that period to
travel freelythrough Ovamboland. This restriction was placed on him by
the tribal authorities of the Ndonga tribe of whicli he was a member,
as he had held meetings throughout Ovamboland in defiance of the tribal
authorities' decision that he should iiot do so. Action was thereupon
taken against him under Native law and custom. liespondent denies
that the South West African Administration or Respondent took the
said action.
After a few months the restriction on Toivo's freedom of movemeut
was withdrawn, and since that tirne he has freelycontinued his activities
throughout Ovamboland.
94. The author of the extract quoted in para raph D 5 l,who wrote
from Cam Town. imolies that Eliezer Noah and %r. ~uhadeleni are two
diffcrerit pcrsoiis. 'l'liisis not corrcct.t. v rinmesrtf~.rto onc persori,
Eliezrr Soali'l'uli;~deleiii.Hcspondent isatrarc.of rlic fact ttia14oJune
IOGO ilic s:iid 'I'iiliad~~len\i\.ai arrcstctlie trib:il nuthoritic.s in Iiis
a;ea becaiuse he had hcld, meetings in 6vambolind in defiancc of a
prohibition by the said authorities. Aftcr a trial by the tribal authorities
he was, as far as Respondent is aware, ordered to move away from his
iiormalsphereof operations to the north-eastern portioii of Ovamboland.
From the beginning of 1961.however, Tuhadeleni was once more moving
freely throughout Ovamboland and holding political nieetings. Respon-
dent denies thatany action against Tuhadeleni was taken byit or by the
South West African Admiiiistratioii.
95. Kesponclent has been informed that no person with the name of
Paroly was in the employ of Consolidated Diamond Mines, Oranjemund,
during 1960. Nor, so Respondent has ascertained, was any employee of
Consolidated Diamond Mines at any relevant time banished by Con-
solidated Diamond Mines officials from his feiloiv-workers. Respondent
further denies that any action of the nature aileged was taken by it or
the South West African Administration in respect of any employee of
Consolidated Diamond Mines.
Paragraph E.1: Extract from the Statement cited in Paragraph D.2
96. Respondent has dealt with the education of Native children on
European farms l. As shown, there are many difficulties in the way of
' 1, p. 176.
' VideVol..VII.Chap. Y, paras.12-r)of this Counter-blemorial. SOUTH WEST AFRICA
36
pro\,iding them \cith an education. biit stepj lia\% heen, and are king.
taken to Ilring al)out ari iiiiprovemciit in tlic position. and it is tioped
that th2 problcm vviIin the course of timz bz sul\,ç~l.
Paragraph E.2: Extract from a CommunicationDated 22 November 1957
from S. Shoombe and 100 other Ovambo to the Secretarv-General of the
United Nations '
97. Respndent has already dealt with the difficulties experienced in
extendine education in Ovamboland and in raisine the s"andard of
teaching;n that area.
As previously shown, secondaryeducation isnow provided in Ovambo-
land. and since 1061 the minimum reauirements for admission to teacher
training schools2iii Ovanit>ol;iii<l1ia;e heeii r;iiscJ. tliiis Oringiiig the
po;I\Sto thc s1at~:nienrrccardiiic Chicfi,and Hcudmïn. tlic :\i>i>lic&iits
andthc persons referred <O fail70 state that the ~ove*nment~â~~oints
as Chiefs and Headmen such persons as are the traditional or selected
leaders of their people. It may be true that some of the older men holding
~uch~ositionsareilliterate, but this merely serves to emphasize that the
history of education in Ovamboland is but a short one. This is a situation
which ought to b'ereadily appreciated by al1those who are conversant
with the difficulties of extending modern education to the indigenous
peoples of Africa. From evidence available it would seem that at least
one of the Applicant States, Liberia, experienced similar difficulties in
this regard '.
The statement that Chiefs and Headmen receive presents from the
Govemment is true, but such presents do i~otinclude liquor. Presents
are given when government officials visit sucli Chiefs and Headmen,
and the practice is a long-established one. The allegation thnt presents
are given to bribe Chiefs and Headmen "to allow their young men to
work as unskilied labourers for the Europeans" 1, is a ross falsehood.
Small presents are given to Chiefs and Headmen in 8 varnboland as
tokens of the Goiemment's friendship and respect, and in order to pro-
mote friendly relations between these men and the Govemment. The
giviug of such presents to Native Chiefs was, for many pears, a common
practice in many countries in Africa.
Paragraph E.3: :Extract from a Communication Dated November 1953
from MissMarxery F. Perham to the Chainnan of the Ad Hoc Committee
-. on South West Africa '
98. Responderit does not dispute the educational qua~itications of the
late MI. Himumiiine as set out in the extract from the letter quoted in
this paragraph. It is also admitted that he applied for a passport as is
alleged, and that: a passprt was refused. Respondent considered then,
1, p. 178
Vide Vol.VII.Chap. V, paras.27 and 52,of this Counter-Mernorial.
'I1,pp. 149-i.51.ii). COUNTER-MEMOR IFLSOUTH AFRICA 37
as it still does now, that it \i.ould not be in the public interest to make
known its reasons for theefusa1of the passport,Abut it states positively
that the passport was not refused in order to prevent &Ir.Himumuine
from furthering his studies, as seems to be the suggestion. The reason
for the refusal was in no way connected with educational matters. CHAPTER III
THE PETITIONERS
I. It has been stated elsewhere in this Counter-Memorial ' that the
present proceedings before this Court are part of a campaign designed
to bring South \"est Africa into line with new govemmental systems
recently establisbed elsewhere in Africa, and to achieve for the whole
of the Territory niajonty de by the Native population. This campaign
originated in the spirit of African nationalism which has swept the
African Continent in the post SecondWorld War period. The campaign in
respect of South West Africa has been encouraged and organized by
sources outside the Territory. In fact, encouragement has reached a
point ofinciternerit to violence. So, e.g., petitioners at the United Nations
Organization have been assured that al1possible help would be given to
them to attain th:ir political objectiues,whatevermethodsthey resortedto,
including armedifisurrection 2.
2. The objectives of this campaign, as envisaged by certain of the
petitioners, have been put bluntly by Mr. Afburumba Kerina, one of the
prime movers in the campaign, who for many years has appeared as a
petitioner at the United Nations3 and has played a major part in
suggesting action to his local associates in the Territory, including a
number of the petitioners relied on by Applicants in Chapter VI of their
hfemorials.
' Vide Book IV.
Vjde. for example, statement by Alr. Guellal (Algeria) beforo the Fourth Com-
mittee on 6 Nov. 1962 in C.A.. O.R., Sevent~enth Sess..Fourth Comm.. 1374th
Meeting. 6 Nov. iqljz, p. 294.
Kenna. at one ~ime also known asGetren, appeared hefore the Fourth Commit-
tee asa petitioner at the following meetinover the period Dec. 1956 to Dec. 196:
11th Session, 571st Meeting. 11 Dec. 1956, p. 107; 11th Session, 572nd hleeting,
Ir Dec. 1956. pp. III-114; 11th Session, 574th hleeting13 Dec. 1956. p. "9;12th
Session. 653rd hIee.:ing. 26 Sep. 1957, p11;12th Session, 654th Mecting, 26 Sep.
1957, P. 17; 12th !;,sion.655th hleeting. 27 Sep. 1957, pp 19-23; 13th Session,
749th Meeting, 6 Clct. 1958. pp. 32-37; 13th Session. 750th hleeting. 7 Oct. 1958,
p. 37; 13th Session. 751st Meeting. 7 Oct. 1958. p. 39; 13th Session. 754th Meeting,
9 Oct. 1958. p. 51; 13th Session, 755th Meeting, g Oct. 1958, p. 54; rqth Session,
904th Aleeting,12 Oct. 1959, p.110; 14th Session, 908th Meeting, 14 Oct. 1959, p.
130; 14th Session. 909th Meeting. 14 Oct. 1959, pp. 135-136; 14th Session, 910th
Meeting, r5 Oct. 1959. pp. 137-140; 14th Session. 911th Meeting, 15 Oct. 1959,
p. 141; 14th Sessi<in, 913th Meeting. 16 Oct. 1959, p. 154; 14th Session, ioo~çt
Meeting. rr Dec. 1959. pp. 699-701: 15th Session. xogist Meeting. i5 Nov. 1960.
pp. 308-310; 15th Session, io52nd Meeting, 15 Nov. 1960. p. 314; 15th Session,
io53rd hleeting, 16Nov. 1960. pp. 317-3r8; 15th Session, 1054th Meeting, 1Nov.
1960. pp. 322-324; 15th Session, 1055th Meeting. 17Nov. 1960. pp. 325-327; 15th
Session, 1056th Meeting. 17 Nov. 1960, p. 330; 15th Session, 1og8th Meeting. 5)
Mar. 196,. p. 5; ]:,th Session. 1100th Meeting10 Mar. ig6i. p. 13; 16th Session.
1217th Aleeting.20 Nov. 1961, pp. 377-379; 16th Session. rzzist Aleetinzz Kov.
1961. pp. 901-405; i6th Session, rzzznd Meeting, Sov. 1g6i.p. 409: 16th Session.
1223rd Meeting, zq Sov. 1961. pp. 414-417; 16th Session. iqrst hteeting. 7 Dec.
I961.~. 549. COUNTER-MEMORIAL OF SOUTH AFRICA
39
In a letter dated 5 hlarch 1959, sent by Kerina from Xew York to
were described as follows:st Africa, the aims of the said campaign
"lt is time for us to make our position clear tothe WhiteSettlers in
Çouth West Afric:~.SouthWestAfrica is an African countryandmzcst
be stdbjectta thegovernmentof the Africans. Let the tates and the
Colouredsin South West Africa stop deceiving themselves. Let them
stop thinking that Africans are underdogs in the land of their biith
andas such should not be considered as human beings. Let thestupid
Africans andColouredagitatorssuchas Kloppers, etc.,etc..encouraged
bydeceptiueWhiteSettlers stoppreachingmulti-racialorpartnershipin
South West Africa at the ezpense of the African people. We havehad
enoughof these nonsense.Our position should be made clear 10 the
Whites.Ive wantSozethAfrica backnomorenoless ...
If we must bave our freedom we must be strong and be well
because of what is happening in other parts of Africa. They know
that South West Africa is next ... Look at the Mau Mau today,
they are represented in the Government and soon they will govern
tlieir own country. The strength of the few educated men in S.W.A.
lies among those of our people we cal1ignant masses without their
support no so-called educated men in S.W.A. will succeed . .. Join
ToiuoJa Toiuoin his struggle for OUI peoples freedom, . ..'"(Italics
added.)
To another associate in the Territory, Toivo Ja ToivoZ Kerina wrote
as follows in a letter dated 9 February 1959: "Relieve me South West
Africa willbecomefree by al1means '."And, in a letter dated 14February
without using force biit Ourbrainsse'."hites out of the Government
ma:n 16 September 1959. Kerina wrote to another associate, Sam Nujo-
"1 plan to base my statement on the necessity of legal action and
make a strong plea for an independent African State to take this
case to the International Court of Justice for a compuisory judg-
ment. ... I shall send you more information as it becomes available
and when it does reach you please act forceftcllyand violently in the
positive sense of the word...
Of course we inevitably have differences but at the moment the
immediate objectiveof ridding ozerselumof the Boersis paramount 5."
(ltalics added.)
3. With regard to the methods by which the said campaign was, and
is, conducted, certain lines of action in both the domestic and intema-
tional spheres have been diligently pursued. Consistent effortshave been
made to create interna1dissatisfaction by organized incitement, but an
even greater effort has been made to build up international pressure and
' Kcrinn toi>Iuundjwa,5Mar.rggi). (Photostat copies of the letter quoted in this
footnote and the letters quoted hereafter urefiled with this Counter-Mernorial.)
The petitioner in extract B.1.p. 170 and referred to as Herman Ja Toivo in
extract D.5 at 1, p. 176,
I<eeriI>iToivoJn Toiuo9.Feb.,959.
' Ibid.14 Feb. 1959.
' Kerina IoSom Nujomn. 16 Sep. 1959.40 SOUTH WEST AFRICA
to intern;<ticn:il iiircr\,cntion. ln thc iiitcrn3tionnl sphere it w:is
evideiitl). i:oiisicl-leii.it tlie efforts of petitiuiicr;tttli~.L'iiitc~lhdtiun;
Organizatioii st>iil:loiily bc SIICCL.S~ fItlie world cuuld be iii;l<letu
believe tliai tlic iiidigcnous pol>iil;itioiiuf Soiitli \\'est Afric;~\vds Iiciiig
suhiccicd tu rutlil.:is sui>i>rï;sioii.and t1i:it atrocitiw. :-c;iiiist ttieni \\.ere
bei& perpctrated with;;iipuiiity.
'lis contents ol Idter, ~ddreied II),Kerinn IO lus sssocijires ivitliin
tlic Tcrriturv iii<lig::ic.lc;irlv tlic iii~tliods;iduvr~~IO furfier tli~.irc;im-
paign. ~xtracts from these Ltters are set out bêlow:
(a) Lettertoï'oiuoJa Toivo,dated14Febrrcary 1959:
"Please Toivo, do this organize an OuambolandPeople's National
Congress make al1the Chiefs of various tribes the Vice-Presidents.
In other worils make them First Vice-President, Second Vice-Presi-
dent, Third Vice-President, etc., etc., etc., this will break the inter
tribal rivalry that may come about. Be the General-Secretary of the
Congress. Be very shrewed. \Vork with the nominated Chiefs very
carefully. Priztend as if you are with them. But also take into
serious account the other promising yourig people and Elders and
please make 1;atherHamlumbangela the President of the Congress.
The first tas!< of the Congress should be a petition to the Prime
hlinister of South Africa with copies to the Windhoek Advertiser,
New Age, United Nations, Cape Times, and a copy to me, the
American Coininittee on Africa, Africa Weekly, Rev. M.Scott I, etc.
This petition should ask four things. Of course a copy should be sent
to the Chief Native Commissioner. These four things should be as
follows: Ask for-
(a) Direct African and Coloured People representation iri the
Government of South West Africa.
(1,) ~~trouctio uf L'~rit~us~S /.r/rdéz iiiSuutli \\'est i\frica
irrc~{ivctivco.f Coloiir.Crcc(l, I<i.ligionaiid Satioii:il Origiii.
(cl Iinine,iintc liaui<latiun o~ S~ ~tli~\\'~ ~ :\frics I<curewntation
, , in the parliament of south Africa.
(dl Imme,3iate ulacine of South West Africa under the United
. . Natioiis TrÛsteeshTpSystem.
Toivo, 1 urge you not to accept part of these demands. Tell the
Prime hlinister of South Africa that you want ali four to be granted
and no compromise whatever. Please remember Toivo, I will play
this up hereal the UNO. But to make it effective, the Congressshould
petition the President of the United States Government and the
Prime Minister of Russia for immediate Militavy Action against
South Africa collectivelyor individually to enforce the decisions and
azrthorityof i'heUirited Nations. Boy this will make the British to
even force South Africa at the UN0 to place South West Africa
under the Trusteeship because they are afraid of Russia. But ifyou
want me to draft this petitions please inform me, because they have
to be legal and specific and also non-cornmital on Our part. 1 can
consult mithsomeof my legalfriands here.A copy shall be sent to the
UXO and other sources for a world wide publicity. This will take
the Whites in South West Africa by complete surprise. However,
remember one thing. By fear and surprise and desperation these
' The penon referred toin para. D.2 at 1,p. 173. COUNTHR-MEMORIAL OF SOUTH AFRICA qr
Whites will come to you to talk about the danger of communism if
we invite Russia to take military action and the United States as
well. Our answer to these Whites should be. We have for 13 years
petitioned the UNO. We have repeatedly informed the Union of
South Africa of OUI wishes, and Our freedom. Instead the South
African Govemment continue to remove us from our landsby force.
Suppress us ruthlessly etc. Worry about communism in Europe,
not in Africa. In Africa it will be first African Freedom, before we
worry about communism. If communism has to help us in South
West Africa to achieve this freedom. It is welcome. Our people have
no ammunitions to fight against South African Policy and army. So
if Russia and America can come to do the job for us. We invite them.
Please Toivo digest these few points. They may sound less forcefull
but that is just the point. They have power. I shallplay theballhere
people from South West Africa be invited to the UNO. At the UN0African
we shall stand together. Just tell our people in Ovamboland to keep
together and not to Say anything. If those nominated Chtels say a
word telloztr people ta burn their places ut night secretlyO/ cotrrsc.
name alive before our people. There are zoo,ooo people in Ovambo-y
land more tlian the rest of the territory. Fear not my friend. Kozong-
wizi is also working hard in the South. together we shall have more
than300,ooo Africanpeople behind us. Together iveshall smash those
Whites out of the government without using force but our brains.
Believe me Toivo, if we do not do this, our stmggle will remain
stagnant. We must do something if we have to be free. We have
nothing to looseor to fear.Al1that we want is just strong men to tell
the Whites in their faces what we think of them and what we want.
You are one of those men and Kozoiigwizi is another one of our
comrade. Listen thetwo petitions tothe bigboysshorrldbetimed. They
shouldmachthemjus1 a monthbe/orcthe UN0 Assembly star1so tl&
the matter couldbecomea worldwide one '." (Italicsadded.)
(b) Lettn toToivoJa Toivo,dated 21 Aprilrq5y :
"Listen Toivo, Kozongwizi escaped from S.W.A. He is now in
Ghana. Wc aretrying to get him over to the U.S.A. to appear before
the UNO. . . .In the meantime just keep quite, work very quietly, do
not take part in any open political activities; those Boers are after
you .. .Do not talk in public, talk hehind the scenes. Belriend those
nomïnate~lChieJs,$retend asif you likethem.
I am workinghard on the z Big Boys petitions. 1 am sure we'llget
them through ... Thisyear must bring Ourfreedom or not at al1 .. .
This Assembly will not pass without anything done. You would
see as soon as those z Big Boys receive the petitions S.A. will be
shocked 2."(Italics added).
(c) LettertoKapuuo, dated 30 April1y5y:
" 1 am a little worried because no western country will ever do
anything for us to liberate OUI people. However, MY. Toivo requested
me to draftfeu petitioits /or the OvambolandP. Corigressand also to
' Kcrina 60Toivoja Toiuo. 14 RD. 1959.
Ibid.21 Apr. 1959.42 SOUTH WEST AFRICA
consult (no va Russa) they arethe only one who could do something
for us to have this question solved. 1 am sure that now that 1 have
Kozongwizi I>ymy side our efforts here will proof effective. 1 am
arranging for Kozongwiziand 1to meet with (nova Russa) privately
to seeas towhether they could help us. But, please if wetake a stand
in that direction here. stand firm al1of you at home and support us.
Your positioii should be very simple, e.g.:
'Your petitioners 10the UN0 are the only one authorized 10 take
measuresthatworrldltelptosolvethe questiona~zdthatyou havenolhing
tosay 9ublicl:vuntil y026hear/rom them.' '" (Italicsadded.)
(d) Letter 10Sam ivujoma, dated16Se$tember1959 :
"We anticipate great difficulty in this UN0 General Assembly
session hecaiise al1indications are that the South African Govern-
ment wiiicorneforwardwith a few conciliatory proposais which will
sound good and impress some but mcan absolutely nothing. We have
also to be wary of tliose who are willing to go too far in their com-
romises jusl: to get some solution or quasi solution to the problem.
eYe should adamently fight al1 those unaceptable ideas ... 1 shali
send you mo:e information as it becomes available and when it does
reach you pltraseactforcefullyand violentlyin the positivesenseof the
word.. . .
After careful and thoughtful consideration of Oursituation 1 think
itis advisable for you Mr. Nuyoma and your friends to think about
the possibility of turning your organization into a full fledgenational
organization representing every body in the ivhole territory. 1
further suggest that it would be to our advantage if you can change
the name of the Ovamboland Peoples' Organisation to The Sozlth
West Africarz National Congress.This can mean that zejewho are
representingvox al the UN0 now havepower behind us. It was ve~y
good to start with a regional organization but now your tactics
should be geired to the achievement of something greaterfor South
West Africans. OlherAfrican states would support us strongly if we
can havesnch a national organization.Please do inform the UN0 if
you change the name of the present organization to that of S.W.,
African National Congress, this is very important for our position
here. I am sendingyou underseparatecovera co y of a constitut{onfor
theConxressthat 1have proposed and a mani Pesto to be distributed
widely if you approve of the idea 2."(Italicsadded.)
(e) LettertoSam A'ujoma,dated25SeptemberIg5g :
"Mr. Nuioma. continue to attack the Government o~enlv in
public. no not stop. in tiie meantiiiicas soonns 1tiiink <ifsrkicihing
importniit 1 \\.ilinforni yoii. Reluse to niocerolhe ,im loralro~iT. ell
the peoplc 111.1o nrove.1 xi11soiil yeti (1s/iiiemeritze~liy011 slwrrld
rcml lnlhrrn ,zndlranslaleilrtiloOca~nto.Hzrero.:\'a>na .lc.
AlsoIr). toorganize \las Public .\Icctingbevery Snturday. 'T~lkto
the peoplr 1,:Itlicni to st;iiid togcthe'."(Itnlics nddrd.)
'Keritra10ICapliuo, 30Apr.,959.
Kmina 10Sam ~Vujomu.16 Sep. 1959
Ibid..25 Sep.1959. COUNTER-MEMORIAL OF SOUTH AFRICA 43
(f) Letler/rom Kerina in New York toSam Ncrjoma,dated17October1959 :
"Do no&move /rom the locatio~r.Refuse completely '." (Italics
Added.)
(g) Letler10 ToiuoJa Toiuo, dated17 NovemberIg59:
"I am working with the African States on this matter and I have
offered my assistance if they so desire to help them to gather legal
euidencewith re ard thecase.Everything is going on well. 1think one
of the African Etates wants me to go to their country to work with
them on this case. 1will inform you on this as soon as 1have every-
thing clear....
Toivo, listen.1 have been urging Mr.Nujoma to change the name
of Ovamboland Peoples' Organization into the Sotrth West African
National Congress.This will give the organization a national charac-
ter which can be of great use to our position here. I have alsodrawn
crpadraftconslitirtionforhimfor thispurpose.He informed merecent-
ly that this Congresswillbe formed iiext year. Would you please get
in touch with him and tell hi that he should try to see that you
THerero a Vice-President etc. You see whatou 1hwant to Say is that do
no&allowthe OP0 when it is change11 into the S.W. African National
Congressto bedominated by otltergroups. Be very careful about this
very much. But please even ifother groups do not want to CO-operate
with the OP0 to form the Congress just go ahead and change the
OP0 to the new Congress. Please m'riteor talk to Mr. Nujoma abozrt
this and keep it very secret do not tell any one of this idea it should
just between you two 2." (Italics added.)
(h) Letler10Sam A'u~oma,datedg December1959:
"On theszibjectof locationremovalweca~zonlyadviseyou tocontinue
in yozrreffortstoencorrragethepeoplein theirfirm atlitr~denot to move.
Onsuch an issue as lliis, on whichthepeoplemust maintain theirunity
unitcd and refuse to move. If the administration is forced to ilse
violence they will show their tme character to the world. We do not
want to see one drop of African blood shed, but we must face that
possibility and makc the most of it. There is one thing which he!p
and which we suggest be commenced immediately. That is tps.
Each person whose house is evaluated and who is forccd to sign
should individually send a petition on behalf of his family (stating
the iiumber of people involved) to the UN0 stating the date on
which the cvaluation is made, his determination not to go; the
unreasonableness of the govt;and his knowledge that African blood
is about to be shed because the Administration is determined to
move the people by force.
Yoii must stress the urgency of thc situation and the fact that
U.N. is being informed so that this iiltimate conflict can be avoided.
Several hundred petitions should flood the U.N. immediately!!! We
leave the rest to you-please also inform the people nt Walvis Bay
to follow this same course. As niany petitions as possible shouldbe
desflatchedto U.N. as soonas possible.. . .
KerinnIoSam Nuforna. 17 Oct. ,959.
Keriira10ToiuoJa Toioo, 17 Nav.1959.44 SOUTH WEST AFRICA
What we think is needed is an effectively functioning outside
organization as well as active territorial organizations which can co-
ordinate objeitives and programs $0 that we can obtain maximum
benefit from every situation which will arise, it is imperative that
we fight this battle on al1fronts(1) In the territory(2) At the U.N.
and (3)Among our African brothers '." (Italics added.)
4. As will have appeared from Kerins's letters Z, one Kozonguizi had
joined him in New York during 1959.The contents of some of Kozongui-
zi's letters to his associates within thc Territory are also relevant with
regard to the metliods to be followedin the campaign. Some extracts are
cited below.
(a) Letter10SamNujoma,dated14Sefitember1959:
"Please try 10organisefieopleuthome:
I) AgainsttheRemovaloftheLocation;
I2) Hold a big S.W.A. Day to coincidewith our fietitioningthe U.
Nations.
(3) Give me more information about Rev. Haintumbangela and
Toivo in Ov'land 3."
(b) Letter10 LozrisNelengani ',datedrî October1959 :
"Monday Iveshall be commencing with the battle at the United
Nations. Louw made a statement but 1 don't think he will be
present to he:ir us-he said he shall be leavi~igon Monday. But Van
der Wath will stay on a little while. He is also going to make a
statement. But we shall blast him. We have a team of seven. Rev.
M. Scott, Mburumba Kenna, Hans Beukes, Emery Bundy, S. Bull.
Al Lowenstein and myself.And weshall al1blast them like anything.
Keep ufi theLight-Work, Work.and Work-that is what we have
to do 5."
5. The above extracts afford clear proof of a campaign against Re-
spondent's administration-a campaign involvingincitement and intimi-
dation of the indigenous population of South West Africa, the organi-
zation of incidents within the Temtory which could be "played-up" on
international platforms, large-scale transmission to the United Nations
of petitions, insome cases drafted in New York and sent to the Territory
for signatureby local associates, and the seeking of military intervention
by other States.
6. It is also clear from the above extracts that the campaign further
involved the creation of organizations which would appear to have
widespread support within the Territory. As will be indicated below, a
number of ~olitical organizations were accordingly founded.
(a) In 1958Toivo Ja Toivo founded the Ovamboland Peoples Congress.
After Kerina's letter referred to in paragraph 3 (a) above, the name
Ovamboland Peoples Congress was, in April 1959, changed to the
Ovamboland Peoples Organization (OPO), with Sam Nujoma as
President. Aiter Kerina had suggested that a name which denoted a
Kerina lo Sain1Vzijomn9 Dec. r959.
Vide para3 (c).supra.
Kozonguiai IoSom Nujoma, 14Sep. 1959.
'The person referred to in para. D.61,p. 176.
Kozaguixi loLnrir Nelengoni,12Oct. ,959.
Vid~para. 3 (dl, ruprn. COUNTER-MEMORIAL OF SOUTH AFRICA 45
national rather than a regional organization wonld suit his purposes
better at the United Nations, the name of the Ovamboland Peoples
Organization was changed to the South West Africa Peoples Organi-
zation (SWAPO) in June 1960. Messrs. Xujoma, Kerina. Louis
Nelengani and Toivo Ja Toivo were some of the prominent leaders
of this organization.
Other ptitioners who feature in the extracts relied on by Appli-
cants and who had close links with the upper command of SWAPO
included Messrs. Mifimai, ShoombeZand Headman Hosea Kutako.
Hosea Kutako appointed Kerina as his representative overseas, and
made a practice of sending petitions to the United Nations in
collaboration with SWAPO.
(b) In 1959 Kozonguizi, at the request of the Rev. Michael Scott 3,
was sent to the United Nations as the persona1 representative of
Hosea Kutako '. After his departure, the South IVestAfricaXational
Union (SWANU) was launched during August 1959 with the assis-
tance of Kapuuo ', the deputy of Headman Hosea Kutako. Ko-
zonguizi was elected President and I~ecamethe spokesman for the
Organization at the United Nations. Louis Nelengani. the Vice-
President of the Ovamboland Peoples Organization 5, was elected
National Treasurer of SWAXU, and Sam Nujoma the President
of OPO, and John hluundjwa6 were also elected to the National
E-~c~ ~ ~ ~~~SW.NIJ--. ..
(c) A third movement was also originated with the same objectives as
SWAPO and SWANU, namely SWAX10 (South West Africa
United National Independence Organization). Two of the members
of this organization are the petitioners, the Rev. hfarkus Kooper 7,
at present its representative at the United Nations Organization,
and 3fr. Johaniies Dansab, of Hoachanas 8.
7. In order to influence international opinion, the leaders ofthe afore-
said cainpaign adopted a system of floodiiigthe world in general, and the
United Nations Organization iii particular, with continuoiis allega-
tions of suppression and atrocities allegedly committed by Respondent.
This was done maiiilv bv the submissioii of written and oral ~etitions
to the United Nation; ~i~anization. In this way there came int; being a
gronp of what may be called "professional petitioners". These petitioners
ire united by their common purpose to end liespondent's admhistration
of South West Africa "by al1means" %to "smash the Whites out of the
Government" 6,to "get South West Africa back no more no less" 6.
As can in the circumstances be understood, these petitioners will find
fault with, and willdetect uiterior motives in, every act of Respondent's
administration. They constantly scheme and devise means to bring
Respondeiit's administration into discredit. and, as the above review
' 1,para. D.5, p.176.
Ibid. para.E.z. p. 178.
3 Vidaparas. 3 (a)and 4 (b).supra.
4 Ibid. p.ra.3 (c).
' 1,para. D.6, p. 176.
Vids para. 2.supra.
8 Ibid., para. B.2p. 168;para. U.3. p. 169; paraC.4. p.171: para. D.I. p. 172.46 SOUTH WEST AFRICA
has shown, are prepared to distort the factsand to present a false picture
in their petitions io "flood the U.N." '.
S. It is submitted in the light of the aforegoing that the majority of
the petitioners relied on by Applicants cannot be regarded as a "wide
variety of indeperideiit sources".
' Vidapara. 3(h). supra. SECTION B
ALLEGEDVIOLATIONS BY RESPONDENT OF ARTICL 4E
OF THE MANDATE
CHAl'TEK 1
STMEMENT OF THE LAW
I.Applicants, in their Submission 6. request the Court to declare
that-
"the Union, by virtue of the acts descrihed in Chapter VI1herein,
has established military bases within the Territory in violation of its
obligations asstated in Article 4 of tlie Mandate and Ar22cof the
Covenant; that the Union has theduty forthwith to remove al1such
military bases from within theTerritory; and thatthe Union hasthe
duty to refrain from the establishment of military bases within the
Territory;'".
z.Article 4 of the hlandate, to which reference is made in the said
Subinission, read as follows:
"The military training of the natives, otherwise than for purposes
of interna1 police and the local defence of the territory, shall be pro-
hibited. Furthermore, no military or naval bases shall be established
or fortificationserected in the territory."
Although the complaint made by Appiicants is confined to an alleged
violation by Respondent of the prohibition against the establishment
of military bases-contained in the second sentence of Article 4-it is
desirable. with a view to a proper appreciation of the scope of that
prohibition. to have regard to al1 the provisions concerning military
activities contained in the Article, read in conjunction with the provi-
sions of the Covenant.
3. Article 22 (6) of the Covenant provided that territories such as
South West Africa could-
". .be best administered under the laws of the Mandatory as inte-
gral portions of its territory, subject to the safeguards above
mentioned in the interests of the indigenoiispopulation".
The said "safeguards" were those mentioned in Article zz (5), which
provided. in so far as is here relevant, for the administration of man-
dated territories under conditions which would guarantee, inte nrlia-
".. the prevention ofthe estabiishinent of fortifications or military
and naval bases and ofmilitar)? training of the natives for other than
police purposes and the defence of territory . . ."
4. The abovementioned safeguard, which was reflected in Article 4
of the Mandate for South West Africa. was no doubt conceived in the
'1,p. rg8. COUNTER-MEMORIAL OF SOUTH AFRICA 49
missible to the Mandatories. France in particular objected to any idea
of severely limiting the Mandatories' rights in this regard 1.
In the draft submitted by Mr. Lloyd George on 30 January 1919
provision was made for military training for the purpose of "defence of
territories" apart from military training for "police purposes". The
draft provided:
"The mandatory must ... guarantee the prohibition of . . .the
arms traffic .. .and the prevention of the establishment of fortifi-
cations or rniiitary or navalbases ,nd of the rnilitary training of the
natives forother than policepurposes and the defenseof territories 2."
8. The intended scope of this draft provision was discussed in the
Council of Ten, and as a result of questions by the French delegate,
M. Clemenceau, Mr. Lloyd George said:
". .. there was nothing in the clause under review to prevent volon-
teer forcesbeing raised. The words used were: 'For other than police
purposes and the defense of territory.' He really thought those words
whicli would prevent her doing exactly the saine thing as she hadent
done before. What it did prevent was the kind of thiiig the Germans
were likely to do, namely, to organize great black armies in Africa,
to be used for the purpose of clearing everybody else out of that
country '."
And he concluded by saying: "There was nothing in this document
which would prevent France raising ail army for the defense of her
territories3."
Further debate on the iiiatter is recorded as foiiows:
"M. Clemenceau said that if France had the right in the event of a
would ask for nothing more.in African territories under her control, he
Mr. Lloyd George replied that France would have esactly the
same rights she had previously enjoyed. The resolution proposed by
him was only intended to prevent a mandatory from drilling al1the
natives and from raising great armics.
hf. Clemenceau said that he did not want to do that. All that he
wished was that the matter should be made quite clear, and he did
not want anybody to corne and tell him afterwards that he had
broken away from the agreement. If this clause meant that France
had the right to raise troops in the African territories under her
control in case of a general war, he was satisfied.
Mr. Lloyd George said, that so long as M. Clemenceau did not
train big nigger armies for the purposes ofaggressioii. tliat was al1the
clause \vasintended to guard against.
M.Clemenceau said that he did not want to do that. He therefore
understood that Mr. Lloyd George'sinterpretation was aùopted.
President Wilson said that Mr. Lloyd George'sinterpretation was
consistent with the phraseology.
M. Clemenceau said that he was quite satisfied *."
' Baker.R. S.. Woodrow Wilson and World Sctllcmenl (rgzz-,923). Vol. 1.
PP.426-432.
Ibid.p. 426.
* Ibid., p427.
' Ibid.. p. 428.50 SOUTH WEST AFRICA
It is also recorde6 that:
Mr. Lloyd George would not prevent mandatoriesesolutions profrom raising
volunteers in the territories under their control for the defense of
their countries in the event of their being compelled to attack '."
Whatever doubt theremay have been as towhether a hlandatory should
be entitled to train the Natives of a mandated territorv for the defence
Ilandatory *as to be entitled to train the inhabitants of a mandatedat a
territory (including the Hatives) for the defence of that mandated territory.
g. In the preniises aforestated, Respondent submits that the first
sentence of Articie 4 of the Mandate and the correspouding provisions
in the Coveiiant, permitted the military training of the inhabitants of
tlie inandated tenitory (including the Natives) for the purpose of interna1
police and local defeuce of tlie Territory.
IO. The second sentence of Article 4 of the Mandate prohibited, inter
alia, the establishment of "military bases" in the Territory. Neither the
Covenant of the League of Nations nor the Mandate contained any
definition of the term "military base". The following definitions are
given in well-known dictionaries:
(a) IVcbster'sCmpLete Dictionary of the English Language (New ed.
of 1880).p. III.
Base (military) :"A tract of country protected by fortifications,
or by n,îtural advantages, from which the operatious of an
army proceed."
(b) Webster'sNew Interna1io;ialDictionary oi t.e .n~lilish-anguape - -
(2nd ed.), p. 15.
Base (military and naval) : "The locality on which a force relies
tions (base of operations); as, a submarine base."itiates opera-
(c) The Shorter Oxford English Dictionary on Historical Principles
(3rd ed.').p. 150.
Base (nrilitary) : "The line or place relied upon as a stronghold
and magazine, and from which the operations of a campaign are
conducted."
bycoamforceor an army for the purposes of operationsor a campaign. Theized
utilization may be either-
(i) as a starting point forthe operations or campaign, or
(ii) as a source of supplies required for the operations or campaign, or
both.
Consequently, failing the purpose of utilization for operations or a cam-
paign, actual or firospectiue,by a forceor an armv,.a pl.ce cannot be said
to be maintained as'a milita& or naval base.
In the light of the foregoing it is submitted that the term "military
base" does not include a military training camp which is used only for
purposes of the military training of recruits. It is clear tliat such a camp
for operations or a campaign by a forceor army. Furthemore, whereas intion
' Baker. R. S.. V/oodrowWilson and Wwld Setthment (rgzz-,923). Vol. 1,p. 428.52 SOUTH WEST AFRtCA
facts ', where the sole criterion applied ta each facility appears ta be
tion ortintemal security".ontend) that "its purpose is not police protec-
Respondent submits that, for the reasons hereinafter stated,the basis
of Applicants' submissions regarding the law rests on a misconception
of the provisions of Article 4.
14. The basic fallacy in Applicants' statement of the law is that they
use the limitation in the hrst sentence of Article 4 with regard to the
installation or facilityis a "military base".ermining whether a military
Although there would be an interconnection between the limitations
imposed on the military training of Natives and the prohibition against
the establishment of military bases, the former caiinot in itself serve as
the criterion for determining whether a particular installation or facility
is a military base.
15. In submitting that-"Armed iiistallations iiot related ta police
'fortifications' .e. ," Applicants ignore the distinction between trainingr
of Natives and training of non-Natives. The distinction is imwrtant
because the authors of rhe Covenant were not concerned about &ilitary
training generally,but about militam training of the Natives hence the
limitation of military training for fertain p>poses was, in the express
terms of Article .l of the Mandate, made applicable to Katives only.
An "armed installation" cari. of course. legitimately be used for the
training of non-Natives, in which case the restriction uuon training of
Native; cannot serve as a criterion in determining whether such-in-
staliation is or is riot a "military base".
16. Moreover. Applicants render the term "local defence", which
appears in Articl~:4, as "internal security", an expression not iised in
the said Article. Applicants' rendering in effect reduces the two concepts
in Article 4, viz., "internal police" and "local defence", to one, called
by Applicants "police protection or internal security". In such rendering
the concept of "local defence" falls oiit of consideration altogether.
There is. it is subinitted, a wide difierence between the expression "local
defence of the tarritory" which appears in Article 4, and the words
"internal security" in the sense contended for by Applicants. The words
"local defence of thetenitory" would include the defence of the Territory
against extemal agg~ession.
The omission of the concept of "local defence" is therefore a further
important respect in which Applicants err in their formulation and
application of th,: statemeiit that "Armed installations not related to
police protection or internal security fa11withiii the class of 'military
bases' or 'fortifications'. .." The significance is apparent particularly
in Applicants' rezlsonin leading to their LegalConclrrsions.'Thus they
argue, in respect of the%egiment Windhoek, that "Armoured corps are
not normally nseii for police protection or internal security purposes" ',
' 1,pp. 182-183
Mareover. in a (iistorted form; vide pai6,infra
' Vide para. 8,supra.
* 1. p.182. COUNTER-MEMORIAL OF SOUTH AFRICA 53
and further that the fact of the Regiment being ".. . part of a conven-
tional military organization also indicates that its purpose is not police
protection or internal secwity" '. On this basis they then conclude that
facilities pertaining to the Regiment are to be regarded as constituting
a miiitary base. In this process they clearly ignore that "armoured
corps" and the fact of being "part of a conventional miiitary organi-
zation" are pecfectly consistent with a possible, and legitimate, purpose
of locai defence Z.
Similar treatment is given by the Applicants, in their Legal Concla-
sions, to the alleged "miiitar landing field at Swakopmund" and the
alleged "military camp" andior "military airbase" in the Kaokoveld 3.
It is thereforeevident, in Respondent's submission, thatthe inferences
drawn by Applicants in their Legal Co7iclusionsfrom the words "police
protection or internal security" cannot validly be drawn from the
expression "internal police and the local defence of the territory", and
that the infereiices drawn by Applicants are thus as unjustified as is the
substitution of the former expression for the latter.
1,p. 182.
Which için fact the case as faas the ultirnate purposes of the Regirnent
Windhoek are concerned. Vide Chap. II, paras. 2-8.infra.
1.p. r83. CHAPTER II
THEALLEGEDMILITARY BASES INSOUTHWEST AFRICA
A. General
I. Applicants :allege, "upon information and belief", founded on
"statements contained in the 'Report of the Committee on South West
Africa' for the years 1959and 1960", that Respondent "maintains three
'military bases' within the Territory" '. In support of these allegations
Applicants advani:e practically no originalevidence, although an attempt
is made to explain this weakness by alleging that Applicants have not
been able to make an independent verification of the existence or non-
existence of bases or fortifications in the Territory.
Respondent States categorically that Article 4 of the Mandate has
been administered conscientiously and in the spirit of the Mandate.
There has been iio military training of the Natives for any purpose,
except during the SecondWorld War, when a special Company of Native
soldiers was trained in the Eastern Caprivi Zipfel, and members of the
Xative groups in other parts of the Territory were trained in the Native
Alilitary Corps, a non-combatant unit, to assist in the local defence of
the Territory. Al: the end of the Second World War these units were
demobilized, and there has since been no training of Natives. No military
bases and no fortifications have been erected or established in theTem-
tory.
B. TheRegiment Windhoek
2. During the 1920s no permanent military force existed within
South West Africa. For its defence the Territory relied upon the Bur-
gher liorce established by Proclamation No. z of 1923 (S.W.A.) Z.This
Proclamation was referred to at page I of the Report of the Adminis-
trator of South \\'est Africa for the Year 1923 which was submitted to
the League of Xations as Respondent's annual report of the adminis-
tration of South West Africa for 1923 3.In Respondent's report for the
year 1925the organization of the Burgher Force wasdescribed as follows:
"There is no premanent [permanent] military organization. Apart
from the Police Force the Territory relies for its defence upon the
burgher forceestablished by Proclamation No. 2 of 1923,as amended
by Proclamations Nos. 37 of 1923and 35 of 1924.
The regulations framed under the former are published under
Government Notice Xo. 23 of 1923 (see page 94, Laws of South
West .4frica. 1923).Every male European resident of the Territory
between the ages of IS and 55 is liable to be called out in the defence
' 1,p. 181.
As amended by Proc. No. 37of ,923 (S.W.,\.)rq Nov. 19'23,inOfficiai Garelie
ofSouih IVcrlAtrica, No.r22 (1 Dec. 1923).pp.144i-i442. and by Prac. Xo.35 of
1924 (S.1V.A.). 2I>ec.1924.in Th8 Laws ofSouth WerlAfrica 1ga4. p. 191.
U.G. 2,-1924. COUNTER-MEMORIAL OF SOUTH AFRICA 55
of the Temtory ifnecessary, subject to certain exemptions which are
set out in Section 2 of the first-mentioiied Proclamation. Every
person liable for service is rcgistered.
Under Section IO the Administrator may from time to time
assemble the burgher forcesfor inspection and rifle practice.
The Force is divided into two classes (a) including al1 enroiled
between the ages of 18and 35 and (6) between the ages of 35 and 55.
Whenever it becomes necessary for the defence of the Territory
or for the protection of life and property the Administrator may by
notice in the Gazetlecall out the whole or part of the Force. Where
only part iscalled out class (a) must fust be drawn on.
Every burgher is provided with a rifle and 50 cartridges, which
must be kept for emergency purposes.
For active service he uses his own horse if he has one, and upon
mobilisation must report at the place of assembly with greatcoat and
blankets.
The officersare appointed by the Administrator.
As regards training, this takes the fonn of rifle practice, which is
encouraged by the Administration.
The Administration defrays the cost of rifle ranges and pays into
the 'Corps Fund' of each commando or independent squadron a
capitation grant of five shillings in respect of every burgher of such
commando who has qualified himself as efficient at the annual target
practice. Fifty rounds of ammunition are granted annually free to
each burgher for rifle practice, and he may obtaiii further supplies
for that purpose at cost price '."
3. In Respondent's Annual Report ta the Council of the League of
Xations concerning the administration of South West Africa for the
year Igzg z,an exposition was given of the defence organization within
the Territory at that time. The relevant paragraphs of that report are
cited in Annex A, infra. This organization was based on the Burgher
Force Proclamation. No. 19 of 1927 (S.\V.A.), which had superseded
the abovementioned Proclamation No. z of 1923 (S.W.A.). In brief, the
new Proclamation imposed upon every able-bodied male European
resident of the Mandated Territory, who was a natural-born or natural-
ized British subject, and who had completed his twentieth but not his
fifty-sixth year, the duty to render personal service as a Burgher in the
defence of the Territory and the protection of life and property therein,
and to undergo such military training as might be prescribed or directed
by the Administrator 3.
\%'hilethe Administrator had power to call up the whole or any part
of the Burgher Force for military training, such a call-up had not taken
place up ta the stage when the 1gzg report was compiled +. nor indeed
thereafter, as wiii appear below. In the said report it was mentioned
that the persons then registered as being liable for service under the
Burgher Force Proclamation numbered 6,259 5.
During discussions in the Permanent Mandates Commission in 1930
U.G. 26-1926. pp.94-95.
' Ibid.. para61.p. ro.
' Ibid.. para66,p. rr.
Ibid.para. 63, p.IO. 56 SOUTH WEST AFRICA
regarding the abovementioned military organization, doubts were ex-
pressed as to the efficiencyof the Force. It is reported that:
"... M.Sakenoble [sic] felt somewhat doubtfulas to the efficiency
of the force. \Vas it considered that the force was reaily adequate
forthe defenîe of the territory and for the maintenance of law and
order? 1''
4. The defence organization described above remained unchanged
until 1939. hlilitary training never developed to a point beyond rifle
practice and duririg the years 1931 to 1935 financial considerations led
to a curtailment even of that. The Burgher Force was never called up
for military training 2, and during the period 1936 to 1939 its organiza-
tion came to an almost complete standstill.
5. By Proc1am:ition No. 234 of 1939 (S.A.) it \vas provided, inter
alia, that the South African Defence Act of 1912 3, and al1amendments
thereto, together mith the regulations made thereuiider, would apply
to South West Africa. The outbreak of the Second World War neces-
sitated a better military organization in order to secure peaceandorder
in the Territory aiid to safeguard Respondent's position as Mandatory '.
On I December 1939 the First South West Africa Infantry Battalion,
with headquarter:; at Windhoek, was established as an Active Citizen
Force unit of the Union Defence Force 5.The Batt~ ~on ~as established
fortlie piirpose of:issisting. ifnecessary. the Police Force iriprotcctiiig ttit:
mni1datt:iltcrritory in general. and. more p:~rti<:iil:irly .n I)rorectiiig il>
esscntiil si:r\.iivs :icniiist I>USFI~IilL it.ernnl diiturbaiicci; or raidi or
landings from en& vesseis. During 1940 the unit was mobilized as a
war-time volunteer battalion. On 16 January 1943the unit was disestab-
lished.
6. A Citizen Force unit, named the South West African Infantry,
was established a:j a unit of the Union Defence Force in 1946 6. During
1957the unit !vasredesignated as "Regiment Suidwes-Afrika" and from
I June 1960it wa:jfurther redesignated as "Regiment Windhoek" '.
The Regiment Windhoek is a Citizen Force regiment with adminis-
trative headqiiarters at Windhoek. With reference to Applicants' factual
allegationsregarding this Regiment Respondent admits that the Regi-
ment is a part of the South African Armoured Corps of the Citizen
I~orce,which foms an integral part of the South African Defence Forces,
and admits that on I December 1959, it consisted of 16 officen and 205
' P.M.C.. Min., XVIII, p. 148.
Vide U.G. zr-193,. para. gr. p. 16; U.G. 17-1932. para. 70. p. 12; U.G.
16-1933. para. 75.11 12: U.G. 27-rg)q, para. 65,p. 9; U.G. 31-1937. para. 46,
n. ri.
' Act NO. 13 of 1912. amonded by Act No. 43 of 1917, Act No. zg ai 1918. Act
No. 22 Of 1922 and .Act No. 32 of ,932; vide The Union Statutcr rgro-19g. Vol. 5,
pp. 111-243.
' U.G. 30-1940. pars. 168-169, p.33.
' G.N. No. 1977 (!<.A.). 8Dec. 1939, in The Laws ofSoulh Ives1 Africa 1939. Vol.
XVIII, p. 138.
G.N. NO. 841 (S.A.). 18 Apr. 1946. in The Union ofSouth Af~ica Gover~rnienf
Garelle.Vol. CXLIV. No. 3634 (18 Apr 1946). p. 123.
' G.hr. Ka. 458 (S.A.). r Apr. 1960, in Gm~rtmenl Gartilr (S.A.).Vol. CC. No.
6395 (1Apr. 1960).3. 48.
1, pp. 181-182. COUNTER-MEMORIALOF SOUTH AFRICA
57
other ranks. At present this Rwiment consists of 20 officers and 221
other ranks. i<es<ondent deiiies, however, that thr I(eginiciit isstntioned
nt \\'indhoek 01ily :1ininllperrnniiciit force :itliiiiriistrative jttiff, cun-
sistiilg of thrt:<c~ifict:riniid î<:\.eiil;tlicr r.tiiks. is pcrinniiently stationeri
;it\\'i~~ilioek.ï'lic Cirizeii l:orcc recruit; of thc Kcgiinent are orrljriar).
civilinns of Soiirh \Ve;t .Africawhoje onlj. pence-rinit.militarv obli~atioii
is to attend two training courses. of 14âays each, during-a pe<od of
three years, at the training camp at Windhoek. They are not in perma-
nent military service, and, except wheu in training. they reside in their
own homes at laces scattered throueh-ut the Territorv.
'l'litr;~iiiiii~'i:~~i\\'iii~llioekserve~~iiilytIie pturin~<:i~~i>fttic
\Vindtioek. IIIothçr \r,ordsII caters for the Europcnn citizens clomiiiled
iiiSouth \\'v>t :\fric;i \vlio ;ire reuuired to undercu rx;icetiiiie rnilittirv
training as aforementioned. There is no military tyain'ingofthe ~ative;.
Owing to the limited training and the comparatively small number of
Citizen Force personnel involved, the training camp is utilized only for
very short periods at a time. For the major part of the year, therefore
the camp is not used for military training purposes.
7. In conclusion Respondeut may point out that the inclusion of the
Regiment LVindhoek as a part of the South African Armoured Corps
ofthe Citizen Force doesuot mean thatit is an armoured unit. Reeiments
are grouped for convenience. The Regiment is actually equipped with
what are internationally known. and used, as l.ght reconnaissance
vehicles,viz., armoured cars.
S. The Regiment, constituted and organized as set out above, is the
bare minimum required for the defence of the Territory and for inter-
na1 security. Its facilities and equipment serve only the purpose of
training European perçons, and are in no way intended to serve as the
starting point of, or the source of supplies for, operations or a campaign
of a force or army. The facilities, vehicles and material of the Regiment
do therefore not constitute a "military base" as alleged by the Appli-
cants '.
C. The Alleged Military Landing Ground in the Swakopmund District of
South West Africa
9. Respondent denies that a military landing ground is maintained
in the Swakopmund district of South \Vat Africaz. At Swakopmund
there is only a civilian landing field. The landing ground to which Appli-
cants apparently refer is that situated on the farm Rooikop No. 19,
and known as Rooikop Landing Ground. This landing ground is not
situated within the territorial houndaries of South West Africa, but
falls within the area known as the port and settlemeut of Walvis Bay.
The portand settlement of \Valvis Bay is South African temtory and
was not included in the Mandate conferred on Respondent 3.The farm
1.pp.182-183.
Vide Applicants' allegation1,p. 183.
The British annexation of Walvis Bay predated the proclamation ofa German
Protectorate in South West Africa; vidc British Letters Patent rqtDec. 1878,
in British and For~igSfntc Pnpcrs 1878.1879, VolLXX, pp.495.496, The port
and settlement of Walvis Bay was annexed to the Colony of the Cape of Good58 SOUTH WEST AFRlCA
Rooikop So. 19 is situatcd in registration division 1:.\\.liicliis tlie \Val\*is
13ayregistrntion di\.isioii. IIIproof of the abo\,e fncti I<c.spondentaiiriéxes
li~rcto ;iifldnvits Ioytlic ICcaiitrar of Dc~.ds.South \Vtit Afri~.:~;.ilid the
Surveyor-Genera1,marked hnex B and Annex C respectively.
IO. In stating in its report for the year 1959 that the aforesaid landing
ground is situated in the Swakopmund district of South West Africa ',
the Committee on South West Africa mav have been misled bv the word- ~ ~
iiig of Go\,criiriieiit Sotici. Su.63ti of '10~8 (S.:\.) \\.h~ch'~lroliil~ited
acceîs to th< sdid Iaiidingground. 2nd \i.hichdcscribed tlie f:iriii liooikop
So. ro :IS situ~tt11in th: district of Ç\i~.ikoi>niiind.The rcason \\,hi, tlic
situation of the farm was so described, is that in 1922, ~es~ondeni, for
administrative reasons, provided by Act No. 24 of1922 that from a date
to befixed by the Governor-General by proclamation-
". .. the port and settlement of Walvis Bay which forms part of the
province of the Cape of Good Hope shall be administered as if it
were part of the mandated territory ... 3"
The date from which the above provision became effective was fixed
as the iüst day oi October 1922 +.
By Proclamation No. 30 of 1922 (S.W.A.), and byvirtue of the powers
delegated to him by section I of Act No. 24 of 1922, the Administrator
of South West Africa dec--.- that:
"The said port and settlement of Walvis Bay shail be deemed to
form portion of the District of Swakopmund created within this
Territory . . .5"
The Permanent Mandates Commission was aware of this adminis-
trative arrangemant, and in its report to the League Councilin 1922 it-
". .. noted that the territory of Walvis Bay had been treated as if
it formed part of the mandated territory, whereas it was not, in fact,
included in that temtory 6."
The area of Walvis Bay was administered as part of the magisterial
district of Swakopmund until 1958w ,hen a separate magisterial district
named Walvis Bay was proclaimed 7.
D. The AllegedMüitary Camp or Military Air Base in the Kaokoveld
II. Resp0nden.t denies that it maintains any military camp or air
base in or near the Kaokoveld 8, or anywhere else in the Territory of
South West Africa.
Hope on 7 Aug. 1884; videProc. Xo. 184 of r884(Capeof GoodHope). 7 Aug. 1881.
in Th8 Cape of Good Hope Gave~nmcniGoacllc.No. 6519 (8 Aug. 1884). p.I.
' 1, p.182.
G.N. No. 636 i:S.A.)3 Oct. 1958, in Gov~rnmenlGazelle (S.A.),Vol. CXCIV,
No. 6123 (3 Oct. 1958). p.22.
' Sec. I of the Act. in The Lowr of Soulh W~rtAfrico 1915-rgaz. p. 20.
' Proc. No. 145 of ~gzz (S.A.), 15 Sep. igzzin The Lnwr ofSoulh Wcsl Africa
19x5-T~Z, p. 56.
' Pmc. No. 30 of 1922 (S.W.A.), 2 Oct. I~ZZ, in Th8 Lnws O/South W~st Africa
1915-1922, p. 860.
P.M.C., Min.. III. p. 325 (Annex 13).
' Proc. No. 43 of 1958 (S.W.A.), zi July 1958.in The Loiris oSoulh West Africo
1958. vol. XXSVII. p. 203.
Vide Applicants' allegation in 1, 182. COUNTER-MEMORIAL OF SOUTH AERICA 59
12. In the Kaokoveld, at Ohopoho, there is a landing strip, created
during the Second World War. No personnel or aircraft are retained
there. It is one of a few landing strips at various places in South West
Africa which are used by the South West African Administration for
administrative purposes and only intermittently by aircraft of the South
African Air Force.
Apart from the convenience, in this large Territory, of air travel
for administrative purposes, Respondent also bears a responsibility for
the defence of the Territory against extemal aggression, as well as for
the maintenance of order within the Territory. lt has, in addition, the
responsibility of undertaking rescue operations in the event of civilian
aircraft crashing orgetting lost over the area, and for rescue work along
the inaccessible sea Coast, commonly known as theWSkeleton Coast",
in the event of shipwrecks.
These various responsibilities make it imperative that Respondent
should maintain landing strips for intermittent and occasional use at
various places in the Territory. No defence personnel are stationed at
any of these landing strips. They are natural surface strips, which have
simply been cleared of vegetation and other obstructions. Maintenance
of these strips is usually attended to either by a local farmer or by the
local civic authorities. 1701 the purpose of pre-planned flights, it is
practice to reconnoitre these strips in advance so as to determine their
serviceability or othenvise.
It is imverative that South African Air Force vilots should from time
to time bémade acquainted with the landing strfps within the Territory
so as to be able to perform the res~onsibiiities which rest upon Respond-
ent in respect of dèfence, internal'se~urit~ and rescue opeiations <nthe
Territory.
Kespondent submits that the landing facilities described above
clearly do not fall within the description "military base" as used in
Article 4 of the Mandate.
13. In alleging the existence of a "military camp" or "military air
base" in the Kaokoveld, Applicants rely on a statement in the South
African Parliament in 1960regarding a visit by the hlinister of Defence
to a "military camp during reconnaissance in the Kaokoveld" '.The
statement referred to a visit bythe said Minister tothe area of the Kaoko-
veld during June 1957. The purpose of the visit was ta carry out a
reconnaissance of this area, and it lasted approximately one week.
During that time the Minister and his party, which totalled nine persons,
were accommodated in tents specially erected for the purpose. Thecamp
staff totalled six versons while the aircrew who. bv means of two Dakota
trnnsprt aircrafi anci tiso hclicoptcrs. flewin thr.\linisttand his party
(as !vcll ns rhc nrcessnry cnnip c(liii11mei1tj.con5istcrl of 12 personj.
'l'liesemcn \rtcrï nlsi, ass,~rnmod~tcdin teiits. The aforr;t;itcd ~.ùiiivriied
the total "military camp", which was broken up again at the conciusion
of the visit. The camp equipment and tents were flown out by the same
aircraft upon the departure of the Minister and his party.
14. The allegation on 1,page 181 of the Applicants' Memorials, that :
' Videextract from the 1960Report ofthe Camrnittee on South West Africa
cited at1, p.r82.which extract in turn refers W. of S.A. Pnvl. Dcb.Housa of
Asrrmbly,Vol. ro3(1960)C .ol.577.60 SOUTH WEST AFRICA
"The Cominittee on South West Africa has, however noted in-
creased military activity in the Temtory, including the sta ing of
aerial manenvers [sic], described as a large-scale exercise% y the
Union Department of Defence, in the Eastern Caprivi Zipfel
durinf- Au..t ~.....
is iiot claimed 0). Applicants to be proof o;contravention of Article 4
of the Xtandate, and it cxnnot bc noclxi~iied.The allegation is thcreforc
irrclevdnt. but Kaspondent neverthelc.ss \vilbriefly furnish the facts of
the incident to wliich it appears to relate.
During August 1959 aerial manoeuvres were staged in the Eastern
Caprivi Zipfel.These manoeuvres were attended by the then Minister of
Defence and the Secretary and Deputy-Secretary for Defence, in their
officia1capacities. A total 12 Harvard aircraft participated, consisting
of two flights of six aircraft each. Only one flight participated at any
given time, the hst flight being replaced by the second at the end of the
fust week. The exercise was arranged, in the first instance, to comply
with a request received from the Department of Bantu Administration
Caprivi Zipfel, and the possible eradication thereof by aerial spraying.
The said Department required a preliminary survey of what tsetse fly
eradication from the air in the Caprivi Zipfel would involve, and an
indication of the extent of bush-clearing that would have to be under-
taken beforespraying could commence, and of the measure in which the
South African Air Force could assist. For this purpose it was necessary
to conduct a proper reconnaissance of the area from the air. The recon-
naissance at the same time alsoserved other purposes, namely to investi-
-atethe feasibilitv of aerial border ~atrolwork. and to exercise the Dilots
conccmed in loir.-le\.clria\.ig:itioii, 'iignsls, coiiirnuriications and sêarcti.
as well as in re-cuc and sur\~ival opér;itiniiiiithickly v~>gdt;itedand
larcclv uiiiiiliübited biiih coiiiitrv.\vil1hraLLlrent. the scone of the
ex&c;ses were insignificant from2 military point of vie&.
15. From the aforegoing it is clear that there are no military bases
in South West Africa. A full explanation of the facts was given to the
Fourth Cornmittee of the United Nations Organization during October
1959 '. Uoth Applicants were represented in this Committee, but have
apparently not taken note of the facts brought to the attention of the
Committee. These facts were later substantiated when M. Carpio and
Dr. Martinez de .4lva, respectively Chairman and Vice-Chainnan of the
Special Committee for South West Africa, visited the Temtory during
1962. They were given full opportunities of investigation, and were
specifically requested to investigate allegations of militarization in the
veld, Ovamboland and (in the case of Dr. Martinez de Alva) the Caprivi
Zipfel-in other words, al1 the places mentioned by the Applicants in
their allegationsregarding militarization, except Swakopmund. At the
end of their visit. in a statement issued by Respondent's Prime Minister
and Minister of Foreign Affairsand the Chairman and Vice-Chairman of
the Special Comniittee, it was stated that:
"... in the places visited they had fonnd no evidence and heard no
' C.A..O.R.,Fo~irfea»lhSers., Fourlh Comm., 900th Meeti8 Oct.1959.pp.
86-87, COUNTER-MEMORIAL OF SOUTH AFRICA 61
allegations . . that there were signs of miiitarization in the terri-
tory '."
In a footnote to the statement it was said:
"The Chairman and Vice-Chairman were inforrnedby the South
African authorities and noted the existence of a nine-man military
administrativeheadquarters in Windhoek. There is alsoa unit of the
citizens force .. .which undergoestraining for two weeksper annum
...with 17officersand 206 other ranks '."
lollorvinvisil oUNeoRcprcrcntntivcs to South Wcrl Africp.cI. on Pretoria lolks CHAPTER III
CONCLUSION
I. Respondent submits that the legal conclusions of the Applicants
are based not only on incorrect facts (as indicated in Chapter 11 above)
but also on a misconstruction of the legal position (as dealt with in
Chapter 1 above).
z. Regarding the Iiegiment Windhoek, Applicants argue that
armoureù corps "are iiot normally used for police protection or iriternal
security purposes" '.They further argue that the fact that the Regiment
forms "part of a conventional military organization also indicates that
its purpose is not "police protectioii or interna1 security"'.
This argument fails to take account of the fact that neither the
Covenant of the I.eague of Nations nor Article 4 of the Mandate restricts
military training of persons other than Natives, and that even in the
case of Natives. militarv trainine -. vermitted not onlv for volice pur-
po.<es.but also for the 'ojt important purpose. the local defcnir; uf tlie
'l'errirory. The Rcgiiiieiit \\'in<llic~serves for lhe militnr!. tr:tiiiing of
l~~ur~,r~c.noril\.. ;\s rticrr:is no rriilirnrv tr:~ofSnti\,~j. ~JICI)UTDOjc>S
for ;hich the'members of the ~e~iment are-traincd are, foi piesent
purposes, irrelevant. Rut eveu ifthe qualification oftraining for "purposes
then it isclear thatthe Regiment serves 'ust those purposes. Furthermore,le,
the training facilities and equipment O/ the Regiment are the ordinary
facilities and equipment necessary for military training, and do not fall
within thedescription "military base" asused in Article 4 of the Mandate2.
lias slioivn :ibo\,' that the landing grouiid :ippnrently rrfernr~lpuiIOzisiii
f;ii.t not sitii;ited \r.ithiiiterritorialboiiiidaries of Suuth \C'estAfrica.
and ~p~licants' further avekints in that regard therefore fail away.
4. Regarding the alleged military campor air base in the Kaokoveld,
mainly for administrative purposes. There are no military personnelis used
stationed at the said landing strip nor are there any military facilities,
although military aircraft have at times made use of the strip for purposes
of military training, local defence, internal police and rescue operations,
which use is in no way prohibited by the Covenant or the Mandate. The
landing facility does not fall within the description "military base" as
used in Article 4 of the Mandate.
submits that it has at no time violated the terms of Articlendent 4 of the
Mandate, and that military measures taken by Respondent have at al1
times conformed to both the letter and the spirit of the Covenant ofthe
League of Natioris and Article 4 of the Mandate.
' Vide Chap. II, paras6-8, supra.
Ibid. paras.g-IO.
' Ibid., paras11-13. CHAPTER IV
SUBMISSION
For the reasons hereinbefore advanced, supplemented as may be
necessary in later stages of these proceedings, Respondent,as faras
this portion of the Counter-Mernorial is concerned, prays and requests
that Applicants' Submission6 be dismissed. Annex A
~AKAGRAPHS 61 TO 66OF THE "REPORTPRESENTED BYTHE GOVERNMENT
OF THE UNION OP SOUTHAFRICA TO THE COUNCIL OF THE LEAGUE OF
NATIONS CONCERKING THE ADMINISTRATIO OF SOUTH ~~'ESTAFRIC FOR
THE YEAR1929" (U.G.23-1930, PI'10-11)
61. No military forces are maintained forthe defeiiceof the Territory,
but the Burgher Force Proclamation, No. 19 of 1927, imposes iipon
every able-bodied male European resident of the hlandated Territory
who is a natural born or naturalized British subject and who has com-
pleted his twentieth but iiot his fifty-sixtli year the liability to render
personal service ;xsa burgher in the defence of the Territory and the
protection oflife and property therein and to undergo such military
training as inay be prescribed or directed by the Administrator.
62. The Force is divided into two classes, "A" and "B". "A" class
includes every person who has completed his twentieth and not his
forty-first year, an"13" class every person who has completed his
forty-first and not his fifty-sixth year.
63. The numbr:r of persons registered as being liable for service under
the Proclamation on 31 December last was 6,259.
64. The command and control of the force is vesteiiia Chief Com-
mandant appointed by the Administrator.
6j. For purpoljes of organization the Territory is divided into five
military areas. The burghers residing in each area are formed into
commandos accordiiig to the niilitary strength of the area. Separate
units are establiljhed, consisting of classes "A" and "B", the former
being known as active aiid the latter as resenre commandos.
66. While the Administrator has wwer to cal1UD the whole or anv
part of the force for militaryaining, this for varihus reasons, mainiy
financial, has no1 hitherto been done. The policy of the Administration
has been to encourage rifle practice, and to thii end rifle ranges have
been provided in. al1 parts of the Territory and burghers are supplied
with ammunition for practice at cost price. Annual efficiency shoots are
held and for instmction in marksmanship a free issue not exceeding
50 cartridges is made to each burgher. Every burgher must qualify in
marksmanship. Annex B
1,the undersigned, Gert Hendrik Olivier, hereby declare on oath that:
I. In my capacity as Registrar of Deeds, South West Africa, 1
have the custody and control of al1the records in the Deeds Office.
2. According to the said records the farm Rooikop No. 19,
measuring six hundred and twenty-two (622)hectares. onethousand
one hundred and eighty-six (1,186)square metres, is situate withiu
the Territory of Walvis Bay. The Walvis Bay registration Division is
"F". The said faqn has always been situate in the area known as the
port and settlement of Walvis Bay and did not form part of the
Territory of German South West Africa which later came to be held
under Mandate by the Union of South Africa.
Windhoek, this 30th day of October, 1963.
(Sgd.) G. H. OLIVIER
Deponeiit
The Deponent has acknowledged that he knows and understands the
contents of this affidavit.
Sworn and signed before me. Johannes Hendricus Krige, Additional
Xlagistrate of Windhoek, Soutli West Africa. by Gert Hendrik Olivier
1 have satisfied myself.Deeds, South West Afric;~,aiid of whose identity
Windhoek, this 30th day of October, 1963.
(Sgd.) J. H. KRIGE
Additional hlagistrate of Windhoek
Commissioner of Oaths
1, the undersigned, Char1François Marais, Secretary for South West
Africa, do hereby certify that Johannes Hendricus Krige whosesignature
appears on this document was at the time of siguing the Additional
hiagistrate of \Vindhoek and ex officioCommissioner of Oaths and that
ta ail Acts. Instmments. Documents and Writings subscnbed by him in
that capacity, full faith and credence are given in the Territory of South
West Africa, in Court and thereout.
Given undw my hand and the seal of my Administration at Windhoek
on this the 1st day of November, 1963.
(Sgd.) C. F. MARAIS Annex C
1,the undersigried, Esmond Errol Smith, hereby declare oii oath that:
I. In my c;ipacity as Surveyor-General, South \Vat Africa,1have
Office.tody and control of al1the records in the Survevor-General's
z. The fann Kooikop No. rg is situate in the Temtory of Walvis
Bay, Registration Division "Y.
3. Registration Division "F" is the Walvis Bay registration
Division.
Windhoek this 30th day of October, 1963. '
(Sgd.) E. E. SMITH
Deponent
The Deponent has acknowledged that he knows and understands the
contents of this afidavit.
Swom and signed before me, Johannes Hendricus Krige, Additional
Magistrate of Windhoek, Çouth West Africa, by Esmond Errol Smith
who is the Surveyor-General of South West Africa and of whose identity
1 have satisfied myself.
Windhoek this 30th day of October, 1q-1-
(Sgd.) J. H. KRIGE
Additional Magistrate of Windhoek
Commissioner of Oaths
1, the undersigned, Char1 Fraiiçois Marais. Secretary for South West
Africa, doKerebycertify that Johannes Heudricus Krige whose signature
appears on this ~locument was at the time of signing the Additional
lllagistrate of Windhoek and ex officioCommissioner of Oaths and that
to al1Acts, Instniments, Documents and Writings subscribed by him in
that capacity, full faith and credence are given in the Territory of South
West Africa, in Court and thereout.
Given under my hand and the seal of my Administration at Windhoek
on this the 1st day of November. 1963.
(Sgd.)C. F. MARAIS SECTIONC
ALLEGEDVIOLATIONS BY RESPONDENTOF ARTICLEz (1)
OFTHEMANDATEAND ARTICLEzz OFTHECOVENANT
CHAPTER 1
STATEMENT OFTHELAW
A. Introductory
I. In their Submission 5 Applicants request the Court to declare that:
"the Union, by word and by action, in the respect set forth in
Chapter VI11 of this Memorial, has treated the Territory in a man-
ner inconsistent with the internatiorial status of the Temtory, and
has tliereby impeded opportnnities for self-determination by the in-
habitants of the Territory; that such treatment is in violation of the
Union's obligations as stated in the first paragraph of Article z of
thc Mandate and Article 22 of the Coveiiant; that the Union hasthe
duty forthwith to cease the actions suinmarised in Section C of
Chapter VI11herein, and to refrain froin similar actions in the future;
aiid that the Union has the duty to accord full faith and respect to
the international status of the Territory; '".
2. Applicants' contentions regarding Respondent's obligations in
respect of the matters referred to in the aforegoing submission appear
from the following stages in their reasoiiing in Chapter VITI of the
Memorials 2 namely :
(a) Unilaterial annexation or iiicorporatioii of the maoàüted territory is:
(i) iwcottsistentwith "a basic l..al.~remiseof the mandate svstem".
iinder !rflii;:i"dijtiiict iritcrii;itioiinl statu;'' \v:is :iccurded tu
rlic Terrir(~ry, ;ii;iduty ;i;suiiicd by ltwl~ondeiit "ta giiiilc
Itlic 'li:rritor~l ton i>ont\ihich tlic iiiIi:iliit~iitstlit?reof\r.otilcl
become comi>étentio determine their own future status" and
(ii) refiugnantta Articlez of the Mandate which is to be construed
as imposing on Respondent a duty, inter alia, to "provide for
the political advancement oftheinhabitants ofthe'rerritory.. . ".
(b) 011 tlie p:irof l<&pon<lenttlivrt: is :iissrdinglyn "dut). to refrain
froin unilatcral ;iniicxaiion". 2nd a "diitv to :i<lvancctlir politic:il
niaturit!. of the l'erritor\f's inh.il>itanr; so tl, , the\, mnv ulrim:itel\,
exercise self-determination . ..".
(c) The provision in the first paragraph of Article z of the Mandate.
whicli confers on Res~ondent "full Dower of administration and
legislation over the te&itory ... as aiintegral portion of the Union
of South Africa", must be constmed in the light of the aforestated
duties.
' Vide1, p. 198.
Ibid..pp. 184-186: 68 SOUTH WEST AFRICA
/ci) So constmed, Article 2 of the Mandate does not entitle Respondent
' ..IO rake uni1:iter;il actioii reg:udinç the 'ferritory if such actioil
mo~iiits to de facto :tnnes:ttioii or incor~iur:itiori;\ coritrary iiitcr-
i~rctntiori\voiild'crase bot11 the iiitcrn:iti~ii:~lstatuof th,: Territor\,
and [Respontleiit's] duties as Mandatory".
(e) "Incorporatii~n or annexatioii can take place through siiiglc poli-
tical acts, such as a proclamation, or through gradua1 and erosive
processes". With regard to the latter "motive is an importaiit indi-
cator since it sheds Lightupoii the significaiiceof individual actions,
which might othemise seem ambiguous".
3. On the basij of their Statement of Law as outlined iii the afore-
going paragraph, Applicants. by reference to certain statements set forth
in section B.I ol Chapter VI11 of the Memorials and certain acts of
Respondent, recoiinted in section B.2 of the said Chapter, charge Respon-
dent with a violation of its alleged duties asset forth in paragraph 2 (b),
supran ,amely to "refrain frorn unilateral aiinexation" and to "advance
the political maturity of the Territory's inhabitants so that they may
ultimately exerci:jeself-determination".
4. Although Respondent contends that the Maiidate has lapsed ', a
contention which, if upheld, will obviate an enquiry into the charges
made by Applicants in Chapter VI11 of their Memorials, Kespondent
, rievertheless will in this and the following Chapters deal with Appli-
cants' charges ori the assumption, for purposes of argument, that the
Mandate is still in force. It will be coiivenient to deal first with liespon-
dent's duties in i:he respect alleged by Applicants, and thereafter with
Applicants' statement relative to the liincl of actions which would
constitute a breach of such duties.
B. TheA1lt:ged"Duty to Refrain from Unilateral Annexation"
5. Kespondent admits that it \vas a basic principle of the i~iidate
system that the tcrritories placed thereunder would eacli,,during the
existence of the particular mandate, have a distinct iiiternatioiial status
or identity.
On the assumption stated in paragraph 4 above, the position is
accordingly accepted that in law Respondent is not entitled to annex
or incorporate South West Africa unilaterally, or to commit an act
which is inconsistent with the separate international status of the
Temtory.
6. ~tthe samt:time, however, although it has a separate international
status, South West Africa is one of the territories which, in tems of
Article 22 of the Covenant. could ". . . be best administered under the
laws of the hlandatory as integral portions of its territory . .."subject to
certain safeguar<lsin the iiiterests of the indigenous population Z. And
it is a territory in respect of which Respondent has, in terms of the
Mandate, ". . . full power of administration aiid legislation . .. as an
fptegral portion of the Union of South Africa .. ." and authority to
. .. apply the laws of the Union of South Africa to the territory, sub-
ject to such local modifications as the circumstances may require" 3.
'
Vide Book 11,Chap. V. of thisCounter-Mernorial.
' Art.22 (6) of the Covenant.
' Art.z of the Mandate. COUNTER-MEMORIAL OF SOUTH AFRICA 69
7. The only possible way of reconciling the existence of a separate
international status for the Temtory with the provisions of the Cove-
nant and the Mandate cited above, is to accept that whilst the Territory
de jzirein international law enjoys a separate identity, the de facto
relationship between the mandated territory and the Mandatory's own
territory in the administrative and legislative fields may be one of close
integration.
S. The position of South West Africa in international law is therefore
that of a territory having a separate status, but at the same time a
territory permitted to be closely integrated in the administrative and
legislative spheres with another territory, namely that of the Manda-
t--, 1.
This position in law must always be borne in mind when one con-
siders the nature of Resoondent's oowers and duties in auestion.
Asf:ir as the srntiishf the ~e;ritor~ is conccriir.d, iiespondcnt must
rcîpt-ct the re<liiircriientthait ijto Len sevilr,ite iiiternation:il stntus.
On the other hand, as far as the defacto @vernment of the Territory
is concerned, Respondent is authorized to perform al1acts covenng al1
exercise of the attributes of sovereignty thus vest in Respondent, and
the powers of Respondent in the fields of administration and legislation
are praclically as wide as that of a sovereign power in regard toits own
territory. The only lunitations which fetter or condition the internai
exercise of the powers of government and legislatioii are, iüstly, the
specific prohibitions contained in the Maiidate, and, secondly, the duty
to "promote to the utmost the material and moral well-being and the
social progress of the inhabitants of the territory ...". Subject to the
observaiice by Respondent of the said prohibitions and of its duty
towards the inhabitants, even complete integration of administration
and legislation would be permissible, without infringing the separate
internatioiial status of the Territory. A de fnctorelationship could thus
legitimately develop, which in most respects would be indistinguishable
from the defactoposition obtnining under annexation or incorporation.
g. Viewed in the light of the foregoing considerations, the obligation
to res~ect the se~arate international status of the Temtorv clearlv
cannoc menn an Gbligation to maintain an entirely separate +stem if
administration and legislation in respect of the Tenitory. Fnrthermore,
no inference can be drawn that the said obli~ation entails a dutv to
sever [lie I,oiids of :irlmiiiistr:ition :iiid 1cgisln;ion iiiter-territoas:illi2
rime goes Iby. 0ii ille contrnr!. the iritcrests of rlic Tenitory :ind of the
irihabitaiiri m:i\.:it i~nrticul;ir st:i~es lie best servïd-ni hni iiifact
been the case ;egarcfing South est Africa-by progressive steps of
closer association.
and administrativeisesacts, whether they do or do not involve closerres
integration of the Territory with the Republic of South Africa, capnot
per se amount to a violation of the duty to respect the international
Although bath the status of the Temitoas well as the form of government
permitted for it are determined by international law. the former has often been
seen asthe international law relationship of the Territory (i.e., its position vis-à-vis
the world), and the latter asits inter-territorial relationship (i.e., its position vis-à-vis
South Africa-in so far as its de facto administration is concerned).70 SOUTH WEST AFRICA
status of the Territory-or as Applicants put it, "to refrain from uni-
lateral annenation". The only possible basis for establishing a violation
in such respect would be to show that the actions in question amount
to an abuse of powers, which, in the present context, could only mean
that they are dir'zcted towards a purpose not authorized by the Man-
date. Thus Applicants indeed allege that the purpose of the actions on
which they rely was an unauthorized one, namely incorporation.
Briefly summasized, therefore, if the Mandate were still in existence,
the lepl position would be that Kespondent is not entitled ta take
action the purpo:ie of which is unilateral incorporationor annexation
-whether intended to be accomplished by a single act or piecemeal.
On the other hand, acts in the administration of the Territory, not
directed towards a purpose to annex the Territory, cannot be in con-
flict with the duty to refrain from unilateral annexation-even if such
acts bring about closer integration between the Territory and South
Africa.
C. The Alleged"l)uty to Advance the Political Maturity of the Territory's
Inhabitants so that they May ultimately Exercise Self-Determination"
II. Xowhere in the Covenant or in the mandate instrument u-as
specific provision made for an obligation in the above terms.
The Covenant. however. did provide in Article zz for the application
of "the principle that thewell-beingand development of (the inhabitants .
of mandated territories) form a sacred trust of civilization". And this
principle found icxpression in Article 2 of the Mandate, viz.: "The
Alandatory shall promote to the utmost the material and moral well-
being and the social progress of the inhabitants."
12. It is conceded that in the wide and general "principle" enunciated
in the Covenaiit, and expressed in the provisions of Article z of the
Mandate, there aras embraced the idea of political advancement of the
peoples of mandited territories. What the ultimate goal of such poli-
tical advancement would be in the case of R and C Mandates was no-
where stated. As a matter of inference, however, it can be conceded that
ultimate self-determination was probably envisaged as an ideal in that
regard-but the11only in a qualified sense of being something that
would be desirable to such extent and in such manner as might prove
to be practicable and equitable, as part and parce1of performance bythe
Mandatory of th(: discretionary function entrusted to it by Article 2 of
the Mandate. There is nothing tojustify an inference of any more definite
contemplation or intent regarding self-determination. Indeed, un-
certainty or lack of agreement on the question whether development ta
a stage of self-determination would prove possible in al1 cases is in al1
probability the eicplanation for the omission ta state anything express in
this regard in the case of B and C Mandates. Similar considerations
probably also explain why the authors of the mandate system refrained
from prescribing the method by which the peoples in question should be
advanced politic;ùly, or the stage of advancement which would be re-
quired for expression of self-detemination, or the procedure to be
followed therein.
13.It seems tlien that it was deliberately considered best to do noth-
ing more than to entnist the political advancement of the inhabitants COUNTER-MEMORIAL OF SOUTH AFRICA 71
of B and C Dlandated territories to the discretion of the different Man-
6'tory Powers as one of the objectives of the duty to promote the
material and moral well-being and the social progress" of such peoples.
The objective of political advancement is thus intenvoven with ail
the other facets of weli-being, and the manner of its promotion lies
in the discretionarv field. It was the Dlandatorv's intirnate knowledee
and experience in fhis field which, inter alia, moiivated the Gant of tKe
Mandate toit in the first instance 1.
14.An important aspect of the discretionary nature of the Manda-
tory's task in the respect under consideration, and of the lack of precise
prescription in that reeard in the mandate system, is that the manner
of achievement of the ideal of self-determination may have to differ as
between various peoples and territories. Where a territory is "inhabited
by a homogeneous people, self-determination could appropriately take
the form of an act by or on behalf of al/theinhabitaarrtasnd with reference
tothe wholelerritory. But such a form could be whoUyinappropriate, and
could indeed defeat the whole object of self-determination, when applied
indiscriminately to a case like that of South West Africa, where the
inhabitants belong to separate and divergent population groups which
arein substantially different stagesof development. and wbich, to a large
extent, are separated from each other in portions of the Territory claimed
by individual groups as belonging to thernselves, e.g., Ovamboland, the
Okavango and the Eastern Caprivi. The very differentiation made in
themandatesystern between the casesof A, B.and CMandates 2,demon-
strates that the authon of the system contemplated and expected
different rates of development as between the various peoples to which
the system would apply, and different times at which they might attain
political maturity. It therefore seems not only permissible for, but also
incumbent upon, a Mandatory, in accordance with the basic premise of
the mandate system, to find appropriate methods whereby, in a case like
South West Africa, different population groups can as far as practicable
attain self-dctermination relative to themselves without thereby fms-
trating self-determination for others.
15. The practical implications of the above distinction have been
considered earlier in this Counter-Memorial. relative to the charges
against Respondent made by Applicants in Chapter Voftheu hfemorials,
and need not again be considered here. The distinction is, however,
to be borne in mind in order to preclude a wrong perspective upon the
Mandatory's duties relative to the ideal of self-determination.
16. Another matter to which attention should be drawn is that the
dutv to promote ~olitical advancement does not mean that such Dro-
mofion must neceisarily have as its objective the ultimate independince
of South West Africa.
Indeed the provisions of Article 22 (6)of the Covenant and Article 2
of the Mandate, read in the light of events before and at the drafting
of the Covenant, indicate that the ultimate destination of South West
Afnca was not foreseen as beina necessarilv inde~endence. As far as the
"comniiinities" mentioned in~zicle 22 (4)if tliz covennnt are concemed.
the goal of indcpci~dericc ii.:icle:trly st:tted. \s regards the "peoplej"
' Art.22 (2)ofthe Covenant.
' Art.22 (4). (5) an(6).respectively.72 SOUTH WEST AERICA
mentioned in Article 22 (5)of the Covenant, and the "territones" men-
tioned in Article 22 (6).nothing was expressly said on this point. What-
ever the situation might be in regard to the former (the peoples of the
so-called U Mandated Territories), there was in the case of the latter
(the so-called C Mandated Territories) nothing on which an inference
could fairlv be based that the ultimate result was intended to be neces-
sarily indépendence. It was clearly stated that such temtories could
best be administered "... under the laws of the Mandatory as integral
~ortions of its territorv. ." and the reasons for that vi~w a<~numercted
in :IrticI~22 (UJ...ver;bdjc11 on considerntions which. in respect of tli~.
tcrritorics to \i.lii:h the). ;ipplie<l,could I.irglxyexpet:ted to bc of ;i
ikrmanent 11aturt:-nnmei\. "the SDlrsene5iof their ooi)ulation. or tilcir
:mal1 size, or their remoténess fr& the centres of 2v;lization. or their
geographical contiguity to the temtory of the Mandatory .. ."
17. Furthemore, as has already been stated, the Mandate for South
West Africa specifically provided (as was the case in al1 C Mandates)
that Respondent would have fdi power of administrationand legislation
over the territory "as an integral portion of the Union of South Africa".
Once a territory is administered "as an integral portion" of the
hfandatory'sterritory, the tendency to closer integration would be auto-
matic. The scales would thus probably, in the course of time, be weighted
in favour of ultiiriate incorporation as the choice of the inhabitants.
That tliis natural tendency was foreseen, and that ultimate indepen-
dence was not necessarily envisaged for South West Africa, is clear
from the events at the drafting of the Corenant. In this respect Dttncan
Hall'says:
"The ultiniate union of [South West Africa] with the mandatory
would seem, President Wilson said, a 'natural union'. 'It was up to
the Union of South Africa to make it so attractive that South West
Africa would come into the Uiiion of their own free will', and, he
declared. 'if successful administration bv a mandatorv should lead
to uiiiori witli the inaridatory. lie would lie the last to ch>ject.'
'i'liisand similar passages shoivthat Presiderit \Vilsondid not t:ikr:
the ductriiinirc vicw tliat the 'natural end' of a mandat,: \vas inde-
pendence, silice what mattered was the 'tme wishes' of the people;
and these wishes, when they could be ascertained, 'might ...
perhaps lead them to desire their union with the mandatory power'.
From this followed logicaiiy the President's adoption of the idea of
the administration of 'C' mandates as an 'integral portion' of the
mandntory's own temtory. This wording was not something which
the draft of January 30 forced him to accept against his will. MI.
Lloyd George had thrown ont the idea on January 24, but the
President w;isto make it his own on the 27th-two days before the
draft text of Article 22 containing this provision was prepared by
General Smiits. If South Africa were the mandatory, the President
said on thatday, it would extend its laws to South-M'est Africa,and
'administer it asan annex to the Union so far as consistent with the
interests of the inhabitants''."
And Lloyd George, as Respondent has already indicated, is reported
to have said: . .
Hall. H. D.M,zndalm D.epcndenci~and Tvusleeship (1948). p123-124. COUNTER-MEMORIAL OF SOUTH AFRICA 73
"There is no doubt at aUthat South-West Africa will become an
integral part of the Federation of South Africa. It will be colonised
by people from South Africa '."
18. The basic principles of the Covenant and of the Mandate, it is
submitted, wvouldbe entirely satisfied if an dtimate merger such as
foreseen by the authors of the Covenant, were to take place.
There can accordingly be no validity in a charge that administrative
and legislative steps towards closer integration between South West
Africa and South Africa are in violation of the ~rinci~les of the Cove-
nant and the hlandate merely on the ground thkt suih steps may in-
fluence the inhabitants in their choice as to the future of the Territory-
that is if and when they attain political maturity.
19. Subject to the above considerationsz, it can be conceded that
Respondent's duties under Article 22 of the Covenant and the Mandate
included a duty to promote the political advancement of the inhabitants
of South West Africa towards possible self-determination, and that uni-
lateral incorporation during the existence ofthe hlandate could in a sense
be said to involve also a violation of Respondent'sduties in this respect.
In Respondent's submission, the saine qualifying considerations as
have been dealt with above apply also to the principles enunciated in
Article 73 of the Charter of the United Nations relative to the political
advancement of "peoples (who) have not attained a full measure of self-
government'' '-if that Article should be relevant nt al1 in an enquiry
as to Respondent's duties under the Mandate '.
Like the Covenant of the Leaye of Nations, the Charter envisaged
self-determination as an ideal for such peoples, without stating a con-
templation of the attainment thereof as a possibility in al1cases. And
like the Covenant, the Charter is silent as to the methods by which
political advancement shoiild be promoted, as well as to the stage of
development required for the espression of self-determination or the
procedure to be followed therein-al1 matters which by inference were
left to the discretion of the Powers responsible for the administration
ofthe territories to which Article 73of the Charter was intended to apply.
test can be applied to ascertain whether the duty to promote oppor-rate
tunities for progress towards possible self-determination has been
iriolated. The test, it is submitted, must bewhether a particular act com-
plained of, when viewed against ail the facets of well-being and devel-
opmWhenever an act is tested in order to ascertain whether it does or
does not frustrate the said objective, such act may appear to be posi-
tive, or neutral (in the sense that it neither promotes nor impedes pro-
gress) or negative (in the sense that it constitutes an impediment as far
as political advancement isconcerned). Inthis regard it should be pointed
ont, however, that a particular act, when seen in isolation, may seem to
involve some impediment to political advancement, but that. when
' Temperley. H. W. V.. A Hislory of lhcPeace ConfereptccofParis (~gzo-rgzq).
Vol TT1 r.7J.
That is, as stated in paras. 11-18, supra. . .
* VideRespondent's reply to Applicants' Statement ofLaw in Chapter Vbf the
hfemorials.74 SOUTH WEST AFRICA
viewed against the broad spectrum of ail lacets of well-being and pro-
gress-which is the proper test to be applied-it may indeed prove to be
intended, and in factto operate, for the advantage of the inhabitants of
the Territory.
21. Resfondent submits that the discretion in the formulation of
propef po cies directed towards the promotion of the well-being of the
inhabitsnts, including their political advancement, vests in Respondent.
This discretion is.a wide one, the exercise of which, in Respondent's
submission, is liniited only by the requirement that the discretionary
power must not be abused-w$ch in this case, for au practical pur-
poses. concems only the limitation that such power is not to be exer-
cised for a purpse not authorized bythe Mandate.
The principles applicable in a consideration of this aspect have been
fully dealt with ielsewherein this Counter-Memorial in answer to Ap-
plicants' legal submissions at the commencement of Chapter V of the
hfemorials, and nced not be repeated here.
As long as Respondent observes the duty not to take action the
purpose of which is unilateral incorporation or annexation ', and com-
plies with the obligation of promoting the political advancement,of
the inhabitants 2, a step towards closer administrative and legislative
inteeration of So.uth West Africa with South Africa. havina as its ob-
jectbrtter goveriiment of the Territor), ivould not in kir ~oiistitute a
violation of Kespondent's obligations under the Co\.cnant or tlic Mandate.
D. Applicants' Statement that "the Phrase 'Integral Part' Gives [Re-
spondent] no Licenceto Take Unilateral Action regarding the Territory,
if such Action Amounts to De Facto Annexation or Incorporation" '.
22. What precisely Applicants contend for by this statement is not
clear. In its wording the statement is not qualified with, respect to
purpse, motive or intent, and may accordingly be read as intended, to
apply not only to acts actuated by improper motives (Le., acts of which
the purpose is iricorporation or annexation), but also to acts not so
motivated but wliich have a particular effect. namely an effect of closer
integration between South Africa and South West Africa.
On areadingof the whole of Chapter VI11 of the Memonals, it would,
however, appear as if this passage was intended by Applicants to be read
subject to an implied consideration of motive, purpose or intent. Thus,
for example, Applicants Say:
(a) "Motive is ;in important indicator since it sheds light upon the
sienificance of individual actions. which mieht ot-envise seem
a&biguous 4."
(6) "... its [Re!;pondent's] purpose is incorporation" and "The intent
plains, [its] action5". been given practical effect by, and ex-
(c) "[Respndent's] plicy ... is ... part of a plan to incorporate the
Temtorv ~oliticallv 6."
, *
As to which seeparas. 5-ro, rupvn
Ibid., paras. r1.19.
1.p. 185.
*Ibid., p. 186.
' Ibid., p193. COUNTER-MEMORIAL OF SOUTH AFRICA 75
(d) "The above two actions [of Respondent] are to be regarded as
elements of the plan toincorporate theTemitory into theUnion .. .'"
(e) ". .. read in the light of the Union's avowed intent . ..Z".
23. Respondent therefore takes Applicants' statement to mean that
an act, the purpose of which is annexation or incorporation-whether
intended to be accom~lished in a single act or ~iece-meal-constitutes
a breach both of the duty to refrain irom anneiation or incorporation,
and of the duty to promote the -ro-ress of the inhabitants towards
~ossibleself-determination.
If this is what Applicants intend to convey in their Statement of the
Law, then Respondent has no comment thereon Saveto Say that:
(a) motive would not, as Applicants suggest, be only "an important
indicator (shedding) light upon the significance of individual ac-
tions"-it would be the very criterion, and the only criterion, for
determining whether a particular action is in violation of Respon-
dent's obligations under the Mandate; and
(b) in considering the propriety of any act on the part of Respondent,
due regard must be had to powers conferred on Respondent as
Mandatory, as dealt with in paragraphs 6 to IO, supra, and to the
considerations stated above, particularly in paragraphs 12 to 18,as
bearing upon the concept of self-determination in the case of a C
Mandated Territory like South West Africa.
24. If, however, Appiicants' statement in question was not intended
to be read subject to an implied consideration of purpose, motive or
intent, then Respondent submits that in the light of what has been said
in paragraphs 5 to 21 above, the statement advances a proposition
which is wholly untenable in law.
25. In the following Chapters Respondent will deal with Applicants'
Statement of Facts in the light of the legal contentions set forth by
Respondent in tliis Chapter.
'Ibid.. p. 195. CHAPTER II
RELEVANT HISTORICALBACKGROUND
A. Generally As to the Facts Relied upon by Applicants
. Applicants commence their Statement of Facts by refening to
Chapter II of the Mernorials as setting forth-
"... the long record of the Union's continuous assertions that the
Mandate has lapsed, that the Union has no duties thereunder, and
that the Union alone has a legal interest in the Territory'".
South Africand Pkrliament over the years 1956andement1957dethat Respon-
dent "claims a 1e:al right to incorporate the Territory politically". that
Respondent's "purpose is incorporation", and that Respondent "in
furtheranceof this purpose, avowedly treats as nuIl and void the obli-
~ations stated in Article zz of the Covenant and the Mandate which
Prohibit uni1ater:il annexation and contemplate progress towards self-
determination" 2.
ADDlicantsalleee further that Res~ondent's intent to incornorate the
TerAt'ory"has b&n given practical iffect by" certain acts de& with in
section B.2 of Chapter VI11 of the Memorials, which acts are said to
be "inconsistent with the international status O/the TerritorZ.
2. Although Respondent admits that it his since, and by reason of,
the dissolution of tlic League of Nations, contended that the Mandate
had lapsed and that Respondent has the power to incorporate South
Wcst Africa (a matter dealt with more fully in Cliapter III, paragraph
4, hereinafter), it denies that the other concliisions which Applicants
draw from the statements and acts in question are justified. In particu-
lar Respondent denies that such statements or acts evidence an intention
served to give practical cffects to such an intention, or that they were
or are inconsistent with the international status of the Territory. Respon-
dent also denies that, in furtherance of a purpose ofunilateralannexation,
it treats as nd and void the obligations stated in Articlezz of the Cove-
nant and in Article z of the Mandate.
3. In ascertaining Respondent's motives relative to the status of
South West Afnca and its relationship with South Africa, as well as
its attitude towards the inhabitants of the Territory, due regard should
be had to Respondent's conduct and declared intentions regarding the
Temtory and its peoples both during the lifetime of the League of
Nations and thereafter.
A general account of relevant historical facts since the inception of
the Mandate ha:; been given in Book II, Chapter II, of this Counter-
Memorial. In thf: following paragraphs of this Chapter a brief review is
given of the more salient facts concerning Respondent's conduct and
' 1. p. 186.
Ibid., p. 189 COUNTER-MEMORIAL OF SOUTH AERICA
77.
intentions as declared from time to time in the particular regards afore-
stated.
B. The League of Nations Period
4. The close relationship between South Africa aiid the mandated
territory, which had indeed been contemplated by the authors of the
Covenaiit as the probable and natural association between the two
countries ' became a reality from the inception of the Mandate, and a
progressive desire for further integration was evidenced over the years.
As early as September 1920 General Smuts envisagcd the following
constitutional developments in South West Africa:
"Çouth-West Africa would always be a separate unit as a large
country. but it was impossible to riin it as a province at the present
the, though later, no doubt, it would become one. with a Provincial
Council and members iii the House of Assembly, but first other
stages would have to be passed through. The first would probably
be an Advisory Councilto be appointed to advise the Administrator.
Not long after that, tlie Council would become an elected Council,
and in due course there would be a full Parliamentarysystem Z."
And a Commission appointed by Respondent in 1920 to enquire into
the question of the future form of ~overnme-t in the Territorv re-
commended, inter alia, as follows:
". . . the form of governmeiit . ..should be succïeded ... by the
form ofgovernment nt present prev;iiling in the four Provinces of the
Uriion. giving tlie population full representatioii iiia Provincial
Couiicil and iiithe Union Parliament. \nien that stage has been
reached. the Protectorate will be administered as a fifth Province of
the Union, \vit11:Isysteliiof fio\.erIiiiiclit ii11iIIIpriiiciple IO th:lt
of the otlier parts of 111~Clii<>li tiitsubi~it ;tl\\.,~yi the coiiditions
of the Mandàte 3."
j. Iii 1923 Geiieral Siiiiits once more set out his views as to the con-
stitutional future of the 'l'erritory. In a letter to the Chairman of the
Permanen6'Mandates Commission he said, iiitevalia:
When the question of citizenship has been solved, we propose to
constitute a IeSslative council forthe temtorv to which. in addition
to a number 'of Government nominees, thé white voters of the
territory will be able to elect a larger number of popular represen-
tatives. They will also in al1probability be given the opportunity to
send some representatives to the Union Parliament. This will,
however, be without prejudice to the interests of the native popula-
tion. \\.hich will continue to be a charge of the Union Government
as the maiidatory Po\ver. In al1 other respects the terms of the
mandate will be safeguarded and respected in the legislation which
will be introduced. and the Union Govemment will continue to
<lischarge its rrspnnsihiliti~s in ;iccordniicewith the m:~iidate.'l'hcse
;irr:ingements for the fiitiirc government of the territory witliolit
P.M.C.. Min.. II,ap.92 (Annex 6)
' W.C. 24-1921, para. 7, p. 4.78 SOUTH WEST AFRICA
prejudice to the provisions of tlie rnaiidate\vill1am sure, commend
thernjelves to the Permanent \land;ites Commission 1."
6. Due to political currents in the Temtory, the close relationship
between it and South Africa was em~hasized on sevcral occasions. and
the desirc of tlie m;ijority of thc 13u;opean inli~11~it;iriftjur closer nsso-
ci:irion. ivliicli w:is always present, 11cc;irneiiiorc insistciit from rinic
to tinic. Oiie of tlie strung riiotivaiiiig liciori tliidesiri.\V:ISreactioii
again51 esl>rcsic<laspir:itioiis01 the Gcrrn:in section of the comniuiiity
tu sec tlie 'i'rrriyoreturned IO Germai1mle >.
7. The Permarient filandateç Commission also, oii occasion, dis-
cussed the agitation for closer association, although no formal proposal
for incorporation of South West Africa as a fifth province of the Union,
or otherwise, was ever made 2.
Durine the Sixth Session of the Commission J the auestion was dis-
cussed with reference to certain statements and articles which had
appeared in the Press. The South African representative, htr. Smit, said,
;niear lia:
"When South-West Africa had a responsible Government, tliat
Government might probably be invited to join the Union. Under
the Union Act, South-West Africa would thcn become a province of
the South Afiican L'niuii.but it \voiil<lremaiii. forcertaiii i>urposes.a
distinct eiitit)'."
And M,'appard Csrecorded as having said that :
. . . in such an event it would be necessary to respect two essential
pnnciples. The first was that the territory must continue to be
administered on behalf of the League of Nations. The second
principle was.that its administration must be whollv disinterested.
;vliicti'mcant tliat riot:x(t:ssof revenue from rtie in:ii;dated territory
should hr us'd evcept for tlie benefit of tlic territor!. II siemrd Io
him lkal 1hr1rcouid be no obieclioti10 incorboralio~ibru;ided these
principles weresafeguarded 4."(Italics added:)
After others had participated in the discussioii M. van Rees pointed
out that:
"... under Article zzof the Covenant and accordiiig to the terms
ofthe Cmandates, it was provided that the Mandatory should have
full power of administration and legislation over the territory asan
integral portion of the territory of the hlandntory. There could
accordinglyb*:no objection toincorporationif il weremerely a qtreslion
of adniinistratiueincorporation,subject 10 thespecial obligationsof the
mandatory Power.If, however, incorporation would imply a change
in the ~olitical and international status of Soutli-West Africa
without 'tliistcrritory Ii:i\,ingyer reachcd;,sufficiently Iiigh;t;~tof
dc\~elopriicii10 allow the !dandatory ru \i.itli<lr;i\i..sucli iiicorpor-
ation u.oul(l nmount. witliout <louht. to nniiesation. wliich woiild
be an obvious infraction of the mandatory syst~m?"(ltalics
added.)
' P.M.C.. Min.. XII ,.zr5 (Annex 1).
Vide Book II, <:hap. IIpara.26.ofthis Counter-l\lemorial
' P.M.C.et,in.,J'IIp,.59.
' Ibid., pp.59-60. COUNTER-MEMORIAL OF SOUTH AERICA 79
8. During the Ninth Session ofthe Permanent Mandates Commission 1,
pondent's Government, was brought to the notice of the Commission.s-
General Smutshad said, intea rlia:
"1 should tiavc preferretl thc t\~oinuntri& inore closely liriked up
nt rhis stage. \Vlien 1urge thiit m:iy he s;iitl that 1am working in
am not.o1 do not think itisnecessary for us to annex south-West toIbut
the Union. The mandate ...gives the Union such complete power
of sovereignty, not only administrative, but legislative, that we
need not ask for anything more."
And:
"When the Coveriant of the League of Xations and, subsequently,
the Mandate gave to us the right to administer that country as an
integral portion of the Union, everything was given to us. . . .We
therefore have the power to govern South-West Africa actually as
an integral portion of the Union. Under these circumstances 1
maintain-and 1 have always maiiitained-that it wiu never be
always continue to fulfil the conditions imposed on us by the man-
date, and we can always render annual reports to the League of
Nations in respect of the mandate 2."
In the course of discussion on General Smuts' statement. M. Rappard
is recorded as having said that:
"General Smuts was perfectly free to state that an integral art
of the territory of South Africa was administered in the name OPthe
League of Nations, although . . .it would appear more logical to
Say that it was administered in the name of the League of Nations
as if it formed anintegral part of the territory [South Africa'."
g. In 1934 the then prime ~Inister of South ~fiica, General Hertzog.
made the followine-statement reea-dine -esoonAent's attitude towards
the Mandate:
"The Governmeiit has not the least intention in relation to the
mandate for South-West Africa to act othenvise than faithfully to
carry out its duties as Mandatory and to continue to perform them
until such time as the object which was contemplated when the
mandate was handed over to us has been attained. and I hope we
shall accept that as a fixed policy and decision, not only of the
present Govemment, but of any Government that succeeds it '."
IO. During 1934the Legislative Assembly of South West Africa
adopted a resolution which urged, inter alia, that South West Africa
". .. be administered as a fifth province of the Union, subject to the
provisions of the... Mandate", and that the Territory be represented in
the South African Parliament 5.
8to 25June 1926.
P.M.C.. Min..IX, p.33.Vide alsoLi.ofS.A., Pnrl. Deb., Houof Arrcmbly.
Vol. 5 (r925).OIS. 930-593'.
' P.M.C., Min.,1X.p.34.
' As quoted in P.M.C.. Min.. XXVI. p.51.
This resolutiwas paksed on22 May 1934,but was later considered invalid80 . SOUTH WEST AFRlCA
In the Twenty-Sixth Session of the Permaneiit Mandates Commission,
during 1934, the said resolution \vas discussed. There were divergent
reactions from various Members ofthe Commission asto the propriety of
administering th<:Territory as a fifth province of the Union with re-
presentation in the Union Parliament, the majority indicating in the
course of discussion that they were individually inclined to regard such
an arrangement is incompatible with the Mandate1. The Commission's
resolution, howerer, \vas to-
".. .[reserve] its opinion as to the compatibility of the course pro-
posed by the Legislative Assembly with the mandate systcm until
it had been informed in due course of the point of view adopted by
the mandatory Government in this connection and been acquainted
with al1the factors of the problem Z".
II. Kespondent's reaction to the aforementioned resolution of the
Legislative Assernbly was that it would take no action without con-
sulting with the League of Nations. Shc matter was brought specifically
to the attention iothe Permanent Mandates Commission in 1935, when
the South African representative infonned the Commission of the
appointment of 1:heSouth West Africa Commission (known informally
as the Constitution Commission) He esplained the terms of reference
of the Commissionas wellas the reasons for its appointment, and assured
the Mandates Commission that:
". . . the Union Government Iiad acted aiid would continue,to nct
in a spirit of complete loyalty to\vards the Mandates Commission. In
any case there mas absolutely no intention of presenting the Com-
mission with a /ail accosipli.
Xothiiig could be further froin the Union Go\~eriiinent'sthou,ghts
that aiiy intention to tnke aiiy action that would stultify its position
iii the eyes(ofthe Mandates Cominission or of the Members of the
Leagiie of Nations, of which the Union Government \vas a staunch
Member. He could assure the Mandates Commission that the Union
Government would never take an) action in tliis respect until i! +d
first commiinicated its intentions to the Mandates Commission
itself'."
In its report to the 1-eague Council tlie Pernianent Mandates Com-
mission-
". . . noted with satisfaction the statement by the accredited re-
presentative that the mandatory Power will not take any action in
this respect until it has first communicated its intentions to the
League ofNations "'.
12. In its report, tlie South West Africa Commission expressed the
opinion that there was.no legal objection to the administration of South
West Africa as a.fifth province of the Union, subject to tlie termsofthe
Mandate. Copiej of the Commission's report were snbmitted to the
an constitutional grounds. A similar resolution was thereafter again proposed and
adopted on 29 Nov. rg34. VideU.G. 26-,935, pp. 5, 7.
; 'Ibid., p. 166., XXVI. pp.50-52,62-64. 163-166.
Vide Book II, Chap. II. paraz7.of this Counter-Memorial.
'P.M.C. , in., XXVII. p. 160.
Ioid.. p229 (Annex 36). COUNTER-MEMORIAL OF SOUTH AFRICA 81
Leagiieof Sz~tions,aiid in the iii~iiualreport for the year 1936K~ipr~ii~leiit
iommiinicnt~.d to the Lc3mc ita viz\vs oii the Comrnijjion's nndincs. -
Respondeiit stated, inter da:
"Although the Union Governmeiit is of the opinion tliat to admi-
nister the Mandated Territory as a tifth Proviiice of the Union,
subject to the terms of the Mandate, would not be in conflict with
the terms of the Maiidate itself, it feels that sufficient grounds have
not been adduced for taking such a step 1."
C. The Period After the Dissolution of the League
13. Tlie facts relating to Respondent's attitude and intentions with
regard to the Mandate at the time of the inception of the United Nations
Organization and the dissolution of the Lcague of Nations, have been
set out in Book II, Chanter II. of this Counter-Memorial. an~ ~~ ~ i.ot ~ ~ ~ ~ ~
be repeated here in deta'il.For convenience, however, the followingmore
important facts are briefly recapitulated. viz.:
(a) The desire amongst the ~Lo~ean iiihabitarits of the Temitory for
closer association with South Africa and terminatioii of the Mandate
founcl coiicrete expression in repeated resolutions passed by the
South West Africa Legislative Assembly 2.
1.), Coiisiiltations with the non-White inhabitants of South West ~ ~ic- ~
in order to ascertain their wishes regarding the future government
of the Territory resulted in an ovcrwhelminr maioritv in favour of
incorporation i. -,-
(c) Apart from the expresscd wishes of tlie inhabitants, Iiumerous ottier
considerations rendered incorporatioii advisable 3.
(II) Respondent believed that incorporation would serve the best
intcrests of South West Africa and al1its inhabitants. aiid had at al1
inatcrial times made known its project for ascertaining the wishes
of the inhabitants and thereupon seeking to obtain international
recognition for incorporation +. The procedure actually followed in
this last respect was the submission to the General Assembly of the
United Xations of a fully reasoried memorandum :mùproposal in
that regard 5.
(e) The General Assembly, however. rejected Respondent's proposa1
regarding incorporation, whereupon Respondent made it clear that
it would not proceed with incorporation of South West Africa. but
would maintain the status quo and continue to administer the
Territory in the spirit of tlie Mandate 6.
14. Although Respondent had, in deference to the wishes of the
General Assembly, relinquished the project for incorporation of South
M'est Africa, al1 the considerations relied upon by Respondent in pro-
posing incorporation remained of fui1force and effect, and fully justified
Respondent's bona fidebclief that closerassociatioiz between South West
' U.G. 31-1937, para. 10,p. 4.
Vide Book II, Chap. II, para. 43. of this Counter-Mernorial.
Ibid., para. 45.
' Ibid., paras.31, 35 (a) and 41 (b) (ii).
Ibid., paras. 43-46.
Ibid.. paras. 44, 47-48,82 SOUTH \VEST AFRICA
Africa and South Africa, withoz~tthe Territory beingiiicorporatedin Soirth
Africa, would be in the best interests of the Territory.
15. On II April 1947 the House of Assembly of the South African
Parliament adopted a resolution reading, intedr ia. as follows:
". .. therefore this House is of opinion that the territory should be
re~resented in the Parliament of the Union as an intearal ~ortion
thireof, and requests the Government to introduce legisTation,alter
consultation with the inhabitants of the territory, .ro-iding for its
representation in the Union Parliament . . .'".
This resolution was brought to the attention of tlie Secretary-General
of the United Nations by letter of 23July 1947 n which letter it was
also stated that Kespondent would maintain the status quo and would
continue to administer the~ ~ ~ ~orv in the s~irit of the Mandate2.
16. \\'lien tlic <luestion of Soutli \\'est Africn \vas Leiri:: considered
by the Geiicr:il Issciiibly in 15.47,theSouih hfric;iii represeritative
re~e:itcd Ilcs~on(leiit's declsrcd i,olic\, tu ;idiiiinistzr Soutl. \\'cil :\friia
in-the spirit Ôfthe Mandate, and statéd, inter ah:
"The representatioii of the Territory in the Parliament of the
Union of Soiith Africa, to which some attention has been drawn in
the ITourthCornmittee. will not be a de~arture from such a form of
;idmiriistratit>n.Undcr the \I;ind;itc. suzii rcprr..;ciitntioiiwiild clear-
1.vIi~\,cbccn grnntcd witlioiit iii ;III). viul.itin~ .III!.provisioii uf
the \Innd;,te. ft is iiot tlic sniiic thna, iiicorpordtioii. :is Ii;ishceii
contendrd I..ysoiiic reprcicntativej. 1%).such rel)rescnt;itioii, the
Territor!, \r.i!lnot be incorl~or;itcclin the Unioii of Soutli :\fricn ;in).
more t1i;in tlie tcrritorics iiiidcr 1:reiirli ;idniinistr:ition ti:i\,c bccn
incorporate? iiito I:rancç by rc?prcsciit:iticinin the I:rcn<.lilcgislntiir~:.
A1:o.nfter i.iili reprïiq.iirntioii hns bccn c~.~iitcd.the T~rritory ii.iII
continue ro II<;<dininistcrid iii thc miriof thc 3lnri~l:itc.'''
17. The Soutli Africaii representative in 1946 again dealt iii the
Fourth Committee with the matter of closer integration of South West
Africa with South Africa. He said that full political and economic
advancementof South West Africa could not be achieved except through
close association with South Africa in view of the fzictthat the interests
of the contiguous Territories were so closely interwoven, and in many
cases identical. And he pointed out that a closer form of political and
economic association between the two Territories had indeed for many
years been the desire of the people of South West Africa. After explaining
the provisions of the proposed legislation whereby South West Africa
would berepresented in the South African Parliament,he said:
"As the l'rime Minister had poiiited out, the new arrangement
was not inci~rwration. On the contrarv. South West Africa would
no\\, :icquir<:Gelf-government in .î iii<asurl: iiot pcrmittecl to tlic
correspon<lii~glegislative hodies of the I'ro\.inccs of thc Union. The
ngrecnicrii nrrivcd .ît \itnsplrticularlg ndv;~ntngcoiisto th<:Territory
text is quoted in Book II, p.56e(1).of this Counter-%lemorial.l. 262.1T.he full
' Vide UA'. Doc. Al334.in G.A.,O.R. .econdScss., Fourlh Comm., p. rjsand
Book II.p.55 (1).ofthis Counter-Mernorial.
%.A.. O.R., Scrad Sess.. Vol.1, 105th Plenary Meeting. I Nov. 1947. p.633. CUUNTER-MEMORIAL OF SOUTH AFRICA 83
of South West Africa. and was very definitely in the interests of
the Territory and its people '."
18. Gater in the same year the South Africanrepresentative is recorded
to have statedthat he-
' ., ,!vi;Ii~~lIO ~IVC tli,: :\,jcint~IIII< form;il :i>511r:in~~ ;, lrdd
;ilrr.;id).Lepndonc hy hi5I'riiric.\liiiistet1i:ttlli~.inensurci iI~~~igiiu<l
to cst.ihlisli I';irliamentar\' renrc.,eiit:itiori for tlie ï'crritor\. did iiot
mean that Territory's incorporation or absorption into theaunion of
South Africa 2."
And the General Assembly, in resolution 227 (III) of zG November 1948,
took note of-
".. . the statement of the represeritative of the Union of South
Africa that it is the intention of his Government to continue to
administer South West Africa in the spirit of the Mandate;"
and of-
"... tlie assurance given by the representative of the Union of
South Africa that the proposed new arrangement for closer asso-
ciation of South West Africa with the Union does not mean in-
corporation and will not mean absorption of the Territory by the
Administering Authority; '".
19. By letter dated II July 1949, a copy of the South West Africa
Affairs Amendment Act, 1949 (Act No. 23 of 1949). together with a
summary of its provisions, was transmitted to the Secretary-Gcneral of
the United Nations. This letter contained :rreaffirmation of tlie aforesaid
assurances, and continued:
"This Act introduces certain changes in the form of association
between South West Africa andthe Union ofSouth Africa. In parti-
cnlar, it will be noted irom the summary that under the iiew form
of association, which is entirely consonant with the spirit of the
Mandate. no greater powers are devolved upon the Union Govern-
ment iii respect of South West Afric:, than were accorded undcr the
terins of the orieinal Mandate. but on the other hand certain uowers
~xfliously c.ut*rcisedhy the liriiuii Governriiciit arc.no\+.to becscr-
cised hy tlic I.cgislarurc of Sr~iitli\\'est Africa. which tliui cscrci,es
a conscderably greater measure of self-government than is enjoyed
by a Province of the Union '."
In the course of debates in the Fourth Committee in the same year
Kespondent's representative assured the Coinmittee that-
,,
... his Government had never contemplated adopting measures
contrary to the provisions of the Mandate and that it was still
administering the territory in the spiritof the Mandate 5".
20. At the end of the debate of the Fourth Session of the Fourth
Committee in 1949, one of the delegatcs proposed an amendment to
certain draft resolutions tothe effect that-
' C.A.. O.R., ThirdSess., Po1,Fourth Comm., 76th Meeting, 9 Nov. 1948.p.293.
Ibid., 164th Plenary Meeting, 26Xov. ,948, p. 588.
C.A. Rcrolution227 (111). 26Sov. 1948.in U.N. Dac. A18ro. pp. 90'91.
' U.N. Doc. Algzg. in C.A., O.R.. Fourth SPSI..Fourlh Comrn..A?IIILXp.. 8.
C.A., O.R., Fourlh Sass.. FourtComm., 130th Meeting. 21 Nov. ,949, p. 213.
Vide aiso Rook II, Chap. II, para. 55.of this Caunter-Ifemoriai.Y4 SOUTH WEST AFRICA
". . .the measures taken by the Union of South Africa in adopting
a law for the association of South West Africa with the Union of
South Africa constitute a violation of the United Nations Charter '".
This amendmerit was reiected in the Fourth Committee bv I? votes
to 12 with 17abstentions ' 1 gain in ~gjo the followingamenbmént was
.rop-sed bv the same deleir-tion in the Fourth Committee:
"... that the action of the Union of South Africa in adopting a law
on the incor]>oration of South West Africa in the Union of South
Africa constilutes a violation of the Charter of the United NationsZ"
This proposed amendment was rejected by 16 votes to g with 22
abstentions 3,and an identicalamendment proposed at the Fiftli Plenary
Session of the General Assembly on 13 December rgjo, was oiice more
rejected, by 24 votes to 8, with 22 abstentions '.
21. 111its negotiations with the Ad Hoc Committee on South \lies[
Africa during rgjr aiid 1952, Kesporideiit expressed its preparedness
to negotiate a new international instrument enibodying in essence the
maiil obligations of the Mandates. Such an agreement, if concluded,
would of necessity have precluded unilateral aiiiiesation or incorporation
of South West Africa by Respondent.
22. III 1954, before the Fourth Committec, liespoiideiit's represeri-
tative dealt with certain charges of alleged incorporation and annexation
of South West Africa. Commentiiig on the trarisfer of control over
Xative Afiairs from the Administrator of South West Africa to the
ilfinister of Xative Affairs of the Union of South Africa, he emphasized
that it would not result in the abolition or dimiriution of any service
rendered to South West Africa. On the contrary,with its greater resources
in money, manpower and experieiice, the Government of South Africa
would be able to increase and to improve those services in every way.
Furthermore. the South West rlfrica Administratioii aiid the Ministry
of Xative Affairs were both agencies of the Soiith African Government
and it uras therefore difficult to understand how the South African
Government would be less mindfulof its responsibilities under Article 22
of the Covenant .#hile acting through one than while acting through the
other. He mentioned that the charges of alleged incorporation and annex-
ation of South West Africa by the Union of South Africa had been heard
before and rebutted in detail. Nevertheless they had been raised again,
and he therefore wished to stress "that there had been no incorporation
of South West Africa by the Unioii and no annexation to the Union K''
23. During 1g:ij Respondent's representative, iii the course of a full
statemeiit before the Fourth Committee once more repudiated allega-
tions to the effect that Respondent intended to incorporate the Territory,
and stated that:
"It was the conviction of the South African Government that
' U.N. Doc. AI1i8o. inG.A.O.R., FourihSess.Plennry dleeiingsAntzex, proo.
U.N. Doc. A/iB43. in C.AO.R., FillhSers., Annexer. Vo1 (Agenda Item 35).
p. 8.
' Ibid..p. g.
' C.A.,O.R., Fi/ih Sesa. Vo1. p2nd Plenary hleeting.13 Dec. Ig50, p. 631.
VideBook II, iChap. II, paras. 70, 74 and 82. of this Caunter-Mernorial.
C.A.,O.R.,Ni+!lhSers., Fourlh Comm.,407th Meeting, 15 Oct. 1954, pp. 69-70. COUNTER-MEMOR IF SOUTH AFRICA 85
representation of South West Africa in the Union Parliament was
fullv in k-..ine.,ith the snirit of ~~- Mandate '."
24. In the course of negotiations with the Good Ofices Committee on
South West Africa during 1958. liespondent expressed its prepared-
ness- - ~ . -
". .. to see incorporated in any agreement which might be arrived
at a provision specifying that the Territory possessed 'an interna-
tional character', in that it had not been annexed hy the Union of
South Africa in the generally accepted sense of the term; that this
international character derived from the arrangement made at the
Peace Conference at Versailles; and that the Union would not be
able to arnend the international character of the Territory uni-
laterally, that is to Say, without the consent of the second party
to the agreement 2."
This expression of preparedness on Kespondent's part, as well as expres-
sions such as mentioned in Daramanh - *~ 21 above. it is submitted. cor-
roborate the consistent and irequent assurances by ~es~ondent's're~re-
sentatives to the effect that Remondent had no intention to annex or
incorporate the Temtory.
25. During a meeting of the Fourth Committee on 8 October 11)5g,
Resporiùerit's representative, South Africa's Minister of External
Affairs, once more assured the Committee that Respondent "woiild con-
tinue to administer the Territory in the spirit of the previous Mandate" '.
D. Conclusion
26. In Respondent's submission the aforegoing account of history
since the inception of the Mandate clearlj~showsthat:
(a) during the lifetime of the League of Xations Respondent's declared
attitude was that. with regard to the status of South West Africa as
a maiidated territory, Respondent would do nothing in confiict
with the Mandate, or without prior consultation with the League;
and
(b) whilst Respondent had after the dissolution of the I.eague adopted
the attitude that the Mandate had lapsed. Respondent, after
rejection of its proposal regarding incorporation of South West
Africa, consistently declared that it would not proceed with annexa-
tion or incorporation, that it would maintain the status quo and
continue to administer the Territory "in the spirit of the Mandate".
At the same time Respondent demonstrated its belief that çteps
towards doser association between South West Africa and South
Africa would be to the benefit of the Territory and indicated that it
was indeed desired bv the inhabitants. Res~ondent furthermore
showed that such stéps as were taken in t6e direction of closer
association were leg.ily..ermissible under the Mandate and did not
constitute incorporation, or elements in a plan or scheme of in-
cornration~..
' G.A..O.R., TenlhScss.. FourlhComm..qgrst&feetin g,ctr1955, pp. '35-136.
U.N. Doc. A/39oo. in C.A., O.R., ThirtecnfhSers., Annexe(Agenda Item 39).
para. 33.p. 6.
' C.A., O.R.,FourfeenfhSess.,Fourth Comm., gwth Meeting, 8 Oct. 1959,paru.
15.P. 85. CHAPTER III
RISSPONDENT'SALLEGEDINTENTIONS
A. Introductory
I.This Chapter deals with that part of the Applicants' Statement of
Facts set out in section i3.1 of Chapter VI11 of the Memorials under
ceriied almost ex<:lusivelywith statements made in debates in the Southon-
African Parliament.
2. Respondent submits that with a view to a proper interpretation
and evaluation of the statements concerned thev reauire to be read in
the light of their own context and setting, and ais8 of Respondeiit's
attitude, actions and declarcd intentions regarding South West Africa
and its ~eo~les.both before and afterthe statements in issue were made
-as r&ouited in Chapter II above. When this is done-as in the
following paragraphs-it will in Respondent's submission be seen that
the statements do not justify the conclusions drawn from them by the
Applicants, namely :
(u) that licspon(ient's "purpose isincorporation" ;and
(b) that in furtherance of such purpose, Respondent "avowedly treats
as pull and void the obligations stated in Article 22 of the Covenant
and the Mandate, which prohibit unilateral annexation and con-
template progress toward self-determination" 2.
B. The Statement of the South African Prime Minister in the Senate on
zr May 1956 '
3. Uefore the Prime Minister made the statement here in issue.
Senator Cowley, a member of the Opposition in the South African
Parliament, had suggested that it might be advisable for South Africa
to annex South West Africa, and had presented an argument to justify
such a course 'Thiswas, in effcct. an invitation to Res~ondeiit's Govern-
ment to state its position regardhg the question oi incorporation or
annexatioii of the Territory. The Prime Minister indeed commenced his
reply to Senator Cowley by stating:
"The hon. Senator Cowley suggested that in order to avoid
troubles in iuture in so far as South West Africa is concerned, we
should forthwith proceed to annex South West Africa 5."
The cardinal aspect of the answer of the Prime Minister which then
followed, was thlt it rendered clear that he did not agree with Senator
Cowley's suggeçtion. He rcstated Respondent's attitude and views as to
' 1,pp.186-i8g.
Ibid.. p.189.
p.186..of S.A.. Parl.Deb.,Senafe, Vol.III(ig56)C ,ols.3631-36j~c :itedin 1,
' U. of S.A..Parl. Deb.Senate.Vol. III(1956) Cols3.627-362S
' Ibid.. Col363). COUNTER-MEMORIAL OF SOUTH AFRICA 87
the relationship between South Africa and the Territory as a result of
the dissolution of the League of Nations ', and at the same time re-
iterated that Respondent would continue "to govern South West Africa
in the spirit of the old mandate". While in effect concedina th..oss si-
bilir). tlÎat cirstiiiist:,ric~:îniiglit in fiituru ii~ovcl<cspotucfo;in :in
intention 10 iiicorporatc th<:'l'erritur),.the I'rinic .\liniitcr niitdJenr
that that was. as at the time of s~eakine.-. mere continaen-. which had
in fact not arisen.
4. With regard to the declaration contained in the statement that it
was "within [Respondent's] power to incorporate South West Africa
as part of the Uiiion", it seems manifest that this was based on the
understanding that the Mandate had Inpsed-a contention which had
repeatedly been advanced before by Respondent, and which is argued in
Book II, Chapters III to V of this Counter-Memorial. Respondent has
never taken up the attitudethat if the Mandate should stiU he in force,
Respondent nrould nevertheless have the right to incorporate the Terri-
tory unilaterally and without special justification. Respondent's policy
to administer the Territory "in the spirit of the Mandate" includes a
volnntary abstention from unilateral incorporatioii, exactly as if the
Mandate were stiil in legal operation in that regard. And thus Respon-
dent has in fact not taken any action to incorporate the Temtory. it is
suhmitted, therefore, that the declaration as to a righl to incorporate
does not show the existence of an intentioiion Respondent's part to
incorporate the Temtory, and that the very statement in which the
declaration occurred refuted the existence of any such intention.
C. The Speech ofMr.Basson in the House of Assemblyon 23 April1956
5. On a proper analysis of MI. Basson's speech,the followingappears:
(a) With regard to the position of South West Africa. Mr. Basson
visualized two separate problems, namely on tlteonehaiid,
".. . the international problem, the legal position of South West
z'is-ri-vitlie world;"' and, on the otl~crhand,
".. . the inter-territorial relationship, i.e., the practical relationship
betxveenSouth West and the Union *."
(b) HL.regnrsled siich questions as \vhetlier the hl:iiidnt<:still esistcd.
\rith \rfhomthe ju\.creifiit! of South \Vest Afrii:i resrcd. nntl \\,h~.ttier
the i>o\\vrs tufrlic I.c3mic \rith rcznrcltu in.iii~l.itccltcrritorici Ii;id
autÔrnatically been trnnsferred t; the United Nations or not, as
falling under the international problem-a discussion of which in
the House of Assembly and on the party political platform, he
considered mould not serve much purpose.
(c) Under the second problem he dealt not with the legal but with the
~ractical relationshi~ between the Territorv and South Africa. He
émphasisedthat ReSpondent always had the right to govem South
West Africa asan integral portion of the Union, anclsaid that:
' Vide Chap. II. paras13-25 supra.
W. ofS.A.. Parl. Deb., House ofAsscmbly, Vo91 (1956)C.ols.qi07-qllo cited
in'1U.of S.A.. Parl. Deb.. HoureofAsrrtnbly, Vol. gr (1956.ol. 4108;1.p.187.
+ U. ofS.A.. Porl. Dcb.. HousO/Arrenibly. Vol.91 (i95G).ol. 4108:videChap.
1,para.8.supra (footnote 3).88 SOUTH WEST AFRICA
"CVithinth: rights and powersthe Union has always had in respect
o/South West, South West has in fact, de facto, become a partner of
the four pro%inces,the fifth unit in the broad framework of South
Africn, and ot~a basisbestfitting thepolitical, economicand geogruphic
circz~mstances of thut territor'."(Italics added.)
6. There can be no question but that hlr. Basson, speaking as a
hlember of Parliament for one of the South West African constituencies,
saw Respondent's measures of integration not only as inter-territorial
measures permissible in terms of Article z of the Mandate, but also as
being beneficial to South West Africa itself. Furthermore, he rendered
clear that he was dealing with the broad effect of "al1 the happenings
of 1948-1949. .. .fi01internationally bzrtonly inter-territorially"(italics
added). and he manifestly did ?lotsuggest that any measures were to be
seen as motivated by a desire to bring about a modification in the
international status of the Temtorv. or as directed at stultification of
thc ohjecti\.cs cont«incd in tlic &ond p;ir:~gr;~]~lif Articler of tlic
\IdniI;,t~.rcgnrdirg thc promuriun of tlic \it,ll-beiiig of the inli:it~it:ints.
He \ras concerneil \vit11;itutilIl\. differciit aucition-ofno iuiije.~cnc~
for present pnrposes. but appa;ently regarded by him as important in
domestic politics at the tirne-viz., whether the arrangements of 1948-
1949 could be said to have made South West Africa "a partner of the
four provinces", his answer being in the affirmative as regards the "de
iacto" situation.
7. In the above context it is clear that no sinister meaning can be
attached to *.Ir.Basson's statement conceming the practical relationship
between South West Africa and South Africa.namely that: ".. . annex-
ation in the old-fashioned sense of the tord has lost al1Practical mean-
ing'." (Italics aclded.) It accords with views expressed since the in-
ception of the niandate system by commentators who regarded the
potential effect otiCMandates in their wactical o~eration as one not far
Ïemoved from the position obtaining inder aniexation ',and it was,
indeed intended to demonstrate that no particular purpose was to be
served by complete niinexation or incorpoÏation.
D. The Statement of the South African Prime Minister in the House of
Assembly on 23 April 1956 '
8. This statement of the Prime hlinister must be read in its proper
coutext. It was made in reply to the speech by &Ir.Basson which is dealt
with in paragraplis 5 to 7.sufira.
Mr. Basson referred to the Legislative Assembly elections in South
West Africa during November 1955,which elections he said had heen
fought "on the cluestion of the political relations between South West
Africa and the Union"5. a matter with reeard whereto he wished to
give a report concerning "the final attitude ànd the wishes of the public
of South \Vat8' 6.
' W. O/S.A.. Parl. Deb.. HousO/Assembly, Vol. 91 (1956)C.ol. 4109.
Ibid.. Cols. 410:3-41vie Chap. 1, para. 8.supra (footnote 3).
' Vide Book II, Chap. II, para. 8.of this Counter-Mernorial.
' U. ofS.A., Parl. Drb., House of Arrembly. Vol. 91 (19C.ol. 4.28.
' Ibid., Col. 4107.
Ibid.. Col. 4108. COUNTER-MEMORIAL OF SOUTH AFRICA 89
pages 187todr189,dhlr. Basson concluded his speechas follows:ts at 1,
"We therefore ask thc Governrnent that it should not count
against lis that our relationship to the central authority differs
technically from the relationship between the four provinces and
the central authoritv. \Ve consider that this does not derocate
from tlic qualit) of &r prirtnership and oiir esjcnti:<lunity withthe
Liiioii. 11,s uiir frieiidly rcqtic,tIi:tWC SI~IJIII)eIr~g;irdvdnul :is
Iieiiic ;ilicii.rio1;issui~~ctlio~itsirlcthe Ciiii9iiwliicil i.:Itoi,edonc
day 70 incorporate, but as :full partner of the four provinceSon the
basis of the ~gqgAct '."
9. It seems clear that the Prime Minister's statement cited at 1, page
189 \\.asmade in response to bfr. Basson'srequest that South West Africa
"should be regarded not as being alien". The Prime Minister agreed with
hlr. Basson that there was a strong desire iii South West Africa for greater
CO-ordination between the Territorv and South Africa in resDect of
1cgisl;itiun;iii<uilier rii.itti:rs. ;ind sintecl t1i:it rcpri~3ciit:itions1i;;dbccii
made tu Iiis Goveri~niciit to that effeci. 'The 1351 senteiice of tlic Prinie
Ilinister's ,t:itctneiit. \.iz.: "1 ii\i..~ito anirili;isitli:itSouth \\'est is
no longer a mandated ter rit^;^ ,ut is ruled'as an integral part of the
Respondent considered the Mandate to have lapsed-i.e.,urance thatthat "South
West (was) no longer a mandated territory"-Respondent was govern-
ing, and mould continue to govern, the Territory as an integral part of
South Africa.
IO. Applicants contend tliat the Prime hlinister's statement-
". ..admits explicitly thnt the hlandate, if considered to be in effect,
limits the manner in which the Union m;iy rule the Territory as an
'integral part' of the Union.",
and that it ". .. reveals the Union'sawareness that itsactions. . . exceed
the permissible hounds of the hlandate, if the hlandate is still effec-
tive .. .3"
13espondentsays that thisinterpretation is an untenable one.
It will be recalled that the Prime Minister endorsed Mr. Basson's
speech, and thrit Mr. Basson had made it quite clear that he was not
dealing with the Territory's position in international law. but only with
the inter-territorial relationship between the Territoryand South Africa,
and that he (Mr.Basson) had stated that a closeinter-territorial relation-
ship had developed "Within the rights aizdpoieierstk Union has always
hnd in respect O/ South West '". (Italics added.)
In endorsing such a statement, it is inconceivable that the Prime
'6nister would. in the same breath. have intended to convev an
. . . :<\r~~renest.li1Rejpundeiit'j] actions . .. cuceed[ed] tlic pc&is-
sible boiinds of the \l;in<l;~tiif tlit: 1l:iiid:ite [\i.:is-still effccti\,e . . ."'
II. It miist be iiotcrl, furthermorc. tlinrif.î; .Applic:iiitscontciid, the
Prinie Ilinister iiiennt that Kcspondcnt \vas eserciiing powers ùeyond
those permissible under the .\lnnd:itc, the l'rime .\Iinistcr's st:itcment
U. of S.A.. Parl. Deb., Housc of Assembly, Vol. 91 (1956). .+rio.
Ibid., Cal. 4i28.
* U.pof1S.A.,P611.Deb., Haus* of Assembly, Val. gr (1956). Col. .+1o9.go SOUTH WEST AFRICA
would have been in direct conAictwith the attitude consistently adopted
and expressed by 1Respondentboth before andafter thisstatement '.
Indeed, less than a month after making the statement here in issue,
the Prime Miiiistar, in the statement dealt with iri paragraphs 3 and 4,
supra, said that Respondent was ". . .prepared ... to govern South
West Africain the spirit of the old mandate Z."
And a year later, in a statement also quoted by Applicants3, the
Prime Minister emphasized that-
". .. although we adopt the standpoint ... that the mandate no
longer exists, the mandate itself laid down ... that the Union had
the right to govern South West Africa as ati integral part of the
Union. We cm, for example, make al1 OUI laws of application to it
and c-vern iEsim~lv ., art 'f the Union .. .*"
thereby clearly itidicating that Respondent regarded its actions in re-
gard to the Territory as falling withiii the permissible bounds of the
E. The Statement of the South Airican Prime Minister in the Senate on
14 J~ne 1957
rz. What the Prime Minister intended to convey in this statement
must be gleaned from tlie discussioiis on the matter debated in the
Senate at that time. l'lie measure under discussion was an enactment
conceming a purely admiiiistrative matter, namely the publication of
laws of the Unioii Parliament which were applicable also in South West
Africa. The Prime Alinister explained that at the request of the South
West Africa Administration the enactment in question provided that
laws such as afori:mentioiied would be published only in the Governmcnt
Gazette of the 'Unioii of South Africa without republication in the
Oficial Gazette of Soitth West Africa. He explained that the reasons
for such a step vverethe saving of costs as well as expediency in cases
where legislation had to be applied urgentlp, aiid concluded as follows:
"The South \Vest Administration also gives the assurance that the
Union GovernmenlGazette will be circulated and used in such a way
in South West Africa that ~ublication therein of the laws of the
I:iiion I1nrli;imeiit\vhichnreÔf apylicntioii r.tli;itterritorv,~riiiconie
quite ;i<leqii.itclytiiidctlic::<ttcntion of p~ple who arc intcreste(l
thcrein. 'l'licSouth \Ves :\dministrntioii will ncverrliclesi pul)lisli a
short notice in such çaccs in their own local offici:ilp:ipcr in order to
rlirect ntteriiioii to thc f.itli;isiiçl:tInw!%'ap saisc<l;<id that it is
of:i..i>lii:itionto the Soiith \Vcjt :\frican territor&."
13. In the coiuse of the debatc Senator Conradie. a member of the
-rrnsition said.
"\TI. I>rcjidcttt. I would likr to :tsstirr the hon. th~ \finister that
\vewillgive IiirnOurfull stilbport.This Lcilis simply to bring the po-
2 U.dof S.A., Pnrl. Deb.. SanalVol.III (1056).Col. 3632.
' 1,p. 189;dealt with inparas. 12-14.infva. . . .
* U. of S.A.. Pnr.1.Dcb., SrnolVol.IV 11957).Col.5535.
J 1bid:.cited in 1, p. 189. , ..-~
U. O/S.A.. Povl. Drb.. SennleVol.IV (~957).Col.5533. COUNTER-MEMORIAL.OF SOUTH AFRICA
91
sition in South West into conformity with the position as we have it
today in the Union, as the hon. the Minister said. There is only one
remark that 1 want to make and that is with regard to Claiise Four.
As the han. the Prime Minister said, it is iit the request of South
West Africa that the laws should be published only in the Union
GovernmentGazetteand no longer in the officialpublication of South
West. The hon. the Prime Minister said that there are cases where
thisis urgent and for that reason it is very much quicker ta publish
it here. There is one matter tliat strikes me, namely whether this is a
step to incorporate South West further in the Union and no longer
ta keep the South West Administration, its legislation and its
publications separate? 1said that we welcome the Bill, but 1 would
just Liketo point out that it appears ta me as though this is a step
towards further incorporation and if 1 understand it in this way,
then, 1 tbink, we al1do '."
The Prime Minister answered as follows:
"MI. President, if 1 may just reply to the question which was
asked-1 do trotthink that il has anything todo with this, but the han.
Senator Conradie wiü know that although we adopt the standpoint
which his former leader, General Smuts, adopted that the mandate
no longer exists. the maizdate itself laid down to the old League of
Nations that the Union had the righttogovernSouth WestAfrica as an
i?rtegral$art of the Union. We cau, for example, make al1our laws
of application to it and govern it simply as a part of the Union and
then the hon. Senator Conradie if he sa prefers can still adopt the
standpoint that it is not incorporated 2." (Italics added.)
14. As will appear from the above, the statement in question was not
made by the Prime Minister "in commeuting upon objections voiced by
a member ofthe opposition", as alleged by Applicants
And, it also appears that, in posing the question whether the measure
dealt with was-
". .. a step to incorporate South West frrrtherin the Union and no
longer to keep the South West Administration, its legislation and its
publications separate "' (italics added),
Senator Conradie was dealing only with closer administrative integration,
and iiot with incorporation in the sense of annexation of the Territory.
It will also be noted that the Prime Minister stated that the relevant
measure had nothing ta do with incorporation (i.e., in the sense of annex-
ation of the Territory).
He pointed out that although, in Respondent's view, the Mandate
no longer existed. the power to be exercised was one which fell within
the powers provided for in the Mandate. viz., the right to govern the
Territory asan integral part of South Africa.
F. Conclusion
15. In the premises aforestated, it is submitted that the statements
referred ta by Applicants in no way justify the inferences contended for
' U. of S.A..Pari. Deb.Senaic.Vol. IV (1957) C.ols. 5533-5534.
' 1.p.189.ol5535.
' U. ofS.A.. Pnrl. Dcb.Srnale.\'O].IV (1957) C.ol. 5534.g2 SOUTH WEST AFRICA
by them. On the contrary. upon a proper analysis of such statements
in their context and against the background of Respondent's consistent
attitude and deciared intentions, both prior to and after such state-
ments. it is clear that:
(a) It isno1 Respondent's intent or purpose to incorporate the Terri-
tory;
(b) Respondent bas consistently stated and given the assurance that
it would continue to administer the Territory in the spirit of the
Mandate-i.e., as if al1 the obligations relating to the sacred tmst
were stiii in existence;
(c) and Respondent has repeatedly indicated tliat its actions in regard
to the Tenitory wonld have been permissible undex the Mandate
if it had still been in force. and that such actions did not constitute,
and were not intended as, acts of incorporation. CHAPTER IV
CONFERMENT OF SOUTHAFRICANCITIZENSHIPUPONTHE
INHABITANTSOF SOUTHWEST AFRICA
A. Introductory
I. The first of Respondent's acts alleged by Applicants to bc "in-
consistent with the international statu of the Territory" is what Ap-
plicants term the "General conferral of Union citizenship upon the
inhabitants of the Territory" '.
At 1,page 190Applicants cite a resolution of the Councilof the League
of Nations of 23 April 1923 concerning the national status of Native
inhabitants of mandated territories. Applicants then refer to certain
legislative measures of Respondent relative to South African nationality
and citizenship, which measures are said to be in confüct with the
Council's resolution, on the ground. as Applicants allege, that Respon-
dent has by such measures "identified the status of inhabitants of the
Territory with that of Nationals of the Union" through processes having
"general application" '. And thus, say Applicants, Respondent has
"violated its obligations as stated in Article 22 of the Covenant and
Article z of the Mandate" 2.
Beforedealing with the specific legislative enactnients referred to by
Applicants, it is necessary to give attention to the history and import
of the Council's resolution, which forms the basis of the charge made
by Applicants-a matter to which the next sncceeding paragraphs are
devoted.
B. The Resolution of the Council of the League of Nations
of 23 Apnl 1923
2. In the report of the Eirst Session of the Permanent Mandates
Commission, which was submitted to the Council of the League of
Nations on IO October 1921, the Chairman of the Commission, the
Marquis Theodoli, said that:
"... the question of the national statu of the inhabitants of the
mandated temtories, which was brought to the notice of the Com-
mission when it examined the report on South-West Africa .. .
deserves a very detailed examination and ... calls forthe speediest
possible solution 3".
And the Commissionraised the followingquestions in its report:
"1s it desirable that the population placed under the adminis-
tration of the Mandatory Powers, acting on behalf of the League of
Nations, should be granted the nationality of the Mandatory Powers,
owing to the fact that the system laid down in the Covenant has
1,p.190.
Ibid.p. 192.
'L. of N..O.J. 1921 (Nos. IO-12)p. 1126.94 SOUTH WEST AFRlCh
come into operation? Should they keep their former nationality, or
should some other system be adopted? '"
The Council considered these questions aiid resolved to request the
Chairman of the Permanent Mandates Commission and two of his
colleagues to forrn a sub-committee for the purpose of seeking further
information on the question of the nationality of the inhabitants of B
and C Mandated areas 2.
3. In respoiise to the said request the Cominission submitted to the
Council proposalr. to the effect that in general the Native inhabitants
should be grantecl a national status distinct from that of the nationals
of the Mandatory Power, preferably by legislative act of the Mandatory
Power. Included in the Commission's proposals was the following:
"III. It is open to mandatory Powers to which B and Cmandated
territories havé been entmstedio make arraneements. in conformitv
with their own Iaws,for the individual and purel)' volun,tary acquis;-
tion of their nationalitv . .inhabitants of these territories j."
The following reasons were adduced by the Commission in support of
the said ~rop~sal:
"III. In j~iitific:itioi~of thc thircl proposnl. tli~~Conlmis,ion\viilics
Io siil,iiiito the Coun~ilth%f~nllinving coiisiilcrntion.
It secni.;icntr;<r\.tu thc s~irit of tlic Coven:iiit.ilid tu th<:csiçii~~cof
the institution of mandates'to permit the compulsory naturalisation.
by a single act. of al1the inhabitants of territories under B and C
Mandates. The legal relations which exist bet~veen a mandatory
Power and the territory which it administers on behalf of the League
of Nations ~ionot appear to permit of a measure which a State
annexing a territory cannot apply.with regard to the inhabitants
annexed except by virtue of provisions espressly inserted in the
Treaty of Cession. The Treaty of Versailles. by the terms of which
the former German Colonies were handed over to the Principal
Allied and Associated Powers, to be administered on behalf of the
I.eague of Nations by Powers called mandatory, contains no clause
imposing the:nationality of the mandatory Power on the inliabitants
of those colonies 4."
4. After consideration of the said proposals the League Council on
23 Apnl 1923passed the resolution cited at 1, page 190. For convenience
the resolu~~~~-~~~-e~~r~ed ~ere:
'!In accorilance with the principles laid down in Article zz of the
Covenant; [the Councill Resolves as foilows:
(1) The staiiis of the native inhabitants of a mandated territory is
distinct from that of the nationals of the mandatory Power and
cannot be identified therewith by any process having general
applicat ion.
(2) The native inhabitants of a mandated territory are not invested
with the nationality of the Mandatory Power by reason of the
protection extended to them.
' L. O/ N.. O.J..iqi (Nas. IC-1%).p. 1126
Ibid.. p.1r33.
' P.M.C.,Min.,II,p.68.
'Ibid.. XV. p. 276 (Annex zq). COUNTER-MEMOR IFLSOUTH APRICA 95
(3) It is not inconaistent with (1) and (2)above that individual in-
habitants of the mandated territory should voluntarily obtain
naturalisation from the Mandatory Power in accordance with
arrangements bvhichit is open to such Power to make with this
object under its own law.
(4) It is dcsirable that native inhabitants who rïccivc the protection
of the Mandatory Power should in each case be designatcd by
some form of descriptive title which will spccify their status
under the mandate '."
5. It is observed from the proposals of the Comiiiission that it was
not averse to the nationality of a Mandatory power being extended to
the inhabitants of the mandated territory-its objection was to a par-
ticular manner of conferment of such nationality, namely by "com-
pulsory naturalization by a single act, of al1the inhabitants". And the
Council's resolution gave effect to what the Commission had proposed
in this regard.
C. Extension of South African Citizenship to British Subjects
in South West Africa Pnor to 1949
6. During 1928 questions arose in the Permanent Mandates Com-
iuission and in the League Couiicil regarding the nationality of the
inhabitants of South West Africa.
The relevant laws goveriiing the position at the ti~newere the fol-
lowing :
(a) Act No. 40 of 1927, The Union Xationality and Flags Act. This
Law conferred Union Xationality on-
"a person born in any part of South Africa included in the Unioii
who is not an alien or aproliibitcd imniigrant undcr ;iny law relating
to immigration;
Section 9 of the Act defiiied an "nlieii" as "a person who is not a 1Jritisli
subject". "British subject" had. according to section 9. the meaning
assigned to it in Act Xo. 18of 1926. Section g of the Act also defined
"Union" as including "the mandated territory of South \t'est Africa".
(b) Ac1 No. 18 o/ 1926, The British Nationality in the Union aiid
Naturalizatioii and Status of Aliens Act. The provisions of this law
specified the perçons who were deemed to be British subjects.
Section I of the Act contained a definition of the expression "Na-
tural-born British subjects", and provided, inferalin:
"1. (1) The following persons shall in the Union be deemed to be.
natural-born British subjects. namely:
(a) Any perçon born within His hlajesty's dominions and
allegiance;".
"British siibject" was defined in section 30(1)of the Act as-
". .. a person who is a iiatural-born British subject, or a person who
is the holder of a certificate of naturalisation or a person who has
become a subject of His hlajesty by reason of any annexation of
' L.of N.,O.J.,1923 (Na. 6)p. 604.
Act No.qo of 1927.secI (a).inStoluteofthe UnionofSouth Africa, 1927-1qz8,
Vol. II, p2.g6 SOUTH WEST AFRICA
territory, or citherwisehas uiider this Act becomea British sub;".t
It was furt1v:r provided in section 3(1)of the Act that: ".. .'the
Union' includes also, in addition to the limits of the Union of South
Africa, theMandated Territory of South-West Africa."
7. With regard to the Native inhabitants of South West Africa the
legal position was esplained as follows in a memorandum dated 19
December 1928 sribrnitted by Kespondent at the request of the Council
of the League:
"B. Native Inhabitants
Xo legislalive measure conferring automatic naturalisation upon
the native iiihabitants, iior giving them some form of descriptive
title, has been passed. They are regarded as statelesssubjects under
the protectioii of the mandatory Power, and in a passport such a
person woub-lbe descrihed as n native inhahitant of Soutli-West
Africa uridei. the protection of the Union of South Africa in its
capacity as mandatory of South-West Africa. 'i'here is, however.
nothing to prevent the native inhabitalits from applying for
naturalisation under .4ct18 of1926 ,nd in this respect they stand
in precisely theame position as Europeans who are aliens'."
S. In response to questions by the Permanent Mandates Coiniiiission
the position \vas once iiiore explained in a memorandum by Kespondeiit
dated 19Juiie 1929 ,s follows:
"Section I ofAct 18 of1926 provides that 'any persoii born withiii
His Alajesty's Dominions and allegiance' shall be deeined to be a
Britishsubject. Asthe mandatedterritory isnot part of His Majesty's
Dominions. it follo\that ;Lperson is not deeined to be a natural-
horn Britishsubject merely by reasoii of his birth in that terr'."ry
And,
"As persoiis born in South West Africa of alieii or rather iion-
British parents do not become British subjects jure soli persons
borii in thai: territory are Union nationals oiily if born of British
parents, natural born or naturalised, and areiich nationals only if
they themsi:lves are still domiciled there and have not hecome
aliens3.'"
9. During the Fourteenth Session of the Permanent Mandates Com-
mission in 1928 ,espondent's representative explained that Act No. 40
of 1927 did not affectthe status of Native inhabitants of South West
Africa. He is reported to have said that:
"Tlie wholebasis ofthe Inwwnsthat, beforc n person could become
a Union national. he must be a British subject. Once that point was
realised, the Act became perfectly plain. A native of South-West
Africa was not a British subject, and, that being so, he could not
hecome a Union national 4."
' L. of N.O.J. .gzg(Xo.5). p. 827.
' Ibid. (No8).18rz87.
' Ibid., p. 1288. As regards the proposition that the mandatedwasrnotory
part of "His Majesty's Dominionseefurther Ffrosv.Stevenson. 1937.C.L.R.
528.atpp. 550. 55::-553, 581-582. quoted hy Judge hlinInternational Slatus
of South West Afvi,:a. Aduisory OpiI.C.J .eports1950.pp. 151-153.
' P.M.C., Mi»., XIV, p. 80. COUNTER-MEMOR IAFLSOUTH AFRICA 97
In this regard M.van Rees, a Member of the Commission, is reported
to have said:
"He inferred from the accredited representative's reply that the
natives of the mandated territory had not automaticaily become
either nationals of the Union or British subjects in consequence of
the application of the Act '."
lt would appear that the South African Government's explanation
regarding the status of the Territory's Native inhabitants was accepted
by the Permanent Mandates Commissionand the League Council.
IO. Applicants, however, in charging that-
". .. the Uiiion has by processes of general 'application' identified
the status ofinhabitants of the Territorv with that of Nationals of
the Union 2".
also cite froin the aforementioiied Acts, and appear to question Res-
pondent's explanation to the Permanent Mandates Commission,referring
toit as something which Respondent codd "plausibly contend" '.
Applicants' attitude in this regard presumably rests on the wordiog
of section 30 (1) of Act Ko. 18 of 1926,which provided "... 'the Union'
includes also, in addition to the limits of the Union of South Africa. the
Mandated Territory of South-West Africa", and which is italicized by
Applicants at 1, page 190.
Applicants might intend to suggest that this definition of "the Union"
rendered South West Africa a part of the Union and therefore also a
part of "His hlajesty's Dominions" for the purposes of sectioii 1 (1)
(a) of Act No. 18 of 1926, which would have meant that ail persons
borii in South West Africa would in terms of the said Act have been
regarded as "Natural-born British subjects".
If this is indecd what Applicants have in mind, the suggestioii would
be unfounded. Section 30 (1) was merely a definition section, ascribing
a meaning to the expression "the Union" where it occurred in the Act.
In section 1 (1) (in so far as relevant) that expression occurred only in
the context that certain persons, as described in paragraphs (a), (6) aiid
(c), wodd "in the Union bedeemed to be natural-born British subjects"'.
Thus the following summary of the position by hl. van Rees, in a
memorandum submitted to the Permanent Mandates Commission at its
Sixteenth Session 5,was perfi:ctly correct:
"Article 30 lays down that 'the Union includes also, in addition
to the limits of theUniori of South Africa, the mandated territory of
South West Africa'.
It folloivs that the perçons conternplated in paragraphs (a). (6)
and (c)of Article I are deemed to be natural-bom British subjects
mithin the limits of th Union and South West Africa. It does nol
foilow that nny person born or domiciled in the latter territory is
deemed to bc a natural-born British subject.
This iuterpretatiou is confimed by the South-Africau Govern-
ment's memorandum of June xgth, 1929 (document C.P.hl. 898), in
1 P.M.C.. hlivcXIV. p. 80.
1, p190.
3 Ibid.p. 192.
Videpara.6 (b), supra.
' 660 26 Nov. ~gzg.98 SOUTH WEST AFRICA
which it is stated that 'as the mandated territory is not part of His
Majesty's Dominions it follows that a person is not deemed to be a
natural-bom British subject merely by reason of his birth in that
territory'.
1 may Say, in short, that, from the point of view of the mandate,
the Act of 1926does not seem to cal1for any criticism '."
II. In the preinises Respondent submits that the allegations of Ap-
plicants relative 10 the aforementioned two Acts, and their criticism of
Respondent's explanation regarding the effect thereof, are without
foundation.
D. The Positiori under the South African CitizenshipAct, 1949(Act
No. 44 of 1949)
12. Appiicants refer to Act No. 44 of 1949and cite the provisions of
sections 2 (2).5 (r)(e) and 38 thereof 2.
(a) Section 38 of the Act, it is submitted, has no hearing on the grant
of South African citizenship. As is apparent from the text of the
section, it rierely equates certain terms used in prior legislation
with the terniinology introduced by Act No. 44 of 1949.
(6)Under section 5 (1) (e), South African citizenship by descent is
conferred on a child (born before 2 September 1949)of a father who
was, at the 1:imeof such child's birth, a British subject under the
laws then in :forcein the Union, and domiciledin the Union or South
West Africa. The section clearly refers only to the children of a
particular ciass of persons, viz., British subjects, who had obtained
such status legitimately under laws previously in force. This is
further emphasized hy section 5 (4) of the Act, which reads as
follows:
"No Dersoiiwho. immediatelvorior to the date of commencement
of this Âct, vias neithera ni& national nor a British subject under
the law then in force in the Union. shall be a South Africnncitizen by
virtne of the provisions of this section."
Section 5 (1) (e), therefore, also has no bearing upon Applicants'
thesis.
(c) Section 2 (2) of the Act, however, granted South African citizenship
hy birth to al1persons born in South West .4frica after I July 1926,
and before 2 September 1949,and who complied with the conditions
referred to iri the sub-section.
In terms of section 16 (3)of the Act, such persons were given the
right to renounce their South African citizenship within 12 months
after the date of commencement of the Act.
It is conceded that section 2 (2) extended South African citizen-
ship to persons born in South West Africa during the penod stated,
including the Natives, without theirhaving been British subjects.
13. Respondent, however, denies that the provisions of the said
Act,are inconsistent with the international status of the Territory, and
denies that in passing the Act it has "violated its obligations as stated
in Article 22 of the Covenant and Article 2of the Mandate" 3.
' P.M.C., Min., XVI, y. 1R8(Annex 8 In]).
1,p. 191.
' Ibid.. p. 19%. COUNTER-MEMORIAL OF SOUTH AFRlCA 99
Full powers of legislatiori were granted to Respondent under the
LIandate. Such powers included the power to apply Respondent's laws
to the Territory. There is nothing in the Covenant or in the mandate
instrument which expressly or by implication prohibited Respondent
from conferring South African nationality upon the inhabitants of the
mandated territorji
The Councilof the League, in its resolution of 23 April1gz3, recognized
that individual inhabitants of a rnandated territory could voluntarily
obtain the nationality of the Mandatory Power '. It is implicit in this
ruling that if individual inhabitants could legitimately acquire the
iiationality of a Mandatory, .Ide facto position coulù arise where a large
number of, or even all, the inhabitants could be endowed with such
nationality. It is clear that the fact of there being a common nationality,
shared by the inhabitants of the Mandatory State and those of the
mandated territory, could in terms of the resolution not by itself affect
the interiiational status of the mandated territorv. What the Council
ohj*:ctt:dtu \v:t,:L p:trti<iiI,tr ni:,Illufrcdnf~rniriir of i~~tixiality, aiid
ilor rhc.fncr of soiifcrnicnt of ii:irion:ilit\i itii-I'.
14. It is submitted, furtheimore, thai the confermeut of South African
citizenship by Act No. 44 of 1949on certain inhabitants of the Territory
did not bring about adiminution of the existing rights of suchinhabitants.
III this regard the position is analogous to that which obtained under
Act No. 40 of 1927 ', whereby a second nationality was conferred upon
certain persons in the Territory. The South African nationality conferred
under the said Act did not, to quote M..van Rees,
". . . absorb the nationality of so-called British subjects in the
iiationality of the Union. It deprived them of nothing, but granted
them, on the contrary, the advantage of being able to take part in
the public lifeof the territory. These persons, therefore, had not lost
their status as British subjects 4."
15.Respondent denies the Applicants' allegation that the provisions
complained of were, enacted in furtherance of a plan or purpose to
incorporate the Territory 5.
As already indicated 6, Respondent consistently declared, both before
and after the adoption of this Act, that is was not proceeding to incor-
porate the Territory, and that it had the firm intention of administering
the Temtory "in the spirit of the Mandate".
It must be pointed out, furthermore, that as far as Respondent is
aware, it was at no stage prior to the commencement of these pro-
ceedings suggested by anyone that the adoption of Act No. 44 of 1949
was inconsistent with the iiiternational status of the Territory.
Respondent repeats that it at no stage regarded the provisions of
this Act as being in conflict xvith the international status of the Terri-
tory.
16. Respondent further denies the allegation that the provisions of
.(...para. 4.supra.
Cedain provisions of which axe citedin para
' P.M.C.. Min., XVI, p. 129.
5 -, n.-~,.
Vide Chap. II, supra.100 SOUTH WEST AFRICA
the Act in question wereintended to. or do in fact,frustrate the objective
of promoting "conditions under which the Territory's inhabitants may
progress toward self-determination" '.
The conferment of nationality by the provisions of the Act cannot
possible self-determination, Applicants have in n? way spelled out theirds
allegations in support of their cornplaint in this regard. Progress to
maturity is in no way affected by nationality, unless nationality legally
imposes limits on opportunities for progress, which it does not do. The
neutral character of these provisions can perhaps be demonstrated in the
foliowing way: if Act No. 44 of 1949were to be amended to conform to
the position prior to 1949 as far as South West Africa is concerned, it
would not in any way open new avenues for progress towards pohtical
matwity. CHAPTER V
INCLUSION OFREPRESEPITATIVES FROM SOUTH WEST AFRICA
IN THE SOUTHAFRICANPARLIAMENT
A. Introductory
I. The South West Afnca Affairs Amendment Act, 1949 (Act No. 23
of 1949).provides in the folli~wingterms for representation of the Tem-
torv in the South African Parliament:
(a) "The territory shall be represented in the House of Assembly
by six members to be elected in accordance with the provisions
of this Act 1."
(b) "The territory shall be represented in the Senate by four
senators, two of wliom shall be nominated by the Governoi.
General. and the other two elected as hereinafter ~rovided 2."
2. Applicants contend that the Act gives effect to a "policy of 'poli-
tical integration'" and violates Respondent's obligations in the following
respects, namely:
(a) the Act is inconsistent with the international status of the Temtory
because it is "part of a plan to incorporate the Tenitory politicaliy",
and "erodes the international status of the Territory;" 3 and
(b) the Act "impedes oppcirtunity for self-detemination by the in-
habitants", and it "excludes 'natives' from the processes of self-
government" '.Respondent will deal with these charges scparately.
B. The Allegation that the Act 1s "Inconsistent with the
International Status of the Temtory"'
3. Respondent submits that the fact that there is representation of
South West Africa in the South African Parliament cannot and does not
affectthe international statu!; of the Territorv. Res~ondent has the dutv
of ,î(lniinisrcring rhc ?'r.rri[i,ry,and such rcpiesenr~tiori hns rhe obi.ioi&
arlvatit:i~e that rcl~resentari\.es of the 'l'erritory :ire cnablctl directly to
inform Kcspondcnt's I'arli;t~iit:r~ats to the necds of the Territory and to
influence its decisions in regard thereto. :\s Respndeiit's I'nrliament is
the iiltim:~tenuthority in South \Vst African :iffairs, this right of repre-
sent:itioii canonlv be to the b:ncfit of the'l'emton-.
As stated in dhapter II above, the granting of such representation
was already foreseen in ~gzciby General Smuts 5 and the Commission
of Enquiry as to the future Constitution of the Territory in 1921 like-
wise recommended a fom of government giving the population of South
' Sec.27 (I),in TheLm of Sou~h ~VCSAIfricnzgqg,Vol. XXVIII, p.152.
Sec.30 (l),inThe Laws of South West Africa1949,Vol. XXVIII, p.182.
' 1,P.193.
+ Ibid.p. 189.
' Vide Chap. II.para.4,supra.IO2 SOUTH WEST AFRICA
West Africa "full representation in a Provincial Counciland in the Union
Parliament" '.
4. Respondent submits that the fact that the South West African
representatives participate in deliberations relating to the Territory, is
iii no way inconsistent with the international status of the Territorv.
~-~~~....fict that such re~re-~~~~~ives can also s~eak and vote on matteis
regarding Respondent's domestic affairs, can aLo notafiect the intema-
tional status of the Temtorv. Respondent, as a sovereian State. has full
authority to allow anyone i'w ishêsto participate in ics government.
5. The Commirtee on South West Africa, whose report for the year
1956is cited by the Applicants 2, could not suggest that, seen objectively,
representation of a mandated territory in the legislative institutions of
the alandatory Power would be inconsistent with the international
status of such Temtory. In the very report cited by Applicants the
Committee stated, inter alia, thatit could-
". .. conceive of circumstances in which representation of a Man-
dated Territory in the legislative institutions of the Mandatory
Power inight. be of certain advantage to the inhabitants, after due
consultation with them and with proper safeguards for their special
status, as a rneans of estending ta them political and parliamentary
experience and an opportunity to take part in making the laws
under wliich they live, especially if it were not feasible for the
Territory to have a legislative organ of its own 3".
6. In this regard it is significant that in the case of certain trust
territories, formi:rly under mandate, provision was made for their
representation in legislatures external to such territories. Thus under the
Nigerian Constitiition of 1951. the British Cameroons, a temtory under
trusteeship. hnd representation in the Nigerian House of Representatives.
and also in the regional legislative organs '.And the Trust Territory of
the Cameroons iinder French Administration was, as an "Associated
Territory" of the French Union, given representation in the organs
of the French Parliament =.
So also, under the Gold Coast constitutional reform of 1953, the Trust
Territory of British Togoland was aliotted 14 seats out of a total of
104 seats in the Gold Coast Legislative Assembly. While the northem
sector of the Territory was thus treated as an integral part of the Gold
Coast, the soiith again was represented by 21 members out of 39 on the
regional body of the Trans-Volta/Togoland Council. The French Sector
of Togoland also formed part of the French Union as an "Associated
Territory" 6.
Although the idea of having theçe so-caiied "administrative unions"
was at various times questioned hy certain States in the United Nations,
the Trusteeship l:ouncil, which at the request of the General Assembly '
1 U.G. 24-rgzr. para. 7. pq. Vidc Chap. II, para4.supra.
1,pp. 192-193.
C.A., O.R., EleventhSess.Sup. No. 12 (Aljrgi). p. 8.
' Chawdhuri. R. N., Int~mational Mandates and Tvurleeshifi Systems (1955). COUNTER-MEMORIAL OF SOUTH AFRICA IO3
gave special consideration to the aforementioned constitutional arrange-
ments, while suggesting certain safeguards intended forthe preservation
of the separate status and identity of the trust territories participating
in such unions ', did not fiiid that the mere representation of a trust
territory in an external legislative body was inconsistent with the
separate international status of such territory ?. Consequently the
General Assembly permitted continuation of the arrangements concerned.
7. Respondent also denies the aliegation that the Act is "part of a
plan to incorporate the Territory". Representation of the Territory in
the South African Parliament. such as provided for in the Act, had been
requested of Respondent in ;resolution of the House of Assembly of the
Union Parliament in 1947, which was brought to the notice of the
United Nations 3.In that and the followingyears Respondent re eatedly
explained that such represeiitation was proposed for the bene k t'of the
Temtory, and gave the assurance that it "did not mean that Temitory's
incorporation or absorption in the Union ofSouth Africa" ',an assurance
which was fonnally noted by the General Assembly of the United
Nations 5.Although resolutioiis were proposed in organs of the United
Nations during the years 19.19and 1950 to the effect that the Act con-
stituted "a violation of the Charter", such proposed resolutions were
repeatedly rejected 6.
The frank and open manner in which Respondent dealt with this
matter-particularly by advising the United Nations Organization of its
intentions and proposed actions-beiies, it is submitted, any suggestion
that the Act in question W:LS passed for the purpose of furthering an
"insidions and elusive" process of "piece-meal incorporation" of the
Territory 7.
C. The AUegationsthat the Act "Impedes Opportunity for Self-Determi-
nation" and "Excludes 'Natives'from the ProcessesofSelf-Go~ernment"~
8. To substantiate this charge, Applicants rely in the first place on
their preceding contention that representation of the Territory in Re-
spondent's Parliament is inconsistent with the international status of
the Territory. The alleged "erosion" of the international status of the
Territory is stated to impe~ieopportunities for self-determination by
the inhabitants of the Territory Appiicants do not state in which
manner opportunities for self-determination are in fact impeded.
Secondly, they aver that representation of the European inhabitants
of the Territory in the Sout:h African Parliament "excludes 'natives'
and C.A. Rcsolulion 563 (.I). 18 Jan. 1952. in G.A., O.R., Sixth Sess.. Sup. N20
(AlzT.C. Rerolution 293 (VII), 17 July ,950. in T.C..O.R., SeucnthSers.. Rcsolutions,
Sup. i\.oI (TI794). PP. 49-55.
VideC.A., O.R., Scventh Sers., Sup. No12 (Alzrgi). pp. 28.36. 56.
Vids Chap. II, para. 15, supnz.
' C.A.. O.R.. Third Sess.,Part 1. 164th Plenary Meeting. 26 Nov. 1948. p. 588.
Vide also Chap. II, paras. 15.~8.supra.
Vide Chap. II. para. 18, supni.
Ibid.. para.20.
! 1.=o.-~~.
Ibid.. p. 193104 SOUTH WEST AFRICA
from the processcs of self-government", but the only process of self-
government here in issue is representation in Respondent's Parliament
-the vcry act of which Applicants make complaint.
Resoondent denies. in anv event. that the exclusion of the Native
iiilinh;tnnii of th: Territor): from p:irtisipnting in clcctioris for repre-
sciitatives in the South :\fric:in Pnr1i:imrnt in ail\. \va\.impedcs their
o..ortunities for o.om-ss towards ~ossible seif-de<erm&ation. In
litspondent's viev:,sucli representation as here in issuewoiil<lnot. 1i:iviiig
rcg'ird to thcir pruçnt stiige of developnient. necds. trxditions. culture
.îricattendtint ciiciiinst;iiices. ~cr\~ethe hest intcrests of the S.iti\.e
inli:ibit;iiitj. :\ccoi.dingly,as ha, becn iiidic:ited else\r.liereiii tliis Coiiriter-
\lrriiorinl'.alteriiati\,e oy[mrtiinities for (le\,eloprneniiithe i,roce.iies
of self-eovernment and f6Ïoromess towards wsiihle self-detehination.
more sGitedto their needs and c~rcumstances,'areprovided for the various
Native groups of the Territory. The representation of the European
inhabitants in Rejpondent's Parliament cannot and wüi not in any way
retard the politic~iladvancement of the Native inhabitants of the Terri-
tory.
Vida Respondent's replyto the chargemade byApplicants in ChapterV of the
Memorials. CHAPTER VI
ADMINISTRATIVE SEPARATION OF THE EASTERN CAPRIVI
ZIPFEL
A. Introductory
1. Applicants contend that "AdminislrativeSeparalion of the Eastern
Caprivi Zipfel" is inconsistent with the international status of South
West Africa, and statethat the Committee on South West Africa, in its
report for the year 1955, "condemned" the separate administration of
the said area ' as a violatiori of the Mandate and rejected the avowed
purpose of the action, for reasons which the Applicant[s] fully endorse" '.
In support of this allegation, Applicants cite an extract froin the said
report in which the Comniittee expressed the view that the "adminis-
trative separation of any portion of the mandated territory would place
obstacles in the way of the fulfülment of" one of the conditions laid
down by the League of Nations for the termination of the mandates
regime in respect of any mandated territory, namely that "it [the Terri-
tory] must be capable of mairitaining its temtonal integrity and political
inde~endence" 2.
1n'the extract cited by Applicants the Committee also questioned the
reasons advanced by Respondent for the seDarate administration of the
area Z.
2. Before dealing with Applicants' aiiegations, it is considered advis
able to refer again, briefly, to Respondent's general policy regarding the
control and administration of Native Affairs in South West Africa. and
then to deal in chronologic:il order with the following three distinct
phases in the ndministration of the Eastern Caprivi Zipfel,namely:
(a) the period 1921 to 1929, when the area was administered by the ,
High Commissioner of South Africa as if it were a portion of the
Bechuanaland Protectorate;
(6)the period 1929 to 1939. when the area was administered by the
Administrator of South West Africa as representative of the South
African Government ;and
(c) the period 1939 to the present, during which the area has been
administered by the South .&fricanMinister of Native Affairs (now
designated the hlinister of Bantu Administration and Development).
B. The Control and Adniinistration of Native Affairs Generally
3. From the inception of the Mandate the South African Govemment
assumed direct control of Native Affairs in South West Africa. Certain
legislative and administrative powers in regard to Native Affairs were
given to the Administrator of the Territory, but such powers were exer-
cised under the direction and control of the Governor-General. Le., the
Union Government. When the South West Africa Constitution Act, No.
' Ibid., pprg3-194.106 SOUTH WEST AFRlCA
42 of 1925, was passed, Native Affairs was one of the subjects, which
was expressly excluded from the competence of the Legislative Assembly
of South West Africa, and the Administrator continued to act in respect
thereof as before, i.e., under the direction and control of the Govemor-
General-in-Council. The South West Africa Native Affairs Adminis-
tration Act, 1954.(Act No. 56 of 1954). which came into operation on
I April1955, tranjferred the powers previously held by the Administrator
in regard ta Native Affairs to the South African Govemment's hfinister
of Xative Affairs, who functions under the direction and control of the
Govemor-GeneraY-in-Council.The effect of the said Act was, therefore,
to transfer the administration of Xative Affairs in the Temtory from one
organ of the South African Govemment (the Administrator) to another
(the Minister of Native Affairs) '.
The position a:;stated in this paragraph did not apply to the Eastern
Caprivi, which is dealt with in the next succeeding paragraphs.
C. Administration of the Eastern Caprivi Zipfel, 1921 to ~gzg
4. The Caprivi Zipfel is a long narrow strip of territory forming the
extreme north-eastern part of South West Africa, extending between
Angola and Recliuanaland, towards the Rhodesias. As explained else-
where in this Counter-Memorialz. it was obtained by the German
Government on I July 1890as a zoneof free accesçfrom her Protectorate
ta the Zambesi River, and was to be not less than zo English miles in
width at any point.
j. From the vi:ry inception of the Mandate,difficultywasexperienced
in effectively controlling that portion of the territory east of a line
between 23Oand 240longitude, known as the Eastern Caprivi Zipfel (but
often referred to as the CapriviZipfel, or simply asthe Caprivi), because
of its geographical situation and the lack of communications with the
rest of South West Africa. These circumstances gave rise ta special
provisions for the administration of the area.
According to I'roclamation Xo. 12 of 1922 (S.A.) 3,the Caprivi Zipfel
had since the withdrawal of martial law, on I January 1921. been ad-
ministered by the High Commissioner for South Africa, the Govemor-
General, who as representative of the British Government was then
also in charge, intea rlia, of Bechuanaland. By that Proclamation the
High Commissiorierwasdeclared to be the Administrator,with legislative
powers. of the Caprivi Zipfel as from I January 1921. The High Com-
missioner, by Proclamation No. 23 of 1922 (S.A.), provided for the
administration of the Eastern Caprivi Zipfel as if it were a portion of
the Rechuanalarid Protectorate, and for the laws of the Protectorate
to be applied thereto. The Resident Commissioner of the Protectorate
was to exercise authority in the area on behalf of the High Commissioner.
The reason for the issue of Proclamation No. 12 of 1922 (S.A.) was
stated by the Administrator of South West Ahica in the foilowingterms:
"By reason of its geographical situation and lack of comrnunica-
'Vide Chapter \III,paras.2-9, infra.
Vide the aceouiiofthe History of South WesAfricain Book IIIof thiscounter-
Memonal.
Second paragr:iph ofthe preamble. COUNTER-MEMORIALOF SOUTH AFRICA IO7
tion the Administration of Caprivi Zipfel by this Administration is
impracticable 1.''
6. Dwing the Thiid Session of the Permanent Mandates Commission.
in 1923, Sir Frederick Lugard pointed out that there \vas a district
known as the "Caprivi Zipfel area" which had been detached from the
administration of the Territory, and in respect of which no report had
been submitted to the Commission. Maior Herbst. the South African
rcprl'sent:iti\.~: "~spliiincd that thc arc; in quarion coiisited in the
rainy season of a huge ~\\~:tiiip\.\,liich cuiild tic:ippro:iclietl lrorn the
side of tht: m3ndatt.d territor\'. The Hich C<iiiiriiissioiierIwd. therefore.
been asked to take up its administration '."
And the Commission, in its special observations regarding adminis-
trative organization in South West Africa-
"... took cognisance of the fact that that part of the mandated ter-
ritory which was known as Caprivi Zipfel had, for geographical
reasons, been detached irom the aeneral administration of the terri-
tory and was administered under'ihe direct control of the Governor-
General for South Africa 3".
7. In 1924. during the Fourth Session of the Permanent Mandates
Commission, Sir Iirederick Lugard again asked if the Administration
of South West Africaadministered the Caprivi Zipfel area. Mr. Hofmeyr,
who then represented Respondent. answered that the area was adminis-
tered by the High Commissioner for South Africa, and that it had very
little intercourse with the rest of the territory under mandate'.
S. During the Sixth Session of the Permanent Mandates Commission
in 1925. the inatter of the a(iministration of the Eastern Caprivi Zipfel
was again brought up. Froin the questions put to the South African
representative, Mr. Smit, it :ieems that at least certain members of the
Commission doubted the propriety in law of the administration of the
are3 through the High Commissioner for South Africa.
Thus hl. van Kees wished to know whether the area \vas ". . .still
regarded as part of the mandated territory in spite of its incorporation,
for administrative purposes, in 13ech~anaIand?"~. And M. Freire
d'Andrade emphasized that--
".. . the iirrangement whereby the Caprivi zone was being.adminis-
tered as part of Bechuan;iland was directly contrary to the mandate,
and it was the duty of the Commission to obtain complete infor-
mation in regard to the laws and administration of Bechuanaland $".
In the result the Commission requested a special report regarding
the position of the Caprivi, and the South African representative pro-
mised that a memorandum would be submitted.
9. In compliance with the Commission's request a memorandum
dated 20 Xovember 1925 wa:j submitted toit 7.In the memorandum it
was explained that in effect there were two administrators for South
' U.G. 2I-IgZ3, p. 2.
P.M.C., Min.. III. p102.
+ Ibid.. IV, p. 57.x 13).
' Ibid., VI. p. 58.
Ibid., p. 61.
' L.of N. Doc.C.7x7. 1925, VI:108 SOUTH WEST AFRICA
West Africa, each exercising the authority delegated to him by the
hlandatory: firstly the Administrator of the Territorywith the exclusion
of the Caprivi Zipfel, and secondly, the Administrator of the Caprivi
Zipfel. In both <:asesthe supreme authority was in the hands of the
Mandatory,on whoseinstmctions the two Administrators acted.
IO. In 1925, during the Seventh Session of the Permanent Mandates
Commission, the administration of the Caprivi Zipfel was again dis-
cussed. According to the minutes, M.Freire d'Andrade-
". . . reminded the Commission that he had ohserved last year that
siorier for South Africa. He did not clearly understand what was
the present position '."
In reply Sir Frederick Lugard said, ifiteralin, that:
"... neither the Hieh Commissioner for South Africa nor the Resi-
dent Administratoruof Bechuanaland were under the authority of
the Union Gi~veriiment,and that the Union Government could not
therefore issue instructions to them.
The principle at issue was whether the mandatory Power had
authority to delegate the government of a portion (large or smail)
of a mandated territorv to nnofhernutlbooritvwithout the nermission
of the Cuiiiicilof ihc Lciiguc.'l.liis\\.riscle.IIIimporr;iiii priiiciple.
Hc thouct.t it\i.:tsimi,urr.iiit tu iiotli;,tflic l;o\~cri~or-Gen~riil
administerëd the Canriji zone as a deleeate of the mandatorv
added.)nd not as ~iih Commissioner fo rechuanaland 2." (~talics
And M.liappard isreported as having said that-
"... the mandatory Power was in this case the Union of South
Africa, which must clearly assume full responsibility. The Com-
mission had reason to douht whether the Administrator of Caprivi
Zinfcl was iii fact resoonsible to the mandatorv Power. The Com-
mjssiuii iiiuji. ho\rt:\.& prciume tliiit tlie ;idiii1;iiitr3ti\.c niittiority
iiiCal>ri\~Zi :pfc.l\\,as actiiig. so :ISrtiiitt:rritory w:is coiicerncd,
on hekilf of thc iii:iridaior\. Po\rcr. niid tliat th< iiinndator!, Potïtr
was ultimat(:ly responsiblé. It mu&, in fact, be assumed ihat the
mandatory I'ower had not delegated its responsibility and that its
choice of the High Commissioneror of the Resident of Bechuanaland
far as the Commission was concerned, as its choice of Alr. Hofmeyr
to administer the territory of South-West Africa. The Union Govern-
ment retained the mandate and had chosen a certain person to
administer the temtory 3."
II. The Comniission again discussed the matter at the Eighteenth
that-ng of its Seventh Session in 1925. Sir Frederick Lugard then said
',
.. . the es~ential question for the Commission to ascertain was
whether the Administrator of Ca~riviZiofelreceived his instructions
from the Government of South Âfrica direct or from the Adminis-
P.M.C.. Min., VII.p. 16.
Ibid.. pp. 16-17.
' Ibid..p.17. COUNTER-MEMORIAL OFSOUTH AFRICA log
tration of the mandated territory. III the former case, the mandate
would be divided into two parts; in the latter, it would be merely
a delegation by the Adniinistrator '."
Aiid the Commission. in it:sobser\rations to the League Council, noted
that it-
"... would nppreciate a clear aiid concisestatement fromthe maiid;i-
relations between Caprivi-Zipfel and the mandatory Power. It istive
~articularlv anxious to know whetlier the Administration takes its
;nstmctio& from the Administrator for South-West Africa or
whether it is directlv under the control of the Government of the
Union of South Africa Z."
12. Althoiigh no further :xctioii wüs takcn by the Permanent Mail-
dates Commission iii regard Io tlie matter, it is apparent from the afore-
going that misgivings were expressed as to the propriety of administering
the Eastern Caprivi Zipfel through the Bechuanaland Authorities and
subject to the laws applicable in the Bechuanaland Protectorate. These
misgivings influenced Respoiident to bring about a change in the
administratioii of the arca, as will be dealt witli in the next succeeding
paragraphs.
D. ThePeriod ryzyto 1939
13. Uy I'roclaniatioii Xo. 196 of 1929 (S.A.). the administration of
the Eastern Caprivi Zipfel was transferred from the Bechuanaland
Authorities to the South West Africa Administration. The Adininistra-
tor of South West Africa war;appointed as Administrator of the Caprivi
Zipfel. and tlie Governor-General's legislative powers were delejiüted
to the Admiiiistr:itor. AIICI1,y Proclaination Xo. 26 of 1929 (S.W.A.),
the Administrator applied the laws of South West Akica to the Caprivi
Zipfel.
14. Duriiig the Eighteenth Sessioii of the Perniaiient Nandates Com-
mission in 1930,Lord Lugard enquired as to-
".. . the reasons for wtiich the Caprivi Zipfel which properly be-
longed tothe mandated territory andhadhitherto been administered
under the Bechuanalan(1 territory, had nolv been retransferred to
the administration of the mandated territory '".
In reply the South African representative. Mr. Courtney Clarke, said
that-
,... so far as he was aware, tlus \vas a question that had been raised
by the Maildates Commission,and that the transfer had been carried
out in deference to the Commission's wishes.He hoped that, should
difficultiesrise in the administration of so remote a territory, the
members of the Commission would remember that it was they who
had suggested the transfer 3."
According to the record, Lord Lugard esplained that-
"... the Mandates Conimission had asked why a part of the
'P.M.C..Min.. VII.p. 135
Zbid., p. 217(Annox14).
' Ibid.X,VIII.p. 13s.Il0 SOUTH WEST AFRICA
maiidated temtory was being administered separately, brrt had
neveriiisistedoitits rdrans/er "'. (Italics added.)
15. The administration of the Caprivi Zipfel By Respondent throngh
the agency of the Administrator of South West Africa continued froiu
1929to 1939.During tliat period, constant difficultieswereexperienced in
the administratioii of the area by reasoii ofits geographical inaccessibility
from the rest of South West Africa. In fact these difiïculties, which are
dealt with more fully hereinafter 2,had, according to an officia1report,
resulted in "a period of almost complete stagnation" 3.
The South West Africa Administration accordiiigly requested lies-
pondent to be relieved of the administration of the area 4.
E. The Period1939to Date
16. Uy Proclaiiiatioii No. 147of 1939 (S.A.), it was provided that
the Eastern Caprivi Zipfel wonld in future be administered by Res-
pondent's Ministcr of Native Affairç. The second paragraph of the pre-
anible to the Pro-'lamation read as follows:
"... experience has shown that the geographical position of that
portion of the Caprivi Zipfel . . .referred to as the Eastern Caprivi
Lipfel, makes it expedient that it should be administered by the
Minister of Native Affairs of the Union or by another Minister of
State ofthe Union acting on his behalf; . . .sr'
17. In the Aiinual Report to the League of Nations in I 39, the
reasons for the transferofthe administration of the area to theginister
of Native Affairs were esplained as follows:
"Transler O/ Ad+ninistratiueControl O/ the Easter~rCaprivi Ziwel
lo the Union Native Affairs Department.-Ever sincc it was decreed
by Union Proclamation Xo. 196 of 1929 that the Caprivi Zipfel .. .
shonld be administered as part of the said Territory, difiïculty has
been esperienced in controlling the Eastern portion (the portion to
the East of the Kwando River) owing to its geographical position.
The only way of reaching it from Windhoek is either throngh
Bechuanaland or by rail through the Union and the two Rhodesias
via Livingstone. The latter route was the one usually taken. A
direct way .via Grootfontein is impossible, there being two large
rivers (the Okavango and the Kwando) to be negotiated and a dry.
uninhabited, trackless, desertlike stretch to be traversed.
filoreo\~er,more direct control of the ara was very necessary ifin
the interests of the residents and of adjoining territories it was to be
kept free froin cattle diseases.
It was therefore decided that from a point of convcnience control
subject,hwever, 10 theterms of the Mandate, should be vested in the
Union Minister of Native Affairs and this \vas accomplished by the
promulgation of the Eastern Caprivi Administration Proclamation.
1939(Proclamation No. 147 of 1939) 6." (Italicç added.)
P.M.C.. Min.,VIII. p. 132.
Videparas. 17 and 29-31.infra.
Report on the Administrationof the I.iasternCaprivi Zipfe1940. p.IO.
' Ibid., p.iI.
' Pmc. No. 147 <if,939 (S.A.),21 July 1939. in The Lnws of South Wsd Africa,
2939, Vol. XVIII. p. 28.
U.G. 30-19.+o, pp. 134.135.112 SOUTH WEST AFRIC.4
affecting natives" 'in the rest of the Territory. In both cases no Act of
the South African l'arliament applies unless it is expressly declared
to be applicable. In both cases the State President can legislate by
proclamation as long os the provisions thereof are not repugnaiit to,
or inconsistent with, an applicable Act of Parliament. III both cases an
Ordinance of the Legislative Assembly of South West Africa can apply
only when it bar,received the prior consent of the State President-in-
Council. In respect of the Eastern Caprivi Zipfel, an Ordinance would
also have to be fxpressly declared to be applicable, but this additional
requirement is nierely one of procedure. As the whole of the Eastern
Caprivi Zipfel is i Xative reserve, and as the population consists almost
entirely of Natives, no Ordinances of the Legislative Assembly of South
West Africa have in tact been applied to the area. III this regard the
practicril position in the rest of the Territory is somewhat different
inasmuch as Orilinances of the Legislative Assembly in fact regulate
certain aspects of Administration such as, for example, education,
public Iiealth serviccs, etc., which affect al1 the inhabitants, including
the Katives.
zr. The Eastern Caprivi is at preseiit admiriistere<l as a Native Re-
serve by the same Minister mho has. since I April 1955, also exercised
control. on behalf of the South African Goveniment, of Native Affairs
in the rest of Siiuth West Africa. i.e., the Minister of Bantu Adminis-
tration :ind Development 2.The only practical differeiicein the adminis-
tration of the two arcas is that iii the Eastern Caprivi al1 matters of
administration are under the control of the said Minister while in the rest
of South West Africa. althoueh the said Minister has control of Native
:\H:iirs gener:illy. the :\~liniiiijir:itor coritruli ccrtiiiii :tjlm:tsnf govcn1-
iiicritSIIC~I ilfor cxilinpl~>C, ~UC:L~I~ p~tII,lich~alth .rq:r\,il~i.etc. ~vhich
~.uri~.eri:iIIItl,,! i.ih:~I~it:irt~~lt~~iiltc Sati!.c>. 5:tt.c f<,rstt:llirnitt.'l,
.fi1'wt5of go\crillllcnt ilffe:tiitg ~:lti\,c111thc r~;l of S~lllil\\'est ;\f1'123.
whi~li arc co~i~r~~llc1~ 0l thc .\dn~ini;trator, tlic!r\:II:I13 froi~iI :\pril
loi.;. been comc.letecoIordination between the administration of Naiive
Affzrs in the ~aitern Caprivi and in the rest ofSolith West Africa.
G. The Allegation that Administrative Separation of the Eastern Caprivi
Zipfel 1s "Inco~isistent with the International Status of the Territory"
22. Applicants allege that the transfer of the administration of the
Eastern Caprivi Zipfel from the Administrator of South West Africa
to the South African Government by Proclamation Xo. 147of 1939
(S.A.) constituti:~ an act which is "inconsistent with the international
status of the Territory". Save for quoting and cndorsing certain con-
clusions of the Committee on South West Africa, which will be dealt
with hereinafter. Aoolicants do not advance an\, areument in su~~ort of
their allegation.. .. . L7 ..
Respondent submits that such transfer could not, and did not. in
anv wav. affect the international status of South West Africa. In Re-
status of the Taritory is concerned, whether one or another org:in ortional
Ac1 No. 42 of igzg.sec. zG (a). in Laws of South Wesl Africa, Vol. II (1923-
1927Vide Chap. VU. paras. 2-9, infra. COUNTER-MEMOR IF SOUTH AFRICA
"3
agency of Respondeiit is responsible forthe administration of the Terri-
tory or a portion thereof.
Separate administration by itself, it is subinitted, cannot affect South
West Africa's territorial inte@ity or its status as a separate international
entity.
23. The record of history shows that the transfer of administration
of the Eastern Caprivi was made because of Respondent's desire to
achieve more effective admiriistration aiid to serve the best interests of
the inhabitants of the area, and that there is no substance in Appli-
cants' suggestion that such transfer is indicative of an intention to in-
corporate the Territory or a part thereof. In fact Respondent had itself
intimated to the League of Sations that the administrative arrange-
ments of the Eastern Caprivi were "subject to the terms of the
Mandate" '. And the Permanent Maildates Commission held the view
that the arrangemeiit "calls for no observations on its $art firoviriedal1
theprovisions of the mav vidaalre properly applied" 2.
24. Moreover, as aiready pointed out 3,there is less administrative
separation at present than there was during the period 1939-1gj=j.
Since iggj Respondent has, through its hlinister of Native Affairs,
(now designated the hlinister of Bantu Administration and Develop-
ment), been in direct control of Native Affairs generally, both in the
Eastern Caprivi Zipfel, and in the rest of South West Africa. Only
certain limited aspects of gciveriiment affecting Natives in the rest of
South West Africa are contri~lledby Kespoiident through the Adminis-
trator.
H. The Views of the Committee on South West Africa,
as Endorsed by Applicants
25. Applicants say that the Committee on South West Africa in its
1955report "condenined thisseparation as a violation of the Mandate" 4.
In the first place Respondent denies that the Committee found a violation
of the Mandate. IVhat the Coinmittee in fact did was to qt~estion-
". . . whether the administrative separation of any section of the
Territory is condiicive to the attainment of the objectives of the
Mandate System 5".
The Committee was of the opinion-
"... that such a separation islikely to prejudice consideration (b) of
the 'General Conditions which must be fulfilled before the Mandates
regime cari be brought to an end in respect ofa country placed under
that regime', approved by the Councilof the League on 4 September
1931,namely, that 'It (theTemtory) must be capableof maintaining
its territorial integrity arid political independence6".
And the Committee considere,Z-
".. . that any administra.tive separation of any portion of the Man-
Vide para.17,supra.
IIn paras20.and zr. supra,
'1.P. Ig3.
'C.A.. O.R.,Tcnfh Scrs.. Sup. ro;1,p.
Ibid. Also 1,pp.193-194."4 SOUTH WEST AFRICA
datedTerntorywould place obstacles in the way of the fulfillment of
thisimnortant condition laid down bv the Leam- of Nations '".
There was clearly no condemnation of separate administration "as
a violation of the Mandate".
26. The aforernentioiied "~eneral Conditions" referred to by the
Committee were formulated in response to a resolution by the Council
of the League of Nations, dated 13 January 1930.which read as follows:
"Being anxious to determine what general conditions must be ful-
filledbefore the mandate regime can be brought to an end in respect
of a country placed under that regime, and with a view to such deci-
sions as it may be called upon to take on this matter. the Council,
subject to any other enquiries it may think necessary. requests the
Mandates Commissionto submit any suggestions that may assist the
Councilin coming to a conclusion 2."
The answer of the Mandates Commissionwas as follows:
"The Mandates Commissionis of opinion that the emancipation of
a territory uder the mandate regime should be made dependent on
two classes of preliminary conditions:
(i) the existence in the territory concemed of de facto conditions
which justify the presumption that the country has reached the
stage of development ai which a people has become able. in
the words of Article zz of the Covenant, 'tostand by itself under
the streriuous conditions of the modern world';
(ii)certain guaranlees to be furnished by the territory desirous of
emancipation to the satisfaction of the League of Nations, in
whose n;ime the mandate was conferred and has been exercised
bv the Mandatorv )."
~, ~ ~ ~ ~ ,
After stating certain general considerations regardiiig the question-
'\\'tirtlier n peoplewliivtiIi;i1iitlii:rtobcïii iiiider tiitelnIi:ihc-
iroiiifitto siantl nlonciritliout the advice ;iiidassistaiic~of n iiinndl-
tory.. .",
the Commission soncluded as foliows:
"Subject io these general consideratioiis. the Commissioiisuggests
that the foliowing conditions must be fulfilled before a mandated
territory caii be released from the mandatory regime-conditions
which must apply to the whole of the territory and its popiilation:
(a) it musi. have a settled ~overnhent and an administration
capable of maintaining the regular operation of essential
governrnent services;
(b) it must becapable of maintaining its territorial integrity and poli-
tical independence;
(c) it must be able to maintain the public peace throughout the
whole territory;
(d) it must have at its disposa1adequate financial resources to pro-
vide re(p1arly for normal govemment requirements;
' G.A..O.R., TerithScrs..Sup. h'o.iz (A/zqr3), p.IO. AlsoI. p. rq4
' L. O/N.. O.J. 1,930 (No.2).p. 77.
' P.M.C., Min., XX, p.228 (Annex 16). COUNTER-MEMORIAL OP SOUTH AFRICA II5
(e) it must possess laws and a judicial organisation which will
afford equal and regular justice to ali '." (Itaiics added.)
27. It is obvious, Respondent submits, that condition (b), to which
the Committee on South West Africa referred, concerns the abiiity of a
territory to maintain its territorial integrity and political independence
alter having been grunted inrlependencc, in the same way as the other
cotiditions refer to the abilitv of such a territorv to maintain essential
services, public peace. etc. ,
In the premises, Kespondent submits that the said condition was
intended to arise for consideration only when it is proposed to bring
the mandatory regime in respect of a particular teriitory to an end by
the grant of independence. It would, for example, have no application
in a case where the mandatory reginie in respect of a territory is termi-
nated by lawful incorporation of that territory in another independent
State. And its application would be of a quaiified nature if, for example,
~artition is lawfullv broueht about in the Drocessof ~ermittin~ each -f
differcrit lmPulatio~ Rr~~~i;t,o achie\%self-dt:ierrrrin:rth.
In 50 f?r :asthe s:iid cuiicliiion]na)'3t a11I,e rcle\*ariiiitlis iurijitlci-
ation of the ~roorietv or otherwise of an act oerformed in the adminis-
triitiun of a ;iia;id:it&l tcrritory the ulriniatc' dustiny of \vhicli,lini riot
heeii detcrniined, it iatirot serve ns 3 groiiii~lfor cliiç,tioiiing siicli
:III :Iit~rLsstlie..h'i,oi)siIh~dct rsit)r/nlrlal-cc.. urrilnt,:r.il;.riiirs;itiuii
or incorporation, as to which see chapte; 1, pa~abaplis 5 to IO, supra,
or which is intended to friistrate or impede political advancement
towards possibleself-determination, as to whichseeChapter 1,paragraphs
II to 21, supra.
28. The Comniittee on Sotith West Africa did not question Respoii-
detit's purpose in providing for the Administratiori of the Eastern
Caprivi by the Minister of Native Affairs. The Committee merely cx-
pressed the opinion that "administrative separatioii would place ob-
stacles in the way of the fitlfillment of this important conditioti"-
i.e.. the condition clealt with in paragraph 27, supra-wvithout statiiig in
which way the arrangements relative to the administration of the
Eastern Caprivi could interfere witli the advancement of the peoples of
that area towards political niaturity and the exercisc of possible self-
determination.
liespondent in anyevent denies that the transfer of the administration
of the Eastern Caprivi to the Minister of Native Affairs, taking into
consideration the sound reasons which motivated such action. as well as
the present stageof development of the inhabitants of the area, is likely
to pre'udice the political advancement of the peoples of the area, what-
ever tke ultimate destiny of the Territory may be. On the contrary, the
superior administration which has been made possible by the said transfer
of administration. is a positivc:coiitribution towards progress generally,
includinr-.he volitical advancement of such ~eov.es.
29. i\pplicmts also eiidorse the \,ic\vs of tlie Corriniiltee \vit11regard
tothe reasoii :t<lvancedfor placing the Eastern CapriL.1under th2 adminis-
tration of thc Uinijter of Yativs Aifairs. The---~i.~ttee. in uiiejtiorrinr!
the reason advanced, referred toi statement bythe south ~fAcan rim mg
' P.M.C.. Min.. XX, pp. 228-zzg.116 SOUTH WEST AFRICA
Ninister in Parliament on I June 1951.The Priine klinister's statement
was as follows:
"The western part borders on South-\\'est Africa and came under
the South-M'est Africa Administration and under the courts of
South-West Africa. but for administrative reasons the eastern Dart
\\.as plnccd uidcr tlic Ciiiuii', ;i<liiiiiiistratto\\.Gnut :i~iii~s~lto
tlic Ciiion. I9ut ~iist;is;IIIundcrst;,nrliiig exi;t<.d -:iriiling-tli.,t
\\';il\.is Ba\.. \r,liicliis Cnion icrrinri:ldoej not I~cloiic[O Soutli-
West ~fr&. was for administratAe purposes placedYundcr the
control of South-West Africa. so the eastern part of the Caprivi
Strip for administrative reasons was placed iinder the Union Govern-
ment. The rzasoii for this is that the eastern part of the Caprivi
Strip is virtually inaccessible to South-West Africa. To get tliere it is
necessary to {:Othrough Bechuanaland. aiid perhaps even also around
the Zambesi and beyoiid it. It \vas practically inaccessible, aiid it
was almost impossible. or in aiiy case inconveiiient, to have court
sessions iii that area when you had to get your witnesses from South-
West Africa. Therefore. it is proposed here to legalise the existing
state of affairs, because the whole Caprivi Strip belongs territorially
to South-West Africa. It is proposed here to place a section of it,
namely, the eastern sectioii of the Caprivi Strip, under the admiiiis-
trationof the Union Government both for judicial and administrative
purposes. Tliat is what the Hiil contaiiis niid al1 its clauses are
practically self-explanatory '."
30. 'l'licCoiiiiiiittcitshould bc iiotrcl did iioi ril:cl[lie i.t!nwiigivc~i
Ly ilic l'ririic ~liiiistcr. as ;tllegcd I,y :\pplicnntj, biit iiiercly ;tatïd tli-il.
ns tlie li;isterii C;ii>rivicoulclbe rc:iili~.dfroin the ;idiniriistr;iti\~cic.ritr,:s
of South Africa only through non-Union territories, it was-
". . .not convinceilthai the directadministration of the regioii by the
Union has, in fact. made it more accessible to thc centre of iidniiiiis-
tration 2".'(1:talic;added.)
Eurthermore, in making this statement, thc Committee wüs probably
not as fully informed as the Permanent Mandates Commission had
been, and therefore probably did not appreciate adequately the nature
and implicatioiis of the difficulties concerning commuiiication with. and
accessibility of, the Eastern Caprivi. It is entirely erroneous to suggest
that the area can be reached as easily fromtherest of SouthWest Africa
as from the administrative centre of Respondeiit in South Africa. 1Sven
at the present time there is no direct communication between the 13astern
Caprivi and the rest ofSouth West Africa. The possibility of an overiaiid
route from the Police Zone of South West .4frica through the Okavango
Native territory and the Western Caprivi Zipfel to the Eastern Caprivi
has been fully investigated, with a completely negative result. The
geographical tenain is such that although the Mashi or Kwando river
could with extreme difficulty be reached from Windhoek in approxi-
mately eight days, the swamps in the vicinity of the said river caiinot be
traversed. They are infested with crocodiles and hippopotami. aiid a
bridge at least tfuee milesin length would have to be constmcted.
The shortest reliable communication-by rail. lorry and barge-from
U. O/S.A.. Parl.Deb.. Hourc O/AssetnblV yol. 7G(iygr)C,ol.8356.
C.A.,O.R. .eath Sess.Sup.No. rz (AIzy13) p.io. COUNTER-MEMOR IF SOUTH AFRICA "7
the rest of South West Africa to the Eastern Caprivi is through the
Republic of Soiith Africa, Bechuanaland and Rhodesia-a joumey which
is some 1,500 miles longer than the distance from Respondent's adminis-
trative centre (Pretoria) to the Eastern Caprivi, and which takes two or
more days longer to complete.
31. Commuiiication by air between Windhoek and the Caprivi, as
a medium for regular administrative coiitact, is also impracticable. The
only air service which at oiie time could possibly have been utilized,
operated weekly between Windhoek and Salisbury in Southem Rhodesia.
No intermediate landings were provided for in this service, and the only
regular transport service connecting Salisbury with Livingstone, the
nearest centre of communication to the Caprivi, is by rail via Bulawayo,
a distance of 586miles. The only transport service between Livingstone
and the Ca~rivi is urovided bv the Witwatersrand Native Labour
:\s,uci:irion.'l>utitij ;lutr~>~iil:~r.'Ct~ Kizangul:~ ttic coii\~t:y.iiiccis t>y
lurrv :inclfrom tlierï b), b.ir~c..The s~id air service is iio loi-ger in oper-
ation.
72. Given the fact that the Eastern Ca~rivi is a Native Reserve. and
ttint thc Kcsl>oiidcnt ISdircctly responiihlc for Sati\.e ;Iffair$ tliroughout
the l'crritory, IL srould bc illiigicalniid ninkc for uiis:itisf.ictory :i<lriiinis-
tr:ition if Kc.;ponilcnt \ver.: ohligcd to isqii. initru;tioii.; to ttic South
icutt ri II Im~itrinti~~ 1 tiriiich lnvoiiif IIienidi~iii~istritio~~\ver<?
conducfed directly from SGuth Africa.
33. In the premises Respondeiit submits that the views expressed by
the Committee on South West Africa, apparently without proper ap-
preciation of the facts concerning the Eastern Caprivi and its inaccessi-
bility to the rest of South West Africa, cannot, and in fact donot, serve
;is justificatioii for Applicants' charge that the form of administration
of the area is inconsistent with the status of the Territory.
1. The Alleged Frustration of Opportunities for Progress Towards
Self-Determination
34. In this regard Applicants make the allegation in their Legal Con-
clusions and Summary ', that Respondent's actions, including those
relnting to the administration of the Eastern Caprivi, fmstrate the
objective of the Mandate to "promote conditions under which the Terri-
tory's inhabitants may progress towards self-determination". Applicants
have in no way developed this submission or spelled out their allegations.
It is dificult to understand Applicants' allegation because, even where
administration is entrusted to two or more administrators. each snch
ndminisrr:itor isnn njii.iof lie;pondent, ;ind :tirs in siich i;ilsaiityiindcr
l?eq~r~ii~It:~itJ'icc~~o~a iii[l :oittrul.IIItIi,!orv, tlicreforv,itis ~Iiffi:~ilt
t(>~on~ci\.c \i.liIZc.yioiirlrn~:ilioiil<lt>ele-j niinilfiil of its rc;lii>iiiibilitics
whcii :i<tiiiçrliroiigh tivongeiicicstlinii\\,hm n<:tirigthroiiglione. Indccd.
practicnl ~:oiisider:itions.aiid the intcr~ti of thc people conccrned, may
dictate se~aration of administration
35.It has already been stated that administration of the Eas,te,m
Caprivi from Windhoek must of necessity be less effective than adminis-118 SOUTH WEST AFRICA
tration fromPretoria, and that the transfer of administration complained
of had as its sole object the improvement of the administration and,
consequently, the promotion of the well-being of the inhabitants of the
area. In fact, as bas already been stated ',the transfer ofadministration
of the Eastern Clprivi, was requested by the South West Africa Admi-
nistration because it found that it could not administer the ûrea effec-
tively.
36. It must furthmore be borne in mind that the Eastern Caprivi
is mainly inhabited by two tribes which have never had connections with
other Native groups in South West Africa, and that the territory in-
habited by them, being geographically almost completely isolated from
the rest of South West Africa. has problems peculiarly its own.
The inhabitants of the area have not yet advanced to a stage of
political maturit!?, but in the meantime they are, in the sarne manner
as other Xative 5oups in the Territory, being gradualiy educated to
play an ever-increasing part in the control and management of their
own affairs.
37.Since 1955, as has been shown above 2,there has been las ad-
ministrative sep:+ration than there was over the period 1939 to 1955.
Such administrative differences as do exist at present can in no way
interfere with the political and general advancement of the Caprivi
people towards possible self-determination, and do not frustrate oppor-
tunitieç for progress in that direction.
' Vide para. r5wpm.
2Ibid., paras. ~<i-zr. CHAPTER VI1
THE TRANSFER OF ADMINISTRATION OF NATIVEAFFAIRS TO
THE MINISTEROFBANTUADMINISTRATIONANDDEVELOPMENT,
AND THE VESTINGOF SOUTH WEST AFRICAN NATIVE RESERVE
LAND IN THE SOUTH AFRICAN NATIVE TRUST
.4. Introductory
I. Applicants allege that the above two actions are to be regarded
as-
".. .elements ofthe plan to incorporate the Temtory into theunion,
in this case through direct Union control of temtonal land and
development and direct control of the Territory's 'native' in-
habitants."
It is alleged, also, that-
"Transfer of 'Native' affairs to an agency external to the Territory,
and vesting 'Native' lands in a corporate body external to the Terrt-
tory cannot be reconciled with the international status of the Terri-
tory '."
And the submission is made that the said actions-
"... are elements of a plan for political integration of the Territory,
and that they tend snbstantially to impede progress toward the ob-
jectives of theMandate 2".
Respondent denies that tliese actions are elements of any plan as is
alleged by Applicants, and denies the existence of any such plan. Rypon-
dent further denies that the said actions are inconsistent with the inter-
national status of the Territory, and denies that they impede progress
towards the objectives of the Mandate.
For convcnience the two inatters referred to by Applicants are dealt
with separately hereinaftcr.
B. Transfer of Administration of NativeAffairsto the Minister of Bantu
Administration and Development
2. Respondent submits that, under the full powers of administration
granted to it by the Mandate, it can, in law, decide on the manner of
administration of ail aspect!; of governmcnt in the Temtory. includ!ng
Native affairs. It can, if it considers it to the advantage O the Native
inhabitants of the Territory, carry on such administration directly,
or through such agency as it deems expedient from time to time and as
circumstances may require.
3. It has already been indicated ' that, Save,for special provisions
with regard to the area knowii as the Eastern Caprivi Zipfel, Respondent,
' 1,P.194.
Zbid.p. r95.
' Vide Chapter VI. para. 3. rripro.120 SOUTH WEST AFRICA
from the very inception of the Mandate, assumed direct control of
Native affairs in South West Africa. This position was maintained in
the South West Airica Constitution Act, 1925(Act No. 42 of 1925),which
excluded Native affairs from the competence of the Legislative Assembly
of South West Africa, the Administrator continuing to act in respect
thereof under th(: direction and control of the Governor-General-in-
Council.
The effect of the South West Africa Native Affai~ Administration
Act, 1954(Act Xo. 56 of 1954).as already pointed out ',was merely that,
whereas prior to the passing of the Act the Governor-General-in-Council
controiled and directed the administration of Native affairs in the
Territory through its organ or agent,the Administrator, it has, since the
Act has come ini:o force, controlled and directed such administration
through another organ or agent, the hfinister of Native Affairs (now
designated the hfinister of Rantu Administration and Development).
4. Respondent submits that the transfer of the administration of
Native Affairs from one organ, or agent, of theState to another can in no
way affect the international status of the Territory, and, also, that it
can in no way ainount to inte ration not permissible in terms of the
Mandate. It is siibmitted, fwtfermore, that the choice of the organ,
or agent, througti which the administration of Native affairs is to be
conducted isa matter lvhich has. from the very inception of the Mandate,
lain entirelv in the discretion of Kes~ondent.
j. Tlic $nicltr;insft.r \va.;~iic~.t,:(lhr.clit\vas fclr tli:it III$',l'crritor!.
would beiiciit iftlie :idiiiinistratioii of S:iti\,e :iffairstlicrein \r,iithet
Ii;in<lsof tliz Departnieiit uf T:itivt: Affnirs (noir cnllcd the Ucplrtmciit
of 13niitii Administration and Ucvclopnieiit). with nll its experieiice.
iti cxpcrt pcrsoniicl and its teclinic:il 2nd utliér fncilities. Thc solc task
of thii I)ci>nrtmznt tins :it311 tinici, hccn th<:~rumotioii of the iritercsts.
and the dêvcloprnentand uplifting, of the Native population of South
Africa, and since the aforementioned transfer vas effected. also of the
Native population of South West Airica.
6. The aim of Act Xo. 56 of 1954 wasdescribed as follows by the
Minister of Native Affairs dwing a debate in the South African Parlia-
ment:
"The aim of this Bill is very simple. The Union is responsible for
Native affairs in South West Africa. At the moment the Union is
cnrrying out tlus t;isk through the a<lmini,tr;itor 3cting as :i rz-
~>reszntati\.eof the Eriion Go\.,:rnnient. 1do iiot e\,eiiintend bringing
nhoiit ;inv chance in the ninrhiiier\.. In the future tlie Admiiiistrator
will still Le iisedto carry ont the iasks which should be camed ont
by someone on the spot Z."
Earlier, in the co-urseof his address, the Minister had said:
"Actually 1think this House should welcome this change for now
it means that the Central Parliament is being given the opportunity
to discuss properly such matters which under the mandate have
become the task and the duty of the Union. This Parliament will
be able to cal1someone to account in connection with matters which
' Vide Chapter VI,para. 3,rupvo.
U. 01S.A.. Pofl. Deb.. House ofAsrenibly, Vol. 86 (rggq.ol.6455. COUNTER-MEMORIAL OF SOUTH AFRICA 121
have to be done by the Union. III any case, for the reasons it was
then decided to transfer to the Minister of Native Affairsfull control
over Native affairs in tha territory of South West Africa '."
7. Respondent has already referred to the explanation given by its
representative to the Fourth Committec of the United Nations in 1954
regarding the object and purpose of the Act Respondent wishes to cite
here only the following extract from the statement then made:
".. . the transfer of control over Native affairs from the Adminis-
trator of South West Africa to the Minister of Native Affairs ofthe
Union of South Africa ... would not result in the abolition or dimi-
nution of any service now rendered to South West Africa. On the
contrary, with its greater resources in money, manpower and ex-
perience, the Governmerit of South Africa would be able to increase
and improve those servicesin every way. Furthermore,theSouth West
Africa Administration and the Ministry of Xative Affairs wne botli
agenciesof theSouth African Governtnentutidit was thereforehard to
understand how the South African Gouernmentwould be less mindful
of ils resfionsibilities under Article 22 of the Cover~antwhile acting
through ouethanwhileaclingthrouggk the other... He thereforewished
to stress that therehad bea no incorfioralionof South West Africa by
tlaeUnion utid no annexalionto the Union 3." (Italics added.)
8. With regard to Applicants' aiiegatioii that the transfer of adminis-
tration tends "substantially to impede progress toward the objectives
of the Mandate"4 Respondent denies that it has any such effect, or
that it can in any way be construed as n violation of Respondent's
obligations under Article 22 of the Covenant and Article 2 of the Mandate.
On the contrary, the transfer was intended, and has had the effect of
operating. for the benefit of the indigenous population, especially by
providing for an accelerated rate of development of the Native reserves
in pursuance of valuable experience gained by the Department in a
similar spliere in South Africa 5, and by cncouraging and assisting the
various groups towards ari ever-increasing participation in the building
up of their reserves and in the processes of self-government therein 6.
Thus the change has promoted, not impeded, progress towards the ob-
jectives of the Mandate.
g. It may be pointed out, finally, that the Minister of Native Affairs
possesses authority to delegate any of his powers and duties to the
Administrator of South West Africa in his capacity as a member ,ofthe
Native Affairs Commission 7.The Minister has in fact exercised that
authority in delegating certain of his fulictions and duties in respect
of Native affairs in South West Africa to the Administrator in his afore-
said capacity.
W. of S./., Parl. Deb., Hourof Assernbly, Vol.86 (r954). Col. 6456.
' C.A.. O.H..Ninfh Session, FotrrlComm., 407th Meeting. r5 Oct. 1954, pp.
69-70.
' 1.p. r95.
Vide. e.g.pam. 21-23. infra.
Ibid..para.3,.
' Sec. 3 (3) of Act No. 5of ,959 supersedingsec. 2 (2)of Act No. 23 of ,920.122 SOUTH WEST AFRICA
C. The I'esting of South West African Native Reseme Lanoin the
South African Native T~st
IO. In support of their ailegations in the above connection,Applicants
cite, and endorse, what they term "relevant principles" set forth in the
Igj5 report of the Committee on South West Africa with refeience to
a resolution of the Permanent hlandates Commission of 7 July 1924'.
Before dealing with the views expressed by the Committee on South
West Africa, it will be convenient first to consider the following matters.
namely :
1. the resolution of the Permanent Mandates Commission of 7 July
1924;
II. the objects and purpose of the South African Native Trust; and
III. the effect of the vesting of South West African Native Reserve
Land in the said Trust.
These matters will be dealt in the above order in the next suc-
ceeding paragraphs.
1. THERESOL~JTIO NF THE PERMANAKT A AN DAT CEOSMMISSIO OF
7 Ju1.y 1924
rr. Articles rzo and 257of theTreaty of Versaillesprovided as follows:
Article 120 :
"Ail movable and immovable property in such territories be-
longing to the German Empire or to any German State shall pass to
the Govemrnent exercising authority over such territories, on the
tems laid d3wn in Article 257 of Part IX (Financial Clauses) of the
present Tre:ity . . ."
-.,,
"111the c:isc of the fornier Cermnn territories. in(:liiriiicoloiiit:i.
protcctor:itts or dcyeiidcncies ndministzre(l by ;t1l;indatory iindcr
Articlc22 of 1';ir1 (I.c;ib?icof S:itiuiis) of tlic 1irerteaty .. .
r\lI l)r<jpc!.:iii#pi~îie;sioiis I)r.li>~iço tlic (;criii:<ii1:rnpir.zor
toth< Ccrman Statcs situatcd iisuch tcrritorici shd11IN:tr;~iisfrrr~d
\vit1tha tcrritories to the llnndntor), I1o\i.ein its capicit).iiSsuch
anclno plynient shall Iwiiinde nor ;iriycredit givcn IO chose Govern-
ments in considcration of this trnnsfcr . . ."
12~ The nature of the legal rights vesting in the Mandatories over
immovable property in the mandated tenitories was considered dunng
the first few ysars of the League's existence. In a report submitted
during the Third Sessionof the Permanent hlandates Commissionin 1923
M. van Rees, in interpreting Articles ~zoand 257 of the Treaty of Ver-
sailles, came to 1:heconclusion that the transfer was to ". . . the manda-
tory Power as sticli" 2,and that-
"If these provisions are examined as a whole, it will be seen that
under the rnandate system the mandatory State is merely the go-
vemor ofa territory whichdoesnot belong to it ... Thisconsideration
excludes the possibility of the territory being regarded as legally the
P.M.C. Min.. IV. p.'57:1.p.194.
1 Ibid.I,I. p.::2i(Annex 2). COUNTER-MEMORIAL OF SOUTH AFRICA 123
property ofthe mandatory Power and, consequcntly. as part ofthe
Mandatory's territory.
That which has beeri handed over to the mandatory State in
virtue of Articles rzo and 257, that which has 'passed' or been
'transferred' to the governor, kas been handed over to him as
governor and not as State; conseqiiently, there has been no final
alienation, and no real rights have been acquired by that State; the
terntory, property, possessions and rights referred to in the two
articles do not belong to themandatory State but have merely been
placed at its disposal; if.has been granted their use in order that it
may carry out its duties as goverrior with which it has been en-
tmsted '."
Referring to the legislative competence of the mandatory Powers, he
concluded that-
"There can therefore be no doubt that the mandatory Power, if it
conforms to Article zz of the Covenant and grants the guarantees
referred toin thesemandites,possesses fullauthority, both as regards
B and C mandated temtories, to gouern them as if it @ossessed
souereignrights overtheterritory '."(Italics added.)
In hisgeneral conclusions M.van Reessaid:
"This duty of governrnent, though it does not involve sovereignty
or, any actual rights. over any portion ofa territory . ..,does entail
the right of disposal of the temtory, property and possessions in
question, but in a purely administrative sense 2.".
and
Mandatory. there would appear to be iio doubt that he could nothe
deduce from that compi:tence the nght to take advantage of it so
as to make the whole or part of the territory his own property ...
no enactment by those (mandatory) Powers can make any portion
of the territoriesunder their administration form part of the State
lands of a mother-cou~itry. If, notwithstanding this, they issue
decrees the text of which bears this construction, they give rise toa
discrepancy which may be the cause of errors in interpretation.
Rather than foster thi:se errors, it would swely be preferable to
avoid any suggestion of acting in contravention of the intentions of
the mandatory system 3."
13. The aforementioned report was submitted to the legal section
of the Secretanat of the League of Nations for its views on the foUowing
matters in question, viz.:
"(1) 1sit in conformitywith the principles underlying the mandate
system for the Powers administermg temtories under 'B'and
'C' mandates to designate, by the terms 'Crown Land' or
'Domaine de I'Etat':
(a) property which formerly 1)elongedto the German State;
and
' Ibid.. pzzz..III. p.221(Annex 2)
Ibid.. pp222-223.124 SOUTH WEST AFRICA
(b) land known as 'vacant land' and land generally regarded
as constitutina native reserves?
-
1,,Wsuiii; of iiioncy dcri\.c~Ifroiii the ale Ur CXPIGIIJ~~ouseOfIIsuih
lands for:III\.pwl>oscsorhçr tlisntlie iiitcrcjts of the .\I:iii~Iatcd
territories? "'- -
14. The views of the legal section of the Secretariat were expressed
in a memoranduin dated 20 hIay 1924. This memorandum referred to
Articles 120 and 257of theTreaty of Versailles,Article 22 of the Covenant
and the relevant Articles of the Mandates, and stated the following
conclusion :
"... it is only as Mandatoriesthat the Powers in question have ob-
tained the cession of the territory and the trausfer of the property in
question. It is not as owners that these Powers have acquired the
property. but:astrustees . . .who only possesspowersof management.
... the right over lands and other public property has not become a
over State domains in its owu territory. The fact that the State is a
'Mandatory' implies restrictions which qualify the absolute charac-
ter of such rights, namely:
(1) a restricî.ion as to duiation; the right exists only so long as the
State coiitinues to be the Mandatory Power;
\ ,rship is taken to mea'n'theright to dispose freely ofutheproperty
in question and to enjoy its yield without restriction, property
situated in mandated territories is not so completely at the
disposal of the Mandatory, and the latter does not possess the
free, unfettered and unconditional use of the yield of such
property 2."
And:
"It therefore follows that the right of the Mandatory Power to
disposeof orobtain any profit from the State lands in the mandated
temtory issubject to the followingobligation: the Mandatory Power
must exercicethis right with a view to furthering the prosperity and
development of the mandated territory as a whole '."
The result in practice of the aforegoing principles was described in the
memorandum as follows:
"... first, tlie State lands situated in the mandated territories can-
not form a integral part of the heritageof the Mandatory Power
regarded as awhole.
Secondly, profits and revenues obtained from such property
cannot be included, unless they are specially earmarked, in the
general revenue of the Mandatory Power '."
15. The memorandum continued by stating that, especially in the
case of C Mandates, which were "administered under the laws of the
mandatory as irztegral#orlions of ils territory". certain difficulties of a
practical nature, from an administrative point of view, might arise in
' P.M.C., Min., IV, p. 163 (Annex 1).
Ibid., p164.
' Ibid.. p165. COUNTER-MEMORIAL OF SOUTH AFRICA 125
connection with the abovementioned principles. \Vith regard to such
difficulties the memorandum stated:
"The unity of administration which the Mandatory Power may
establish does iiot imply, i$so /ucto, and in principle, the unification
of al1domain estates nor the amalgamatioii of public revenues-. ..
But the administrative unity establishedas between tlie mandated
territories and those o\.er which Rfandatorv Power hasfull sover- ~ ~ ~ ~ ~
cigiit!, may <:il1for sp<ci:il csniiiiiiarion from tlic poiiit of \,ie\v
of tlic nianncr iiiwhiih ille disriii~:tcli;ir;ictcr of the Statc I;iii<hcld
iiiider th: !d:iiicl:itïi.;to ocrcsl>~cf<,d.
'l'liisii, lic~\vcvcr, :ic,ucstion of pr.ictic:il ~driiiiii.iin<tioii ... It
shoulcl bc iuiticit.nt to note tli;it;III;idniiiii;tr;itivc joliitiuii of 1111:
question would not seem to be impossible '."
Kegarding the tenninology employed by various Mandatory i'owers
to describe land in the territories held under mandate, the memorandum
stressed that no final opinion could be formed purely on terminology,
but that the system of legislation and administration, "as a whole",
would have to be examined iii order to furnish an answer to the question
whether such system accorded with the principles defined in the memo-
randum 2.
16. The aforesaid memorandum formed the basi~ ~ ~~~e~ ~ ~ ~tion
:idol)l~'dI,!, tlic I'~riii.iii,!iil\I.iiid:itcs ~:uiiiiiiiisionon7 JiiI!.ic,zq ;iiid
cndorscd b!. rlic Coiiiicilof tlic I.c:i~ii~~ii.Iii~:liis <~iiotzrlI,y ~\pplic:iiiJ.
1:or coiivenicnc~ rhc rcsolutioii is cired licrr:
"The maiidatory Powars do not possess, in virtue of tirticles 120
and 2j7 (paragraph 2) of theTreatyof Versailles,any right over any
part of the territory under mandate other than that resulting from
their having been entrusl:eclwitli the administration of the territory.
If any legislative provision relating to land tenure should lead
to conclusions contrary to these principles. it mould be desirable
that the text should b1: modified in order not to allow of any
douht +."
17. liespondent his at al1times accepted the legal position as set out
in the said resolution and in the inemorandum of the legal section of the
Secretariat of the 1-eaye, viz., tliat Respondent did not receive "absolute
owvnership"ofthe land in question, but that it ".. . obtained the cession
of the territory and the trancfer of the property in question "' only in
its capacity as Mandatory, or trustee. with powers of management and
administration. Respondent hns, furthermore, at al1times acted on the
priiiciples set out in the legal section's memor:indum, viz., that whilst it
has the power to dispose of "state lands", such right is subject to the
obligation of using the proceeds for "furthering the prosperity and
development of the mandated territory as a whole" 6.
' P.M.C.. !Ifin.. IV. p. 165 (Annex 1).
Ibid..p. 167.
1..D. I-..
' P.Al.C., Min., IV, p. 157.
' Ibid., p. 164. Vide also para. rq. rirpra.
Vide para. rq, supro.126 SOUTH WEST AFRICA
II. THEOBJECTS AND !?URPOSE OF THE SOUTHAFRICAN NATIVETRUST
18. In the 193~1sit became clear to the Ssiith African Government
that the acquisition, holding and development of lands already set aside.
and to be set aside, for the sole usc and occupation of the various Nativz
groups iii South Africa called for the establishment of a specialized
body to perform lhese functions. With this purpose in view the Native
Trust aiid Land .4ct, 1936 (Act No. 18 of 1936). crelted a corpxate
body. :r specializcd government agency, namely the South African
Native Trust, whii:hwas to be "administered for the settlernent. support,
beneht, and mate:rial and moral wzlfarz of the nltivej of the Unioo" '.
In termsof the Act theaffairsof theTrust were to be-
"... administered by the Governor-General as Trnstee with power
. .. to delegate any of his powers and functioiis as Trustee to the
ilfinister [of Native Affairs] who shall act in consultation with the
Native Affai~sCommission 2."
Pursuant to this provision the Governor-General delegated his powers
and functions as trustee to the Minister of Native Affairs (nowdcsignated
the Minister of Bantu Administration and Development) whois a member
of Respondent's Executive Council. The staff of thetrust are government
officiaisemployed.under the provisions of the laws governing the public
service 3.
The trust is, therefore, an admiiiistrative orgaii which functions under
the sole control of Respoiideiit, in furtherance of the trust objectives
prescribed in the Act.
19. Section 6 ot the said Act inade provision for the vesting in the
Trust of, iirtealkz al1land set aside for the occupation of Nat'ives.
Section 8 provided for the establishment of the South African Native
Trust 1:und. to be admiiiistered for the purposes of the triist. arid sec-
tion g. as amended, provided that this fund imy be iitilized for the
following purposcs:
"(a) to defray such costs iiicoiinectionwith the administration of the
Trust niid suc11other expenditure as the Minister may deter-
mine;
(b) to acquire land for the objects of the Trust;
(c) to develop land. the property of the Trust ;
(d) to advance the interests of natives in scheduled native areas,
released areas peing certain types of land for the occupation of
Natives],or on land held by or from the Trust in the agricultural
and pastoral and other industries;
(6) to make advances to natives or tonative communities occupying
iand withjn the scheduled native areas or released areas or
holding land from the Tmst, for the better developmeiit of the
ho1ding:j of such natives or of the arcas occupied by such
commuiiities;
(1) to advance the interests of natives in commerce and industry in
schedult:d native areas or released areas or on land held by the
' Act No. 18of 1936, sec. (2).in The Union Slntules1910-1947 V.ol.IO.p. rgr.
' fbid., scc. bis.p. 193. Thissub-section was inserted by sec. 26 (1)of the
Finance Act. No. i 7 of,938.128 SOUTH WEST iZFRlCA
development of tlie Bantu areas and the uplift aiid advaiicement of the
Bantu peoples.
III. THE EFI'ECT OF VESTING SOUTHWESTAFKICAN NATIVERESEKVE
LAND IN THE SOUTH AFRICAN NATIVETRUST
24. In 1954it \vas felt tliat a stagehad been reached where the further
development of Native reserves in South West Africa required the
aid and expert services of a specialized body such as the South .&frican
Native Trust. Provision was accordingly made in the South West
Africa Native Afiairs Administration Act, 1954 (Act No. 56 of 1954)l,
forthe vesting iii the said trust of al1land set aside for tlie sole use aiid
occupation of Natives iii the Territory. 'The Act provides that with
regard to land so vested the trustee sliall, "subject to the provisions of
this Act, have the same powers and functioiis, and be subject to the same
duties, as if the territory were included in the Union" 2. Further pro-
visions render clcar that the trust is in respect of such Iaiid to operate
for the benefit of the Native inhabitants of South West Africa only '.
Provision is conscquently made for a separation of funds accruing to the
trust in respect of South West Africa. and the keeping of separate
accounts in respect thereof '.
25. On aiialysis of the system under wliich Keserve Laiids are held
by the Trust it appears that:
(a) The South African Native Trust is iiot vested with ;Lright of full
and unfettesed ownership.
The following restrictions prevent the trust from dealing with
Reserve lands as if it were the absolute owner thereof :
(i) The trust must, as pointed out before, be "administered for the
settlemeiit, support, benefit, and material and moral welfare of
the iiatives" 5.This is in conformity with the principles of the
mandate system.
\,il No land in a Native lieserve vested in the trust rnav be alienated
escept with the appr&al of both ous ses of t soeth African
Parliament and unless land "of at least an equivalentpastoral or
agricultural value ... [is] reserved or set apart, in terms of any
law in force in the territory, for the sole use and occupation of
natives" 6. This provision incorporates even stronger safeguards
oftherightsof Nativesin the Reserves than esisted prior to 1954.
Prior to 1954 an alienation of Xative Keserve land could have
been 1eg;illyauthorized by the two Houses without any quid pro
quo,althoughthis \vasnever done in practice '.
' It is the same Act whiçli made provision for the transofradministration of
Native Affairs in South West Africa to the Minister of Bantu Administration and
Development. Vidi:para. 3. supra.
Act No. 56 of 1954,Sec.q (2)(a),inSliltuleoftheUnion of South Africn1954,
p. 561.
' Ibid., secq (2:pp. 56i-563.
' Ibid., sec4 (4)p. 563.
' Vide para. 18,supra.
Act No. 56 of 1954. SCC.5 (1).in Sfalutes of thUnion O/ SoulhAfrica 1954.
P. 563.
' Act No. 49of 1919.sec.4 (3). in TLaturof South WestAfrica 1915-192p 2.12. COUNTER-MEMORIAL OF SOUTH AFRICA 129
(6) The Native Reserves of the Temtory are held in trust on behalf of
liespondent as trustee for the Native inhabitants of the Territory,
aiid are intio way identified with Respondent's own Xative areas
kept iii tnist for tlie Native population of South Africa. Al1profits
and revenues obtained, and al1expenditure incurred, in respect of
the South West Africa Keserves, are accounted for in separate
accounts by the trust. .41idal1 henefits derived from the said Ke-
serves are employed only for the beiiefit of the Natives of South
West Africa in accordarice mith tlie strict purpose of the trust '.
(c) The position is thus that the South African Native Trust, with
the Minister of Bantu Administration and Development acting as
trustee under delegated authority from the Governor-General. holds
and administers the said lieserves merely as a tmtee for the benefit
of tlie Natives occupying the said Keserves.
D. The Views of the Committee on South West Africa,
as Endorsed by Applicants
26. In its 19j j report the ICommitteeori Soiith \Vcst Afric;~,in dealing
with the provisions of Act Ko. 56 of 1954. referred to the resoliition of
the Permanent Mandates Cummissioii of 7 -.ly 19.. 2,and espressed
the opiiiion that :
".. . the Mandate does riot and criii iii iio way be iiiterprcted to
coiifer upon the Maiid;itory Power the niithority to divest the
Maiidated Territory of aiiy portion of its asscts 3."
This opiiiion was reiteratcd bi the Committee in its 1956 report in which
it statecl that the asscts of tlie Territory: ". . . cannot be vested in any
source other than the Maridated Territory itself"4. Applicaiits say
that they fuUyendorse the opinion of the Cominittee.
27. The suggestion underlying the opinion of the Committee appears
to be that in law the lands in question vest in the mandatcd territory,
and cannot legally be divestecl from the Territory.
licsporident submits that this view is iiicorrect. Tlie lands in question,
as part of the Territory of Soiith West Africn,were originally trnnsferred
to Respondent as blandatory or trustee and they have at al1 times
remained so vested.
Being vested in Respondent, and not in the Territory-which is in
any event not a legal personrr-there can be no question of such lands
being divested from the Territory. The effect of the Act has merely
beeii to appoint a specializeil agency, uiider Respondent's control, to
manage the lands in trust for the benefit of the natives concerned.
28.Applicants, in endorsing the opinion of the Committee on South
West Africa, complain that tlie legislative measure in question brought
about "direct Union control of territorial land and development" and
that the vesting of " 'Native' lands in a corporate body external to the
' Act Xo. 56 of Ig54.secs.4 (3) and (4). in SlalulO/the Uttio>tofSoull Alrica
1954, p.563; vide para.zq. supra.
2 For the text ofthe rcsolutionvide para.r6, suprn.
G.A., O.R.,TeizthSession. Sup.No. 12(Aizgr3). p. 16.
Ibid.. Elev&lh Session. Sup.Xo. 12 (A/jrgr), pp.ri-12.
Vide paras. 11-15, supra.130 SOUTH WEST AFRICA
Territory cannot be reconciled with the international status of the
Territory" '.
In this regard Respondent says that it has, in its ckpacity as Man-
datory, at al1times had direct control of "territorial land and develop-
ment", and that Applicaiits' objection to direct control by Respondent
is an uiitenable cine. It \vas inherent in the Mandate that Kespondeiit,
as hlaiidatory. should control and develop the Territory, and there caii,
it is submitted, be no objection to Respondciit's performing its duties in
this respectdirec1:ly.Applicants, in referring to the South African Native
Trust as a "corparate body estemal to the Territory", seem to suggest
that control and development must proceed from a source within the
Territory itself. Therecan, it is submitted, be no basis for such a sugges-
tion, since any such source within the Territory must of necessity derive
its powers from :[<espondentas Mandatory. and would therelore be an
agent of liespondent, under Respondent's control. It cannot validly be
suggested that an agent of liespondent within the Territory should be
able to do that which liespondent, as the principal which appoints such
agent, cannot itself do.
29. The vesting of South West Africaii Native Reserve lands in the
South African Native Trust was a purely administrative enactment
whicli in no way affected the distinct character of the said reserves
as portion of the Territory of South West Africa, whicli Territory is
status. The arrangement complained ofcar in no way be taken to amonntonal
to ail incorporation of the said reserves into the patrimony of Respon-
dent.
E. Applicants' A.llegation that the Measure in Question 1s an Element
"of a Plan for Political lntegration of the Territory" and that it Tends
"Substantially toImpedeProgress Toward the Objectivesofthe Mandate"
30. Respondeiit does not appreciatc on what grounds rlpplicants
suggest that the vesting of South West >\frican Native Reserve land in
the South African Native Trust is part of a plan for "political inte-
gration of the Territory", or that it tends to "impede progress towards
the objectives ot the hlandate".
Respondent siibmits that the very object and purposes of the trust
demonstrate that it is solely concerned with the advancement of the
interests of Natives. and thus refute the suggestion that the measure in
question ispart of a plan for 'politicai incorporation".
.4nd the activities of the tmt ' likewise. in Respondent's submission,
refute the idea rhat it operates so as to impede "progress towards the
objectives of the Mandate".
31. Recogniti(~n of the important role which the trust has played
in the prcservation and improvement of the Uantu areas in South Africa.
and in the pron~otion generally of the interests of the Bantu peoples,
Africa in the interestsof the Native population of the Territory.th West COUNTER-MEMORIALOF SOUTH AFRICA 131
That such extension has proved of immense value to the Xative
Reserves in the Territory is evidenced by the rneasure of progress which
has been made in developirig such reserves since1955 ,articulars of
which have already been futnished elsewhcre in this Counter-llemorial
in reply to Applicants' charges set forth in Chapter V of the Memorials.
32. In the premises aforestated Kespondent submits that Applicants'
allyatioiis and complaiiits relative to the vesting of South West African
Xative Reserve lands in the South African Xative Trust are entirely
unfounded. CHAPTER VI11
CONCLUSION
I.Iii the Light.of what has been stated in the aforegoing Chapters,
Respondent subinits that there is no foundation for the conclusions
drawn by Applicants in section C of Chapter VI11 of their Memorials '.
Respondent specificaliy denies the charge that its purpose is to dis-
regard the "maridate's prohibition ngainst unilateral incorporation of
the Territory, or my other modification of the Territory's status".
Respondent further denies the charge that it has by any of the acts
referred to by Phpplicants, or othenvisc, frustrated the objective "to
promote conditic,iis under which the 'l'emtory's inliabitants may pro-
gress toward self-detemination".
2. In the preinises Respondent denies Applicants' conclusion that
Respondent "ha:; violated, and is violating, its international obligat'ions
stated in Article 22 of the Covennnt of the Leagiie of Nations and in
Article zof the PAandate". SUBMISSION
For the reasons hereinbefore advanced, supplemented as may be
necessary in later stages of these proceedings, Respondent, as iar as
this portion of theCounter-Memorial is concerned, prays and requests
that Applicants' Submission 5 be dismissed. SECTION D
ALLEGEDVIOLATIONSOF ARTICLE 7 OFTHEMANDATE
A. INTRODUCTORY
I. In their Submission g,Applicants ask the Court to adjudge and
declare that:
"the Union, by virtue of the acts desuibed in Chapters V. VI,
VI1 and VI11 of this Memorial coupled with its intent as recounted
herein, has attempted to modify substantially the terms of the Man-
date,\vithout the consent of the United Nations; that such attempt
is in violation of its duties as stated in Article the Mandate and
Article 22 of the Covenant; and that the consent of the United
Nations is 1 necessary prerequisite and condition precedent to
attemptsonthe part ofthe Union directly or indirectly tomodify the
terms of the Mandate '."
The argument in support of this Submission may be summarized
as follows:
(a) In terms ofArticle 7of the Mandate-
"The consent of the Council of the League of Nations is required
for any modification of the terms of the present Mandate."
(b) After the foundation of the United Xations Organization, and the
dissolution of the League, the power to consent to any modification
of the Mandate became vested in the United Nations.
(c) Respondent has proceeded from the assumption that the Mandate
is no longer in existence, and that it has the right unilaterally to
incorporate the Territory.
(a) Respondent has committed the violations of Articles 2, 4, 6 and 7
of the Mandate which are set out in Chapters V to VI11 of the
Memorials.
(e) The acts referred to in sub-paragraph (a) above-
'read in the light of the Union's intent, [i.e., as set out in sub-
paragraph (c)] constitute a unilateral attempt to modify the tems
of the Mandate without the consent of the United Xations".
B. STATEMENT OF THE LAW
2.For the piuposes of the present argument Respondent assumes,
contrary to its Submission in Book II above 3,that the Mandate is still
in existence despite the dissolution of the League of Nations.
3. In support of the proposition set out in paragraph I (b) above,
' 1, p198.
Ibid.. p. 196.
Vide Book II. ChapV, ofthis Counter-Mernorial. COUNTER-MEMOR IFLSOUTH AFRICA I35
Applicants rely entirely on the 1950 Advisory Opinion. The relevant
passage of the said Opinion reads as foUows:
"Article 7 of the Mandate, in requiring the consent of the Council
of the League of Nations for any modification of its terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates. In accordanci: with the reply given above to Question (a).
those powers of supervision now belong to the General Assembly of
the United Nations. On the other hand, Articles 79 and 85 of the
Charter require that a Trusteeship Agreement be concluded by the
mandatory Power and approved by the General Assembly before the
International Trusteeship System may be substituted for the
Mandates System. These articles also give the General Assembly
authority to approve alterations or arnendments of Trusteeship
Agreements. By analogy, it can be inferred that the same procedure
is applicable to any modification of the international status of a
territory under Mandate which would not have for its purpose the
placing of the temtory iinder the Tmsteeship System '."
As appears fromthis passage, an essential link in the Court's reasoning
was its previous finding that "powers of supervision in respect of the
administration of the Mandates" were vested in the General Assembly
of the United Nations. Respondent has submitted that this finding was
incorrect 2.If Respondent's submission in this regard is sound, it would
follow that the said Advisory Opinion would no longer be acceptable
authority for the proposition-"that it is the United Xations whose
consent is now required for :iny modification of the terms of the Man-
date" 3.
Respondent does not, however, propose devoting any further consid-
eration to the questions whether, on the assumption aforestated 4, the
Alandate can now be modified, and, if so. how, since these questions
are,for thereasons to beset out in the succeeding paragraphs. of academic
interest only.
C. STATEMENT OF FACTS
Respondent's Alleged Intent
4. Applicants appear to concede that, in order to establish a contra-
vention of Article 7, they would be required to prove an intent on
Respondent's part to modify the tems of the Mandates. Indeed, it
seems obvions that Respondent cannot be yilty of any "attempt to
modify the terms of the Mandate" 3unless, as a fact, it possessed the
intent to effectsuch a modific;ition.
Inlemational Slafur ofSouU'eslAfrica, AdvisorY Opinion. I.C.J. Rcp1950.
p. 128,at pp.141-142.
Vide Book II, Chap. IV, of thiç Counter-Mernorial.
3 1.'.~<06.
Vide para.2.rupva.
' Vide the headingnThc Union's Intcnt". and the words "read in the light of the
Union' ntent" (twice) at 1, p. 196,and "coupled mith its intent" in Subm9.sion136 SOUTH WEST AFRICA
The only allegations from which Applicants seek to deduce such an
intent are the assertions that Kespondent-
"... has proceeded from the assumption that the Mandate is no
longer in existence, that the Union has no obligations under the
Mandate, and that it has the right and the power unilaterally to
incorporate the Territory by de factoannexation or otherwise '".
It is clear that a mere assertion of a right to do something, does not
show an ii~teiztioto do so 2. Respondent submits, therefore, that Appli-
cants' own allegations do not give rise to any inference that Kespondent
is, or has been, mi~tivated by an intent to modify the terms of the Man-
date.
Indeed, it is submitted that the record shows a complete absence of
intent on Respondent's part to perform any actions in regard to the
Territory which urould not have been permissible under the 3Iandate if
it had still been iri force '.
Respondent's Alleged Acts
5. Quite apart from what has been set out in paragraph 4 above, it is
submitted that Ri:spondent's replies to Chapters V, VI, VI1 and VI11 of
the hlemorials show that Resnondent has not violated Articles 2. 4. 6 or
7 of III,: >l<ii~d~t~a..d, thür fur rliijrr.:iiuii :ilsu, -\pplit:.,iii;' ;irgiiiiir;iit
iiiClinpt-r II uf tlie \It:ini,ri31i;uiiteii;ihle.
D. SUUMISSION
6. 1701 the reasons hereinbefore ndvanced. suoolemented as mav be
necessary in later stages of these proceedings; K&i>ondent,asfar asthiç
portion of the Counter-Memorial is concerned, pravs and reqiiests that
Applicants' Submission g be dismissed. -.
' 1.p. 196.
With regard ta the right to incorporate, vide sec. C, Chap. III. para4,supra.
"Vida sec.C. Chap. II. para.26, and Chnp. III, para. 15. supra. BOOK IX
A GLIMPSE OF SOUTH WEST AFRICn
The purpose of this Book is to present by meansof photographssome
measure of illuktration of what has been described or mentioned in the
text of the Counter-AIemorial.
For practical reasons the presentation must necessarily be a limited
one, affording iio more than:iglimpse of the whole field.
As will be observed from the titles, sub-titles and captions, many,of
which are estracts from the text, the ghotographs are grouped with
reference to various subjects as dealt with in distinct portions of the
Counter-Memorial. e.g., geographical features (Book III, Chap. 1).
population groups (BookIII, Chap. II), education (Book VII, the whole)
and the like. All subjectsare not thus represented; and of those that are
represented, some aspects only are illustrated.
Kespondent hopes, however, that the Book may nevertheless succeid
in conveying to the honourable Court something of the spirit arid atmos-
phere of the Iniid of diversity, its peoples and their lives.
Geographical festures
The Namib [Nat reproduced]
The central plateau [Not r<!produced]
The Kalahari [Not reprodticed]
The inland rivers [Not reprodtrced]
Water resources [Not reprodticed]ced]
The Reserves [Not reproduced]
The Caprivi Strip [Not reproduced]
The peoples
Caprivi peoples [Not reproducecl]
Okavango peoples [Not reprodzcced]
Ovambo [Nol reproduced]
Bnshmen [Arotrep~oduced]
Dama [Not reproduced]
Nama [Not reproduced]
Herero (Himba) [Not reproduced]
Herero [Not reproduced]
Rehoboth Basters [Noi reprodzrced]
Europeans [Not re$rodsced]Education
Schools [Not reprodt6cedl
Xorthern temtories [Not reproduced]
Police Zone [Not reproduced]
The Augustineiim at Okahandja [Nat reproduced]
Handicrafts [Not reproduced]
Adult educatioii [Arotreprodzrced]
Facilities for higher Eucation in South Africa open to Non-European
students of the territory [Nat reproduced]
Training of nurse:;
Local governmeni:
Native residential areas [Not reproduced]
Facilities in townships [Nol reproduced]
Businesses in townships [Nor reprodzlced]
Economy
Windhoek [No,!reproduced]
Diamond mining at Oranjemund [Not reproducedJ
Copper rnining at Tsumeb [Nol reproduced]
The fishiiigindustry [Nat reproduced]
The ment-packing industry [~Votreproduced]
Other occupatii~ns[Not reprodrrcedf
The piano indiiçtry [Not reproduced]
The salt industry [Not reproduced]
Stock farming ,y01 reproduced]
Recruitrnent of labotir [Not reproduced]
Tribal life [Noi reprodtrcedf BOOK X
TA.BLEOF CASES
1.PermanentCourtof InternationalJustice
Status of Eastern Carelia,Aduisory Opinion, 1923,P.C.I. J., Series B.
NO.5, PP.27-29.
GermanSettlersinPoland, Aduisory Opinion, 1923,P.C.I.J., Series B,
No. 6, pp. 21-23.
Maurommatis Palestine Concessions,Judgment No. 2, 1924. P.C.I.J.,
Series A, No. 2, pp. 10-12,42-43.61-63,77. 81.86, 88.
Certain German Interests in i'olish Uppn Silesia, Jurisdiction,
Judgment No. 6, 1925, P.C.I.J., Series A, Ara.6, p. 15.
1Certain German Interests in Polish Uppn Silesin, Merits, Judgment
iVo. 7.1926, 1j.C.I.J., Series A, No. 7, p. 31.
Rights of Minorities in 1JpperSilesia (Minority Schools), Judgmcnt
No. 12, 1928, P.C.I.J., Series A, No. 15, pp. 24-25.80.
Free Zones of Upper Sauoy and the District of Gex.Judgment, 1932,
P.C.I.J., Series AIB, Ni>.46, p. 145.
Interfiretation of the Statute of tlte Memel Territory, Preliminary
Objection,Judgment, 1932, P.C.I.J., Series AIB, No. 47, p. 247.
Interpretation of the Co~tueiztionof 1919 coltcerningEmploynieizt of
Womeii during th Night, Aduisory Opinion, 1932, P.C.I.J., Series
Legal Status of Eastern Greenland,Judgment, 1933, P.C.I.J., Series
AIB. No. 53. p. 91.
Lighthousescasebetmeenhnce and GreeceJ ,zidgment,1934,P.C.I. J.,
Series A/B, No. 62, p. 22.
Minority Schools in Albania, Aduisory Opinion. 1935, P.C.Z.J..
Series AIB, No. 64. p. 19.
II. InternationalCourtof Justice
(1) Reparation for Iizjzjurie!jufered in theService of the United Nations,
Aduisory Opinion, I.C.J. Reports 1949, p. 174, at p. 179.
(2) Interpretation ofPenceTreatieswith Bzrlgaria,Hungary andRomania,
First Phase, Aduisory Opinion, I.C.J. Reports1950, p. 65. at pp. 72.
91.
(3) International Statusof South West Africa, PlendinCs,OralArgrrmnts.
Documents, pp. 122-123.148.161.
(4) International Status of South West Africa, Aduisory Opinion, I.C.J.
Refiorts 19.50, p. 128, at pp. 172-13-. 13--178. 140-142, 145-146,
15i-153. 158-162,164-173,-i86, Ï~I.
(5) Ambalielos, Preliminary Objection,Jzidgment, I.C.J. Reports rgjz.
P. 28, at PP.39, 54.
(6) Volina Procedrrreon Ouestions Relatina to Reborts and Petitions
conc&ing the TerriG of South-~edA frica,' Advisory Opinion,
I.C.J. Reports 1955. p. 67, at pp. 75, 85-86,95, 98-106.140 SOUTH WEST AFRICA
(7) Admissibility of Heariiigs of Pditioners by the Con~mitteeon Sotith
West Africa, Advisory Opinion, I.C.J. Reports 1956,p. 23.
(8) South West Africa, Prelrminary Objections,Jzidgment, I.C.J. Reports
1962, P. 319. at PP. 330-344, 347-3453,354-356, 358-365.367-374.
376-384, 3902392. 395, 398-403, 405, 405-409, 411-4208425-432,
439-442. 444-445. 447-448) 451-455. 456-457, 459-462. 466-467,
472.503, 505, 507-560, 567, 598-601, 603.605. 607-610, 613-615,
633. 635. 640-653.655-657,659.
(9) South IVestAfrrca, OralProceedings (2to 22 Oct. 1962).
III. Australia
Ffrost v. Stevens~ir,1937 58 C.L.R. 528, at pp. 550, 552-553.581-582.
IV. Unionof SouthAfrica
[I) Union Goverilmend v. Fakir, 1923A.D. 466, at pp. 469-470.
(2)Narainsamy v. Principal Immigration Oficer, 1923A.D. 673.
\-,Mokhatle COthers v. Union Government(Minister O/Native Af"airs,.
1926A.D. 71.
(4) Union Gouerrcinent(Minister of Mines and Iizdustries) v. Union
Steel Corporotiot~(South Africa) Ltd., 1928 A.D. 220; at p. 236.
(5)Rex v. Blom, 1939A.D. 188, at pp. 202-203.
(6 Kellennanir v.Miitister of the Interior, 1945T.P.D. 179.
(1 Hlongwaiie v. Roiis and van Gass, N.O., 1948 (1)S.A.L.R. 62.
(8) Va~rderbijlI'arlr Health Comniiltce 15Others v. 1,Vilson E. Othe~s,
1950 (1)S.A.L.R. 447.
(9) Mlrlengwa v. Secretnry for Native Affairs G Anothev, 1952 (1)
S.A.T...R. 312:.
V. SouthWestAfnca
(1) Re%v. David Afalhijs and GertChristian, 1925S.W.A. 98
(2) Re% v. Hara:ibJan, 1937S.W.A. 7.
VI. Colony ofNatal
Siriba's Guardian v. Mesai, 1894N.L.R. 237.
VII. UnitedKingdom
The King v. Inspector of Lemnn Street Police Station, Ex parte
Venicoff, 1g::o3 K.B. 72.
Attorney-Generalfor Ilfanitoba v. Attorney-Generalfor Canada and
Othns, 1925A.C. 561 (P.C.),at p. 568.
Jerusalem-Juta District Governorand Another v. Szileiman Murra
and Others,x926A.C.321. at p. 328 LIU OF DOCUAlENTATION
1. League of Nations
A. Miiitrtes of tlieCoili~cil,sess. VIII, 1920.pp. 183, 185.
B. Recordsof the Asseinbly, sess. 1, 1920, p. 320.
C. Oficial Jounial, 1920, (No. 6) pp. 334-335, 337-341, (No. 8)p. 87;
1921. (NO. 1) pp. 11-12, 84-94, (Nos. 10-12) pp. 1124-1126, 1133;
1922, (NO.8, Part II) pp. 849.850, 854; 1923, (No. 3) p. 300, (No. 6)
pp. 603-604, 659; 1924, (NO.10) p. 1287; 1926, (NO.IO) pp. 1407,
1422, (XO.II) p. 1533; 1927, (Xo. 3) pp. 316-317, (NO.4) p. 348,
(Xo. IO)p. 1120; 1929, (Ko.5) p. 827, (NO.8) pp. 1287-1288,(NO.II)
P. 1467; 1930, (No. 2) p. 77,(No. 7) pp. 83s-839.
D. Oficial Joilunal, Special :5'up?IcnzaztNo. 194.1946, pp. 28, 32-34.
43. 47. 55-56. 58-59,76, 78-79,250, 256-257.278-279,281.
E. Alilrutes of the I'erinuneiit ~\lafi<latesCommissioii, Sess. 1, 1921.
pp. 5. 17, 40; II. 1922, pl).49, 68. 91-92; 111.1923.pp. 80. 102-106,
111. 142, 215, 221-223. 282, 325; IV, 1924, pp. 41. j1-52, 54, 57,
61-62, 64. 79, "3, "6, 154, 157. 163-165. 167. 176-177; V. 1924,
l'p. 42, 133;\'l,r925, pp. 58. 61; VII, 1925,pl>.16-17,13~,20~,217;
VI11. 1926, p. zoo; IX, :r926,pp. 33-34, 36, 45 134, 147; X, 1926,
pp. 86, 176-177; XI, 1927, p. IO'; XII, 1927. p. 186; XlII, 1928.
pp. 31, 141, 147; SLV. 1928, pp. 80. 84-85, 105-106, 108-109, 127.
278; XI'. 1929. 1'11.27, "0, 133, 276; SVI, 1929, pp. 129. 188;
XVIII. 1930, pp. 34, 37, 132. 137.139, 145-146, 148; XS, 1931.
pp. 56-57, 66, 228-229; SXIIT. 1933, pp. 91, 93; XXVI, 1934,
pp. 50-52, 59, 62-64, 163-1615;XXVII. 1935, pl). 153, 160-161, 170-
171.229; XXLX, 1936,pp. 133, 135, 137, 212; );X?CI, 1937,PP.118.
128-139, 192; XXXIV, 1938, pp. 74, 78, 82, 92; XXXIrl, 1939,
pp. 38, 141,280-281.
1'. Other
(1)The Covenantof tlteLeague of ~Vatiolrs.
(2)L. of N. DOC.C. 717, 1925, VI.
(3)ï%e Mandates System--0rigin-l'riizciples-A( ppenieva,tion
(4) The League Hairds Over(Gerieva, 1946).pp. 61, 63.
(5) 21st Assembly, 1st Committee, aiid Meeting. provisional record
(uiipublished).
II. United Nations
A. Docunzentsof the United Nufions Conferenceon ImternationiilOrgani-
zalio?~.San Fraiicisco, 19jj (London/Nem York: United Nations
Information Orgaiiizations, 1945). Vol. 1, p. 630; Vol. 5. pp. 300.
315-316: Vol. IO, p. 434.
B. United Nations Preparatoiy Comniission, 1946
(1)Committee4.Strmmury Records,pp. 34-40,
(2)Commiltee7, Strmmary Records,pp. 2-3, 10-11.
(3)Journal, p. 131.142 SOUTH WEST AFRICA
Dac. Pc/EX/r13/Rev. 1, 12 Nov. 1945, pp 55-56. 108-III,
114.
Dac. PC/zo, 23 Dec. 1945,pp. 49, 118.
iieral Açsernbly
Resulutioiis:
XI (1), 9 Feb. 1946. in U.N. »oc. A/64, p. 13; XIV (1), 12 Fcb.
1946, in UA'. Duc. A/64, pp. 35-36; 65 (1). 14 Dec. 1946, iii
U.Ar. Dac. A/64/Add. I. pp. 123-124; 141 (II), I Nov. 1947,
U.N. Doc. A/51g, pp. 47-48; 224 (III), 18 Nov. 1948, in U.hr.
Duc. A/SIO,pp. 86-87; 227 III), 26 Nov. 1948. in U.N. Dac.
A/Sro, pp. 89-91; 337 (IV), A Dec. 1949, in U.N. Doc. A/Iz~I,
p. 44; 3 oA (V), z Dec. 1950, in G.A., O.K., Fifth Sess., Sup.
No. 20 pp. 20-22; 449A (v), 13 ~ec. 1950. in U.N.
Doc. A/r775, pp. 55-56; 563 (VI), 18 Jan. 1952, in G.A., O.K.,
SixthSess.,Siip. No. 20 (A/~II~),p. 59; 57oB(VI).19Jan. 1952,
in U.N. Duc.A/~II~, p. 64; 749A(VIII), 28 Nov. 1953,inG.A.,
O.R., EighthSess., Sup. No. 17(A/2630),pp. 26-27;74913(VIII),
28 Xov. 1953. in U.N. Doc. A/2630, pp. 27-28; 852 (lx),
23 Nov. 1954,in G.A.,O.K., iVinthSess., Sup. No. 21 (AIz890).
p. 29; go4 (IX), 23 Nov. 1954,in U.N. »oc. A/z890, pp. 55-56;
940 (X:i,3 Dec. 1955. in G.A., O.K., Tenth Sess., Sup. No. I
(A/~II~), p. 23; 942 (S), 3 Dec. 1955, in U.N. Doc. A/~II~,
p. 24; 1.055(XI), 26 Feb. 1957, in G.A., O.K., Eleueuth Sess.,
Sl4p. No. 17 (A/3572). pp. 28-29; 1059 (XI), 26 Feb. 1957.
in U.iV. Duc. A13572,p. 30; 1060 (XI), 26 Feb. 1957,in U.N.
Doc. A,'3572,p. 30; 1141 (XII), 25 Oct. 1957. in G.A., O.K.,
Twelfth Sess.. Sup. NO. 18 (A13805),pl>. 24-25; 1142 (XII),
25 Oct. 1957,in U..N. Doc. AI3805.p. 25; 1143 (XII), 25 Oct.
1957, iu U.N. Doc. A13805 pp. 25-26; 1243 (SIII), 30 Oct.
1958, iii G.A.. O.R., Thirtecnth Sess.. Sicfi. No. 16 (A/4090),
p. 30; rzq6 (SIII), 30 Oct. 1958,in U.iV. Duc. A/4090,p. 31;
1359 (XI\'), 17NOV.1959,in G.A.,O.R., FourteetithSess., Siip.
No. 16 (A/4354),p. 28; 1360(XIV), 17Nov. 1959,in U.N. Duc.
A/4354, pp. 28-29; 1361 (XIV), 17 Nov. 1959, in U.N. Doc.
Al4354 p. 29; 1514(XV),14 Dec. 1960, iiiG.A., O.R., Fifteetith
Sess., Szip. No. 16 (A/4684),p. 67; 1565 (XV), 16 Dec. 1960,
in U.N. Doc. A/4684, pp. 31-32; 1654 (XlrIJ, 27 No;. 1961,in
C.A.. O.K., Sixteenth Sess., Sup. No. 17 (A 5100). p 65, 1702
, 19 Dec. 1961, in U.N. Dac. A/51oo, pp. 39-40; 1747
(Alsroo Add.e I), p.3..A., O.K.,Si?~teenthSess.,Sup.No. 17A
.- .- -
Plenary jbfeetings.
G.A., O.R., First Sess., First Part, 11th Plenary hIeeting, pp. 161-
179; '::th Plenary Meeting,pp. 179.167; 14th Plenary Meeting.
p. 201.228; 15th Plenary Meeting, pp. 228-240; 16th Pleiiary
K~eetin~p, p. 241.257.
G.A., O.R.. Second Sess.. Vol. 1, 104th I'lenary Meeting, pp. 565-
591; 105th Plenary Meeting.pp. 591-651.
G.A., O.R., Third Sess., Part 1, 164th Plenary Meeting, pp. 577-
592.
C.A., 0.11.. Fourth Sess., 269th Plenary Meeting, pp. 523-537.
G.A.,O.R., FifthSess., Vol.1,3zznd Plenary Meeting,pp. 627-632. COUNTER-MEMOR O A LOUTH AFRICA 143
G.A., O.R., Filteenth Sess.. 947th Plenary hleeting, pp. 1271-1284.
U.N. Doc. t\/PV.r136 (28Sep. 1962),SeventeenthSession, General
Assembly, Provisiorcal Verbdim Record of the Eleveti Hundred
and Tltirty-Sixth Plrnary Meeting.
U.hr. Doc. A/PV.II~~ (5 Oct. 1962).SeventeenthSession. General
Assembly, Provisional Verbatim Record of the Eleven Htindred
aiid Forty-Third Plenary Meeting.
(3)Fourth Coinntitteei\leeti~tgs.
G.A., O.R.. First Sess., First Part, I'orrrlhComm., 3rd hleetitig,
G.A., O.K., First Ses., Second l'art, I'octrth Comm., Part 1,
19th Meeting,pp. 96-107.
C.A., O.R., First Sess., Second Part, Fourth Comm.. Part Il,
5th Meeting, pp. 26-32.
G.A., O.R., Second Sess., Fourth Comm., pst Meeting. pp. 3-9;
3znd Meeting,pp. 9-13;33rd Meeting.pp. 13-18;38th Meeting,
pp. 45-53; 39th Meeting, pp. 53-59; 40th Meeting, pp. 59-66;
44th Meeting,pp. 85-92:45th Meeting,pp. 93-98;47th Meeting,
pp. 105-108.
G.A., O.R., Third Sess., Part 1, Fourth Comm., 76th Meeting,
pp. 287-297;77th Meeting,pp. 297-30137 ; 8th Meeting,pp. 307-
320; 79th Meeting, pp. 320-328; 80th aleeting, pp. 328-339;
81st Meeting, pp. 340.354; 82nd Meeting, pp. 355-367; 83rd
Meeting, pp. 367-372; 84th Meeting. pp. 372-377.
G.A., O.R., Fourth Sess., Fourth Comm., 93rd ,Meeting. pp. 22-
26; 128th Meeting, pp. 199-208; 129th Meeting, pp. 208-212;
130th Meeting,pp. ::13-z19; 131st Meeting,pp. 219-223; 132nd
Meeting, pp. 223-230: 133rd Meeting, pp. 230-235; 134th
Meeting, pp. 235.242; 135th Meeting, pp. 242-241): 136th
Meeting, pp. 249.254; 137th hleetitig. pp. 254-258; 138th Meet-
ing, pp. 258-268; 13gtli,&leeting,pp. 266.273; 140th hleeting,
{>p.273-282; 141st Meeting,p. 282.
G.A., O.K., Fiftlt Sess., Fourth Comm.. 196th Meetiiig. pl>.359-
367,
G.A., O.K.,Stxth Sess., Iiotirth Comm., 204th Meeting, pp. 17-19;
239th Meeting,pp. 253-260;240th Meeting,pp. 261-265;244th
hleeting,pp. 28g-z~(.
G.A., O.R.. Eighlh Sess., Fourlh Comm., 363rd Meeting. pp. 301-
308; 386th Meeting. pp. 475-485; 389th Neeting, pp. 499-503;
390th Meeting,pp. 505-51'
G.A., O.R., Ninth Sess., Fourth Comm., 407th Meeting, pp. 61-70.
G.A., O.R., Tenth Sess., FotcrlltComm.. qgrst Meeting. pp. 129-
136; 500th Meeting. pp. 179.183; 519th Meeting, pp. 277-280;
538th Meeting,pl>.401-404.
G.A., O.R., Elever~thSess., 1:ourthConziu.,j71st Oeeting, pp. 107-
110; 572nd Meeting, pp. 111-114; 574th Meeting, pp. 119-122;
607th Meeting, pp. 291-2gg; 628th ~eeting, pp. 389-394;
638th hfeeting, pp. 435-439; 639th hleeting, pp. 441-447.
C.A., O.R.,TwelfthSess., Fourth Comm., 155~rdMeeting,pp. 11-16;
654th Meeting,p. 17: 655th Meeting, pp. 19-23;659th Meeting,
pp. 35-40; 731StMeeting,pp. 437-441.
G.A., O.K.,ThirteetrthSess., ForrrlhComnt., 745th Meeting,pp. 13-144 SOUTH WEST AFRICA
18; 747th hleeting,pp. 23-25; 749th hleeting.pp. 31-34; 750th
hleeting,pp. 35-37; 7jIst Meeting, pp. 39-40; 754th hleeting,
pp. 47-51; 755th Meeting, pp. 53-55; 794th Meeting, pp. 265-
271; 7g:jth Meeting,pp. 273-278.
C.A., O.R.,I;onrteenthSess., I~onrthComm..883rdhleeting, pp.5-7;
900th XIeetiiigpp. 83-68; 904th Meeting, pp. 107-112; 908th
Meeting, pp. 129.131; 909th Meeting, pp. 133-136; 910th
Meeting, pp. 137-140; 911th Meeting, pp. 141-145; 913th
Meeting, pp. 153-159; 914th Meeting. pp. 161-166; 915th
Meeting, pp. 167-173; 91Gth Meeting, pp. 175.179; 918th
Meeting, pp. 185-190; gzqth Meeting, pp. 221-222; 9315t
Meeting, pp. 249-258; g3ziid Meeting, pp. 259-263; 944th
Aleetin?,pp..695.701.; g8znd Meeting. pp. 599-603; 1001st
C.A., O.R., FijleenllzSess., I'rrrtI, I'ourll~Cumnr.,1013th Bleetiiig,
pp. 6j-71; 1025th BIeeting, pp 145-151; 1049th >Iectiiig,
l'p.293-299; 1051st kleelirig. pp. 305-310; ro5znd Mcctiiig,
pp. 31~314; roj3rd Meeting, pp. 315-319; 1054th Meeting,
pp. 321.324; ~ojjth Afeetiiig. pp. 325-328; 1oj6th Meeting,
- - 329-332; I'urt II, firrrth Conttr~.,rog8tli Meetiipp. 3-7;
~rootl; Lllcetiiig.pl>.11-15.
C.A., O.K.,Sixlcenth Sess., FolrrthConzrn.,Vol. 1,118znd i\leetiiig,
pp. 153.157; 118Gth klectiiig, pp. 183.131; 1217th Mectiiig,
l'p.37:;-380; izzrst Meetiiig, pp. 401-405; 12zznd Meeting,
pl>. 40;1-411; ~~~3rdkIeetiiig. pp. 413.417; 1241st Xlceting,
{>p .qj-gjz; \'ol.II,rz6zrid >Jeeting,pl'.6j1-6j6.
C.A., O.R., Scvenlcottlb Scss., fiourllz Cotnni., Vol.1, 1374th
hlceting:pp. 289-294.
(4)Specinl Pt~liticalComnzilte~Meeting.
C.A., O.R., Sixleenlh Scss., Spcc. Pol. Cottlnz.. 272nd Xectirig,
pl>.61-63.
..)Ad Hoc Coinnriltceon Sonth IVestAlrica.
U.N, Do<.A/AC.49/SK.z (1951).
U.N. Dac. AIAC.4gISR.3(1951).
u.1v. Duc. A/AC.qg/SR.4 (1951).
U.N. Dac. A/AC.4g/SR.7 (1951).
U.N. Doc. A/AC.~~/SR.II (rgjr).
U.N. Dac. Alrqor, in C.A.. O.K., Sixlh Sess.. Annexes (Agenda
item 38). p'p.2-II.
U.h'. Dac. A/2261, in C.A., O.R., EighllzSESS.,Annexes (Agenda
item 36), 1-29, ,
U.lV . ac. A 2475, in GA., O.R., Eighlh Sess.. Annexes (Agenda
item 36), pp. 31-48.
(6)Cornmillei:onSouth IVestAfrica.
(i) Re~orts to the General Assemblv:
G.S.. O.K.. iVinthSess.. Sua. No.IA iAIz666).
C.A.; O.K.;Tenlh ~ess.,'~tdp.NO. 12 '~i~~13j.
C.A., O.K., EleveitthSess.. Snp. No.12 (A13151).
G.A., O.K., TzaelfthSess.. Sup. No.12 (A13626).
G.A., O.R., TlzirteeulhSess.. Sup. Xo12 (A/3906).
C.A., O.K., Filleenth Sess., Szrp. X12 (A/4464). COUNTER-MEMOR OA LOUTH APRICA I45
l~,l Other:
Li., D\'.C,.\/:\C.~,~/L.(10 -.\II~.1957).I~/or~~~~io~1rdDosa-
~iie~ilnlioi,,]~respectojihz Y'crrulSo~rihIl'eslAfricn. Sj.
(7)GoodOfices Contmilleeon Sozith West Africa.
U.N. Dac. A/3goo, in C.A., O.K., ï'hirteenth Sess., Aiznexes
(Agenda item 39). pp. 2-10.
U.N. Doc. A/4224, in C.A., O.K., I'ourteenth Sess., Annexes
(Airendaitem 38). rm. 1-5.
. - -. .. -
(8)Special Committeeon Palestine.
G.A., O.R., Second Sess., Sup. No. II, Vol. 1 (A/364).
G.A., O.R., Second Stss., Szifi. No.II, Vol. II (A/364/Add. 1).
U.N. »oc. A/j46/Add. I (19 July, 1gG3).pp. 23-25, 64.
U.N. Dac. A/5446/AdJ. 3 (30July 1963),p. 12.
(IO)Reports O/the Fourth Committee.
U.N. Doc. A/II~o, in C.A.,O.R., I'ozirthSess., Plenary Meetiizgs,
Airnex. pp. 103-110,
U.N. Dac. A/1643, iii C.A., O.R., Filth Sess., Anize.xes, Vol. 1
(Agendaitem 35). pp. 3-10,
(II) Miscellaneorrs.
U.N. Doc. A/rz3. in (;.A., O.R., First Sess., Secoiid Part, Fourth
Comm., Part 1,pp. rg9-23j.
U.N. Dac.A/C.4/41,in G.A., O.R., First Scss., SecondPart, Forirth
Comm., Part 1,pp. 235-244.
U.N. »oc. A/334, in C.A., O.R., Second Sess., Fatirth Comm.,
PP.134-136.
U.N. Doc. A/334/Ad<l. 1, in G.A., O.K., Second Sess.. Fourth
Comm., pp. 136-138.
C.A., O.K., SecondSes::.,Fourth Co~nm.,Aiznex jh,p. 197.
U.N. Doc. A/422, in (;.A.,O.R., SecolrdSess., Planary Meetings,
vol. 11,pp. 1537-1543,
U.N. Iloc. A/gzg, in C.A., O.R., Fotrrth Sess., Fozirth Comm.,
Anizex, pp. 7-12.
U.i\'. Doc.A/C,4/1go,in C.A., O.R., Sixth Sess., Annexes (Agenda
item 38).p. 17.
G.the United A'ationsC:ommissionerin Eritrea.8), Final Report of
D. Security Council
(1)Meetings.
S.C., O.R., Second Year, No. 31, 124th Meeting,pp. 641-660.
S.C.. O.R., Third Year, Nos. 36-jr, z71st Meeting. pp. 154-172.
(21Other.
~.
U.i\'. Doc. S/5382 (j Aug. 1963).p. r.
E. Econoniic and SocialCouricil
(1)CozincilDocument.
Ecosoc.O.R., Sirteenth Sess., Sup. HO. 13, Report O/ the Ad Hoc
Cornmiltee012ForcedLabour,pp. 541,604.(Thisdocument 1salso) SOUTH WEST AFRICA
No. 36 UI the Studies and Re$orts (Ne??Series) of the Interna-
tional Labour Office.)
(2)EconomicCommissionfor Africa.
U.N. Doc. E/CN.14128, EconornicSurvey of Africa since 1950.
pp. 13. Z:7;30, 61. 105.
U.N. Doc. k/CN.14/180 (18 Dec. 1962),Report of the Seminar on
UrgentAdministration Problemsof African Gouernments.Annex
IV, pp. 121-122.
(3)Social Commission.
U.A1.Doc. E/CN,5/324/Rev. I.çT/SOAI33 (Apr. 1957).Report on
the World SocialSituation, pp. 79-81, 112-113.
U.N. Uoc.EICN.51332,~/SOA/39 (1959),Inte~nationalSzcrveyof
Programmesof Social Deuelopment,p. 170.
U.N. Doc. E/CN.5/346/Rev. I, ST/SOA/42 (1961),Report on the
WorldSocial Situation, pp. 23, 96.
(4)Commission on Human Righls.
Sub-Comniissionon Prevention of Discrimiiintion and Protection
ofMinoiities.
U.nation i:itEdztcation,pp. 168-IG~.ggG),Study O/ Discrirni-
U.N. Doc. E/CN.4/Sub.z/181/Rev. r (Aug. 1957). Studv of Dis-
criinirtariorriit Edzrcatioit,p. 109.
Trusteeship Council
(1)Resolz<tion.
293 (VII). 17 July 1950, in T.C., O.R., SeuenthSess., Resolutioits,
sup. CS.1 (T/794),PP. 49-j5.
121Council Meetines.
T.C., O.R., Second Sess., First Part, 6th Meeting, pp. 106-140;
15th Meeting, pp. 470.512; 18th Meeting. pp. 571-609.
T.C., O.R.. Third Sess., 31st hfeeting, pp. 405-422; 41st Meeting,
TC.PP. 030-539Pifth Sess., 1st Meeting, pp. 2-3; 25th Meeting.
pp. 307.312: 27th Meeting, pp. 328-342.
T.C., O.R.. Fifleenth Sess., 584th Meeting. pp. 163-168, ggznd
Meeting, pp. 219-223;6oznd Meeting,pp. 291-295.
T.C., O.R., SeuenteenthSess., 687th Meeting,pp. 267-271.
Reborts to th Genml Assemblv.
C.A., O.R., Third Sess., Sup. No. 4 (A/603).
G.A., O.R., Fourlh Sess., Snp. No. 4 (A/g33).
G.A., O.R., Fifth Sess., Sup. NO.4 (A/1306).
C.A., O.R.. Sixth Sess., Sup. No. 4 (A/1856).
C.A., O.R., Ninth Sess., Sup. No. 4 (A/2680).
G.A., O.R.. Tenth Sess.. Szr$. No. 4 (A/2933).
C.A., O.R., EleuenthSess.. Sup. No. q (A/317o).
C.A., O.R., TwelfthSess., Sup. No. 4 (A/3595).
G.A., O.K., ThirteenthSess., Sup. No. 4 (AI3822).Vol. II.
G.A., O.R., FourteenthSess., Sup. No. 4 (A/~IOO).
C.A., O.R., Fifteenth Sess., Sup. No. 4 (Al4404).
C.A., O.R., Sixteenth Sess., Su No. 4 (A/4818).
C.A., O.R., SeuenteenthSess.. up. No. 4 (A/5204). COUNTER-MEMORIAL OF SOUTH AFRLCA I47
(4)Reports of Visiting Missions.
T.C., O.R., Fiftsenth Sess., Sup. No. z (T/1168), United valions
Visiting Mission to Trust Territories in East Africa, 1954,
Report on Ruanda-lJrundi.
T.C., O.R., Fiftemth .Sess.,Sup. No. 3 (T/II~~), United Nations
Visiting Mission to Trust Territories in East Africa, 1954.
Report on Tanganyika.
T.C., O.R., Fiflh Spec. Sess., Sup. No2 (T~IzI~),United Nalions
Visiting Mission ta the Trust Territories of Togoland under
British Admi,tistraiiou and Togoland under French Adminis-
and theFutnre of the Trust Territory of Togoland under British
Administration.
(5) TrusteeshifiAgreements.
U.N. Doc.T/Agreemeiit/2, g June 1947, TrusteeshipAgreement/or
the Territory of Tanl:anyika.
U.N. Dac.T/Agreemeiit/3, g June 1947.TrusteeshipAgreementfor
the Territory of Ruanda-Urundi.
U.N. Doc. TIAgreement/xo. 8 Aug. 1951, Trusteeship Agreement
for the Territory of Sumulila~tdunder Italian Administration.
(6)Miscella~ieous.
G.A., O.R., Second Sais., Sup. No. IO (A/4oz/Rev. 1). Proposed
Trusteeship Agreemant for the Mandated Tmritory of Nauru.
submitted by the Gouernmentsof Australia. New Zealand and the
United Kingdm.
U.N. Doc.T/175, in T.C., O.R. Third Sess., Sup. (T/337),pp. 51-
1j2.
G.A., O.R., SeuenthSess., Sup. No. 12 (A/zI~I), Special report of
the Trusteeshifi Couhcil on administrative unions affectingTrust
Territoriesand onthastatus O/theCameroonsand Togolandunder
French administration arising ozit of their membership in the
French Union.
G. Secretariat
(r) Department of EconomlCairdSocial Affairs.
(i) Statistical Office:
DemografihicYearbook1960, 'i'welfthIssue (NewYork, 1960).
pp. 99-100.
Statistical Yearbook1,62. Fourteenth Issue [NewYork, 1~61,.-.
PP.21-39,
U.N. Doc. ST/STAT/SER.K/z (1963).Compendium of Social
Statistics: 1963, p. 323.
(ii) Bureau of Social Ai'fairs:
Yearbook on Human Ri~hts for 1957 (New York, United
Nations, 195g),p. 271.-
Yea~book on Humrin Rights for 1958 (New York. United
Nations, 1960).p. 287.
"Freedom from Arbitrary Arrest. Detention and Exile". in
Yearbook on Human Righls: First Supfilemenfary Volume
(NewYork. United Nations, 1g59),p. 178.
U.N. Dac. ST/SOA/5o, E/CN.5/367/Rev. r (1962). Report of SOUTH WEST AFRICA
148
theAd Hoc Groirpof Enfiercson Housing and UrbarrDmelop-
ment. p. 1.
(Ci B)ureau of Economic Affairs:
U.N. Boc. E/2670, ST/ECA/zg, Processes and Poblems of
Indzisbrializationin Under-Ileuelobcd Countries (Kew York,
1955))P. 21.
(2)DepurtnteirtofTrnsteeshifiandIitformation /romNon-Self-Gouerning
Terrilories..
Division. of Inforination from Non-Self-Goveming Territories
U.N. Doc. ST/TRI/SER.A/13 (1gj8). Sqecial Sttcdy on Econornic
Conditionsin Non-Self-Goverriin,.Tmrzlories: Analyses of infor-
mation 1:ransmittedto the Secretary-General(195 p. -3L957).
U.N. Uoc. ST/TIII/SE R.A/xj, J'rogress O/th NonSelf-Goveyning
Tcrri1or;iesunder the Charter,j Vols. (1960-1g61). Vol. 3, Social
Conditioiis,pp. 23-24; Vol. 4, EdzrcatioriulConditions,pp. 37-38,
41-42. 49.
U.N. Doc.ST/TRI/SEIZ.A/I~ (rgGo),SpecialStzidy OIPEdriculio~tal
Conditions in Non-Self-GoveriaingTerrilories: Analyses of iiifor-
matioii transmitted to the Secretary-General (1956-1958).pp.
41-43, 66.
U.N. Dar. ST/TRI/SER.A/IR (1962). Sfiscial Study os Social
Aduaric<:inentin NOIL-Self-GoverningTerrilories: Analyses of
information traiisinitted to the Secretary-General (1yj7-1g5y).
pp 28-:zg.
(3)Ofice of Public Information.
Everynra~r'sUriited Naliorrs, Sixth Editioii (New I'ork. 195g),
U.N. Press Release GA/zjo~, 26 May 1962, Joi~atSlulernott oit
l'retoriritalks following visit of UN RefiresetslativestoSotltk West
Africa.
H. Intergovernniental Agencies Related to the Uiiitcd Xations
(1) I~cter~iatio~altomic Energy Agency.
I.A.E.A. Doc.ST/DOC/36(June 1g61),Reportof an IAEA missi or^
ta Liberia, p. 31.
(2)Internaticizal LabozrrOrganisatio~z.
Africart Labour Coizfererlce.IIrid Sessioiz /Elizabethville], July
'1~~0. Final Repori, pp. III-112.
International Labour Organiratio~i,Report IlI, African Kegional
Conference 1960. Relations between Employers aizd IYorkcrs:
(a) frei:donO/ association (b) joint corzsziltatioit(c) collfctive
bargaining (Third Item 01%the Agenda) [Geneva, Iiiteniahonal
Labour Office, IQ~O],p. 60.
Africarz I,abour Strrvey, Studies and Reports, KebvSeries, Ko. 48
(Geneva. International Labour Office,1962),p. 37.
Report of the Comnrissio~zuppointed under Article 26 of tlicCoïssti-
ttition of the Internatio~zalLabour Or:aitisdion 10 exainine the
Conrpluint bled by the Goverrtmetitof Portrrgal concerning 1/18
Obserurcnceby the Govmnment of Liberia of the Forced Labour
Corivention, 1930 (No. 29) [Geneva, International Labour
Office. 19631.p. 115. COUNTER-MEMOR OIASOUTH AERICA I49
"Inter-Territorial hfigrations of Africans South of the Sahara",
in Inlerizalional Laborir Reniew, Vol. LXXVI, Xo. 3 (Sep.
1957).PP. 292-310,at P. 308.
(3) Food aini Agriculturetîrganization of the UnitcdNations.
Communal Land ï'en:ure: An FA0 Land Tenure Study (FA0
Agricultural Stndies, No. 17) [liome, Food and Agriculture
Organization of the United Nations, Mar. 19531.pp. 2, 26-27.
(4) United Nations Edricalional,Scientific and Cultural Organization.
Social Implications ofIttdustrialization and Urbanizationin Africa
Sozcthof theSahara (Paris, United A'ationsEducational, Scien-
tific and Cultural Organization, 1956),pp 53. 693.
Asia, Arab States, Africa: Edtccationand Progress (Paris, United
Nations Educational, Scientific and Cultural Organization,
1961), Pp. 51-52.
Unesco/ED/~So(1961).ConferenceofAfrican States OIEtheDerielop-
meut of Edzccationin Africa, Addis Ababa, 15-25 May 1961,
-utli*zeof a Plan for African Edzicational Denelopment,pp. j,
8.23.
Unesco/ED/181 (1961),ConfereuceofAfrican States on theDeuelop-
ment of Education in Africa, Addis Ababa, 15-25 May 1961.
Final Report, pp. 3, 5-7, 38-39; Anne" IV, pp. 32-33,jj, 78.
Unesco/ED/~gs (1962), Meeting of Ministers Education of
African Cozcntries$arlicipating in the Intplementation of the
Addis Ababa Plan, Final Report, pp. 17-18,SI, 153-154.
1. Other
(1)The Charterof the United Nations.
(2)The Stntute of the International Coiirtof Justice.
(3) U.X. DOCA . /70, Oct. 1946-Terms of Leagzieof Nations Maizdates.
(4) "New Guinea-Most Backward Twt Area", in United Nations
Review, Vol. I, No. 3 (Sep. 19j4), pp. 31-36,at p. 31.
(5) "A Formidable Task in New Guinea: Peaceful Penetration Con-
tinued in Primitive 'riust Territory", in United Nations Rcuiew,
Vol. 2,No. 3 (Sep. 1955).pp. 33-44, :~tp. 34.
(6) "First Progress Report to the Secretary-General from his Special
Representative in the Congo", in United vati ionseview, Vol. 7,
NO.5 (Pl'ov.1960).pp. 15-25,ût p. 22.
III. Commissionfor Technical Co-operationin
Africa South of the Sahara
Proceedings of the Third Inter-African Soils Conference, Dalaba, 2-11
Nouember1959(Publication No. 50)~Vol. 1,pp. 73, 89-90.
IV. Australia
A. Kew South Wales
Act A'o.74 of 1902, Vagrancy Act, 1902,secs. 4 (1) (a), 4 (2) (i) and
9 (1).in The Statutes of New South IVales (Pzablicand Private)
[Sydney. William Applegate Gullick, 19031,pp. 541-544.
B. Western Australia
(1)jjO Victoriae No. 27. Police Act, 1892-195s2 e,cs. 49 and 65 in150 SOUTH WEST AFRICA
TheKepriztedActsofthe Parliament of WesternAustralia (Perth,
William H. Wyatt, 1954).Vol. 6, pp. 23. 29.
(2)55 Victoriae No. 28, The Masters and Servants Act, 1892, in The
Statutes of Western Australia. Vol. II, 1883-1892 (1896), p. 617.
V. Basutoland
A. Legislatioii
Proc. No. zB of 1884, General Law Proclamation, as amended, in
RevisedEdition of theLaws of Basutolandin Force onthe 1stDay of
January, 1,249 (London, Waterlow & Sons Ltd., 1950). Vol. 1,
Title III, Chap. 26, pp. 408-411.
Proc. No. 46 of 1907,PublicSafety Proclamation, as amended, sec. IO,
in RevisedBdition oftheLaws O/Basutolandin Forceon the~stDay
ofJanuary, 1949 (1950).Vol. 1. Title III, Chap. 35, p. 447.
ReuisedEdition of the Laws of Basutoland in Force on the 1s1Day of
January, Ig4g (1950).Vol.III. Title III, Chap. 31, Part 1,pp. 221-
222; Part 1'1,sec. 3, p. 234.
B. Other
Basutoland (:onstitutional Handbook-Containing the Basutoland
fConstitution) Order in Council,1959,and Related Legislation a?d
Reports (Maseni, 1960),pp. 28-32, 38-44.
VI. Bechuanaland Protectorate
Proc. No. 36 of 1909, Gennal Law Proclamation, in The Laws of the
Bechuanaland Protectorate,containing the Orders-in-Council, Procla-
mations and PJoticesmade thereunder, in Force on the 1st Day of
January, 1948, Revised Edition (London C. F. Roworth, Ltd., 1949).
Vol.1, Title I'J, Chap. 27, p. 251.
VII. Belgium
Rapport sur L'Administrationbelge du Ruandi-Urundi pendant l'année
1959 prdsentéaux Chambres par Monsieur le Ministre des Affaires
africaines (Bnlwelles,Imprimerie Fr. van Muysewinkel,1960),pp. 253-
254.257-258,472,474-475.
VIII. Canada
(1)The Reuised Statutes of Canada, 1927 (Ottawa, Frederick Albert
Acland, 1gz7), Vol. II, Chap. 98, secs.2 (j) and Zr, pp. 2,7.
(2) Chap. 51, 2-3 Elizabeth II, 1953-54, secs. 162, 164, 434. 437, in
CriminalCodzandSelectedStatirles (Ottawa. Edmond Cloutier, 1954).
PP. 52-53. 144-145.
IX. Capeof GoodHope
A. Report of Commission
Soulh African Native Affairs Commission1903-5,5 Vols.(CapeTown,
Cape Times Limited. Govemment Printers. 1904-1905). Vol. 1,
ReportoftheCommis.çionp , p. 5, 26, 35-36.50-51, 74. COUNTER-MEMOIUAL OF SOUTH APRICA 151
B. Legislation
(1) Statutes.
Act No. 15 of 1856, Maslers and Semanls Act, in Statutes of the
Cape of GoodHope, 1652-1895 (CapeTown, Juta & Co.. 1895).
vol. 1, pp. 570-590.
Act No. 3 of 1865, The British Kafraria Incorporation and
Parliamentary RepresentationAmendment Act of 1865,in Slatzites
of the Cape of GoodHope passed by the TAird Parliament during
the Sessions 1864-1868(CapeTown, Saul Solomon8i Co., 1868).
PP. 127.137.
Act No. 18 of 1873, Masters and Servants Law Amendment Act,
1873, iii Stalutes of the Cape of GoodHofie, 16.52-189.j.Vol. II,
pp. 1293-1301. . -
Act No. 23 of 1879. Vagrancy Act, 1879, in Statz6tesof the Cape of
GoodHope passed i~ythe Sixth Parliament during the Sessions
1879-188.7(Cave Town, W. A. Richards & Sons. Govemment
P&ters.-188~j, pp. 54-60.
Act No.27of 1889,VagruficyLaw Amendment Act, 1889,inStatzites
of lhcCape of GoodIfope passed by the Eighth Parliament during
the Sessions 1889-1893 (Cape Town, W. A. Richards, 1894).
PP. 46-47.
Act No. 30 of 1895, The Local Authorities Increased Powers Act,
1895. in Statzites of the Cape of Good Hope 1652.1905 (Cape
Town. Cape Times Limited, Govemment Printers. 1906).Vol.
III, PP. 3530-3532.
Act No. 41 of 1895, British Bechuanaland Annexalion Act, 1895,
in Statutes of the Cape of GoodHope 1652-190.5.Vo~. III, -~.
3571-3578.
Act No. 40 of 19oz. The Nalives Reserve Localions Act, 1902, in
Statutes of theColonyof the Capeof GoodHope passed by Parlia-
ment during the Sessions 1902.06 (Cape Town, Cape Times
Limited, Govemment Printers. 1906),pp. 4511.4518.
(2)Proclamations.
No. IIO of 1879, in The Cape of GoodHope GoverurnentGazelle,
No. 5950 (16 Sep. 1,379),pp. 7-8.
No. 229 of 1883, in The Cape of Good Hope GouernmentGazette,
No. 6436(14Dec. 1883).p. 1291.
No. 184 of 1884, in The Cape of GoodHope Govnnment Gazette,
No. 6519 (8 Aug. 1884),p. 1.
No. 53 of 1891, in The Cape of Good Hope Govnnment Gazette,
No. 7267 (13 Feb. 1891).p. 270.
C. Other
G 50-1877, Reportof W.iCoatesPalgraue,Esq., Special Commissioner
to theTribes North of theOrangeRiver, of his Mission toDamaralalzd
and GreatNamaqualand in 1876, pp. 1, 12-14, 16-21,25-26, 40-42,
#-45. 48-49 51-54. 57, 61-83,94.
X. Colonyof Natal
Legislation
Law No. # of 1887, in T,ke Laws of Natal (Pietermaritzburg, Wm.152 SOUTH WEST AFRICA
Watson, Goveniment Printer, 1890). Vol. III (1879-1889). pp. 1756-
-/"Y.
Law Xo. 19of rBg:r,Schedule in TheNatal GovernmentGazette,Vol.XLI II,
Xo. 2506 (II Aiig. 18g1). pp. 1179-1189.
Act Xo. 49 of xgoi:,in Acts of theParliament of the Colonyof Natal, passed
irt the Fifth Se:;sionof the Second Colonial Parliament, 1901 (Pieter-
maritzburg, "Times" Printing and Publishing Co. Ltd., I~OI),pp. 168-
A,'.
Act No. 3 of 1904,in Acts of the Parliament of the Colonyof Natal, fiassed
iirthe Second S,?ssiionof the Fourth ColonialParliamcnt, 1904 (Pieter-
maritzburg, "Times" Printing and Publishing Co.Ltd., rgoq), pp. 6-7.
XI. Ethiopia
(1) Ministry of Eclucationand Fine Arts, Bureau of EdzrcationalResearch
and Statistics, Government,Mission, Private, Community and Churcli-
Schools1959-1960, p. 6.
(2) Ethiopia: Facts and Figures (Addis Ababa, Ministry of Information
of Imperia1 Et:hiopian Government, xgGo),p. 3.
XI![.Federation of Rhodesia and Nyasaland
(1) Report ortan EconomicSttrvey of Nyasaland, 1958-1959. C.Fed. 132,
PP. 168, 171, 174.
(2) Brelsford, W. V. (ed.),Handbook to the Federation of Hhodesia and
Nyasaland (London, Cassel1and Co. Ltd., for the FederalInformation
Department, rg6o). p. 493.
(3) Federal Government Press Statement 726/63/DER (30 Jiily 1963).
Erosion of the Rule of Law in Nyasaland, pp. 8-9.
XIII. France
A. Report to the United Nations
Rapport aiiiiziel du Gouvernemerttfrartçais aux Nations Unies sur
l'adiniiiistrati~rndu Camerounplacésoirsla tutelle de la France, année
1947 (Paris, charles-Lavauzelle et Cie. 194S),pp. 12, 24-25.
B. Other
(r)Conférencede la Paix 1919-20, Recueil des Actes de la Conférence
(Paris, Imprimerie Xntionale, 1934). Partie VI, Traitésavec les
Puissaitce:; Ennemies mis en vigueur, A, Préparaiionde la mise
en vigueur. ler Fasc., pp. 327, 329-330. 339-345, 348-350, 353,
399-416
(2)Madagascar zt les Territoires français de 2'océan Indien et de la
mer Roitg,::Comores-lles australes-Somalie (Paris, Secrétariat
généraldi1Gouvernement, Direction de la Documentation, 1954).
P. '7.
XIV. German Empire
(1) DezrtschesKolonialblatt: Amtsblatt für die Schutzgebiete in Afrika
und in der Südsee, XVII Jahrgang. No. 19 (1.Oktober 1g06),p. 643:
SVIII Jahrgang. Xo. 20 (15. Oktober 1907).p. 981. COUNTER-MEMORIALOF SOUTH AFRICA 153
(2) Die deutscheKolonial-Gesetzgebzif~Sga,mmlung der auf die deutschen
Schutzgebiete bezüglicheii Gesetze, Verordnungen, Erlasse und inter-
lin, Ernst Siegfried Blittler und Sohn), Neunter Ikndister (Jahrgang
~goj), pp. 221-241, 284-286; Zehnter Band (Jahrgang 1go6), pp. 25-
370-371.421; Zwolfter Band (Jahrgang 1go8),pp. 26-27; Dreizehnter
Band (Jalirgang 1909). pp. 19-34.
(3) A,mtsblatt für dus Schuttgebiet Deutsch-Siidwestafrika, 1 Jahrgang,
ho. 20 (15. Januar I~II),pp. zjg-260.
(4) Diedezitscha SchutzgebieteinAJrikaundderSiidsee, 1911lrz-.4mtliche
Jahresberichte, herausgegeben vom Reichs-Kolonialamt (Berlin,
Ernst Siegfried hlittler und Sohn, Koiiigliche Hofbuchhandlung.
1g13),Slalistischer Teil, pp. 40-41.
(5) Die dentschen Schutzgebietein Afrika und der Siidsee rg1zl1g13-
Amtliche Jnhresberichte, herausgegeben vom Keichs-Kolonialamt
(Berlin, Ernst Siegfried Mittler und Sohn, Konigliche Hofbuch-
handlung, 1914). Berichtsleil, p. 130; Stalistischer Teil. pp. 22, 46-47,
57.
XV. Ghana
Edncation Statistics Ig59, Statistical Reports, Series I, No. 6 (Accra,
Officeof the Government Statistician. ~ggq),p. 7.
XVI. Guinea
Decree No. 43 of 18 Januar!? 1963, in Joliriin1Oficiel de la Répzibliqiie
de Guinée,No. 18 (IP'février, 1963).p. 18.
XVII. Kenya
Legislation
(1)Ordinances.
NO. Iz of 1915, C7owizLn~idsOrdinance, as amended, in The Laws
of Kenya in Force 016 the z~st Day of September, 1948, Revised
Edition (Nairobi,Government Printer), Vol. II, Title XVI, Chap.
155, secs. 36, 55, 57, 63 and 88, pp. 2026, zo30-zo32, 2040.
No. g of I~ZO, Vagrancy Ordinance, :is amended, in The Laws of
Kenya in Forceon the zist Day ofSeptember,1948, Revised Edition,
Vol. 1, Title V, Chap.j~. sec. 3, p: 769.
XO. 1 of 1924, The LegislaliveCouncil (Amendment) Ordinance,1924,
in Coloiiyand Protectorrileof Zieltya, Ordiizancescnactedduring the
year Igzq, Vol. III (New Series) [Nairobi, Government Press,
19251.PP. 1-2.
No. 39 of 1949, Volnntarily UnemployeclPersons (Prouision of Em-
ploymenl) Ordi?tance,1!94g,in Colony and Protectorateof Kenya.
Ordinances enacteriduring the year 1949 (Xairobi, Government
Printer). Vol. XXVIII (NewSeries), secs.2, 6-8, ri, 13-14.pp. 168-
171.
No. 48 of 1960. Legislah'veCouncil Elections Ordinance, 1960, in
Colony and Protectorateof Kenya, Ordinunces enacled during the'54 SOUTH WEST AFRICA
year 1960 (Nairobi, Government Printer), Vol. XXXIX (New
senes). pp. 338-359.at P. 342.
(2)GovernmentNotices.
No. 61, Additional Instructions passed under the Royal Sign Manual
and Signet lo the Gouernorand Commander-in-Chiefof the Colony
of Kenya, in regardta the constitution of th Executiue Council and
of th Legislatiue Corrncilthereof, 28th Dezember,1925, in Colony
and Protectorateof Kenya, Proclamations. Rules and Regulations
(Nairobi,Government Printer), Vol. V (NewSeries)[1927],pp. 32-
35.
Ko. 248, Additional Instructions passed trnderthe Royal Sign Manual
and Signet to the Gouernorand Commander-in-Chiefof the Colony
O/Kenya, in regard 10 the constitution of the Legislatiue Council
thereof, 28th March, 1927, in Colony and Protectorateof Kenya.
Proclamations, Rules and Regulations (Nairobi. Government
Printer), Vol. VI (New Series) [1gz8], pp. 524-528.
Xo. 431, Addilional Instrrrctionspasscd under the RoyalSign Mauual
and Signet lo theGouerr~ornd Commarider-iin-Chieoff theColoiiyof
Kenya in regard to the Executiueand LegislatiueCouncils thereof,
27thApril. 1948,inColonyand ProtectorateofKenya, Proclamations,
Kules and Regulations(Nairobi,Government Printer), Vol. XXVII
(New Serie!;)[r949], pp. 139.148.
XVIII .iberia
(1)ï%el;trst II'E:~ il riSur~ntnitCof~fcrenceeldal.5'a>iniqrre/iee,ntrvl
Pro;incz.LiLzriiinHt~ilerla~/r,rly 15-r1.9.5(\lonro\.in. 1-ibcnan
Information Strvicell.ondon. Coiisolidated l?iblic;itioiis I.td..
'959). P. 3').
(2)The Fourth Annual RePmt of the Department of Public Instruction
R.L., coverinf the period Sept. 1, 1958-0ct. 31, 1959, submitted by
Nathaniel V. Massaquoi, Secretary of Public Instruction (Monrovia,
Oct. 31. 19551).p. 53-54, Appendices VI and VII.
(3)Liberia Annrral Reuiew 1962.1963 (Monrovia, Consolidated Publi-
cations Inc.),pp. 278.281.
XIX. MalagasyRepublic
Livre d'Or dela RdpnbliqueMalgache(L'Imprimerieofficiellede Madagas-
car, 1959).P. 35.
XX. NewZealand
Act No. 35 of 1927. The Police OffencesAct, 1927, secs. 49, 50, 52 (1)
and 52 (1)(i),in The Statutes of New Zealand Ig55 (Wellington. R. E.
Owen. Government Printer, 1956).Vol. II, pp. 1781-1783.
XXI. Northern Rhodesia
Legislation
(1)Ordinances.
Ordinanceof thelocal LegisiaturetaProuidefor theEledion of Members
10the LegislativeCounM1.-J«ne 4, 1925 (as amended to 1937). ln COUNTER-MEMOR OIA IOUTH AFRICA I55
The Constitutioilsof al1Counlries(London, His Majesty'sStationery
Office,1938).Vol. 1,The British Empire, pp. 532-535.
No. 53of 1929,Townships Ordinance,as amended, in Laws of Northern
Rhodesia, 1962Edition (Lusaka,The GovemmentPrinter), Vol.IV,
Chap. rzo, sec. 27, The Townships Regulalions, Part VI, reg. 31,
p. 98; also 1963Edition, sec. 27, Part XII, regs. 130 and 135 (I),
pp, 110-111.
No. 56 of 1929, Employment of Natives Ordinance. as amended, in
Laws ofNorthern Rhodesia,1960Edition (Lusaka, TheGovernment
Printer, 1960),Vol. V, Chap. 171, secs. 74and 80. pp. 27, 29.
No. 25 of 1936, Barotse iVativeAuthority Ordinance,as amended, in
Laws of Northern Rhodesia,1963Edition (Lusaka, The Government
Printer, 1963),Vol. V, Chap. 159, pp. 2-13.
No. 32 of 1948. Urban ilfrican Housing Ordinunce, as amended, in
Laws ofNorthern Rhodesia,1959Edition (Lusaka, The Government
(inserted by Ord. No.Vciof 1960),p. 6.ecs. 21, 23 (1) and 23A
(2)Ordersin Coiincil.
The Northern RhorlÿsiaOrdersin Council, 1924 to 1960, secs. 41 (1)
and 43 (1). in Laws of Northern Rhodesia, 1961 Edition (Lusaka,
The Government Printer, 1961). Vol. VIII, App. 2, pp. 15-16.
The Northern Rlwdesia (Crown Lands and Native Reserves) Ordersin
Council, 1928 to 1961, sec. 6, in Laws of Norlhern Rhodesia.1962
Edition (Lusaka, The Govemment Printer, 1962). Vol. V111.
.~PP.5, P. 7.
The Norlhmn Rhodesia (Crown LaicdsaicdhTativeReserues)Ordersin
Council, 1928 to 1962, sec. 6. in Laws of Northern Rhodesia. 1963
Edition (Lusaka. The Governinent Printer, 1q6-),-.ol. VIII.
APP. 5. PP. 7-8.
The Northnn Rhodesia (iVulive Trust Land) Ordersin Council, 1947
to 1961, secs. 5-6, in Laws of Norlhnn Rhodesia, 1962 Edition
(Lusaka, The Governinent Printer, 1962), Vol. VIII, App 5,
.'. ", .,,
The hrorthnn Rhodesia (iVative Trust Land) Ordns in Council. 1947
to1962,sec. 5, in Larusof Norlhern Rlwdesia, 1963Edition (Lusaka,
The Goveriiment Print,-r, 1963).Vol. VIII, App. 5, pp. 34-36.
The Northern Rhodesia (i~onstit~ilion)Orderin Council, 1962, sec. 3,
in Laws of Northern Rhodesia, 1963Edition (Lusaka, The Govern-
ment Printer, 1963), Vol. VIII, App. 3, pp. 4-5.
(3)Otkr.
Penal Code.1931, secs. 34 (3)and 158,in Laws of Northern Rhodesia,
1963 Edition (Lusaka, The Government Printer. 1963), Vol. 1,
Chap. 6. pp. 28,74.
XXII. Orange FreeState
(1) Law No. 8 of 1893, sec. 2, in The Stalate Law of the Orange River
Colony (Bloemfontein. The Argiis Priniing and Piiblishing Company
Ltd., 1907),p. 220.
(2)Law No. 8 of 1899, sec. I, in The Stutzite La70of the Orange Ririer
Colony (1907). p. 26~.15~ SOUTH WEST AFRICA
XXIII . ortugal
(1) Caetano, M., Colonizing Traditions, Princi9les and Methods of the
Portuguïse [Rt:piiblica Portuguesn, hlinistérii,do Ultramar, Uivisào
de l'iit~licaçôee Biblioteca Agëricia Gera1 do Ultramar] (Lisbon,
XXIV. South African Republic
(1) Law No. 6 of 1880, in De Locale Wetts~zderZuid Afrikaansche Repzr-
bliek 1849-1885 (Pretoria, J. F. Celliers,1887),pp. 748-751.
(2) Law No. 22 of 1895, in De Locale Wetten en Volksrancisbesluitender
Zz~id-Afr. Republiek, benevens de Proclamaties van ZHEd. den
Staatspresiderit en de belangrijke Gouvernements-Kennisgevingen,
gedurende het jaar 1895(Pretoria, Staatsdnikkerij van de Z.A. Repu-
bliek. 1896),rip. 226-231.
(3)Law No. 23of 1895, in Dc Locale TVettenen Volksraadsbeslrrite~dzer
Zz~irl-Afr.Kepz~bliek(1696).pp. 232-244.
XXV. Southern Rhodesia
A. Legislation
(1)Stalzttes.
Act No. 2:sof 1879,The VagrnncyAct, as amended, in The Statilte
Law of .Southcm Rhodesia in Force on the 1st Day of January,
1939, Revised Edition (London, C. F. lioworth Ltd., 1939),
Vol. 1,Title V, Chap. 45. pp. 6oj-608.
Act No. 30 of 1930,Land A@porlioninentAct. as amended, secs.zg
and 32. in The Statute Law of Soz~thernRhodesia in Force mi
the ~sl Day of Janzlary, 1939, Revised Edition, Vol. V, Title
XXIV, Chnp. 240. pp. 120-121.
Act No. 14 of 1936,iktives Registration Act, in The Statute Law
of Southern Rhdesia in Forceon the 1st Day of January, 1939,
lievised Edition, Vol. II, Title IX, Chap. 76, pp. 275-285.
Act Ko. of 1941,Land Apportionment Act, ~gq, in The Statute
Law of .>outhcr~R ihodesia ~g@ (1g42),pp. 50-90,
Act No. 6 of 1946, Natives (Urban Areas) Accommodation and
RegistrationAct, 1946, in The Statute Law of Southern Rhodesia
1946 (1047).PP 6-30,
Act No. 20 of 1gj1, iVatiues (Urban Areas) Accommodation and
Reeistration Act. ,"';..in The StatzrteLaw 01SozrthernRhodesia
I~~I (1952),pp. 285.320.
Act No. 40 of 1960, Vagrancy Act, 1960, in The Statute Law of
Southern Rhodesia1g6ojg61),,pp. 321.329.
Act No. 37 of 1961,Land fiportzonmentAmendment Act, 1961, in
The StatirteLaw O/SozlthernRhodesia196- (1q.-), .--p. 235-285.
(2)Ordinances.
No. I of 1899, Masters and Servants [Ordinance], as amended, COUNTER-MEMORIAL OF SOUTH AFRICA I57
secs. 47 (1).49 and 60, in The StalzrleLaw o/ SoutherrsKhodesia
in Force on the 1st Day of Jnntcary, 1939, Revised Edition,
Vol. V, Title XXII, Chap. 231. pp. 12-13.16-17.
No. 4 of 1906,Native UrbaitLocations[Ordiizance],as amended, in
TlzeStatt~teLaw of!jouthern Rhodesiain Forceon the1st Uay of
lanuary, 1939, Kcvised Editio~i, Vol. II, Title IX, Chap. 84,
~ ~
No. 14 of 1908,Privafe Localions[Orili>raitceJi,n Thc Statule Law
of SotrtlreritRhodesia iztForceon tlre1st Day ofJanriary. 1939.
Reviscd Edition, Vol. II, Title IX, Chap. 83, pp. 311-314.
No. 14 of 1912, VolersQzralificdionaizd KegisfrationAnundment
Ordi~tunceI ,grz, in The Slatute Law of Southern Rhodesia, From
1st lunuarv.,.012. t. 71-tDecembcr.~ozz.,Gover\mcnt Printer.
r9L3), pp. 225-227.
No. 15of 1913,Native I'asscs[Ordiiia?rce],as aineiidcd, sccs. 7-10
niicl20. in Tlz Staltrte Law of SoidlrerrtRhodesirr iitI'orceon
the~stLlayofJuntmry, 1939, Revised Edition, Vol. II, Title IX,
Cliap. 77, pp. 287-289.
(3)Proclamafion.
No. 17 of 1898, sccs. 3-5, in ï'heSfatrrtaLaw of SonthcrirRhodcsia
(Frorit llte Cltarter to Ueçeznber 31. 1898) [Salisbury, Argus
Prititirigand Publishing Co., ~Sgg],pp. 158-159.
(4)OrdersiirCorincil.
Tltc Southerit RhodcsiaOrder iirCoirircil1898, in Tlu Stiitate Law
of SoiithcrztRltorlcsi,z(l'ronr thc Charterto Deceniber 31, 1898)
SoictherirRhodesta Order iit C~iiit~il,1920, secs. 2 :uid 4, in The
Statut6 Law of SozrtheritKkodwiu, Froin 1st Jariuary to 31sl
Deceinber,~gzo (1921).pp. 2561-?5G.>.
(5)LeflersPalent.
Letters Pateitl providitig for flic coizstitiitioicof RespoitsiblcGovcrn-
ment in the Colony of Southern Rltodesia, zjth Augast, 1923.
sec. 42, iii The Statute Law O/ Soutltcrit Rhoilesia, From 1st
Jantinry to 31st Decoritber1 ,923 (1924).p. 25.
B. Other
(1) The African in Soulhcrit Rhodesia, 6 Nos. (London, High Com-
missioner for Southern Rhodesia), No. I, Edtrcation.p. 2.
(2) Oficiul Year Book of SozithernRlzodesia.No. 4 (1952) [Salisbury,
Rhodcsinn Printing arid Publishing Co.. Ltd., 19521,pp. 41, 130.
(3)African Erlucation in Sozrthern Rlzodesia, Southern Rhodesia
1nform:ition Sheet, No. 25 (Salisbury,Southern Rhodcsia Infor-
mation Service, 1962).pp. 4-7.
XXVI. Swaziland
1.egislation
Proc. No. 28 of 1907, in Oficial Gazetleof tlceHigh Coiitmissioi%efr or
South Africa, Vol. XXI, No. 312 (25 Oct. 1907),pp. 7-10.
Proc. No. 39 of 1910, A'atiueAreas (Safegrcardirtg)Proclaination. in
Revised Edition of the Laws of Swazilaiid iii Force on the 1st Day15~ SOUTH WEST AFRICA
of April, Ig#) (London, C. F. Roworth Ltd., I~SI), Vol. 1,Title X.
Cha~.62. PP. 575-577:
Proc. No. 2 of 1946,Native Land SettlementProclamation,as amended,
in Revised Edition of the Laws of Swaziland in Forceon the rst Day
of April, 194;7(1951).Vol. 1, Title X, Chap. 63, pp. 578-585.
Proc. No. 45 of 1954,Swaziland African Labour Proclamation, 1954.
sec. 42 (1).
Proc. No. 58 of 1960, Alrican Labour (Amendment) Proclamation,
1960, in Oficial GazettO/ the High Ccm~missione/ror Basucolalid,the
BechnanalaizdProteclorateand Swaziland, Vol. CCXXIII, No. 3200
(II Nov. rgGo),p. 800.
XXVII. Tanganyika
iMolohaii,M.J. IL, Detribalization:A Study of the Areas of Tangaiiyika
where Detribalized Persons are Living with Kecommendations as to
the Administrative and Other hleasuresrequired to meet the Prohlems
arising tlicrein (Dar Es Salaam, Government Printer, 1959), p. 38.
XXVIII . ganda
Ord. No. 2 of 1909, I'agrarrcyOrdiriancc,as aineiided, scçs2 and 3, iii
The Laws of the UgandaI'rotectoratein Forceonthe1s1Day ofJanuary.
1951. Revised :Edition (Loiidoii,Watcrlow 6i Sons Ltd., 1951).Vol. II,
Cliap. 47, p. 7117.
XXIX. Union of South Africa and Republic ofSouth Afnca
-4. Parliamentas:? Debates
(1)Hmse O/.4ssmnbly.
(1913) COIS.2270, 2273, 2501. 2515, 2518; Vol. 5, (1925) Cols.
5930-5931;Vol. 26. (1936)Col.2747; Vol. 49, (1944) Col.6695;
Vol. 60. (1947)Col.2624; Vol. 76, (1951)Cols.8356,9809-g811;
Vol. 77. (1952)Cols. 552.562.563, 1236.1237; Vol. 86, (1954)
Cols. 6456, 6458; Vol. 90, (1956) Cols.2133-2138,2161, 2182;
Vol. 91, (1956) Cols.4107-4110. 4128; Vol. 99, (1959) Cols.
63-64. (56,1544-1545,1548-1549; Vol. 100, (1959) Cols. 3259-
3268. 3438; Vol. 101, (1959)Cols. 6215-6216; Vol. 103, (1960)
Col. 577; Vol. 105, (1960) Col.7872; Weekly Edition, No. 20
(12 Julie to 16 June, 1961). Cols. 7994-7995, 7998; Weekly
Edition, No. I (19Jan. to 26 Jan. 1962),Cols. 69-77,92.
(2)Senate.
Vol. 111, (1956) Cols.3627-3628, 3631.3632; Vol. IV, (1957)
COIS5. 333-5535.
B. Annual Reports on South West Africa Submitted to the Council of
the Leaye of Nations
(1)Reportsof the Administrator of South iVest Africa.
1919: U.(; 4.-1920, p. 4.
1920: U.G. 26-1921, pp. 2-4, 13.
1921: u.(;.32-1922, pp. 5, 12-15,
1922: U (;.21-1923, pp. 2-3. 9-11, 13, 15-16, 18,20.47. COUNTER-MIJMOK OIASOUTH AFRICA
159
1923: U.G. 21-1924. pp. 1.12-13.33, 35.
1924: U.G.33-1925, pp. 4, 20-22,24, 27-28,30-31.
(2)Reports O/ the Governmentof the Unionof SozrthAfrica on Soirth
West Africa.
1925: U.G.26-1926, pp. 31, 94-95,104, 109-111.
1926: U.G. 22-1927. pp. 22, 33, 36, 56.
1927: U.G.31-1928, pp. 35, 45, 101-102.
(3)Reports presented by the Governmentof the Union of South Africa
totheCouncilof the Leagueof Nations concerningtheadministration
of South West Africa.
1928: U.G. 22-1929, pp. 2, 7. 54.66.
1929: U.G.23-1930, pp. 10-11,33.
1930: U.G. 21-1931, pp. 16,35. 51-52,60-62,82.
1931: U.G. 17-1932, pp 12, 53.
1932: U.G. 16-1933, pP. 1. 12,34-35.52-57,69. 75-76
1933: U.G.27-1934, pp. 2, 9, 17,24.
1934: U.G. 26-1935, PI'.5. 7, 24.
1935: U.G. 25-1936, pp. 4,42. 44. 47.
1936: U.G.31-1937, pp. 3-4, 11, 20-21, 38, 43, 50, 96.
1937: U.G. 25-1938, PI>4 . , 42. 46-50. 53, 55, 66, 89-90.
1938: U.G. 20-1939, pp. 21-22.50, 55, 57.
1939: U.G. 3~1940, pp. 8,23-24.33.66-67, 74-75.103-104, 132.
134-135.138. 142. 175.213.
C. Report on South West Africa Presented to the General Assemblyof
the United Nations
U.G.49-1917, Repod 5y theGovernmentof the Union of South Afri:a
ontheadministrationofSouth WestAfrica for the Year 1946.pp. 3-4.
13.37.
D. Reports of Commissions
U.G.39-1913, Report of the Commissio~iappointed to cnquire into
Assaults on Women.
U.G. 34-1914, Report of the TzcberculosisCommission.
U.G. 24-1921, Interim and Final Re ortsoftheCommissionappoinled
to enqzcirein10the questionof the8 zbtureform of Governmenlin the
South West Africa Protet:torate, . 4.
U.G.41-1926. Report of the RehobothCommission, pp. 10-12,40-43.
48, 58-59, 63-64,79-92, 100-107,186.
U.G. 22-1932. Rebolt of Naliue Economic Commission 1930-1.~2. ~
pp. 105-;CG. a
U.G. 16-1935. Refiortof theCommissionou the Economicand Finan-
cial Relations betweenthe Union of South Africa and theMandated
Territory of South West Africa, pp. 4-6, 46.
U.G. 261936, Report of South West Africa Commission, pp. 19, 25,
3%54. 74.
U.G.54-1939, Report of the Native Aj'airs Commissionfor the Years
1937-1938.pp. 21-22.
U.G. 28-1948, Report of the Native Laws Commission 1946-48,p. 5.
U.G. 53-1951. RePort of the Commission on Native Education 1949-
19.71,pp. 8.69, 71, 131-132,151-152.
U.G.61-1955, Summary of theRepmt oftheCommissionfor theSocio-160 SOUTH WEST AFRICA
Economic L>evelobineitt 01 the Bantrc Areas wilhitt tlie Union 01
E. Report of Seli:ct Comniittee
S.C.6-~gj j, ReportoftheSeleclCotntnitleeontheSiebjectoftlieNirrsing
Aniendnrent Bill.
F. Legislaiion
(1)Statutes.
Act No. I of 1912,i\'ulal iVatiueTrust and Native Admiitistration
Amendment Act. 1.,2. i. Statzrtesof /lie Unioit 01 South Airica
'912, pl>.2-5.
:\ci No. 13 of 1912,Soutli'Africa DefenceAct, 1912 (with ainend-
inents), iii The Union Slatirtes1910.1947. Vol. j, pp 111-243.
Act No. 22 of 1913, lmntigrants HegulatioitAct, 191.7,in Statutes
of the Uïzioïzof South Afvica 1913,pp. 214-251.
Act No. :!j of 1913, Natiues Lund Act, 1913, iii Statntes of the
Unioirof SoirihAfricu 1913.pl>.436.473.
Act No. 49of 19x9.ï'reaty of PeaceuiidSorith IVestAfricu iMaitdate
Act. 191-9i,n TheLnwsof South WestAfrica 1915-1922,pp. 10-12.
Act No. :!3of 1920, Native .4ffuirs Act. 1920. iii Statules of the
Unioit of South Africa 1920, pl]. 84-92.
Act No. 24 of 1922,South-Wesl Africa Affairs Act, 1922, in The
Laws O/ Soutlr LVestAfrica 191j-1922,pp. 20.25.
.Act No. 21 of 1923 hT&iues(Urbatr Areas) Act, 1923, in Slalrctes
of the L'irioiiof Sonth Africa 192.7.pp. 140-197.
Act No. 27 of 1923. Plrblic Service and Pensioris .'let.I923, in
Sl~ittrtesof the Uuioii of South Africa 1923,pp. 256-368.
rici No. 2.0 of 1923,Higher Education Act, I923, in Statutes of the
Union of South Africa 1923,pp. 380-392.
Act No. :jo of 1924, South West Africa iVaturdizaliott of Aliens
Act. Ig?4, in TireLaws of Soiilh IVest-4frica1924, pp. 82-85.
Act No. Z~Z of 1925,Soieth-West Africa ConstitrtlionAct, 192j. iii
Statute!:of the Union of South Africa 192j, pp. 734-801;in Tlie
Laws cf South West Africa 1925, pp. 60-92; aiid in Laws of
South West Africa, Vol. II (1923-1927).pp. 2-zG.
Act No. 18of 1926, British Nationality in th Unioirand Natur-
alization and Status of Aliens .4ct,1926,in Statutes of the Uniott
of SozrlhAfrica 1926, pp. 136-168.
.Act Ko. 38 of 1927,~\'ativeAdntinistratiott Act. I927, in Sldrctes
of the Uïzionof Sor'tAAfrica 1927, Vol. 1, pp. 314-351.
Act No. 40 of 1927, Union Nationality and Flugs Act, 1927. in
Statute:;of the Union of South Africa 1927-28,Vol. II, pp. 2-8.
Act No. 13of 1928,Medical, Benta1and Plwrmacy Act, 1928. in
Stn1rrteof the Unioit of Sofrlh Africa 1?.7.28,\'01.II, pp. 180-
293. '
Act No. 18of 1936,iVativeTriist and Land Act, 1936, in Statrrtes
of the Union of Soulh Africa 1936.pp. 90-199;and in The Union
Statutes 1g10-1g47,Vol. IO,pp. 187-293.
Act NO. I of 1937, Alieits Act, 1937, in The Luws of South Ives1
Airica 1937.Vol. XVI, pp. 40-51. COUNTER-MED~IO OH IOULTH APHICA 161
Act No. 45 of 1944,Aiursing Act, 1944, inStatzltesof the Union of
SozllhAfrica 1944, pp. 1006-1025.
Act No.zj of 1945,iVcrtives(Urban Areas) ConsolidationAct, 1945.
in Statutes of the U:tion of South Africa 2945,pp. 108.207.
Act NO.35 of 1948, Atomic Energy Act, ~g&, in The LamisO/
South West Africa 19.18,Vol. XXVII, pp. 18-51,
Act No. 15 of 1949, Rhodes University (Private) Act, 1949, in
Slatutes of the Union of South Africa 1949,pp. 102.135.
Act No. 23 of 1949, :jouth-CVestAfrica Afairs A~nendment Act,
1949, inStatutes of ille Union of South Africa 1949,pp. 178-197;
and in The Lams of Soiith West Africa 1949, Vol. XXVIII,
pp. 170-186.
Act No. 44 of 1949.Sotrth African CitizenshiP Act, 1949, inThe
Laws of South West Africa 1949, Vol. XXVIII. pp. 204.239,
Act Xo. 55 of 1951, .5'outhWest Africa Affairs Anierzdnwr~tAct,
1951, inStatutes of the Union of SozcthAfrica 1951, pp. 404.408.
Act No. 68 of 1951, Bantic Authorities Act, 1951, in Statutes of the
Union of Sotlth Africa 1951, pp. 1152-1179.
Act No. 67of 1952.Natives (Abolition ofPasses andCo-ordinatiori
of Documents) Act, 1952, inStatutes of the Union ofSouth Africa
1952, pp. 1012-1031.
Act No. 47 of 1953, Bantie EdircatiorrAct, I9j3, iiiStatides of
the Ultion of SoirthAfrica 19j3, pp. 258-277.
Act No. 56 of 1954, South-West Africa Nativd Affairs Admi~r-
istratiou Act, 1954inSlattltesof the Unioii ofSouth Africa 1954,
pp. 558-565.
Act No. 34 of 1955, 13eparturefro~nthe Uniori Re~nlatiorrAct,
1955, iiiStatzrtes of the Union of Sozrlh Africa rgjj, Part 1
(NOS.1-55),pp 238-245.
Act No. 42 of 1956.Native Adrninistratiori A~nendnieutAct, 1956,
inStatutes of the Union of SoutlsAfrica 1956. Par1 (Nos. 1-47)
PP 852-857.
Act No. 54 of 1956, Watel Act, 19j6, in Statutes of the Union of
Soi~thAfrica 1956, F'art II (Nos.48-73),pp 1047-13oj.
Act No. 57 of 1956,I'neumoconiosis Act, 1956, in Statzctesof the
Uuion ofSouth Africa 1956, Part II, pp. ~69~1509.
Act No. 54 of 1957, I'z~blicSmCe Act, 1gj7, IIIStatutes of the
Union of SozithAfrii:a 1957, Part II, pp. 7 4 859
Act No. 69 of 1957,Arursing Act, 1957, in 2tatutes of the Union
of Soiith Africa1gj7, Part II (Nos.45-83),pp. ro86-1133.
Act No. 41 of 1958,~VdiueTrust aiid Land AmerulmentAct, 1gj8,
in TheLaws ofSouth WestAfrica 1958.Vol.XXXVII, pp. 95-99.
Act No. 8 of 1959, Prisons Act, 1959, in Statutes of the Unioir of
South Africa rgjg, Part 1 (Nos. 1-60),pp. 16.107.
Act No. 45 of 1959, Erleusion of University Education Act, 1959,
in Statzctesof the Union ofSouth Africa 1959,Part 1 (Nos.1-60),
PP. 484-513. .
Act No. 46 of 1959. I'romotion of Bautrc Self-GoveriznieritAct.
rgjg, in Statictes of the Union of Soirth Africa rgjg, Part 1
(NOS.1-60),pp. 512-531.
AcWest Africa rgjg, Vol.XXXVIII, pp. 84-9G.g.in The Laws ofSouth162 SOUTH WEST AFRICA
Act Xo. 64 of 1961, Soi~tltAftican Citizenship Amendmerzt Act,
1961, in The Laws of South West Africa 1961, Vol. XL, pp. 508-
335'
Act No. 73 of 1961, UrbarzBatztu Councils Act, 1961, in Statutes
of the H~:pz~bliocf South Africa 1961, pp. 1266-1278.
Act No. 64 of 1962, PneurrtoconiosisComperzsaLionAct. 1962, in
Statutes oftheRepublicofSouth Africa 1962,Part II (Nos.59-63),
pp. 102:;-1183.
.4ct No. 48 of 1963, Transkei Constitr~tioriAct, 1963, in Tlio
Reprhlit: of South Africa Gouer~zn~ntGazelle Extraordinary.
Vol. VIiI, No. 516 (30 3Iay 1963),pp. 2-49,
Act No. 76 of 1963, Barttz~Lazvs Amendment Act, 1963, in The
Repzrblii:of South Africa Gouernment Gazette Extraordinury,
Vol. IX, No. 550 (5July 1963),pp. 2-29.
(2)l'roclaniations.
h'o. Iof 1921.Isdcmrzity aridwithdrawal of hlartinl Law, in ï'lio
Laws of South West Africa 1915-1922,pp. 44-46.
No. 12 of 1922, Caprivi Zipfel Administratiori in The Larvs of
South M'estAfrica 1915.1922, pp. 52-j3.
No.23of:t922,Ca$rivi ZiPfel: Admz$zistrationaspurt of Bechuana-
land Protectorde. in The Laws of Soz~thWest Africa 1915-1922,
PP.54-:i6.
No. 14j of 1922, IValuis Bay Administrdion, in The Laws of
South West Africa 1915-1922,pp. 56-57.
No. 310 of 1927, Land SettlementConsoli<lalionand Amercdiner~t
Proclancdion, 1927, in The Laras of Soutli West Africa 1927,
pp. 22-83.
No. 196of 1929. ii~The Laws of Soirth lVest Africa 1929, pp. 126-
128.
h'o.20j of 1932,Laud SetllemerztLaw (Soutli WestAfrica) Fzrrliior
Ancendrnent Proclamatioiz, IO?^. in Thc Laros 01 Soz<thWest
Africa 1932,pp. 22-33. >"
No. 150 af 1934,in The Union O/ South Africa GovernnzentGazette,
Vol. XCVII, No. 2216 (17Aug. 1934),pp. 383-386.
No. 77 of 1936.Land SeltlenzentLaw (South West Africa) Furthr
Amendment Proclamation, 1936, in The Laws of Sozrth West
Africa 1936,Vol. XV, pp. 4-11.
Ko. 51 of 1937,Sorrlh West Alrica Agairs Proclamation, rg37, in
The Laws of South West Africa 1937. Vol. XVI, pp. 60-67.
No. 147 of 1939. Eastern Caprivi Zipfel Administralion Procla-
mation 1939.in TheLaws ofSouth WestAfrica 1939,Vol.XVIII,
pp. 28-30.
Xo. 234 of 1939, in The Laws of Soutli. West Africa 1939, Vol.
XVIII. pp. 62-66.
No. 39 of 1947.Land Settlemenl Law (South West Africa) Ameizd-
ment Proclamation,1947,in TheLaws ofSo1~~1 W~estAfrica rg47.
Vol. XXVI, p. 134.
Xo. 235 of 1951, Abrogation O/ the Powers of LegislaLiongranted
to the Goverrzor-Generail~zterms of the Treaty of Peace and
Soutl*lVest Africa Mandate Act, 1919, in Th Laws of South
l'est Africa 1951, Vol. XXX, pp. 10-13.
Xo. 267 of 19j4, Deportalioriof undesirable persons /rom Soirth COUNTER-MEMOI~IALOF SOUTH AFKICA 163
West Africa. in The Laws of South West Africa 1954, Vol.
XXXII, pp. 66-71.
NO.287of 1956,Encisioii of certain land {romNative Areas: South
p.e211.rica, in TheLaws o/Sozilh WestAfrica 1956,Vol.XXXV,
No. 119 of 1958,South West Africa Native Afairs Administratiot~
Proclamation, 1958. iii The Laws of South West Africa 1958,
Vol. XXXVII, pp. 133,141.
No. 133of 1961, Ameiidmenl of the Extra-Territorial and Northern
A'atiues Coirtrol Pvoclan~ation,193j. in The Laws of South
PVestAfrica 1961, Vol. XL, pp. 546-553.
No. 148 of 1962, Deportfilion of undesirable persans /rom Sorcth
Wesl Africa, in Government Gazette (S.A.), Vol. IV, NO. 283
(29June 1962),pp. 1-3.
(3)Governmett Notices.
No. 1977 of 1939, in The Laws of Sor~thWesl Africa 1939, Vol.
XVIII, p. 138.
No. 841 of 1946.in Tlie Unioit of South Africu GouernmentGazette.
Vol. CXI-IV. No. 31534(18Ap' 1946).p. 123.
NoNo. 6123 (3Oct. 1958).p. 22. Gazette (S.A.), Vol. CXCIV,
No. 1828 of 1958, in Govntlmerzt Gazette (S.i\.), Vol. CXCIV,
No. 6148 (5Dec. 1958),p. 26.
Xo. 1916 of 1959. in The Laws of Soicth Ives1 -4frica Igjg, Vol.
XxXVIII, pp. 234-237.
Xo. 458 of 1960,in Gounnmenl Gazette(S.A.), Vol. CC, No. 6395
(1 Al". 196o),p. 48.
No.66of 1961,iiiGovc~nmenlGarette(S.A.),Vol.1,No. 13(16June
1961)~p. 19.
G. Transvaal Province
T.P. 1-1922, Report of the Local Goverlinleut Coinmissiori.(~gzr).
PP. 48-49. 52. 96.
H. Ethnological Publications of the Department ofBantu Administration
and Development
(1) Kohler, O.,A Sludy ofi:obabis District (South WestAfrica), No. 42
(Pretoria, Government Printer, 1959).p. 70.
12)Kohler, O., A Study of Grootfo~zteinDidrzct (South li'est Africa),
Ko. 45 (Pretoria, Government Printer, 195g),pp. rg-20.
(3)van \VarmeIo. N. J., Notes on tlie Kaokoueld (Soirth West Africa)
and ils People, No. 26 (Pretoria. Government Printer, 1951).
pp. 9-12.
1.Other
(1)Pz~blished.
(i) U.G. 39-1919. Trcaly of Peace betweenthe Allied and Associ-
aled Powers andGermany, Arts. 120, 257, pp. 41, 77.
(ii) de Villiers, FJ.. Bantrl Education: IYhere the 3foney cames
frai-and wliere il Kaes [An addrejs on the Financing of
Rantu Education delivered at the Annual Council Meeting
of the S.A. Institute of Race Relations nt Cape Town on the
18th January, 19611 (Pretoria, Information Service of the COUNTER-hlEMORIALOSOUTHAFRICA 165
40-4179-808,5-86,9,xog,111-1113,5-1116,8-1210,3,
132-133,138- 144gParII ,olouredEducatio~38,42,81.
B. Legislation
(1Ordinances.
No.13of1935 Licences (Coitsolidntion) O1935a,nThe
Laws$1South West Afr1935,ol.XIV,pp.692-741.
No.13of1944 .erritorial Development and Reserve Ftcnd Ordi-
nance1944n TheI-awsofSouth West A1944V,ol.XIII,
pp.806-811.
No.6 of 1951,and Settlement Amendment OrdiIg51,in
No.34of1952.fFaclr~ries,Machinery and Building IYork Ordi-
nance,gj2in The Laws ofSozcthWest1952V,ol.XXI,
PP 404-464.
No.35of1952 ,age (2ndIndustrial ConciliationO1952.nce,
in The Laws ofSoz~thWest1952V,ol.XXI, pp464-575.
NO.48 of1952,ocieties of Employers of ContractedNatives Ordi-
nance1952n The 1.awsofSozithWest 1952V,ol.XXI,
PP 794-805.
No.21 of1953.Finance OrdinanIg53,n The LawsoSoutla
No.IItof1954,eneralLaws Amendment Ordin1954,n The
Lozesf South West Af1954V,olXXXIII, pp.654-667.
No.25 of1954.Natives (Urba~, Areas) Proclnma1951,
Fzcrther Amendmeni Ordin1954,in The Laws of South
West Afri1954V,olXXXIII p.736-753.
No.26 of1954 ,ine.!, Worksand Minerals Ord1954cn
The Laws of South West A1954.Vol.XXXIII, ParII,
PP.753-853.
NoAmendment Ordinance,5rn The Laws of South Wcst Africaontrol
1955,ol.XXXIV, pp.526-529.
No.4 of1955 ontli West Afrzca Native Affairs Adminislrntion
Ordinanc1955 n 'TheLamisof South West A1955,ol.
XXXIV, pp.528-539.
No.4 of1956 .ative Reserves Ordi1956en The Laws of
South West Afr1956V,olXXXV, pp.402.405.
No.26 of1958,ative ReservesOrdina1958,n The Laws of
No.19of1960tE,dz~cationFnrther Amendment Ord1960,e,
in The Laws of South West 1960,ol.XXXIX, pp.670-
687.
Xo.24of1960, Native Administration Amendment Ordinance,
1960in The Laws of South West A1960.Vol.XXXIX,
PP. 692-695.
No.33 of1961,Natirse Housing Levy Ordi1961,in The
Laws 0South WestAfri1961,ol.L, ParII ,p1308-1317.
No.27 of 1962Education Ordinan1962,in Oficinl Gazette
Extraordinary of Sotrth West No.2413(4 July1962),
No.137of1963.M~~nicipalOrdinar1963,in Oficial Gazette166 SOUTH WEST AFRICA
Extraordinary of South West Africa, No. 2489 (29 June, 1963),
PP. 837-!256.
No. 14 of 1963, Village Management BoardsOrdinance, 1963, in
Oficial GazetteExtraordinary of South West Africa, No. 2490
(29June 1963)~pp. 957-985.
(2)ProclamatL,ns.
Proclamnti<,nof 28th October,1915,by Major-GeneralThe Honour-
ableJan ChristianSmuts, 1C.C..His Britannic Majesty's Minister
of Defeni:efor the Union, entitled Appointmeut of Administrator,
in The Laws of Sorith West Africa 1915-1922,pp. 30-31.
No. 13 of :r92o,Crown Land Disposal Proclamation. 1920, in The
Laws of Solith West Africa 1915-1922,pp. 216-219.
No. 14 of :192o,Land Settlement Proclamation, 1920, in The Laws
of South WestAfrica 1915.1922, pp. 219-223.
No. 25 of 1920, Vagrancy Proclamation, 1920, in The Laws of
South I.VestAfrica rgrg-~gzz, pp. 280-286.
No. 34 of 1920,Master and Seruants Proclamation, 1920, in The
Laws of South West Africa 1915-1922.pp. 336-366.
Xo. 40 of :rg20,Definifion of Magisterial Districts, in The Laws of
South West Africa 1915.1922, pp. 384-415
No. 50 of 1920,UndesirablesRemoval Proclamation, 1920, in The
Laws O/Sotith FVestAlrica 1915-rgzz, pp. 424-~zG.
No. 53of 1920,Land Settlement ProclamationsFurtf~r Amendmerit
Proclamation. 1920,inTlmLaws ofSouth lYest Africa 1915-1922,
PP. 428-429.
No. I of 1921,Aduisory Council I'roclamation,1921, in The Laws
of Soutli West Africa 1915-1922, p 493-495.
Xo. 51 of 1921,Advisory CozincilA>méndmenP troclamation, 1921,
in The 1.aws of SorithlVestAfrica 1915-1922.p. 626.
No. 55 of 1921, Education Proclamation, 1921, in The Laws of
Sotith West Africa ~grj-1922. pp. 632-683.
No. Ir of ~czz.NaticjeAdministration Proclamation. 1,22. in Th6
Laws of ~o~it'hWest Africa 1915-1922,pp. 749-754.
No. 30 of rgzz, Walvis Bay Adntiriistration Proclamatiort,1922,in
The Laws of SorrthWest Africa 1915-1922,pp. 860.862.
No. 33 of 1922. Curfew Regulations Proclamation, 1922, in The
Laws of South West Africa 1915-1922,pp. 863-865.
No. z of 1923, Burgher Force Proclamation, 1923. in Oficial
GazetteofSouthWestAfrica, No. IOI (15Jan.rgz3).pp. 1119-1123.
No. rg of 1923, Master and Servants Proclamation Amendment
Proclamation, 1923, in The Laws of South West Africa 1923.
PP. 40-41.
No. 28 of 1923,RehobothCommt~nity:Confirmation of Agreement,
in Laws of South West Africa, Vol. II (1g23-1g27),pp. 144-153;
and in 'TheLaws of South West Africa 1923, pp. 52-62.
No. 37 of 1923,Burgher ForceAmendment Proclantalion, 1923,in
Oficial Gazette of Soz~tA1,VestAfrica, Xo. 122 (1 Dec. 1923)~
pp. 1441-1442.
No. g of 1924, Natiue Resnues Trust Funds Administration
Proclannation,I924, in The Laws of South West Africa 1924,
pp. 40-$2; and in Laws of Sotith West Africa, Vol. II (1923-
1927).1>P1 . 79-181. COUNTER-MEMORIALOF SOUTH AERICA 167
No.31of1924 .ehobothAffairs Proclam1924n,n The Laws
of Sorrthst AfricVol.II(1923-19 2p.).87-191.
No.34of1924, Natives (Urban Areas) Proclama1924,in
No.35of1924of ,ur6:herForce Amendment Proclama1924,
in ï'lw Laws of Soi~lkWest1924i,.191.
No. II of1925 ndemnity Proclamati1925,in The Laws of
Sotrth West Af1925 ,p.45-47.
No.16of1926, Edzrcation Proclama1926,in Tiie Laws of
South West AfriVolII(1923-19 27.226-326.
Xo. IIof1927 ,ative Administration Anzendment Proclamation,
1927 n The Laws of SozrthWest A1927,p.110-112.
No.19of1927 ,urgher ForceProclamat1927,n The Laws of
South West Africa7 ,p.136.176.
No1927fn Tlw Laws ofSorrthWest Af1927,p.244-246.clamation,
No. 9of1928 ,ehobothGebietAffairs Proclam1928,n The
Laws of South West Af1928,p.38-53.
No.15of1928, Native:Administration Procla1928in The
Laws of South West Africa,p.58-85,
No.19of1928, CtrrfezvRegulations Proclamatiorc Amendment
Proclamation,28,in The Laws of Sozrth.West A1928,
pp.88-91.
No. 26of1928P,rohihited Areas Procla1928on The Laws
of SorrthWest Af1928 ,p.104.117.
Noin The Laws of Sozrthl'est1929pp.256-258.Pro,929.atiotz
No.27of1929 . uanrbolandAffairs Proclam1929nn The
Laws of South West Af1929.p.258-263.
No.27of1930 ,aprivi Zipfel Affai7s Procl1930,n The
Laws of Sotrtht Afri1930 .p.144-147.
No. 4of1932 ,atives (Urban Areas) Ame~zdmentProclamalion,
1932 n The Laws of SozrthWest 1932c,p.54-73.
No.17of 1933 ,ative:Administration Amendme~ztProclamation,
19,?inThe LawsO/SozrthWestAfri1933p..128.
No.24of1935 .atiuc:Administration Amendment Proclnmntion,
No.29of1935, LExtra-terrilorid and Northern ~VatiuesControl
Proclamatio1935,in The Laws of Sozrth West AI93j.
Vol.>;IV,p.148-159.
No.30 of 1935,riminal Procedure and Euidence Proclamation,
1935in The Laws ofSouth West 1935V,ol.IV, pp.158-
425.
No.36of1936 ,ehobofhCebiet(Eztension of Laws) Proclamation.
1936in The Laws 01SoicthWest A1936V,olSV, pp.102-
104.
Xo.32of1937 ,kavangoNatiue Territory Affairs Proclamation,
1937in Tlw Laws ofSoidh WestA1937V,ol.VI, pp.306-
No.122of1938 , aster and Servants Amendment Proclamation,
1938in The Laws of SozrthWest1938V,olX.VII,p.140.
No.7of1939 n TlreLnws of South West 1939V,ol. VIII,
PP.150.153.168 SOUTH WEST AFRICA
No. 17 of 1939,Diamond Indzistry ProtectionProclamatiotz,I939,
in The Laws ofSozithWest Africa 1939,Vol.XVllI, pp. 168-199.
No. 23 of 1:939,Natives Trust 1:zrndsProclamatiotr,1939. in The
Laws of Solith lVest Africa 1939, Vol. XVIII, pp. 222-233.
No. 37 of 1940, Extra-territorial and NorMaernNatives Control
Amendtnsnt Proclamatio~z,1940, in The Laws of Sozdh West
Africa 15140,Vol. XIX, pp. 286-293.
So. 38 of 1949, Extra-territorial and Northern Natives Control
Amendmant l'roclamation, 1949. in The Laws of South West
Africn 15149,Vol. XXVIII, p. 760.
No. 59 of 1949, Extra-territorial and Piortheru Natives Control
I'zirtherAmendment Proclamation, 1949, in The Laws of South
West Aftica 1949, Vol.XXVIII, p. 782.
No. 33 of 1951, Extra-territorial aizd Novthern Natives Control
Amendmetil Proclamatio?z,1951. in The Laws of Soutls West
Africn q)jI, Vol. XXX, p. 64.
No. 56 of 1951, Natives (Urban Areas) Proclamation, 1951, in
The Laws of Sorrtk West Africa 1951. Vol. XXX, pp. 90-171.
No. 43 of 1958,Redefinition of Magisterial DistrictsProclaniation
Amendment Proclamation, 1958, in The Laws of South West
Africa 1958, Vol. XXXVII, pp. 203-zr3.
(3)GovernmeniiNotices.
No. 16 of 1916,in Oficial Gazetteof the Protectorat8of Sozith West
Africa in Afilitary Occzrpationof the Union Forces, No. 7
(15Mar. 1916),p. 3.
No. 122 of 1923,in The Laws ofSoutli West Africa 1923,pp 84-88.
No. 27 of 1924, in O&cialGazetteof Sor~thWest Africa, No. 131
(IApr. :1924),p. 1584.
Xo. 44 of 1924, in Oficial Gazetteof Sozrth West Africa, No. 131
(1APT.S924).p. 1591.
No. 68 of 1:924,in The Laws of Sotith l.VestAfrica 1924.pp. 57-63.
$0. 108of 1925.in The Laws of Soiitli IV& Africa 1925, p. 92.
No. 109of 1925,in The Laws ofSouth IVestAfrica 1925.pp. 92-93.
No. 21 of 1926,in Oficial Gazetteof South West Africa, No. 185
(1Feb. 1926).pp. 2413-2414.
No. 8 of 1!)28,in The Laws of South West Africa 1928.p. 674.
No. 90 of rgzg,in The Laws of South West Africa 1929, p. 438.
No. 119of 1929,in The Laws of South TVestAfrica 1929,p. 440.
No.60of 1930,inThe Laws of SorrthWest Africa I930, pp 418.425.
No. 162 of1930, in The Lam of South Ilrest Africn 1930,p. 442.
No. 237 of 1930,in The Laws of South West Africa 1930, p. 458.
No. 238 oi'1930, in The Laws of South West Africa 1930, p. 458.
No. 2390f~930,inTheLawsof South WestAfrica I930, pp. 458-467.
No. 19 or 1931, in Deutsche Uebersetzung des rlmtsblattes fiir
Siidzueshzfrika,NI. 402 (2.Febmar 1931),p. 3873.
So. 170 cii1933.in Oficial Gazelleof Soicth West Africa, No. 536
(1No". 1933). p.8677.
No. 154of 1934,in The Laws ofSouth West Africa 1934,Vol.XIII,
p. 252.
NO.61 of 1935,in Tha Laws of SorzthWest Africa 1935,Vol XIV,
P. 958 COUNTER-MEMORIAL OF SOUTH AFRICA
169
No. 87 of 1935,in The Laws ofSouth West Africa 1935, Vol. XIV.
P. 1012.
No. 163 of1935,in ThaLaws of SozithWest Africa 1935, Vol.XIV,
-. 10-0.
Xo. 173of 1935,in The Laws of South WestAfrica 1935, Vol.XIV,
-. 10-..
No. 127of 1936,in The Laws of South West Africa 1936, Vol. XV,
D. 288.
N\io.156of 1936,in The Laws of South West Africa 1936, Vol. XV,
v. 206.
Xo. I& of 1937,in Th6Laws of South West Africa 1937,Vol. XVI,
.. --8.
No. 46 of 1938,in The Laws of South West Africa 1938,Vol.XVII.
D. 260.
No. 62of 1938.in The Laws of SozrthWest Africa 1938, Vol.XVII.
D. 262.
No. 130of1938,in TheLaws ofSouth WestAfrica 1938, Vol.XVII.
P. 344.
NO.198of 1938.in The Laws ofSouth WestAfrica 1938,Vol.XVII,
..",02.
No. gz of 1939,in The Laws ofSouth WestAfrica 1939,Vol.XVIII,
Y'JI"',
Xo. 112 of 1940.in TheLaws o/Soztth West Africa 1940,Vol.XIX,
p. 488.
No. 29 of 1941,in The Laws O/Sozith West Africa 1941, Vol. XX,
PP. 374-376
No. 42 of 1941,in The Laws of Soz~thWest Africa rgg, Vol. XX,
..-,8.
No. 211 of 1942,in The Laws of SotcthWest Africa 1942,Vol.XXI,
P. 560.
NO. 374 of 1947, in The Laws of Sou111West Africa 1947, Vol.
XSVI, pp. 286-291.
NO. 156 of 1g48. in The Laws of Sozrlli West Africa 1948, Vol.
S>;vII, p. 240.
NO. 179 of 1948, in The Laws of Soiitli West Africa 1948, Vol.
XXVII, p. 242.
NO.323 of 1948. in The Laws of Soz~thWest Africa 1948, Vol.
XXVII, pp. 254-266.
h'o. 25 of 1949. in 0fii:inl Gazetteof SorrtliWest Africa. Xo. 1406
(rFeb. 1949).pp. zoo8-2013.
NO.215 of 1950, in The Lam of South West Africa 1950, Vol.
XXIX, p. 650.
NO. 122 of I 51, in The Laws of South West Africa 1951, Vol.
XXX. ,r..288~
NO. 485 of 1951, in The Laws of South West Africa 1951. Vol.
XXX, p. 394.
NO. 121 of 1952, in The Laws of Sozcth West Africa 1952, Vol.
XXXI, pp. 834-837.
NO. 193 of 1952, in The Laws of Sorrth West Africa 1952, Vol.
XXXI, pp. 850-852.
NO.325 of 1952,in Oficial Gazetteof South West Africa, No. 1726
(1 Nov. 1952).PP.3558-3573.170 SOUTH WEST AFRICA
NoXXXII, p. 537., in The Laws of South West Africa 1953, Vol.
NoXXXII, p. 19599.in The Laws of South West Africa 1953. Vol.
No. 335 of 1953, in The Laws of Sotrtk lVest Africa 1953, Vol.
XXXII, pp. 619.621.
No. 262 of 1954, in The Laws of South West Africa 1954. Vol.
XXXIII, p. 1247.
No. 65 of 1955, in The Laws of Soirth West Africa Igj5, Vol.
XxXIV, pp. 750-739.
Xo. 81 of ~gjg. in The Laws of South West Africa 1955. Vol.
XXXIV. pp. 796-798.
No. 33 of 1956, in The Laws of Soi~th West Africa 1956, Vol.
No. 243 ot 1960, in Oficial GazetteExtraordinary of South West
Africa, ::o. 2287 (14 Dec. 1960).pp. 1178-1227.
No. S of xi161.in The Laws of South West Africa 106,. Vol. XL.
PP. 13321377.
No. 16 of 1962, in Oficial GazetteExtraordinary of South Wesl
Africa, No, 2369 (IFeb. 1962),pp. 54.103.
No. 116 oi 1962, in Oficial GazetteExtraordirtary of SozrthWest
Africa, No. 2413 (4 July 1q62),pp 878-919.
C. Population Censuses
(r) Refiort on 7%eCenszts of the Populaiion taken on ilte 3rd May,
1921, and The Census of Agricz~lture,30th April 1921 (Pretoria.
Government Printing and Stationery Office, 1923),p. vi.
(2)Sorith Ives! Africa PopzrlationCenszis,811May, 19gr, p. S.
D. Other
(1)Ptcblished.
(il The Native Tribes of South Africa (Cape Town, Cape
57-59, 61-72, 74-77, 82-84. 94. 98-104, 109-118, 142-145,.
153-16r, 164-1 O,193-197.
(ii) Protectorateof.?otrtlt-WestAfrica, Natiüe Afairs; Memorandum
concernirzg(a) the Laws afecting the vati ivpopulation in the
Protectorateof Soutl~lVest Africa; (b) the practice followeù by
thepresentAdministration in carrying out theprovisior&s of these
Laws; and (c) the Native policy generally of the Protectorate
Admiffislratioic(Pretoria, Govemment Printingand Stationery
Office,1g16),pp. 6-7,
(iii) White Pafier on the Activities of the Different Brartchesof the
Administration ofSouth ives1Africa for the Book Year 1961-62,
P.13.
(2)Unpnblisbed.
(i) Hahn, C. H. L., Native Policy in South West Africa: Systcm
of I+~directRule in Ouamboland and the Kaokoveld (memo-
randuin dated 27 Sep. 1945).p. 9.
\ ,) Lord Hailev. A Survev of Native Affairs in South West Africa
(1946)~PP.';, 3-5, ~3.~25,28-29, 31: 33-35, 45, 48,.50-54.'119.
(iii) Wagner, G.. Ethnzc Survey of Sozrth West Afrzca, Part 1.
Distrii:tof IVindlwek, p. 104. COUNTER-MEMOR IF SOUTH AERICA I7I
XXXI. United Kingdom
A. Legislation
(1)Statzcles.
5 Geo. 4. C. 83, The Vagrancy Act. 1824, as amended, secs. 3, 4
and 6, in The CornfileteStatzdes of England, classified and
annotaledin continuationof Halsbzdry'sLawsofEngland (London.
Butterworth & Co. Ltd.), Vol. XII (1930). pp. 913-916, grS.
9 Edw. 7. C. g, The South Africa Act, rgog, sec. 147. in Statrctes
of the Union of South Africa rgro aiid 1911, p. 76.
25 & 26 Geo. 5, C. io, Vagrancy Act, 1935, sec. I (3). in The
Statrctes,Third RevisedEdition (London, His Majesty's Station.
ery Office),Vol. XXIl (1950).pp. 33-34.
II 61 12 Geo. 6, C. 29, National Assistance Act, 1948, sec. 62 (3)
and Seventh Schedule (Enactments Repealed), in The Picblic
GeneralActs and CheChicrchAssembly Aleusuresof1948 (London,
Sir Norinan Gibb Scorgie, Controller of His nlajesty's Stationes.
Office,etc.), Vol. 1, pp. 282. 304.
II & 12 Ceo. 6, C. 58. Criminal Justice Acl, 1948. sec. I (z), in
The Statules,Third ReuisedEditioit, Vol. SXXII (~gjo), p. 272.
(2) Ordersin Conncil.
Basutoland :
Orderis Coz~itcilassenting 10the Act of the Legislatureof the Cape
of Good Hope, for the Disannezation lherefrom of Basirloland,
and providing that Basutoland slmil conzeunder the Direct Au-
thority of Her Majrsly, and dso providing for ils future Ad-
miizistration, At the Courtal OsborizeHouse, Isle of Wight, the
2nd ilay of Febrnary, 1884, in The Statutory Rules C Orders
andStatzctoryInstruments KeuisedtoDecember31,1948 (London,
His Alajesty's Stationcry Office. 1950). Vol. III, pp. 79-80.
Bechuanaland :
The Beclrz~analandPrritectorate(Co?rstitictioi.JOrdn in Couircil,
1960, Statzclory Insir~rmetils 1960, No. 2416 (London, Hcr
Majesty's Stationery Office, 1961). pp. 4, 9-10. 21-24.
Cameroons:
British Order in Council prouiding for the Administration of th8
Mandated Territoryof the British Cameroons.-London, June 26.
1923, in British and ForeignStaie Papers 1923, Part 1 (London,
His Majesty's Stationery Office,1926), Vol. CSVII, pp. 60-63.
Federation of Rbodesiti and Nyasaland:
The Federdion of Rhodesia and Nyasaland (Constitution) Order
in Cozcncil,Ig53, StatrctoryInstruments 19.53,No. 1199 (London,
Her Majesty's Stationery Office,1953).
Garnbia:
The Gambia (Consiitution) Order in Cozrncil, 1960, Statidory
Instrrinicnls 1960, No. 701 (London, Her Alnjesty's Stationery
Office, 1960)..p~ 1-4, 8-9.
Gold ~oast:
Order in Council prouicEiizgfor the Establishmentof the Legislative
Council of the Gold Coast Co1orry.-London, April 8, 1925, in172 SOUTH WEST AFRICA
British rind Foreign State Papen 1925, Part 1 (London, His
Alajesty'sStationery Office, 1929). Vol. CXXI, pp. 208-230.
Kenya:
British Orderin Council providingfor theAnnexalion ofTerritories
fornting :bar1of the East Africa Protectorateand their Adminis-
tration as the Colony of Kenya.-London, June II. 1920, in
British and ForeignState Papers 1920 (London, His Majesty's
Stationery Office,rgz3). Vol. CXIII, pp. 74-76.
The Kenya (Constitiition) (Amendment No. 2) Order in Council,
1960, Siatzitory Instrzrments 1960, No. 2201 (London, Her
Majesty's Stationery Office, 1g60), pp. 1-25.
The Kaya Order in Council, 1963, Kenya Gazette Supplement
No. 30 (Extraordinary Issue) [18 Apr. 19631(Statutory Instru
ments 1963, NO.791). pp. 22-24, 59-60,222-230.
Nigeria :
British Orderin Council providingfor the creation andconstitution
of the Legislative Council of Nigeria.-London, Novefnber 21,
1922. iri British and Foreign State Papers ~gzz (London,
His Maji3ty's Stationery Office,1925).Vol. CXVI, pp. 249-259.
Order in Cotincil providing for the adnzi)~isfratioitof tluNigeria
Proteclovaleand Cameroonszinder British Mandate.-London,
Afigust 2, 1946, in British and Foreign State Papers 1946
(London, Her Majesty's Stationery Office, 1953). Vol. 146,
PP. 238-303,at p. 301.
The Nigeria (Constitution) Order in Cozincil, 1960, Statutory
Instrnmsnts 1960, No. 1652(London, Her Majesty's Stationery
Office,1963[Reprint]), Schedule 2,sec. 36. p. 30, Scliedules3-5.
PP. 83-179.
Northern Rhodesia:
British Order in Council for regnlaling the ArZ$ninistration O/
Northern Rhodesia.-London, May 4, 1911, in British and
Foreign State Papers 1913 (London. His Majesty's St t' a ion-
ery 0ffir:e.1g16),Vol. CVI, pp. 463-476.
British Order in Cou?icilmaking furtlur provision for the Cotisti-
tzitionof the LegislativeCozrncilfor Nortlurn Rhodesia.-London,
February 20, I924. in British and Foreign State Papers I924,
Part 1 (London, His Majesty's Stationery Office, 1927). Vol.
CXIX, pp. 36-41.
British Ovder in Council making further and other Provision for
the Peace, Orderand GoodGovernmentof Northern Khodesia.-
Londo~i,February 20. 1924, in British and ForeignState Papers
I924. P:irt 1 (1927).Vol. CXIX, pp. 41-53, at p. 45.
Order in Conncil amending "The Northern Rhodesia (Legislative
Counci!) Order in Coiincil, ~gzq".-London, Jnne 23, 1938, in
British and ForeignState Papers 1938 (London, His Majesty's
Station1:ry Office,1g51),Vol. 142,pp. 39-43.at p. 40.
The Nortkrn Rhodesia (ElectoralProvisions) Order in Council.
1962, !;tatritory Instruments 1962, So. 626 (London, Her
Majesty's Stationery Office,1962),pp. 1-10.
Nyasalan<l:
British Order in Cozcncil Providing for the Government of the COUNTER-MEMORIAL OF SOUTH AFRICA '73
i\'yasaland (British CentralAfrica) Proteclorate.-London, Jzrly
6. 1007. in British aizd Foreie~zStale Pabers 1006,7 (, \doii.
Hishijesty's Stationery office. I~II), VOI C.,pp. 94-99.
The Nyasalattd [Corrstitution)Orderin Council. Statulory Zttstru-
men&1961, No. 1x89 ondo do Hncr hlajesty's Stationery Office,
1961). - - 7. 10, 24.
Sierra Leone:
Britislt Order in Corrricilprouidirrg for the establishment of tl~e
Legislalive Couticilof Sierra Leone.-Londott, Jarrrrnry16, 1924.
in British and ForeigptState Papers 1924, Part 1 (London,
:itnMafisty's Stationery Officc, 1927). Vol. CXlX, pp. 4-19,
-. Y: "'
The Szerra Leone lJroleclornteOrrier irrCotrricil, 1924, in Tlu
Statzrlory Rzrles& Orders and Statzitory Inslrzrnienls Reuised 10
Deceniber31, 1948 (Londoii, His hlajesty's Statioiiery Office,
Igjo), Vol. VIII, pl>.384-389.
The Sierra Leone (L<:gisllaliue Coirricil) Order iit Couricil, 19j1,
Statzitory Znstrzrme~its,1951, No. 611 (London, His hlajesty's
Stationery Officc,IOSI), pp. 1-16.
Somaliland:
British Order irrCorrucil,/or reg~rlatiitgHer i\Injcsty'sjtcrisdicliorr
iiithe Somnlilarid l3rotactorate.-Balinoral, October7, 1899, in
British and Foreign Slate Pafiers 189s-1899 (London, Her
M:ijesty's Stationery Office,~goz), Vol. XCI, !>p.1114-1129.
Orderin Courrcilprouiiiingfor theA<Crtinislrntion of theSomalilarril
1'rotectornte.-Lor~do?~ D,eccmber17. 19-9 (as rtrndnded,Marcli
28, 1930). in Britisli and ForeigirState I'apers 1930. Part 1
(London,His h1ajcsl:y'sStationery Office,1935).1'01.CXXSII.
PP. 22-39,
TheSomaliland Orderin Co~riicil1 . 960.StatrrtoryIrrstr~~~nelr1ts60,
No. 1060 (London, Her Majcsty's Statioiiery Office, 1960),
PP. 3-4. 6.
Southern Rhodcsia:
ThStatrifory Instriimerrts 1961, No. 2314 (London, Her hlajesty's961.
Stationery Office, 1961),pp. 25, 29-51. 61-63.
Swaziland:
British Orderin Council, establishingJzrrisrliclio~itn Swaziland.-
Lonilon, June 25, 1903, in British and Foreign State Pnpers
1902-1903 (London, Her Majesty's Stationery Office, rgou),
Vol. XCVI, pp. IIZ(~-IIZ~.
British Order is Courlcil relatirtg to Jnrisdictiort iri Swaziland
(ControlbyHighCommissionerforSouth Africa) .-Saiuiringham.
DecemberI, 1906, in British and ForeignStnte Papers 1905-1906
(London, His hlajcsty's Stationery Office, 1910). Vol. XCIX.
pp. 863-864.
Tanganyika:
British Order in Cotrnzil providing /or British Administratio!i,of
the Tanganyika Territory.-London, July 22. 1920, in Br?lish
alid ForeignState Papers 1920 (London, His Majesty's Station-
ery Office,1gz3), Vol. CXIII, pl> 97-111.'74 SOUTH WEST AFRICA
Order in Council constitictinga LegislatiueCotcncilfor the Taitgan-
State Papers 1926, Part Ma1cl(Londoii, His îvlajesty'sStationery
Office, 1931).Vol. CXXIII, pp. 135-142.
Order in Council ainending "The Tnngairyiku (Legislatiue Coun-
cil) Ainendment Ord-r in Coiencil, 1gz6".-London, Oclober
30, 1945. in Brilish and Foreign State Papers 1943-194j (Lon-
don. Hor Majesty's Stationery Office, 1953). Vol. 14j. pp.
6j1-6j3.
Yogoland :
British O.der in Council providing for the Admi7tislrution of the
Alatidatsd Teruitoryof the British Sphere of Togo1aizd.-Loftdoit,
OctoberIr, 1923, in British and I'oreign State Papers 1923,
Part 1 (London. His hlajesty's Stationery Office, 1926), Vol.
CSVII, pp. 116.1~1.
Ugaiida:
British Order in Cozcncil,establishi~igJurisdiclion in the Uganilu
1'rotectorate.-Loitdow, August rr, 1902, in British and Foreign
Stale Papers 1901-1902 (Zondoii, His Majesty's Stationery
Office, igoj), Vol. >;CI',pp. 636-646.
Order in Courtcil providing for tlw Gouerirment 01 the Ugandu
Stntc rJizpers1926, Part 1 (London) His hlajesty's Stationery
Office,:r931),Vol. CXXIII, pp. 105.111.
hlisccllant:ous:
Uritislr Order in Cornrcil.for determinirrgthe Aloile of exercisiicg
theI'oleeraiidJurisdictioizacquircdby Her Majesty rvithindivers
Cozrntriesoit the West Coast of Africa iteau or adjacent to Her
MajesLy's Gold Coast Co1otzy.-Osborne, Azigccst 6, 1874, in
British and Foreign State Papcrs 1874-1875 (London, \Villiam
Ridgway, ISSZ),Vol. LXVI, pp. gj7-q~S.
British Order in Council, providing for tlw exercjse of British
Jurisdictioit in certain Territories of Soieth Africa north of
British Bechuanaland.-Windsor, Jzcne 30, 1890, in British and
Foreign State Papers 7889-1890 (London, Her Majesty's Sta-
tionery Office).Vol. LXXXII, pp. 1061-1062.
British Order in Cozcncil,prouidiizg for the exercise of Britisli
Jicrisdistion iia certain Territories in Sotrth Africa, north of
Brilish Bechrea~ia1aiid.-Wiiidsor, May 9. 1891. in British and
Foreign State Pafiers 1890-1891 (I.ondon, Her hlajesty's Sta-
tioiiery Office,1897),Vol. LXXXIII, pp. 809-812.
British Oder in Council,providing 107theExerciseofHer Majesty's
Jtrrisdictionin Territoriesadjaceiitto theColonyof theGambia.-
lviitdsor, ATovember 23, 7893, in Britisli and Foreign State
Papers 1892.1893 (London. Her hlajesty's Stationery Office.
18g9), Vol.LxXXV, pp. 1251-1253.
British Order in Council, for the exercise of Jurisdictiou in the
British Central Africa Protectorate.-London, Azcgzcst II, 1902.
in British and Foreign Stnte Papcrs 1901-1902 (London, His
Majesty's Statioiiery Office, rgoj), Vol. XCV, pp. 646-656. COUNTER-MEMORIAL OF SOUTH AFRIC.4
175
(3)LettersPatent.
British Letters Patent, for the Anne.ratioirto theColorryof theCape
of Good Hope of th,:Port or Settlenrentof LValfischBay, on the
West Coastof SoirthAfrica, atrdof cerlairtTerritory surrourrding
the same.-1Yestminster, Decernber 14, 1878, in British attd
Foreign State Papi:rs 1878.1879 (London, \Villiain Ridgway,
1886),Vol. LXX, pp. 495-4915.
British Letters Patent, constttzbting the Ofice of Governor und
Commander-ira-chie)of the Colony of the Gambia. and prouiding
for the goveritmentthereof.-Westminster, ~Vovember 28, 1888. in
British and Foreign State Papers 1888-1889 (London, Her
Majesty's Stationery Office),Vol. LXSXI, pp. 140.145.
Gambia Colony and Protbctorate: Letters Patetzt constituting the
Ofice of Goveritorand Conrmartder-iir-Chie/of LIUColotryand
providiizg for the G'overnmeiztt1tereof.-IVestmiiisIcrFcbruary
1915,in TheConstitçitionsofal1Cozitttries(London, His M:~jesty's
Stationery Oflice, 1938).Vol. 1, The British Empire, pp. 453-
4..
Brittsh Letlers Patertt pnssed urider tlte GrcatSeal of the United
I<ingdontconstitirtingthe Ofice of GovernorafrdCommander-in-
Chie/ of the GoldCoastColoiiy,aiid providing /or the Goveritmerit
1ltereof.-IYestntiirst.aptenrberao,1916,in British and 1;oreigtt
State Papers 1916 (London, His hlajesty's Stationery Office,
I~ZO),Vol. CX, pp. 276.281.
ThSeptembern I.o1923, jIrouiding for the Cuirslitutiorrof Kes$artsible
Goueritnientitthe Colonyof Soittkern Rhodesia,in The Statntory
Rules Q Orders andStatutory ItzstritmenlsHevisedtoDecember 31.
rg@ (London, His Majesty's Statioiiery Office,1952).Vol.XS1,
Letters Patent, dated Janziary 28, 1924. passed tiirder thc Great
Seal of tlte United Kingdom co?tstitutiirgtheOficO/GOUEYRa nYd
Commander-in-Chiefof the Colony o!Sierra Leone andproviding
for the Gouernmettttltereof,in The Statutory RzdesG Ordersand
Stattrtory I+zstrzrmentsRevised to December31, 1948 (London,
His Majesty's Stationery Office,1952).Vol. XXI, pp. 1-6.
(4)Charters.
British Charter, revoking so much of the Royal Commission, dated
the 19th of Fehrnar,y, 1866, as provides for the goverrtmentof
Her Majesty's Settlemenfs on the GoldCoast atzd of Lagos: atzd
cunstitnting those Seitlements i?ztoa separateColoizyto he called
theGoldCoastColony; and @rouiditcg /or thegouernme~r1tlzereof.-
FVestminster.July 24.1874,in British and Foreign State Papers
1874-1875 (Idondon. \Villiam Ridgway. 1882). Vol. LXVI,
PP.942-947.
British Charter, revokirrgso mrrchof tlx Royal Commission, dated
tlte19th day of Febrztury,1866,as providesfor the goveriiirientof
Her Majesty's Settlements O/ Sierra Leone aizd on the Gatnbia;
and constituting those Settlements into me Government, to be
calledthe West Alrica Settlements; and fiyoviding for the gouern-
ment thereo/.-IYestlrzinster, December17, 1874,in British and
ForeignState Papers 1871.1875(1862).Vol. LXVI, pp. 946-953.176 SOUTH WEST AFRICA
(5)Royal Instructions.
GanrbiaColoiiyalrdProteclorate:Royal Iiistrzcctionsto the Governor
and Contmander-iri-Chie/.-St. James's, February27, 191j (as
ame~zdear'gzS), in The Constitutions of al1 Couiztries (London,
His hlajesty's Stationery Office, 1938), Vol. 1, The British
Empire, pp. 454.455.
GoldCoast: Royal Instrzrctionsto the Gouertioraitd Comma~ider-in-
Chie/.-St. James's,May 23.1925 (as ameuded1934and 1937).
in ï'lceCorlstitutionsof al1Corcntries(1938).Vol. 1,p. 466.
h'igeriaColonya~zdProlectornte:Royal I?csfructionsto the Governor
a?rdConimander-in-ChiefoftheColony.-St. James's, December9,
1922 (as amendedta r937), in The Constitzctionsof al1Countries
(193s). \'ol.1, PP. 523-524.
iVyasala~rdProtectorate: Royal Instrrrctions to the Governoraftd
Commiriider-in-Chie/.-St. James's, Azrgrcst9, 1907, in The Con-
stitzitionsof al1Cozrntries..938~.Vol. 1.pp. 537-538.
B. Parliainentnry Debates
Parliamentar:~Llebates (Hanssrrl), Housc of Commons, Fiftli Series
(London, Her hlajesty's Stationery Office).Vol.601, (1958-1959).
Cols.885-8.36.
C. Annual Reports oii Coloniesand Protectoriites
Rasutolaiid:
ArrnualReporto>iBasutolarrdfortheyear1957(London,Her hlajesty's
Stationery Office, xgjg), pp 26, 28.
13echuatialan~l:
Uec/zi<analaiuPlrotectorate: lieport for the year 1957 (London, Her
Majesty's Stationery Office,1958),pp. 34-35,48, 84.
UechrranalarriPl rotectorale:Report for the Year 1gj9 (Loiidoii, Her
Majesty's Stationery Office,1g60),pp. 34-35.
Gambia:
Anlzual Report on the Social and EcononzicI'rogressof tlu I'eople of
the Gambia, 1938, Colonial lieports-Annual, No. 1893 (London,
His hlajesty's Stationery Office,1939).pp. 10-11.
ColonialOfic':A~rnualReportonTheGambiafortheyear1947 (London,
His Majesty's Stationery Office,1949).pp. 46-47.
Gambia: lieport for the years 1958and 1959(London, Her Majesty's
Stationery Office, 1961).pp. 84-85.
Kenya:
Awiriial It'trporton the Social arrdEco~zomicProgress of the People
of the Iietrya Coloily and l'rotectorate.19.71, Colonial Keports-
Annual, Xo. 1606(London.His Alajesty'sStationery Office,1933),
P. 5.
Antrual Report on the Social and EconomicI->rogreso sf the People
of the Iieriya Colony and I'uotectorate,1938, Colonial Reports-
.4nnual, Xo. 1920 (London.His Majesty's Stationery Office,1g39),
p. IO.
ColonialOfice Report on the Cololryand Prolectorateof Kenya for the
year 19j2 (London, Her Majesty's Stationery Office,1953)~p. 139.
ColonialOfice Report on the Colonyand I'rotectorateof Kenya for the
Year 1959 (London, Her Majesty's Statioiiery Office,1g6o),p. 34. COUNTER-MEMOR IFLSOUTH APRICA I77
ColonialOÆce Report on the Colonyand IJrotectorateof I<eitya/or the
year 1960(London, Her Majesty's Stationery Office,1963).pp. 115-
116.
Nyasaland :
Aiiiiual Report oit th Social aiid Ecoiioinic Progressof tlu People
of Nyasaland, 1937, Colonial Reports-Aiinual, No. 1885 (London,
His Majesty's Stationery Office, 1939).pp. 5-15.
~Vyasnland:Report for the year 1960 (London, Her Majesty's Sta-
tionery Office,1961). p. IOO.
Somaliland:
Anitt6al Report oir tlie Social aiid Ecoiioinic i'rogress of the People of
Somaliland, 19.77,Cok~riialReports-Annual, No. 1880 (London,
His Majesty's Stationery Office,1939).p. 5.
Colonial Ofice Aiziiual Report or&the Sotiiulilanrl Prolectorate/or the
ycar 1948 (London, His Majesty's Stationery Office, 1949). p. 32.
Swaziland:
Anizzral Report on the Social and Economic Progressof the People of
Swaziland, 1937, Coloiiial Reports-Annual. No. 1884 (London,
His hfajesty's Stationery Office, 1939). pp. 5-6
AirnzralReport oii the Social and Econoniic Progressof the IJeopleof
Swazilar&d,1938, Coloiiial Reports-Annual, No. 1921 (Loiidon,
His hlajesty's Stationei:~ Office, 1939). pp3-5.
Swaziland: Report for ttie year 1958 (London, Her Majesty's Sta-
tionery Office,1959). pp. 16, 33, 68-69.
Uganda:
Ai~ii<ral eport on the Social and EconomicProgress of the People of
the UgaizdaProlectoriite,1931, Colonial Reports-Annual, No. 1601
(London,His Majesty'!;Stationery Office,1g3z), pp. 5-6.
D. Annual Reports on Mandated Territories Submitted to the Council
of tlie League of Nations
Camerooiis :
Keport by His Britannic Majesty's Government 01%the Admi?~istration
under Mandate of British Cameroonsfor the Year 1924, Coloiiial
No. 16 (London, His I'iajesty's Stationery Office, 1gz5), p. 5.
Report by His Majesty's Gouer~lmentin the Uiiited Iiiitgdom O/Great
Brilain and Northrn Ireland to the Councilof the Leagzre O/ Nations
on the Adntinistratioriirfthe British Cameroonsfor the Year 1928,
Colonial No. 42 (London, His Majesty's Stationery Office, 19zg).
PP. 4-5.
Tanganyika:
Report by His Britannic Majesty's Government on the Adminis-
tration %piderMandate of Tanganyika Terrifory for the year 1924,
Colonial No. II (London, His Majesty's Stationery Office, 1gz5),
Report by His Britaniiic Majesty's Governrneittto the Coiriicilof the
League of Nations on tlie Admir~istratioitof Tangai~yihaTenitory
forthe year 1926 (Loridoii, His Majesty's Stationery Office, 1927).
Report by His Majesty's Governmentin thc United Kingdom of Great
Brihi?t and Northrn Iveland totlreCouncil of th Leagueof Natioris17~ SOUTH WEST AFRICA
on tlaeAdeinislration of Tartganyika Territory for the year 1930,
Colonial No. 60 (London, His Majesty's Stationery Office,1931).
p. 8.
Togoland:
Refiort by Hiî Britannic Majesty's Governmenton the Adminisdration
under Mandate of British Togoland 107 the Year 1924, Colonial
Xo. 14 (London, His Majesty's Statioiiery Office,1925).p. 9.
Report by His Majesty's Governmentirzthe United Kiitgdom of Great
Britain alid ~VorthernIreland to theCozrncilof theLeugueof Nations
on the Administration of Togoland under British Mandate For the
Year 1928, Colonial No. 43 (London, His Majesty's Stationery
Office.19251)p.. 5.
E. Annual Reports on Trust Territories Submitted to the United Nations
Cameroons:
Report 6y Hi:: Majesly's Gouernmenlin the United liingdom of Greut
Britaifi anmlNortheni Ireland to the I'rzcsteeshipCoz~~ecio lf the
United Nations 01% the Administration of the Cameroons urtller
United Kixgdom Triuteeship for the Year 1947, Colonial No. 221
(London.Kis Majesty's Stationery Office,1948).pp. 14-15.
Report by Her Majesty's Govern~rteniln the United Kingdom of Gred
Britain anclA'ortheriiIrelarzdto theGe~ieralAssembly of the United
h'ations on the Administration of the Cameroons under United
Kingdom Trusteeship for theyear 1951. Colonial No. 288 (Londoii,
Her Majesty's Stationery Office, 1952).pp. 39-40.
Ke$ort by He? Majesty's Govern~ineiz itzthe United Kingdom of Great
Britairi airilhrortlteritIrela~tdto theGeneralAssembly of tlzeUnited
Aralions on the Cameroonszrnder United Ki~tgdontAdrniriistratiori
for the Year 1954. Coloiiial Xo. 318 (London, Her Majesty's Sta-
tionery Ofice, 1955).pp. 12-13,
Tanganyika:
Tanganyika ti~tderUriited Kingdom Administratiort: Report by Her
hfajesty's Government in the United Kingdom of Great Britain
and Xorthern Ireland to the General Assembly of the United
Nations forthe year 1958.ColonialXo.342 (London, Her hfajesty's
Stationery Office,1959),pp. 168-169,17r-172.
F. Command Pa.pers '("Blue Books")
Further Paprrs relativeto the State of the [<a@Sribes (London, Eyre
and Spottiswoode, 1855), p. 16, in Parliamentary Papers [Great
Britain],Kafir kVars,State of the Kafir ïribes ~851-1865.
C. 2144, FtirlherConespo~idencerespectingthe ABairs of Sotith Africa
(London, Eyre and Spottiswoode for Her Majesty's Stationery
Office,1878).p. 8.
C. 2754, Copy of a Despatch/rom the Right Hon. The Earl of Kim-
berley,containingtheinstructiorisaddressedtaGovernorSir H. Robin-
son,G.C.M.G., on his departzirefo assunie the Ofices of Governorof
tlzeCapeand High Commissionerin South Africa (London, Eyre and
Spottisnoode for Her Majesty's Stationery Office,1881),p. 8.
C. 4190, Cor,~esponde~zr cespecting the Settlementat Angra Pepuena,
' Papers presented to Parliament by commanof HislHer Majesty COUNTER-MEMOR IFLSOUTH AI.'RICA '79
on tfieSW. Coastof Africa (London, Eyreand Spottiswoode, 1884),
pp. 'O, 32.
C. 4262, Further Corresporidencerespecting the Settlement nt Artsra
Peqice~iaon the South-West Coast of Africa London, Eyre and
Spottiswoode, 1884),pp. 7.". 36.39-44,jo. 68. 73-74.
C. 4265, Copy of a Despatch /rom the Xight Honourable the Earl of
Derby, K.G., to Her Majesty's High Cornmissionerin SoccthAfrica,
relativeto the Establishmeiit of a German Protectorate a1 Atcgra
Pequena and along 1h.eneighbonring Coast (London, Eyre and
Spottiswoode, 18Sq),pp. 3-7. 12.
C. 9223. Trade alid Shipping of Africa (London, Darling & Son, Ltd.
for Her Majesty's Stationery Office,189z), p. 33.
Cd.904,Pafiersrelatingto LegislationAtfectirigNatives in theTransvaal
(London,Darling & Son for His Majesty's Stationery Office,1902).
pp. 20, 23-24.
Cmd. 4614, f'apers concsrnitrgAffairs in Liberia, Decernber1930-
May 1934 (London, His hlajesty's Stationery Office, 1934). p. 59.
Cmd. 5949, Rhodesia-Nyasalund Ro),al Cofnntission Report (London,
His hlajesty's Stationery Office,193g), pp. 12-13, 15, 19.
Cmd. 7167, The ColonialEmpire (1939.1947) [London, His Majesty's
Cmd. 7715, TI= Coloninl Territories (r948-1949) [London. His
hlajesty's Stationery Office.19491,p. 23.
Cmd. 7987, The British Territories ircEast and CentralAfrica 1945-
1950 (Loiidon, His Majesty's Stationery Office,1950). p. 9.
Cmd. 9475,East Africa RriyalCommission1953-19 jj.Refiort (London,
Her Majesty's Stationery Office, 1955). pp. 200, 209, 222.
Cmnd. 309, Kenya: Prol)osnls for New Constitutional Arrangements
(Loiidon. Her Majesty's Stntionery Office,1957),pp. 3-4.
Cmnd. 369, I<ertya:Despotchon the New Con~titcctiorca Alrrangements
(London, Her Majesty's Stationery Office,1958). pp. 3-4.
Cmnd. 960, Report of the Kenya ConstitrctionalConfmence Hdd in
London in Junuary and February, 1960 (London, Her Majesty's
Stationery Office,1g6oj, pp. 7-8.
Cmnd. 1044, Report of th,:Somaliland Constitutional Conferenceiield
in London in May, 1960 (London, Her Majesty's Stationery Office,
1960). PP. 3-4.
Cmnd. 1149, Aduisory Commission on the Reuiew of tlie Co»stitution
ofthe Federationof Rhodesia and Nyasaland, Report: AppercdixVI,
Suniey of Developmeittssince1953 (Report of Comncitteeof O@cials)
[London, Her Majesty's Stationery Office,19601,pp. 2. 5-9, 11-12,
33-35. 39-40, 43-45, 52-54.
Cmnd. 1523, Uganda: Refiort of the UgandaConstitzctionalConference,
1961 anil Text of the Agreed Drafl of a new Buganda Agreement
initialled in London on 9th October,1961 (London, Her Majesty's
Stationery Office,1g61), pp. 4-j, 14-19,
Cmnd. 1700, Report of Lhe Kenya ConstitrrtionalConfererice,1962
(London, Her Majesty's Stationery Office, 1962).p. 16.
Cmnd. 2082, Kenya: Prcparations for Independence (London, Her
Majesty's Stationery Otfice, 1963),p. I.
G. Reference Pamphlets on Colonial and Commonwealth Affairs
(1) Kenya, Pamphlet No. R. 4489 (London. Reference Division,
Central Officeof Information, Jan. 1g60),pp. 2-3, 17.180 SOUTH WEST AFRICA
(2) Uganda, Pamphlet No. R. 5316 (London, Keference Division.
Central Officeof Inforination, Jan. 1962).p. 4.
(3)The Gambi(z,Pamphlet No. K. 5519 (London, Reference Divisioii,
Central Ofnceof Information, Mar. 1963),p. 12.
(4)Cortstitutio:%al euelopmentinthe Commoilweallh:A Brie/ Snruey
of Keceizt Euolution, Part II: British Dependencies, Pamphlet
Xo. liF. P. 2010 (London, Kefereiice Division, Central Officeof
Informatic.n, Mar. 1951).p. 22.
(j) Political Advanceil5the United Kiitgdom Depeildencies,Pamphlet
No. RF, P. 4324 (London, Reference Division, Central Office of
Inforniation, Kevised Sep.1959).p. 16.
(6)h'igeria: the Makiitg of a ~\~atioit,Pamphlet No. lil'. P. 4473
(Loiidon, IceferenceDivision, Central Officeof Information, June,
1960). pp. 28-29.
(7)Sicm Leoire:lhe Makittg O/ a a\lalio>r, amphlet No. liF. P. 4851
(Loiidon, Keference Division, Ceiitral Office of Informatioii,
November, 1g60),pp. 26, 28.
(8) Uganda: The Mahiitg of a Nalion, Painphlet No. RF. P. 5441
(London, Reference Division, Central Office of Informatioi~,
July, 1962),PP. 31-33.
(9)Kenya, Pamphlet Xo. RF. P. 5611 (London, Refereiice Division,
Central Officeof Iiiformation, Septeniber, 1963).pp. 27, 30.
Other
(1)Peac~Huirdbooks,Isslied by the Historic;il Section of the Foreigii
Office (London, His nlajesty's Stationery Office. 1918-~grg),
Vol. SS, Spanish and Italiait Possessioizs: indepetzdenl States,
No. 132,Spanisli Gciiitea(Apr. 1919),p. 1.
(2) British Military Administration Sotnali<i:Annual Report by the
Chief Administrntor for the year ended 31 December1946 (Govern-
ineiit lJrer.s,B.M.A. Somalia, 1947).p. 42.
(3) Notes on ColonialConstitrrtionalChanges1940-1950,Me1110N . O.4
(Reference Section, Information Department, Colonial Office.
Apr. 1950),P. 13.
(4)Report oftheCommissiotr 018The Civil Services of I<eitya,Taitgni?-
yika, Uganda & Za~zzibar1947.48. Colonial No. 223 (London, His
Majesty's Stationery Office,1948),pp. 24-27,29-30,
(5)Commo+twealth Suruey: A Record of United Kingdom and Com-
monwealth Affairs (London, Keference Division. Central Office
of Inforniation), Vol. 5, No. 20 (zg Sep. 19jg), pp. 858-859;
Vol. 8. No. 8 (IOApr. 1962). pp. 340-343; Vol. 9, No. I (1 Jan.
(6) NatzveAaministration and PoliticalBarelopmentin British TroPical
Africa, Report by Lord Hailey, G.C.S.I., G.C.M.G., G.C.I.E.,
1940-42,p. 81.
(7)Lord Hailey, hrative Ad~ninistration irtthe British African Terri-
tories (London, His/Her Majesty's Stationery Office, 1950-1953).
Part II. Central Africa: Zanzibar, Nyasaland, NortherrlRhodesla,
Gambia, pp. 3-24; Part V, The High Commission Terrilories:Leorte,
Basutolat~d,The Bechrcanala7~P drotectorateandSwazilnnd, pp. 318-
321. 357. 361-369,377-378, 388-390. COUNTER-MEMOR OIFSOUTH AFRICA 181
XXXU. United States of Arnenca
(1)Paris Peace Conference,rgrg, 13 Vols. (Washington, United StatesTh
Government Printing ORice,1942-1947).Vol. III, pp. 723, 741-742,
769-770,785-786,768, 790, 795-796,600-802; Vol. V, p. 508.
(2)Foreign Labor Information: Labor in Liberia (United States Depart-
ment of Labor, Bureau of Labor Statistics, May 1960),p. 4.
(3) Ellender, A. J., A Report on United States Foreign Operationsin
Africa, 88th Congres, 1st Session, Senate, 1962 [Committee Print]
(Washington, U.S. Government Printing Office,1963),p. 121.
XXXIII . ooks and Pamphlets
A. Authors and Titles
Abraham, W. E., The Mind of Africa (London, Weidenfeld and
Nicolson, 1962),p. 163.
Alexander, J. E., An E.rpediLionof Discovery into tlieInterior of
Africa, Through the Hitherto Undescribed Countries of The
Great Xamaquas, Boschmans and Hiil Damaras. z Vols. (Lon-
don, Henry Colburn, 1838). Vol. 1, pp. 221-224, 295; Vol. II,
pp. 39, 116.117, 133, 136, 151, 16211-212.
Anderson, R. E., Liberia: America's African Friend (Chapel
Hill.Tlie University of North Carolina Press, 1952).pp. 197-198,
208,210.
Andersson, C. J., Lake ~Vganti;or, Explorations andDiscoveries,
during Four Years' Wanderings in the Wilds of South Western
Africa, Second Edition (London, Hurst and Blackett, 1856).
pp. 114-115, 121-124, 132-136, 142-144. 148.149, 198-205.210-
211,217-226.251.252, 295-296,437-438.
Anderssoli, C. J., Tlie Okavango River, A Narrative of Travel,
Exploration, and Adventure (London, Hurst and UI:tckett,
1861).pp. 145-146,184. 187, 190.191, 194, 196, 214-216.
Andersson, C.J., Notes ofTraud in South Africa, ed. bL.Lloyd
(London, Hurst and Blackett, 187j), pp. 64-125, 145, 147, 150,
157. 217. 331-338.
Apter, D. E., The I'olitical Kingdom in Uganda: A Study in
Bureaucratic Nationalism (Princeton: Princeton University Press
1961)~pp. 163-164,429.
Baker, R. S., Woodrow Il'ilson and World Sdtlement, 3 Vols.
(Xew York, Doubleday, Page and Co., 1922-1923). Vol. 1,
pp. 424-432; Vol.111,pp. 108-110,126-129.
Ballard, P. B., Tlzought and Lnngnage (London, University of
London Press, Ltd., 1934).p. 17.
Bauer, P. T. and 'k'amey, B. S., The Economics of U~zder-
DevelopedContztries(Cambridge,University Press, 1960).pp. 71,
129-130,174.
Beard, C. A. and M. R., The Rise O/ American Civilization
(London, Jonathan Cape, 1944) [one volume edition], Vol. II,
143-144.
Beer, G. L., African Questions at the Paris Peace Conference,
ed. by L. H. Gray (New York, Macmillan, 1923), pp. 431,
443-444182 SOUTH WEST AFRICA
(13)Rentwich, N., The ilfandates System (London, Longmans. Green
and Co., 193o),pp. 4-5.
(14)Uourret, F. M., Ghana-The Roud to Indeper~dence1919-1957
(London, Oxford University Press, 1g60),p. 218.
(15)Uruwer, J. P. van S., The Kuanyama of South West Africa, A
Preliminavy Sttcdy[unpublished], pp. 15, 21-22,32-33.
(16)Buell, R. L., The A'atiueProblem in Africa,2 Vols. (XewYork,
The blacniillan Company, 19-28),Vol. II, p. 553.
(17)Uuell, R. L., Liberia: A Ceirlnryof Surviual 1847-1947,African
Handbooks: 7 (Philadelphia. University of Pennsylvania Presd,
1947).P. .7.
(18)Carter, G. M.. Independence for Africa (London, Thames and
Hudson, :c961),p. 94.
(19) Carter, G. M. (ed.), African One-Party States (New York. Corne11
University Press, 1962),pp. 132, 334, 356,461-463.
(20)Chowdhuri, Il. X. International Mandates and Trzcsleeship
Systems (TheHague, hlartinus Nijhoff,1955).pp. 16-22,270-271.
(21)Comhaire, J. L. L., Aspects of UrbanAdministration in Tropical
and SorcthernAfrica, Communications fromthe SchoolofAfrican
Studies, University of Cape Town (New Series No. 27) [July
19531,P. 67.
(22)Davis, G., Melunsky, L. and du Randt, F. B., Urban Native
Law (Port Elizabeth, Grotius Publications, 1g59),p. II.
(23)l)eschamps, H., The French Union: History, Institutions,
Economy. Countries and Peoples, Social and Political Changes
(Paris. Editions Berger-Lewault, 1956). pp. 32-33. 39-40, 71,
113, 150.
(24)De Smith, S. A., Judicial Review of Administrative Action
(London, Stevens and Sons Ltd., 1959).p. 167.
(25)Duncan, P., Solho Lnws and Czistoms: A Handbook based on
Decided Casesin Basutoland together withThe LawsofLerotholi
(Cape Town, Oxford University Press, 1960).pp. 98-99.
(26)Egerton, F. C.C..Angola in Pcrspative: Endeavour and Achieve-
ment in Portuguese WestAfrica (London, Koiitledge & Kegan
Paul, 1957).pp. 118.120.
(27)Egerton, H. E.. A Short History of British Coloizial Policy,
Sixtli Eàition (Loiidon, Methuen & Co Ltd., rgzo), p. 271.
(28)Eigenhuis, J., Albert Schweilzer (Haarlem, N/V H. D. Tjeenk
Willink & Zoon, 1929),p. 97.
(29)Elias, T. O., Ghanaand Sierra Leone: The Development of their
Laws and Constitutions [Vol. IO of The British Commonwealth:
The Devalopmeiit of its Laws and Constitutions, ed. by George
W. Keeton] (London, Stevens & Sons Ltd., 1962), pp. 31-33.
37-38, 4:~-42.65, 70. 217, 223, 227, 239. 243, 246-251, 254,
258-260.
(30)Evans, 1. L.. Native Policy in Southern Africa: An Outline
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13.Titles
(1)Britaitrti:a Book of the Year 1961 (London, Encyclopaedia
Britannica. Ltd.. 1g61),p. 144
(2)The Cnmbridge History of the British Empire, 8 Vols., cd. by
J. Hollaiid Rose, A. P. Newton and E. A. Renians (Cambridge,
University Press, 1929-1936).Vol. VIII, South Africa, Rhodesia
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694-698,700-701.
(3) Le Code Pé?ialde L'Empired'Elhiopie drr 23 Jziilletrg57(Paris,
le Centre françaisde droit comparé,1959),Arts. 149-151.471 (1).
PP. 70, 134.
(4)Die Dagboek van Hendrik Witbooi, Kaptein van die Witbooi
Hottentotte, 1884-1905(CapeTown, The Van Riebeeck Society,
rgzg), pp. xviii. 6-10, 12-16, 19-21,32. 34-38, 67-71,73-77. .
(5) Beclaration of Indian Prrrpose[Report of the American Indian
Chicago Conference, held at the University of Chicago from
13-20 Jiine 19611,App. 1,pp. 20-22, 26-27.
(6) The Economic Development of Kenya, Report of a Mission
Organized by the International Bank for Reconstruction and
Development at the Reqnest of the Governments of Kenya
and the United Kingdom (Baltimore, The Johns Hopkins Press,
for The International Bank for Reconstruction and Develop-
ment, 1963). P. 37. COUNTER-MEMORIAL OF SOUTH APRICA 189
(7) The EconomicL)euelopnientof Taiignnyika, Report of a 3lission
organized by the Iiiternational Bank for Reconstruction and
Development at the request of the Governments of Tanganyika
and the United Kingdom (Baltimore, The Johns Hopkins Press,
for The International Uaiik for Reconstruction and Develop-
ment, 1g61). p. 348.
The Encyclopaedia Britair?rica: h Uictionary of Arts. Sciences
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Charles Black), Vol. IV (1876),pp. 767-768.
Encyclopaedia Britanitica: A Xew Survey of Universal Know-
Vol. 8. p. 690; Vol. 1.4,p. 606; Vol.20,Upp. 968-969.nc., 1947).
Ghana: A Brie/ I'olifical and Economic Suroey, Prepared by
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16.
Ha~zdbookon Race Rr:latioizsin Soz~thAfrica, ed. by E. Hellmanii
(Cape Town, Oxford University Press. for the South -4frican
Institiite of Race 1Iel:itions. 1949),pp. 276-277, 280, zgr.
The lnlernntional Laborir Organisalio~~:The First Ilecade (Lon-
don, George Alleri aiid Unwin [for the International Labour
Oficel. 1931),pp. 29-31, 367.
Znîernatio~~al Yearbook of Edzrcatioii (Geneva, International
13ure.a~of Educatioii and Unesco, 1963). Vol. XXIV (1962).
pp. Iix, lx, 6j, SI, 223, 320, 496; Educational Statistics, tables 1
ana.II.
(14) The Italia>r Colorliai Empire-With C1i;ipters on tlie Dodec-
anse and tubania, Iiiformation Department Papers. No. 27
(Loiidoii. The Royal Iiistitute of Iiiteriiatioiial Affairs, 1941).
P.37.
(15) Keesing'sConteritporury Archiues: Weekly Diary of Important
World Events [Keesing's Publications Limited (of I.ondon)],
Vol. VI1 (1948-1950). p. 9354; Vol. XI (1957-19581,p. 16546;
O XI1 (1959-1g60). p. 16793; Vol. '<[II (1961-1g6z), pp.
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(16) The Progressof Africans in Sotilhern Rhodesia (Bulawayo, The
Rhodesian Institute of African Affairs. 1958),pp. 9-11..,
(17)RéfiertoireI->ermaire~z <ileLégislationEgyptienne (Publie par le
Bulletin de Léz$slatioiiet de .uris.rudence Egv..-ennes, 1952).
Vagabondage$. II.
(18) Kesot~rcesand Nredr: for Training 1:acilities for Africans in
Brilish Africa, Ethiofiiu und Liberia (Washingtoii, Ruth Sloan
Associatcs Inc., 1gç5:1.p. 210.
The Shorter Oxford English Dictio~~ary 011 Historical Prii~ciples,
Third Edition revised with Addenda,rev. and ed. by C. T. Onions
(Oxford, The Clarendon Press, 1959), p. 150.
Stale of Sot~th Africa: Economic. Financial and Statistical
Year-book for the Republic of South Africa (Johannesburg
Da Gama Publications Ltd.), 1962, pp. 89-90; 1963, pp 429,
509-510.
The Slatesmarz's Year-Book: Statistical and Historical Annual
of the States of the IVorld for the Year 1963, ed. by S. H.Ig" SOUTH WEST AFRICA
Steinberg (London, Macmillan SiCo., Ltd., 1963). pp. 183, jIo.
548,914. 1389.
(22)Webster's Complete Dictionary of the English Language, New
Edition af 1880,rev. by C. H. Goodrich and N. Porter (London,
George Bell and Sons), p. III.
(23) IVebster'sA'ewInternatio~calDictioitary of the EnglisloLaicguage,
Second Edition, ed. by W. A. Neilson, T. A. Knott and P. \V.
Carhart (London. G. I3ell and Sons: Snri,Ai-eld. G. a.d C.
hlerriam,'~~~~), P. 15.
(24) Ii7hitaker'sAlmanack, 1961 [An Alnlanack For the Year of Our
Lord 106.r.Established1868 bv Iosebh IVhiLuker.F.S.A. 1,.D. ,28.
(25)The Y& 'b'ookand Clride 1; .&daern Africa: Union of South
Africa, Ièderation of Khodesia and Nyasalaiid, Soiith West
Africa, etc., ed. by A. Gordon-Brown (London, Robert Hale
Ltd.), 19151Edition, pp. 204, 294.
XXXIV. Articles
A. Authors aiid Titles
(r) Arden-Clark, C., "The cliaiiging rôle of White leadership in
tropical Afric:i", in Optima, 1701.IO,Xo. 4 (Dec. 1960). pp. 177-
183, at p. 181.
(2)Ashby, 13.,"African Higher Education", in OuerseaQiiarterly,
Vol. 3. No. 2 (June 1962).pp. 43-43, at p. 44.
(3)Ashby, E:. ". niversities under Siege". iii ~Miicerva, ol. 1, No1
(Autumi-iigGz), pp. 18-29,
(4) Heilhy, L., "The Clioice for South Alricri", in ?'hoDoily Tele-
grapk, 20 Aug. 1963.
(5) Brauscli, G.E. J. B., "I'liiralisme ethnique et culturel au Congo
Belge", iii International Instilrrte of Differing Civilizatiolrs:
Elhnic iiizd Cultural Plzrralism in Int6rtropical Comntu~rities.
Report iofXXXth Meeting held in Lisbon on 15, 16, 17 and
18 April 1957,pp. 243-267,at pp. 243, 245.
(6) Davies, H. O.. "The New African Profile", in Foreign Affairs:
An Amc-rican Quarterly Keview, Vol. 40, No. 2 (Jan. 1962).
P. 293-.302.at pp. 297. 300.
(7)k.iselen, \V. W. M., "1s Separation Practicable?", in Journal of
Racial Aflairs. Vol. 1, No. 2 (Jan. 1g50),pp. 9-18, Ft pp. 13-14.
(8)Eiselen, W. W. M., "Harmonious multi-community develop-
inent", in Optima, Vol. 9, No. I (Mar. 1!)59),pp. 1-15,at pp. 1-3.
(9) Foster, P. J., "Ethnicity and the Schools in Ghana". in Com-
parative EdztcatiosReuiew,Vol. 6, Xo. z (Oct. 1962),pp. 127-135.
at pp. 1.28-130.134.
(IO)Furukaki. P.T., "Nature juridique des mandats internationaux
de la Saciétédes Nations". in Bihliothèaue Universelleet Revue
de Genèze(July-Dec. I~Z~),'~~. 3~r-390,'at p. 385.
(11)Ganiiet. H.. "Modern Historv and Present Distribution of
North llmerican Indians", in' The. Encycleaedia Rritaiinica:
A Dictionary of Arts, Science, and General Literature, Xinth
Edition (Edinburgh, Adam and Charles Black), Vol. XII (1881).
p. 830.
(12)Gibsoii, G. D., "Double Descent and Its Correlates among the COUNTEII-MEMORIAL 01;SOUTH AFRICA 191
Herero of Ngamilaiid", in An~ericait Aizlhropologist, Vol. 58,
NO. 1 (19j6), pp. 109-139.
(13) Gray, W., "Canada's Indian Problem", in Rand Daily Mail,
j hlay 1961.
(14)Hall, H. D., "The Tmsteeship System", in The British Yeizr
Book of Interi~ational Law, Vol. XXIV (1947). pp. 33-71. nt
PP. 4-46.
(15) Hempstone, S., "l'artition-A Solution for South Africa", in
ChicagoDaily A'ews(9 Sep. 1963).
(16) Hodson, H. V., "Where America and Britain ngree and disab~ce
about Africa", in Oplima. Vol.12, No.4 (Dcc.1962).pp. 171.175.
at p. 173.
(17) Hoernlé,R. 1'.A. (A. W.), "The Expression of the Social Value
ofWater among the Nama of South West Africa", in The Sorrlli
Africnn Journal of Science, Vol. XX (1923),pp. 514.j26.
(18)Hoernlé,A.W.,"The SocialOrganization ofthe Nama Hottentots
of Southwest Africa", in Amcrican Anthropologist, New Series,
Vd. 27 (1925) [reprinted by Krnus Reprint Corporation, New
1ork, 19621,pp. 1-24.
(19) Houghton, D. H., "Africa through American eyes", in Optima,
Vol. 13, No. 3 (Sep. 1963),pp. 110-115,at p. 112.
(20) Hudson, M. O., "Tlii: Twenty-nhth Year of the World Court".
inTlu AmericnitJournal ofInternational Law, Vol.45 (Jan. 1951).
pp. 1-36, at pp. 13-1:;.
(21)Jennings, R. Y., "The International Court's AdvisoryOpinioii
on the voting proceiiure on questions concerning South West
Africa". in fiaicsactions of th GrotizrsSocieiy, Vol. 42 (1956).
pp. 85-97, at p. 92.
(22) Kohler, O., "The Stage of Acculturatioii in South West Africa".
inSociologus,Vol. 6, No. 2 (1956),pp. 138-153.nt p. 138.
(23) Korowicz,M.St., "Tlie Problem of the Internatioiial Personality
of Individuals", iiiThe American Journal of Internatio~ralLaw.
1'01.50 (19j6), pp. 533-562,at pp. 536.561.
(24)Krogh. D. C., "The Kational Income and Expenditure of Soutli-
West Africa (I~ZO-I~~G)"i,n Tl18Sozith Africaii Jo~ir~talof Eco-
nomics, Vol. 28. No. I Ofar. 1g6o),pp. 3-22,at p. S.
(25)Lewis, W.A., "Education and Economic Development", in Ouer-
sea Quarterly, Vol.2, No. 8 (Dec. rg61). pp. 232-236,at p. 233.
(26)Marshall, L., "Marriage among !Kung Bushmen", in Africa,
Vol. XXIX. No. 4 (1,958).pp. 335-365.at p. 336.
(27)McNair, A. D., "Mandates". in The Cambridge Law Josrnal.
Vol. III, No. z (1928).pp. 149.160,at p. 157.
(28)Mossolow, N.. "Eingeborene inIVindiioek", in Dcr I<reis,Heft 12
(Nov. 1959).PP. 435-.+41.at P. 415.
(29)Neqniq, M., "The most urgent needs in the expansioii of Ethio-
pian Educatioii". iiiElhiopiaObserver,Vol. 11,No. 4 (Mar.1958).
PP 138-132.
(30)Nisot. J., The Advicory Opinionof the International Court of
.Justice on the International Status of South \Vest Africa", in
pp. 274-285,at pp. 279-281.nal, Vol. 68, Part 3 (Aug. rgg~),
(31)Odunukwe, C., "Education in a Dynamic Society". in West SOUTH WEST AFRlCA
192
African Jor<ritalofEdrccatioit,Vol.2,Xo. 3 (Oct. 1958).pp. 91-94,
"t p. 93.
(32)Perham, M., "A Re-Statement of Indirect Rule", in Africa:
Journal cf thc International Institute of African Languages aiid
Cultures, Vol. VII, No. 3 (July 1934).pp. 321-334,at p. 321.
(33)Perham, JI.,"The psychology ofAfricaiinationalisrn", inOptirna,
Vol. IO, l'o.I (Mar. 196o),pp. 27-36, at pp. 27-30.
(34)Potter, 1'. B.. "Origin of the System of Maiidates under the
League of Xations", in The American Political Science Revieiw.
1'01.XVI, No. 4 (Nov. 1922).pp. 563-583.
(35)Kandall, C. 13., "South Africa Needs Time", in The Atlantic
Montlily (May 1963).p. 80.
(36)Rappard, IV'III.,"The Mandates aiid the International Trustee-
ship Systcins", in VariaPolilica (Zurich,Editions Poligraphiques
S.A., 19j3). pp. 181-190,at pp. 182, 184.
(37)ltenison, P.,"Thc challenge in Kenya", inOptima, Vol. 13,XO. 1
(Mar. 19153)p,p. 8-16.
(38) Rolin. HI. "Lc Système des Mandats Coloiiiaux". in Revric de
Droit InternatioiialeldeLégislalioiContparéeV , ol.XLVII (1g20).
No. I,pl). 329-363,at pp. 356-357.
(39) liostow, IV. IV.. "The Take-Off into Self-Sust:iiiiedGrowth". in
The EcorronticJour~tal,\'ol. IXVI, No. 261 (Mar. 1956)~pp 25-
46, at p. 27.
(40)Scanlon, D. G.. "Education anclSocial Change iii West Africa",
iiiTeacfwrsCollegeRecord.Vol.56, Xo.3 (Dec. 1954).pp. 129-134,
at p. 134.
(41)Shack, W. A.. "Organizatioii and Problems of Education in
Ethiopia", iii The Journal of Negro Edzccatiow,Vol. XXVIII,
No. 4 (FaIl, 1959).pp. 405-420,at pp. 405,416.
(42)Silberman, L., "Ethiopia Elects", in The Listener (14Nov. 1957)~
PP 774-775.
(43)Stafford, W., "The Walla Walla fight for their lands". in The
iNatalDzily News, 10 Nov. 1954,p. 9.
(44) Van Asl~eck,F. M., "Iiiternational Law and Colonial Adininis-
tration", in 7ransactions of the Grotius Sociely, Vol. 39 (1953)~
pp. 5-37, at p.14.
(45)van Heerden, W., "\Vhy Bantu states?", in Optima, Vol. 12.
No. 2 (June 1962).pp. 59-65. at p. 60.
(46)Wagner, G.,"Some Economic Aspectsof Herero Life", in Africa?~
Stztdies, Vol. 13, No. 314(1954).pp. 117-130,at pp. 118-119.
(47)Wellington, 1.H., "A tentative Land Classificationof Southern
Africa", in The South African GeographicalJozanal, Vol. XXXV
(1953)~PP. 16-25.at p. 17.
(48)Williams, J. F.. "The status of the League of Nations in Inter-
national Law", in International Law Associalioir, Report of the
34th Coitference(1926),pp. 675-695,at pp. 688-689.
(49)Worsthorne, P.. "Black and White Reality", in The Scinday
Telegraiih,II,May 1963.
B. Titles
(1) "The Congoon the Road to Democracy", in The Belgian Collgo
Today, Vol.VIII, No. 3 (July 1g59),pp. 9-12, at p. 9. COUNTER-MEMORIAL OF SOUTH AFRICA
Ig3
(2)"The Constitution of 1955". in Ethiopia Observer,Vol. V,No. 4
(1962)~PP. 366-377,at P. 373. .
(3) Iitter?raiionalAssociution of Unruersilies,bulle tir^Vol. X, No. 4
(Nov. 1962),p. 254.
(4) "\Irhy no integratiori for the ArnericaiiIndian", in U.S. 1Vews &
CVorldKsport, Vol. L.V. No. IO (2 Sep. 1963),pp. 62-66.
XXXV. Theses
(1) Lemmer, C. J. C., Onderwys iit Suid-des-Afrika: 'n Verhandeling oor
Naturelie en veral Blanke Ondenvys in die Mandaatland Suidwes-
Afrika (vroeër "Deutsch Suedwest-afrika") van die vroegste tye tot
1932 (Unpublished D. Phil. Thesis, University of South Africa, 1934)~
PP. 1. 3-4. 31. 33-34. 36..37.39, 40-44. 72-73, 73 bis, 74-76. 78-80,
86-89, 99-100.108, 114-115. 120-12'3, 129-130.133, 138-139.Ij7-159,
162-166;176. . ~
(2) Schuttc, C. H. J., Klexrlingonderwys iiSziidwes-Afrika (Unpublished
M. Ed. Thesis, University ofSouth Africa, 1942).pp. 14.17-18, 20-21.
XXXVI. Unpublished Archival Sources
A. Cape Archives Depot
Archives of the Secretaryof vati iveAflairs. CapeColony.
N.A. 287: Palgraueto Capt. JacobirsIsaac etc., 19 Dec. 1877.
Palgraue to Secretaryfor Native AQairs, 31 Jan. 1878.
Rlienisli Missionaries 10 Palgrave, 25 Aiig. 1878. Man~ringto Pal
grave,22 Oct. 1879.
N.A. 288: Muserave toSecretarv for Native Aftai"s:o T.,"ic1880.
Palgraveto L?right,13 June &o.
O&cial Jourrral of tlie Secretary of tlie Trai~sxariepComrnissiorr,
hfiirutes. zr Sep. 188o.
Irlc to I'algraue,20 Dec. 1880.
N.A. 290: ResideiitMagislrate Wliindtrs, lValfishBay, 10 Under-Secre-
tary for Native Afairs, 4 Jan. 1883,p. 3.
Petition of P. Haibib for unnexation of rest of his terrilory, 5 Jan.
1883.
1Vhindrcsto Under-Secretaryfor Native Afairs, 6 Jan. 1883,pp. 3-6.
Hermanz6svan IVyk 10 Resident Magistrale, 31 Jan. 1883.
Resident MagistrateSimpsoib to Andries Lambert, IO Sep. 1883.
Resident MagistraieSimpson to Ugider-Sacretaryfor Native Affairs,
II Oct. 1883.
N.A. 291: Resident Magislrate Simpso~ito Under-Secrelaryfor Native
Afairs, I May 1884,pp. 1-3, 11-12.
N.A. 293: Resident Magistrate, Walfish Bay, to Cape Gounnment,
2sSep. 1889.
Resident Magistrale, Walfish Bay, to CapeGovernment, II Oct. 1890.
N.A. 1136: Hermanus uan Wyk to Maharero,6 Nov. 1878.
B. CarnegieLibrary, Stellenbosch
Quelienztir Geschichtevon !iüdwestafrika (30Vols.)
Vol. 1: Chronik Otjimbinga~c,1850,p. 17; 1860.pp. 39-40; 1863,pp.
47-49: 1864,pp. 54-55; 1867,p. 67; 1880.pp. 99-102.
Vol.4:Report byJ. Bam. Bethanie, 13 Nov. 1884,pp. 44-45. SOUTH WEST AFRICA
194
Vol. 6: Report by E. Heider, Hoachanas, 3 Jan. 1881, p. 61.
Vol. II:RReportby G. Kronleirt, Berseba. 16 Mar. 1861,p. 299.
Vol. 15: Letter by H. van CVyk,Rehoboth, I Jan. 1878.
Vol. 17: Report by F. Rzist, Gibeon, 6 Jan. 1881, p. 13.
Vol. 19: Report by F. Rust, Gochas, 4 Jan. 1894,p. 28.
Vol. 20: Diary, iïleinschmidt, Jun., 1864.p. 134.
Vol. 21: Refiorts by F. Heidmann. Rehoboth, 27 Apr. 1878, p. 137;
14 Sep. 1880, pp. 155. 157-158;9 June 1881, p. 206.
Vol.22: Repovt by F. Heidmaizit, Rehoboth, 24 Oct. 1884, p. 300.
Heidmann to Bohm, 15 Aug. 1889,pp. 349-351.
Vol.27: LetlerbyF. Meyer,Otjikango (Barmen). 19Dec.1880,pp. 6-7.
Reports by 1;. Meyer, Otjikango, 23 Feb. 1883,p. 35; g Oct. 1881.
p. 60.
Letterby Ph. Diehl, Okzihandja, 19 Apr. 1886,pp. 102.103
Vol. 28: Diar);,F. Kolbe, Jan.-Apr. 1851,p. 28.
Diary, Station Okahandja, Dec. 1881,p. 4.
Report by IV'Eich, Okahandja, 24 Apr. 1886,pp. 52-56.
Vol. 29:Report by F. Rust, Berseba,II July 1888,p. 170.
C. Archives of South West Africa, Windhoek
Part II of Fiie No. A. 50135.
XXXVII. Affidavits
(1)Affidavit oi G. H. Olivier, Registrar of Deeds, South West Africa.
(2) AffidavitofE. E. Smith. Surveyor-General, South West Africa.
XXXVIII. Letters
(1)Kerina 10 Kapuuo, 30 Apr. 1959.
2) Kerina 10Mwsndjleia,5 Mar. 1959.
(4) Kerzna10Sam Nuloma, 16 Sep. 1959; 25 Sep. 195'); 17 Oct. 1959;
9 Dec. 1959.
(5)Kozonguizi to Sam A'ujoma, 14 Sep. 1959.
(6)Kerina to ToiiioJa Toivo, 9 Feb. 1959; 14 Feb. 1959; 21 Apr. 1959;
17 NOV.1959.
XXXIX. Newspapers
.I.1963.e FrancoPresse, Airica South of theSalmra, No. IOI~, 21 Oct.
(2)Die Burger, 4 Dec. 1925,pp. 7-8
(7)The Euenina Post (NewZealand), 4 Dec. 1q6z.
4) Ilanga LasëAralal; 19 h'ov. 1955,p.15. -
L The Natal Mercury, 14 Mar. 1963.
e PretoriaNews. 16 Dec. 1963,p. 1.
Star, I 1)ec. 1954, p. 9; 22 Sep. 1962; 15 Nov.
28 Nov. 1962; II Dec. 1962. p.7; 23 Feb. 1963.
3)Die Transualer, 19 Aug. 1955,p. 7
XL. Map
Sheet 6 of Jeppe'sMap of the Transvaal or South African Republic and
Surrounding Temtories. COUNTER-MEMORIAL OF SOUTH AFRICA '95
XLI. Other
(1)Arlicles of Association of New Soarlh West Africa Native Labour
(Proprielar)~)Limited-i\'uwe S.W.A.X.L.A., pp. 6-7.
(2)Deposition of Kath von Lobenfelder,2 Feb. 1956.
(3) Statement of Silas Fikameni Ifumbu in regard to the detribalization
of Ovambo labourers.
(4)The SummiEConferenceof Independenl African States, Resolutions,
Oficial Text, SUMMIT,ClAS/Plen. z/Rev. z,25 May 1963, pp. 1-2. SUPPLEMENT TC) THE COUNTER-%IEI\fORIAL
INTRODUCTORY
I. In Books IV and V of the Counter-Memorial, reference was made
to a Commission of Experts which had been appointed to investigate
the conditions of the inhabitants of South West Africa, and particularly
the non-White inhabitants, and to make recommendations in respect of
their further advancement 2. In this regard it was stated, itztealia:
"The report of this Cornmissionhas been due for some months now
and is expected to be piiblished in the very near future. Unfortun-
ately it has not become available at an early enough stageto be dealt
with in this Counter-Meniorial. In so far as its recommendations. and
ttiç liesporid~nt Govcrnnient's relctioiis t11,:ri:to.willhe rcle\'aiit to
the niatters concerned iritliis case, l'<esponJent\vil;it:isubsequent
staae take the necessarv stevs. with th; leave of the Court in io far
as necessary, to preseh &ch information to the Court for its
consideration '."
The Commission'sreport 4viastabledin Parliament on27January 1964.
and on 29Aprilrg64, the Respondent Govemment tabled a memorandum
setting out its attitude towards the Commission's recommendations '.
On 8 May 1964 the House of Assernbly of the South African Parlia-
ment passed a resolution expressing approval of the Government's
decisions contained in the memorandum.
2. 'l'lie0deiid:i:iI Cornniisîioii's report incorpomtcs :icoml>rr.licnsi\~e
S~lr\'e\uf flic»;,il dt3\.r.l~~iii~:tf :inil I>rcSr.ntc~nditioiliSoutll \\'est
Africain the 6elds of go;ernment, econÔmy,education and other aspects
of political, social and matenal well-being. In addition it contains the
Commission's recommendations, together with argument in support
thereof, regarding the future development of the Territory. It is parti-
cularly to these latter aspects of the report that the inemorandum is
directed, setting out the Government's poiicy and contemplated course
ofaction pursuant thereto.
It will be apparent, therefore, that these two documents are relevant
to some of the major issues in the present proceedings, and in particular
to those relating to the aileged violations of Article 2 of the Mandate.
Inasmuch as their publication has come after the filing of the Counter-
Mernorial,it seems that fuli analysis and discussion of their contents and
significance may have to await the Oral Proceedings. However, with a
view to facilitating reference and discussion, whether in the further
pleadings or in the Oral Proceedings or in both, Respondent now wishes
' Officially designated the Coinmission of Enquiry into South \\'estAfrica
Affairs. and commonly referred to asthe Odendaal Commission.
VidaCounter-Memarial, Book IV, Chap. VII, para. 35; Book V. sec. C.
Chap. III, para. 33:sec.E. Chap. 1.para. 106.
Ibid.. Book IV, Chap. VII, para. 35.
' R.P. No. izjrg64.
Supplement.venient reference this memorandum is reprinted as Annex A to this198 SOUTH IVBST AFRICA
to introduce the iaid reDort and memorandum formallv to the record
as relevlint documents, :indtu pro\~idc.;ibrief guide to tlieir rnorc snlieirt
psrtj. )I;iiii ft..itui.ejoiare inentioried, niid orilvhv \i.nyof hrief siirri-
mary. -. -
To enable members of the Court to hd passages in the Commission's
report and in the memorandum on any of the more important matters
that have also received attention in the Counter-hlemorial. Annex B
hereto sontains a comparative table correlating the contents of these
three documents.
Govemment and Citizenship
3. The Commission recomrnended that homelands be constituted as
self-governing areas for several non-White groups '. The Government's
attitude in this regard is set out in the followingpassage from the memo-
randum:
"The Govt:rnment wishes to state clearly once again that its
general attitude .. . inter alia, involves agreement with the Com-
mission's finding that the objective of self-determination for the
various population groups will,in the circumstances prevailing in the
Territory, nc.t be promoted by the establishment of a single rnulti-
racial central authority in which the whole population could poten-
tially berepr(:sented, but inwhichsomegroupswouldin fact dominate
others. (Report, p. 55, paras. 183 to 190.) The Government also
endorses the view that it should be the aim, as far as practicable, to
developfor each population group its own Homeland, in which it can
attain self-determination and self-realization. (Report, p. 55, para.
190.) The Government moreover accepts that for this purpose
considerable additional portions of the Territory, including areas
now owned by White persons, should be made available to certain
non-White groups. And it shares the view that there should be no
unnecessarfdelay in taking the next steps in regard to this impor-
tant aspect ofthe development ofthe population groups concerned 2."
~ -
However, by renson, inter alia, of considerations pertaining to the
present proceedirigs, the Government refrained from taking any imme-
diate decisions in regard to the Commission's concrete proposais for
constituting part!;of the Territory asself-governing homelands for various
non-White groupj 3.This applies also to other recommendations insepa-
rably connected .withthe homelands plan, such as, for example, those
relating to new councils for local self-government of the non-White
inhabitants of towns and townships in the White areas '.
Development Projects
4. The Commirisionrecommended a five-year plan involving extensive
development projects in the economic and social spheres. The projects
Vide Report, pp.81-107.paras. 298-416
VideAnnex A, para.21. infra.
Ibid., para21 and 22.
4 Ibid.. parazr. COUNTER-MEMORIALOF SOUTH AFRICA '99
which the Government has decided should be implemented as soon as
possible 'relate to the followingmain subjects:
(a) The supply of water and electricity, including the Kunene scheme
for the supply of water to Ovamboland and of electricity to the
northern and central areas of South West Africa
(b) The improvement of transport faciùties, and, in particular, roads
and air services, as a means towards further economic development
and expansion of social and health services 3.
(c) Development of the mining industry and encouragement of in-
creased participation thc:rein by non-White inhabitants <.
(d) Industrial development, especially in Native areas 5.
(a) Improvement of agriculture in Native areas 6.
(/) Improvement of educational services, particularly for non-White
inhabitants 7.
(g) Improvement of health services, particularly for non-White in-
habitants 8.
(h) Purchase of White-owned farms aiid town properties for possible
future incorporation in homelands, and for a settlement scheme
for Coloured persons 9.
The cost of this five-year plan will, in the Commission'sestimate, exceed
RI~Omillion ( £75 million) '0.
Administrative and Financial Arrangements
<. The Commission recommended a reoreanization of administrative
functions as between organs of the ~emtoj and those of the Republic
of South Afnca. as well as concomitant changes in financial relationsL'.
In making these recommendations, the Comhissioii was influenced by
the nature and extent of the new phase of development envisaged by it,
by the resultant advisability of making use of the liepublic's facilities
in the fields of expert guidance, technical knowledge and effective plan-
ning. as wellas of its financial resources, and by the desirabiiity of elimi-
nating overlapping of functions and responsibiiity 12.
The Government ex~ressed its belief-
"tlint closcr iii\~cstigatiori \vill confirm th:it the rnnjor dcv,:lopment
project~ iontcmplatcd. partii:iil;irly iiitlic iiiti:restî of the non-\Vliiti:
popul~tion groups. cnn hc cnrried out to thc hest advantagt. through
' Annex A, para. 6.
Ibid.. para. 7.
Ibid.. para. 8.
' I~i~.. "ara. ,.
' Ibid..para. IO.
Ibid..0.ra. --i.
' Ibid., para. 12.
Ibid..para. 13.
Ibid., para. 14.
'O Ibid.,para. 23.
" Vidc Report, pp. 61-63, paras. 214-225 and 229.235. und seealso. forexample,
p. 203, paras. rioz-1103p:. 305).paras. 1283 (3)-(5); p.377. introductory part of
para. ,368: p. 455, paru. 1479.1480.
" Vide in particular Report. p. 6r. paras. 2r5-220.200 SOUTH WEST AFRICA
greater financial and administrative contributions thereto from
the Republic, of the nature envisaged in the recommendations '".
However. the Govemment decided-
tive or the new financial arrangements before full details have ina-
both cases been carefully worked out, in order to determine what
every change .vil1involve and, particularly. the precise manner in
which every changeover willbe effectedin practice Z".
A Committee of Experts will therefore be appoiiited to consider the
detniled aspectsof the Commission'sproposais in this regard, which are,
in any event, nlso affected by considerations concerning the -resent
proceedings '.
Pending the report of the Committee of Experts and the conclusion
of the present proceedings, the existing administrative and finniicial
arrangements will continue subject to ad hoc adaptations to meet
special circumstan.:es '.
(Sgd.) R. MCGREGOR.
(Sgd.) J. P. VERLOREN VAN THEMAAT.
Agents of the Government of the
Republic of South Africa
' Vide Annex A, para.Zr. infra.
Ibid., para. rg.
' Ibid., paras2rand 22.
' Ibid., paraszqto 27.Annexes to the Supplement to the Counter-Mernorial fiied by the Govern-
ment of the Republic of South Africa
Annex A
With reference to the Report of the Commissionof Enquiry into South
West Africa Affairs. the Government desires to-a~ ~~~~~~~ ~ ~ ~ ~ ~
(a) its attitude regarding the future course of development recom-
mended bythe Commission ;
(b) its decisions rcgarding projects to be undertaken immediately; and
(c) its approach to the other recommendations, on which, for some
reason or other, decision!;are not being t.ken immediately.
To begin with, the Government's reasons for appointing the Com-
mission are briefly outlined.
A. THE KEASONS FOR THE APPOINTMEXT 01'
THIS COMMISS1O-J
I. Throughout the period of administratioii of South West Africa by
the South African Governnient-now in excess of 40 years-policy
relating to the government of the Temtory has been founded on the
principles-
(a) that full power of administration and legislation over the Territory,
asan integral portion of South Africa, is vested in the South African
Government, with the power to apply the laws of South Africa to
the Territory, subject to such local modifications as circumstances
may require; and
(6) that the South African Government's administrative and lecislative
powers are exercised for the purpose of promoting to the utmost the
material aiid moral weU-beingand the social progress of the inhabi-
tants of the Territory.
These principles were also fundamental to the provisions of the Man-
date in respect of South West Africa. In spite of the Government's view
that the Maiidate has in law iceasedto exist, its policy has always been,
and still is, to proceed with the administration of the Territory on the
basis of these principles.
2. In order better to ~erform their duties of administration and
dzvclopmcnr, succesîiw ÇÔvei-nments have iiithe pîst found itnecessnry,
iilicn i;rccd irith pr,?l)l~.icoiicçrniilg the adrninistr;<tionof South \\'est
Africa or when deeming it opportu6e to embark upon a new phase of
development, to appoint commissions of enquiry to furnish the Govern-
ment with expert advice. Diiring the period of administration of the
Territory more than 70 commissions have investigated a great variety of
matters, some with a wider and others mith a more restricted ambit, and202 SOUTH WEST AFRICA
in pursuance of their recommendations constant progress has been made
in the development of the Temtory.
3. The appointinent of the present Commissionarose from the Govern-
ment's view that the time was ripe for a far-reaching new phase of
development in South West Africa. 'Although impressive progress had
in the past been made in practically every sphere, as is evident also
throuehout the Commission'sreuort. this had occurred in the face of a
number of ad\,erse circumsta&es beyond the Government's control.
ivhch had iiisonic instaiic~.~retardeci development of the Tcrritory 2nd
Idtter il.iss of circurnjtances wzre szveral exceptionally severc droughts.the
tlie ccuiii~iiiicdepiejsiuii of tlie tlurtiei aiid thc Scionil \\'urld \tliç. In
furinercl.zjs therc \vcr~.the hsic problzms arisiiig from the neccjsity of
building iip a modern economy in a territory wvithver!, liinited available
resourcei: forthis \va: the main metliod hy \\,hichfunds coiild be pro\,ided
for programmes uf :idvancement of the indigenous pupulation. \vliiilnt
the inctption of tlie matirlatory adniinijtration \\.asfor the most part on a
Io!!. levei ol dcvclo~ment. .South Airican Go\,erniiicnts. altlioueti
undcr iio obligati.,ii in re;ms of tlie .\laiidarc to50.miidc co'nsidcr,il>c
coiitributions froin tlieir o\r,iifiinds to the de\~elo~mziitof the Territorv.
as also appears from the Commission'sreport (erg., p. 325, para. 1293).
However, by reason, inter alia. of the need for development in South
Africa itself,there were limits to the assistance which could be rendered
to South West Africa. Furthemore. uromess in the educational. social
and polirical aphc.rcs\vas in tliz past bwatly rctnrJe<l Iiy relativlaîk of
inturc,t :iiiilCO-vlicr:itii3itlic piir<ifmembcrj of the intli~enuus iion-
White groups. - -
4. Considerabl~:changes have, however, taken place in the above-
mentioned limitiiig circumstances, particularly during the last IO to Ij
years. The great progress which has been made in developing the Terri-
tory's economy, coupled with the economic upsurge in the Repuhlic
itself, has rendered more funds potentially available for intensive ad-
vancement projects. An awakening of interest in political, social and
educational matl.ers began to manifest itself amongst the non-White
groups of South West Africa, with the result that on the foundations
ureviouslv laid bv the authorities. standards could be raised at an in-
Srcascd [>ace.It ir'inthejc circiimstances that the Goverriment coniidered
tliat the timc \v;is rilie forn coiisidcrablc :icceleratiùn in co-ordin:ite(l
ulanned deveiournenf and advancement in al1suheres. The Commission.
bhich consiste& of experts from outside the 'political arena, was ac-
cordingly appointed, as expressed in its tems of reference, "to enquire
thoroughly intofurther promoting the material and moral welfare and the
social progress of the inhabitants of South West Airica, and more
particularly its non-White inhabitants", and pursuant to such enquiry
to prepare "a coinprehensive five-year plan for the accelerated develop-
ment of the various non-White groups". The Commission has completed
its task and its report was tabled on27 January 1964.
B. THE GOVERNMENT'S ATTITUDE CONCERNING THE
FUTURE COURSE OF DEVELOPMENT
j. The Goveriiment appreciates the contents of the Commission's
report,not only iin account of the valuable compilation and arrangement COUNTER-MEMORIAL OF SOUTH AFRICA 203
of data comprised in it, but also in view of the general purport of the
argument and recommendations. Dzreregardbeing had to whatfollows
hereinaftn,theGovernmentaccepttshereportin broadprii%ciple.
This decision does not imply that the Government identifies itself with
every detailed aspect of the argument,nor that it has already decided, or
wiUnow decide. upon the acceptability of every particular recommenda-
features of the argument and recommendations as an indication of the
general course to be adopted in the next phase of the development of
South West Africa and of the promotion of the weli-being and progress
-.... ...- -.. -. .
Pursuant to this general attitude, the approximately 475recommenda-
tions of the Commission willbe dealt with as fallina intothree cateaories.
namely- - -
(a) ately, and on which the decisions hereby announced have conse-
auentlv been taken:
(b) ;ccoinicndations cbncei.ning niatteri of such a purely administrî-
ti\.c n.iture r1i:itrhe autltoriti~.~rcspoiisibl~.for tlleir implemt-nt:~tion
will have to take decisioiis thereonâs the occasion arisei; and
(c) recommeiidations on which no decisions are taken at this stage
in that they are advant:ed by the Commission as being for future
consideration. or that the time is not considered oooortune for
their implementation, or for other reasons. and concerning which
the Government will aniiounce its intentions to the countrv and to
Parliament in an appropriatemanner when a decision on in$lemen-
tation istaken.
C. DECISIONS HEREBY ANNOUNCED
6. The Government is finnly convinced that certain recommended
projects are basic to further tlevelopment and should be executed imme-
diately and on a large scale. Some of these projects are directed at the
economic benefit of and service to aU the inhabitants of the Territory,
others have as their object the special benefit of and service to particular
communities or groups, especially non-imite groups. TheGoueri~men htas
decided thut implementation O! szrchfirojectsis 10 commenceimmediately,
and that thqr are tobe broughl 10 completionwith theleast delay possible.
Examples of projects included in this immediateprogramme, and there-
fore covered by the decision:; conceming implementation, are given in
the following paragraphs 1..
Supply O WaterandElectricity
7. The Commissionregards the generation of electricity on the Kunene
as the most important contribution which the State could make towards
' The exposition concernç only themnltnfs of theprojects: questions of procedure,
control and financial arrangements are dealt with later (particularly in para-
graphs 24to z7 hereunder).Moreover, only the broad outlines are indicated: some
of the detailedaspectaresubjectto further consideration and possible adjustment.
mostly in the courseof adminirtr;itive action.204 SOUTH WEST AFRICA
the further econoniic developmeiit of South West Africa. (Report,p. 447,
pafa. 1473.)
The Commissiorialso points out that it is the greatest single contri-
bution that can he made at this juncture to the general progress of
~articularlv the northern areas. where tlie concentration aiid increase of
i>opu13tionarc[lieb~c:gtt:x'( .llcl>urt.p. 439, pa~i 1464.)Co~iiplementary
to the sulq>l!,of e.rrtr~ci~y,and a;sociatrd with it. is the ~~t~~f;~ctiuoifi
the ureerit-need for a moréreeular water su~~lv..r.man and beast. It is
ion~ei~iz~itl~ :IItlicw objcctkes tliat the grCatest single item uf expert.
diturc \\.itlli~ithe fr3ni~\vork of tl~ Cotii~~iiiioii',rtc~mni~iid:ititj~~is
directed.
The followvingprojects, requiring an estimated total expenditnre of
R~z,~oo,ooo,are included under this head:
(a) the completion of the Etaka section of the canal scheme for the
supply of warer in Ovamboland, at an estimated cost of R3oo,ooo,
as proposed in an interim recommendation of the Commission and
aiready undertaken by the Governinent last year (Report, p. 495,
paras. 1532and 1533):
(b) the first five-year plan for the supply of water and electricity, which
includes:
(i)tticKu1i~;iicSclieme, :it ;iestiiii:ited coit oIL+')miiiioii for rtie
>iipl>lyof rlectricity tu [lie iiurtlit-rii~nd c~iitrnl nrezisof Suiitli
\\'est :\l:ir.:i (Ilepu1111444-451.p:m. 14;h :\$1));
..
(ii) the further development of the Ovamboland Caiials Water
Supply Scheme (linked with the Kunene Scheme), at an
estimated cost of Rq million. Strategically located canals and
pipelines wiii traverse the more densely populated areas.
(Report, p. 451. para. 1476 A (z).) One of the most important
reasons for the purchase of power from Matala, aiid for the
consequi:nt erection of a power line from that point to the
Ovainboland border (a part of tlie Kunene Scherne). is that
electric poner could thus be made available fairlv soon for
purnpiiitf water from the Kuncnc to Ovarnboland (p. 449,
para. 1476 .4(1) (i)) ;
(iii) a iiumber of dam projects for the supply ofwater to the Namas.
Darnriraj and Hereros, and also to the towns of Windhoek and
Keetmanshoop, at an estimated total cost of R16,1oo,ooo
(Report, PP. 451-453.para. 1476A (3)-(8));
(iv) boreholes and smaU dams in several Native Reserves, at an
estimated total cost of R1,55o,ooo (Report, p. 453. para.
1476A (9)): and - - . - .~.
(v) an Irrigation Scheme for the Orange River Settlement for Co-
loured ~~ersons,at an estimated cost of R1.350,ooo (Report,
p. 453. para. 1476A (IO)and p. 109,para. 422).
out; for exampli:, certain final arrangements concerning the Kunenee ironed
Scheme are now being made with the Porturnese authorities. As the
Commissionitsell:indicaies, some other matter; within the framework of
these projects will also require further consideration. COUNTER-MEMORIAL OF SOUTH AERICrl 205
Transport
8. (a) Koads.
The Commission empliasiees that, in order to give effect to several
imoortant recommendations concernine the develo~ment of Soutli Wes~ ~
:\f;i~:~,it is irnln:r.irivc t1it.r aclequnt<:Gi.ids.;is iil~i~~~>~ilo~criiiiiii-
carioiis. hc coii~tnicte~l:is sooi;sipossible. (I<eporr,11.377. 1'tr.t. i.{io,'i.)
:loart froiii111~rn:ids \\.liicIi:ire to be con~rrusred iii thc iioriii.ilcourse:
of d&elopment bythe Administration ofSouth West Africa, the follow~<
roads will, in accordance with the Commission's recommendations, be
taken in hand:
(i) Main lr'oads:Twelve roads fa11under this head, five of which will be
provided wholly or partly with a tarrcd surface. Some of these roads
will serve as main links within South West Africa itself. others as
main liiiks between the Territory and the Kepublic of South Africa.
(See also para. zo of tliis memoralidiiin in regard to the proposed
coniiecting road betweeii Runtu aiid liatima Blulilo.) The total
estimated cost of these roads is ii3z,5oo,ooo. (Keport,p. 477, para.
1501 (d).) This ainouiit is additio~ial fa the sums reflectcd in the
paragrapli 1509of the reportf th(p.i481).ive-year plari, as set out in
(ii) Iftternal Koads: Provision is made under sis heads for tlie coiistruc-
tioii of 700 miles of roads as interna1 coiinecting links iii lion-\\'liite
areas, iit a total cost of K8,4oo,ooo. (Report,p. 377, para 1370,aiid
p. 481, para. 1509 (a).) In accordaiiçc with the existiiig adiniiiistra-
tive arrangement, the 1:)cpartmeiit of Baiitu Adniiiiistrntioii ;iticl
Developmerit will, :it lcnit for the preseiit, have to :issuiiieresporisi-
bility for these roads.
The estimated expeiiditure ori ro;ids to bc constructed uiidcr the fi\.e-
year plan willtherefore amount to almost 1241inillioii.
During tlie past teriyears the Administration of Soutli West hfnca lias
undertakcii an extensive rond constructicin programine, the aiiiiual
estimates under this sub-1ic;idamounting to approximatcly K7 million
in 1963. (Keport, p. 373, para. 1343.) ln addition to the programmes
referred to in suh-paragraplis (i) and (ii), the Administration of South
West Africa will in the future coiitinue with its road constniction pro-
gramme, although on a smaller scale, in as much as some of its normal
tasks will iiowbe included in the programmes under (i)and (ii).
(b) Air Services.
The Coininission points out that distances in South West Africa are
vast aiid tliat the Territory issparselypopulatcd. Even where goodroads
are available. travel by road is tirne-consuming. hloreover, within the
framexvorkof the major road construction programme, several years will
probably elapse before some. regions are served by adequate roads.
(Keport, p. 387. para. 1374.) In order to expedite tlic first phase of
development. suitable airfields at certain points are tlierefore urgeiitly
required. (lieport, p. 495, para. 1537.) Sinlilarly, certain proposed ser-
vices, inter alia. in the field ofhealth,cannot be made available forthu'ith
to the population groups concerned unless air service facilities are
estended without delay. (Sccpara. 13,below.)
The prograinme for the construction and extension of airfields, on? 06 SOUTH WEST AFRICA
which the Governinent has decided in accordance with the Commission's
recommendations, includes-
(i) Principal Airfields: Sixteen airfields are included under this head,
three of which, namely tliose at Ruacana, Grootfontein and Wind-
hoek. are the most uÏ~entlv reauired. (Ke~ort. .*D. -,.. Dara. 1-."
(a) and (b) and p. 13j4 (3) (à).)'
(ii) Secoitdary Airfields, which are necessary for the services to be
rendered bv inedical ~ractitioners and aovernment officials. These
airfields caf :ils0 be Ûsed for emergencflandings by aircraft which
normally use the principal airfields. Thirty-one such secondary
airfieldsare contemplated. (Report, p. 3g1,~para. 1375 C) and p.
389. para. 13:~ (3) (b).)
(üi) Privale Airfields and Emergency Landing Strips: In respect of
defined ~rivzite airfields laccordiiie to the Commission there are
approximately 60 such ai;fields) a maintenance grant will be made.
(Report, p. 31)1,para. 1375 (d) and pdra. 1374 (3) (c).)
An amouiit of Il3 million is reflected in the five-year plan as the direct
contribution of the Republic to this programme. (Report. p. 481, para.
1509.)The total cost wiil naturdy be much higher (Report, p. 481, para.
1509). and the Republic will consequently make further contributions
thereto by assisting in the provision of additional funds.
(c) Railways.
The Comniission finds thnt South West Airica is well served with rail
and road transport services. For example, during the last ten-and-a-hall
,ear o.riod alone R72 million \vas soent on modernizine and im~rovine ~.
tlic raiI\vay s!.stein. 'I.lievalui: of n)lli~igstock. excliiiliiig locomutiiits.
presti11 in ~~rvii<.iî 1<33million Ir \vilsiiot iii:cesîary for South \\'cl
:\frii:i irsrIO tint1;~ii\vr,rtioii of thesi: :inioiint.. t<it-illin"Ilioi iiiillioii.
(Report, p. 381, Itara.>373 (2) (a) (iii).)
The capital investment {vasmade in spite of large working losses. The
accumulated loss for the period I April 1922to 31 March 1963,amounted
toThe Commissionrecommends that the split tariff at preserit applicable
to South West Africa be abolished and a uniform tariff svstem introduced.
It contemplates that implementation of this proposal \;il1have the effect
of increasing the annual working losses by RI million to R3,5oo,ooo.
(Report,p. 475. para. 1501 (1) (b).) The Commissionfurther recommends
that this loss should be borne hy the Republic as an annual subsidy or
contribution to the economic development of the population of South
West Africa (Report, p. 459. para. 1483) The Commission's recommen-
dations iii both of the said respects form an integral part of its proposals
for new financial and administrative relations between the Territorv and
tlitI<cl)ul)lic-zi :n:ittcr oii \\fhiclithe Co\,ernnieiit, fdr the redjuiii set out
in p~ragraphs 15and 20 to22 of tl~ismenioriiiiduni is taking iio i1t:ciiion
at tliijstaric. I'cndinc siich deciîioii the Goveriiiiient nr\.erthelc%s\r~islies
to leave doubt, &d therefore now announces, that in the eveiit of
fiscal and administrative reorganization as contemplated by the Com-
mission, the above recommendations regarding railway matters will be
implemented-aiid even the accumulated capital losses could be written
off-in al1 cases subject only to administrative consideration at the
relevant stageand adjustment, wherenecessary, of matters of detail. COUNTER-MEMORIAL OF SOUTH AFRICA 207
Mining
0. 'ClicC!ommissioiipointsout tliat there arc po~iibiliricsfor the fiirtlier
developmeiit of min in^ iiiSoiitli \Vcst .\frica. aiid iriiccordancc ~iitliiti
recommendations it his been d~ ~ ~~~-~ ~
(a) to organize the exploration and mapping of the whole Territory
(Report, p. 457. para. 1481 (a)-(ci));
.b, to assist and encouraee the inhabitants of the non-White arcas in
prospecting and expl%ting the mineral occurrences in such arcas
(Report, p. 457. para. 1481 (g));
(c) to arrange for an investigation into the mining taxation structure
in South West Africa (Report, p. 457. para. 1481 (h)). The Govern-
ment considers this investigation of particular importance, since the
.olic. has alwavs been tliat a reasonable share of the ~roceeds from
iiiining ilioiild ;;ccrue to ilie State. hv \in! uf t;isatioii'~nd ro).nltics.
fur ut111~ilti01i1i>ronlcitin-tlic inrer,xi of ,111 ttie. .uulritioi-.roiiils
in the Territory.
Iizdustries
IO. Decisions on many of the recominendations rïlatiiig to industrial
development must await the general decisions on financial and adminis-
trative arrangements (see paras. 15 and 20-zz of this memornndum).
It has, however, been decided that with the assistance of the Uantu
Investment Corporatioii special attention will forthwith be given, in
accordance with the Commission'srecommendations, to-
(a) the efficient marketing of livestock from the nortliern areas, iiiclud-
ing, inter alia, the establishment of a meat-caniiing factory, as well
as the development of the marketing of hides and the taiining and
local processing of leather (Report, p. 459, para. 1482(k) (i)) ;
(b) the establishment of a furniture factory in Ovamboland (Report,
para. 1482 (k) (ii);
.c, jute in the &vangossistanc(para. 1482 (k) (iii))h; decorticatioii of
(d) the possibility of exploiting the Salt pans in Ovamboland (para.
1482 IkJ (id):
(E) thc marketing of \r,oud-i:;iri,ingi. basket work iiiid matting. aritl
tlic impr~\~emcritof tlic!~tiomc iiidiistries (p:ir:i. rqSz (4) (VJJ::in<I
(11 tlit. ~ossibilitv of esrnblizhiii~ ii clothiii~ P~ctor\, in O\uriibolnnd
,., (para. 1482 (k )vi)). u u
Agriculture
II. In addition to the large-scale water supply schemes (sec para. 7,
above), it is the Government's aim, pursuant to the recommendations of
the Commission, to place agriculture in the Native areas on a firmer and
more scientific basis. Professional research, education and guidance will
be extended by the provision of experimental farms, (lemonstration
farms and training facilities for the non-white groups (Report. p. 309.
para. 1283 (IO)to (12)and (14)to (15)).as well as by the appointment of
professional agricultural officers to advise and assist non-white farmers
(P.309. para. 1283 (7)to (9)).208 SOUTH WEST AFRICA
Further invest:igatioii and researcli will take place in the Okavango
territorv in conn<:ctioiiwith tlie cultivation of eroundnuts and iute. two
crops dhicli are new to the inhabitants of that rerritory. but thépotenti-
alities of which h;ivc alreadv been largelv demonstrated, and which could
make~--~ s-bst~iitial cont~ ~ ~ ~n to ïhC aeric-ltural economv. (KcD. > . .
pp. 307 and 309, paras. 1269 to 1281.)
Iii order to enable the stock farmers of the northerii Native nrea to
obtain an export market for their livestock and livestock products, a
large-scale inoculatioii campaign against lung disease will be initiated,
to..ther mith strict controi mëasures to preient the movement of in-
fc~tcd ;iiiiiiinls(p. 279, p;ir;i. 1ib(1) :iii<I(zjj. IIIad<lition,~)ru\~isioi\i\il1
br; in:ide for qli;irantinc kicilitics iiitliz foriii of qiinrlntiiic fnrnis ;tii~l
quarantine abattoirs equipped with the iiecessary Cold-storage facilities.
By means of these facilities, the export of livestock, boned aiid frozen
carcasses, disirifected Iiidesand horns, etc., to meat-canning factories and
other markets iii the south will be made possible (p. 279, para. 1184 (3)
to (5)).
12. 111the pliasc of dcvelopmerit iiow einbarked upon, educatioii will
riecessarily play :in important part.
The progress already made in this field appears, ii~teraliu, from the
school attcndaiice figures and perceiitages of the various groups. Iii the
case of the \Vhite group, virtually IOO pcr cent. of the possible school
populatioii was <:iirollediri 1962 (11.223. para. 958). In the case of the
Coloured and 13a:itercommunities the sclioolatteiidance figure \vas inore
than doul~ledbetween the years 1950 and 1962, namely from 2,526 to
6.235 (p. 225, tal~leLXXIV); according to the Coinmission'scalculatioii
the latter figure represented almost go per cent. of the possible school
populatioii (p.zn.j, para.961). Asregards the indigenousgroups the atten-
dance figure was :ils0 more than doubled-from 22,659 in 1950to 47,oSS
iii 1962 (p. 227, tables LSXV aiid LSSVI). It is estimated by the
Commissioiithat tlie last-mentioned figurereprescnted about 46 per cent.
of the over-al1possible school population (p. 227, para. 964),and that the
correspondiiig pcrcentages in the northern and southern reservcs were
47 and 54 respectively (p. zj3, para. 1043).Against this background the
significance will be appreciated of the Commission's recommendations
for a s~ecial deveio~ment Dromamme ~articularlv in resDect of the in-
digeno;s groups, on; of the immediate targets being to inc;ease the atten-
dance figure to about 60 Dercent. in al1Native reserves or homelaiids by
1970 (Pyz53, para. 1048):
Dewelo$mentof EducutiorralServices. (Report, pp. 247 to 255. paras.
1023 t0 1054.)
In giving effe<:tto the Commission'srecommendations, provision will
be made for more advanced and greater iiumbers of schools, hostel
facilities and kicilities for the training of terichers. This applies mainly to
the areas of the lion-Whitegroups, where the Commissionestimates that
expenditure oii schools, hostels and traiiiiiig centres will amount to
R3,joo,ooo during the first five years. (lieport, p. 481, para. 1j09.)
Within the franiework of this general decision, the details of tlie re-
cornmendations must in the nature of things be left for decision by the
educatioiialauthorities. COUNTEK-MIIMORIAL OF SOUTH APRICA
209
rnnn\'\tt<reof EducationalServices. (Report, pp. zjj to 261, paras. Iojj to
--Y,',
In this respect also, the (;overnment's decision is in general to give
effect to the Commission's recommendations concerniii~ the extension
and improvement of the nature of the educational services, whereby
wider and better educational opportunities wiii be created, particularly
for the non-White population groups. Here again, decisions concerning
details must be entrusted to the educational authorities.
HealthServices
13- The imi~rovementaiid extension of tlie Territorv's healtli services
II:~\.ÏfuilCUIISI<IC~;tIi~m ICrciei\,ccl tlic :icri\,cattention of the Adniinis-
tritioriof suuili \\'est Alrii:i. i~ralid.pursuarit to iiirerini rccomnien~la-
tioiis of ilic Coriiiiiissiori.Sii1iitaiiti;il nriiIi:iifor es;iini>lu.:ilreiil\.
been made in the erection of 3.tubercuiosiSand gen&al hospital at 0kat;-
lia, Ovamboland, pursuant to recommeridations by the Commission on
29November 1962(seep. 493,paras. 1528-1529of the Report). The total
cost will be K1,4oo,ooo.
In pursuance of the Coinmissioii'srecommendatioris tlie Goveriinieiit
also intends to eiicourage, antl where necessary to assist, the Adiniiiistra-
tion to proceed immedintely with a comprehensive programme of
combating and preventirig discase, particularly amorigst tlie non-\Vhite
groups. Thisprogramine willinclude, itzteralia, the erection in duc course
of at least20 new hospitals and clinics for the non-\Vliite groups, apart
from tlie development and esteiision of esisting establishments (p. 201,
paras.893,SgG. 899,gor; p. 203.paras. goz,go4,gog).l'heest dirrcntated
contribution of tlie Kepublic under the five-year plan will be Ii~,joo,ooo
(p.481. para. 1509).The total cost \aiIlof course be much higher, and the
I<epublic will conse<lueiitly also provide assistance in obtaining the
further funds required. In aclclitiona greater number of district surgeons
and other medical practitioners. as well as nurses, health inspectors and
other staff will be appointed, training facilities for non-White medical
personnel established and improved, and special efforts made to obtain
an adequatenumber ofother personnel, in order to render al1the necessary
Commission (p. 199, para. 889; p. 201, paras. 892, 895, 898. 900; p. 203,
combat malaria. tuberculosis nnd other diseases wiii be initiated (p.o 201,
paras. 891, 894. 897, go1 (ii); p. 203, paras. goz (iii), 907). Ambulaiice
services, service flights by specialists and a medical radio service will
to the remotest corners of the Native areas (p. 197, paras. 873, 874ance
and 876).
Resides these direct services, missions will continue to be siibsidized iii
provided by the State (p. 199, paras. 886 and 887).s possible the services
The Government accepts that the contemplated extcnsioii of services
will involve a corresponding increase in the health estimates (p. 199,
para. 884). In this case also, clecisionsconcerning details aill have to be
takeii from day to day by the administering authorities.210 SOUTH M'EST AFRICA
PurchnseofLand
14. In several cases the Commissionproposes that White-owned farins
should be purchased with a view to including the land in contemplated
non-White liomelands. (Report, p. 87, para. 326 (b) (ii);pp. 89-93.paras.
337 (vii)and 339; p. 95.paras. 352 (v) and 353; p. IO', para. 388; pp. 101
and IO:^paras. 393 (vi) and 395.)
For the reasoiis set out in paragraph 21 helow, iio decisioiis are at
presïiit taken oii the Cominission's recommendations with regard to
co~istitiiting homelands as self-go\.eming territories. The farms referred
to above are, ho.wever, mentioned by name. and it would therefore be
uiireasonable to ieave the owiiers concerned in doubt for a considerable
time. The demascation of new borders for hoinelands, should this be
involved in eventual decisions, would also be facilitated if a considerable
part ofthe required land should then be in the State's possession.
The Government has therefore decided that in al1cases where, in the
areas indicated, lhe owner is prepared or desires to sel1his farm now, it
would be willing to enable the Administration of South West Africa. by
the provision of funds, to purchase the farm as soon as possible at a
reasonable vrice. which would include com~ensatioii for lossesand incon-
veiiiciicc. I:;iilin(::igrc~niciit pri.:~C;~IIII,edct,:riiiiiicd iii accord:iiicc
\villithc pr(i~<:dii.-:r~pplieablIIespropriarion. l'hl: l;irni+rliu- ~)iiriIi:i~ç<l
wiiibe tÏeated as cocërnment ~roL A ,. and be available for an6 Vud .ses.
subsequently detided upon.
Witli a view to inclusion in two of the contemplated homelands, tlic
Commissionproposes that Welwitschia township and townlands (Report,
p. 89. para. 337) and Gibeon township and townlaiids (Report, p. 101.
para. 393) shoulcLalso be purchased. The same considerations are applic-
able here and, in respect of private property in these towns, the Govern-
ment is prepared to make the same provision as in the case of the above-
mentioned farms.
As regards the: purchase of farms necessary for the Irrigation Settle-
nient on the Orange River for Coloured persoiis (Report, p. 109, para.
422). it has been decided to recommend to the Administratioii of Soiith
West Africa that this should be Droceededwith. and assistance will be
rendered where necessary by thé provision of funds. In this instance
nothing more is involved than an ordinarv settlement scheme for needy
and rural Coloured persons.
Appointmentof aSpecialCommitteeof Experts
15. In the inrerest of the large-scale development which the Com-
mission contemplates for the Territory of South West Africa, it proposes,
in a series of recommendations, a rearrangement of administrative and
financial relations between the Republic and South West Africa. (Report,
pp. 61-63, paras. 214-225 and 229-235, and see also, for example, p. 263,
paras. 1102-1103; p. 309. para. 1283 (3)-(5); p. 377, iutroductory part of
para. 1368; p. 425. paras. 1479 and 1480.) As regards the nature of the
administrative reorganization, the Commission's viewsare set out fairly
fully, but for the purpose of determining certain essentials of the new
financial relatioiis, it has recommended the appointment of a Special
Committee ofFinancial Experts (Report, p. 63,para. 236).\Vith reference
to this particular proposal of the Commission, attention is invited to the COUNTER-MEDIORIAL OF SOUTH AFRICA 211
messageofthe State Presideiit already conveyed to Parliament, regarding
a resolution of the Leeislative Assemblv of South West Africa.
The Government i< however, convkced that it cannot take general
decisions on either the new :administrativeor the new financial arrange-
meiits before fdi details have in both cases been carefuiiy worked out.
in order to determine what every change will involve and, particularly.
the precise manner in which wery change-over willbe effectedin practice.
'l'liisis not covered by recorninendations whicli concern only the future
forni which the administratii~n is to take.
The Government has therefore decided to acceDt the recommendation
tliat:iCommittcc of I~spt!rr~hf:nppoint~.cl,but ils tcriiis of refzrïiii~\vil1
lx mucl!ividcr. IL !vilIIXVC t8t!iic1iiircirito xii<IS~IIILrcpurt un :IIIthe
~ractical Droblernsto be taken into account when the reaÏraneement of
idministiative and financial relations is considered. This cornmittee will
consist of officiaisand persons in authority from both the Republic and
South West Africa. Their names willbe announced as soon as pÔssible.
ColouredHousing and CommrrnilyCentres
16. The Government has decided, in accordance withthe recommenda-
tions of the Commission, to make funds available where necessary for
Colouredhousing and commiinitycentres (Report,p. 481, para. 1509(4)).
D. MATTERS ON WHICH THE AU'l'HORITIES CONCERNED
WILL TAKE THEIR OWN DECISIONS
17. Many of the approxiniately 475 recommendations do not require
decisions by the Governrnent, in that they are of reçtricted application or
concern details with which tlie deuartments. bodies or nersons in charee
of the administrative impleinentâtion of the policies and programnGs
decided upon, are authorizcd to deal. Most of these recommendations,
if not al1Ôf them, contain very useful suggestions for application under
any governmental system or policy.
The recommendations whii:h involve such inatters of detail are nume-
roiis :iii<lvarird. Rcfcrenic i:hcre m:iJe to the folloiiing es;inipl~.sonly:
I~ecomrnendatioiij (wnicrning liealtli stri,iceî (I<,:porr. pp. 197-zoj):
particul;ir recornineiiJ;ition~conicrniiie ~.diicntioiiaIfacilities and servi:^^
bhich do not involve a change of systëm. such as those regarding hostels
(p. 249, para. 1033), syllabiises (p. 257, para. 1064), the training of
teachers (p. z~, paras. 1072-1078). technical and s~ecial education
(p. 259, paÎas. Ïo80'-108~).c&ditionSof service (p. z63rpara. 1111); re-
commendations for the impnwement of a~icultural services and activi-
ties (p. 309. para. 1283 (7.15)); recommendations regarding certain
airfields and air services (p. 391, para. 1375 le)-(h)); prospecting work
in CO-operationwith the Geological Survey Division (p. 457. para. 1481
fe)). Snch matters of detail will in due course receive the attention of the
appropriate authorities and do not at this stage require consideration or
decision by the Governrnent. Adiustrnents can naturally be made ac-
cordina to reauirements. Should decisions bv the Govemment or even
necessary steps will bel taken. to be essential in some instances, the212 SOUTH \\'EST AFKICA
E. MATTERS TO BE DECIDED UPON LATEK
18. Various reasonsrender immediate imnlementation of certain of the
Curiiiiiiisi~ii'j rcioiiimciidatioiij tir ii~possiblt: <ir uiideiir:ible. or
niakç it imlir3ctii:ablc for tliç Go\.<:rnnit.iittu r1.nr.h hii:ildecisions cun-
ceriiiii~ tllc conir~.t~3tç1,i IO hc taken. 'I'lie f1>110\1.111classili~3tiun. iii
wliich?here is sonie overfapping, serves as illustration. -
(a) Lotcg-TermProjecls,
19. From their very nature, and as in fact envisaged by the Coni-
niission, certain recommendations do not fall to be considered with a
view to immediate implementation, but will have to avait the lapse of
certain periods, the taking of steps which serve as preparation or which
requirc priority, and the like. As examples, reference may be made to the
recommendations concerning the Second and Third Five-year Plans.
(Report,pp. 453 and 455, paas 1477.1478; pp. 481 and 483, par:^^.1510-
15",.)
I'ursu.irit ICI111%G:U\~Ç~IIIIIL'I~ Ittiiidr :~iss.1out iii~~nrjgrn~il ji,:ibiiv~.,
tlic necc,j:ir\. .itt :iitiui\vil1lx ciwn lu rccuii~iiicn~~;~ti~~o~f~ tills II~III~C
witli a view :O dacisions at a laier stage.
(b) Recomme)rdatioicw s hicliRequireFzirlherI?ivesLigatioia cild Coiisidera-
Lion.
20. Thereare mattcrs whicli require further investigatiori, iiiform,,t' '1 1011
and consideratiori before the Government cari reacli any final decisioiis.
In several cascs rhc Coinmission itself hns proposed such iiivestigation.
A striking example is the recommendatioii regarding expert cnquiry
into essential asuects of new financial relations~ ~ ~~es~ect wliereof the
dcciiiuii of tlic(~o\,eriiinciiÏto appoint :i~oiiiiiiittee \riili widcr ternis of
rcfercn~ç li;ii;ilrt.;i<lybcun aiiiioiiiii.e<liii p3r:igr:iphij :ibo\,e. It foll<,iis
tli:it. iiutiiithirsr~diiie rhc Coiiiriiii;ioii'srccoiiiriien~l:itions:iii(liiiiiirliii
cornkittee has subGtted its report, no decisions will be takeii on the
series of recommeiidations concerning a change in the adniinistr?tive
relations betweeri the Rcpublic and South West Africa, or conceriiing a
change in the financial arrangements and relations.
Another case in which the Commission itself proposes investigation
before a decisioii is taken, appears in paragraph 1481 (II) (p. 457).
concerning minirig taxation. (See para. g (c) above.)
A recommendition resardine which the Govemment desires further
investigation and information, concerns the constmction of a coiinecting
road between Runtuand Katima Mulilo (p.377,para. 1368 (6)).Owiiigto
~roblems concernine the administration of the Eastern Caprivi, the
possibility of coristr&ting such a connecting road was carefuliy investi-
gated and consiclered in the past, but the conclusion then reached.was
that the project ~3s impracticable by reason ofgeographical and envuon-
mental factors. The Commission'spresent proposal opens up interesting
possibilities of considerable importance regarding the future adminis-
tration and dev<:lopment of the Eastern Caprivi. In the circumstances
the Government intends, before taking a decision, to initiate further
investigation ancltests in regard to the technical and economic possibili-
ties and implications of such a project under present conditions. COUNTER-MIEMOR OFIASOUTH AFRICA 213
(c) RecommendalionsStandingOverforSfiecialReasons.
21. Iiithe case of ;ert;iin recomnicnd~tioiis, tlierc is n ct~iiil~iiintiuioif
jpc~ialrc:isoiij ~11).1115not ad\,iilblc or pr;iitic:iblc tu tokc iioa1dciisioiij
;il1l.istii~c.~~ut\vitIi~t:<ii~lithe f:ict tli;it the Gti\,crniiiciitfdvuiir;il,li~
disposed &wards the trend of policy embraced in the recommendatioh
concerned.
13 omelands
The Commission's recommeodations for constituting homelands, as
self-governing areas for several non-White groups (pp. SI-107, paras.
295-416), afford an important example, These recommendations are at
present affected by considerations pertaining to the pending case which
has been instituted against the Kepublic by Liberia and Ethiopia in the
International Court at The Hague, and on which the Government states
itsattitudemorespecifically irisection F below.Apart from that, however,
there are various reasons why it is in any event not practicable to procced
immediately with the coostitiition of entities of the nature proposed. In
some instances, where the addition of considerable areas of land now in
the private ownership of White persons is involved, there are problems
which render impossible the effective demarcation and application of
borders before the State has at its disposal at least the greater portioii of
the land required. hforeover, the final series of steps which could in a
particular case lend to effective constitution, requires a measure of inter-
action between the State and the responsible authorities in the ethnic
moup concerned, in which there is reflected on the uart of the mou^ a
iiiilicieiit (Icgr<:i,f~)r~qi.ircrlnc.j.s reg:irils sciis~oi rl.sp<irisibility:ind
ncceptaiicc of the n(liniiiiirr:iti\.c :inclcconcmi; iinplii ,tiuiis, to i11ellf:iir
prospccts 01si~cicssfor tlie iinclcrt:ikino. Diiiereiit groiipi \\.iln:itiir.illy
rt:nclisiiili:isr:ig<:of ~,rtil>:irztlnes:iit iliifcrcnl tinIt:ii 'ilsoirnpoit:~rit
tli it tlicI)~O]CLIS for cinrioriiic .ciid otlicr di:\~clopiiicnrin rlie cliiferi:iit
areas should be pro~erlv under wav before the-authorities concerned
t:ikr:ovcr resl~i,ii~~bil;ty..\llthe factors iiicntioned point to .iint.nsiirc01
iri~:vitnhlc(lela)..grv:iti:rin thei:,jlof somc groiips ;iiiil:irt.;i.iand Iciftjr
ot1it.r~. Ix!foru tlic rcconimendc.d coiistitiitiori of Iiomcl;iiids ;is sclf-
goveroing eotitics i:in oiL.iir. L)uring such an intçrim ~>crio(lcirciiio-
stances iiia!. de\,clop \vliiclirender Jcsir~hle :i<ljustiii+iitsiiot forr.jee;iblc
at the present stage.
The Government wishes tc~state clearly once again that its genernl
attitude,as set out in paragraph 5 above, inter alia, involves agreement
with the Commission's findine that the objective of self-determinnt'ion
for the various pcpulntioii gr~i;~s tvill.iiitliécirciiiiist~iicespre\,:iiliiig in
tlie 'l'crritor!.. iiohc proiiiote<lby the cjt.ililishriicnt of :isingle multi-
raci:il icntrnl nuthoritv in \vhicIithe \\,li~le~~ooiilntioirir,uI<Ivot~iitinIIv
be represented, but inkch some groups wouid in fact domikate other;.
(Report, p. 55. paras. 183 to 190.) The Government also endorses the
view that it should be the aini, as far as practicable. to develop for each
population group its own homeland, in which it can attain self-determi-
nation and self-realization. (Report, p. 55. para. 190.) The Government
moreover accepts that for thk, purpose considerable additional portions
made available to certain non-White groups. And it shares the view that214 SOUTH WEST AFRICA
there should be rio unnecessary delay in taking the next steps in regard
to this important aspect of the development of the population groups
concerned. III vie.w,however, of all the abovementioned considerations,
no decisions are at present being taken on any of the recommendations
concerning the constitution of homelands as self-governing areas, the
demarcation of tlieir boundaries and changes in their forms of govern-
ment.
Administrative and Financial Relations
The Commission's recommendations concerning a reorganization of
administrative functions as between organs of the Territory and those
of the Revublic, and concerning the concomitant change in the financial
relntions,.:ire;iiis:tcdby simild; coiisidérûtions.inler olÏ.z,coiiceriiing tlie
pcnding Court cntc nlrcndy meiitioiicd, in additioii to rtic iiccd for lurtlier
cvprrt ciiquir). as alre:i~l)iIc>:iivirliin y;ir:igr;iph rj :il>i)vc.
Here also the Goveriiiiiciit dejirl'i to state clearly thrît itiiagreemciit
\vith the central \.iewof thc (:ominissioii.and bçlit.\,esttiat closer investi-
-ation \val confirm that the maior develoument ~roiects contemplated,
pxrticularly in tlie iiitérestsof tilt. rion-\vl;ite pby;iilition groups, .:in he
cirried oiit to the t>cst;idv?iitngc ttiroiigh greatcr niilinci;iland ndminis-
tr.iti\,,: coiitrihiitioiis tliercro frcniithe I<cvublic.01ttic iinturï ciivis3cr.d
in ttir r~:coiiimeniatiuii~.l{utiiitliis rcK;irJtuo, oivingto th<cuiiihin:~~uii
of i.iiiisidcr:itionsmcntioiir(l abovc no iIcci<iciii;coni:t:rii.nl:iml~lcmcnt:,-
tion are at preserit being taken.
Keci~mmendntionC sonnecled wilh the Foregoing
Ctcrtniiiof the (:ommission'srcconimendntions are nçctssarily or inselia-
rahl\~coiiiicctcd ivith tlioj~.\r.lii;h arc stniitling over for the tiine being for
the reasons iust dealt with. An exam~le of neEessarvconnection with the
('omniission:~ hcmel:iii(l~iihcnic i; nfIorde(l by ihc recommen(tnti0ns
rel3ting to ne\\. soun~ils fur local self-goveriinicnt of [lie iion-\Vhitc
inli;il,ir:iiits of to.i.iis .iiid ton.iichioj in the :ITC~S.f.<t.~>or t.P. 117-
119. p.ir,t<44j.4 5.3 r\ltlioiifih théCu\,erririicnt i; iriprinciplc st6ngl):iii
f:i\.oiirul n dc\~éI~priieiit hich \vil1:ilong thcsc line; nilord an iiicrcajiiig
measure of local self-eovernment to the non-White mouvs concerned.
decisions regarding tKe practical steps to be taken are-for [he time be/ng
stand in^ over for the above reasons. Other esamples of such connection
with the homelands scheme are the recommendition concernina a Co-
ordinating Comniittee (Report, p. 487, para 1517)and the recomhenda-
tions on the buying out of certain non-\Vhite reserved areas. (Report,
. ,.
R\, \\.a!. oi coiitrnyt. therc :irï rcçoiiinicnd:~tiuiis \vliich mn!, iii the
\i.or<lingujcd by tlie Comiiiij~ioithc coiiplecl\vith rlict:<iii<:cptf Iioni~.-
l~nds.or \\,ithcoiitrol hv 3 dr~:irtnirnt othcr tli;iiith,:uiic hitlicrto resuoii-
sible,but where the coi;nection is iiot necessary orinseparable, and where
thedevelopment.partic iuthaeintyrests oftheNativeS. cannot on the
Govemment's responsibility be held in abeyance. (See for example the
wording of paras. 1368and 1370. p. 377, regarding roads, and para. 1481
(g),p.457. regarding mining.) In such cases, adjustments must be made
administratively in the course of events, regard being had to the interim COUNTER-MEMOR IAFLSOUTH AFRICA zr5
arrangements indicated in paragraphs 24 to 26 below and, where neces-
sary, with the assistance of the Liaison Committee mentioned in para-
graph 27.
F. THE GOVERNMENT'S ATTITUDE CONCERNING THE
CASE PENDING BEFORE THE INTERNATIONAL COURT
zz. According to present iiidications, the hearing on the merits of the
case pending before the International Court of Justice, and already
referred to above (para. ZI), viillprobably occur during 196j.
It is an established principle in regard to pending cases that a party
should refrain from action wliich may prejudice the alleged rights of the
other party or parties, that is to Saytliose rights to which daim is laid in
the case. The Statute and Rules of the International Court specifically
provide that the Court can. of its owii accord or on tlie application of a
partv. issue interim measures with a view to ~reventinr such action.
Sot\vith~tandirig its \vr.ll-krioiviireser\,aiioiis cori~erniiig,tutenldn.
tlie jurisdiitioii of tlie Court. the Go\~eriimeiit nhides bv its decisioii
announced in Parliament last vear. namelv to particiDate in the pro
cccdingson the merits and to présentits casétherebn to the Court. Coise-
qucntly it is the Government's intention to observe tlie said principle and
tlius to obviate unnecesçarv further com~iication of the case throueh
proceeiliiigscoiiceining posi;l:le interim nie~siir,.~.Cntitlicnst:has becn
ci,iicludt:<l.the Goi~eriiiiicwill tliercforc refrain froni action ir.liicliInn!.
bc rey:<rrle(l-e\.e~i theoretic;ill\,-asdetrinicrirnlur ~reiudicinl to the
allegëd rights of the Applicant States, or which may itin&essarily aggra-
vate or extend the dispute before the Court. This attitude is in eiitire
accord with the sub iudice ~rinci~le. which has been ohserved bv the
liepublic even where'it wa5 not ;espected by others, for example iii
proceedings at the United Nations.
The most important exam~les of recommendations affected bv the
aborementioned consideratiok have already been mentioned in >ara-
graph 21 above, iiamely thosi: relating to the constitution of hqmelands
as self-eoverninr areas forthe various non-Whitemouos. thoseconcerninr
a reor@nizatiorï of administrative functions and new financial relations -
between the Territory and th,: Republic, and those which are necessarily
or inse~arablv connëcted with sÔmeor other of the aforeeoine. It has
:ilrc:itli bcrii i;i(lic:itcdiial1tliesecn~es.iiot\i~itlis~niidithc Cu\.ern-
merit's:!grcenient ~vitlithe hro:irl trend of 1)olicvcoritaincdIItlic recorii-
mendatigns. there are also otlier reasons w'hvii is necessarv or desirable
that implementation and deci,jionsthereon should stand ovgr for the time
being. Considerations relatina to the Court case therefore do not for the
preGnt make a practical diffërence in these respects.
Another example of reconimendations which might be affected by
reason of potential extension or aggravation of the dispute, is that con-
cerning the supply of liquor lo Natives. (Report, p. 487, para. 1513.) A
decision on this recommendation therefore also stands over until alter the
conclusion ofthe Court case.
The considerations. aoart from the Court case. which have a retarding
effect on the impleme~~ationof and tlie taking of decisions on the abovc
mentioned recommendations, will doubtless continue to apply in some
respects even when the case has been concluded. In other Îêspectstliey216 SOUTH WEST AFRICA
may possibly have lapsed or been overcome at an earlier stage. In the
latter event, deci'ions and implementation will iievertheless be held over
until tlie conclusion ofthe Court case.
G. FIXAXCIAL I&lI'LICATIOXS OF DECISIONS AXD IXTERIhl
ARRAXGEMEXTS FOR THEIR IMPLEAIEXTATIOX
The Five-Year Plan
2-. It willbe clear from the foree,.ne that the Government has decided
to commcni:e iinii~e<li;itrly\\.itli tlir: impli:iiient;itioii of iiiujt of the re-
cuininc.nd;ttiuris\i,liicIiare stiriiinarized Liytlir Coiiiniijsiuri,togctlier \rith
tlicir fiiiaricinliriil>lic;~ti<iriisii.idcr [lie Iiirit Iii\.c-ye;arPlan. (Kcport. 11.
'+si p,ar:i.Ij03,'rhe portioiiof the ti\e-!t!ar pl;in\rlii~li\vil1bcuntlcriakrii
\vil1tht:rcfc,rc:rt!i)i.,:;.I;iinotiiit of .it lc:x,tIO'11111linotirtltc l~~iiiis,f
the Commission's estimates (as against the RII~ million contemplated
by the Commission, of which at the most Rg million is inseparably
connected \vitIl the creation of homelands and is therefore provisionally
left in abeyance).
This amount is of course not an indication of the total financial burden
which will be involved, hy wny of loans or contributions, in the contem-
plateà developm<:ntof South IVeçtAfrica over the next five years. Para-
graph 1509of the report shows thatan annual net shortfall will also have
to be met. Over the five-year period, and on the basis of the Commission's
comprehensive recommendations, the expected shortfall will amount
to more than Rq.1million. This raises the total amount to be financed
from South African and South West African sourcesta over R15o million.
But eveii this ainount does not accurately reflect the compass of the
whole development programme for South West Africa, since a consider-
able portion of the Administration's estimates \vil1over the period in
question also concern development projects.
Interiin lrinancial and AdmitzistratiucArrangements
24. In its recommendations the Commission envisaged that the large
development projects which are contemplated should be financed in
accordance xvitha new financial relationship which, inter alia, was to be
investigated and determined by a committee of financial experts. (See
para. 15 above.) The Commission also envisaged that, in most cases, the
projects would be dealt with by the well-equipped state departments of
the Republic. (Seepara. 15above.) The contemplated new arrangements
in both fields,financial and administrative, can however, for the reasons
dealt with in paragraphs ~j and 20 to 22 above, not beput into operation
for the time being. It is consequently necessary to indicate how the work
is to be carried out in the transitional period, and by which means the
fundsare to be niade available in tlie meantime.
25. Res~onsibilitv for the im~lementation of decisions \vil1rest with
tlir:;\rlinii;isrrxr>r and tlir:,\diiiini;tration of Suutli \\'est Afriç:ior tiitli
the (;overiinieiit of the Reptil~lic.<lel~en<liiiiipon \vliicliauthority is nt
~lresentreîporisil,le furm:irtrrjof tlie rel<:\.~ntnature. In cases \vliey the
:\dmini>tr:ition c.1Souili \\'est,\frics isnot eqiiippwi to [;il;:actionitielf.
or for otlier rr.:ii.inj prcfcr. to :ippoint ::ig?iitto c;irry out the \i.ork. it COUNTER-MEMORIAL OF SOUTH AFRICA 217
can enlist the CO-operation of expert bodies, such as the Industrial
Development Corporation and the Electricitv SUDD~V . . Commission in
coiincciion u,itli [iii:I<IIIICII!~v:itter :incl Clccincit)~siheiiie~, ur of th,:
S:iriuii;il '1'r:irii~t:oiiiriii~~i<~iir. ~\,cii of n stare dcpnrtin~:iof tlir:
I<ei)iiblic,îuclas tliz I)cuiirinient of 'frniis~ort. for cx;iniule. in coiiiiec-
tion with the constmctiôn of main roads'or airports. cegislation has
already been passed this Session enabling the Electricity Supply Com-
mission to operate beyond the borders of the Republic, in accordance
with the State President's announcement that, where necessnry, legis-
lation arising from the report would be iiitroduced.
26. The fUndsrequiredfor the projects will as far as possible be drawn
from the esisting sources. Advances and shortfalls wnllin the meantime
be covered by the Republic by means of loans to the Administration,
the interest onwhich will becapitalized. Should financial and administra-
tive rearraiieements in accoidance with the reoort be acce~ted and
:I~~>I~c :fIci'tlic (:oniniit~ccof lxperts II:ISs111)n;itt~d11s~~:co~III~I~:II~I,~-
titgiis.rt:sl~.)iiîil,ilit\.will f~rtlic grCater p;irt <lt:\.t81\.oeii tlic Govcrnniciit
of th2 I<~i~til)li'l'Illnttcr will. as urouoscd iitlie rei~ort.iiiiilcrt;ikc rlie
further eXpenditure concerned from ali the sources t6en at its disposal-
which implies that shortfalls met in such circumstanceç from sources
within the Republic will not subseqiiently be recoverable. Accumulated
loan obligations incurred by the Administration of South West Africa
as mentioiied above, can be written off when the stage of financial and
administrative reoreanization is reached.
The Minister of finance~his announced in his Budget Speech that an
programme in South West A[;&.lr put aside this vear forthe develo~ment
Loans raised elsewhere for the purpose of financing the major projects,
such as the Kunene water aiid elcctricity schemc, will from the outset
be dealt with \>ythe Governnient of the Republic.
Li'nisoizComn~ittee
27. $1 speciiil trinp0r:ir!. cominittcc \\,il1I>cappoirited tu serve ns .i
link betti.ecii tlie Cenrr;il Govt~riimr:iitniid the :\dmiiiiitr:itiof Soiitli
West Africa, in order to ensure the smooth working of the abovemen-
tioned intenm arrangements. Where necessas., the committee willfurther
make special arrangements for the provision of expert assistance and
information, technical and other staff, apparatus and implements, etc.
The composition ofthis Liaison Committee will also be announced in the
near future.- -
(1) Geography. history Book III (the nhole) Chapters 1and II (pp. 9-43). 1 -
and population Book 1\'. Chap. III.
11. PP. 399-403
(2) Policies, including Book IV. Chapters IV- Dealtwith under Form of Para. 21
separate development \'II, II, pp. 404-488 Government and Admin-
istration (Part C)and
Concluding Review (Part
XI. See in oarticular
(3) Agriculture and land Book V, sec. B. Chap. Para. ~r
settlelnent 1-v. 111,pp. 2-39 (pi. 267-311).
(4) Fishing industry . . . Book V. sec. C.Chap. Chap. XXIII, paras. 1322- -
II.III, pp. 42-46 '323 (PP. 345-353)-
(5) hlining and minerals . Ijaok V, sec. C, Chap. Chap. XXII. paras. ,-13- Para. 9
III. II1,pp. 47-63 13;i (PP.335-343).
(6) Railivays and harbour! BookV. sec. C. Chap. Chap. XXVI, para. ,373 Para. 8 (cl
IV, 11I.p~. 64-69 (pi. 377.387).
(7) Labour conditions in I3ookV. sec. C, Chap. Chap. XXII. para. 13zrD -
the Police Zone VI, III, pp.80-99 (,. -4-.:Chap. XXSII.
para 15x8 (P .87).
(8) Government and citi- Bank V. sec. E. Chap. Cliap. III-X (pp. 45-119). Paras. 15, 21
zenship (including lo- I-IV,III,pp. 104-rg and 22
cal -overnment) lsee also item2
above)
(9) Local government . . Book V, sec. E, Chap. Chap. IX and X (pp. i15- Para. zr
III.II1,pp. 167-1g3 "9). l
(IO) Rights of residence . . BookVI, Chap. III, Chap. VI-X (pp. 67-119). Paras. 21
111,pp. '231-297 and 22
(II) Education . . . .. . Book VII. III (whole) Chapters XVI-XVII (pp. Para. 12 (for
219-263). (Training of training of
nurses dealt with under nurses. çee
Health, part F. See inpar- para. 13).
ticular. para. 653 (p. 159):
par=.745-746 (P. 175):
paras. 781.783 and 789
(p.18,); paras. 798 and
801 (p. 183.185): para. 810
(p. 185); paras. 8x4 and
823 (p. i87);paras. 845-
850 (p. '91); para. 889 (fi)
(P. 199): paras. 892 (b).
895 fb). 898 fb)and go0
(b)(p. zor) ;paras. 903
fb).905 (b), 908 (fi) 910
(b)(P. 203): para. 913 (6)
(P. 205). Annex C
LIST OF THE RELEVANT DOCUMENTATION
REPUBLIC OF SOUTH AFRIC.*-REPORTS OFCOMMISSIONS
R.P. No. 1211964 Reportof the Commissionof Enquiry into South
\Vest Afnca Affairs.
Books VIII-X