Abbreviated reference:
I.C.J. Pleadings, South West Africa,
Vol. VI
Référenceabrégée:
C.l.J. Mémoires,Sud-Ouest africain,
vol. VI
Sales number
N° de vente315Ail rights reserved by the
International Court of Justice
Tous droits réservés par la
Cour internationale de Justice SOUTH WEST AFRICA CASES
(ETHIOPIA v.SOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)
AFFAIRES DU SUD-OUÈST AFRICAIN
(ÉTHIOPIE cAFRIQUE DU SUD;
LIBÉRIA c.AFRIQUE DU SUD) INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIAvSOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)
VOLUME VI
1966
COUR INTERNATIONALE DE JUSTICE
MÉMOIRES/PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIEcAFRIQUE DU SUD;
LIBÉRIAcAFRIQUE DU SUD)
VOLUME VIPRINTED IN THE NETHERLANDS The present volume contains the Rejoinder (Parts III (sections
F-1) to VII) relating to the South West Africa cases. The proceedings
in these cases, which were entered on the Court's General List on
4 November 1960 under numbers 46and 47, were joined by an Ortler
of the Court of 20 l\fay 196! (South West Africa, Order of 20 May
r96r, l.C.]. Reports r96r, p. 13).Two Judgments have been rcndered,
the first on 21 December 1962 (South West Africa, Preliminary
Objections, Judgment, l.C.J. Reports r962, p. 319), and the second on
18 July 1966 (South West Africa, Second Phase, Judgment, I.C.J.
Reports r966, p. 6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination ofthe present edition.
\Vhere the reference is to another volume of the present edition,
the volume is indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume reproduit la Réplique (Parties III (sections
F-I) à VII) déposéedans les affaires du Sud-Ouest africain. Ces af
faires ont étéinscrites au rôle généralde la Cour sous les n° 46 et
47 le 4 novembre 1960 et les deux instances ont étéjointes par or
donnance de la Cour le 20 mai 1961 (Sud-Ouest africain, ordonnance
du 20 mai r96r, C.1.J. Recueil r96r, p. 13). Elles ont fait l'objet de
deux arrêtsrendus le 21 décembre 1962 (Sitd-Ouest africain, excep
tions préliminaires, arrêt,C.I.J. Recueil r962, p. 319) et le 18 juillet
1966 (Sud-Ouest africain, deuxième phase, arrêt,C.1.J. Recueil r966,
p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit d'un
renvoi à un autre volume de la présente édition, un chiffre romain
gras indique le numéro de ce volume.
La Haye, 1966. TABLE OF CONTENTS
7. Rejoinder filed by theGovemment of the Republic
of South Africa (continued)
Page
Part III (continued) . . . . . . . . . l
Section F. Government and citizenship 1
I. Introduction . . . . . . . . . . . . . . . . 1
Il. Analysis and evaluation of Applicants' basic attitude
as now set forth in the Reply . . . . . . . . . . 4
III. Suffrage and participation in territorial government II
IV. Govemment within the Native tribes and Native
reserves. . . . . . . . . . . . . 13
V. General administration (civil service) 19
VI. Local government 23
VII. Conclusion . . 27
Section G. Education . . . . 28
Chapter I. Introduction . . 28
Chapter II. General policy. 35
A. Introductory . . . . . . . • . . . . . . . 35
B. Applicants' allegations regarding general policy 35
C. Categorization . . . . . . . . . . . . . . 53
Chapter III. Nature of education in the territory. 64
A. General . . . . . . . . . . 64
B. Segregation by race . . . . . . . , . . . 65
C. Separation by tril:;ie . . . . . . . . . . . 77
I. The charge that the policy "thwart[s] the social
progress of the 'Natives' ". . . . . . . 81
II. The allegation that Respondent's policy is "im
III. The allegation that Respondent's policy has "at least 99
four major defects" . . . . . . . . . . . . 103
IV. The allegation that the "evils" of the policy are
"compounded in South Africa at the university
level'' . . . . . . . . . . . . . 105
D. Limitation otobjectives in syllabus . . • . . . 106
I. The role of practical subjectinprimary schools. . 107
Il. Attitude of the permanent mandates commission. 108
III. Reports and speeches referred ta by Applicants . . 109
IV. Primary school courses . . . . . . . . II5
V. Secondary school and other courses. . . II7
Chapter IV. The extent ofeducation in the territory 121
A. General . . . . . . . . l2I
B. Laisser-/aire . . , . . . 121
C. Compulsory education . . 131
D. Disparity in expenditure . 137
E. Conclusion . . . . . . . 147X SOUTH WEST AFRICA
Page
Chapter V. Separate education as viewed by United Nations
political organs . . . . . . . . . . . . . . . . . . . I49
A. lntroductory . . . . . . . . , . . . . . . . , . . I49
B. The proposition that separation is incompatible with the
"broad goals of education" . . . . . . . . . . . . . 151
C. The proposition that separation is incompatible with
"the basic meaning of education" . . . . . . . . . . 151
D. The proposition that separation is incompatible with
"the principle of equal opportunity". . . . . . . . . 152
E. The proposition that scparation is incompatible with
"the principle of racial equality" . . . . . . . . . . 156
F. The proposition that separation is incompatible with
"the goal of unification of the territory" . . . . . . 157
G. Alleged consideration of practical difficulties . . . . . 159
H. Alleged compliance with United Nations requirements 161
I. Somaliland under ltalian administration 163
Section H. The economic aspect . . 166
Chapter I. Introduction . . . . . . . . . . 166
Chapter Il. General considerations . . . . . 172
A. lntroductory . . . . . . . . . . . . . . . . . . 172
B. Applicants' allegations regarding the "structural foun
dations" and "prernise underlying" Respondent's policy
of apartheid. . . . . . . . . . . . . . . . . . . . 172
C. Migratory labour in South West Africa, and the implica-
tions thereof . . . . . . . . . . . . . . . . . . . 184
1. Introductory . . . . . . . . . . . . . . . . . 184
IL The rote of rnigratory labour in the economy of South
West Africa . . . . . . . . . . . . . . . . . . 184
III. Migratory labour in other countries. . : . . . . . 192
IV. The extent to which the labour force in South West
Africa is in fact migratory. . . . . . . . . . . . 199
V. Future developments regarding the system in South
West Africa . . . . . . . . . . . . . . . . . . 200
VI. Applicants' criticisms of the migratory labour sys-
tem operating in the territory . . . . . . . . . . 202
D. Applicants' allegations regarding low wages in the ter
ritory . . . . . . . . . . . . . . . . . . . . . . 209
I. General . . . . . . . . . . . . . . . . . . . . 209
Il. Comparisons of the wage level of the Native labour-
ers of South West Africa with that of Native em
ployees in other territories . . . . . . . . . . . 213
III. Comparison of the wage level of the Native labour-
ers with that of the European employees in the
territory . . . . . . . . . . . . . . . . . . . 214
E. Rights of the Natives in respect of the acquisition and
occupation ofland. . . . . . . . . . . . . . . . . 223
F. The position of the Natives in the mining industry 228
G. The opportunities of employment for Natives in the
railways and harbours administration . . . . . . 235 CONTENTS XI
Page
H. Respondent's alleged policy of "laisser-faire with respect
totribalism" . . . . . . . . . . . . . . . . . . . 238
I. Applicants' allegations regarding economic conditions
in dependent territories 24I
Chapter III. The reserves . . . . . . . . . . . . . . . . 248
A. Introductory . . . . . . . . . . . . . . . . . . . 248
B. Development of the northem reserves outside the Police
Zone ....................... 248
C. Land allocation and the alienation of land to Europeans,
and the alleged graduai extension of the Police Zone.. . 255
D. Measures taken for the relief of persons affected by
drought . . . . . . . , . . . . . . . . . . 266
E. Alleged discrimination in social welfare measures 269
I. The Pneumoconiosis Compensation Act . . 269
IL The \Vorkmen's Compensation Act . . . . 270
III. The Social Pensions Amendment Ordinance 272
Chapter IV. The Police Zone. . . . . . . . . . 274
A. Introductory . . . . . . . . . . . . . . . . . . . 274
B. Admission to employment and access to vocational
training . . . . . . . , . . . . . . . . . . . . . 279
C. Measures allegedly having the effect of compulsion to
labour . . . . . . . . . . . . . . . . . . . . . . 287
D. Freedom of association and the right to organize . . . . 295
Chapter V. Conclusion . . . . . . . . . . . . . . . . . 300
Section I. Security of the persan, rights of residence and freedom
of movement. . . . . . . . . . . . . . . . . . . . . . 303
Chapter 1. Introduction. . . . . . . . . . . . . . . . . 303
Chapter II. General nature and effect of Applicants' allega-
tions . . . . . . 309
A. Introductory . . . . . 309
B. The Memorials . . . . 309
C. The Counter-Memorial . 3ro
D. The Reply . . . . . . 312
Chapter III. Respondent's basic reserve policy . 315
Chapter IV. Provisions supplementing and rendering effective
the reserve policy. . . . . . . . . . . . . . . 324
A. General . . . . . . . . . . . . . . . . . 324
B. Rights of residence in the Police Zone generally. 324
C. Rights of residence in urban areas . . . . . . . 326
D. Passes and pennits . . . . . . . . . . . . . 333
Chapter V. Measures not related to the reserve policy. 340
A. General . . . . . . . , . . . . . . 340
B. Egress from and entry into the territory 340
C. Vagrancy and idleness . . . . . . . . 341
Chapter VI. Conclusion . . . . . . . . . . 350
Part IV. Alleged violations by Respondent of Article 4 of the man-
date . . . . . . . . . . . . , . . . . . . . . . . . . . 35Ixn SOUTH WEST AFRICA
Page
Chapter L Introduction . . . . . 35I
Chapter Il. Statement of the law. 354
A. Introductory . . . . . . . . . . 354
B. The purpose of the military clause . . • . . . 357
C. "The plain meaning of the clause on its face" . . . 363
D. The views of the Permanent Mandates Commission 364
Chapter III. Statement of facts . . . . . • . . . . . 369
A. The Regiment Windhoek. . . . . . . . . . . . 369
B. The military landing ground in the Walvis Bay area. . . 374
C. The alleged "military camp" or "military air base" in
the Kaokoveld . . . . . . . . . . . . . . . . . . 376
D. Military activity in general . . . . . . . . . . . . . 379
Chapter IV. Respondent's answer to Annex 9 of the Reply
supplementary material with respect to alleged violations
of Article 4 of the mandate . . 382
A. General . . . . . . . . . 382
B. Paragraph (1)of the Annex. 382
C. Paragraph ~2)of the Annex. 383
D. Paragraph 3) of the Annex. 384
E. Paragraph 4) of the Annex. 386
F. Paragraph [S) of the Annex. 387
G. Paragraph 6) of the Annex. 387
H. Paragraph 7) of the Annex. 388
I. Paragraph (8) of the Annex. 388
Chapter V. Conclusion . • . . . . • 390
Part V. Alleged violations by Respondent of Article 2 (1) of the
mandate and Article 22 of the Covenant . . . . . . . . . . 391
Chapter I. Introduction. . . . . . . . . . . . . . . . 391
Chapter II. Respondent's alleged "purpose or motive to in-
corporate or annex the territory" . . . . . . . . 393
Chapter III. Respondent's alleged policies and acts . . . . . 401
A. General . . . . . . . . . . . . . . . . . . . . . 401
B. Confennent of South African citizenship . . . . . . . 403
C. Inclusion of representatives from South West Africa in
the South African Parliament. . . . . . . . . . . . 405
D. Administrative separation of the Eastern Caprivi Zipfel
from the rest of South West Africa . . . . . . . . . . 409
E. Vesting of South West Africa Native reserve lnad in the
South African Native trust . . . . . . . . . . . . . 414
F. Transfer of administration of Native affairs to the Min-
ister of Bantu Administration and Development . . . . 416
Chapter IV. The allegation that Respondent's policies and
measures are incompatible with its duty to promote condi
tions under which the inhabitants of the territory may
progress toward self-detennination . . . . . . 419
Chapter V. Conclusion . . . . . . . . . . . . 42r
Part VI. Alleged violations of Article7of the mandate 423
A. Introductory . . . . . . . . . . . . . . . . 423 CONTENTS XIII
Page
B. The legal basis of Applicants' charge. 423
C. Applicants' statement of fact . 425
D. Conclusion ... 428
Part VII. Submissions 429
List of documentation.
Table of cases cited. . 430
472 7. REJOINDERFILEDBYTHE GOVERNMENT OFTHE
REPUBLICOFSOUTHAFRICA(continued)
PART III
(continued)
Section F
GOVERNMENT AND CITIZENSIDP
1.Introduction
I. In the Memorials Applicants dealt wit1 the complex of political
rights under a number of headings , and ultimately formulated the
following charge:
"In sum, by law and by deliberate and consistent practice, the
:1\fandatory has failed to promote to the utmost the development
ofthe preponderant part of the population of the Territory in regard
to suffrage or participation in any aspect of govemment. It has not
only failed to promote such development to the utmost, jt has made
no notable effort to do so. To the contrary, the Mandatory has
pursued a systematic and active program which prevents the
possibility of progress by the 'Native' population toward self-respect,
responsibility or skill in any aspect of citizenship or govemment,
2
whether Territorial or local or tribal ."
In essence the charge involved the imputation of improper motives
to Respondent, i.e., that its powers of legislation and administration were
exercised with the unauthorized purpose of preventing progress of the
Native population with regard to poli3ical rights, and even of reversing
possibilities of progress for them •
2. In the Counter-Memorial Respondent, considering Applicants'
allegations as a whole, submitted that they appeared to emanate from an
unexpressed premise, viz., that-
"... in the political sphere, as well as in other respects, there ought
to be no distinction or differentiation between varions inhabitants
of the Territory, and that the whole population is to be treated as
an integrated unit, with identical rights and facilities for ail 4".
Respondent also pointed out that Applicants in no way attempted to
substantiate such a premise, and referred to the full reasons given for its
submission that such a premise was wholly unfounded, in fact and in law •
Respondent in addition strenuously denied the imputation of improper
motives on its part-which, as has been shown 6, was the essence of the
charge in the Memorials-and dealt fully and in detail with the manner
and. extent of participation by the Native population in the field of
1
Vide III, p.104.
3 I, p. 143.
Vide also III,p. rn5.
• Ibid.,p. rn5
6 Ibid.,pp. rn6-107.
Vide para. r, supra. SOUTH WEST AFRICA
2
political rights, giving reasons for the differentiation between the various
population groups in relation to aspects of government and administra
tion, and indicating the contemplated lines of advantageous future
1
development .Respondent specifically stated that it contemplated-
"... an evolutionary growth of the traditional institutions of the
various groups in a manner which would permit each to develop
towards possible self-determination ... 2",
and that it would, as soon as the Odendaal Commission's report had been
considered,
"... proceed as fast as is practicable with the development of the
political institutions of the Natives, towards attainment of the
ultimate aims and ideals of the sacred trust 2".
3. The Odendaal Commission in its report expressed the opinion that
"... the various·non-White population groups, except the Bushmen
forthe present, have reached a stage of development where a larger
measure of self-government and judicial administration can be
entrusted to thern in their respective homelands, \vith due regard
to their existing forms of government and systems of judicial
administration, but supplemented according to the requirements of
changed circumstances and needs and with a view to the greater
participation of these groups in the further development of their
3
homelands ",
and recommended a large rneasure of self-government for such Native
groups, covering the greater part of the field of legislation as well as
general and judicial administration. It may be convenient to refer here
briefly to the following recommendations of the Commission in this re
gard:
(a} that a Legislative Council be instituted for each Native group,
excepting the Bushmen and the Tswana, in its homeland, consisting
of bath non-elected and elected members of the said group--the
non-elected members to represent the present functioning rulers,
and to provide a link with the traditional type of political institu
tions, and the elected members, the number of whom is at first
not to exceed 40 percent. of the total Legislative Council, to intro
duce a modern method of suffrage \
(b) that the Legislative Council gradually take over ail legislative
authority and administrative functions, excluding Defence, Forei~n
Affairs, Interna} Security and Border Control, Posts, Water Affairs
and Power Generation, and Transport (with reasonable protection
4
of local transport undertakings) ;
(c) that the executive power of the Legislative Council be vested in an
Executive Committee, the membership of which is to vary from
group to group 4 ;
(d) that the franchise for elected members of the Legislative Council
be granted to ail male and female members of the group over the
age of I8 years 4;
1
Vide Il, pp. 404-488 and III, pp. 104-194.
z Illp. 131.
4 R.P. No. 12/1964, p. 81 (para.296).
Ibid.,pp. 83, 85, 87, 93, 97 and 99. REJOINDER OF SOUTH AFRICA 3
(e) that, for the purposes of the administration of justice, the Legisla
tive Council institute both inferior and superior courts, the com
position and jurisdiction of such courts to be determined by the
Legislative Councîl 1;
(/) that, in regard to general administration or civil service, the
functions of Respondent's Department of Bantu Administration
and Development within the Native homelands, also gradually be
2
taken over by the aforementioncd homeland authorities ;
(g) that, in regard to non-White urban areas in the Police Zone, urban
non-White councils be established to represcnt non-White residents
of the areas in question on an elective basis, such councils to
contain also representatives of the authorities in the homelands of
the particular groups, and to exercise more advanced functions of
local self-government than are at present entrusted to Advisory
Boards 3•
4. The Respondent Government indicated in its White Paper (Memo
randum) on the Commission's report that it "... accept[ed] the Report
in broad principle", cxplaining that it thereby-
"... accept[ed] the main features of the argument and recommen
dations 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 well-being and progress of its inhabitants 4".
More explicitly it said the following regarding the Commission's recom
mendations in the political sphere:
"The Government wishes to state clearly once again that its
general attitude, as set out in paragraph 5 above, inter alia, involves
agreement with the Commission's finding that the objective of
self-determination for the various population groups will, in the
circumstances prevailing in the Territory, not be promoted by the
establishment of a single multiracial central authority in which
the whole population could potentially be represented, but in which
some groups would in fact domina te others. (Report, p. 55, par. 183
to 190.) The Govemment also endorses the view that it should be
the aim, as far as practicable, to develop for each population group
its own Homeland, in which it can attain self-determination and
self-realization. (Report, p. 55, par. 190.} The Govemment moreover
accepts that for this purpose considerable additional portions of the
Territory, including areas now owned by White persans, should be
made available to certain non-White groups. And it shares the view
that there should be no unnecessary delay in taking the next steps in
regard to this important aspect of the development of the population
groups conccmed s."
5. Taking into consideration the sum total of Respondent's exposition
in the Counter-Memorial and the Supplement to the Counter-Memorial,
read with the relevant recommendations contained in the Odendaal
1 R.P. No. 12/1964, pp. 83, 85, 87, 93, 97 and 99.
1 Ibid. Videalso p. 6I (para.222).
3 Ibid.,pp. n7-rr9.
• IV, p. 203.
' Ibid.,p.213. Asto temporarily holding in abeyance decisions on the exact prac
tical recommendations in these respects, vide also, p213-216.4 SOUTH WEST AFRICA
.Commission'sreport, it is immediately apparent that Respondent's past
and present attitude and intentions totally destroy Applicants' original
1
charge relating to political rights . Itis quite clear that the Native popu
lation is, within the framework of Respondent's general policy, being,
and will be, assisted to develop self-respect, responsibility and skill in all
aspects of government and administration, basecl on full respect for their
own cultures, traditions and institutions.
6. In the light of the aforegoing, it is not surprising to find that Appli
cants' statement of their case concerning Government and Citizcnship
in the Reply exhibits a major shifting of ground when compared with
the Memorials. They are nnable to persist with the allegation that Res
pondent is, with oppressive intent, preventing the Natives from acquiring
any significant political rights at all. The advancement of the Bantustan
programme in South Africa itself, particularly the developments in regard
to the Transkei, and the ûdendaal Commission's report and Respondent's
reaction thereto in regard to South West Africa, made it clear that Res
pondent was allowing to the Natives, and assisting and encouraging them
to acquire, all the things advocated by Applicants in the Memorials, i.e.,
progress towards self-respect, responsibility and skill in ail aspects of
citizenship and government. The only difference was that these facilities
would be acquircd by the members of each group in a homeland of their
own, that thcre would in South West Africa be no central territorial
legislature and govcrnment. Applicants therefore had to find a new
basis for attacking Respondent in the altered circumstances, and this
explains their altcred attitude in the Reply. The change regarding Gov
emment and Citizenship may broadly be said to be in conformity with the
same feature of their case gencrall y regarding their submissions Nos. 3 and
4 2, save that, to the extent that they may still be said to be basing their
case on allegations amounting to bad faith on Respondent's part, they do
so very faintly and half-heartedly, as will be shown. An analysis and
evaluation of Applicants' new approach in the Reply, and of the con
tentions advanced in support thereof, are given in the next succeeding
group of paragraphs.
Il. Analysis and Evaluation of Applicants' Basic Attitude as now Set
Forth in the Reply
7. The first feature to which Respondent wishes to draw attention is
that the subject of Government and Citizenship is, in the order of priority,
relegated to third position, after Education and the Economie Aspect. In
the Applications this complaint came first 3•In the Memorials it was
shifted into second place, after the economic aspect. Now education cornes
into the first position, and the chapter on Government and Citizenship
goes clown into third place. This procedure may be a naive attempt at
obscuring the fact that political domination of the whole of South West
Africa by African Natives is the overriding goal of the present proceed
ings 4.Or it may be due to realization on Applicants' part that, in this
most crucial aspect of the whole case, they have no evidence of any weight
1 Vide para. ·r, supra.
2
Vide sec. A,paras. I-ro,supra.
3 Vide I,p. 6,para. 4.
• Vide II,pp. 446-448 (paras. 30-34). REJOIN"DER OF SOUTH AFRICA s
which could substantiate the charge of deliberate oppression originally
brought against Respondent 1•
. For the present Respondent merely wishes to emphasize that in the
task of achieving the objectives of the Mandate in the difficult circwn
stances existing in South West Africa, a fair and just solution in the politi
cal sphere, for everybody concemed, is obviously the matter ofoverriding
importance. Educational and economic policies, especially in a territory
with such a diversity of population groups as South West Africa, cannot
be deterrnined in vacuo, but must necessarily be in accord with the policy
found to be desirable in regard to the political future ofthe various peoples
-the deterrninative factor being whether the objective is an integrated
community, within the framework of a single territorial unit, or differen
tiated development of the various groups towards separate self-determi
nation for each. The same considerations as for Education and the
Economie Aspect apply to policy (especially aspects in serious controversy
in this case) pertaining to Security of the Person, Rights of Residence
and Freedom of Movement.
Incidentally, the overriding importance of sound political development
may also be illustrated with reference to events in other territories in
Africa. No educational or economic policy can compensate, e.g., the
unfortunate people of Rwanda for the utter chaos and misery which have
resulted from the brcakdown of the political system decided upon for
that territory 2.
Respondent, for the above reasons, deals first and foremost with the
subject of Govemment and Citizenship. Because of Respondent's con
viction that separate development is in this crucial sphere essential for
promotion to the utmost of the well-being and progress of the peoples of
South West Africa, it follows naturally that it has correlated its policies in
the other respects mentioned with the basic objectives and requirements
of separate development-failure to have donc so would indeed have con
stituted a dereliction of duty on its part. It follows further that policies
pursued in the other spheres in question, can only be explained and
understood in proper perspective after thorough consideration of the
relative advantages and disadvantagcs of the rival policies in thepolitical
sphere. \Vhen, therefore, Applicants say that-
"[i]n respect of Govcmmcnt and citizenship, Respondent's poli
cies ... are ruthlessly consistent with its ... policy of apartheid, or
separate development, and are merely specifi.c measures of im
plementation thereof 3",
Respondent wishcs to correct them by stressing that future political
developments, and particularly the forrn in which self-deterrnination by
the various groups is to become a meaningful reality, are the matters
which constitute the very essence of the whole policy of separate
development.
8. The next significant feature of Applicants' present exposition
regarding Governmcnt and Citizenship is the fact that they now explicitly
rest their case in that regard upon one so-called "decisive major premise",
which accords precisely with that which Respondent in the Counter-
1 Vide para. 5, supra,and paras. 12-13,infra.
2 Vide sec.E, Annex VII to Chap. III, supra.
' IV, p. 440.6 SOUTH WEST AFRICA
Memorial considered to be an unexpressed premise of Applicants' case as
1
set out in the Memorials • This premise is to the effect that there should
be no differentiation between the inhabitants of the Territory on the basis
of their membership of the various ethnie groups, and that they should
all be integrated into "a single territorial unit", with universal adult
suffrage. So Applicants submit that-
"... the policy of apartheid is repugnant to Article 2, paragraph 2,
of the Mandate precisely because the 'distinctions and differentia
tions' which it imports into the lives of the inhabitants of the
Territory are based upon membership in a 'group', rather than upon
their qualities and capacities as individuals 2 ".
They add:
"The unacceptable purposes and consequences of such a policy
constitute the decisive major premise upon which Applicants rest
their case; ail other premises, arguments and conclusions are
incidental to, and derive from, this central premise 2 ";
and they rely in this regard on alleged "relevant and generally accepted
norms", which-
". . . include the institution of wüversal adult suffrage and the
promotion of participation on the part of all qualified individuals in
all levels of government and admmistration, within the framework
of a single territorial unit 3 ".
It is solely upon this "decisive major premise" that Applicants proceed
to make factual allegations directed at showing that, in the sphere of
Government and Citizenship, Respondent has failed in its duty as regards
the Native inhabitants. This is evident not only from the above formula
tions themselves, but also from the form and contents of their specific
allegations, as will be noted in due course. The extreme significance of
this feature is further considered in the succeeding paragraphs.
9. Outside of the said "major premise", Applicants apparently no
longer daim to have established any case against Respondent in the
sphere of Govemment and Citizenship, on the basis of mata fides or at all.
Thus, Applicants do not, e.g., allege that the Respondent Government
does not bona fide intend to pursue the line of development recommended
by the Odendaal Commission-any such suggestion would naturally be
ridiculous. Applicants indeed firmly accept Respondent's expressed
intent in this regard, even speaking of it as something "conceded" ~ by
Respondent; and their attitude is that Respondent's policy-
"... would be aggravated and rendered even more repugnant to
[Article 2, paragraph 2, of the Mandate], by the policies projected
5
in the Report of the Odendaal Commission ''.
Thereby the emphasis reverts to the "major premise" of what may be
tenned integration versus separate development. Respondent, therefore,
1 Vide para. 2, supra.
2 IV, p. 440.
3 Ibid., p. 441.
• Ibid.,p. 324: "Respondent's fixed determination to extend to the Terri tory of
South West Africa the system of 'territorialapartheid' is conceded by Respondent
in its Pleadings herein, and confirmed by its endorsement of the arguments and
findings of the Odendaal Commission." (Footnotes omitted.)
' Ibid.p. 444. REJOINDER OF SOUTH AFRICA
7
proceeds to consider on what grounds that premise is sought to be
supported.
10. ln their Statement of Law 1 Applicants make it clear that they rest
their aforesaid approach on the alleged existence of "... relevant and
generally accepted norms by which the obligations stated in Article 2,
paragraph 2, of the Mandate should be measured ... " •
Although not explicitly referred to by name, the alleged "legal norm of
non-discrimination or non-separation" 3 is clearly intended to be included
amongst these norms, as appears from the first passage cited in paragraph
8 above. Respondent has already dealt fully with Applicants' contentions
regarding this alleged norm, and has in its submission demonstrated
conclusively that no such norm is contained in Article 2 of the Mandate
or is otherwise binding upon Respondent, but that, on the contrary,
differentiation on the basis of ethnie groups is legally permissible in terms
of the Mandate, and does not perse constitute a violation of the provisions
thereof ~- Respondent, therefore, need not repeat its argument in this
respect.
In addition, however, as has been noted 5, Applicants speak also
2
of ''norms" that "have been established by the United Nations" • Such
"norms" are said to be descriptive of "... principles and processes
~enerally accepted as applicable in respect of government andcitizenship
m dependent areas" 6, and to include, as noted above 7,
"... the institution of universal adult suffrage and the promotion
of participation on the part of all qualified individuals in all levels
of government and administration, within the framework of a single
territorial unit 2".
Respondent's first comment is that when regard is had to the suggested
contents of the alleged "norms", they clearly amount to no more than
instances of practical application of the alleged "norm of non-discrimi
nation or non-separation" in the sphere of Govcrnment and Citizenship
in dependent territories. For this reason alone, and considering the non
application of the latter alleged norm, it would follow that the suggested
norms for more particularized application cannot possibly exist, at any
rate not as legally binding upon Respondent. Secondly, however, as
8
Respondent has already demonstrated , there is no possibility of such
alleged "norms" having been "established" as legal rules objectively
defining Respondent's obligations under the Mandate, by the United
Nations organsin question, i.e., the Trusteeship Council and the General
Assembly.
The above considerations, therefore, dispose of any possibility of Appli
cants' so-called "decisive major premise" being supported by purely
legal considerations, whereby ethnie differentiation in the sphere of
1 IV, pp. 441-442.
2 Ibid., p.441.
3
4 Vide sec.A, para. 7.and sec. B, para. r, supra.
Vide sec. B, supra, especially conclusion in para. 38 thereof.
' Vide sec. E, Chap. III, paras. 1and 2, supra.
6 Ibid., p.442.
1 Vide para. 8. supra.
8 Vide sec. E, Chap. III, para. 2, supra.8 SOUTH WEST AFRICA
Government and Citizenship would per se constitute a violation of
Respondent's obligations under the Mandate. It remains to consider
whether the premise is supported by factual considerations in the light of
the general duty imposed by Article 2, paragraph 2, of the Mandate.
II. As Respondent has also indicated 1, it is possible that Applicants
may, in speaking of the "norms" alleged to have been "established by
the United Nations" 2, have intended to use the word "norms" not in
the strict sense of binding legal rules -or 3 not only in that sense-but
as meaning, or including, what may more properly be called "standards" 3,
i.e., practices, theories or policies of government applied or propagated
by others but not in themselves legally binding on Respondent. If so,
Applicants' reference to the "norms" would constitute an attempt to
justify or support their "major premise" on a factual basis, viz., that in
order to comply with the obligation to promote well-being and progress
to the utmost in the sphere of Government and Citizenship, the method
to be employed is that of non-separation and attempted integration, and
that, accordingly, the method of diffcrentiation and scparatc dcvelop
ment is to be rejected.
Respondent has already demonstrated ~ that, in so far as this may be
what Applicants set out to establish, their attempt has failed lamcntably,
inter alia, for the following reasons:
(a} the alleged standards of non-separation and attempted integration
were not even uniformly applied in regard to trust territories,
partitions having been approved, by the self-samc United Nations
organs, in the cases of Ruanda-Urundi and the British Cameroons \
{b) in regard to cases where the approach was one of non-separation
and attempted integration, Applicants have not even attempted
to show that relevant circumstances in South \Vest Africa are
identical or closely analogous 6;
(c) most important of ail, rcsults of efforts to force together ethnie
groups and peoples which prefer to retain their separate identities,
have proved so disastrous, not only in a numbcr of newly indepen
dent African territories generally, but also in the case of some of
the very trust territories spoken of by Applicants, that Respondent
can surely not be blamed for dcclining to apply such "standards"
in South West Africa, let alone be accused of bad faith in so doing 7•
12. Apart from isolated!points of criticism-to be dealt with in due
course-concerning particular aspects of Respondcnt's policy in the
sphere under consideration, the above constitutes the only material
and argument offered by App!icants, in the whole of their chapter on
Government and Citizenship, in attempted substantiation of their so
called "decisive major premise".
What is of particular significance is that Applicants have failed entirely
to establish that Respondent, in deciding upon a policy of differentiated
development of the various ethnie groups toward separate self-realiza-
1 Sec. E, ·chap. III, para. 3. supra.
2 IV, p. 44 r and para.1o,supm.
3 Vide sec. C, para. 34,supra.
• Vide sec. E, Chap. III, especially paras. 3 and r3-24.
5 Ibid.,para. 13, infra.
6 Ibid.,para. 3,supra.
7 Ibid.,paras. 13-24, infra. REJOINDER OF SOUTH AFRICA
9
tions in prcferencc to attempted integrat10n, has been actuated by bad
faith, in the sense of an improper lllotive to oppress the Natives deliber
ately for the benefit of the White popwation. In fact, Applicants can hardly
be said to have made a serious attempt to furnish proof, in the sphere of
Government and Citizenship, of such a proposition. This applies not only
to the contents of the chapter in the Reply hcaded "Government and
Citizenship" 1 ,and of Annex 7 pertaining thereto 2, but indeed also to all
discussion of the political aspects of Respondcnt's policies as offered in
regard to general policy earlier in the Reply 3,including the attack there
made on the so-called "System of 'Homelands' or 'Territorial Apart
heid' " 4.lt is truc that, in these earlier portions, certain broad and sweep
ing allegations, involving bad faith in the above sense, are made 5.But,
6
as has been shown ,Applicants have failed to provide any acceptable
proof or substantiation of these extravaganciès, or to corrclate them with
the indisputable facts regarding the projccted development of self
governing nations in the various homelands. In dealing, shortly thereafter,
with the "System of 'Homelands' " itself, Applicants base their attack,
firstly, on the premise that such ethnie group differentiation is per se
illegal , and, secondly, on the propositions that such homelands would be
neither politically nor economically viable 8.Although in the latter regard
offering some purported criticism regarding the merits of the "system",
and regarding the alleged manner of its constitution in South Africa
matters which have becn fully dealt with -Applicants here also signally
fail to establish bad faith on Respondent's part 9• Also the Annexes
(Nos. I to 4) with which Applicants associate themselves in this regard,
do not in any way succeed in providing the proof in respect of which
Applicants themselves have failed 9.
13. From the above it is clear that Applicants have, in respect of
Government and Citizenship, totally failed to establish any case in law
against Respondent. Due to failure of all alleged "legal norms", properly
so-called, the only possible cause of action for Applicants cottld be bad
10
faith in the above sense, as has been shown ,and this they have signally
failed to establish.
lndeed, the Reply exhibits varions indications that Applicants may
1
IV, pp. 439-450.
2 Ibid.,pp. 451-457.
3 Vide, e.g.,ibid.,pp. 272-277.
~ Ibid.,pp. 312-326.
5 Vide, e.g., ibid.,p. 272, where "political apartheid" is said to be one of the
"aspects of life" in respect of which "Respondent's polie y and practice ...is directed
toward the primary end of assuring an adequate 'Native' labour supply .. .'', etc.~
being the central allegation in the Reply whereby bad faith is imputed to Respon
dent. At p. 273 Applicants still refer to "politicalapartheid" as involving "[d]enial
of suffrage and restriction of 'non-\Vhites' to the most limited forms of participation
in govemment"-exactly as if they have never heard of the Odendaal Commission's
report and Respondent's reaction thereto. The latter remark applies also to their
summary at p. 274 to the effect that "under apartheid, the accident of birth imposes
a manda.tory life sentence to discrimination, repression and humiliation".
6 Sec. E, Chap. V, suprn.
7 IV, p. 318 (para. marked (A)).
8 Ibid.(para. marked (B)).
9 Vide sec. E, Chap. V, supra.
10 Vide Part III, Sec. C, supra.JO SOUTH WEST AFRICA
realize their failure in this respect. Reference may, inter alia, be made to
the following:
(a) Speaking of the "System of 'Homelands' ", Applicants say that
"if Respondent's good faith were, by itself, an issue in these pro
ceedings", then certain points made by them 1 " ••• would in itself
raise a serious question of Respondent's mala fides" 2•It will be noted
that they do not suggest that they have succeeded in establishing
that such "serious question" is to be answered in the affirmative.
(b) ln the whole of the chapter on Government and Citizenship 3,
Applicants do not even make any pertinent allegation which,
either explicitly or in its purport, directly attributes bad faith or an
improper motive to Respondent in respect of its policy in the
political sphere. The nearest they corne to this is in a quotation
of, and in a reference to, statements made elsewhere. In their intro
duction to the chapter \ they quote, without comment, the charge as
originally formulated in the Memorials 5•And they further say that
"Ll]ust as Respondent's policies in respect of education in the
Territory, as shown above, are grounded upon educational apart
heid, so its policies in respect of government and citizenship are
grounded upon political apartheid" 6•.Having regard to statements
made earlier in the Reply regarding educational and political
apartheid 7, this may be regarded as an indirect allegation of mala
fides-but it does not testify to much confidence in the acceptability
thereof. For the rest, when Applicants still speak, e.g., of "Res
pondent's refusai ... to grant to the indigenous peoples of South
West Africa rights of suffrage and participation in govemment" 8,
such statements are qualified, either expressly or by clear implica
tion, with reference to the "decisive major premise" of "non
separation" and attempted integration: in the instance just cited,
the qualification is express, viz., "within the framework of the
Territorial Government" 8• Failing this premise, and adopting
Respondent's approach, there will, of course, be no "Territorial
Govemment" in South West Africa, and nobody will be deprived
of participation therein.
(c) In keeping with what is stated in sub-paragraph (b), it is note
worthy that Applicants' "Conclusions", at the end of the chapter
on Government and Citizenship 9.are confined to the averment that
". . . Respondent has failed in any degree to promote the weH
being and social progress of the inhabitants ... " 9• The further
averment in the Memorials, viz.: "To the contrary, the Mandatory
has pursued a systematic and active program which prevents the
possibility of progress by the 'Native' population towards self
respect, responsibility or skill in any aspect of citizenship or govern-
• Which have ail been dealt with: vide sec. E, Chap. V, supra,
2 IV, p. 317. (ltalicsadded, save for "mata fides".)
3 Ibid., pp. 439-450.
• Ibid.,p. 439.
6 Vide para. r, supra.
IV, p. 440.
7 Vide, e.g.,ibid.,pp. 272 and 273.
8 Ibid.,p. 444.
9 Ibid., p.450. REJOINDER OF SOUTH AFRICA II
ment, whether Territorial or local or tribal" , is now totally omitted.
Although, as mentioned above 2,this passage from the Memorials
is quoted in the introduction to the chapter on Government and
3
Citizenship , the averment is not even formally reaffirmed in the
''Conclusions''.
The chapter on Govemment and Citizenship on the whole
therefore seems to indicate an acknowledgemcnt on Applicants'
part that they have failed, in the political sphere, to establish any
case on the basis of mata fides or improper motives, and that,
failing their "major premise", i.e., the alleged "legal norms ", their
claim is unfounded.
14. Having regard to what bas just been stated, and to the necessary
correlation between policy regarding Govemment and Citizenship and
policy in ail the other spheres raised in Applicants' complaints \ it must
be abinitiounlikely that Applicants can succeed in establishing mala fides
or improper motives in respect of any of the other spheres. This matter is,
however, further dealt with below in the relevant sections of this
Rejoinder 5•
Secondly, due to the fact that Applicants, in regard to Government and
Citizenship, rely solely on their so-called "decisive major premise"; that
they themselves say that "... all other premises, arguments and con
clusions are incidental to, and derive from, this central premise" 6;
and that Respondent bas demonstrated that the premise is unfounded,
in fact and in law 7, it seems unnecessary to deal at any length with Appli
cants' further and more detailed statements in the chapter of the Reply
under consideration. On analysis, such statements are indeed found to be
entirely incidental to, and to emanate from, the said premise. Neverthe
less, with a view to maintenance of a proper perspective in regard to the
factual situation, Respondent deals briefly with the said allegations in the
further portions of this section.
III. Suffrage and Participation in Territorial Govemment
15. Applicants react to Respondent's exposition relating to the above
aspects in the Counter-Memorial by stating:
"Respondent thus ignores the major point and begs the central
issue: full rights of franchise and citizenship are accorded only to
persons classified as members of the '\Vhite population group' ... 8",
and they say further, with regard to Respondent's plans for future
development:
"Respondent, accordingly, projects the institution of territorial
apartheid, in which the large majority of the inhabitants permanently
will be denied the right to vote for representatives to the central
goveming authority or to participate therein 9."
i I, p. 143.
2 Vide sub-para. (b),supra.
3 IV, p. 439.
• Vide para. 7, supra.
5 Secs. G to I, infra.
6 IV, p. 440.
7 Vide paras. 10 and II, supra.
s IV, p. 442.
9
Ibid., p. 444.12 SOUTH WEST AFRlCA
Respondent submits that both the above statements "ignore the major
point" in Respondent's expositions. They are both related to, and are
made by Applicants in reliance on, their "decisive major premise" of
"non-separation" and attempted integration, which has already been
dealt with fully. On the rejection of such premise and upon implementa
tion of Respondent's intentions, there will be no "central governing
authority" in the Territory, and everybody will be able to enjoy "full
rights of franchise and citizenship'' in the homeland of his people.
16. Amo~gst Applicants' remaining isolated points of criticism 1 is the
following argument adduced by them:
"The hollow and inhumane nature of such a premise [viz., that in
regard to the indigenous groups, the process of adaptation to
modern conditions was foreseen as one that would necessarily have
to be slow,] is obvions; every individual member of an indigenous
group, however gifted, is ordained, by reason of the circumstances
of bis birth, to be 'slow' in 'the process of adaptation to modern
2
conditions' ."
It is a non sequitur to infer, from a statement of the fact that the process of
adaptation of the indigenous groups to modern conditions would be slow,
that every individuat member of such groups is ordained to be "slow" in
the process of adaptation. Naturally certain indîviduals show a greater
aptitude in this regard than others. Itis conceded that at some stages of
group development, more gifted or developed individuals may to a certain
extent be limited by the stage of development of theîr group. However,
such individuals, in Respondent's experience, constitute a very small
rninority of the total membership of the indigenous groups. l\loreover,
they have, as at the present stage of progress in regard to the policy of
separate development, almost unlimited opportunities, apart from
responsibility, to employ their talents of leadership in the separate
development of their peoples and their homelands. The large measure of
responsible leadership which can be exercised by the more advanced
members of the indigenous groups, within the framework of a policy of
separate development, is illustrated by the recommendations of the
Odcndaal Commission, referred to above 3•The s]ight limitations that
may be suffercd by a small number of more developed members of the
indigenous groups during transitional stages of development, have to be
weighed in the context of the merits and demerits to be considered in
making a choice between a policy of attempted integration on the one
hand, and a policy of separate development on the other hand.
Consequently, when Applicants make the complaint that Respondent's
policies so retard individual members of the Native groups that after
40 years of Mandatory administration-
"... no single member of a 'non-White group' has been found with
the adaptability to exercise the franchise in respect of members of
the Territorial legislature. None has been found capable of taking
part in the Territorial Govemment at the political level 4 ",
they attribute to Respondent a contention which it does not advance.
• Vide para. 12,supra.
2 IV, p.440.
3 Vide para. 3,supra.
• IV, pp. 440-44i · REJOINDER OF SOUTH AFRICA 13
Natives, individually and collectively, are excluded from participation in
the institutions of the White group, as Respondent has demonstrated 1,
for the basic reason that on a proper weighing of all the circumstances, the
policy of separate development is, in Respondent's view, to be preferred
to a policy of attcmpted integration. Applicants, in making such
complaints, are once more, by implication, relying on their "decisive
major premise" of "non-separation", which has been demonstrated to be
without substance.
17. Applicants further say:
"Nor does it sufficeto afford vicarious representation through such
a device as the attendance of the 'White' Secretary for South West
Africa at the Executive Committee composed of four 'Whites' elected
by the 'all-\Vhite' Territorial Assembly, 'whenever matters of policy
or administration concerning non-Whites were considered by the
Executive Committee' 2."
It will be recollected that since 1955 the administration of Native Affairs
was transferred to Respondent's Ministcr of Native Affairs (now the
Minister of Bantu Administration and Development) 3 and that the field
of activity of the Executive Committee in respect of matters concerning
Natives was limited. Respondent submits that the arrangements men
tioned by Applicants were at the time and in the circumstances satis
factory transitional measures of administration, which were, moreover, in
conformity with arrangements in general use in other African territories
at the time 4.Respondent concedes that such arrangements have become
inappropriate with the progress of development, and has fully dealt with
its future plans for development, which will abrogate such transitional
measures.
18. Applicants' unsuccessful attempt to deny the relevance of policies
followed in other countries 5 has been dealt with elsewhere in this
Rejoinder 6• Similarly, Applicants' reference to policies pursued in trust
terri tories5 has been disposed of 7•
IV. Government within the Native Tribes and
Native Reserves
19. In the Memorials Applicants contended that in the administration
of the Native reserves all significant authority is confined to Europeans.
They asserted tha t-
"[t]he only semblance of participation by the 'Native' population
is to be found in the rudimentary fonctions of the 'Native' headmen
and the 'Native' members of the Native Reserve Boards in regard
to the Native Reserves within the Police Zone, and in the elements
of traditional tribal administration under tribal laws and customs
still permitted to the 'Natives' in the Native Reserves outside the
1 Sec. E, supra.
2 IV, pp. 442-443.
3 Vide III, p. 113.
4 Il,p. 433.
5 IV, p. 444.
6 Vide sec. E, Chap. III and also para. 11, supra.
1
Vide sec.E, Chap. III, supt,a. SOUTH WEST AFRICA
Police Zone ... even tlus shadowy participation is kept subject to
complete, comprehensive and pervasive control by 'Europeans' l,"
20. In the Counter-Memorial Respondent demonstrated that the
Native inhabitants of the reserves, far from being entrusted only with
"rudimentary functions" and "shadowy participation", indeed took a
significant part in the govemment and administration of their reserves.
A full exposition was given of the functions of Native authorities in the
reserves and the nature of their participation in the govemmental sphere 2•
In regard to the northem territories, Respondent pointed out that the
Native inhabitants to ail intents and purposes governed themselves
through their chiefs and headmen according to their own laws and
customs 3. It was also shown that Native courts had full jurisdiction over
members of their own tribes except in respect of capital and other serious
crimes 4•
As regards the reserves in the Police Zone, Respondent showed that for
each reserve headmen, elected by the residents at a representative meet
ing, were appointed to control the reserve under the supervision of the
superintendent. Furthermore, for every reserve a Reserve Board had been
constituted which consisted of the Bantu Affairs Commissioner or the
superintendent of the reserve, the duly appointed headmen and not more
than six elected adult male Natives. This Board, apart from assisting in
the administration of the trust fund of the reserve, assisted the super
5
intendent generally in the development of the reserve •
21. In their Reply Applicants commence the section headed "Govem
ment within the 'Native' Tribes and 'Native' Reserves" by repeating 6
7
ipsissimis verbis the charge formulated in the Memorials •From the sup
porting discussion contained in the sections of the Reply under considera
tion, it appears that Applicants, while no longer emphasizing the alleged
"shadowy participation" of Native authorities in the government and
administration of their reserves, raise the following objections to the
system of administration which has been developed by Respondent in
respect of the Native reserves:
(a) that this system does not "provide an acceptable substitute for
rights of franchise" 8 ;
(b) that Native chiefs and headmen "are appointed by, paid by,
answerable to, and removable by, Respondent" 6;
(c) that the Native inhabitants of the Territory, who are in some re
spects subject to the Administrator's authority, "have no voice or
vote in respect of his selection or the manner of exercise of his
powers" 9;
(d) that the Natives "have no effective control" over the expenditure
of fonds from the various trust funds lo; and
tI, p. 143.
1 III, pp. n4-130.
3 Ibid.,p. II8.
• Ibid., pp. 116, 119 and 120.
' Ibid., p. 128.
~ IV, p. 448.
1 Vide para. 19, supra.
a IV,p. 442.
9 Ibid.,p. 449.
10 Ibid.,pp. 443 and 449. REJOINDER OF SOUTH AFRICA 15
(e) that "policy making with regard to reserve development is entirely
in the hands of 'Europeans' '' 1.
Before dealing with some particular aspects of Applicants' objections,
Respondent makes the foliowing general observations.
22. It will be seen that Applicants' objections are directed at the ad
mitted facts, firstly, that the inhabitants of the reserves do not participate
in a central government for the whole Territory. and secondly, that
Respondent through its representatives, at present still exercises control
over the indigenous governmental institutions in the reserves.
As regards the first aspect, Respondent has already shown 2 that
Applicants' so-called "decisive major premise" to the effect that there
should be no differentiation between the various population groups and
that they should all be integrated into "a single territorial unit". with
universal adult suffrage, is unfounded. It is consequently unnecessary
to add anything to what Respondent has already stated in that regard.
As regards the second aspect, it is obvious that Applicants cannot
possibly contend that no such control should be exercised, since that
would be tantamount to an abdication on Respondent's part of its duties
and prerogatives as Trustee and Guardian. The gravamen of Applicants'
objections must therefore be that the said control is too tight, and that
the inhabitants of the reserves are consequently not afforded suffi.dent
participation in the government and administration of their own affairs.
Sufficiency is, of course, a matter of degree, and it is difficult to see how
Applicants can contend that the subject-matter of this complaint does
not fall essentially within the Respondent's discretionary sphere, where
''differences of opinion could arise" 3, or how they can advance it as a
matter in respect of which "the violation of the duty to promote ... is
3
beyond argument" •
The extent to which a dependent people should be allowed to manage
its own affairs in the governmental sphere must neccssarily depend on a
number of factors, and especially on the standard of general development
reached by such a people. In Respondent's view the degree of develop
ment reached by the inhabitants of the reserves in the Territory was inthe
past not such that any substantial increase in powers of self-government
was warranted. This view was based on facts which were set out in the
Counter-Memorial. So, for example, Respondent pointed to the grave
diffi.cultieswhich were experienced by officials in getting headmen in the
northern territories to exercise authority and to take the lead and show
4
initiative in their respective areas ; to the efforts required to persuade
chiefs to adopt more just and democratic forms of government, including
the use of elders and headmen as counsellors s; to the problems involved
in exercising control over, and preventing clashes between, the various
tribeslivingin a large and wildareasuchas the Kaokoveld 6;and to the fact
that in the reserves in the Police Zone tribal life and institutions, which
had broken clown completely during the German regime, had to be built
2 IV, p. 449.
Vide paras. 10-12, supra.
3 I, p. 104.
~ III,p. 115.
5 Ibid.,pp. II5, II9 and 120.
6 Ibid., pp.121-124.16 SOUTH WEST AFRICA
up anew 1. If regard is further had to the fact that at the inception of the
Mandate the indigenous inhabitants of the Territory were almost without
exception illiterate, it is obvious that decades had to pass before the
inhabitants of the reserves would be ripe for the greater responsibilities
of, e.g., the more advanced type of self-government recently institutcd in
the Transkei 2•
Applicants do not attempt to controvcrt, or even to discuss, the exposi
tion in the Counter-Memorial; yet they suggest that Respondent should
have provided for a greater measure of self-government in respect of the
rescrves, without indicating why, or to what extent, Respondent should
have done so.
23. In the Counter-Memorial Respondent stated that it contemplated
an evolutionary growth of the traditional institutions of the various
groups in a manner which would permit each group to develop towards
self-detennination, without, in the process, preventing self-determination
by others. It was also pointed out that the success of Bantu authorities
in South Africa had suggested that a similar system might fruitfully be
applied in the Territory, and that this matter formed part of the topics
then under consideration by the Odendaal Commission 3•
The recommendations of this Commission regarding political institu
tions in the proposed homelands have been dealt with above 4• As has
been shown, these include the institution for each of the Native groups,
other than the Bushmen and the Tswana, of a Legislative Council con
sisting of non-elected traditional leaders as well as members elected hY.
the group concerned. The executive power of the Legislative Counc1l
is to be vested in an Executive Committce, the membership of which will
differ from group to group. It is clear that the implementation of these
recommendations, which have been accepted in broad principle by
Respondent, will involve the transfer of wide lcgislative and executive
powcrs to the aforesaid Councils and Committees, subject, of course, to
temporary further control by Respondent.
In view of the essence of Applicants' complaints, referred to abovc 5,
one would have thought that they would have welcomed the recommen
dations of the Odendaal Commission. Instead, Applicants say that
Respondent's present policies "would be aggravated and rendered even
more repugnant to [Art. 2, para. 2, of the Mandate) by the policies
projected in the Report of the Odendaal Commission" 6•
lt is indeed not easy to undcrstand what steps Applicants would have
Respondent take in order to grant to the inhabitants of reserves a greater
degree of participation in the government and administration of their
own areas, and thereby remove the grounds of Applicants' objections
save in so far as the said objections are intended to depend entirely on
the contention that the Territory is to be treated as a single territorial
unit, in the govemment of which all inhabitants are to participate on
1 Ill, p.125.
2 Vide II, p. 480.
3 III,p. 131.
• Vide para. 3, supra.
' Vide para. 22, supra.
• IV, p. 444- REJOINDER OF SOUTH AFRICA I7
a basis of universal adult suffrage, a contention which has already been
1
disposed of .
24. As regards Applicants' first objection referred to above 2, Respon
dent is in full agreement with Applicants that its system of indirect
rule with regard to the inhabitants of the reserves does not "provide
an acceptable substitute for rights of franchise", if it is taken for granted
that these inhabitants can profitably exercise such rights. It is precisely
because Respondent believes that the indigenous groups in the reserves
have now reached a sufficient degree of devclopment, that it has accepted
in principlc the above-mentioned recommendations which envisage,
inter alia, the election of a number of members of the proposed Legislative
Councils by the groups concerned. Applicants' reaction is to recoil in
horror from the very notion advocated by them, for the sole reason,
apparently, that the proposed form of giving effect thereto will not
bring about Native domination of the whole Territory. Necdless to say,
they do not thereby establish any dereliction of duty on Respondent's
part.
25. It should be observed that Applicants, by referring to the "details
of arrangements concerning the 'indigenous population groups' in South
\Vest Africa" set forth in the Counter-:1\lemorial, and by stating that
"such arrangements are envisaged as 'channels of communication' for
the purposes of providing a 'link' with such groups and maintaining
'close contact' with them" 3, create a misleading impression of the
functions of the indigenous political institutions in the Territory.
Although it is true that Respondent stated that it had built up certain
channels of communication-notably the office of Chief Bantu Affairs
Commissioner and its staff-to enable Respondent to be fully acquainted
at all times with the desires of each group, it was at the same time made
clear that Respondent's representatives for the most part acted purely
in an advisory capacity 4•Although the Native authorities in the reserves
have not enjoyed direct legislative powers in the past, Respondent has
been able to give effect in most cases to the wishes of these duly consti
tuted authorities, exactly by reason of the links which have been estab
lished between itself and the indigenous groups.
26. In connection with their assertion that the Native chicfs and head
men in the reserves "are appointed by, paid by, answerable to, and
removable by, Respondent" 2,Applicants state that-
"[i]t is not surprising ... that Respondent describes eighty-one
chiefs, headmen and tribal councillors as 'officiais'whom 'Respon
dent employs' 5".
In the Counter-Memorial Respondent used the word "official" in its
ordinary dictionary meaning, viz., "holding office, employed in public
capacity" 6• In the same sense the Administrator of the Territory, who
also exercises wide powers in respect of the White inhabitants, is an
1 Vide paras. 10-12,supra.
2 Vide para. 2r,supra.
4 IV, p. 442.
III,p. II3.
' IV, p. 443.
5 Fowler, A. W. and Fowler, F. G. (Eds.), The Concise O:rford Dictionary of Current
English, Fourth Edition (1956), p. 822, s.v. "official'".18 SOUTH WEST AFRICA
"official" who is "appointed by, paid by, answerable to, and removable
by Respondent".
27. It should be observed that the chiefs and headmen in Ovamboland,
the Okavango Territory and the Kaokoveld are not paid by Respondent.
And, as regards the appointment of chiefs and headmen in the northem
territories, Respondent pointed out in the Counter-Mcmorial 1that when
a vacancy occurs, the tribe concerned decides for itself who is to be its
nominee. After arriving at a decision it informs the authorities of its
choice and requests approval thereof. Such approval is a mere fonnality
and, as far as is known, no such tribal request has ever been refused.
28. Applicants' third objection 1,viz., that the Native inhabitants of
the Territory, who are subject to the Administrator's authority, "have
no voice or vote in respect of his selection or the manner of exercise of
his powers" , is rather difficult to fathom. The Administrator, who is
Respondent's representative in the Territory, exercises wide powers in
respect of all the inhabitants of the Territory, and neithcr the Europeans
nor the non-Whites have any say in respect of bis appointment or the
exercise of bis powers. To allow the inhabitants of the Territory to
dictate to Respondent who should be its representative in the Territory
and exercise powers in its name, would again be tantamount to an
abdication on Respondent's part of its duties and prerogatives as trustee
and guardian.
29. With reference to the expenditure of money from the various trust
funds which have been established for the Native groups, Applicants
allege that "the indigenous inhabitants have no effective control over
such expenditures since the funds must be 'expended as directed by the
Administrator (now the Minister of Bantu Administration and Develop
3
ment)'" •
In the Counter-Memorial Respondent pointed out that the tribal
leaders were regularly consulted as regards the manner in which the
money in the trust funds should be spent, and that their suggestions
were normally given effect to 4. The purpose of the trust funds is pri
marily to provide a procedure which will ensure that the moneys credited
to the funds will be properly administered and expended upon objects
which are in the interest of the tribe and calculated to promote its
welfare. It is for this reason that annual estimates are prepared by the
tribe in consultation with the Bantu Affairs Commissioner and his
technical officers; that the tribe is assisted in the planning of the services
it wishes to undertake, and is guided in the application of methods
necessary for the proper control of expenditure from its funds. The
tribe has complete freedom of action in respect of the administration of
its funds, and the Minister's direction is in effect and in practice but
a formai approval of a document in which the services and the amounts
to be expended, accepted as they have been by the tribe, are set out.
The fonctions of the Minister and of the officiais of his department are,
therefore, in their practical application purely advisory and designed
to assist the tribes in carrying out their functions and in controlling
1 111, pu6.
2 IV,p. 449.
3 Ibid.,and vide para.21, supra.
4 IIIpp. II7,119, 124 and 127. REJOIXDER OF SOUTH AFRICA
19
and expencling their funds in a business-like manner and in accordance
with sound accounting principles.
30. Applicants' last objection, viz., that "policy making with regard
to reserve development is entirely in the hands of 'Europeans' " 1,
pertains to the reserves in the Police Zone 2• Respondent does not deny
that it has in the past exercised direct control over policy making in
regard to these reserves, but it should be observed that the members
of the Reserve Boards have been given every opportunity to assist in
this aspect of government. The portion of paragraph 127 of Book V of
the Counter-Memorial quoted by Applicants in the Reply 3 bears out
this, rather than the contrary, which is suggested by Applicants. Itshould
be made clear that the Europeans who exercise the said control are
not the White inhabitants of the Territory, but Respondent's rep
resentati ves.
V. General Administration (Civil Service)
31. In the Memorials Applicants sought to create the impression that
Respondent had by design prevented Natives from participating in the
Civil Service of the Territory beyond "the lowest and least skilled cate
gories" 4. Thus Applicants alluded to the "practice of 'job-reservation' "
in the Service 4,and furthermore alleged that-
"[a]t the administrative levels of the Government of the Territory,
in the Public Service, the participation of 'Natives' is minimal.
With few exceptions, 'Natives' are confined to the lowest levels of
employment, involving neither skill nor responsibility 5."
In their summary of the situation in the Territory with respect to partici
pation in, inter alia, the Civil Service, Applicants charged Respondent
with having-
"... pursued a systematic and active program which Prevent[ edJ the
possibility of progress by the 'Native' population toward self-respect,
responsibility or skill in any aspect of citizenship or government ... 6".
The only evidence adduced by Applicants in support of their alle
gations was information, extracted from the 1946-1954 budgets, in
respect of positions held at the time by Natives in six departments of
the Service 7•
32. In the Counter-Memorial Respondent pointed out that Applicants,
by the selection of only the said six departments, did not present a true
p1cture of the Civil Service as a whole 8•A full exposition was accordingly
given by Respondent of the extent to which Natives participated in
other branches such as the police force, the nursing profession, the
teaching profession, the prisons service, the Department of Infom1ation
and the administration of Native Affairs 9• Respondent further stated
t Vide para. 21, supra.
• IV,p. 449.
3 Ibid., p. 450.
4 l, p. I36.
5 Ibid., p.142.
6Ibid., p. 143. (Italics added.)
1 Ibid., pp. 136-137.
8 III, pp. 164-165.
9 Ibid., pp. 147-155.20 SOUTH WEST AFRICA
that the limitation by Applicants of the period of the extracts to tht:
years 1946 to 1954 detracted from the true position in the 1960s, since
Respondent's long-term policy of education and training of the Native
peoples resulted in more and more Natives qualifying for and obtaining
responsible posts each year even in those departments of the Service
selected by Applicants 1•
33. In explaining its gencral policy with regard to the Civil Service,
Respondent pointed out that, in view of the differences between the
various population groups and their past history, it had not been prac
ticable to treat the inhabitants of the Territory as one integrated nation
for administrative purposes. Respondent consequently considered it to
be in the best interests of the various groups to treat each as a separate
2
entity for the said purposes, as far as this was practicable • Not only
did this policy have the effect of giving preference to members of a
particular group when it came to appointments to posts designed to
serve that group, but it also served to minimize racial or group prejudice
3
and friction •
Whilst conceding that thcre were as yet few Natives in the higher
posts in the Service, Respondent made it clear that this was due to the
serious lack of adequately qualified Native candidates for employment
in these posts, and not to a deliberate policy of repression 4.
34. Respondent's exposition of its policies and practices regarding the
Civil Service further covered, inter alia, early attempts, reported to the
League of Nations, to introduce Natives into the Service 5,positive steps
taken by Respondent, such as in-training and the lowering of cntrance
qualifications, to ensure greater participation of Natives in the admin
istrative sphere 6 ;the problems experienced in other countries in Africain
connection with the "Africanization" of the Public Service 7, and Res
pondent's declarcd policy of making senior posts, designed to serve any
particular Native group, available to Natives of that groupas and when
they achieved the necessary qualifications 4• Save for the few respects
indicated hereunder, this exposition is ignored by Applicants.
35. In the Reply Applicants apparently no longer contend that Res
pondent pursues a policy aimed at the absolute exclusion of Natives
from any but "the lowest levels of employment" 8 in the Civil Service.
On analysis, thcir contentions appear to be, firstly, that "Respondent's
policies of educational apartheid" 9 are the direct cause of the lack of
Natives with suitable qualifications for the higher positions in the Service,
and, secondly, that Respondent's policy of progressively introducing
Native officiais to senior positions in those areas and departments de
signed to serve the ethnie group ofwhich the officialconcerned isa member,
10
is "a mere corollary of the basic policy of apartheid" , and therefore,
1 III,p. 165.
2 Ibid., p. 14r.
3 Ibid., p. 142.
• Ibid., p. 164.
5
Ibid.,pp. 146-147.
6 Ibid.,pp. 142 and 157.
1 Ibid.,pp. 155-163.
8 1,p. 142.
9 IV, p. 445.
10 Ibid.,p. 446. REJOINDER OF SOUTH AFRICA 2I
presumably, in conflict with Applicants' newly formulated "major
premise" of non-differentiation and attempted integration 1•
Thus, in regard to Respondent's explanation of the fact that there are
as yet relatively few Natives in the higher posts in the Service, Applicants
allege that this contention if true, is~
"... merely a self-indictment of a course of administration which,
during a period of more than forty years, has failed to produce
numbers of persons qualified to undertake administrative, profes
sional and technical employment in government. Analysis of
Respondent's policies of educational apartheid e,xplains the result 2."
In another section of this Part of the Rejoinder, Respondent will deal
fully with similar assertions regarding its educational programme, and
will show that its policies in the field of education were designed, inter
alia, to ensure increased participation of members of all the groups,
including the Native group, in all aspects of administration as well as
in the economic life of the Territory 3• It is consequently unnecessary
to deal with the above allegation in the present context.
36. Applicants further allege that Respondent's policies~
"... stand in sharp contrast to the view of the Trusteeship Council
of the United Nations that education of indigenous inhabitants 'to
fill responsible posts in th[e] administration' should be carried out
so as to enable such inhabitants to have a 'progressively important
share in the conduct of their own affairs and those of the Territory
as a whole' 2".
The phrases quoted by Applicants in the above passage are contained
in a report of the Trusteeship Council pertaining to a particular Territory,
viz., Ruanda-Urundi. In essence, the Council recommended that the
Administering Authority should "provide increased facilities for training
indigenous inhabitants to fill responsible posts in the administration" 4.
37. In so far as the observations of the Council may have been intended
to relate to a major premise of territorial integrity, this has been disposed
of by Respondent above 5•Apart from this aspect, Respondent has in fact
sought to provide just such "increased facilities" for the training of
Natives for responsible positions in the Civil Service of the Territory.
Apart from the fact that Respondent has increased the facilities for
education and vocational training of the indigenous peoples of South
West Africa, the forms of in-service training on which Respondent relies
have had the effect of attracting more and more Native candidates to
the various branches of the Service, and have thereby given to the
Native people an ever-increasing share in the administration of the
6
Territory •
38. It should be observed that Applicants create a misleading im
pression of the aims and effect of Respondent's policy to treat, as far as
is practicable, each groupas a separate entity for administrative purposes.
1 Vide para. 8, supra.
2 IV, p. 445.
3 Vide sec. G, infra.
• IV, p. 455, where the full passage is quoted by Applicants.
5 Vide paras. ro and II, supra.
6 Ill,p. r57. 22 SOUTH WEST AFRICA
Thus Applicants state that-
"... it is Respondent's policy affirmatively to exclude 'non-Whites'
from senior ranks of the Civil Service, irrespective of qualification.
This is a reflection, and is in implementation, of Respondent's
policy of regarding higher levels of government and administration
as 'political institutions devised and intended solely for the White
population group' 1."
In the Counter-Memorial Respondent stated, with reference to Appli
cants' allegations that only White persans are allowed to vote at an
election of members of the Legislative Assembly, and that Natives are
excluded by law from serving as such members, that "these allegations
concern[ed] only political institutions devised and intended solely for
2
the White population group" • This statement was not, as Applicants
suggest by referring thereto in the present context 1,intended to signify
that the Civil Service of the Territory as a whole or "higher levels" of
employment therein, were devised solely for Europeans, and could not
be read as being so intended. Indeed, Respondent made it perfectly clear
that its policy envisaged the advancement of Natives to senior positions
in the Service in those areas and departments designed to serve the
Native groups 3•
39. If Applicants assume that there are no senior positions in the Civil
Service in the above-mentioned areas and departments, the assumption
is clearly wrong. In the Counter-Memorial 4 Respondent pointed out that
senior White officiais had in the past been cmployed in Native areas in
. order to guide and assist the Native groups towards modification and
adaptation of their traditional systems of government to meet the exi
gencies of a modern world. At the same time, however, Respondent made
it clear that the role of such officiaiswas purely of a transitional character,
and that it was hoped that it would be possible to dispense progressively
with these officiais in the administration of Native areas, until they were
replaced altogether by members of the groups concemed.
40. Inherent in the recommendations of the Odendaal Commission is
the notion that each homeland is to have its own public service comprising
mernbers of the group concerned, who will eventually be able to occupy
positions comparable to the highest categories in the present Civil Service
5
of the Territory •On the practical side the Commission has recomrnended
the institution of an administrative centre for each group with such ad
ministrative offices and accommodation as may be necessary 6,and the
arrangement of courses in management and administration for Natives
employed in the Service •
In view of what has been stated above, Respondent submits that there
1 IV, p. 445·
2 Ill,p. 132.
' Ibid., p.164.
• Ibid., p.141.
' Vide R.F. 12/1964, p. 6I (para. 211), where the Commission "considers it to be
of the utmost importance that the non-V.'hites should constantly, and toth~ highest
possible degree, be guided towards self-help ..and full responsibilityin the process
of developing their own homelands in every field".(Italics added.)Vide also para.
3 (/), supra.
~ Ibid., p.61.
1 Ibid., p.259. REJOINDER OF SOUTH AFRICA 23
is no substance in Applicants' conclusion that ". . . Respondent has
failed in any degree to promote the well-being and social progress of
the inhabitants of the Territory ... ", with regard to the GeneralAdmin
istration of South West Africa 1•
VI. LocallGovernment
4I. In the Memorials Applicants charged Respondent with having
"alrnost entirely" excluded the Native population from "participation or
even any semblance of participation" in the govemment of the estab
lished local m1its within the Territory 2•
Applicants alleged in this regard that "the limited advisory role of the
Native Advisory Boards" constituted the "sole faint approximation of
any kind of participation" of Natives in local government, which
participation was subiect to "the firm control of the 'white'local authori
ties and the Administrator" 2 (now the Minister of Bantu Administration
and Development).
42. The charge formulated in the Memorials is repeated ipsissimis
3
verbisin the section of the Reply m1der consideration • From an analysis
of the supporting material offered by Applicants, it would appear, how
ever, that they now rest their case on two separate contentions, viz.:
(a) that Natives should be allowed to participate in the existing local
government institutions on the same footing as Europe ans, i.e., to
coin a phrase, "within the framework of a single [urban] unit" 4,and
(b) that, even on the assurnption that Native urban communities are to
be treated separately from the White inhabitants of the towns,
Respondent has discriminated unfairly against such commm1ities
by refusing to allow them some form of local govemment, and by
entrusting to White local urban authorities powers "which have a
major impact upon the welfare" of the Natives living within urban
areas 5•
These contentions will be dealt with separately in the succeeding
paragraphs.
43. As regards the first contention, Applicants allege that-
"[t]he refusai to permit the indigenous inhabitants ... to participate
in local government, constitutes a failure 'to promote to the utmost
the development of the preponderant part of the population of
the Territory' in regard to political advancement. It is submitted
that Respondent has substantially conceded the validity of the
premises underlying the foregoing contention 3." (Italics added and
footnote omitted.)
In support of this allegation Applicants proceed to enumerate a number
of facts which, according to them, Respondent does not dispute 3•
44. Although it is in broad substance true that the said facts are not
in issue, Respondent finds it difficult to understand how this can be
regarded as a concession on its part of the validity of Applicants' premises.
The very first fact enumerated by Applicants, namely that "the popula-
i IV, p.450.
2 I,p. 142.
3 IV, p.446.
4 Cf. "within the framework of a single territorial unit"IV, p. 44r.
' Ibid., p.447.24 SOUTH WEST AFRICA
tian of [urban areas] includes a significant number of non-White
inhabitants" 1,seems to form the basis of their argument, inasmuch as
they regard every urban area as an indivisible unit comprising White and
non-White inhabitants, who should consequently partake in common in
the local govemment of such area. The true position, however, is that
every urban area in the Territory comprises separate geographical
portions inhabited by different population groups.
2
45. In the Counter-Memorial Respondent pointed out that at the
inception of the Mandate Natives were living in a largely unorganized
and haphazard manner on the outskirts of White towns. It was conse
quently a primary concern of Respondent to see to it that the White
municipal authorities played their part in providing these peri-urban
communities with proper housing and attendant facilities such as roads,
water, lighting, sanitation, etc.-facilities which the Natives concemed
could hardly have establishcd if left to fend for themselves.
Respondent also pointed out that the various Native groups preferred
to live apart from the Europeans and from each other, and to have their
own separate schools, clubs, churches, etc. In the light of these prefer
ences, and of the state of affairs prevailing when the Mandate was as
sumed, it was only natural for Respondent to act in accordance with this
tendency in the provision of proper housing and municipal facilities for
the various Native groups 3• In Respondent's view it appeared to be in
the general interest of the population that this tendency should be re
spected and given effect to, as was done by means of Proclamation No. 34
of 1924 (S.W.A.), which was later superseded by Proclamation No. 56 of
1951 (S.W.A.) •. These measures provided for the setting aside of separate
urban residential areas for Natives, which not only served to facilitate the
administration of urban communities, but also afforded a familiar com
munity life to those Natives who came into the general unfamiliar White
urban areas. So, too, homogeneous communities, with their own artisans,
tradesmen, government servants, etc., could be encouraged to develop
in such residential areas 3•
46. The position then is that the urban areas of the Territory have
never fonned integrated units, but, on the contrary, have always been
divided into White and non-White sections. It was consequently only
realistic to provide for separate forms of local govemment for respectively
the White and non-White inhabitants of urban areas. As far as the
European inhabitants wcre concemed, Respondent could shortly after
the inception of the Mandate allow them participation in modern forms
of local government, viz., municipal councils and village management
boards. In the case of the native groups, however, it was only after the
gaining of a basic degree of knowledge of the organization of urban and
peri-urban societies that they could be introduced to some constructive
role in the local government of their own residential areas. As was pointed
out in the Counter-Memorial, the intennediate stage was sought to be
bridged by a system of Advisory Boards, which were intended, inter alia,
as a training ground for wider responsibilities 5•
2 III, p. r70.
3 Ibid., p180.
• Ibid., p175.
' IIIpp. 171 and r8r-r82. REJOINDER OF SOUTH AFRICA
47. ln the Counter-Memorial Respondent also explained that at the
inception of the Mandate most of the towns and villages existing today
had already been established, and a form of local govemment had already
been instituted. Respondent further pointed out that these towns and
villages had been founded by the early European pioneers as areas for
their own communal habitation, and were never intended for the com
1
munal settlement of any of the indigenous inhabitants of the Territory •
48. With regard to this explanation, Applicants state that-
"[t]he indefensible nature of the policy implicit in the exclusion of
'non-Whites' from agencies of local govemment is compounded,
rather than justified, by Respondent's assertion that to1,>,'I1 and
villages of the Territory 'were never intended for the communal
settlement of any of the indigenous inhabitants . . . and indeed
such towns were something foreign and unknown to the Native
population' 2 ".
Respondent fails to understand how its observation regarding circum
stances which existed as facts at the inception of the l\landate, can be
said to compound the "indefensible nature" of its policy of providing
separate fonns of local govemment for the \Vhite and non-White inhabi
2
tants of urban areas • As already explained, the state of affairs prevailing
in and around urban areas when the Mandate was assumed, was one of
the reasons that influenced Respondent in providing for the establishment
of separate Native residential areas 3.Apart from their bare statement,
quoted above, Applicants do not even attempt to show that these reasons
are unsound or why Respondent should have adopted a policy of ad
rninistering the White and non-White sections of the towns and cities of
the Territory as integrated units. lnstead Applicants merely allege that-
"... Respondent bas not justified, and cannot justify, exclusion
from local govemment of persons solely on the basis of their member
ship in a 'group', without regard to individual qualification ~ ",
and that-
"Respondent misdescribes this policy as a 'system of indirect rule'...
The notion of 'indirect rule', however defined, has nothing in
common with the systematic allotment of status, rights, privileges
and burdens on the basis of group or race. Apartheid is sui generis 4."
49. It is clear, therefore, that Applicants' condemnation of Respon
dent's policy with regard to local govemment is based on thcir "major
premise" that in al! spheres of govemment differentiation is impermis
sible, and that the Territory as such, as well as the urban areas in the
Territory, should be govemed and administered as integrated units.
Respondent has already dealt fully with this premise, and since no
independent argument or factual information is adduced in sup{lort
thereof in the section of the Reply at present under consideration, 1t is
unnecessary to add anything to what has already been stated by Respon
dent in this regard 5•
1 III,p. I68.
~ IV, p. 446.
3 Vide III,p.180 and para.45, supra.
• IV, P· 447·
' Vide paras. ro-12, supra. SOUTH WEST AFRICA
50. With regard to their second contention l, Applicants merelyenu
merate anumber of powers of local urban authorities "which have a major
impact on the welfare of all the inhabitants subject to their jurisdiction",
with a view to showing that the statement in the Counter-Memorial that
Respondent has looked upon the administration and control of Native
Affairs in the Territory as its own responsibility 2, does not "justify
exclusion of 'non-Whites' from local govemment" 3 (italics added).
It is obvions that Applicants fail or refuse to appreciate the aims of
Respondent's policies with regard to local govemment. While it is true
that Natives are not allowed to participate in the local govemment units
which have been designed for the White group, Respondent made it
perfectly clear in the Counter-Memorial that it has sought systematically
to guide developments so that the indigenous inhabitants may be fitly
included in the local govemment of their own urban residential areas 4•
Respondent explained that it envisaged the replacement of the system of
Native Advisory Boards, which had served as a training ground for
wider responsibilities during the intermediate stage of the development
of the urban Native communities, by a system similar to that of Urban
Bantu Councils in South Aftica 5• And the Odendaal Commission has
6
indeed made a recommendation to this effect ,which, when implemented,
will ensure to the Native inhabitants of urban areas wide legislative and
executive powers in respect of their own areas.
51. In their Reply Applicants completely ignore Respondent's exposi
tion in the Counter-Memorial regarding such a system for South West
Africa and also the Odendaal Commission's recommendation in that
regard. Yet Applicants bluntly allege that it is Respondent's policy to
exchtde Natives from local govemment.
52. As regards the powers which White urban authorities may exercise
in regard to Native urban areas, Respondent pointed out in the Counter
Memorial 7 that considerations of practical expediency had led Respon
dent to delegate some of its powers of management and administration of
Native affairs in urban areas to the urban local authorities, thereby in a
sense constituting such authorities Respondent's agents in this regard.
At the same time, however, Respondent made it clear that it had reserved
to itself certain powers whereby strict control can be exercised over the
activities of these authorities 7•
Applicants do not deny that Respondent exercises control over the
mauner in which urban local authorities exercise the powers enumerated
in the Reply. Indeed, they admit that these powers are "subject to
varying degrees of control on the part of higher authority" 8•Applicants'
objection, therefore, seems to be directed at the very fact that such
powers have been delegated, albeit with reservations, to urban local
authorities.
Until such time as the degree of development of the Native inhabitants
1 Vide para. 42, su.pra.
2
III,p. 173.
4 IV, p. 447·
III,p. 168.
5 Ibid., p.188.
6 Vide para. 3 (g), supra.
7 111,p. 185.
a IV, p. 448. REJOINDER OF SOUTH AFRICA
of urban areas would justify some other arrangement, the powers of
management and administration of Native affairs obviously had to be
exercised by some or other White agency. In Respondent's view these
powers could best be entrusted to the urban local authorities concerned,
which had intimate knowledge of local conditions. Respondent conse
quently fails to see how any objection can be raised to the delegation,
with reservation of control, of the said powers to the municipal councils
and village management boards of the Territory.
53. Finally, since Applicants' incomplete rendering of the powers
1
provided for by section 17 (1) of Proclamation No. 56 of 1951 (S.W.A.)
creates a misleading impression 2,Respondent deems it desirable to point
out that any fine recovered in a case in which an urban local authority
acts as prosecutor, must be paid into the Native revenue account, and be
utilized for the benefit of the Native residents of the urban area con
cemed 3•
54- In the result there is no substance in Applicants' allegation that
"Respondent has failed in any degree to promote the well-being and social
progress of the inhabitants of the "Temtory" in respect of local govem
ment \
VII. Conclusion
55. Respondent submits that in the crucially important sphere of
Govemment and Citizenship, Applicants have entirely failed to substan
tiate their charges, either as originally formulated in the Memorials or
as now advanced in the Reply. In particular Applicants have failed to
establish that Respondent's policy of separate development violates
Article 2,paragraph 2, of the Mandate, whether by reason of any norm
alleged to be contained in the said paragraph, or by reason of an alleged
motive of deliberate oppression of the Native inhabitants of the Terri tory,
or for any other reason.
1 Proc. No. 56 of 1951, sec. 17 (I)in The Laws of South West Africa r95r, Vol.
XXX, p. u8.
2 IV, p. 448 (para. e).
5 Proc. No. 56 of 1951, sec. 17 (2)in The Laws of South West Africa r95r, Vol.
XXX, p. II8.
4 IV, p. 450. Section G
Education
CHAPTER I
INTRODUCTION
r. Part I of Chapter IV B.3.c. of the Reply deals with education, and is
described by Applicants as an "analysis" of the "measures of implementa
tion" of Respondent's educational policies 1. The subject-matter of the
said part is dealt with by Applicants under the following three heads:
A) General Policy 2;
ÎB) Nature of Education in the Territory 3;
C) Extent of Education in the Territory 4.
Thereafter follows an Annex, headed "Racial Separation In Education In
Dependent Territories, As Viewed By The United Nations" 5•
2. The following chapters contain Respondent's reply to the aforesaid
sections (A), (B) and (C),as well as to the said Annex.
3. In common with Applicants' case generally 6 regarding alleged
violation of Article 2, paragraph 2,of the Mandate, their case conceming
education exhibits in the Reply a major shifting of ground as compared
with the Memorials.
ln this instance also the original complaint was founded on allegcd im
proper motives on Respondent's part regarding the Natives. In sum it was
said that Respondent was, "by deliberate policy and practicc ... restrict
[ing] and shap[ing] the education of the young so as to perpetuate the
denial of possibilities for sclf-improvement and the relegation to a status
of imposed inferiority to which the 'Native' population [was] now sub
ject" 7• In the Counter-Memorial 8 Respondent on this basis dealt fully
with ail aspects of the charge, and has here also been met in the Reply
with reliance upon the newly formulated so-called lcgal norm of "non-dis
crimination or non-separation", which Applicants now seek to introduce
as a new cause of action 9•
Respondent has already demonstrated that no such norm is contained
in Article 2 of the Mandate or is otherwise binding on Respondent 10•
Indeed, if there were such a norm, Respondent would be guilty of a
violation of its obligations under Article 2 of the Mandate inasmuch
as it admittedly differentiates between persons on the basis of member-
1 Vide heading at IV, p. 362.
2 IV, pp. 362-370.
' Ibid.,pp. 370-386.
• Ibid.,pp. 386-397.
' Ibid.,pp. 398-403.
6 Vide sec. A, paras. 1-15, supra.
7 I, pp.159-160.
8 III, videespecially pp. 341-342 (paras. 1-4).
9 Vide sec. A, paras. 7-10, supra.
1o Vide sec. B, supra. REJOINDER OF SOUTH AFRICA 29
ship in a group, and Applicants' lengthy demonstration of the alleged
effects of Respondent's policy would have been entirely unnecessary, save
to substantiate their charge of mala fides on the part of Respondent in
regard to the Native population-which charge is referred to hereinafter.
4. First, however, Respondent may point out that Applicants have
also in a further respect, apparently as a corollary of attempted intro
duction of the alleged "norm", changed their ground in the Reply. This
charge concems their attitude regarding population groups other than the
Natives, especially the Coloured and Baster groups and it is also in
keeping with the shift of ground regarding their case generally 1.
Although Applicants in the Memorials drew attention to the fact that
the educational system in South West Africa is organized in three separate
divisions, in the sense that separate facilities are "maintained for
'Europeans', 'Natives' and 'Coloured Persans'" 2, and although, in
dealing with the factual sifuation, they made various allegations to the
effect that there was a disparity between the educational opportunities
and facilities provided, on the one hand, for Europeans, and, on the other
hand, for non-Europeans (i.e., Native and Coloured persons) 3, their
complaint in regard to Respondent's educational policies and practices
was concerned solely with the alleged oppression of the Native inhabitants
of the Territory: the Coloured or Baster groups were not mentioned at
all 4. Neither were they mentioned in Applicants' Legal Conclusions
regarding education 5•
5. In the Counter-Memorial Respondent drew attention to this feature
of the Memorials 6• Applicants have responded in the Reply by now
alleging that their complaint concerns all the population groups of the
Territory. Thus they say with respect to education that-
"[i}n view of the fact that Applicants' submissions have not distin
guished between the 'European', 'Coloured', and 'Native' groups in
the Territory, and since Applicants view Respondent's policies of
'Coloured' and 'European' education as sharing the essential evils
of 'educational apartheid', as dramatized in its most severe and
unwholesome form in Respondent's 'Native' education policy, it
will not be necessary to deal with the 'Coloured' policies per se
except insofar as they are interwoven with the policy in respect of
'Natives' 7".
Respondent has already demonstrated-in its submission conclusively
-that Applicants, in formulating their submissions in the Memorials
regarding alleged violations of Article 2 of the Mandate, did in fact
distinguish between the different population groups and that the corn
plaint then made by them involved only Respondent's treatment of the
1 Vide sec. A, paras. r r-r5, supra.
2 1, pp. 152-153.
3 Vide, e.g.I,p. 153 (para. r6o) conceming compulsory education; p. r53 (para.
162) conceming courses of instruction;p. 134 (para. r66) conceming school oppor
tunities;p. 155 (paras. 169-170) concerning training of nurses and p. I57 (paras.
178-179) conceming higher education.
• Vide 1, pp. 159-16r.
5
6 Ibid., pp. 165-r66.
III, p. 342 (para. 6 (b)).
7 IV, PP· 363-364.30 SOUTH WEST AFRICA
Native group 1.This general exposition of Applicants' case as originally
presented in the Memorials and as sought to be extended in the Reply,
applies to their complaints regarding all aspects of government, in
cluding education.
In so far as Applicants' above contention 2 is intended to rest purely
on the alle~ed norm of "non-discrimination or non-separation", it falls
together with Respondent's demonstration of non-application of any
3
such nonn • In so far as it may be intended to be included in the factual
aspects of Applicants' complaint, it is further referred to below 4•
6. Applicants do not rest their case solely on their new cause of action,
based on the so-called legal norm of "non-discrimination or non
separation", but, as has been shown 5, they continue to rely on their
original charge of a deliberate process of unfair discrimination against
the Native inhabitants of the Territory. Thus, in regard to education, the
allegation of unfair discrimination against the Natives is repeated with
reference to specific policies and practices. The following serve as exam
ples of allegations made in this connection:
(a) that "Respondent in effect concedes [the] evil of its plan" relative
to Native education 6; (Italics added.)
(b) that Respondent's policy "thwart[s] the social progress of 'Natives'
by isolating them from each other, and from the modern world ... " 7;
(ltalics added.)
(c) that "such policies have as their purpose and inevitable consequence,
restriction of the 'Native' inhabitants of the Territory to their
isolatcd, pre-industrial, tribal groups ... " 8; (Italics added.)
(d) that ''[t]he 'Natives' have thus been delegated the duty of promotion
of their own social progress which, in the i\fandate, was entrusted
to Respondent ... " 9 ; (Italics added.)
(e) that the alleged discrepancy between the expenditure on Native
education and European education "is a per se indication that
Respondent has, from the inception of the Mandate, neglected the
10
'Native' population, to the advantage of the 'European' population" ;
(Italics added.)
(!) that "circularities exist in every aspect of the education of 'Natives'
in the Territory. Such patterns rest upon the same assumptions,
and move towards a common objective . . . all of these aspects
relate to, and are informed by, the essential design and assumptions
of apartheid" 11• (Italics added.)
7. As was the case in the M:emorials, allegations in the Reply of the
kind aforementioned, viz., of oppressive and unfair conduct on the part of
Respondent, are limited to the Native inhabitants of the Territory,
Vide sec. A, paras. u-15, supra.
Vide para. 4, supra.
3 Vide para. 3, supra.
• Vide para. 7, infra.
5 Vide sec. A, paras. 9-10, supra.
6 IV, p. 377.
7 Ibid.,p. 378.
8 Ibid., p. 380.
10 Ibid.,p. 390.
Ibid., p. 393.
11 Ibid.,p. 397. REJOINDER OF SOUTH AFRICA 31
and no independent charge of such a nature is made in regard to the
Coloured population group. In fact, Applicants disavow an intention of
making such a charge when, in contrast to the statement made earlier in
the Reply to the effect that Respondent's policy and practice is "directed
toward the primary end of assuring an adequate 'Native' labour supply
in the Territory" 1, they aver that in the case of the " 'Coloured' per
sons ... no syllabus is required for their instruction as manual labourers,
as in the case of the 'Natives' " 2• They even say that "[t]he education of
'Coloured' children 'has been promoted in principle to equality with
European education'" 3.
They do, however, state:
"Respondent's policy of educational apartheid with respect to the
children of 'Native' persons within the Territory inevitably distorts
the social perspective and political and moral outlook of the children
of 'Coloured' or 'European' inhabitants. As such, the 'Native•
education policy is, in itself, a violation of Respondent's obligation
to promote to the utmost the material and moral well-being and the
social progress of ail of the inhabitants of the Territory 4."
Applicants do not say whether their contention is that the alleged
adverse effects of Respondent's policy are due to the mere fact of differen
tiation between the population groups in the Territory, or to the further
element which is alleged to pervade Respondent's policy with regard to
the Natives, viz., unfair discrimination and oppression. Furthermore,
Applicants tender no evidence to substantiate the statement that "the
social perspective and political and moral outlook" of the children of the
Coloured or European inhabitants is in fact distorted, whether by apart
heid or at ail. There is also nothing to show that if any such distortion
should in fact exist, it would be the result of any of Respondent's
policies, and not of an outlook arising from factual conditions affecting
the varions population groups, such as different stages of development,
different moral and social standards, different habits of thought, etc.,
which exist quite indepcndently of any governmental policy.
Applicants' contention in this regard is also basically unsound inas
much as it rests on a false premise, namely that Respondent's policy of
separate development is designed for the "benefit and privilege" 5 of
certain sections of the community only. Respondent has always con
6
tended, and has demonstrated , that its policy is designed to benefit
the population of the Territory as a whole. This is so in ail aspects of
government, including the education of the varions population groups •
The whole idea that there are certain groups-European and Coloured
"whose benefit and privilege are purported to be served" by the policy
5
of apartheid , is fore1gnto the basic principles of the said policy. And the
application of this idea in formulating an argument that Respondent's
policy of educational apartheid with respect to Native children has a
1
IV, p. 272.
2 Ibid.,p. 363.
3 Ibid., p.362.
4 Ibid.,p. 364.
5 Ibid.,p. 258.
6 II, pp. 457-488 and sec. E, supra.
7 III, PP· 353-406.32 SOUTH WEST AFRICA
detrimental effect on European and Coloured children, suffers from the
same basic defect.
Respondent has not denied that in its practical effect the policy of
separate development has certain disadvantages, nor that inits implemen
tation at its present stage of evolution the various population groups may,
in certain respects, experience inequalities-in particular respects, some
groups more so than others. This is so, however, by reason of the different
circumstances of the var.ions population groups, and not because of any
intent or design to create or maintain benefits and privileges for, or to
discriminate unfairly against, certain groups, or, as Applicants allcge, to
oppress deliberately a particular group, viz., the Native group. Further
more, Respondent is not aware of the existence of any exceptional
measure of distortion of "social perspective and political and moral
outlook" on the part of members of any population group. To the
extent that any such distortion might exist at all, the matter should be
considered in the light of the ultimate aim of Respondent's policy of
separate development, which is the creation of separate, independent
and self-respecting communities which v;rillbe less inclined to such pre
judices, apprehensions and outlooks as might manifest themselves in
mter-group relations at the present transitional stage of dcvelopment, and
which will, in Respondent's submission, be free from the more serious
prejudices, frictions and struggles which are bound to arise under any
policy of attempted integration of the different population groups.
8. The real issue at present, however, is not whether Respondcnt's
policy has certain disadvantages. lt concerns the question whcther, seen
as a whoJe and in thcir practical effect, the advantages of the system for
all the inhabitants outwcigh, or are Iikely to outweigh, the disadvantages
that are or may be suffered in the implementation of the system by the
various population groups. This question is, of course, not presented to
the Court with a view to possible substitution of its opinion for that of the
Mandatory, but as part of the inquiry into the issue of good or bad faith 1.
For this purpose objective evaluation, through weighing of advantages
and disadvantages, 1srelevant only in so far as the result might indicate
whether or nota governmental authority, having an honest approach to
the problems of the Territory, could consider such policies and measures
suitable for promoting to the utmost the well-being and progress of ail
the inhabitants of the Territory 2.
9. As will appear from the various chapters below, in which Respon
dent deals with Applicants' allegations regarding particular educational
policies and practices, Applicants have not succeeded in establishing any
charge of improper motives on the part of Respondent towards the Native
inhabitants of the Territory and their education.
In regard to the Coloured group Applicants say that, inasmuch as they
view "Respondent's policics of 'Coloured' and 'European' cducation as
sharing the essential evils of 'educational apartheid', as dramatized in its
most severe and unwholesome form in Respondent's 'Native' education
policy, it will not be necessary to deal with the 'Coloured' policies perse
except in so far as they are interwoven with the policy in respect of
3
'Natives'" •
1 Vide sec.C,paras. 20.39,supra.
2Ibid., para. 39supra.
3
IV, p. 364. REJOINDER OF SOUTH AFRICA 33
In the circumstances it will be unnecessary for Respondent to give a
full and systematic account of education of the Coloured group, and, as
in the Counter-Memorial 1, Respondent will in this Rejoinder deal with
the education of Coloured persons only for the purpose of answering
specific points or allegations made by Applicants with regard thereto,
or for purposes of explanation or clarity, or the like.
IO. Before dealing with. Applicants' allegations regarding specific
educational policies and practices, Respondent draws attention to a further
matter raised by Applicants in the introductory portion of the Reply
dealing with education, viz.:
"... Respondent's frequent references to practices in other African
States, including those of Applicants, are wholly irrelevant to the
present proceedings, inasmuch as there is no othcr African State
subject to Mandate, nor any other State, anywhere in the world,
which practices the policy of apartheid 2 ''.
Earlier in this Rejoinder 3 Respondent dealt generally with the above
contention and illustrated why references to other countries, including the
Applicant States, arc relevant for certain purposes ~.In addition to what
has been stated there, Respondent points to the following considerations
which apply specifically to the educational sphere.
Respondent's contention is that particular conditions and circumstan
ces in South West Africa create, as they do elsewhere in Africa, peculiar
problems and difficulties which hamper or retard educational advance
ment, and, in an evaluation of Respondent's achievements in the
educational field, conditions and practices in other States with com
parable conditions and problems are highly relevant. For example, if vast
distances and low density of population hamper the development of
education in other countries in Africa, it is logical to expect sirnilar con
ditions in South West Africa to retard development 5•Ifschool attendance
in other African countries is adversely affected by attitudes which seem
to be common amongst people who have no tradition of modern educa
tion, it is only logical to expect that similar attitudes in South WestAfrica
will have a Iike influence (J.If an attendance figure is reached in South
West Africa which compares favourably with that reached in territories
more or less similarly circumstanced, such result can fairly be taken
to reflect favourably on Respondent's efforts to extend education 7•
If it is sound educational policy in an African State to use textbooks
which "illuminate the familiar environment of pupils and reflect their
cultural history" 8, and which are "more relevant to African life and
culture" 9 than those used in European schools, such policy cannot be
corne unsound merely because it is applied to Native (orAfrican) education
in a mandated territory, or in a country where apartheid is applied. If
Africans in an African State consider it a matter of pride, and a matter of
iIII, p.34~.
2IV, p. 364.
3 Sec. A, paras.2r-2:4.
+ Vide in this regard Il, p. 3 and III, pp. 342-343.
'III,p.4rr.
6 Ibid., pp. 397-399 and 407-410.
7Ibid., pp. 444-446.
8 Ibid., p. 379.
9 Ibid., p. 378.34 SOUTH WEST AFRICA
cultural importance, to study African languages and to establish an
African language study institute for the purpose 1,the establishment of a
Bureau for Native Languagcs in South West Africa 2 for similar purposes
cannot be wrong because of the status of the Territory. And it is surely
relevant to point out that it has elsewhere 3been recognized that ''lan
guage barrier(s)" and "very large differences in the children's ages,
curricula, and cultural backgrounds" make the teaching of such children
"in the same schools and classes ... impracticable".
In the circumstances Respondent repeats its submission that the
references made in the Counter-Memorial to conditions and practices
in other territories are valid for the purposes intended to be served
thereby.
1 m, p.362.
i Ibid., p.361.
, Ibid., p.382. CHAPTER II
GENERALPOLICY
A. Introductory
1. This chapter is devoted to a treatment of the subject-matter of
1
section (A), of Chapter IV B.3.c.I of the Reply , in wh1ch Applicants
discuss what they term "General Policy" under three heads, viz.,
"Introduction" 2,
"General Policy" 3 ;and
"Categorization" 4•
In Chapter I above Respondent, in analysing legal aspects of Appli
cants' case regarding education, also dealt with certain broad allegations
made by Applicants concerning educational policy generally as it affects
the different population groups of the Territory.
In the following paragraphs Respondent deals with specific allegations
made by Applicants under the above-mentioned three heads concerning
particular practices and measures applied in implementation of its edu
cational policies. For convenience the subject-matter will be divided
into two parts, headed respectively "General Policy" and "Categoriza
tion".
B. Applicants' Allegations regarding General Policy
2. In their "Introduction" to this part of ihe Reply Applicants make
certain allegations of which the effect is that apartheid, as it affects the
different population groups in its application in the educational sphere,
is "severe" in varying degrees, and that it is, furthermore, intended to
have that effect. Thus they speak of the Native education policy as mani
festing "educational apartheid" 5 in its "most severe and unwholesome
form" 5,and they seek to demonstrate this by referring to the application
of principles of "Bantu education" 6to Native education in the Territory,
and, more particularly, to the use of special syllabuses in Native schools,
and to the practice of mother-tongue instruction in such schools. In the
case of education of the Coloured people, on the other hand, Applicants,
6
while noting that there is also "institutional apartheid" in so far as they
are concerned, allege that "[t]he education of 'Coloured' children, 'has
been promoted in principle to equality with European education' " 7•
In this regard they allege, by reference to a statement made by the South
West Africa Committee, that courses, syllabuses and examinations for
1 IV, pp. 362-370.
2 Ibid., pp. 362-364.
3 Ibid., pp. 364-367.
4 Ibid., pp. 367-370.
' Ibid., p. 364.
6 Ibid., p. 363.
7 Ibid.,p. 362. SOUTH WEST AFRICA
Coloured school children are the same as those for European children, and
that steps are takt:n to ensure tht: maintenance of similar standards in the
schoolsofthese two groups 1.At the same time, however, Applicants point
to differences between European and Coloured education with reference
to differing measures concerning compulsory education and ages of first
admission to school, and they draw the conclusion, as expressed in the
words of the Committee on South West Africa, that-
". . . Coloured education is devoted to the fondamental aims of
keeping the Coloureds as a group apart, superior to the Natives but
inferior to the Europeans 1".
3. Respondent denies that it is part of its policy in education, or in
any other aspect of government, to treat the various population groups on
the basis of any alleged inferiority or superiority on the part of any of the
groups. In this regard Respondent refers to what has already been stated
in this regard, viz., that its policy of separate development is not based
on a concept of inferiority or superiority, but merely on the fact of differ
ences between the various population groups 2•Nor is there any question
of a forcible keeping apart of the different population groups, for, quite
apart from the various considerations which make separate educational
facilities advisable from an educational point of view 3, there is the fact,
as already mentioned by Respondent 4, that the different population
groups prefer that their children be taught in schools of their own.
It is true that in the educational sphere, as in other spheres, the Col
oured population occupy a position between that of the European and of
the indigenous groups, but this is not so by reason of policy directed to
achieve this end. It isthe natural result ofthe fact that the Coloured group
has reached a stage of development above that of the indigenous groups,
butstill below that attained by the European group. This consideration,
as wellas others whichdistinguish the Coloured from the various indigenous
groups, e.g., differences in language and culture, lies at the root of the
differentiation between the Coloured and indigenous groups in education.
Since practically all the Coloured people of the Territory have Afrikaans
as their home language, it is only natural that they should be instructed
through the medium of that language. Coloured children therefore receive
instruction in their mother tongue, as Native children do, and there is
consequently no substance in the point which Applicants seek to make
when they say that " 'Coloured' persons have no tribal tangue for
'mother-tongue instruction'" 5. •
Likewise, differences in levels of development. in culture. social systems
etc., account for the fact that syllabuses used in Coloured schools differ
from those used in Native schools.
Respondent will deal later with specific allegations made by Applicants
regarding such matters as syllabuses, mother-tonguc education and
compulsory education. At this stage Respondent is merely concerned with
demonstrating-as it has, in its submission, demonstrated-that there is
no substance in Applicants' allegation that Coloured education is de-
1 IV, p. 362.
z II, p.47r.
3 III,pp. 353-406.
• Ibid.,pp. 367 and 376.
5 IV, p. 363 REJOINDER OF S0UTH.AFR1CA
37
voted to the aim of ''keeping the Coloureds as a group apart, superior to
1
the Natives but inferior to the Europeans" •
4. After referring to what they call the "asserted objectives of Respon
2
dent's policy of apartheid" ,Applicants make certain allegations con
cerning Respondent's "General Policy" 3in regard to Native education.
Most of these allegations deal with the alleged ''intention of Respondent's
'Native' education policy'' 4•
Applicants refer solely to the system of Bantu education as introduced
in South Africa pursuant to the Bantu Education Act (Act No. 47 of
1953). This appears clearly from their general treatment of the matter,
and from their references to statements which deal specifically with the
said Act and the system of education introduced by it. These statements
are, for the most part, contained in two speeches made by Dr. H. F.
Verwoerd. The first speech was made in the South African House of
Assembly on 17 September 1953 when the Bantu Education Bill was
read for the second time 5, and the second in the Senate on 7 June 1954,
when the Minister made a statement in regard to Bantu education
policy 6 •
Respondent proposes to deal first with the basic considerations and
aims of the system of education introduced by the Bantu Education
Act, and will do so by referring mainly to the two aforementioned
speeches by Dr. Verwoerd. Thereafter the allegations macle by Applicants
will be dealt with.
5. In his policy speech in the Senate in June 1954 7, Dr. Verwoerd
dealt with the general aims of the Bantu Education Act after he had
discussed certain shortcomings of the then existing system. He said:
"The general aims of the Bantu Education Act are to remove the
abovementioned defects by transforming education for Natives into
Bantu education; by transforming a service which only benefits a
section of the Bantu population and consequently results in aliena
tion and division in th~ community, into a general service which
8
will help in the building up of the Bantu community ."
On another occasion, also in the Senate, Dr. Verwoerd again stressed
the fact that the Government's Bantu education policy involved a new
approach and aimed at a new ideal, viz., that of building up a Bantu
1 IV, p. 362.
2 Applicants' reference to III, p. 527 is brief and incomplete. As regards the
development and aims of Respondent's policy of separate development, vide Il,
pp. 457-483.
3 Vide the title to the section.
• IV, p. 365.
-' U. of S.A., Parl. Deb., House Assembly, Vol. 83 (r953), Cols. 3575-3590.
6 Ibid., Senate,Vol. II (1954), Cols. 2595-2622.
ûther statements referred to by Applicants which deal with the Act and Bantu
education policy are by the International Commission of Jurists (IV, pp. 364-365)
and Lord Hailey (ibid.•p. 366). There is also a reference to the Eiselen Commission
(vide III,p. 364) whose report and recommendations preceded the passing of the
Act.
' Vide para. 4, supra,
8 U. of S.A., Parl. Deb., Senate, Vol. II (1954), Col. 2599. The transformation
referred to in this quotation, and how it would be effected, is referred to in para. 9.
in/ra. SOUTH WEST AFRICA
community 1• He indicated that Bantu education was part of a general
plan for the development and upliftment of the Bantu, and stated that
Bantu leaders and Bantu schools had an important role to fill in the
progress of the community. The approach to the task of community
development, he said,
"... is governed by the idea that the development of a community
can actually be encouraged from outside but can only take place
from within, that it is a process of growth which in the main always
rests upon inherent growing power. That means that there can be
no mention of progress unless the bearers of the progress are found
within the community itself 2."
The role of the school was referred to by him in the following tenns:
"The influence of the school can and should be two-fold. There is
firstly the moulding of the individual child according to aptitude
and talent, and secondly there is the moulding of the under-de
veloped community by means of the schooL On the one hand by the
ploughing back of the good products to fertilize the community,
a long tenn benefit, therefore, and on the other hand, a benefit
which is immediately obtained, or can be obtained by making the
parents and the Bantu authorities school-conscious and school
responsîble and vice versa by also making the teacher school
3
conscious and responsible to the community ."
Dr. Verwoerd also stated that the idea that there could be Bantu commu•
nity development, and civilization, without disowning everything that
was Bantu, was to most of the Bantu a novel one. He said in this regard:
"They (the Bantu) thought that there were only two alternatives,
namely, to shake off everything that was Bantu and to assimilate
as much as possible of the western cîvilization and of the English
language as they were able, or to remain Bantu and uncivilized.
That you may remain a Bantu, that your Bantu language can
become a medium to civilization, and that you and your whole
community together with you inthis manner can achieve far quicker
a higher spiritual, social and economic level of living, is for them a
brand new and almost unbelievable thought \"
6. The Eiselen Commission, it may be pointcd out in this connection,
advocated a system of education which would, apart from its importance
to the individual, play a vital role in the general development of the
Bantu. The Commission stated in its report:
"It is evident, therefore, that Bantu development and Bantu
education must be largely synonymous terms. Education is more
than a matter of schooling; indeed, in the education of a society
to make a tremendous cultural leap such as the South African
Bantu are called upon to make, the schooling of children, though of
the utmost importance, must be regarded as only a part of a larger
process. School education, if it is to be co-ordinated and in har
mony with social development, must be seen as one of the many
1 U. ofS.A., Parl. Deb., SenateVol. III (1955), Col. 4531.
2 Ibid.,Col. 4528.
3 Ibid., Col4529.
• Ibid., Col4530. REJOINDER OF SOUTH AFRICA 39
educational agencies and processes which will lead the Bantu to
1
better and fuller living ."
The Commission proposed the following definition of the aims of
Bantu education: ·
"(a) From the viewpoint of the whole society the aim of Bantu
education is the development of a modern progressive culture,
with social institutions which will be in harmony with one
another and with the evolving conditions of life to be met
in South Africa, and with the schools which must serve as
effective agents in this process of dcvelopment.
(b) From the viewpoint of the individual the aims of Bantu
education are the development of character and intellect,
and the equipping of the child for bis future work and sur
roundings 2."
Upon this definition follow these words:
"To harmonize the individual and social viewpoints as stated
above it is essential to consider the language of the pupils, their home
conditions, their social and mental environment, their cultural traits
and their future position and work in South Africa 2."
7. At the outset of his aforementioned speech in the Senate, Dr.
Verwoerd stated that a comparison between the then existing educational
3
system and the "new approach" of the Bantu Education Act made it
possible to "appreciatc more clearly that the most important aim of the
latter is to provide a more effective constructive service" 3.He thereafter
proceeded to deal, as has been noted \ with what he termed the "short
comings" of the then existing system. These shortcomings, as dealt with
by him, may be summarized as follows:
(a) As a result of the fact that schools were controlled by numerous
churches and missions "... there was no co-ordination of school
interests with community interests ... " 5, and "... there was no
co-ordination between school education and the broad national
3
policy" •
(b) Control of education by the Provincial Administrations, and a
general lack of co-ordination, had the result that-
"[e)ducation in the four respective provinces ... did not take
into account either the communal interests of the Bantu or the
gencral policy of the country or the policies of the other three
provinces 6".
(c) It would be unsound not to require the Bantu to make a direct
financial contribution ta their education, as had been the position
from 1925 to 1945, because-
"... it is a sound educational policy to engender a feeling of
responsibility among the (Bantu) community by allowing it to
carry so much fi.nancial responsibility that it accepts the de-
1
U.G. 53-r95I, p.130 (para. 764).
2 Ibid. (para. 765).
s U. of S.A., Parl. Deb., SenateVol. II (1954), Col. 2596.
• Vide para. 5,supra.
' U. of S.A., Parl. Deb., SenateVol. Il (1954), Col. 2596.Vide also Col. 2598.
6 Ibid., Col. 2597 and vide Col. 2598. SOUTH WEST AFRICA
velopment as something of its own and)n this way guarantees
the continuity thereof 1".
(d) Because the schools did not form part of the community service,
"... education was not built up on community requirements
and in the first place was not directed towards the promotion
of community interests. The attempts of the provincial Depart
ments of Education to direct it in that direction were only
2
partly successful ."
In elaborating the point made in (d} above, Dr. Verwoerd said that
Native education under the then existing system showed poor results,
firstly, because curricula were unsatisfactory, being too European in
character, and, secondly, because the schools had little holding power.
He stated:
"In the main, education is provided which aims at getting pupils
through examinations which up to Standard V and up to Junior
Certificate and at the Senior Certificate standard is practically
identical with European schools. The result is the weak grip of the
school and the unsatisfactory achievements of the great majority
of pupils. Nearly half the pupils are in the sub-standards, ten per
cent reach Standard II, 3} percent reach Standard VI, only a half
per cent reach Junior Certificate and a Yery few Matriculation. In
evaluating these figures, it must further be borne in mind that the
majority who pass just pass these examinations 2."
Poor results, according to Dr. Verwoerd, were obtained also·because of
wrong teaching methods. He said that many teachers who had been
taught in English had an "irresistible desire" 3 ,perhaps because of their
inability "to diffcrentiate ideas from the related terminology" 3 ,to convey
knowledge to pupils in the same words in which such knowledge had been
imparted to them. The result was that~
"... the Bantu pupil could not ... receive a thorough grasp of
reading matter in the natural way through his mother tongue ...
As was to be expected, the progress of the pupils was seriously
hampered and those who reached the goal, mostly did so on the
basis of superficial knowledge supplemented by an enviable ability
to remember terms and definitions. They could couple richness
1 U. ofS.A., Parl. Deb., op. cil., Cols. 2597-2598. The word in brackets is wrongly
printed as Basulo in Hansarcl. In regard to some of the points made in paragraphs
(a)-(c) above, reference may be made top. 129 (para. 752) of U.G. 53-1951 which
reads as follows:
"Your Commission considers that the four most important criticisms of the
present systems are:
(a) Bantu education is not an integral part of a plan of socio-economic
development;
(b) Bantu education in itself has no organic unity; it is split into a bewildering
number of different agencies and is not planned;
(c) Bantu education is conducted without the active participation of the
Bantu as a people, either Iocally or on a wider basis;
(d) Bantu education is financed in such a way that it achieves a minimum
of educational effect on the Bantu community and planning is made
virtually impossible."
1 Ibid., Col.2598.
l Ibid., Col.2610. REJOINDER OF SOUTH AFRICA
of vocabulary with a Jack of knowledge and education in the true
sense 1.''
8. Education provided in the aforementioned form, Dr. Verwoerd
2
stated, "must stand isolated from the life of the Bantu society" and did
not uplift the community. It served, at most, to create a small class of
educated or serni-educated persons who considered themselves elevated
above their own people and who sought to enter the ranks of the Euro
peans, only to become dissatisfied and frustrated when they found that
the Europeans were not prepared to admit them to their society. In this
regard he elaborated as follows:
"It prepares them not for life within the community which would
gradually be uplifted by it, but for a life outside the community and
for situations which in fact do not exist. ln other words the com
munity has not benefited from this to such an extent that because
of the general progress of its sons and daughters who have won
pretty examination certificates it could absorb them in a suitable
manner. A considerable number of those who were trained in this
way were taken up again in the education machine which created
a cycle of its own and of the evils in isolation of the Bantu com
munity. In this way Native education servcd to create a class of
educated and scmi-educated persons without corresponding national
development. This is the class which has learned that it is above
its own people and feels that its spiritual, economic and political
home is among the civilized community of South Africa, namely
the Europcans, and feels frustrated that their wishes have not been
complied with 3."
The same point was also made in other parts of Dr. Venvoerd's speech.
After stating that "segregation" had been "accepted as the country's
policy from the beginning" •, he said :·
'The curriculum (to a certain extent) and the teaching methods,
by ignoring the segregation [or] apartheid policy, could not offer
preparation for service within the Bantu community. By simply
blindly producing pupils who wcre trained in European ideas the
idle hope was crcated that they could occupy positions in the Euro
pean community in spite of the country's policy which has been
mentioned. This is what is meant by the unhealthy creation of
white-collar ideals and the creation of wide-spread frustration among
the so-called educated Natives 5."
And also:
"The Bantu must be guided to serve his own community in all
respects. There is no place for him in the European community
above the level of certain forms of labour. Within his own community
1 U. ofS.A., Parl. Deb., op. cit., Col. 26ro. In R.P. No. 22/r963, it is stated i.a. that
"every examiner and Inspector of Bantu Education" could confirm the view that-
"[w]here the Bantu child is ...confronted with stmnge facts in a strange
language it is hardly surprising that downright memorisation remained the
only way out". (Sec. E,p. r8 (para. 7 (d).)
t U. ofS.A., Parl. Deb., Senate, Vol. II (r954), Col. 2610.
' Ibid., Cols. 26 ro-II.
• Ibid .. Col2597.
5 Ibid., Cols. 2598-2599. The word in brackets is wrongly printed as "of" in the
official text. SOUTH WEST AFRICA
however ail doors are open. For that reason it is of no avail for
him to receive a training which has as its aim absorption in the
European community while he cannot and will not be absorbed
there. Up till now he has been subjected to a school system which
drew him away from his own community and practically misled him
by showing him the green pastures of the European but still did
not allow him to graze there ."
Dr. Verwoerd had made the same point in his aforementioned 1953
speech in Parliament. He stated that in the past education had not only
failed to strengthen Bantu corrununal life, but had, on the contrary,
actually undermined community life and development; that it had di
vorced individuals from their corrununities, and made them feel that they
were elevated above their own people 2•
Very much the same view was expressed by the Eiselen Commission in
the following terms:
"The content of education and the methods employed have had
harmful effects on the community in certain respects. The parents
are frequently estranged from the school. In many respects the
schools, especially secondary and high schools, have joined in
creating a modem and extremely undesirable phenomenon, viz.
that group of people who break away too rapidly from the views
and habits of their own people and sometimes act against their own
people. Such a stray minority is readily formed where two cultures
are in close contact. The individual lives in the midst of his own
community, but is not of the community; he is an outcast among
his own people and can find no anchorage with the people of the
other culture. He does not contribute to buildin9. up his own people
and is of no significance in the other culture 3• '
9. After he had dealt with the general aims of the Bantu Education
Act as outlined above, Dr. Verwoerd referred to methoqs to be employed
in order to give effect to the reforms contemplated. He mentioned four
measures, viz.,
(a) "... the control of the education system is taken out of the hands
of the provinces and placed in the hands of the Department of
Native Affairs so that a uniform education policy in accordance
with the broad policy of the country can be introduced so that
education can be Co·ordinated with other services and so that the
4
co-operation of the Bantu can be organized ";
(b) ". . . the local control of the schools under the supervision of the
State is entrusted to Bantu bodies which must now learn to perform
a service for the community as a whole ... The mission school is
replaced by the community school 4";
(c) "... the control of schools which do not serve local communities
but whole areas, that is, institutions for advanced education and
especially for the training of teachers, must be controlled by the
Department itself 4";
1 U. ofS.A., Pari. Deb.• Senate,Vol. II (1954), Cols. 26r8·26r9.
2 U. ofS.A., Pori. Deb.,House of Assembly, Vol. 83 (1953}, Col3:J77•
3 U.G. 53-1951, p. 128 (para. 743).
• U. ofS.A., Pari. Deb., SenaleVol. II (r954), Col. 2599. RE]OINDER OF SOUTH AFRICA
43
{d} "... it will be arranged that the Bantu themselves will carry an in
creasing amount of the cost of expanding their education services.
The principle of a Native Development Account is re-established in
practice by the creation of a Bantu Education Account 1".
10. Describing existing Native schools generally as "schools within the
Bantu society, but not of the society" 2,Dr. Verwoerd stated in his afore
mentioned speech of 1954 that it was the intention "to transform them
into real Bantu community schools" 2•To effect such a transformation,
he said, Bantu education would have to comply with the following
requirements:
"Firstly, (a} every Bantu taxpayer must have an equal right for
his children to the fondamental education facilities which can be
provided from the available funds. This is education in Sub (a)
and (b) and probably up to Standard II, therefore in reading
writing and arithmetic through mother tongue education, as well as
knowledge of English and Afrikaans and the cardinal principles of
the Christian religion. (b) The money which is contributed by the
European and the Bantu taxpayer must be used to the greatest
possible advantage for the greatest possible number.
Secondly, {a) the Bantu pupil must get knowledge, training and
an attitude in school which will be useful and advantageous to him
and at the same timc benefi.this community. (b) The subject matter
must be putto him in such a way that he can understand it easily
and make it his own so that he can benefi.tand serve his community
in a natural way. (c) The school education must also equip him
to meet the demands which the economic life in South Africa will
make on him.
Thirdly, the Bantu teacher must be utilized as an active factor
in this process of development of the Bantu community to serve his
community and build it up and learn not to feel above his community
so that he wants to become integrated into the life of the European
community and becomes frustrated and rebellious when this does
not happen and he tries to make his community dissatisfied because
of such misdirected and alien ambitions 3."
II. In dealing with the practical steps which would be taken to carry
out the aforesaid requirements, Dr. Verwoerd made the following points:
(a) The primary school curriculum would consist of two complete
courses, viz., the lower or fondamental course, and the higher
course~.
Dr. Verwoerd said in this regard:
"Education in the lowest classes is seriously affected by what
is described as the Standard VI mentality of the teachers.
This means that the education is conducted as if every pupil
will finish the whole primary course. In practice, as a result,
just the opposite has happened. As the figures show, approxi
mately 3t percent. of the pupils finish the primary course. In
1 U. ofS.A., Parl. Deb., op. citCols. 2599-2600.
2 Ibid.,Col. 2606.
3 Ibid.,Cols. 2606-2607. (Italics added.)
4 Ibid.,Col. 2608.Vide alsoU.G. 53-1951, pp.121-122 (paras. 686 and 688).44 SOUTH WEST AFRICA
other words, the hold of the schools on the pupils Ieaves much
to be desired ."
(b) Curricula in the fondamental stage would not go further than to
teach pupils-
"... to read, write and do arithmetic through the mother
tongue medium, and begin to learn Afrikaans and English
with religious education and singing i".
Dr. Verwoerd pointed out in this regard that the requirement of
mother-tongue instruction up till at least Standard 11 was not a
new one, but that it had largely been ignored in the past 3,and,
also, that the syllabuses, for the lowest classes would not differ
fundamentally from those then prescribcd in the various provinces,
but not always used in practice •.
(c) After stating that the curriculum of the schools envisaged a system
of education which, starting with the circumstances of the com
munity, aimed at meeting the requirements of the community
and which would be "carried by the mother tongue of the pupils" \
Dr. Verwoerd said 4;
"The economic structure of [South Africa] of course results in
the Natives in large numbers having to earn their living in the
service of Europeans. For that reason it is essential that Bantu
students should receive instruction in both official languages
from the beginning so that they can already in the lower
primary school develop an ability to speak and understand
them •."
Dr. Verwoerd explained that his remarks, as summarized in this para
graph, were concerned largely with "the basic lower primary school
course" which would soon be "introduced everywhere" s. He stated that
urgent attention would also be given to certain changes in the "higher
grades", of education 6, and indicated that there would be an expansion
of school facilities for Bantu dùldren. He pointed out in this regard
that expenditure on Bantu education, including school feeding, during
the then current year amounted to fS,500,000, and that expenditure per
capita ofthe population was higher than in the case of "any other Native
community in Africa" 7.
12. Having in the preceding paragraphs given an outline of the general
aims of Respondent's Bantu education policy in South Africa, Respon
dent now proceeds to deal in this and the succeeding paragraphs with
specific allegations made by Applicants.
In discussing Respondent's general education policy Applicants make
the following allegation: "Education in South Africa and in South West
Africa is geared to the objectives of Respondent's general policy of
apartheid 8. "
1 U. ofS.A., Parl. Deb., Senate, Vol. II (1954), Cols. 2608-2609.
2 Ibid., Col. 2609, vide alCol.26u, where handicraft is also mentioned.
l Ibid., Cols. 2609-~6IO.
• Ibid., Col. 2611.
~Ibid .. Cols. 261 r-2612.
6 Ibid., Col. 2612.
1 Ibid., Col. 26o7.
8 IV, p. 364. REJOINDER OF SOUTH AFRICA 45
This statement is true as far as it goes. Respondent has already stated
that its educational policy conforms to its general policy of separate
development in that separate educational facilities are, as far as is practi
cable, provided for the various population groups. In this sense Res
pondent's educational policy relative to the Native population, like its
policy relative to all the groups, forms an integral part of state policy.
It has already been explained that Respondent's policy of separate
development is based on the fact that there are material differences
between the various population groups, and that the policy is directed
at the development of the said groups into independent, self-respecting
communities. It is therefore misleading to refer only to Respondent's
"'Native' education policy" 1 as having "corne to form an integral part
of state policy".
13. In other respects, too, Applicants make allegations, or refer to
statements made by others, wlùch misrepresent Respondent's policy
and intentions. Thus, they state:
"The asserled objectives of Respondent's policy of apartheid are
that the various 'non-European' groups be separated in every
possible way from the 'European' group and from each other, that
such 'non-European' groups 'develop' m their own manner and at
their own rate to form their own institutions and communitie1, and
that such groups eventually 'have self-government ... ' "
Respondent points out that in the above passage Applicants have used
two expressions extracted from the Counter-Memorial, viz., "develop"
and "self-government", which they have mingled with assertions of their
own in order to render a distorted version of the objectives of Respon
dent's policy. In this manner they create the impression that Respondent
enfo,ces separation on the non-European groups in "every possible way".
This is, of course, not the case. As Respondent bas explained, it recognizes
the differences between the various population groups and their desires to
be treated as separate communities, to which desires Respondent gives
effect as far as is practicable. There is accordingly no question of the
groups being kept apart in order that they may "form their own ...
communities". Their existence as separate communities has at all times
been a fact. Applicants' statement in question, by the use of the words
"'develop' in their own manner and at their own rate", also creates the
impression that there is neglect on the part of Respondent in that it
allegedly leaves the non-European groups to develop on their own
without encouragement, advice or assistance from Respondent. There is
no truth in such a suggestion. Throughout the Counter-Memorial proof
is given of the efforts made by Respondent to promote the well-being,
progress and development of all the inhabitants of the Territory. Indeed,
in the very section of the Counter-Memorial from which Applicants have
extracted the words "have self-government" Respondent explained,
with reference to developments in South Africa, that-
"[i)n the process of advancement towards this gnl. m~1sures hwe
been and are constantly being taken to develop the Bmtu areas, .
and it is Respondent's belief that the Bantu the:melves sh?·.1ldplay
an active part in this development. In this proce:;s of develop'llent
Respondent, through its Departments of Bantu Administration and
1 IV, p. 364. (Italics added.) SOUTH \\ŒST AFRICA
Bantu Education, employs and trains Bantu who can contribute
to the development of their areas and to the advancement of their
own people 1.''
The same approach is followed by Respondent in promoting the progress
of the Native groups in South West Afrlca in ail spheres of administration,
including education. ln testimony thereof Respondent need only refer
to the findings of the Odendaal Commission with regard to present
conditions in the Territory, and to Respondent's acceptante of the recom
mendations of the Commission, which recommendations are aimed at
further and accelerated pro~ss of the non-European groups in the
Territory, especially the Natives.
14. Applicants rely on a statement of the International Commission of
Jurists to the effect that the Bantu Education Act and subsequent Acts
pertaining to education-
"... are necessary to complement the African reserve, group areas
and pass law legislation which aim at separate and restricted
development of the non-white only to the labour level required by
the Europeans 2".
It is hardly necessary for Respondent to say that this contention of the
Commission is without substance. None of the legislative measures
referred to by the Commission is aimed at "restricted development of the
non-white", or has that effect. The facilities provided, and opportunities
created, for the educational advancement of the non-White groups, and
the level of advancement already attained by many of them, refute
the suggestion of the Commission. lndeed, as has been demonstrated
above 3, the very object of the Bantu Education Act is to build up sound,
self-respecting Bantu communities in which there will be no limit to the
level to which members of such communities would be able to aspire in
both the educational and economic spheres.
15. Applicants say:
"The basic assumption of apartheid, which therefore constitutes a
fortiori a basic premise of 'Native' education policy, is that there is
an unbridgeable gulf between the population 'groups' 2."
In making this statement, Applicants refer to three sub-paragraphs in
Respondent's Counter-Memorial 4 which dealt with certain aspects of
policy relevant to a particular issue raised in Applicants' Memorials 5•
Elsewhere in the Counter-Memorial 6 Respondent dealt in detail with the
circumstances and considerations goveming its system of separate
education for the different population groups of South West Africa. These
expositions, when read as a whole and in their context, do not in the
least support the "unbridgeable gulf" contention.
Applicants proceed to sa.y that the Commission on Native Education
{the Eiselen Commission) whose recommendations resulted in the
Bantu Education Act, found in its report that:
"The Bantu child cornes to school with a basic physical and
1 Ill,p. 527.
2 IV, p. 365.
3 Vide paras. 5-6,sup,-a.
4 Ibid., footnote 2, being a referento III, p. 527 (paras. (b)-(d)).
5 1, pp. I57-158.
6 Vida III, pp. 353-372 and 376-382. REJOI:SDER OF SOUTH AFRICA 47
psychological endowment which differs, so far as your Commissioners
have been able to determine from evidence set before them, so
slightly, if at ail, from that of the European child that no special
provision has to be made in educational theory or basic aims 1."
Applicants' suggestion seems to be that, in the light of this view of the
Commission, there is no ground for differentiation in the case of education
for children of the Native and European groups. Applicants, however,
neglect to say that, whilst the Commission thought that no special
provision had to be made in "educational theory or basic aims", it
nevertheless thought that there were various factors which aflected the
content and methods of the Bantu child's early instruction. The Commis
sion stated-to cite the rest of the paragraph in the report from which
Applicants quote:
"The now universally accepted principle of leading the child in
his education from the known and familiar to the unknown and the
nnfamiliar has to be applied equally in the case of the Bantu child
as with children of any other social group. But educational practice
must recognize that it bas to deal with a Bantu child, i.e., a child
trained and conditioned in Bantu culture, endowed with a knowledge
of aBantu language and imbued with values, interests and behaviour
patterns leamed at the knee of a Bantu mother. These facts must
dictate to a very large extent the content and methods of his early
education 2.''
Dr. Verwoerd dealt with the same matter in his 1953 speech in Parlia-
ment 3 when he said, inter alia:
"... your teaching should begin where ail education should begin,
namely with the known facts or common knowledge. The common
knowledge of the white child is different from that of the Bantu
child. Everybody who bas had anything to do with intelligence
tests knows that when you try to apply an intelligence test based
on the common knowledge of children of a certain community, the
test can be a complete failure and give entirely wrong resµlts in
respect of children not falling within the same group of common
knowledge. If the contents of that intelligence test is based on the
knowledge of an urban child, you cannot apply that same test to
the rural child. He possesses a different fund of common knowledge.
The same applies to education. It is therefore also correct to say
that Bantu education must of necessity be different, because it bas
as its starting point other sources and other kinds of knowledge.
One should therefore not confuse fondamental principles of educa
tion which may be similar for ail people, with the practical form
which positively differs for different people 4."
16. In illustration of what Applicants describe as the "intention of
Respondent's 'Native' education policy" or "basic policy", Applicants
cite short extracts from the speeches by Dr. Verwoerd in the South
African Parliament which have been referred to above 5•
1 IV, p.365, footnote 5.
2 U.G. 53-1951. p. 131 (para. 773).
3 Vide para. 4,supra.
4 U. of S.A., Pari. Deb., House of Assembly,Vol. 83 (1953),Col.3585.
5 Vide paras. 4, 5and 7-n, sup,a. SOUTH WEST AFRICA
Applicants use these extracts and comment thereon out of context in
an attempt to establish a charge that Respondent's Native education
policy is inspired by improper motives towards the Bantu of South Africa
and, by necessary implication, also towards the Native inhabitants of
South West Africa.
Respondent submits that if due regard is had to the full text of the
speeches from which Applicants have extracted the passages quoted by
them, the said speeches do not establish what Applicants seek to prove.
Indeed, a proper reading of these speeches will show that Respondent's
policy of separate development, and its educational policy as implemented
in the Ban tu Education Act, do not aim at unfair discrimination against
any population group, Native, Coloured or European, but are directed
to the very opposite end, namely to bring about a situation in which,
by a system of separate development, unlimited opportunities in the
educational and in all other spheres will be possible for all sections of the
community. In this way Respondent aims at seeking a solution to the
problem that besets countries like South Africa and South West Africa
which are populated by heterogeneous communities standing at different
levels of development, possessing different languages, cultures and cus
toms, and desiring to prcserve their separate identities. In these circum
stances Respondent regards it as in the best interests of the Native groups
that education should be provided for them in separate institutions where
due consideration can be given to their specific culture, outlook and as
pirations.
Itwill be observed that although Applicants speak of the "intention"
of Respondent's educational policy, they make no reference toits primary
aims of strengthening and building up healthy, self-respecting and
self-governing Bantu communities. For Applicants the "intention" lies
in the fact that the policy does not contemplate an attempt at the creation
of one single and integrated society in which all individuals have identical
rights. This they regard as basically wrong, and it is for this very reason
that they seek to establish improper motives on Respondent's part. As
will be.shown in the next succeeding paragraphs, their attempts in this
regard are singularly without success.
17. Referring to the aforementioned speech made by Dr. Verwoerd
on 7 June 1954, in which he stated, inter alia, that "[t]here is no place for
the [Native] in the European community above the level of certain forms
of labour. Within his own community however all doors are open to
him", Applicants say: "Any concept of 'equality' of the 'Native' and the
'European' is, therefore, antithetical to this basic premise 1."
Since Respondent's policy does not aim at creating inequalities as
between the European and Native population groups, but at providing
separate facilities which, inasmuch as they are intended to serve the
different interests of the varions groups, are not identical in all respects,
but are nevertheless in principle of the same nature, Applicants' complaint
can arise solely from the fact that there is a separation between the groups.
Applicants are, however, not content to rest their charge on this basis
only, but proceed with an attempt to establish mala {ideson Respondent's
part. Thus they say, with reference to another statement made by Dr.
Verwoerd, that-
"Respondent apparently hopes to avoid this 'frustration' [of the
Natives], in part, by creating a utilitarian scheme of education for
1 IV, p.365. REJOINDER OF SOUTH AFRICA 49
the 'Natives' in the Territory which will train them to continue
serving the 'White' group without 'frustration', on the one hand, and
to tend to their own problems in their own 'areas' by themselves, on
the other 1."
In support of this statement they cite another passage from a speech of
Dr. Verwoerd in which be said, inter alia:
"Uptil now [the Native] bas been subjected to a school system
which drew him away from his own community, and practically
misled him by showing him the green pastures of the European but still
did not allow him to g,aze there 1."
From a proper reading of Dr. Verwoerd's speech it will be seen that it
was precisely because of the limitations which prevented the Natives
from being absorbed in and progressing within the European cornmunity,
that Respondent's policy aimed at providing, and educating thern for,
opportunities of advancement within their own comrnunities.
Applicants advance nothing which can serve to support thcir con
tention that Respondent's policy is directed at training the Natives to
"continue scrving the 'White' group". It is purely a figment of their
imagination. Indeed, a total lack of evidence to support their allegation
leads them to omit from another passage quoted by them from a speech of
Dr. Verwoerd, a vital part which contradicts the very charge made by
thern. There they quote Dr. Verwoerd as having said that Native edu
cation is planned so that-
"[it) will be suitable for those who will become the industrial
workers in the country and also that education can be suitable for
those who have to stand on their own feet in the reserves and who
will have to 2onserve their soil and develop their agricultural
activities ... ".
In this speech Dr. Verwoerd stated that the control of Native education
would be transferrcd from the four P.rovinces to a single departrnent of
State so as to ensure, inter alia, a umforrn education policy, but that the
principle of uniformity would not preclude efficient dccentralization or
diversified cducation to meet various circumstances. Even in a uniforrn
policy, be said, education could be made suitable for various classes of
men of the future: not only industrial and agricultural workers, but also
fanners in the reserves, and professional men. \Vhat Applicants con
veniently omitted from the passage quoted by them are the following
words, which concluded the passage:
"... that education can also take into account the requirements of
those who will become the rural and agricultural workers, and it can
also keep in mind those who would develop to the higker professüms 2l,y
means of which they will be able to seroe their own wmmunity ".
(ltalics added.)
Respondent submits that the conclusion which Applicants seek to draw
from their incomplete quotation of part of Dr. Verwoerd's speech does
not merit further consideration.
18. Another part of a speech of Dr. Verwoerd quoted by Applicants,
which, if read out of context, creates a wrong impression, is the following:
1 IV.p. 366.
2 U. of S.A., Pa,l. Dib., House of Assembly, Vol. 83 (1953). Col. 3580.50 SOUTH WEST AFRICA
"I just want to remind hon. members that if the Native in South
Africa to-day in any kind of school in existence is being taught to
expect that he will live his adult life under a policy of equal rights, he is
making a big mistake 1."
This passage is described by Applicants as the "most concise illumination
of Respondent's basic policy" 1•
This single passage, read out of context, does not illuminate, but rather
creates a wrong impression of Respondent's policy. The remark made by
Dr. Verwoerd related to the aspect of the policy of separate development
which envisages the most appropriate and beneficial advancement po
tential of the Native as lying not in attempts at creating an integrated
society, but in the development and progress of a heterogeneous society
in which, while there is denied to the Native equal rights in European
areas, there is reserved to him rights of priority in his own areas. Dr.
Verwoerd's remark applies mutatis mutandis to the position of the Euro
pean in the Native areas. ln its proper perspective, therefore, this state
ment also does not in any way serve to establish improper motives on the
part of Respondent.
19. Applicants also profess to find support for their abovementioned
charge regarding the intention of Native education in a paragraph in the
report of the Eiselen Commission. Applicants say:
"The Eiselen Commission, in discussing the plan with regard to
language instruction, expressed the view that instruction should
proceed so that 'the Bantu child will be able to find his way in
European communities; to follow oral or written instructions; and to
carry on a simple conversation with Europeans aboiû his work and
other subjects of common interest'1."
Applicants seem to suggest that the Eiselen Commission held the
view-and, also, that Rcspondent shares that view-that Native children
need be taught no more English or Afrikaans at school than would be
sufficient to make them capable ofunderstanding instructions given them
as employees of European masters.
The Eiselen Commission, however, did not, to the knowledge of Re
spondent, either say, or intend, anything of the kind. The Commission,
well aware of the fact that many Native pupils leave school during the
first four-or even two-years of schooling 2, and, also, aware, of the
contradictory views held by educationists as to the wisdom of teaching a
foreign 3 language to children in primary schools ~ felt that in South
Africa economic considerations made it necessarr. in the interests of the
Native children to teach them English and/or Afnkaans at an early stage.
The Commission stated in this regard:
"Your Commission wishes to emphasize, however, that economic
considerations make it absolutely necessary that the Bantu child
should obtain a knowledge ofone or both ofthe officiallanguages while
he is stillat school. The Bantu population is indeed so alive to this
that they consider it the main object of the child's schooling 5."
1IV, p. 367. (Italics addeby Applicants.)
z U.G. 53-1951, p. 134 (para. 796)
3 I.e., a language other than the child's mother tongue.
4 U.G. 53-1951, p. 146 (para. 922).
s Ibid. (para. 923). REJOINDER OF SOUTH AFRlCA 51
From the paragraph of the Commission's report referred to by Applicants,
it appears clearly that the Commission dealt only with the minimum of
English or Afrikaans which should be taught to those pupils who do not
proceed beyond the lower primary standards. Itdoes not refer to language
instruction above the level of the lower primary course. The said para
graph reads as follows:
"We also wish to point out that witnesses, particularly the Bantu,
laid great stress on the need to teach bath official languages. We are
therefore of the opinion that provision should be made for instruction
in both these languages even in the lower primary school, and this
should be done in such a way that the Bantu child will be able to
find his way in European communities; to follow oral or written
instructions; and to carry on a simple conversation with Europe1ns
about his work and other subjects of common interest ."
Dr. Verwoerd, in one of the speeches from which Applicants have
extracted certain passages, also referred to the fact that a low percentage
2
of Native pupils completed the lower primary standards , and that the
economic structure of South Africa was such that many Natives earn
their living in the service of Europeans. "For that reason", he said,
"... it is essential that Bantu students should receive instruction in
bath official languages from the beginning so that they can already
in the Iower primary school develop an ability to speak and under
stand them 3".
20. Applicants also cite excerpts from the work of Lord Hailey, An
African Sitrvey, in which he states that the-
"... advocates of the principle of separatism clearly hold that the
gulf between the European and the Bantu is so deep that it would be
unprofitable, even if it were not politically inadvisable, to attempt to
bridge it ~".
Another passage cited by Applicants from this work is ta the effect that
the passage of the Bantu Education Act-
''... amoun ted to a decision tha t educatian on European lines would
be no good to an African in the sphere which he was now destined to
:611,nd it might even be dangerous, as encouraging him to trespass
into that occupied by the European 5".
Save in one respect Respondent is not in disagreement with the light
in which Lord Hailey views the abjects of the Act. The respect in which
there is disagreement is the view which he expresses as to the "sphere
which [the Native] was now destined to fill". As will be clear from the
statements of policy referred to above 6,the abject of the Act was not to
divert the Native from a sphere which he was formerly either allowed or
"destined" to fill into a new sphere. The legislature recognized the
limitations which in fact existed for the Native within the areas of the
European community and for that very reason sought to create oppor
tunities for him within his own community-hence the aim of adapting
1
U.G. 53-1951, p. 146 (para.924).
z U. of S.A., Pari. Deb., SenateVol. II (1954), Cols. 2598 and 2609.
3 Ibid.,Col. 261r.
~ IV, p. 365.
5 Ibid., p. 366.
6 Vide paras. 5 et seq., supra.52 SOUTH WEST AFRICA
the educational system to conform with the broader objects of the policy
of separate development, in which the Native groups are intended to
develop as separate and self-respecting communities to ultimate self
realization.
21. Finally Applicants refer to a statement allegedly made by Re
spondent's Minister of Bantu Education in the course of a speech made
on 22 August I959 1,and they contrast this statement with a passage in
Book VII of Respondent's Counter-Memorial 2•The allegation made by
Applicants is that the Minister, in contrast with the "benevolent form
of expression" 1 used in the Counter-Memorial, made a "more forthright
admission" 1in the words ascribed to him. Precisely what the Minister is
alleged to have admitted 3, is not stated by Applicants. The suggestion
seems to be, judging by the words which Applicants italicize + and by
what they allege in the Reply 1,that the Minister made it plain that it has
been, and is, Respondent's intention "to ensure the paramountcy of the
white man in South Africa", and not to allow the Bantu to fill any but the
lowliest occupations.
The fact is that the Minister did not say, or intend to convey, any such
thing.
Respondent wishes to point out the following in regard to the statement
attributed to the Minister of Bantu Education and the speech made by
him on the aforementioned date:
(a) The statement quoted by Applicants is, on the face of it, a summary
of what is supposed to have been said.
(b} The speech in question was not, as is alleged by Applicants, broad
cast by the South African Broadcasting Corporation, either at the
time alleged or at ail; nor did the Corporation fumish the text of the
statement to Dr. Xuma, who is alleged to have quoted it in a paper
read by him s.
(c} The statement quoted by Applicants is an incomplete and distorted
summary of what the l\linister actually said. The Minister did not say
that every law conceming the Natives which had been passed by the
Govemment had been passed with the object of protecting the
\Vhite man. Such astatement would have been ridiculous, and untrue.
Nor did the Minister say that every such law was intended-or that
1 IV, p. 367.
z III,p. 529 (para. 20 (h)).Respondent in this paragraph made the point that
its policy of separate development involves advantages for the educated and more
advanced members of the Bantu groups, and that because this policy is in a stage of
transition from an earlier position of "\\'bite guardianship and leadership in every
sphere of a partially integrated economy to equality of opportunity for members of
the non-White groups in the form of leadership in largcly separated, though mutually
interdependent cconomies of their own groups", Respondent has '"found it bestas
a matter of practical policy, to respect the unwillingness of members of the 'White
group to serve in positions of subservience to members of the Bantu groups, but at
the same time to create compensatory opportunitics for higher employment of
members of the last-mentioned groups through acceleration, as far as practicable,
of the development of their own homelands and economies".
3 As will be indicated below, Respondent denies that the Minister used the words
ascribed to him.
• Viz., '"to ensure the paramountcy of the white man in South Africa".
5 IV, p. 367, footnote 3. REJOINDER OF SOUTH AFRICA 53
the Government intended-to ensure the paramountcy of the \Vhite
man in South Africa. Such a statement, if made without qualification
limiting it to the parts of South Africa intended to be "white'',
would have been in conflict with what Respondent's Prime Minister
had stated only three months previously, viz.:
"I say that if it is within the power of the Bantu and if the
territories in whi.ch he now lives can develop to full indepen
dence, it will develop in that way 1."
"Therefore to talk about partition and subdivision as bei:riga
distasteful pattern is utterly nonsensical, because in terms of
both policies there will be Black areas, and in terms of the
policy of apartheid the White man will at least control his own
area, whatever the difficulties might be and however hard it
might be. He at least has the opportunity to save himself
which under the other circumstances of a multi-racially
controlled state he will not have 2."
(d); The Minister of Bantu Education made the point that peaceful and
friendly relations could best be ensured by having separate areas
for Whitcs and Bantu, and that the development of the Bantu in a
unitary state, or under a policy of partnership with the Whites,
held greater dangers for the latter than the development of the
Bantu in their own areas. Political power, the l\Iinister said, would
have to be given to the Ban tu, but it would be given to them in their
own areas, and not in South Africa's existing Parliament.
(e) The Minister also said that education would in future play an
important part in relations between the \Vhites and the Bantu. For
that reason, and to prevent wrong developments, the Govemment
had decided to assume control of Native education. The Minister
then dealt with these aspects of Bantu education on substantially
the same lines (although much more briefly) as Dr. Verwoerd had
done in his speech in the Senate in 1954 3• He said, inter alia, that
the Bantu should be equipped to serve their own people; that
educated Bantu should strive to develop their own communities;
and that education in the past had often wrongly led the Bantu to
believe that they could fill jobs in the White economy when, in fact,
such jobs were not available to them.
In the premises it is clear that this speech of the Minister of Bantu
Education does not support Applicants' contention.
C. Categorization
22. Applicants' allegations in this section of the Reply may be sum
marized as follows:
(a) that Respondent's policy is one which has regard to "groups", and
considers individuals only as members of groups;
(b) that the "policy of differentiation ... is rigidified by its ready
suitability for the development of the policy outlineq" thereafter 4,
by which is apparently meant a policy of alleged oppression of the
1 U. of S.A., Parl. Deb., House of AssemblyVol. ror (r959), Col. 622r.
2 Ibid.,Col. 6223.
3 Vide paras. 5et seq., supra.
• IV, p. 370.54 SOUTH WEST AFRICA
Natives; and that it "enables Respondent to adopt differentiated
1
policies of expencliture" •
Respondent will deal with Applicants' specific allegations in the order
aforestated.
23. Applicants say that "[t]hroughout its Counter-Memorial, Re;
pondent expresses its policy in terms of 'groups' " , and that a "rigid
tendency to categorize by group designation is the recurrent theme of the
metaphysics of apartheid" •
As has been shown in the Counter-Memorial, Rcspondent's policy in
South West Africa is one of separate development of the various popula
tion groups which constitute the total population of the Tenitory. The
reasons forthis policy have been dealt with before 4.and it is not intended
to do so again. lt will be sufficient to repeat that the population of the
Territory has never been a homogeneous one, but, on the contrary, is
composed of several distinct racial and cultural groups; that in regard
to education-
"... it is Respondent's firm belief that it would be failing in its duty
under the Mandate if it were to abolish its present system of separate
schools for the respective groups and to substitute for it schools
which will be open to ail the groups. Not only would such a system
lead to dissatisfaction and group friction, but it would also result
in the ncglect of the needs of ail the groups and in irreparable harrn
5
to the Terri tory as a whole ",
and that it is Respondent's conviction that its policy of separate develop
mentis best able to avoid or reduce to a minimum ail undesirable aspects
and manifestations of group reactions, such as unfair discrimination,
domination of one group by another, and the like 6•
Respondent belicves, in other words, that it will be inadvisable to
attempt to establish an integrated, or single, society in which group con
siderations will be absent, or count for nothing: a society, in other words,
which will know only "inclividuals", and not "groups", or "mernbers
of groups".
The aforegoing does not mean, as Applicants allege, that Respondent
3
has regard to individuals only as members of groups ,or that Respondent
"does not attempt to provide for the 'particular needs' of individuals
comprising the groups" 1•On the contrary, the separate development of
the groups will, it is Respondent's conviction, provide for the individual
members thereof the best possible opportunities for sclf-realization, what
ever the level such individuals may be capable of achieving. As has been
seen, this is one of the most important objectives of the policy. Applicants
base their allegations on Respondent's use of words like "group",
"groups", "members of groups", etc., in cases where, as will appear from
an analysis of the statements referred to by them, Respondent dealt with
the differences beh\·cen the varions population groups, or with the reasons
underlying its policy for clifferentiating between the groups. It was, of
tIV, p. 370.•
2 Ibid.pp. 367-368. Applicants· references to the Counter-Memorial are, however,
inthe present content, limited to Book VII thereof.
~ Ibid.,p. 368.
4 Vide li,pp. 404-488.
5 Ill, p382.
6 Ibid.,p. 528. REJOINDER OF SOUTH AFRICA
55
course, only natural that Respondent, in dealing with its policy in the
Counter-1\lemorial, should frequently have used words like "groups",
"members" of groups, "children" of groups, etc. On occasion it also used
the word "group", or "groups", to signify the individual members com
posing a particular group or groups 1•When regard is had to the context
in which these words are used in the Counter-Memorial, they cannot, by
themselves, justify allegations of the kind referred to above. Nor can it
be said that Respondent, in using such expressions in the context stated,
formulated its "concept of the role of the individual in human society" 2•
In the following paragraphs Respondent deals with the specific alle
gations made by Applicants in this regard.
24- Applicants say that nowhere in the Counter-Memorial is there "a
sign of an individual being considered other than as a member of a
3 4
group" ,and they refer "especially" to certain pages of Book VII of the
Counter-Memorial where Respondent dealt briefly with social and econo
mic conditions, past and present, in South Africa, and with certain basic
considerations which contribute towards the motivation of Respondent's
policy of the separate development of the European and Bantu popu
lation groups of the country 5 •Respondent pointed out, inter alia, that
there "has, throughout South Africa's history, been social separation
between the White and Bantu groups; that the members of each group
prefer to associate with members of their own group; and that certain
kinds of close contact between members of the two groups, particularly
in the more intimate spheres, tend to create friction" 6, and stated its
conviction that a policy of separate development of the groups was,
both in South Africa and South West Africa, best able to avoid or reduce
to a minimum ail undesirable aspects and manifestations of group reac
tions 7. Respondent, in other words, stressed that there had, as a fact,
always been separate societies in South Africa, and expressed the view
that attempts to create an integrated, or single, society would create
competition and conflict, to the detriment of all concerned. This, in
Respondent's submission, is no justification for saying that Respondent
has regard to individuals only as members of groups.
In this same regard Applicants refer, in a footnote, to a brief passage in
the report of the Odendaal Commission reading as follows:
"The moral and econornic principles of a modern economic system
are different from those of traditional groups where the group and
8
not the individual is the focal point .''
It is not clear what point Applicants seek to makc in this regard, particu
larly since the passage quoted seems to be contrasted 9 with the pages
of the Counter-Memorial mentioned in the same footnote. The intention
may be to convey that the Commission's ascription of certain "moral
1
Vide passage quoted at IV, p. 370 ending with the ita.licized words "highest
level they can atta.in".
2 IV, p. 369.
3 Ibid.,p. 368.
4 Ibid., in footnote 3.
5 III, pp. 527-530.
6 Ibid., p.527.
1 Ibid., p. 529.
8 IV, p. 368, footnote 3, referring toR.P. No. 12/1964, p. 427 (para.. 1431).
9
Vide the "Cf." in footnote 3 at IV, p. 368. SOUTH WEST AFRICA
and economic principles" to traditional groups is an unwarranted "cate
.gorization", or that there is no justification for saying that in the case of
traditional groups "the group and not the individual is the focal point"
or, perhaps, something else; Respondent does not know. Be this as it may,
it is Respondent's submission that there is adequate authority for the
view expressed by the Commission.
The relevant paragraph in the Commission's report reads as follows:
"The moral and economic principles of a modern economic system
are different from those of traditionalgroups where the group and not
the individual is the focal point. The modern economic system and
the traditional system are therefore not comparable or readily
reconcilable. Their problems are different, their human values and
motivations are different. Consequently there has to be a differen
tiated policy, since-
'to assume, as is sometimes done, that one may proceed from a
strictly economic analysis of the development problem to a
prescription of a program for development without careful
attention to the social-cultural environment \Vithin which this
program will have to be undertaken is to proceed in ignorance
towards almost certain disillusionment and possibly outright
disaster' 1." (Footnote omitted.)
This is followed by a paragraph which begins as follows:
"White in the case of the Whites the primary problem is one of
further technological development, in the case of the traditional
non-White it is one of socio-cultural transformation providing
increasingly for the adoption and spontaneous application of modern
production methods and aims. Socio-ctùtural changes are inevitably
painful and take place slowly ... 2"
The aforementioned views of the Commission are supported by other
authorities.
Thus, in a recent United Nations publication the concept of community
in traditional African society is referred to as follows:
"Traditional Africa is characterized by a social organization in
which the individual lives, acts and works as a member of the group
to which he belongs, whether this group be the family or the village.
Ali social, moral and economic life in the traditional society is
permeated by this Community structure, which governs man's
reaction. ln his civil status, the methods of production, his rights as
a landowner, the sharing of consumer goods, the individual is
dependent upon the other members of the community. ln exchange
for this subordination, however, he gains a solidarity which affords
him relative security. The efforts of the productive unjt, confined
to the family or the village, are limited to providing its domestic
needs; the unit is enclosed within an economy of subsistence 3."
And Westermann wrote as follow of the prevalence of the idea of com
munity in African societies:
1 R.P. No. r2/1964, p. 427 (para. 1431). The quota.tion is from Buchanan, N. S.
and Ellis, H. S.,Approaches to Economie Developrnent (1958),p. 86.
2
Ibid.,p. 427 (para.r432).
3 U.N. Doc. E/CN. r4/r7r, Economie Bulletin for A/rica, Vol. II, No. 2 (June
1962), pp. 92-93. REJOINDER OF SOUTH AFRICA 57
"African society is characterized by the prevalence of the idea of
community. The individual recedes before the group. The whole of
existence from birth to death is organically embodied in a series of
associations, and life appears to have its full value only in these close
ties. Though there is in them a well-ordered gradation between
persons who command and who obey, yet the prevailing feeling is
that of equality ... The group imposes duties on the individual, but
it also grants privileges; it takes from its members much of their
personal responsibility and offers them its protection ... Membership
in a communal bond which involves fellov.rshipwith the co-members
and connexion with the ancestors gives the individual peace of mind
and a feeling of security. The introduction into a conscious partici
pation in the communal life of the group, and a knowledge of the
rules of behaviour resulting from it, form an essential part of
education ."
A modern economist, Prof. A. O. Hirschman, has pointed to what
he describes as a "group-focused image of change" in the case of the
traditional, communal type of society. He writes that even-
"[w]hen the idea of the possibility of economic progress is forcibly
impressed upon the consciousness of such a society, it will be inter
preted to apply only to society as a whole. In other words, individuals
will tlrink of economic change as sometbing that must affect equally
all members of the group with which they identify themselves 2",
and that this "group-focused image of change" is "... incompatible
with any large-scale development aiming at a fundamental transfor
3
mation and modernization of an economy" •
25. Ap;,licantslurport to find the "most extreme" example of Re
spondent S allege "tendency to categorize br group designation" 4 in
the speech made by South Africa's Minister o Bantu Education on the
occasion of the introduction in the South African Parliament of the
Extension of University Education Bill in I959 5• They quote a part of
the said speech, and say that the Minister therein characterized "South
African tribes as 'national units' and 'national groups' "•.
Applicants' allegations are not correct. The Minister did not charac
terize South African "tribes" as "national units" or "national groups",
and in the passage quoted by Applicants he did not, as they suggest,
deal with such Bantu units or groups. The Minister, who spoke in Afri
kaans, used the word "volkseenheid" 6 to describe the European group,
the Coloured group, and varions Bantu groups, or peoples. The word is
quite inappropriate to describe a tribe, and was not intended to refer to
tribes. There are, to cite an example, various Xhosa tribes in South Africa,
and all these tnbes together constitute the Xhosa people, or such a
"national unit" or "national group" as the Minister had in mind. There
are several such Bantu groups or peoples in South Africa. They are, and
1Westennann, D., The African: To-day and Tomorrow (1949), p. 65.
2Hirschman, A. O., The Strategy of EcOt1omic DBvelofhnenl(1960), p. 12.
3Ibid.,p. r3.
4IV, p. 368.
' Vide III, pp.482-486, in regard to separate universities in South Africa.
6 The word "volk" means a "people", while "eenheid" means "unit". Vide III,
p. 484. SOUTH WEST AFRICA
have for a long time been, separate groups which are conscious of, and
desirous of maintaining, their separate identities, and in Respondent's
submission the recognition of such groups as peoples or embryo nations
is not only realistic, but proper.
In the passage quoted by Applicants the Minister, as stated above, did
not deal only with Bantu "national units", but had in mind all such units
in South Africa, i.e., also the White, Coloured and Indian groups. This
1
is clear from the extracts from the speech quoted by Respondent , and
also from words used by the Minister but not quoted in the Counter
Memorial. The following, e.g., occurs in the Minister's speech shortly
after the first extract quoted by Applicants in the Reply 2:
"... it has been our experience that when Ban tu students register at
universities which are really intended for other national groups, the
needs of their own national communities are not taken into ac
count ... 3".
Applicants say that as a result of the outlook refl.ected in the final
paragraph quoted by thern "the social interchange and natural compe
tition necessary for the realization of wider horizons is made impossible" •
and that "Respondent's policy serves to harden the lines of demarcation
and to render static the elements of society" 5•
Respondent bas already shown that ail relevant factors were duly
considered and weighed when it was decided to establish separate univer
sities in South Africa, and that Respondent believes that such universities
serve the best interests of all 6.Respondent bas also sbown that its policy
of separate development is based, inter alia, on the fact that society in
South West Africa, as in South Africa, is not homogeneous, and that the
separate development of the varions groups, or societies, constituting
the population, offers the best prospect of ensuring the peaceful develop
7
ment and co-existence of ail concemed • ln the circumstances Respon
dent does not propose to deal specifically with Applicants' above-quoted
allegations, save to say that it does not understand the allegation that its
policy "serves to ... render static the elements of society". If the con
tention is that its policy in providing for the separate development ofthe
population groups does not foster integration of such groups, tben their
statement may be accepted as correct. If, bowever, the contention is that
the policy of separate development inhibits progress, then the allegation
is emphatically denied. As Respondent bas explained, the aims of its
policy are precisely to promote the progress of all the population groups,
and particularly the Native groups, and proof bas been given of the
achievements actually attained in this regard.
26. Applicants also say that-
"[aJ striking indication of Respondent's attitude is revealed by the
fact that, throughout its Counter-Memorial, Respondent attributes
1 III, pp. 483-484. Vide particula.rlythe last paragraph in the sub-section at
p. 485.
z IV, p.368, footnote 4. The words occur where the first dots appear.
3
U. of S.A., Pa,l. Deb., House of Assembly, Vol. 100 (1959), Col. 3264. {Italics
added.)
4 IV, p. 368.
5 Ibid., pp.368-369.
6 Vide III, pp. 477-489.
7 Il, pp. 457 ff. REJOINDER OF SOUTH AFRICA 59
to individuals qualities and characteristics which may only properly
be assigned to groups 1".
Respondent does not propose to enter into an argument with Applicants
as to how far one can (as Applicants do) properly assign "qualities and
characteristics" to "groups", i.e., apart from the members constituting
the groups. lt is also not clear to Respondent precisely what Applicants
intend to convey, for, apart from referring to one passage in the Counter
M:emorial, they have not attempted to prove the sweeping allegation that
it is a "fact" that Respondent has throughout its Counter-Memorial
attributed to individuals "qualities and characteristics which may only
properly be assigned to groups". The said passage in the Counter
Memorial reads as follows:
"For the White group of South West Africa, which had the
advantage of the education tradition of Western civilization ex
tending over centuries, there was little di:fficulty in devising a
syllabus suitable toits needs 2." ·
Applicants say in regard thereto that Respondent ascribes to "'White'
children of school age, characteristics which may only be properly attri
buted, at ail, to an entire culture seen in the perspective of hundreds of
years" 1•Their allegation is without substance. Respondent did not, and
did not intend to, attribute "characteristics" to children of school age.
What Respondent intended to convey was that when provision had
initially to be made for the education of the children of the European
population of the Territory, it was comparatively easy to devise a syllabus
for them because they bclonged to a group with a \Vestern cultural
heritage. There can surely be no doubt that Western culture, or civili
zation, plays arole in the determination of syllabuses for the children of a
group which has a Western cultural heritage. In the case of the indigenous
3
groups, Respondent pointed out in the Counter-1\femorial that there
was no such tradition of Western education and, accordingly, there were
far more problems in devising a proper syllabus. Perhaps Respondent
can illustrate what was intended to be conveyed by making the following
respectful submission, viz., that the Americans responsible for the
education of American children in Liberia 4will have little difficulty in
framing proper syllabuses and teaching materials for those children, but
that they will fi.ndit a matter of some di:ffi.cultyto do the same in the case
of the indigenous children of the country, parlicularly if there is to be
compliance with the requirement that "[t]hroughout the textbooks the
African child studies should run the fabric of African life and culture" 5.
Without substance, also, is Applicants' further allegation that "[w]hen
Respondent refers to individual human beings, it is in the large" 1. In
order to substantiate this sweeping allegation, they refer to the following
sentence in the Counter-Memorial: "The members of the White group
were derived entirely from peoples and communities regarded as bearers
of Western civilization 6." In this sentence, which occurs in a paragraph
1 IV, p. 369.
2 Ill,p. 363.
3 Ibid .• pp363-364.
• Ibid .p. 382.
~ Ibid., p.380.
~Ibid.,p. 354.60 SOUTH WEST AFRICA
dealing with the "Varying Stages of Advancement of the Different
1
Groups" , Respondent spoke "in the large" because it referred to all the
members of the White population-and it used the word "The" (which
is omitted from Applicants' quotation) before the words "members of the
White group" to make that clear.
In another passage quoted by Applicants from the Counter-Memorial
in this same connection 2, Respondcnt pointed ont, whlle dealing with
differences in the social and economic levels of development of the various
population groups at the inception of the Mandate, that in the case of the
"indigenous groups" there was an absence of a tradition of education
and also, because of their background and tradition-bound economies, an
absence of "those qualities and incentives which characterize a modem
economy and which make for the creation of economic opportunities and
potentialities". Respondent says that its speaking "in the large" in this
regard is wholly justified in the light of circumstances as they existed at
the time, for,. if considerations of the kind mentioned did not apply to
every single member of the groups concemed, the exceptions must have
been very few.
In regard to the aforegoing Respondent says, furthermore, that it is
wrong to suggest that its policy of separate development of the various
groups has no regard to the abilities or needs of individuals comprising
such groups. Thus, e.g., when speaking of opportunities for advanced
employment or economic activity, as created by separate development,
regard is obviously had to individuals who may have special endowments.
27. Having alleged that Respondent "expresses its policy in terms of
'groups' "3, and that it regards even South African tribes as "national
units" or "national groups" 3,Applicants make the surprising allegation
that Respondent's approach is one which-
"... classifies ail 'Natives' or' Bantu' into onelargehomogeneousmass,
without regard to the fact that 'Natives' may and do differ extremely
inter se, as do any other human beings ". (Italics added, save in the
case ofinter se.)
The allegation regarding Respondent's alleged approach is in conflict
with Applicants' earlier allegations. It is also, of course, in conflict with
the true situation, for Respondent's policy of the separate development
of the Native, or Bantu, groups is based on the very fact that the Natives,
or Bantu, do not constitute a homogeneous society, and in fact makes
provision, in as far as is practicable, for their development as separate
communities. Applicants' further allegation that Respondent has no
regard to the fact that Natives differ among themselves, is not true.
Respondent appreciates that individuals of all groups differ amongst
themselves, and says that its policy of separate development of the
different groups has regard to that fact.
28. ln the same paragraph in which they allege that Respondent's
approach is to classify "all 'Natives' or 'Bantu' into one large homo
geneous mass", Applicants make the further allegation that "Respon
dent's only acknowledgement in practice" of the different "levels and
2 IIIp. 354, heading (a).
3IV, p. 369, and vide IIIp. 383.
4 IV, p. 368.
Ibid.p. 369. REJOINDER OF SOUTH AFRICA 61
stages of development" of the various groups is ". to permit the
children of different 'Native' groups to be instructed in different 'mother
tongues' " 1.
It is not appreciated how the use of the mother tongue as medium of
instruction can be said to be in recognition of the fact that the groups are
at different levels of development. Respondent stated in the Counter
Memorial that mother-tongue instruction was sound educational policy 2,
and that experts accepted "as axiomatic, on psychological, sociological
and educational grounds, that the best medium for teaching a child is
his mother tangue" 3•This aspect of Applicants' allegation is, however, of
little importance. What is important, in view of the attitude taken up by
Applicants elsewhere in their Reply, is that the allegation involves an
admission that Respondent's policy of mother-tongue instruction in fact
serves the differing needs of the children of the different Native groups.
Furthermore, the allegation that Respondent "permit[s]" the children of
the different Native groups to be taught through the medium of their own
language implies not only that Respondent is doing something which it
ought ta do, but also that it is acting in accordancc with the wishes of the
parents of the different Native groups.
Respondent points out that the attitude here displayed by Applicants
is in direct contrast to what Applicants allege in regard to mother
tongue instruction in another part of the Reply dealing with education 4•
There they allege, inter alia, that mother-tongue instruction constitutes
"separation of 'Native' children by linguistic classification" 5 ; that it
renders the Native inhabitants of the Territory ever less "able to stand by
6
themselves ... " , that it "thwart[s] the social progress of 'Natives' by
isolating them from each other" 7, and that it "perpetuates, rather than
improves, existing deficiencies" 8•
Asto Applicants' allegation that there is no acknowledgment in practice
by Respondent (save to "permit" the use of mother-tongue instruction)
of different levels and stages of development among the Native groups,
that "the Herero are lumped togethcr with the Dama, the Ovambo with
the Bushmen" 1,etc., Respondent says that it is not true. Respondent in
fact, wherever practicable, differentiates in various respects between
Herero, Nama, Dama, Bushmen, etc., not only because of different
stages of development, but because of the extensive differences between
them {ofwhich level of development is only one)~which differences also
result in a desire on the part of the groups to preserve their separate
identities. The provision of separate schooling facilities, including mother
tongue instruction, is one example of such differential treatment. Pro
vision and protection of different homelands and reserves, and of specific
forms of self-rule, are other instances. Such separate provision extends
also to housing in Native urban areas. Respondent points out, further
more, that its policy of separate development aims at a situation which
1 IV, p. 369.
2 III, pp. 357 and 358-359.
3 Ibid.,p.377.
• Vide IV, pp. 374-383.
6 Ibid., p. 374·
7 Ibid., p. 375.
Ibid., p. 378.
8 Ibid., p. 380. SOUTH WEST AFRICA
is the direct opposite of any "lump[ing] together" of different population
1
groups •
29. Applicants make the following further allegation: They say that
Respondent avers that it is following a policy in the Territory-
"••. which accords the highest recognition to the identity and
cultural heritage of each of the Native groups, and that its policy
endeavours, as far as possible, to provide for the particular needs of
ail the groups 2",
but they add that "Respondent nevertheless does not attempt to ~rovide
for the 'particular needs' of individuals comprising the groups" .
The only "evidence" advanced by Applicants to support this allegation,
which is not true, is the remainder of the paragraph in the Counter
Memorial from which the above-quoted passage is taken, and which
follows immediately thereon. It reads as follows:
"To achieve this object, every endeavour has been made to enable
the children of each of the groups to be educated separatelf in their
own language and by their own teachers. This in itself 1s a vast
undertaking but, in Respondent's view a necessary one. Syllabuses
have been designed to fitthe cultural and historical background of
all the Native groups, and parent communities in these groups have
been given an active share in the education of their children. These
essential foundations having now been well-laid, the groups them
selves are being afforded every opportunity to co-operate in their own
development to the highest level they can attain 4."
This passage does not, in Respondent's submission, afford the slightest
justification for saying that Respondent "does not attempt to provide for
the 'particular needs' of individuals comprising the groups". Respondent
was dealing with the educational facilities provided for the children of
the different groups, and not with the position of the varions individuals
within each group. No educational system can make provision for aU
the needs of every single individual it seeks-to serve. The passage from the
Counter-M:emorial quoted above reveals clearly that Respondent caters
for the needs of the members of the groups by giving them their education
in their own language, through teachers who speak their language, and in
accordance with syllabuses which take account of the culture and histor
ical backgrounds of the various groups and their members. The position is
the same in the case of ail the population groups in the Territory, and
there is accordingly no justification for saying that Respondent "does
not attempt to provide for the 'particular needs' of ùuiividuals C<Jmprising
the groups".
Similar considerations apply in regard to Applicants' allegation that
"[t]he limit of the horizon for a 'Native' is, in fact, 'the highest level
3
[his group] can attain', rather than the highest level he can attain" • The
allegation is made apropos of Respondent's statement that "the groups
themselves are being afforded every opportunity to co--operate in their
own development to the highest level they can attain", but there was no
1
Vide II,p. 474.
z IV, p.370, with reference toIII, p540.
i IV, p.370.
4 m, p.540. REJOINDER OF SOUTH AFRICA
intention on Respondent's part to distinguish between groups and the
members of groups, or to deal with any particular level of development
which any individual could attain. The intention was to convey that
measures had been taken which would enable Native groups (which term,
in the context, includes the members of such groups) to co-operate in
their owri development to the highest level of which they were capable.
30. Applicants allege that "[t]he policy of differentiation by the ex
clusive arrangement of individuals into groups is rigidified by its ready
suîtability for the deveiopment of the policy outlined in Part (B) of this
Chapter" 1• This means, if Respondent understands it correctly, that
Respondent classifies the population into groups so that it can develop a
policy of oppression relating to groups. The true position, as shown
before, is that Respondent's policy of differentiation is based on the fact
that the population is in fact composed of different groups, that there are
differences between those groups, and that these facts are to be duly
recognized in formulating a policy best suited to the well-being and
development of all concerned.
Applicants allege, furthermore, that Respondent's policy, as described
by them, "enables Respondent to adopt differentiated policies of expendi
1
ture, always to the overwhelming disadvantagc of the 'Native' groups" .
They also say, in this regard, that whilst they agree that "[c]olour and
racial origin per se do not determine the distribution of educational
facilities or differential expenditures on education in South West Africa" 2
the "[d]istribution of facilities and differential expenditures ... are, in
fact, determined by the weight given by Respondent to colour and racial
origin" 2•As stated before, Respondent's policy is based on the existence
of different groups and of differences between such groups. It is in no way
based on financial considerations. It is not true to say that "[d]istribution
of facilitiesand differential expenditures" are determined by the "weight"
which Respondent gives to "colour and racial origin". In its Counter
Memorial Respondent dealt at length with circumstances which have
affected the extension of educational facilities in the case of the Native
and European groups, and it is not intended to repeat what is there
stated. Respondent likewise dealt with the question of differential
expenditures in the case of European and Native education, and with the
factors which play a part in that connection 3 ,and refers to what is there
stated.
i IV, p. 370.
2 lbid.,p. 367.
3 III, pp. 382-390 and pp. 532-537. CHA.PTER III
NATURE OF EDUCATION IN THE TERRITORY
A. General
I. In this chapter Respondent deals with section (B) of Applicants'
chapter on education, being the section headed "Nature Of Education
In The Territory" 1• This section consists of an introductory portion 2,
and three numbered sub-sections under the following titles:
"(I} Segregation by Race" 3;
"(2) Separation by Tribe" ·\ and
5
"(3) Limitation of Objectives in Syllabus" •
2. In their aforesaid introductory portion Applicants say:
"H the conditions in 1920 werc those of divided and underdc
veloped 'groups' in a difficult situation, as Respondent is at pains to
point out, surely the conferral of the Mandate was intended to
remedy this situation 6",
and they then proceed to allege that, instead of remedying the position,
" ... Respondent's policies systematically foster and accentuate the
diffcrences between population 'groups' rather than the similarities
which such 'groups' might have developed ovcr forty-three years of
social, economîc, and cultural co-existence 6"••
Respondent's educational policy in South West Africa, Applicants say,
"segregates all of the inhabitants by race" 6,and "separates the 'Native'
inhabitants by tribe" 6• The policy, they also allege, "prepares the 'non
European' inhabitants for a subordinate role in the social, economic, and
cultural life" 2 of the Territory.
3. The aforementioned allegations, as developed in the above-mentioned
sub-sections in ordcr to show, as they allege, that "[s]uch segregation,
separation, and limitation are all in violation of the duty of Respondent
to 'promote ... the material and moral well-being and the social progress
of the inhabitants' of South West Africa" 7 ,will be dealt with below by
Respondent under the headings "Segregation by Race", "Separation by
Tribe" and "Limitation of Objectives in Syllabus".
Before doing so, however, Respondent makes the following observa
tions regarding Applicants' aforementioned broad avermcnts:
(a) In regard to Applicants' allegation that the Mandate intended that
conditions which existed in 1920 should be remedied, Respondent
is in agreement with the proposition that its duties involved the
improvement of the conditions of the "underdeveloped 'groups' ",
1 IV, pp. 370-386.
2 Ibid.,pp. 370-371.
3 Ibid .pp. 371-374.
4 Ibid.,PP· 374-383.
5 Ibid.,pp. 383-386.
6 Ibid.,p. 370.
1 Tbid.,p. 371. REJOINDER OF SOUTH AFRICA
a duty which Respondent has, in its submission, performed to
the best of its ability. In so far, however, as Applicants suggest
that Respondent was obliged to "remedy this situation" by elim
inating the differences between the varions population groups
in an effort to integrate ail the groups into a single community,
the suggestion is denied. As Respondent has already indicated,
the authors of the i\landate themselves recognized the diversity
which characterized the population of the Territory, and con
templated that there would be differential treatment of the various
1
population groups •
{b) lt is derùed that Respondent's policies in the Territory foster or
accentuate differences hetween the population groups. The truth
is that Respondent's policies have, inter alia, by recognizing and
payin~ due heed to differences between racial and cultural groups
inhab1ting the Territory, promoted the peaceful development and
co-existence of such groups. In regard to education, Respondent
has shown in its Counter-Memorial 2 that sound principles underlie
its policy of providing separate facilities for the different popula
tion groups.
(c) Respondent denies that its educational policy in the Territory
"prepares the 'non-European' inhabitants for a subordinate role
in the social, economic, and cultural life of South \Vest Africa" 3•
This broad and sweeping charge is also made by Applicants in
earlier portions of their Reply + and has already been dealt with by
Respondent •
B. Segregation by Race
4. Applicants allege that Respondent's system fosters "racial and
tribal feelings'· 6.and they dispute Respondent's averment that a system
of mixed schooling would "lead to dissatisfaction and group friction ...
[and] result in the neglect of the needs of ail the groups and in irreparable
harm to the Territory" 6. They say that Respondent, by maintaining its
present system, "is inevitably setting the stage for more rrofound dis
satisfaction and group friction than any yet manifested" .
Respondent does not appreciate what precisely is intended to be
conveyed by this allegation. Whilst it is clear that it involves a prediction
of dissatisfaction and friction to corne, it is not apparent to what "dis
satisfaction and group friction" Applicants refer as having occurred in
the past and which, according to their prediction, will become "more
profound" at some time in the future.
In support of their prediction of future dissatisfaction and group fric
tion in South West Africa, Applicants rely on the following statement
made by a former Chief Justice of South Africa, Mr. Justice Centlivres,
in r956, regarding separate universities in South Africa 6 :
"As far as the present writer is aware there was neither in r948 nor
1 Sec. B, pa.ras. n-15,supra.
z Ill, pp. 353-382.
3 IV, pp. 370-371.
• Vide, e.g .. IV, pp. 272, 364 and 365.
5 Vide sec. E, supra,and Chap. Il. paras.5 el seq., supra.
6 lV,p.37r.66 SOUTH WEST AFRICA
in any subsequent year any unpleasant relationship between
Europeans and non-Europeans in those universities which admitted
both Europeans and non-Europeans. ln these racially mixed
institutions the relationship ha.salways been satisfactory ... On the
other hand experience has shown that when the policy of segregated
university institutions is applied, there is a very real possibility of
trouble ... 1."
5. Respondent says the following in regard to the above statement:
(a) The writer's reference to 1948 is no doubt to be explained by the
fact that the present Government came into power in that year.
The impression is created that it is only the present Government
which saw any reason for separation in university facilities. In
this regard Respondent points out that in 1945, when General
Smuts' United Party was in power, there was wide approval in
Parliament of the view that the Government should consider the
advisability of recommending the application of the principle of
segregation to institutions for higher education. In the course of a
debate in the House of Assembly Dr. Louis Bosman, a member of
the United Party and- at that time also member of the Council of
the University of Cape Town, said, inter alia:
"... neither the European nor the non-European is very happy
at the same university. The non-European does not feel at
home because he thinks he is treated with disrespect ... and
the ... European feels awkward at the fact that he cannot
fraternise with the non-European ... 2"
(b) No mention is made by the writer of the fact that there wa.sIittle
or no contact between Europeans and non-Europeans in those
spheres where friction would be most likely to arise, viz., in the
intimate, persona! contact sphercs. So, e.g., there was no mixed
sport, no mixed social gatherings such as <lances, and no mixed
boarding facilities. Furthermore, by reason of the small numbers
of non-Europeans at the mixed universities 3, contact in any sphere
was at ail times on a smalI scale.
(c) Mr. Justice Centlivres' views, it may be mentioned, are not sup
ported by Dr. Moffat, a professor at the University of Cape Town
for many years. He is reported to have said:
"The non-European students who are at present at some of
the Universities or colleges which are really European, are in the
university but not of it. They do not share in the university life
to the full and therefore do not drink of the essence of university .
life which should have no dilution by rea.sonofrace or colour. It
seems to me that in South Africa, with its declared policy of
segregation in so far as it can be observed, the full life of univer
sity life can be obtained by the non-European only in a univer
sity for non-Europeans. The college at Fort Rare is doing this to
some extent and is developing a distinct university, if one may
judge from what lecturers there tell us. This could never corne
at a mixed college where the non-European will always be up
1 IV, p. 37r.
2 U. of S.A., Parl. Deb., House of AssemblVol. 53 (1945), Col. 5517.
' Vide III,pp. 482-483. REJOINDER OF SOUTH AFRICA 67
against a colour bar, with the development of an inferiority
complex or are bellious resentment, neither of which is consistent
1
with the university outlook ."
(d) There is no elaboration by Mr. Justice Centlivres of the cryptic
statement that "experience" has shown that "when the policy of
segregated university institutions is applied, there is a very real
possibility of trouble".
No particulars are given of such alleged "experience". Mr.
Justice Centlivres' statement (made in 1956) could not, with any
justification, have been made regarding experience in South Africa.
Furthermore, South Africa's experience of separate university
institutions since the passing of the Extension of University Edu
2
cation Act in 1959 in no way supports the "experience" referred
to by Mr. Justice Centlivres.
(e) Finally, Applicants make no attempt to show how the statement,
which concerns the limited field of mixed universities in South
Africa, is relevant to the many complex conditions and considera
tions which govern the schooling of the children of the different
population groups in South West Africa.
6. Applicants make the further statement that-
"Respondent's de jure segregation of school children by race and
by tribe could only be permissible if the segregation were accom
plishcd de facto by applying a test of individual ability, not one of
race or 'group' 3."
This statement does not make sense. It is logically impossible for "de
jure segregation ... by race and by tribe" to be "accomplished de
facto" on a basis of individual ability tests. However, in view of Appli
cants' reference to separation on grounds of ability, Respondent points
out that the Counter-Memorial 4clearly reveals that Respondent's system
of having scparate schools for the children of the different population
groups is not based on tests of individual ability. lt is accordingly not
appreciated why Applicants proceed to argue about the unlikelihood of
all "able" children being in the White group, and all "slow" children in
the Native or Coloured groups, etc. 3
Respondent denies that separation "could only be permissible" if based
on ability tests. Indeed, one of the major disadvantages of mixed schools
would be that children of all groups would be hampered as regards
educational development to the bcst of their respective abilities. The
circumstances and considerations which govern Respondent's system
have been dealt with in the Counter-Memorial, and Respondent denies
that the system is in any way a violation of the terms or the spirit of the
Mandate. 5
ln the same context Applicants refer again, in a footnote ,to a portion
of a paragraph in the report of the Eiselen Commission dealing with the
1 In a Memorandum submitted to a Commission of Inquiry into the trainingof
Medical Studen tsin South Africa as referred to by the Deputy Minister of Education,
Arts and Science in the House of Assembly on 8 April 1959; vide U. of S.A., Pari.
Deb.• House of Assembly, Vol. 100 (1959), Col. 3246.
2 Vide III, pp. 479-485 (paras. 30-36).
3 IV, p. 371.
4 III, pp.353-382.
' IV, p. 371, footnote 6.68 SOUTH WEST AFRICA
"basic physical and psychological endowment" of European and Bantu
children. As shown above 1,Applicants do not mention that the Com
mission found that cultural differences were so profound as to call for
differentiation in the education of European and Bantu children.
7. On the same subject Applicants also say that "[s]egregation on
racial grounds has been condemned in ail civilized nations, at least since
World War II" 2,and in this regard they refer to a passage in a lecture by
Professor C. W. de Kiewiet in which he said, in 1960, that the South
African law providing for separate universities runs counter to "... the
growing conviction in the modem world that the benefits of civilisation
must be made equally available to all men regardless of race or creed 3''.
Amongst the benefits of civilization mentioned by Professor de Kiewiet
is education. In this regard Respondent says, as has already been ex
plained, that its policy aims at making available adequate educational
facilities to ail the inhabitants of the Territory, "regardless of race or
creed", but that, for sound reasons, it provides such facilities on a basis
of institutional differentiation between the various groups. Professor de
Kiewiet avoids the various considerations underlying Respondent's
policy of separate development, also in the educational field, and appears
to rest his criticism on the following statement, which Applicants do not
quote, viz. :
"It is an evasion to explain that the access denied here at Cape
Town will be supplied somewhere else. The explanation may be
honestly meant, but it cannot be implemented 4."
The record refutes this allegation. As has been indicated, provision
has been made for separatc university facilities for the different popu
lation groups in South Africa 5•
8. In the samc context Applicants say further that "[s]egregation on
racial grounds' '-
". . . is excluded, for example, from the educational policies of
Territories subject to Trusteeship Agreement under Chapter XII
of the United Nations Charter, or subject to reporting as Non-Self
Goveming Territories under Chapter XI 2".
In support of this allegation Applicants include in the documentation
of these proceedings an Annex 5, headed "Racial Separation ln Education
ln Dependent Territories, As Viewed By The United Nations" 6• Res
pondent will deal with this Annex in a separate chapter hereinafter 7•
At this stage it is only necessary to answer certain specific allegations
made by Applicants regarding the attitude of the Permanent Mandates
Commission and the League Council regarding Respondent's policy of
having separate schools in South West Africa for European, Coloured
and Native children.
1 Vide, Chap. II, para.15, supra.
2 IV, p. 372.
3 Ibid., footnote 1.
• De Kiewiet, C. \V., Academic Freedom: The Second T. B. Davie l\lemoria 1
Lecture Delivered at the University of Cape Town on 26 July 1900 (1961), p. 18.
5
6 III, pp. 476 and 486.
IV, pp. 398-403.
7 Chap. V, infra. REJOINDER OF SOUTH AFRICA 6g
In the Counter-Memorial Respondent demonstrated that the Perma
nent Mandates Commission and the Cormeil of the League were at ail
times fully aware of Respondent's aforesaid policy 1 •Respondent also
pointed out that these bodies at no iline suggested that its policy was not
in keeping with the terms of the Mandate, and Respondent made the
submission that these bodies, being fully aware of the "vast differences
between the various groups in their respective levels of civilization, their
traditions and cultural backgrounds", "appreciated and did not oppose
Respondent's view that the interests of the various groups could best be
served in separate schools" 2•Respondent also referred, in this regard, to
the attitude adopted by the Permanent Mandates Commission towards
Respondent's policy of mother-tongue education 3•
It was also demonstrated, by reference to the Minutes of the Perma
nent Mandates Commission, that separate facilities for different popu
lation groups also cxisted in other mandated territories during the life
time of the League 4•
Applicants challenge Respondent's assertion that the Permanent
Mandates Commission knew and tacitly approved of its said policy 5•
They say that Native education was, during the existence of the Com
mission, "almost completely in the hands of the missions", and they
argue that-
"... as a result, it can hardly be said that Respondent had, at that
time, a 'polir.yof having separate schools in South West Africa for
European, Coloured and Native children' wbich was susceptible of
tacit or express approval bythe Permanent Mandates Commission 6".
There is no substance in Applicants' contention. At the risk of labour
ing a point which, in Respondent's submissions is obvions from what is
7
said in the Counter-Memorial , Respondent adds the following to
illustrate that it was the policy from the outset to have separate schools
for European, Coloured and Native children:
(a) The Education Proclamation, I92I 8, made provision for the
establishment of schools for European children 9, and also for the
10
establishment of mission schools for non-European children •
Such schools for non-European children had to be classified by
the Director of Education as mission schools for Coloured pupils,
1 III, PP· 372-374.
z Ibid.,p. 374
3 Ibid., pp. 359 and 374.
• Ibid., PP- 374-375.
> IV, pp. 372-373. Applicants, allegedly to avoid the creation of a "misleading
impression" by Respondent. say in footnote 2 at IV, p. 372 that the "dates of the
P.M.C. material quoted by Respondent [are] 1923, 1928, 1939, 1928, and 1930,
respectively". \Vhy there should be any danger of a "misleading impression" is not
clear. Respondent mentioned the dates in question. Furthennore, 1939 was, for
practical purposes, the final year of the active existence of the Commission and the
League.
7 IV, p. 373.
III, pp. 353 et seq.
8 Prac. No. 55 of 1921 in The Laws of South West Africa z9z5-I9zz, Vol. 1,pp.
632-683 and vide Ill, p. 351.
9 Ibid., secs. 20-31,pp. 639-642.
1o Ibid., secs. 105-nz,pp. 666-667. SOUTH WEST AFRICA
or as mission schools for Native pupils, and had to be aided accor
dingly 1 .
The proclamation prohibited any European child from attending
a non-European school, save with the consent of the Administrator 2•
(b) The Education Proclamation, 1926 3, which superseded Proclama
tion No. SSof 1921, made provision for the establishment of schools
for European children 4, and for the establishment, recognition
5
and control of non-European schools • It empowered the Adminis
trator to establish government schools for Coloured pupils 6, and
gave permission to churches and missions to establish mission
schools for Coloured or Native pupils 7 •l\lission schools had to be
classified by the Director of Education as mission schools for
Coloured pupils, or as mission schools for Native pupils 8.
ln 1934 the Administrator was empowered to establish govern
ment schools for Native pupils 9, and the fi.rst govemment Native
school was established in 1935 10.
(c) The following are additional references to Respondent's annual
reports to the League, and to proceedings of the Permanent Man
dates Commission:
(i) ln 1931 mention was made of schools for Coloured pupils,
and of the fact that the syllabuses used in such schools were
different from those used in Native schools 11•
(ii)In 1933 12,and again in 1934 13, it was reported that there were
"separate schools" for Coloured children, and that the medium
of instruction in such schools was one of the official languages.
ln the 1934 report it was stated that there were, in that year,
IO schools for Coloured children, with an enrolment of 565
pupils.
(iii)It was mentioned on more than one occasion in annual reports
that Coloured pupils wcre not allowed to attend European
schools 14; that Coloured pupils were sometimes, because of
13
practical difficulties, obliged to attend Native schools ; and
that the admission by missionaries of Native pupils to classes
which had been established for Coloured children led to protests
by Coloured parents 15•
Respondent therefore denies Applicants' allegations that "Respon-
1 Froc. No. 55 of 1921, sec. IIO (a). p. 667.
2 Ibid., sec. 106.p. 666.
J Pmc. No. 16 of 1926 in The Laws o/ South West A.jrica I926, Vol. V. pp. 132-226.
• Ibid., secs. 29-36, pp. 146-150.
5 Ibid.,secs. 122-133, pp. 194-198.
6
Ibid., sec.122, pp. 194-196.
1 Ibid.,sec. 123, p. 196.
8 Ibid.,sec. 131, p. 198.
9 Proc. No. 10 of 1934 in The Laws of South West Africa I934, Vol. XIIr, pp.
l20-I22.
ioIII, p. 425.
11 U.G. 21-1931, p. 55.
12
U.G. 16-1933, p. 144.
13 U.G. 27-1934, p. 29.
14 U.G. 25-1936, p. 39.
15 U.G. 31-1937, p. 38. REJOINDER OF SOUTH AFRICA 71
dent's policy was, in fact, developed only after the Second World \Var",
and that "[i]t has never been reviewed, with Respondent's cooperation,
by an administrative supervisory organ" 1.
g. Another example referred to by Applicants in support of the con
tention that segregation on racial grounds has been condemned "in all
civilized nations, at least since World War II", is given by them in the
following terms :.
"Intensive efforts made in recent years in the United States to
bar racial segregation from public education through the medium
of judicial action are worthy of note in this connection 2."
In this regard they cite passages from the case of Brown v. Board of
Education 2 in support of the proposition that "separate educational
facilitiesare inherently unequal".
This case is also referred to in other parts of the Reply and has already
been dealt with by Respondent elsewhere in this Rejoinder 3.
In this section of the Rejoinder Respondent comments as follows on
the decision in the said case and the reliance placed thereon by Applicants
in the present context:
(a) This case involved the interpretation and application of a part
of the 14th Amendment to the United States Constitution providing,
inter alia, that "... no State shall ... deny to any persan within
its jurisdiction the equal protection of the laws".
Applicants say that the Mandate is a "constitutional-type
document", that the obligations contained in Article z thereof are
more affirmative and explicit than the "general injunction of the
'equal protection' clause of the Fourteenth Amendment", and that
Respondent's policy of segregation in the educational system of
the Territory "is more affirmative, explicit and far-reaching than
was the racial bar struck down by the Brown decision" 4. The
suggestion seems to be that this decision must, therefore, be determi
native of Respondent's powers and duties under the Mandate.
Respondent rejects the suggestion. Save for certain specific pro
visions 5, the Mandate contains no provisions limiting or prescribing
Respondent's powers of legislation and administration 6 •espondent,
while subject to the general duty of promoting to the utmost the
material and moral well-being and the social progress of the in
habitants of South West Africa, has a discretion as to the particular
methods it deems best to apply in mder to carry out that duty. In
particular, the Mandate contains no provision which can possibly be
construed as requiring that there is to be a mechanical abstention
from differential treatment of the various population groups. On
the contrary, two provisions explicitly prescribed such differentia-
1 IV, p. 373. In regard to the comment of the Specîal Committee for South West
Africa (IV, p. 373, footnote7) relativeto Respondent's alleged basic policy in the
educational field, reference may be made to what bas already been stated in Chap.
II,paras. 5 et seq., supra.
2 IV, p. 372.
3 Vide sec. B, para. 29 and sec.E, Chap. X.
• IV, p. 373.
5 Articles 3-5 of the Mandate for German South-\Vest Africa.
6 Il, pp. 387-389, and sec. C, paras. 20-21, supra.72 SOUTH WEST AFRICA
1
tion • Differential treatment in general may well be, and in Respon
dent's opinion is, best able to do justice to, and between, the different
population groups in South West Africa and their members 2•
(b) The Court's decision must be viewed in the context in which it
was given, viz., that of present day American society. This is a
society in which the Negroes are, on the whole, one with their
White fellow citizens in culture and language, and where racial
origin constitutes the only diffcrence betwecn thcm 3• lt is note
worthy that the Court at no time referred to any other factors
such as language or culture-as possibly being of significance in
deciding the issue before it, which was formulated by the Court
asfoHows:
"Does segregation of children in public schools solely on the
basis of race, even though the physical facilities and other
'tangible' factors may be equal, deprive the children of the
4
minority group of equal educational opportunities? " (Italics
added.)
The Court was, in other words, concerncd with the question
whether the race factor itself-i.e., unaccompanied, and uncompli
cated, by considerations such as culture and language-could
justify segregation. And, also, with the question of the cffect of
separation Oil Ncgroes in a situation where only their different
physical appearance distinguished them from thcir White fellow
citizcns. Furthermore, no policy of development of the Negroes
as a separate nation, in a territorial entity of thcir own, entered
into the question. Answers given to such questions in the American
context will, it is obvions, not necessarily be valid in situations
where difierent clrcumstances apply, e.g., in a truly heterogeneous
country like South West Africa, in respect of which it has been
shown that there are various population groups which are intent
Oil maintaining their separate identities, and which differ from one
another not only in origin, but also in matters of culture and lan
guage. Separation between the said groups is effected not solely
on account of diffcrence in race, but on account of ail the differences
which characterize them. And the ultimate aim is separate nation
hoods. In such totally different circumstanccs, where the different
population groups have never formed one community, are desirous
of maintaining their separate identities, and are, in fact, separate
communitics developing into separate nations, the following
finding of the Court in the Brown case cannot automatically be
applied to the situation:
"To separate [children] from others of similar age and qualifi
cations solely because of their race gcnerates a feeling of in
feriority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone 5."
1 Articles 3 (concemingliquor) and 4 (concerningmili tary trainingof the Mandate
for German South-\Vest Africa.
2 Vide sec. E, supra.
3 Vide sec.E, Chap. XI, supra. •
• Brown v. Board of Education of Topeka, 347 U.S. 493 in United States Supreme
Court Reports, Lawyers' Edition, Book 98 (1954), p. 880.
5 Brown v. Roard of Education of Topeka, op. cil., p. 881. REJOINDER OF SOUTH AFRICA 73
(c) The Court stated that its finding as to the effect of segregation
and the resultant feeling of inferiority on the part of Negro children
was "amply supported by modern authority" 1,and these authorities
are mentioned ma footnote (numbered (n)) to the Opinion.
Respondent points out that scientists in the United States have
seriously questioned the evidence on which the Court relied in
making its finding, even in the American context. So, e.g., it has
been stated that the evidence of Professor Clark, which constituted
an important part of the Appellants' case, misled the Courts 2; and,
also, that the evidence which was put before the Court was un
scientific and inconclusive, and that it did not justify the finding
made by the Court 3•lt has been argued, furthermore, that whilst
scientific knowledge on the subject in issue is incomplete and in
conclusive 4, "whatever evidence is available tends to support
racial separation in the schools at least throughout childhood and
5
adolescence" •It has also been stated that-
"[m]inority children of distinctive appearance can only suffer
serions personality disabilities as a consequence of congregation.
If the cvidence available to the Court in Brown v. Board of Educ.
demonstrates anything at ail, it dcmonstrates that the perso
nality impairments suffered by Negro children is {sic) less in a
racially insulated environment than with congregation-at
least during critical phases of personality formation ."
It would appear, therefore, that the Court's fmding, in so far as
it is based on or stated to be supported by modern science, is in
dispute amongst scientists in the United States. How the dispute
will ultimately be resolved amongst scientists is a matter for the
future.
In all the circumstances Respondent denies the implication that
the Brown case can in any sense be regarded as amounting to a
condemnation of Respondent's policies.
ro. The Brown case is the subject of two further statements by Appli
cants.
The first is the following:
"The reasoning of the United States Supreme Courtis relevant as
a response to Respondent's query why 'the existence of similar [but
separate] institutions for Coloured and Native students should be
styled [by Applicants, in their Memorials], "a reminder of opportuni
ties denied" to non-European students .. .' The 'opportunities
dcnied' ... include the opportunity not to be segregated against
one's wishes, the opportunity to be a citizen of equal standing with
1 Brown v. Board of Education of Topeka, op. cit., p. 881.
2Van den Haag, E., "Social Science Tcstimony in the Desegregation Cases-A
Reply to Professor Clark", Villanova Law Review, Vol. 6 (1960),p. 69.
l Ross and van den Haag, "The Fabric of Society" (1957), quoted by Gregor,
A. J.,"The Law, Social Science, and School Segregation: An Assessment", Western
Reserve Law Review, Vol. 14, No. 4 (Sep. 1963), p. 625.
• Gregor. A. J., "The Law, Social Science, and School Segregation: An Assess
ment", Western Reserve Law Review, Vol. 14, No. 4 (Sep. 1963), p. 624.
5 Ibid., p.626.
6
Ibid.,p.632.74 SOUTH WEST AFRICA
a 'European', and the opportunity to live one's life freely in an open
society 1." (Footnotes omitted.)
This statement represents an attempt by Applicants to introduce an
argument on the lines of the so-called "intangible considerations" as
referred to in the Brown case. \Vhat the term "opportunities denied"
is now alleged to include, was not expressly stated in Applicants' 1\lemo
rials, nor was it in any way implicd. The gist of Applicants' complaint
in their .Memorialswas that the exclusion of non-European students from
certain South African universities had left them with fewer university
institutions which they could attend-institutions which were allegedly
of inferior quality and which could, furthermore, only be attended on
permission obtained from South African authorities 2•
The "intangible considerations" aspect is obviously a new one which
Applicants now seek to introduce into the case. Respondent says that
there is no substance in Applicants' argument. The advantages and
disadvantages of so-called open universities in the South African context
were duly weighed before it was decided to establish separate higher
education facilities for non-European students 3,and it was considered
that such separation would constitute a significant gain for the non
European groups. Respondent says, furthermore, that as far as stu
dents--European and non-Europcan-from South \Vest Africa are
concemed, the overriding consideration is whether Respondent provides
them with sufficient facilitics of high quality for higher education. This,
Respondent submits, it does "·
The second statement made by Applicants reads:
"A reflection of the proposition that separate facilities are in
herently unequal was contained in the Report of the Eiselen Com
mission, where it stated that:
'The Bantu have, for numcrous reasons, corne to feel that any
dif}erentiation in education must to be [sic] their detriment. Much
evidence to this effect was given before this Commission, particu
larly by Bantu teachers. Reference to previous commissions
shows that this attitude has persisted from early times ' 5."
Applicants assign to this extract from the Commission's report a
meaning which it does not have, and which it was not intended to have.
Respondent points out in this regard:
(a) The extract does not refer to Respondent's system of having
separate schools for European and Native children, as Applicants
suggest 1. lt refers to differences in curricula, syllabuses and ex
aminations 6•
(b} The Commission indicated that the attitude of the Bantu, as
perceived from evidence heard by it, had a largely economic moti
7
vation • The Commission---otherwise than in the Brown case-
i IV, p. 373.
2 I, p.157.
3 III,pp. 482-486.
• Ibid.,pp. 476, 485-486.
5 IV, pp. 373-374.
6 Vide U.G. 53-1951. p. 43, paras. 232-235.
1 Vide heading to paras. 230-235 and paras. 232 and 235 of U.G. 53-1951, pp.
42-43. REJOINDER OF SOUTH AFRICA
75
did not deal with the question whether there was "detriment" in
fact; nor did it express any view as to whether the "feeling" of
the Bantu was in any way justified.
(c) Applicants' approach, as stated before, involvcs the proposition
that equal treatment means the same treatment. It entails, in the
case of South West Africa, that every population group should
be given exactly the same education as every othcr group, even if
it causes detriment from an educational point of view. This pro
position Respondent cannot accept. There are cultural, linguistic and
economic differences which show that equality is not necessarily
the same as identity.
II. Applicants allege, furthennore, that "[t]he practice of segregation
by race is, moreover, uneconomic" 1•
This is a new allegation which was not made in the Memorials. Appli
cants now say that the said "practice" produces quplication of adminis
trative machinery and personnel, etc., and that, since Native children are
restricted to facilities intended for Natives, they "go without schooling
in situations where thcre may be facilities for other 'groups', but inade
quate facilities for 'Natives' " 1.
In support of their allegation regarding duplication of machinery and
personnel, Applicants quote a passage from a book written and published
1n South Africa by the so-called 1961 Education Panel 2. By quoting
ij)sissima verba from the Panel's report, entitled "Education for South
Africa", without any qualification or explanation, Applicants convey the
impression that the passage was descriptive ofthe position in South Africa.
But it is nothing of the kind. It is a description of a system which is al
leged to obtain in the Province of Quebec, Canada. The full passage
from which Applicants have extracted only a part, reads as follows:
"Two possible solutions have been tried and both warrant con
sideration for South Africa. The one consists in separate educational
administrations for the separate groups, each administration itself
being centralized. This system has been adopted in the Province of
Quebec, where there are separate Dircctors of Education for Catho
lic and Protestant education, each with a separate administration.
This system has found favour nowhere else as far as we know and
seems to us to suffer from several serious disadvantages. It under
lines group differences to an extent that seem unfortunate in a
country where the different groups must co-operate and it involves
iIV, p. 374·
z Education for South Africa: The 1961 Education Panel. First Report (1963).
In the introduction to the report of the Panel it is stated that "the membership of the
Panel ... includes also psychologists,scientists.religious leaders, professionamen
and business men ... " (p. xiv). Twenty-eight members subscribed to the report.
The Chairman of the Panel is the Hon. O. D. Schreiner, who is also Chairman of
the Instituteof Race Relations (vide sec. E, Chap. VI, para20, supra). Several other
members of the Panel are members of political parties opposed to the present
Government in South Africa, or are otherwise known to be outspoken opponents of
the Government. Two well-known members, Mr. H. F. Oppenheimer and Prof. P. V.
Pistorius, are members of the Progressive Party (ibid., para. 15). The sympathies of
another prominent member, the Hon. A. van der S. Centlivres, also lie with this
party (ibid.). Outspokenly anti-Government is another prominent member, Mr. Leo
Marqua.rd. Another member, Mrs. U. :M. \Veiss, is a member of the opposition
United Party. SOUTH WEST AFRICA
the duplication of all administrative personnel, and hinders the
pooling of experience even at a high level 1."
Moreover, the said Panel did not, as Applicants appear to suggest,
advise any system of joint education. It recommended some form of
decentralization of the control of education to small local authorities,
as is found in some \Vestem European countries, in the belief that such a
system would contribute to the "amelioration of actual or potential
inter-group confticts" 2 and encourage "a far closer association between
the public and the school systems than exists in South Africa at present" 2•
Such an association, it believed, "would be in the true interests of national
unity, that is an identification of the members of ail groups of themselves
2
not only with the group but also with the country as a whole" •
Furthermore, not only did the said Education Panel not advise joint
education, but it expressed itself against uniformity. Noting that South
Africa "has problems which are peculiar to itself arising out of its charac
ter as a country of many racial, language and cultural groups" 3 ,it stated:
"One of the principal motives underlying education, which we
have not yet had occasion to mention, is the handing on from gen
eration to generation of the distinctive culture of the group as ex
pressed in Ianguage, literature, traditions and customs. In more
primitive communities indeed, this is the only purpose ofeducation ...
We do not wish to embark upon speculation as to the reasons for
the tremendous importance which human beings attach to their
group cultures, but it is an observed phenomenon universal in both
time and space, that the tenacity with which people defend their
culture against any form of attack is comparable to that with which
they defend a dceply held religion, and indeed the two issues are
often inseparably linked. There are few cases in history where a
language or culture has been successfully destroyed by persecution
or pressure by any means short of the massacre or physical expulsion
of the persecuted group ...
This being so it must be accepted as a first principle, that no
effort will be made to destroy or impose modifications upon the
culture of any group in South Africa. The whole of history in South
Africa and in the world shows that any such attempt would in ail
probability fail.while it would create bittemess and strife in the
country so violent as to make mutual co-operation between the
groups impossible and to interfere most seriously with prosperity
and progress •."
I2. In regard to Applicants' aforementioned allegation that its system
is "uneconornic", Respondcnt concedcs that a system of separate schools
for the different population groups must, from the nature of things, be
somewhat more uneconomical than a joint system of integrated schools
would be-that is, if such latter system were feasible. The question of
economy is, however, only one of many factors which have to be consi
dered, and, relevant as it may be, it cannot in the South West Africa
context outweigh the advantages of a system of separate facilities for the
1
Education for South Africa, op.cit.p. 57.
3 Ibid.,p. 58.
Ibid.,p 54.
• [bill., pp. 54-55. REJOINDER OF SOUTH AFRICA 77
different population groups. Nor is it of nearly suffi.dent weight to justify
consideration of a system of mixed facilities, such as boarding facilities,
as is suggested by Applicants. This suggestion is completely unrealistic,
and runs counter to ailsocial traditions in the Territory. If the suggestion
îsthat, despite these considerations, an integrated system should never
theless be enforced, Respondent is convinced not only that any such
course will fail, but that its attempted implernentation will entail costs
far in excess of such extra expenditure as may at present be involved in
maintaining separate educational facilities 1•
13. lt remains to deal briefly with an allegation made by Applicants
2
in a footnote on page 374 of the Reply •They say that "[a]s a result, inter
alia,of Respondent's segregation policies, 56.36 percent. of the 'Native'
children in the Police Zone do not receive any education at all, whereas
99.66 percent. of the 'European' children attend school". This is a grossly
unfair statement which creates a totally distorted impression of the true
position, despite the use of the words inter alia. Applicants completely
ignore the many factors which have in the past affected, and still affect,
attendance figures in the case of Native pupils, not only in South West
Africa but throughout Africa, and they completely ignore the fact that
there has in South West Africa bcen a steady increase in the pcrcentage
of Native children who attend school. Respondent's policy of separate
facilities is no more responsible for the fact that 56.36 percent. of Native
children in the Police Zone do not attend school than it is for the fact that
99.66 percent. of European children attend school. It would be equally
wrong to say that, because there is no system of separate facilities in
Liberia or Ethiopia, no more than 23 percent. of clùldren of school age
attend school in Liberia 3,and no more than 5 percent. in Ethiopia i.
5
C. Separation by Tribe
14. Applicants' treatment of what thev stvle "Separation by Tribe"
appears, on analysis, to be an attack on Respondent's policy of mother
tongue instruction in so far as it affects the Native population groups of
South \Vest Africa. ln order to avoid repetition and to facilita te its answer
to varions allegations made by Applicants, and also to remove in advance
at least some of the wrong and misleading impressions which Applicants
create in the Reply either by mis-statements or omissions of mat criai facts,
Respondent proposes first of all to repeat, very briefly, some of the main
points made by it in dealing with its policy of mother-tongue instruction.
Thereafter Respondent will deal with the varions allegations made by
Applicants.
15. The following is a summary of statements made by Respondent
in the Counter-1\Iemorial regarding mother-tongue instruction:
(a) Respondent stated that the multiplicity of languages spoken in
the Territory called for a policy of differentiation not only as be
tween the \Vhite, Coloured and Native groups, "... but as far as
1 Vide in this regard sec. E, Chap. XI. para. 32 fan indication of the immensity
of the expenditure entailed in enforcing edncational integration in the U.S.A.
2 Footnote 3.
3 III, p. 445.
• Ibid., pp. 445-446.
5 IV, pp. 374-383. SOUTH WEST AFRICA
practicable, also as between the various Native groups" 1, and
added that, quite apart from practical considerations,
", .. sound educational policy required that separate schools
be provided for the children of the various Native groups in
which they could be taught in the vemacular by teachers of
their own group within their own social and domestic milieu 2".
In regard to the merits of a system of mother-tongue instruction,
Respondent said, inter alia:
"Experience has shown that pupils absorb much more when
instruction is given them in their home language, than when it
is done in a language not their own, and, also, that children who
are first taught to read and write in their own language gene
rally le3m a foreign language more easily and quickly than
others ."
Reference was also made to a publication issued by the United
Nations Economie and Social Council in I956 in which it isstated
that educational experts-
..... accept as axiomatic, on psychological, sociological and
educational grounds, that the best medium for teaching a child
is his mother tongue. Consequently, they recommend that
every effort should be made to provide education in the mother
tongue to as late a stage of education as possible 4."
(b} Respondent referred to the report of the I958 Commission of In
quiry into Non-European Education in South West Africa, in
which was recommended-
"... the use of the vernacular as medium of instruction in the
sub-standards (i.e.,the first two years' schooling), and as far
as possible also in Standards I and 1~ 5".
It was indicated in this regard that the said standards are very
important as far as the Natives are concemed, since so many of
them leave school after only a few years. It was therefore stated
that the courses in these standards aimed at making-
"... the largest possible number of children of school-going age
literate in their mother tongue and at providing them, at the
same time, with a knowledge of Afrikaans and English S".
In making its aforesaid recomrnendation, the said Commission
mentioned that it had considered recommending the introduction
of the home language as a medium of instruction in the higher
primary standards, but that it had decided against it because of
the as yet insufficient development of the Native languages as
"literary and written Ianguages", and because the "necess:!17
subject terminology for higher classes" still had to be developed .
1 III, p. 356.
1 Ibid. Vide also p. 362.
' Ibid., p. 359.
4 Ibid., p. 377. Applicants make no mention of, and completely ignore, this and
other similar expressions of opinion as to the value of mother-tongue instruction.
5 Ibid., p. 358.
6 Ibid., p.361 and vide Report of IM Commission of Inquiry into Non-European
Education in South West Africa, Part I {1958), pp. n5-n6. (Unpublished.) REJOINDER OF SOUTH AFRICA
79
It is clear that the Commission considered the introduction of
the mother tongue as a medium of instruction in the higher pri~
mary classes as an aim, or ideal, to be achieved in future: hence,
inter alia, its recommendation to establish a Bureau for Native
Languages 1•
And Respondent gave expression to an even more distant aim,
or ideal, when it stated in the Counter-1\lemorial:
"lt is the ultimate aim that the vemacular be used as the
medium of instruction in all standards. But this will take time,
and willonly become possible when the various Native languages
have been sufficiently developed to be used as teaching lan
guages in ail the standards, and when sufficient Native teachers
with post-Matriculation qualifications become available for the
teaching of secondary classes ."
Respondent also indicated that the further development of the
Native languages would require the co-operation of the Native
groups concemed. It stated that active steps were being taken by
the Administration to effect the further development of these
languages as teaching languages, and to prepare suitable school
books in each of them, and concluded:
"In the final result, however, it will be for the groups them
selves to contrihute to the development of their languages to
meet all educational needs ."
This statement means, and was intended to mean, that whilst
the Administration will, through the means of the Bureau for
Native Languages, take the initiative and make every effort to
develop the Native languages into vehicles for more advanced
education than is possible at present, the outcome of the scheme
for the development of these languages will, in the final result,
depend on the co-operation of the people most closely concemed,
viz., the Native groups themselves, for it is only with their wil
ling co-operation that it will be possible to develop the languages
to the point where they can be used to meet ail needs, i.e., education
at all levels. ln some instances the final stages of development
may corne about only after responsibility for education has been
taken over as part of self-government by the particular Native
group, as is already the case with the people of the Transkei in
the Republic of South Africa •.
(c) ln regard to the Commissîon's aforementioned recommendation
as to the use of the mother tongue as medium in the lower primary
standards, Respondent stated:
"The recommendation as to mothcr-tongue instruction did
not constitute an innovation of principle as far as Native edu
cation in the Territory was concemed, but endorsed a policy
and aim which had for a long time been pursued by the Ad
ministration, namely, that instruction in the lower standards
1 Ill, p. 361.
2 IbidThe above-quoted passage, as will appear hereafter, forms the basis of most
of Applicants' attack on Respondent's policy of mother-tongueinstruction.
3 Ibid.p. 4t6.
• Vide Il, p. 480 (para. 38), and also para. infra.80 SOUTH WEST AFRICA
should, as far as possible, be in the pupil's home language 1.''
Respondent pointed out that, whilst various practical diffi.culties
had hampered development 2 ,progress had nevertheless been made
in carrying out this policy, and it mentioned the fact that-
"[t]hus far Ndonga, Kuanyama, Kuangali, Herero, Nama and
Tswana have achieved the status of school languages, but,
because of insufficient development as yet, mother-tongue in
struction is generally not yet feasible beyond the Standard II
level in these languages 3".
(d) It was indicated, furthermore, that Respondent's aforesaid policy '
of mother-tongue instruction "was in accord with the views held
by the Permanent ~landates Commission"". and Respondent
referred, by way of illustration, to a report by one of the members
5•
of the Commission and to certain discussions in the Commission
(e) Finally, Respondent mentioned that thcre are at present practical
difficulties in the way of teaching every child in the Territory
through the medium of his home language. It was pointed out
that such difficulties existed especially in certain parts of the
Police Zone, the position being generally much casier in the
northern territories where large areas are inhabited by people
speaking the same language 6• In this regard Respondent indicated
that every effort is nevertheless made "... to ensure that as many
pupils as possible are taught through the medium of their own lan
guage by teachers of the same language group" 6, and that-
"[w]herever circumstances allow it to be done, the vernacular
is used as the sole medium of instruction in the sub-standards,
and as the most important medium in Standards I and II.
During the third and fourth years (i.e., Standards I and II),
7
an official language is gradually introduced as medium .''
In dealing with measures taken by the authorities in the Terrîtory
to accommodate children of a particular language grol,lp in a
school or class of their own, Respondent pointed out that difficulties
which arise in areas which are inhabited bv members of more than
one language group are often alleviated 'by the fact that pupils
and teachers know more than one Native language 8• In the rare
1
III, p. 359. Applicants, it will be indicated in para. 17 below, wrongly state
tha.t Respondent's polie y is a recent one, and they create the misleading impression
that Respondent also regards it as a new policy: vide IV, p. 375 and footnote I.
2 III, pp. 360 and 415-416.
3 Ibid., p. 416.
4 Ibid.,p. 359.
~ Ibid. Applicants create the misleading impression that Respondent's contention
is that the Commission approved of mother-tongue instruction at ail Ievels (i.e.,
including the secondary school): vùk IV, p. 378. This was never Respondent's
contention: secondary education for Native pupils was not in issue in the days of
the Commission. Applicants also say (somewhat half-heartedly: vide IV, p. 378)
that the Commission approved rather of the study of the vernacular than of its use
as a medium of instruction. Respondent will demonstrate below (videpara. 20) that
it approved of the use of the mother tongue as medium of instruction.
6 Ill, p. 360.
1 Ibid. In the higber primary standards (i.e., StandardsIII-VI) an official Ianguage
is at present the sole medium of instruction (ibid.).
8
Ibid .• p362. REJOINDER OF SOUTH AFRICA 81
case where no Native language can be used as medium, an official
language is used 1.
16. As already stated, Applicants' treatment of what they term
"Separation by Tribe" 2 appears, on analysis, to be an attack on Re
spondent's policy of mother-tongue instruction in so far as it affects
Native education in the Territory. This attack rests rnainly on the fol
lowing contentions regarding Respondent's policy:
(a) it "thwart[s] the social progress of 'Natives' by isolating them
from each other, and from the modem world" 3 ;
(b) it is "impractical and unworkable" 3 ;
(c) the policy "as currently practised and as intended to be applied" 4
has "at least four major defects" •;
5
(à) the "evils" of mother-tongue instruction "in primary and secon
dary schools in South West Africa" 5 are "compounded in South
Africa at the university level by the evils of 'Bantu education' in
difjerent 'mother tongues'" 5•
Respondent now deals with the allegations made by Applicants in
support of their charges as summarized in (a) to (d) above.
I. THE CHARGE THAT THE Pouey "THWART[s] THE SOCIAL PROGRESS
OF THE 'NATIVES' "
17. In the Counter-Memorial Respondent showed that its policy of
mother-tongue instruction is, at least as far as instruction in the lower
primary standards is concerned, an old one 6, and that it was, also, in
accord with the views of the Permanent Mandates Commission 7•
In the Reply Applicants adopt an approach which amounts to the
following:
They say, firstly, that Respondent's policy, as applied in the Territory,
is a recent one 8 ;anâ, secondly, that Respondent's reference to a report 9
by Mme Wicksell, a member of the Permanent Mandates Commission,
does not support a policy of mother-tongue instruction "at all levels"-a
contention which was never advanced by Respondent-and that Respon
dent's references in the Counter-Memorial to the Minutes of the Com
mission do not support a policy of mother-tongue instruction "as recently
introduced into the Territory" 1°. Tuen, thirdly-perhaps because they
realize that they cannot substantiate these statements, or show that
Respondent's policy as applied at present is unsound-Applicants
1 III,p. 362.
2 IV, p. 374.
3 Ibid .• p. 378.
' Ibid.p. 38o.
~ Ibid., p. 382.
6 III, p. 359 and vide para.I5 (,;},mp,a.
7 Ibid., and vide para.I5 (d), supra.
8 Vide reference to "the system ... which Respondent has tried in South Africa
and has now applied in South West Africa" (IV, pp. 374-375), and to "develop
ments" which are alleged to have taken place "since the dissolution of the J..eague
of Nations ... " (ibid.p. 3So).
9 Vide IV, p. 378, and III, p. 359.
10
IV, p. 378.82 SOUTH WEST AFRICA
proceed to attack what they describe as "the central, and most objection
able feature, of the whole plan of educational apartheid" 1, and which
appears to be something which is not yet in existence, but which is, at
this stage, nothing more than a distant aim, or ideal, viz., "the ulti
mate aim that the vemacular be used as the medium of instruction .in
all standards" 2•
18. Applicants make no attempt to substantiate their above-mentioned
allegation that Respondent's policy of mother-tongue instruction as now
applied in the Territory is a new one, and they fail to deal specifically
3
with the statement in the Counter-Memorial, noted abovc ,to the effect
that the recommendation of the 1958 Commission of Inquiry into non
European Education in South West Africa regarding the use of the ver-
11acular as medium of instruction in the sub-standards and, as far as
-possible,also in Standards I and II, "did not constitute an innovation of
principle ... but endorsed a policy and aim which had for a long time
been pursued by the Administration".
Respondent repeats its statement that the policy as at present applied
in the Territory is not a new one. Whilst more concerted efforts have
admittedly been made in recent years to ensure that in practice as many
young pupils as possible are taught through the medium of their home
language, and, also, to impress upon teachers the value of such teaching,
such efforts in no way amount to the introduction of a new policy. At
present, too, there is more official action than in the past to develop
some of the Native languages through the agency of a Bureau for Native
Languages 4, but this is, in essence, nothing more than an officially or
ganized scheme to carry on and further a process of language develop
ment which was begun years ago and which, as has been pointed out 5,
resulted in certain languagcs being developed to a stage whcre they could
be used as school languages.
6
19. Applicants say, as was indicated above that. the report by ;\!me
Wicksell, a member of the Permanent Mandates Commission, to which
Respondent referred in the Counter-Memorial on the question of mother
tongue instruction, "cannot be reduced to authority in support of tribal
7
vernacularinstruction at all levels" •
Respondent never referred to the report as an "authority" for mother
tongue instruction "at all levels" 8•Without going into any detail, it may
be mentioned that there was, in the days of the Mandates Commission,
1 IV, p. 375.
2 Ibid.,and vide III,p. 361.
3 Vide para. 15 (c), supra and Ill, p. 359. In addition to what has already been
said in this regard, Respondent points out that in 1929 South Africa's reprcsentative
Mr. Smit, informed the Permanent Mandates Commission that the Territory could
not obtain trained teachers from South Africa because "the medium of instruction
in the schools was the borne language of the pupils" and "the Union natives had no
knowledge of the native languages of South \Vcst Africa". (P.M.C., Min., XV, p.
73.)In 1935 it was stated in Respondent's annual report that "[t]he principle of
mother-tongue instruction is adhered to in all the schools for native scholars ... "
(U.G. 26-1935, p. 41 (para. 294)).
4 III, p.361.
5 Ibid., p. 416 and vide para. 15 (b), supra.
6 Vide para. 18, supra.
7 IV, p. 378.
8
Vide III, pp. 359-360 and also para. 15 (d), footnote 5, supra. REJOINDER OF SOUTH AFRICA
no secondary education for Natives in the Territory and that the question
of medium of instruction did not arise in regard to such education. It
is significant, furthermorc, that whilst Applicants go to the length of
disputing à contention which was never advanced by Respondent, they
remain silent as to what was actually stated in the report on the question
in issue, viz., that African schools were often handicapped by a multi
plicity of languages, sometimes even to the point where it became
"necessary ... to carry on instruction in a foreign language ... " 1.This
indicates clearly, in Respondent's submission, that the said report
favoured the view that the instruction of the young should not be in a
"foreign language", exceptas a last resort.
20. ln regard to Respondent's quotations from the Minutes of the
Permanent l\Iandates Commission 2,Applicants argue that they "stand,
rather, for a different and laudable objective, that of 'more systematic
3
instrnction in the mother tongue' " • Applicants say, if Respondent
understands them correctly, that the quotations show that the Com
mission approved of the study of the Native languages, rather than of
their use as media of instruction---even in the lower standards. In sup
port of this argument they refer to the fact that Lord Lugard, who, in
1934, congratulated the Administration on its "encouragement of the
5
mother tongue" 4, statcd in his book, published in 1922 , that "[n]o
greater benefit" could be conferred on the African "than the teaching of
English as a universal medium". According to Applicants the inference
must therefore be drawn that Lord Lugard merely commended en
couragement given to the study of the Native languages. In Respondent's
submission, howev3r, the passage quoted by Applicants from Lord
Lugard's book is inconclusive, since it is not clear that he had in mind
the question of the medium of instruction to be used in schools when he
used the words quotcd by Applicants.
But this argument need not be prolonged. The real question must
obviously be not so much what the quotations cited by Respondent in
its Counter-;\lcmorial indicate, but rather what the views of the Com
mission in fact were. This appears clearly, in Respondent's submission,
from certain Minutes of the Commission regarding education in anothcr
mandated territory, viz., New Guinea. lt is reported that in 1932 Mlle
Dannevig stated that she-
"... wished to remove any misunderstanding which might subsist
after the discussion in the Commission the previous year concerning
the teaching of English to the smaller children. lt must not be
understood that the Commission in any way recommended such
teaching. On the contrary, the policy advocated by the Mandates
Commission in all mandated territories was that the smaller children
should receive instruction sole/y in the native tangue. That, she noted,
was also the view of the missions. There seemed to be a difference
of opinion among the missions on this point 6." (ltalics added.)
1 Ill,p. 359.
2 Ibid.,pp. 359-36o.
3 IV, p. 378.
• III,p. 360.
5 Vide IV, p. 378, footnote 5.
6 P.M.C., Min., XXII, p.67. SOUTH WEST AFRICA
A reference to the proceedings of the Commission in the previous year
shows that the Chairman of the Commission indicated that the missions
were "opposed to English as the language of instruction" 1and that the
reason therefor possibly was that it "helped their work to teach in the
vemaculars" 1•
In Respondent's submission it is clear from the aforcgoing, and from
what is stated in the Counter-Memorial in this regard, that the Perma
nent Mandates Commission approved of the principle of mother-tongue
instruction, at least in the early standards.
21. In this and in the next succeeding paragraphs Respondent deals
with Applicants' charge concerning the alleged "central, and most objec
tionable feature, of the whole plan of educational apartheid", but, before
discussing the various specific allegations made by Applicants in this
connection, Respondent makes the following general observations:
(a) In their Memorials Applicants made no mention whatsoever of
any feature or detail of Respondent's policy of mother-tongue
instruction. The policy as actually applied at present was, therefore,
apparently not considered objectionable. This is probably also
the reason why Applicants in the Reply launch their major attack
not so much on the policy as it is applied at present as on what
is, to their knowledge, only an ''ultimate aim" 2 of the policy.
Respondent has already shown 3 that achievement of this aim,
or ideal, depends, inter alia, on the development of the languages
concemed and on the co-operation and efforts of the people con
cerned.
(b) Educationists hold the view that if a Native language is sufficiently
well developed and possesses the necessary reading material to
serve as a teaching language at all levels, no valid objection can,
on educational grounds, be taken to its use in ail standards. Respon
dent has already shown that educational experts "recommend that
every effort should be made to provide education in the mother
tangue to as late a stage of education as possible" 4, and attention
is now furthermore drawn to the following statements made by
Unesco experts in the same connection:
"On educational grounds we recommend that the use of the
mother tan5ue be extended to as late a stage in cducation as
possible ."
"\Ve must here laydown as ageneral principle what must have
already becn made apparent by our general approach to the
problem: that in order to ease the burden on the child, the
mother tangue should be used as the medium of instruction as
far up the educational ladder as the conditions referred to on
page 50 permit (in other words that the transfer to a second
language, if necessary, should be deferred to as late a stage as
possible); and that authorities should do everything in their
power to create the conditions which will make for an ever
increasing extension of schooling in the mother tongue, and
tP.M.C. Min., XX, p. 25.
2 Vide IIIp. 36o, and IV,p. 375.
3Ill, p. 416 and vide also para. 15 (supra.
• Ibid.p. 377.
' Unesco, The Use of Vernacular Langi,ages in Educatio(1953), pp. 47-48. REJOINDER OF SOUTH AFRICA 85
make the transition from mother tongue to second language
as smooth and as psychologically hannless as possible 1."
"If the mother tongue is adequate in all respects to serve as
the vehicle of university and higher technical education, it
should be so used 2•''
(c) Respondent fully appreciates that since the Native languages of
the Territory largely have local currency only 3, as thorough a
knowledge as possible of English-being a world language-is
necessary, and, because of its wide use in South West Africa and
South Africa, also of Afrikaans. It follows that educational authori
ties in the Territory will at all times have to direct their attention
to maintaining properly balanced language curricula, having regard
to the fact that whilst the mother tangue constitutes the best
vehicle of instruction from an educational point of view, a sound
knowledge of English and Afrikaans is, at the same time, essential
for other purposes, inter alia, to facilitate access to world culture and
knowledge.
22. In referring to Respondent's "ultimate aim that the vernacular be
used as the medium of instruction in all standards" 4 and to efforts which
are being made to develop the Native languages of the Territory, Appli
cants say-in two footnotes -that although German needs no such
development as is contemplated in the case of the Native languages, it is
nevertheless not Respondent's present policy, nor stated to be a future
aim, to give German pupils all their instruction in German. Applicants
do not say what inference they draw from this fact. It is difficult to
conceive that thcy are in any way concerned about the education given
to German pupils, and the suggestion would accordingly seem to be that
Respondent's policy of mother-tongue instruction in the case of the
Native groups is not bona fide intended to serve the best interests of these
groups. If so, the suggestion is denied. As has been indicatcd in the
Counter-Memorial 6, certain political considerations have played a part
6
in the case of the German section of the population. It was indicated ,
too, that certain changes were brought about in I960 as a result of
recommendations made by an Education Commission, and the position
will no doubt be reviewed in future in the light of all relevant circum
stances. It cannot therefore be assumed that the position in regard to
German pupils will remain as it is at present.
23. Various statements 7 made by Applicants amount to a complaint
regarding what they term the "artificial development" 8 of the Native
languages, and the "forced nature" 9 of Respondent's system of mother
tongue instruction. These allegations, as will be obvious from what has
1
Unesco, op. cit.p. 52.
2 Ibid., p. 69, para. 6.
3 Sorne of the languages spoken in Ovamboland and in the Okavango are also
spoken in Angola, while Silozi, spoken in the Caprivi, is also spoken in Northein
Rhodesia.
• IV, p. 375. (Italics added by Aplicants.)
5 Ibid., footnotes 3 and 5.
6 III, p.495.
1 Vide IV, pp. 375-376.
s Ibid.,p. 375.
9 Ibid., p. 376.86 SOUTH WEST AFRICA
been stated above, are without substance. Respondent has clearly demon
strated that it is in the best interests of the Native children themselves to
be taught through the medium of their own language. If it is a good thing
for a child to be taught in his home language-as educationists say that
it is-it surely follows that the development of that language, and the
preparation of books and other teaching matter therein for the purposes
of such instruction, cannot be wrong.
The idea that Native (African) languages should be developed to meet
new demands, includ.ing their use as media of instruction, is not limited
to South Africa or South West Africa, as can be demonstrated from the
monograph of the committee of Unesco experts to which reference was
made above 1. Holding the view that "there is nothing in the structure
of any language which precludes it from becoming a vehicle of modem
civilization" 2,these experts deal with varions aspects of language devel
opment. In regard to the preparation of teaching material, they say,
inter alia, that in a country which "contains a complex linguistic situa
tion" it may be found "highly desirable" to establish "a bureau or
institute, to supervise the choice of languages for regional use and the
preparation of scientifi.cally prepared pedagogical material" 3•In con
nection with vocabulary development, in contradistinction ta spon
taneous vocabulary growth, they say that-
"... in the event of new departures in education and culture,
including particularly the introduction of the mother tangue into the
school for the first time or the attempt to develop scientific and
technical Iiterature and training in a Ianguage which has previously
been little used in this way, then the need arises for conscious
planning of vocabulary development ~",
and in regard to the organization of vocabulary development they say,
inter alia:
"Where the problem is to develop a simple vocabulary for primary
school purposes, it probably can be done by a small committee of
experts acquainted with both the subject-matter and the native
culture, and advised by one or more linguistic scholars of a practical
tum of mind. Where the aim is to develop the use of a language for
technical purposes, a permanent commission or society would be in
order .''
24, In dealing with the so-called "artifi.cial development" of the
Native languages, Applicants rely on a view expressed by a former
inspector of schools, Mr. G. W. Sneesby 6• The relevant passage in the
Reply reads as follows:
"An ex-Inspector of Schools has queried whether it might not
have been better to have allowed the Bantu languages in South
Africa ta develop in the natural course of events, rather than to
engineer an artifi.cial development thereof necessary for such
1 Unesco, The Use of Vernacular Languages in Education (1953), vide para.
2r2 suprn.
Ibid.,p. 49.
3 Ibid.,p. 64-
• Ibid., pp. 64-65.
5 Ibid., p. 66.
6 Vide IV, p. 375. REJOINDER OF SOUTH AFRICA
languages to be used as instructional medium for arithmetic, social
1
studies, environmental studies, and other subjects ."
What Applicants say in regard to Mr. Sneesby's query is apparently
their version of the following passage in Mr. Sneesby's article:
"A very great problem arising from the use of the vernacular as
medium throughout the primary school course, quite apart from
its introduction as medium for the secondary school course, is the
lack of suitable terminologies for the various school subjects.
Departmental committees have been established for the varions
languages and these committees have made considerable progress in
the compilation of the required terminologies for many of the school
subjects. Already a number of terminologies have been published in
Xhosa, Zulu and Sotho and some progress has also been made in
Tsonga and Venda. What does cause the observer some disquiet is
the feeling that the various languages are not really being allowed
to develop in the natural order of events pari passu with the gradual
development and advancing civilisation of the peopks conŒrned,
but that a kind of artificial forced devclopment of the languages is
2
taking place ."
Respondent bas already dealt with the general issue of the develop
ment of Native languages and with the views of experts in regard there
to 3, and Mr. Sneesby's view should be considered in the light thereof.
Respondent says, furthermore, that it fully appreciates that there should
not be an unrealistic gap between the general level of development of a
people and new idea~ or nations which it is sought to introduce. The
Unesco experts to whom reference has already been made refer to this
problem in a passage dealing with planned vocabulary development.
They say, inter alia:
"Those who undertake such work should avoid the kind of wasted
efforts which in the past bas frequently resulted from an impractical
approach to vocabulary building and which produced thousands of
words for notions which people were not discussing or which went
against the tendencies in popular usage 4.''
In Respondent's submission the "disquiet[ing]" aspect referred to by
Mr. Sneesby is not a substantial one. Respondent's edncational experts
are engaged on enlarging existing vocabularies to give expression to
ideas or notions which corne into play in school courses, and in Re
spondent's submission such language development, if sufficiently practi
cal and realistic, has great educational value.
25. In regard to their complaint of the "artificial development" of
Native languages, Applican ts also rely on a statemen t in the report of the
Commission of Inquiry into the Teaching of the Official Languages and
1 IV, p. 375. After the words "and other subjects" in the quotation above there
appears footnote 6, being a referencta Sneesby, G. '.V., "The Vernacular in Bantu
Education in the Union of South Africa", Oversea Education, Vol. XXXIII, No. 2
(July 196r), p. 75.
1 Sneesby, G. \V., "The Vemacular in Bantu Education in the Union of South
Africa", Oversea Education, Vol. XXXIII, No. 2 (July 1961), p. Bo. Applicants
referta p. 75 (IV, p. 375, footnote6), but no such staternentappears on that page.
3 Vide para. 21, supra.
• Unesco, The Use of Vernacular Languages in Education (1953), p. 65.88 SOUTH WEST AFRICA
the Use of the Mother Tongue as Medium of Instruction in Transkeian
Primary Schools 1•They say that-
"... the Transkei Commission was of the opinion ·that, although
education by the mother tongue was 'essential' in the early stages,
it was improper as the medium in the secondary schools:
'If this is ever to corne about, it must corne about as a result of
a natural development. The inadequacy of the vocabulary, text
books, and reference books is a very real and important obstacle
in the way of its introduction as a medium of instruction in the
secondary school' 2."
Applicants' reference to the report of the Transkei Commission is no
doubt intended by them to show that the Commission rejected language
developmcnt of the kind fostered by Respondent and that it favoured
"natural development". The Commission did not reject such language
development. It is clear from its report that the expression "natural
development" was not iutended to exclude such development. This
appears clearly from the following paragraphs in the Commission's
report:
"The case therefore for education through the medium of the
mother tongue is so strong that it cannot be challenged. Indeed, if
the mothcr tongue is not a suitable medium of instruction then it
must either be developed to become a suitable medium or the people
must adopt another mother tongue. As the Commission found no
evidence to lead it to assume that the Xhosa people want to change
their mother tangue, the only wayout isto develop the mothertongue.
This development cannot be effectively done by a language com
mittee creating new words unless the people whose language it is
want their language to grow and are not over critical of new words
merely because they are strange. If the peopk are prepared to co
operate with a language committee or language academy such a com
mittee or academy can play a very use/ut part in the development of
the language 3_''
"The Commission wishes to point out that a Committee whose
activities are so firmly linked with a State Department will always
be subject to some suspicion. Therefore the Commission welwmes
the pending establishment of an independent Xhosa Language Academy
that will be more representative 4." (Italics added.)
Applicants' allegation that it was, in the opinion of the Transkei
Commission, "improper" to use the mother tongue as medium of instruc
tion in secondary standards creates a misleading impression by reason
of their failure to say what the Commission's actual conclusion was.
This conclusion, reached on the evidence before the Commission, was
" ... that for several years to corne no attempt must be made to intro-
1 R.P. No. 22/1963.The passage quoted by A.pplicantsispart of para. 6(a) of
sec.E of the report (p. 17, 1Col.).
2 IV, pp. 375-376.
3 R.P. No. 22/1963, sec. E. p. 18 (para. 7 (e)).
• Ibid .• p. 18 (para.. 7 (1)). REJOIN"DER OF SOUTH AFRICA 89
duce the vernacular as a medium in the Secondary Schools" 1, and it
shows that the Commission did not, as Applicants suggest, hold the
view that it was not proper, or that it would never be possible, to use
the vernacular as medium in secondary classes. It may be noted that this
conclusion immediately precedes the passage quoted by Applicants.
Dealing with the alleged "forced nature" of Respondent's policy of
mother-tongue instruction, Applicants next cite the following passage
from the report of the above-mentioned 1961 Education Panel 2 :
"lt must also be accepted, however, just as there is no place for
trying to change cultures from outside, so there is none for trying
to preserve them from outside. AHcultures must and do change and
if they did not they would ultimately perish through losing touch
with contemporary needs. The decision as to how fast and in what
direction a culture shall change, what its attitude should be to other
languages for example, is a decision belonging to the bearers of the
culture alone. In our opinion, therefore, White-inspired attempts to
insist upon the preservation of Bantu languages are as misplaced as
White attempts to eliminate such languages would be. The decision as
to how Bantu languages as a medium of culture and learning shall
develop belongs to the Bantu; or, to be more accurate, the decision
asto each particular language belongs to thosewhose language it is."
It will immediately be observed that the passage in no way deals with
the merits or demerits of mother-tongue instruction. Apparently it is
quoted by Applicants as a basis for suggesting that Respondent should
not contribute to the preservation of the Native languages of the Terri
tory by using them as media of instruction; that Respondent should al
low such languages, and the culture of those who speak them, to perish if
they cannot, without Respondent's aid, cope with modern needs; and
that Respondent should leave all decisions as to the use, preservation and
development of the indigenous languages to the groups concerned.
Respondent rejects all suggestions of this kind, and denies that its obli
gations under the Mandate in any way oblige it to actas Applicants seem
to suggest.
Applicants seem to suggest, furthermore, that Respondent is guilty of
·"attempts to insist upon the preservation of Bantu languages" 3 when
the Bantu groups themselves are not in favour of their preservation.
The suggestion is completely unfounded. Quite apart from ail that has
been said above in regard to mother-tongue instruction and Respondent's
efforts to develop the Native languages, Respondent says that it is not
aware of a single Native group in South West Africa which is in any way
desirous of abandoning, or in any other way losing, its own language.
In this context Respondent showed in the Counter-Memorial that there
1 R.P. Ko. 22/1963, sec. E, p. 17 (para. 6 (a)). The Commission, it may be
pointed out, recommended that the mother tongue be used as medium thrnugh
Standard IV; that the new medium (an official language) be introduced in respect of
some subjects in Standard V, and in respect of other subjects in StandardVI; and
that the mother tangue be used as medium in scripture right through: ibid.p. I9
(para. 9 (l)).
2 IV, p. 376 and vide pùa. li,supra. (Italics added by Applicants.)
3 Vide the italicized portion of the above-quoted passage from Education for
South Africa: The 1961 Education Panel, First Report (1963), p. 56 and para.11,
supra.90 SOUTH WEST AFRICA
has in recent years been a new interest in African States in preserving and
reviving African culture, and in according such culture a proper place in
education at all levels l It cannot be assumed, as Applicants seem to do,
that similar sentiments do not, or will not in future, operate in South
\Vest Africa, and in all the circumstances Respondent cannot counten
ance any suggestion which involves that a language should be allowed to
die if it cannot survive without Respondent's assistance. In this regard
Respondent draws attention to the following passage from a British
educational report which was quoted by a member of the Eiselen Com
mission:
''We need 1wt empiwsize the importance of beginning the education
o/ little children in the medium o/ their mother longue and w.ith the
material of Native folk-lore, music, games and living tradition. We
feel it almost equally that long a/ter the pupil has passed over the
medium o/ English and has set himsel/ assiduously to study English
literature, and European art, music, history and tlwught o/ all kinds,
he slwuld in this alien fieldcontinue to draw inspiration /rom his Native
heritage o/ thought-in whatever forrns, such as music, visual arts
and crafts, proverbial wisdom, historical traditions, or social insti
tutions, the thought of his people has expressed itself in the past or
can be hoped to express itself in the future. We recognize that in
some areas where there are many languages and perhaps many cultures,
it will be ditficult to apply this principle; but such ditficulties do not
lessen ils importance. W e believe it to be of the highest importance that
the feeling of spiritual co-ntinuity between one generation and another
should bemaintained: and we see no otherway than this of maintaining
it. This,in our view, is the answer to the doubt that is sometimes ex
pressed whether Native languages and cultures are educationally worth
retaining; whether it would be beller to let them die and roncentrate
onEuropean culttire. Itisnotso mucha question of whether a particular
language, or matrilineal inheritance of collection of proverbs, or a
set of folk idioms in music or the visual arts shotdd be carefully
preserved by Eu,opean servants and handed over to the educationists
to be pre-digested into intellectual pabulum for the children in
school. The question, rather, is whether in these things a people can
preserve ils contact with the past; whether ils /urlher growth will con
tinue to be nourished /rom its ancient roots. A culture once dead cannot
be resuscitated: let us beware of lightly allowing a culture to die 2."
(Italics added.)
26. In speaking of the alleged "forced nature" of Respondent's
system of mother-tongue instruction, Applicants also say that
"Respondent has not consulted the 'Native' groups in the Terri
tory with respect to their wishes on vemacular instruction in all
standards 3" (italics added),
and then, apparently to support this statement, they add:
"lndeed, the present Chief Minister of the Transkei bas stated that
1III,pp. 377-381.
2 Para.20 of Prof. Murray's remarks, p. 176 of U.G. 53-195r, being a quotation
from EducaJion for Citi:unship in Africa (Co216, p. 7).
3 IV,p. 376. REJOINDER OF SOUTH AFRICA 91
the Transkei would abolish Xhosa as medium of instruction after
Standard II 1."
The latter statement is not directly relevant to, conditions in South
West Africa: further reference thereto is, however, made below 2• As far
as the Territory is concerned, it is correct that the Native groups have not
yet been consulted in regard to the use of the vernacular as medium of
mstruction in ail standards, i.e., including secondary standards. This
question, as has been pointed out 3,was not in issue when the Commission
of Inquiry into Non-European Education in South West Africa heard
evidence and brought out its report in 1958. The Commission consi
dered introducing mother-tongue instruction throughout the primary
school course, but decided against it on practical grounds and recom
mended:
"(a) that only the home language be used as medium of instruction in
Sub. A and B;
(b) that the home language should be used as far as is practicable also in
Stds. I and II as medium of instruction, but that at this stage Afri
kaans should supplement them in order to surmount technical
problems;
(c) that Afrikaans should provisionally be the medium of instruction in
all standards from Std. III upwards 4."
In evidence before the Commission there were urgent requests from
Native parents that "their languages should have equal treatment with
the official languages" 5,and in regard to the specific question of medium
of instruction the Commission reported;
"Ail were agreed that the home language only should provisionally
be used in the beginners classes and that Afrikaans should be the
medium in the higher classes 6.''
7
Respondent has already indicated that the use of the vernacular as
medium of instruction in secondary standards is, at this stage, no more
than a distant ideal, the achievement of which will, inter alia, depend on
the co-operation of the Native groups concerned in developing the Native
languages to become fit vehicles for such instruction. Respondent states,
furthermore, that no final decision as to the use of the vemacular at
secondary level will be taken until after due consultation with ail those
who have an interest in Native education, including parent commu
nities, school boards and committees, teachers' organizations, and the
missions.
27. The charge is also made that the use of the mother tongue at ail
levels lowers the standard of the official languages, and that this is a
8
serious matter particularly as far as English is concemed •
In this connection Applicants refer, firstly, to the following statements
iIV, p. 376.
• Vide paras. 30 and 3 r, infra.
3 Vide para. 15 (b), supra, and Report of the Commission of Inquiry into Non
European Education in South West Africa (1958), Part I, para. B. 124, pp. u5-II6,
4 Report of the Commission of Inqufry into Non-European Education in South West
Africa (1958), Part I, p. II6 (para. B. 124).
5 Ibid., p.80 (para. B. 106 (c)).
6 Ibid.,p. 81.
1
8 Vide para. I5 (b), sup,,a.
Vide IV, pp. 376-377.92 SOUTH WEST AFRICA
in an article by J. W. :1'.facquarrie,who is described as an "authority on
'Bantu Education'":
"The introduction of a third language may well prove to be the
most calamitous blow strnck at Bantu education ...
It will be seen, in brief, that the language provisions minister to the
twin gods of apartheid and tribalization. They aim at producing an
African tolerably fluent in his own Janguage, if he stays long enough
at school, and able to communicate to a strictly limited degree in the
two official languagcs with officiais and other casual contacts 1."
Mr. Macquarrie's article 2, as will be obvious even to the cursory reader,
is couched in terms emotional and exaggerated to a degree which makes
proper assessment impossible, and the result is, to say the least, a sad
lack of objectivity in his whole approach.
It should be noted at the outset that although Applicants apparently
refer to the passages 3 quoted by them as dealing with mother-tongue
instruction, this is not the case. They deal merely with the "introduction
of a third language" which, it is alleged, "may well prove to be the most
calamitous blow struck at Bantu education". It appears from the article
that the third Janguage to which Mr. i\facquarrie refers is the second
official language which, as appears from what the author himself says in
his article 3,is usually Afrikaans. Mr. Macquarrie's complaint is that the
introduction of the second official language leaves less time for the study
of the first officiallanguagc 4.Applicants are, therefore, in effect complain
ing of the introduction of Afrikaans as a third language besicles a Native
language and English-a complaint which can hardly be reconcilcd with
their alleged concern about the standard of Afrikaans.
The first sentence of the second part of the quotation contains astate
ment unworthy of serious reply.
Respondent also rejects the statement that-
"[the language provisions] aim at producing an African tolerably
fluent in his own language, if he stays long enough at school, and
able to communicate to a strictly limited degree in the two official
languages with officiais and other casual contacts {''.
This is untrue. Respondent's aim is that Native pupils should have a
thorough knowledge of their own language. Native languagcs are used as
media of instruction in primary standards, and are furthermore studied as
subjects. Equally unfair and unwarranted is ]\fr.~Iacquarrie's assump
tion that, because Afrikaans has been introduced for study as second
official language, Respondent must be taken to aim at nothing higher
than that Native pupils should be able "to communicate to a strictly
limited degree in the two official languages with officiais and other
casual contacts".
Applicants link this last statement by Mr. Macquarric with an allega-.
tion previously made by them 5 in connection with a passage in the
1IV, p. 376.
2 Macquarrie, J.\V., "The New Ortler in Bantu Education", Africa South,Vol. 1,
No. 1(Oct.-Dec. 1956), pp. 32-42.
s Ibid., pp. 40 and 41.
• Ibid., p41. Mr. l\Iacquarriecalls English thelingua franca of South Africa's
Bantu groups. This statement is certainlynot true for all parts of South Africa.
ltwould be quite untrue of South \Vest Africa.
5 Vide Chap. II, para. 19,supra. REJOINDER OF SOUTH AFRICA .
93
report of the Eiselen Commission. The paragraph in the report-of
which paragraph Applicants quote only parl-reads as follows:
"We also wish to point out that witnesses, parlicularly theBantu,
laid great stress on the need to teach both official languages. We are
therefore of the opinion that provision should be made for instruction
in bath these languages even in the lower primary school, and this
should be done in such a way that the Bantu child will be able to
find his way in European communities; to follow oral or written
instructions; and to carry on a simple conversation with Europeans
1
about bis work and other subjects of common interest ."
It is quite clear that the Eiselen Commission referred to the minimum
education it thought should be possessed by those Native pupils who cl.id
2
not proceed beyond the lower primary school •The paragraph does not
deal with education beyond that level, i.e., four years at school. This is
apparent not only from the terms of the paragraph itself, but also from
another passage in the Commission's report to which Applicants them
selves refer 3,in which the Commission recommcnded that provision be
made for the study of the official languages to serve, inter alia, "as a
means of securing contact with the knowledge of the wider world" 4. The
latter recommendation clearly envisages a more profound knowledge of
the official languages than was referred to in the case of pupils who leave
school during or at the end of the lower primary course (i.e., four years'
schooling).
28. Applicants make the following further allegation in regard to
mother-tongue instruction in secondary standards and its alleged effect
on the study of English:
"A natural result of mother-tongue instruction at secondary levels
is the decline of English. Thus, the 'Native' inhabitants of the
Territory are becoming ever more isolated from the world which
initially committed them to the care of Respondent. If Afrikaans,
and, a fortiori, English, are taught as foreign languages to South
West African children, the effects will be far-reaching 3."
The alleged increasing isolation of the Native inhabitants of the Terri
tory from the rest of the world is stated to be the result of mother-tongue
instruction "at secondary levels". This is, to say the least, a curious state
ment, for, to the knowledge of Respondent, there is no mother-tongue
instruction at secondary levels in South vVest Africa. In fact, as has been
shown 5, the mother tangue is at present not used as medium in Native
1 U.G. 53-1951, p. 146 (para. 924) and vide Chap. II, para. 19, supra.
2 In dealing with the curriculum of the lower primary school, Prof. Murray, a
member of the Commission, quoted the following passage from the 11,femorandum
on Educational Policy in Nigeria, 1945:
"The essentialaims of the curriculum of the junior primary school would
comprise religions instruction, the ;;tudy of the vernacular, a command of
arithmetic sufficient for the needs of everyday life, ability to read, write and
speak simple English and the arousing of an intelligentinterestin the pupil's
environment ... The Committee would bear in mind that a four-year course
can only cover the bare essentials and would be enjoined to ensure that the
syllabus is not over-weighted." (U.G. 53-1951, p. 172 (para. 16).)
3
IV, p. 377.
• Vide U.G. 53-1951, p. 132 (para. 776 (c)).
5III, p. 361 and vide para. 15 (c), supra.94 SOUTH WEST AFRICA
schools beyond Standard II, save that it issoused for religions instruction
up to Standard VI in the northern territories. lnasmuch as Applicants
are, in effect, attributing results to a system which is not in operation,
there is no substance in their allegation that the Native inhabitants of the
Territory "are becoming ever more isolated from the world". And for
the same reason there isno factual basis for their prediction as to "far
reaching" effects in the future.
As far as the future is concerned, Respondent has already made it
clear that it is fully aware of the value of English and Afrikaans to the
Native inhabitants of the Territory, an1 of the necessity of giving Native
pupils thorough instruction therem •
Applicants, it will be observed, complain of the future effects 2 of
teaching "Afrikaans, and, a fortiori,English" as "foreign languages" to
Native pupils. Since Native pupils have home languages other than
English and Afrikaans, it is not appreciated how these two languages
can be taught to them as anything but "foreign languages"-in the same
way as English is taught as a "forei&n language" to an Afrikaans
speakin9 pupil. Applicants' complaint ismdeed, an incomprehensible one.
Taken hterally, it seems to involve the proposition that steps should be
taken to ensure that English or Afrikaans becomes the mother tangue of
all Natives in the Territory-a proposition which Respondent rejects as
involving nothing less than the disappearance of the Native languages.
But perhaps Applicants intend to say no more than that English should
be used as medium because instruction in any othcr language causes
"the decline of English". If this is what Applicants intend, Respondent
says, firstly, that due regard should at all times be had to the generally
admitted value of mother-tongue instruction; that the standard of
English attained is only one factor-albeit an important factor-of a
school education; and, also, that it iswrong to assume that English can
only be taught (and lcarnt) properly ifit is also used as a medium of
instruction in other subjects.
In regard to the last-mentioned point, viz., the use of English as a
medium of instruction with a view to raising the standard of English,
Respondent refers to the following passages from a paragraph in the
Report of the Commcnwealth Conference on the Teaching of English as a
SecondLanguage, held at Makerere College, Uganda, in 1g6r:
"(a) Although one of the reasons for using English as a medium is
the advantage it \>rovides in teachlng the language, its em
ployment as a medium is uneconomical of time and effort ifit is
regarded as a substitute for well planned instruction in English
as a subject."
"(c) The use of English as a medium requires, in the teacher,
greater control over the language, greater abilitY. to operate
within the range of language available to the pup1ls,and more
teaching skill than is required to teach the language as a
subject, especially at the early stages. Ifhe is not thoroughly
at home in the subject he is teaching through English, he may
be pressed to rely more than is desirable on his textbook,
1 III, pp. 364-365 and vide par21 (t},supra.
i Vide "the effects will be far-reachinIV, p. 377. REJOINDER OF SOUTH AFRICA
95
with the result that the English the pupils are taught will
become bookish and stilted l."
It may be noted in this regard that the Transkei Commission of
Inquiry, which is referred to by Applicants in the Rcply 2,rejected what
it described as "the educationally unsound and mistaken notion, that a
foreign languagc can only be taught thoroughly if it is also used as a
3
medium of instruction" , and that it also said-
"[i]f the knowledge of a foreign language must improve then it is
educationally sounder to increase the time allocated to the teaching
of the language rather than to resort to measures that may have
the desired effect in so far as the knowledge of the language is
concerned, but may have other undesirable results ... 4".
29. In support of their aforementioned statement that "[i]f Afrikaans,
and, a fortiori, English, are taught as foreign languages to South West
African children, the effects will be far-reaching", Applicants quote the
following passage, which is alleged to have bcen made by a petitioncr
before the Special Committee on Apartheid;
"This means that the standard of English and Afrikaans remains
very low making it even more difficult for the African to fit into an
economy run by Whites who do not speak tribal languages, and even
to communicate with Africans of other tribes 5."
Respondent says the following in regard to this quotation:
Firstly: The words ascribed to the petitioner are apparently not the
words actually used by him. The passage in the document from which
Applicants quote does not appear in the official record of the oral pro
ceedings before the Committee concerned. The only passage in this record
which resembles the one quoted by Applicants reads as follows:
"In the primary schools, instruction was given in the language of
the tribe; the non-White child therefore had a very inadequate
knowledge of English or Afrikaans, which greatly impeded his ad
aptation to modern life and prevented him from communicating
with Whitcs and with members of other tribes ."
Secondly: The petitioner spoke of what were, according to him, con
ditions in South Africa. He made no mention of South West Africa.
Thirdty: The petitioner made no mention of the fact that English and
Afrikaans are taught as subjects from an early stage in all Native schools,
and created the false impression that Native pupils arc left to themselves
to pick up such English and Afrikaans as they can so as to be able to
adapt themselves "to modern life", or to communicate with Whites, or
other Natives. He also failed to make any mention of the generally
admitted value of mother-tongue instruction.
Fourthly: If the aforesaid official record is to be trusted, the petitioncr
is a dishonest man, and thoroughly unreliable. According to this record
1 Report of the Commonwealth Conference on the Teaching of English as a Second
Language, held at Makerere College, Uganda (r to r3 Jan. rg6r), p. 23 (para65 (r)
(a) and (c)).
3 IV, p. 376, footnote r.
R.P. No. 22/1963, sec. E, p. r6 (para. 5 (b)).
• Ibid., pp.16-17 (para. 5 (d)).
s IV, p. 377.
6 U.N. Doc. A/AC. rr5/SR. 21, 22 Aug. 1963, p. ro.96 SOUTH WEST AFRICA
he made certain statements which are palpably false, and which the
Applicants would glaclly have incorporated in their Reply if they had
thought that there was any chance of their being believed. Thus, accord
ing to the record the petitioner made the following completely false
statement:
"African children were educated only in tribal life and traditions,
with deliberate exclusion of the cultural heritage and the scientific
1
and technological discoveries of the Whites ... "
In Respondent's submission, the petitioner on whom Applicants rely
canin no way be regarded as authority for the above-mentioned state
ment in support of which be is quoted by them. Nor can what he is quoted
as having said be accepted as authority for the following statement by
Applicants, which follows immediately upon the said quotation, viz.:
"This is hardly promotion 'to the utmost', or otherwise, of the
social progress of the inhabitants. Not only will children be 'retri
balized', not only will they be eut off from the outside world, but
they will be divided from one another 2."
It is not clear what Applicants wish the word "retribalize"-the
inverted commas are theirs-to mean, save that the word would seem to
involve a contemplation that children are not "tribalized" at present. In
any event, if Applicants intend to suggest that Native children are, or
will be, eut off from modem education, the suggestion is denied.
In this same connection Applicants make the following novel and
startling statement: "A policy of division such as this naturally saps the
energies and the powers of 'Native' opposition to the policies of the
Respondent" 3• The question immediately arises why such an accusation
should merit nothing more than a bald statement in a footnote. The
statement is a shameless and untrue one, and is rejected by Respondent 4•
30. In support of what they predict will be the result of Respondent's
policy of mother-tongue instruction, i.e., isolation from the "outside
world" and "from one another", Applicants also quote what purports
to be a newspaper version of a statement made by Mr. l\Iatanzima, now
Chief l\linister of the Transkei. Applicants quote him as saying that-
"... although Xhosa would be the official language of the Transkei,
it would be abolisliedas a medium of instruction after Standard Two;
the Government's insistence on Xhosa as a medium of instruction
was 'a sore point with the people' (Johannesburg Star, air mail
edition, 27 January I962). Africans do not want to be linguistically
isolated from one another, let alone from the world 2."
Applicants clearly wish it to be inferred that Mr. Matanzima regarded
mother-tongue instruction above Standard II as a factor which isolated
Natives from one another and from the world; and, secondly, that he
actually said "Africans do not want to be linguistically isolated from
1
U.N. Doc. A/AC. 115/SR. 21, 22 Aug. 1963, p. ro.
2 IV, p. 377.
3 Ibid., vide footnote 3.
4 It seems likely that Applicants were inspired to rnake the allegation by the
aforementioned petitionerwho, after stating that "African children were educated
only in tribal Iife and traditionswent on to say, inter alia, that "Such an educa
tion ... prevent[ed] the non-\Vhites from uniting", U.N. Doc. A/AC. u5/SR.. 21,
22 Aug. 1963, p. 10. REJOINDER OF SOUTH AFRICA 97
one another, let alone from the world". Respondent points out that a
reference to the newspaper report referred to in the quotation 1 clearly
establishes the following:
F irstly : Mr. i\fatanzima never said "Africans do not want to be linguisti
cally isolated from one another, let alone from the world". Nor did he say
anything remotely similar. In fact, he never referred to "Africans", or to
"isolation" in any fonn.
Secvndly: Mr. Matanzima said, according to the report, that "... there
were neither text books nor tenninology in Xhosa for it to be the lan
1
guage medium above Standard II" •He never said, or implied, that to
use Xhosa as medium of instruction would isolate the Xhosa from the
world or from one another.
Thirdly: He said, according to the report, that "Children would be
taught in English-or in Afrikaans if they understood it better" 1• This
shows, it is submitted, that l\fr. Matanzima did not think that Xhosa
children would be "eut off from the outside world" if they reccived
their education through the medium of Afrikaans and studied English as
a subject (i.e., as a "foreign language") 2•
Fourthl,y: As to the statement that the Govemment's insistcnce on
Xhosa being the medium of instruction was "a sore point with the people",
Respondent points out that a Commission of Inquiry was appointed by
it in r962 to inquire, inter alia, into the use of the mother tongue as
medium of instruction in the schools of the Transkei, and that this Com
mission reported in October I9{>3 •
Respondent points out, furthermore, that recently Mr. Matanzima,
referring to the decision taken by the Transkei Govemment in r964 to
introduce English or Afrikaans gradually as medium of instruction from
Standard III, and to other educational matters in the Transkei, is
reported to bave stated, inter alia:
"I also wish to reaflinn this Govemment's stand, namely, that we
believe in mother-tongue education as the soundest educational
policy. It is only because Xhosa is not sufficiently developed as a
languagc to use as a medium for study in higher educational fields,
that we of necessity must-for higher study purposes-switch over
to one or other of the European languages.
Oitr ideal, however, is to develop Xhosa to such an extent that it will
eventually be able tatake its place among the langitages of the world,
also as a suüable medium for all higher education. Then we will have
full mother-tongue education, not only up to Standards three or five
but right through to the end 4.''(Italics added.)
3r. Applicants conclude the paragraph in which they refer to Mr.
Matanzima with the following words:
"C. W. de Kiewiet bas identified the central problem when he
stated that 'the whole myth of a separate native culture collapses
when it isrecognized that, for the African, progress and emancipation
1 The Star (Air Edition),27 Jan. 1962.
2 Vide Applicants' remarks at IV, p. 377.
3 The report of the Commission has been referred to supra; vùh paras. 25
and 28.
4Daîly Dispatch. 26 June 1964, p. 11.98 SOUTH WEST AFRICA
depend upon an escape /rom the tribe and a deeper entry into the life of
the West' 1." (Italics added by Applicants.)
In the context in which it appears, this statement is a puzzling one: The
"central problem" of what has been "identified"? The suggestion seems
to be that Respondcnt holds the view (which is in truth a "myth") that
there is a "separate Native culture" and that Natives should, therefore,
be eut off from the advantages of modern education. If that is what
Applicants intend to suggcst, the suggestion is rejected. Respondent
believes that there are-and has never heard it said that there are not
differences between the cultures of the West and of the indigenous African.
It is well known, too, that differences in the culture of peoples are re
flected in their education and educational systems 2,and whilst Respon
dent believes that a nation's, or group's, culture should not be destroyed,
or allowed to die, without good reason, it certainly does not hold the view
that cultural groups should remain, or be kept, at their traditional level
of development and be denied the advantagcs of modem education.
Dr. de Kiewiet's view seems to be different. To him the indigenous nations
of Africa have no cultures of their own, or, in any event, no cultures
worth preserving, not even as a foundation on which modem develop
ment can be based. As against the White man, he says, the African-
"... has nothing to resuscitate in protest ... except tribalism, no
tradition to invoke higher or more dignified than the cruel sanctions
of witchcraft and barbarism 3".
That Applicants should now endorse such views relating to Africans is
nothing less than astounding-views which are, also, in conflict with
views expressed, or approved of, by varions African States, including
Applicants, on another occasion 4•
32. Applicants follow up their puzzling reference to de Kiewiet with
a statement which is even more obscure. They say that Respondent "in
effect concedes this evil of its plan" 5,but they do not say what the "evil''
or the "plan" is. The concession is alleged to have been made by Re
spondent in quoting, in the Counter-Memorial, a recommendation of the
Eiselen Commission advocating the "study of the two o-(ficiallanguages
... as a means of communication with Europeans, as a help in economic
matters, and as a means of securing contact with the knowledge of the wider
world 5". (Italics added by Applicants.)
lt is clear that the Eiselen Commission thought that a knowledge of
the official languages was necessary "as a means of securing contact with
the knowledge of the wider world". There is no evil in this view, which
is shared by Respondent. The charge that Respondent is conceding the
"evil" of "its plan" by citing this view is one which Respondent cannot
fathom.
In so far as it may be suggeste<l that Respondent intends, by the use
of Native languages as media of instruction, to hamper or prevent prowess
in English and Afrikaans, the suggestion is denied. Without going into
1 IV, p. 377. The reference is to de Kiewiet, C. \V., The Anatomyof South A/Yican
Miscyy (1956), p. 54.
2 Vide III, pp. 375-382.
3 De Kiewiet, op. cit., pp54-55.
• Vide III, pp. 377-382.
, IV, p. 377. REJOINDER OF SOUTH AFRICA
99
any detail on this aspect, Respondent points to the fact 1 that Afrikaans
was introduced as a subject in the Native schools of the Transkei after
the Bantu Education Act came into operation, and that the above
mentioned Transkei Commission found-
"... that the language syllabuses in Afrikaans as in English compare
most favourably with those of the Provinces of the Republic and
•vith that of the Department of Education, Arts and Science 2".
The Commission also made mention of the "excellent guide to the
teachîng of English published by the Department" 3•
Applicants conclude thcir attack on Respondent's aforementioned
"ultlmate aim" to have mother-tongue instruction in ail standards of
Native schools by alleging that-
"Respondent's avowed aim of making South West African tribal
tangues the medium of instruction at all levels, while retainïng the
teaching of English and Afrikaans as 'foreign' languages,* is in
direct contradiction to the purpose of the Mandate 4."
Respondent has already dealt with the matters raised in this allegation,
and once again denics that it is acting in violation of its obligations under
the Mandate. The Mandate does not require that English be used as
medium of instruction. The same applies to Afrikaans. There is no basis
for the suggestion that a person can be taught to stand by himself "under
the strenuous conditions of the modem world" if he studies through the
medium of English or Afrikaans, but not if he studies these languages as
subjects.
IL THE ALLEGATION THAT REsPo~nE~T·s Poucv Is
"lMPRACTICAL AND U~WORKABLE" 5
33. Applicants' general allegation that Respondent's policy of mother
tongue instruction is "impractical and unworkable" is denied.
It appears, on analysis of Applicants' complaint, that they do little
more than refer to what Respondent itself stated in its Counter-)iemorial
concerning practical difficulties which are still encountered in its system
of mother-tongue instrnction 6, and to repeat a distortion in regard to
Respondent's efforts at dcveloping the Native languages ofthe Terri tory 7•
1 Vide also para. 45, infm.
2R.P. 22/1963, p. 1I (para. r3 (a)).
3 Ibid., p. 5 (para. r3 (m)).
• IV, p. 378. ln their footnote * Applicants refer to the fact that the Odendaal
Commission refors to English or Afrikaans as a "foreign" language (R.P. No.
l2/1964, p. 261 (para. 1090)). There is nothing strange about the use of the word in
this context: it is so used in contradistinction to "home language", or "mother
tongue''. It is-to mention only two examples-repeatedly so used in the report of
the Transkei Commission to describe English or Afrikaans; it is also oftcn so used
to describe a language other than the vernacular in Unesco: The Use of Vernacular
Languages in Education (1953).
5 Vide para. 15 (e), supra.
6 Vide III, pp. 358~362 and Chap. V, pp. 414-416 in regard to the system of
mother-tongue instruction and language difficultiesgenerally. Applicants also
refer to a passage in the Odendaal Commission's report which adds nothing to the
matter.
' IV,p. 380 and vida also para. 15 (b), supra.100 SOUTH WEST AFRICA
Respondent does not propose to deal again with the aforementioned
practica.l difficulties. lt ,vill, in the paragraphs which follow below, (a)
point out that such difficulties inevitably occur in multi-lingual countries
where a system of mother-tongue instruction is followed; (b) analyse
briefly Applicants' basic approach to the matter in issue; (c) illustrate
that Applicants, whilst eager to exaggerate the difficulties referred to by
Respondent, remain silent about certain factors mentioned by Respon
dent, and about the advantages ofthe system; and (d)show, by reference
to what has already been said, that Applicants distort what Respondent
stated in its Counter-1\Iemorial in regard ta the development of Native
languages.
(a) It is hardly necessary to state that a system of mother-tongue
instruction produces practical difficulties in multi-lingual countries,
and especially where there is a multiplicity of languages in any
given area. Where it is impracticable to give every child an educa
tion through his mother tangue, measures must necessarily be
taken which will serve the best interests of the greatest number
of pupils.
Respondent considers that its approach to the matter is, in a1l
the circumstances, an eminently reasonable one, and that it is more
over, in accord with the views of educational experts in this regard.
Thus, in a book alreadv referred to, a committee of Unesco ex
perts say the following on the subject:
"If a givcn locality has a variety of languages it may be
difficult to provide schooling in each mother tongue simply
because there are too few students speaking certain of the
languages. In such cases it may be necessary to select one of the
languages as the medium of instruction, at the cost of using a
language other than the mother tangue of some of the students.
Before accepting this necessity, the school should seek ways
and means to arrange instruction groups by mother tangue. If
mixed groups are unavoidable, instruction should be in the
language which gives the least hardship to the bulk of the
pupils, and special help should be given those who do not
speak the language of instruction ."
(b) Applicants' present complaint is not that the mother tangue will,
at some time in the future, be used in secondary standards. They
attack mother-tongue instruction even in the lower primary
standards because, as appears from the Counter-î\iemorial, not all
Native children are being taught through the medium of their own
1 Unesco, The Use of Veniacula,. Langiiages in Education (1953), p. 51. Vide
also the following passage in an article bJ.Berry, in which it is statethat common
features in Bantu Ianguages result in the Bantu quickly leaming their neighbours'
language:
"Speakers of Bantu languages ... share many similar morphemic and
phonacsthetic habits ... Under these conditions language leaming is not diffi
cult. The African as a rule acquires his neighbourslanguage painlessly and in a
surprisingly short time. And once acquired, this second language serves
him in a way that English never will: lexically and syntactically,it is by far
the better equipped of the two to express the needs and desires of his daily
life ... "(African Languages and English in Education: Educational Studies
and Documents, June 1953, N"o. II. Unesco Education Clearing House, p. 42.) REJOINDER OF SOUTH AFRICA IOI
language 1•Applicants' criticism on this basis seems to involve an ap
proach on their part that if ail children cannot receive the benefits
of mother-tongue instruction, no children need receive such benefits,
and that all of them might as well be taught through the medium
of English or Afrikaans. Respondent rejects such an approach, and
says that practical difficulties which prevent a comparatively small
number of Native children from being instructed through their
mother tongue cannot validly be advanced as an excuse for de
priving ail children of the benefits of mother-tongue instruction.
Furthermore, basic to Applicants' approach to the whole matter
is, as has already been shown 2, the notion that the Native languages
are not worth y of preservation or development. As indicated above 2,
Respondent rejects this view.
(c) Applicants, noting, as Respondent itself states in the Counter
Memorial 3,that only some (the major) Native languagcs have been
developed as school languages, and that instruction through them
is at present not yct feasiblc beyond the Standard II level, state-no
doubt with a view to being sarcastic-that "[a]s a result, the inhabi
tants are being held in suspension while their languages are being
'developed' into vehicles suitable for general communication" 1•
\Vhat Applicants do not appreciate is that the children of the
language groups concerned are being taught through the language
they know best-the medium which experts consider best on
educational, sociological and psychological grounds 4•Furthennore,
the fact that these languages are being further developed for
instruction in higher standards at a later stage derogates nothing
from the fact that pupils arc at present being educated through
their mother tongue at those levels where the language is a suitable
medium, and through the medium of Afrikaans or English at
higher levels. And as to those pupils who are stated to be held
"in suspension" in language groups to which they do not naturally
belong 5, Applicants exaggerate the position, and they also mis
represent certain facts, as will appear from a reference to the facts
as stated in the Counter-l\1.emorial 6• Respondent does not intend
going into any detail in this connection, and briefly points to the
following merely to illustrate how Applicants create warped images
in their treatment of the matter:
(i) They place unjustified emphasis on situations which affect
only small, sometimes very small, numbers. They say, e.g.,
that "varions other children, not Tswana, are being instructed
in Tswana" 7, when they know that Tswana is the medium
of instruction in only two schools in the whole Territory,
8
with the result that very few non-Tswana children are affected •
(ii) They make allegations which are not true, or which are so
1 Vide IV, pp. 378-379.
z Vide paras. 25 and 31, supra.
3 m. p. 4r6.
• Ibid., p. 377, and videpara. 21, supra.
5 IV, p. 379; vid~ also p. 381, where Applicants deal with the same matter in
discussing their alleged fourth defect of mother-tongue instruction.
6
7 Vide III,pp. 356, 358-363, 4r4-.p6, ~ide also 11, pp.315, 31S and 323.
8 IV, p. 379.
III,p. 363.I02 SOUTH WEST AFRICA
formulated that they inevitably create a false impression. So,
e.g., they state that children whose mother tongue is Sikololo
or Silozi (the general language of the Eastern Caprivi) 1 are
taught in Kuangali, Ndonga and other languages of the peoples
of South West Africa 2, when the fact is that Silozi is the on1.r
Native language used as school medium in the Eastern Caprivi .
Djiriku 4 children, they say 2. are instructed in Kuangali, etc.,
when the fact is that Kuangali "was, and still is, generally used by
the Kuangari ... andDjiriku withlocaldialectical versions" 5;and
it is totally wrong to create the impression that children of the
Okavango or of Ovamboland are taught through the medium of
Herero, Namaor Tswana 6•Kuangali, it may be mentioned, was
deveJoped as a lingua /ranca for Okavango schools by the mission
aries.
Respondent points out, furthermore, that Applicants make no
mention of the fact that in areas which are occupied by members
of more than one linguistic group, pupils often understand the
language of co-pupils who belong to a different language group,
and that teachers, too, often have a sufficient knowledge of the
languages involved to be able to explain lessons to ail the pupils
in a class in their own language. Respondent referred to this fact
in its Counter-Memorial 7, butApplicants omit ail reference thereto 8 •
presumably because of their approach that Native children should
be taught through the medium of English or Afrikaans, and nota
Nativelanguage 9•
{d) Applicants refer, finally, to efforts which are being made in the
Territory to develop the Native languages 10. In doing so, they
quote one sentence from the Counter-Memorial, some of the words
of which they italicize, and they a.scribe thereto a meaning which
it does not, and was not intended to, bear. The sentence reads as
follows:
"In the final result, however, it will be for the groups them
selves to contribute to the development of their languages to
meet all educational needs 11.''(Italics added by Applicants.)
The meaning Applicants ascribe thereto is that the Natives are
"left to develop their own languages 'to meet alleducationalneeds' " 12 ,
' Vide II, p. 315 (para. 16).
1 IV, p. 381.
! II,p. 315.
• One of the Okavango tribes.
5 11,p. 318.
6 IV, p. 381. Respondent deals hereafter (vide para. 36) with Applicants'
allegation concerning Native students attending universities in South Africa;
vid7JIV, p. 379, footnote 3.
Vûle III, pp. 36o-361.
8 IV, p. 379. Applicants quote from the Counter-Memorial a passa.ge preceding,
and a passage following, the relevant portion; vide second of quoted portions at
footnote 2.
!J One of Applicants' complaints is that Native pupils are being isolated from one
another, but apparently they object to any medium of communication between them
save English, or Afrikaans.
0
11IV, pp. 379-380.
Ibid., p.380 and vide III,p. 416.
12IV, p. 380. (Italics added.) REJOINDER OF SOUTH AFRICA 103
i.e., that their whole future education depends entirely on their
own efforts at developing their languages. That tlus is not so, and
that Applicants' interpretation amounts to a distortion of what
is stated in the Counter-Memorial (both in the passage referred to
by Applicants, and elsewhere)1, has already been indicated by
Respondent.
III. THE ALLEGATION THAT !ŒSPONDENT'S PüLICY HAS
"AT LEAST FOUR MAJOR DEFECTS"
34. The alleged defects are stated to be the following:
"(r) it perpetuates, rather than improves, existing defi.ciencies;
(2) it 'retribalizes' the 'Natives';
(3) it tends to aggravate the very problems which are asserted to
justify its adoption; and
(4) it is inadequate to provide even the limited educational
opportuni ties it professes to offer 2".
It appears on an analysis of these allegations 3 that they amount, in
essence, to a repetition of Applicants' complaints which have already
been dealt with above o!,Respondent's treatment thereof at this stage
will accordingl y be bricf.
35. (a) In dealing with the first alleged defect of Respondent's policy
of mother-tongue instruction, Applicants once again complain of Re
spondent's "ultimate aim" 2 in regard to the use of the mother tongue
in ail standards, and they allege that a policy with such an "ultimate aim"
involves "abandonment of Respondent's duty to promote the social
progress 2 of the Native inhabitants of the Territory. Respondent rejects
the allegation, and refers to what it has already said in this regard.
(b) In regard to the policy's alleged second defect, Applicants say that
it-
"... serves to foster tribal differences in the Territory and, as
such, to aggravate the very situation which Respondent asserts
as a justification for the policy of 'self-determination' of the
individual tribes as separate units 2".
The policy, they also say, "... exacerbates factors which are alleged
by Respondent to create a need for tribally separated schools to begin
with" 2,and they complain of the alleged "circularity and fallacy"
of Respondent's "reasoning" 2•
There is no substance in Applicants' allegations, nor in their
final remark about Respondent's alleged "reasoning". Basic to
Applicants' complaint, as has been indicated 5, is the philosophy
that ail group differences should be wiped out, no matter what the
wishes of those directly concemed may be, and that ail groups and
their members should be transformed into one homogeneous English
or Afrikaans- (but preferably English-) speaking mass. This approach
is, in Respondent's submission, a superficial and unrealistic one.
1 Vide III,p.360 and vide para. 15 (b), supra.
2 IV, p. 380.
3 Ibid.,pp. 380-383.
4 Vide paras. 17-33, supra.
5 Vide paras. 25 and 31, supra. SOUTH WEST AFRICA
104
Respondent's policy, on the other hand, is a realistic and liberal
policy whlch gives due recognition to the fact that the Territory
has long been populated by different ethnie and cultural groups.
ln recognizing differences-in thls case, linguistic differences
between such groups, Respondent cannot fairly be said to "aggra
vate" or "exacerbate" any situation. Respondent says, also, that
there is no policy of self-determination for individual tribes, only
for different ethnie groups.
(c) Applicants' treatment of the third alleged defect of Respondent's
policy is linked with allegations which have been dealt with above 1,
but they go somewhat further now and seek to develop a "vicious
circle" argument in whlch mother-tongue instruction is, in effect,
labelled as the origin and source of ail the diffi.culties whlch have
ever attended the extension of Native education in the Territory. ·
They say:
11
'mother-tongue instruction' automatically creates a
shortage of teachers and materials, and also lays a heavy
burden on the administration of the separate educational
facilities. This functional slowing-down of the educational
process must in turn lower the level and extent of education,
and as a result the 'Native' communities, being relatively un
educated, do not appreciate the value of education. This, in
turn, aggravates the conditions to which Respondent's reaction
is to institute vernacular instruction 2.''
This argument purports to be based on information supplied by
Respondent 3, but the facts furnished in the Counter-i\Iemorial 4
justify neither the allegations made nor the conclusions drawn by
Applicants. Applicants wrongly identify the policy of mother-tongue
instruction with various unconnected factors which have served to
retard Native education, and fail to take into account the historical,
sociological, psychological, geographical and financial factors which
have played a role in the development of Native education. In
Respondent's submission a perusal of the relevant portions of the
Counter-1\Iemorial 4will clearly show that Applicants' argument is
without substance, and Respondent does not propose dcaling with
itany futher save to point out that, in the final stage of their argu
ment, i.e., when trying to complete their so-called "vicions circle",
they distort the meaning of words used in the Counter-Memorial.
They say, in effect, that Respondent employs mother-tongue
instruction "since the majority of Native pupils leave school after
the first few years of schooling" 5. Respondent said, in the relevant
passage in its Counter-Memorial 6, that the 1958 Commission of
Inquiry recommended mother-tongue instruction in the sub
Standards and, as far as possible, also in Standards I and II. These
courses, Respondent stated, were the most important ones as far as
Vide para. 33, supra.
Vide IV, pp. 38a-38r. (Faatnatesamittcd.)
3 Ibid., p. 38r, foatnater-5.
4 Vide III,pp. 407-42r in regard ta factors which have served ta retard Native
educatian.
' IV, p. 381, foatnote5,referring to III, p. 358.
6 III, p. 358. REJOINDER OF SOUTH AFRICA IOj
Natives were concerned "since the majority of Natives leave school
after the first few years of schooling".
Misleadin1, too, is Applicants' use of the statement in the Counter
l\lemorial that "[t]he extra year in the case of Native pupils is
necessary largely because of language clifficulties". Applicants seek
to create the impression that mother-tongue instruction brings about
an extra year at school, while this is not so. Extra time is needed
primarily because of difficulties encountered by Native pupils in
studying two languages foreign to them, viz., English and Afrikaans.
Furthermore, the extra year is occasioned not only by langua~e
difficulties, but also, as inclicated in the Counter-Memorial 2, "m
order to bring the standard of their work on a par with that of
European students".
In conclusion: Respondent denies Applicants' allegation regarding
"deprivation of education" in the case of Native children 3• Re
spondent rejects the suggestion that it was intended in the Counter
:Memorial to "excuse" its conduct and to offer "explanations" for
that purpose, and denies that anything said by it in the Counter
Memorial "reinforce[s]" Applicants' allegations 4.
(d) The fourth alleged defect of Respondent's mother-tongue instruc
tion policy, viz., that it "cannot possibly accommodate all the
'Native' children. It cannot even accommodate ail the 'Native'
languages" 4 ,covers part of the cornplaint which has been dealt with,
and Respondent refers to what has already been said 5•
IV. THE ALLEGATION THAT THE "EVILS" OF THE POLICY ARE
"Cm,1POUNDED IN SOUTH AFRICA AT THE UNIVERSITY LEVEL"
36. Applicants allege, finally, that-
"[t]he evils of 'mother-tongue instruction' in primary and secondary
schools in South West Africa are compounded in South Africa at the
university6level by the evils of 'Bantu education' in di{Jerent 'mother
tongues' ",
and, after referring to the existence of three university colleges for
"South African 'Bantu' " 6 (viz., The University College of Fort Rare,
The University College of the North, and The University College of
Zululand), the y say:
"In 1962 the fi.rststudent from the Territory was admitted to the
College of the North. Speaking Herero or Ovambo, he would pursue
a course of 'higher education' in the company of Sotho-, Tsonga-,
and Venda-speaking associates. This is the reductio ad absurdum of
Respondent's educational apartheid policy 7."
Applicants seem to labour under the mistaken impression that Bantu
languages are used as media of instruction at the Bantu university
1III, p. 450; videIV, p. 381, footnote 3.
2 Ibid.,p. 450.
3 IV, p. 381. As already noted (vide para. 2r (a), supra), Applicants made no
reference to Respondent's policy of roother-tongue instruction in the l\Iemorials.
• Ibid.,p. 38 r.
5
6 Vide para. 33, supra.
IV, p. 382.
7 Ibid., pp. 382-383. Respondent points out that there are at present three
Native students from the Territory at this institution.106 SOUTH WEST AFR!CA
colleges in South Africa 1, otherwise it is not clear why they should find
it "absurd" for a Herero or Ovambo to attend lectures in the company of
Sotho-, Tsonga- or Venda-speaking students-unless, of course, Appli
cants are deliberately misstating the position, as thcy do when speaking
of mother-tongue instruction "in ... secondary schools in South \Vest
2
Africa" • ln the Territory, as in South Africa, Native students in
secondary classes are, at present, instructed through the medium of
Afrikaans or English, which languages are also the media of instruction at
the Bantu univcrsity colleges. Even if the Bantu languages should, at
some time in the future, be made media of instruction in secondary
schools, the position will still be that all Native students will study
English and Afrikaans as subjects in all standards at school. There is, in
Respondent's submission, nothing absurd in the position which Applicants
so attempt to describe.
D. Limitation of Objectives in Syllabus
37. ln the section of the Reply headed "Limitation of Objectives in
Syllabus" 3, Applicants make the charge that Native education is
"materialistic and utilitarian" 3•
To support their charge, Applicants first refer to passages in reports of
two Commissions which dealt with Native education in South Africa \
and to two passages in speeches made by Dr. Verwoerd in I953 and I954 5•
Then, after saying that the Transkei Commission, ten years later, found,
inter alia, that in the primary school syllabuses "too much time was
devoted ta the practical subjects" and "insufficient time ... to the basic
skills in the Ianguages and arithmetic" 6, they proceed ta deal with
syllabuses in South West Africa.
An analysis of the varions aUegations made by Applicants in regard ta
syllabuses in the Territory 7shows that the charge of being "materialistic
and utilitarian'' relates only to the education offered in primary schools 8 .
In the case of secondary schools and other courses the complaint is not
that Native education is "materialistic and utilitarian", but that fewer
practical, industrial and commercial courses are available to Native than
to European students 9•"This situation", Applicants allege, "is a result
of Respondent's larger policy concerning the position of the 'Native' in
the 'Enropean' economic world, or, in the alternative, the level of skill
required or desirable in the_development of the 'Natives' own 'com
munities' 10 " , and they rcfer to a part of their Reply 11 with which Res
pondent bas already dealt 12•
1 IV, pp. 382-383. Respondcnt points out that there are at present three Native
students from the Territory at this institution.
2 Vide the first passage quoted in this paragraph.
3 IV, p. 383.
• Ibid. Vide footnotes 2 and 4.
s Ibid. Vide footnotes 3 and 5.
6 Ibid., pp. 383-384; vide footnote 1 on p. 384.
7 Ibid.,pp. 384-386.
8 Vide allegations in regard to Iower primary and higher primary courses; IV,
p.384.
9 IV, pp. 384-386.
LO Ibid.,p. 386.
11 Ibid. Vide footnote 3.
12 Vide Chap. Il, supra. REJOINDER OF SOUTH AFRICA rn7
The varions allegations made by Applicants will be dealt with hereafter
by Respondent under the followmg heads, viz.:
1
Reports and speeches referred to by Applicants ;
Primary school courses 2; and
Secondary school and other courses •
Before dealing with these varions allegations, however, Respondent
first gives, in the next succeeding paragraphs, a brief statement of its
views on, and of the position of, practical subjects in primary schools,
and, also, a brief exposition of the attitude of the Permanent Mandates
Commission in regard to such subjects in Native education.
[I. THE ROLE OF PRACTICAL SUBJECTS IN PRl!>IARY SCHOOLS
38. In Respondent's view primary school syllabuses should be so
arrangedas to strike a proper balance between, on the one hand, education
wlùch may be termed prnctical, or utilitarian, and, on the other hand,
education which is usually described as literary, or academic. It is Re
spondent's submission, furthermore, that in South West Africa, as in
South Africa, varions factors operate to require that proper attention be
given to practical subjects in Native primary schools. Thesc factors may
broadly be stated to be: the largely rural and non-technical background
of the Native groups; the necessity for giving some useful education to
the many Native pupils who, for a variety of reasons, leave school to
take up employment after only a few years' study; and, also, the increas
ing dernands which will in future be made on Native communities to
improve their social and economic levels of development.
At least some of the aforementioned factors, it may be pointed out
briefly, operate in other African countries to give their education a
practical bias. So, e.g., a reference to the report of the proceedings of the
"Conference of African States on the Development of Education in
Africa", held at Addis Ababa in 1961 \ shows that it was agreed, inter
alia, by the members taking part-including both Applicants-that,
because of early school-leaving in African countries,
"... primary education should prepare children who would not go
on to secondary education for productive occupations. In that
connexion, it was stressed that primary education should be self
contained while being preparatory to secondary education and should
have a practical bias. The same applied to middle or junior secondary
schools which would gain by adopting an agricultural or technical
bias ... 5"
It has been pointed out by George A. Lipsky in regard to Ethiopia that
"emphasis in elementary as well as in secondary schools" has long been on
"academic subjects, such as arithmetic, science, history and geography",
but that there has been a new approach recently. He writes:
1 Vide paras. 42-45, infra.
l Vide para. 46, infra.
3 Vide paras. 47-49, infra.
4 Vide III, pp. 378-379.
s UNESCO/ED/181, p. 36. Vide also III, pp. 378-379 (paras. 55 and 56) for views
expressed at the said Conferencein regard to adaptingcurricula to rural and village
life, and spending less time on subjecΠnot relatedto African needs.I08 SOUTH WEST AFRICA
"Plans to adapt the cWTiculato local educational needs have been
in progress since the 195o's. In the elementary grades, more tirne is
to be devoted to health, education, and handicrafts. Courses em
phasizing basic technical and economic skills, particularly in agri
culture (truck gardening, poultry and cattle raising) and home
economics, are contemplated ... Local traditions are to be retained
through handicraft instruction, such as pottery and basket weaving.
In the secondary cWTiculum, academic subjects "vill be taught on
simplcr levels, and practical subjects, such as woodworking, metal
work, and needlework (for girls), will be added 1."
39. Because of various practical considerations, which need not be
discussed here, somewhat less time has at ail tirnes been devoted to
practical subjects in the Native primary schools of South West Africa
than in the Bantu schools of South Africa. This is still the position today,
despite certain changes which were brought about in this regard when
new syllabuses were introduced for Native schools in the Territory in
2
1961-1962 •The time previously allotted to handwork subjects was then
increased by 6o minutes per week (from 90 to 150minutes per school week)
in all the primary standards, and reduced by 30 minutes (from 90 to 60
minutes per week) in the sub-standards. ln the case of Ovamboland and
the Okavango territory, where great interest is displayed in the traditional
crafts and where local inhabitants make articles for which there is a
ready market in the rest of the Territory, it was decided to allot 60 minutes
per week more to practical subjects than in schools in the Police Zone
(making a total of zrn minutes per week); however, as a result of various
difficulties there is, in practice, little or no difference in the time actually
spent on practical subjects in the various regions 3•
40. At the present tirne there is little difference in the time allotted to
practical subjects in European and Native primary schools in the Terri
tory. As will be indicated in more detail below 4,the actual position isthat
Native pupils spend more time than European pupils on practical sub
jects in Standards I and Il, whereas the converse position applies in the
other Standards. In all cases, however, the differences intime are small.
4
In this regard it will be shown below that Applicants' charges in the
Reply 5 regarding practical subjects in European and Native schools are
completely unfounded, being based on a wrong interpretation given by
them to particulars contained in the Counter-Memorial.
II. ATTITUDE OF THE PERMANENT MANDATES COMMISSION
41. The Permanent Mandates Commission often stressed the value of
instruction in practical subjects as a means of uplifting the indigenous
populations in mandated territories. In I924, at its Fourth Session, it
expressed the view that-
"... by making character-training and discipline, the teaching of
agriculture, animal husbandry, arts and crafts, and elementary
1Lipsky, G. A., Ethiopia: lis People, Its Society, Its Culture (1962), pp. 97-98.
2 Vide III, p. 448.
3Departmental information.
• Vide para.46, infra.
5 IV, p. 386. REJOINDER OF SOUTH AFRICA
!09
hygiene, the keynote of educational policy, the gradual civilisation
of the native populations as well as the economic development of the
countries will be furthered in the best possible manner 1''.
And on several occasions thereafter the Commission reminded Re
spondent that, in its view, Native education in South West Africa was
not sufficiently practical. In 1938, according to the Minutes of the Com
mission, Mlle Dannevig stated that in her view the Native schools gave
"perhaps ... too literary an education", and that they had not "devel
2
oped a practical sicle, so far as she could see" • Mr. te Water, Respon
dent's representative, is reported to have agreed that-
"... the education in both the Government and mission schools was
much too clerical, and they had been, in his opinion, validly criticised
on that account 2".
The topic was again discussed in 1939. Mlle Dannevig is recorded as
having said that-
"[i]thad also been stated on a previous occasion that native education
was somewhat too theoretical, and that efforts would be made to
give it a more practical character 3."
In answer to her <J.Uestionwhether "anything had been done in that
respect", South Afnca's representative, Mr. Andrews, replied, according
to the Minutes, that-
"... the comments made at previous examinations had not been
lost sight of, and had been passed on to the proper quarter.
There was general agreement on the point that a practical rather
than a purely literary bias should be imparted into native edu
cation 3."
III. REPORTS AND SPEECHES REFERRED TO BY APPLICANTS
42. The brief passage quoted by Applicants from the report of the
Interdepartmental Committee on Native Education (1935-1936) -a4
5
passage extracted from two paragraphs in the report -creates the
impression that the Committee expressed the view that the nature, or
content, of education given to Natives in South Africa was such that it
"prepared" them "for a subordinate society". This is not correct. The
point the Committee sought to make was that-
"... the two social orders for which education is preparing White
and Black are not identical and will for a long time to corne remain
6
essentially different ",
1
P.Jl,f.C., Min., IV, p. 184. This view, describcd as a "general resolution on
education policy" was again referred to byMme "\Vicksell in 1927: vide P.M.C., Min.,
XII, p. 181. At the 26th Session Mlle Dannevig stated, according to the Minutes,
that the Natives of the Territory should not receive "a literary education, but
practical instructionin agriculture,hygiene and cognate subjects suitcd to the needs
of the present development of the different tribes, which would make them better
and more useful subjects of the community" (P.1v!.C., Min., XXVI, p. 59).
2 P.M.C., Min., XXXIV, p. 91.
3 P.M.C., Min., XXXVI, p. 38.
• U.G. 29-1936.
5
6 Ibid.,pp. 87-88 (paras. 458 and 459).
Ibid., p. 87 (para. 457).IIO SOUTH WEST AFRICA
and that those who regulated education should take account of circum
stances as they existed. In tlùs regard it said, inter alia:
"The general standpoint that the Committee takes is that a
nation's educational system is the reflex of her history, her social
forces and the political and economic situations that make up her
existence. The same applies to the system of Native education, which
is the product of many factors not easily changed ovemight. It does
not, thercfore, help much to envisage Native education as operating
in vacuo and striving after transcendental ideals ... 1"
In dealing with the content and mcthods of instruction in Native
schools, the Committee, which did not fonnulate any syllabuses for use
in schools, adverted, inter alia, to the fact that the "school life of most
Native children [was) very short, hardly three years" 2, and stated that
it was therefore of fondamental importance that "education must bemade
worth-while for the children as far as it goes" 3• It pointed out that:
"[t]oo often children are taught content material merely as a
preparation for a more advanced stage of education which only one
or two percent. will in actual fact ever rcach. Experience shows that
this one or two percent. are usually selected pupils above average
ability who could easily make up afterwards these small deficicncies
in their fund of knowledge when they get to the advanced stages
where such knowledge may be required 2",
and exprcssed the view that "work should be so organized that the
interests of the majority are considered first" 4, but that "[a]t the same
time there should be facilities by which future leaders of the Native
people can be trained" 5•
In regard to the place to be awarded to "manual work and crans in the
primary school" 6, the Committee stated that the "wisdom of introducing
manual training in the elementarr school has been recognised by the
leading educational philosophers" 6, and that "some types of manual
work" 7 had been introduced into most Native schools. Its introduction
had, on the whole, not been an "unqualified success" 7, and Native
opinion was that it did not have either the educational or economic value
which had originally been hoped for 7• The Commission stressed the
8
educational value of such subjects if propcrly taught , and pointed out
that-
"... the object of manual and handicraft work for children at the
elemcntary stage is 1iotdirect trainitig for occupati01iin the industrial
field-though it is quite conceivable that such elementary training
may predispose boys or girls having talent in makin'i things with
thetr hands, to take up work in this direction later on ".
1 U.G. 29-1936, p. 89 (para. 463).
2 lbid., p.93 (para. 480).
3 Ibid. Vide also p. rn6 (para. 532): " ... lke Native school must be so planned as
to malle il wo,-th-wkif°" the ckildren as far as tkey go."
• Ibid.,p. 93.
5 Ibid. (para. 481).
6 Ibid., p.92 (para. 474).
7 Ibid. (para. 475).
• lbid., p.93 (paras. 478-479).
' Ibid.,p. 92 (para. 477). REJOINDER OF SOUTH AFRICA III
The Committee's approach to the question of providing education for
Native pupils, both for the majority who left school during the first few
years and for the minority who did not, was, in Respondent's submission,
a reasonable and realistic one. Nothing said in its report canin any way
justify Applicants' sarcastic remark to the effect that a "limitation on
the education of 'Natives'" is "intended to encourage them to undertake
occupations in the service of their own 'communities', or to obtain the
training necessary for a continuing position as labourer in the 'White'
industrial world" •
43. In support of their allegation that Native education is "materialis
tic and utilitarian", Applicants also cite the following passage from a
paragraph in the report of the Eiselen Commission:
" ... it is essential to consider the language of the pupils, their home
conditions, their social and mental environment, their cultural
traits and their future position and work in South Africa 2". (ltalics
added by Applicants.)
It is, presumably, the italicized words which are regarded as sinister by
Applicants. No objection can be taken thereto, in Respondent's sub
mission, and it is not appreciated why an educational policy should be
criticized for having regard to the "future position and work" of those
who attend school, especially in the case of a comparatively under
developed community which it is sought to develop, inter alia, through
the agency of the schools. The Eiselen Commission advocated a system
of education which would, apart from its value to the individual, play
an important part in the general development of the Bantu people of
South Africa. It stated in this regard:
". . . Bantu development and Bantu education must be largely
synonymous terms. Education is more than a matter of schooling;
indeed, in the education of a society to make a trcmendous cultural
leap such as the South African Bantu are callcd upon to make, the
schooling of children, though of the utmost importance, must be
regardcd as only a part of a larger process. School education, if it
is to be co-ordinated and in harmony with social development,
must be seen as one of the man y educational agencies and processes
3
which will lead the Bantu to better and fuller living ";
and it proposed the following definition of the aims of Bantu education:
" (a) From the viewpoint of the whole society the aim of Bantu
education is the development of a modern progressive culture,
with social institutions which will be in harmony with one
another and with the evolving conditions of life to be met in
South Africa, and with the schools which must serve as
effective agents in this process of development.
(b) From the viewpoint of the individual the aims of Bantu
education are the development of character and intellect, and
the equipping of the child for his future work and sur
roundings \"
1
2 IV, p. 383.
3 Ibid., The referencis to U.G. 53-1951, p. 130 (para. 765).
U.G. 53-1951, p. 130 (para. 764).
• Ibid. (para. 765).II2 SOUTH WEST AFRICA
This proposed definition is followed by the following paragraph, part
of which is the passage quoted by Applicants:
"To harmonize the individual and social viewpoints as stated
above it is essential to consider the language of the pupils, their
home conditions, their social and mental environment, their cultural
1
traits and their future position and work in South Africa ."
It is clear, in Respondent's submission, that Applicants' reference to
the Report of the Eiselen Commission in no way supports the charge they
attempt to establish.
44. Applicants' reference to Dr. Verwoerd's 1954 speech in the South
African Senate 2 is incomplete and misleading. From all that Dr. Ver
woerd said on that occasion in regard to the "internai reformation of
Native education into Bantu education" 3, Applicants quote only one
sentence, viz., "[t]he school educationmust also equip him [i.e.,the Bantu
pupil] to meet the demands which the economic life in South Africa will
make on him". They thereby create the false impression that this sen
tence contains a statement of, if not the only, then certainly the chief,
aim of Bantu education. Dr. Verwoerd stated that, to carry out this
"reformation", various requirements 3 would have to be met. One of
these-and it is part of what he said in this regard that is quoted by
Applicants-he described as follows:
"Secondly, ( a) The Bantu pupil must get knowledge, training and
an attitude in school which will be useful and advantageous to him
and at the same time benefü his community. (b) The subject-matter
must be putto him in such a way that he can understand it easily
and make it his own so that he can benefi.t and serve his community
in a natural way. (c) The school education must also equip him to
meet the demands which the economic life in South Africa will
make on him 4."
Whilst Dr. Verwoerd no doubt stressed the economic aspect, neither the
passage quoted, nor the speech from which it is taken, affords justifi
cation for the suggestion that he thought that the aims of Bantu educa
tion should be purely economic or utilitarian. The stress which Dr. Ver
woerd laid on the economic aspect was, in Respondent's submission, en
tirely justified, particularly when regard is had to the plan for Bantu5com
munîty development, to which reference has already been made , and to
the fact that so many Native pupils leave school after only a few years'
schooling. As has been indicated before 6, Dr. Verwoerd made special
reference to the large number of Native pupils who leave school before
completing even the lower primary course, and who therefore have to be
taught some Afrikaans and English during their first years at school so
as to assist them in finding employment. This does not mean, however,
that he thought that ail school education should be of a practical nature,
or be directed to preparing pupils for their future occupations. In an
1 U.G. 53-1951, p. 130 (para. 765).
2 IV, p. 383; and vide Chap. II, paras. 5, 7-n,supra.
3 U. of S.A., Parl. Deb., Senate, Vol. II (1954), Col. 2606; vide Cha p. II, para.
10, sup,-a.
• Ibid. Vide also Chap. II, para.10,supra.
5 Vide Chap. II, paras. 5et seq.supra.
6 Ibid., para. 7supra. REJOINDER OF SOUTH AFRICA II3
earlier speech in Parliament on Bantu education Dr. Verwoerd stated
that there would be "a healthy differentiation in forms of education" 1,
and that provision would be made not only for those who would become
industrial or agricultural workers, but also for those who sought to enter
2
the higher professions •
Applicants also quote the following words, used by Dr. Verwoerd in
1953; "What is the use of teaching a Bantu chi1d mathematics, when it
cannot use it in practice? That is quite absurd 3." These words form part
of the speech which Dr. Verwoerd made in Parliament in introducing the
Bantu Education Bill in the House of Assembly 4, and in which he
inclicated, inter alia, why there were, in practice, certain differences in
the content ofeducation as given to European and Bantu children. He said:
"Then I still want to add that it is sometimes said that there is no
clifference between European and Native education. Of course there
are certain fundamental educational principles which are common
to all types of education, but forgetting for a moment those prin
ciples, when you corne to practical teaching, there are definitely
differences with which one has to reckon. What is the use of sub
jecting a Native child to a curriculum which in the first instance is
traditionally European, in which one learns of the Kings of England
and how much wheat Canada has exported and through which our
children are taught these general facts as a means of building up a
fount of knowledge? What is the use of teaching the Bantu child
mathematics when it cannot use it in practice? That is quite absurd.
ln other words, your teaching should begin where all education
should begin, namely with the known facts or common knowledge.
The common knowledge of the white child is different from that of
the Bantu child. Everybody who bas had anything to do with
intelligence tests knows that when you try to apply an intelligence
test based on the common knowledge of children of a certain com
munity, the test can be a complete failure and give entirely wrong
results in respect of children not falling within the same group of
common knowledge ... The same applies to education. It is therefore
also correct to say that Bantu education must of necessity be
different, because it has as its starting point other sources and other
kinds of knowledge 5."
As appears from the quotation above, Dr. Verwoerd said, in effect,
that there were two reasons why Bantu education must, in practice, be
different from European education. The first reason involved the educa
tional principle that, in the process of early education, a child should be
led from what is known and familiar toit to what is unknown 6, and he
stated in this regard that what was known and familiar to Bantu and
European children was not the same. The second reason, which must be
viewed against the background of the role envisaged for education in a
1
U. of S.A., Pari. Deb., House of A.ssembly, Vol. 83 (r953), Col. 358r; and vide
Chap. II,para. r7,supra,
2 Ibid., Col. 3580, and vide Chap. Il, para. r7, supra.
3 IV, p. 383, quoting from U. of S.A., Part. Deb., House of Assembly, Vol. 83
(1953), Col. 3585.
i Vide Chap. II,para. 4, rnpra.
' U. of S.A., Parl. Dtb., House of A.ssembly, Vol. 83 (r953), Cols. 3584-3585.
6 Vide also U.G. 53-1951, p. r31 (para. 773), and Chap. II, para. 15, mpra. SOUTH WEST AFRICA
comprehensive plan for the social, economic and political development
of the comparatively under-developed Bantu communities of South
1
Africa , was that those Bantu communities had certain specific needs,
and that certain types of knowledge, commonly sought in European
communities, might be quite inappropriate to meet those needs, or to
contribute to the kind of development which was most urgently required 2•
Although Dr. Verwoerd referred to mathematics by name, he did not
thereby intend to say that mathematics was, in fact, a subject which
could not usefully be studied in Bantu schools, or which would not be
taught in such schools. He referred toit merely as an cxample of a type
of knowledge which might be useless, i.e., "if [the child] cannot use it
in practice". That this is so, is supported by the position which mathe
matics occupied in 1953, when Dr. Verwoerd spoke, and the position
which it occupies today. In 1953 mathematics was not, as it still is not,
taught in any primary schools, European or Bantu, in South Africa. At
that time it was offered as a subject in Bantu secondary and high schools,
and the position is still the same today.
45. With reference to Dr. Verwoerd's statement which has been dealt
with immediately above, Applicants say:
"This philosophy was implemented so thoroughly that the
Transkei Commission, ten years later, found, inter alia:
'... much evidence of dissatisfaction with the svllabuses in the
primary schools on the grounds that too much time was devoted
to the practical subjects and religious instruction. It was asserted
that an over-emphasis had been made on fitting the child at too
early an age for his post-school life, to such an extent that insutfi
cient time was being allocated to the basic skills in the languages and
arithmetic' 3." (Italics added by Applicants.)
Respondent rejects the allegation that any "philosophy" expressed by
Dr. Verwoerd can rightly be related ta the findings of the Transkei Com
mission•. \Vithout going into detail, Respondent points out that Dr.
Verwoerd at no stage indicated that English, Afrikaans or arithmetic had
lost any of thcir value for the Bantu or that less time would in future be
devoted thereto in Bantu schools. He stated in his aforementioned 1954
speech in the Serrate that English, Afrikaans and arithmetic would be
5
taught even in the lower primary classes , and that Afrikaans--one of the
languages about which witnesses before the Transkei Commission had
expressed their concern~had never been studied in the Bantu schools of
the Transkei, but that it would be introduced as a subject in those
1 Vide Chap. II, paras. 5 et seq.,rnpra.
2 Dr. Verwoerd, in dealing with the same matter in his 1954 speech in the Senate,
said:
"The curriculum ... envisages a system of education which starting with
the circumstances of the community aims at meeting the requirements of the
community ... " Vide U. of S.A.,Parl. Deb., Senate, Vol. II (I954), Col. 26n,
and Chap. II, para. II (c), supra.
3 IV, p. 383.
+ \Vhilst Respondent can appreciate how an alleged over-emphasis on practical
subjects can be attributed by Applicants to an alleged utilitarian philosophy, it
cannot understand how an alleged over-emphasis on religious instruction can be
ascribed to the same philosophy.
5 U. of S.A., Parl. Deb., Senate (1954), Vol. II, Col. 2609; vide also Chap. Il,
para. II (b), sup~a. REJOINDER OF SOUTH AFRICA n5
schools 1• On another occasion, as has been shown , Dr. Verwoerd
stressed that education would be made suitable for varions classes of men
of the future, i.e., not only·industrial and agricultural workers, but also
professional men. .
Respondent points out, furthermore, that syllabuses used in the Bantu
primary schools of South Africa are revised from time to time by the
General Planning Division of the Department of Bantu Education in
order, inter alia, to ensure that a proper balance be maintained between
the various subjects prescribed. The last revision in the case of lower
primary and higher primary syllabuses took place in 1963, when certain
changes were made, inter alia, in regard to practical subjects.
A comparison between the recommendations made by the Transkei
Commission conceming certain subjects and the prescriptions of the
aforesaid 1963syllabuses reveals the following:
In regard toStandards I and II
(a) The Commission recommended that the number of practical
subjects in Standards I and II be reduced from three to two, and
that a total of 150 minutes per week be devoted to those two
subjects 3.The 1963 lower primary syllabus prescribes two practical
subjects, and the time allocated thereto is 120 minutes per week \
(b) The Commission recommended that 240 minutes be allocated in
each week to each of the languages (English, Afrikaans and Xhosa)
3
and arithmetic • The 1963 syllabus allocates 270 minutes to each
of the official languages, 2IO minutes to Xhosa, and 210 minutes
to arithmetfc \
In regard to higher primary standards
(a) The Commission recommended that the number of practical
subjects be reduced from three to two, and that a total of 240
minutes per week be devoted to those two subjects 5•The 1963
higher primary syllabus prescribes two practical subjects, and
allocates a total of 240 minutes per week thereto 4•
(b) The Commission recommended that 270 minutes per week be
allocated to each of the official languages, and 240 minutes to
arithmetic 6•The 1963 syllabus allocates 240 minutes per week to
6
each of the officiallanguages, and 205 minutes to arithmetic .
IV. PRIMARY ScHOOL CouRsEs
46. Respondent now tums to Applicants' allegations in regard to the
lower primary and higher primary syllabuses in the Native schools of
South West Africa-i.e., to Applicants' effort to show that Dr. Ver
woerd's alleged "materialistic and utilitarian" philosophy 7 has been so
implemented in the Territory that Native children take more practical
1 U. ofS.A., Parl. Deb., Senate (r954), Vol. Il,Col. 26n. Vide also R.P. 22-
1963, p. 6 (secC, para. r (c)) where it confirmed that Afrikaans was not studied in
Transkei schools before 1955.
2 Vide Chap. Il, para. 17,sup,,a.
3 R.P. No. 22/1963, p. 14 {para. 8 {b)).
4 Departmental information.
5 R.P. No. 22/1963, p. 15 (paras.8 (d) and 8 (e) (ii)).
6 Ibid., (para. 8 (d)).
7 Vide IV, p. 383.II6 SOUTH WEST AFRICA
subjects than European children, and that the result thereof is that
European children spend more time on other subjects while Native
children "are kept busy with their manual subjects" 1•
Applicants' allegation in regard to lower primary school syllabuses is
that European children take only one practical subject, whereas Native
children take six 1• ln regard to the higher primary courses they allege
1
that "the same pattern is present" •
Applicants' allegations, as has been stated above 2, are unfounded,
being based on a wrong interpretation of particulars given by Respondent
in the Counter-Memorial. In the case of European education it was stated
in the Counter-Memorial that "girls and boys are offered different hand
3
work subjects" , but no indication was given of what the term "hand
work" included. In a list given of subjects comprising the primary course,
the term "handwork" was used 3, without an indication of what it com
prised. "Handwork" is, briefly put, a term which comprises various
practical subjects which can vary from one school to another, depending
on local circumstances. In the chapter on Native education in the
Counter-Memorial, which contains far more detail than the chapter on
European education, various practical subjects are listed in connection
with both lower primary and higher primary courses 4, but this does not
mean that they are ail part of the curriculum at every lower or higher
primary school. As in the case of European education, practical subjects
are not the same in ail schools, or in all parts of the Territory. The
position will, therefore, be clear if one substitutes, as in the European
school syllabuses, the term "handwork" for "cleaning work, weaving and
claywork, needlework (girls), scrap work (boys), gardening" in the list
of lower primary subjects, and for "gardening, tree planting and soil
conservation (boys), wood, leather and scrap work (boys), needlework
(girls), handicrafts" in the list of higher primary subjects 5•
Since the introduction of new primary school syllabuses in r96r-r962
the position in the lower primary schools is the following: In the sub
Standards European children spend more time on practical subjects than
Native children, viz., 12.5 per cent. of the time in each school week as
against 7.5 percent. in the case of Native children in Sub-A, and 6.66 per
cent. in Sub-B. In Standards I and II, Native children spend more time
on practical subjects, viz., I2 percent. of the school week as against 9.33
per cent. in the case of European children. ln the higher primary stan
dards more time is allotted to practical subjects in European schools than
in·Native schools, viz., rr.66 percent. of the time in each school week as
against 10 per cent. 6
1 IV,p. 384.
2 Vide para. 40, sup,a.
3 III,p. 501.
4 Ibid., p.449.
' Drawing, mentioned in the list of subjects of Native lower primary schools
(III, p. 449) is taken also in European schools, but is not separately listed in the
Counter-Memorial. It is taken in combination with bandwork.
6 Departmental information. This is the position relating to higher primary
courses in the Police Zone. In Ovamboland and the Okavango the syllabuses
formally provide for more time for practical subjects than is the case in European
schools, but, as has been said (vide para. 39,supra), there is in practice little or no
difference in the time spent on practical subjects in the Native schools of the Police
Zone and the northern territories. · REJOINDER_OF SOUTH AFRICA II]
V. SECONDARY ScHOOL AND ÜTHER COURSES
47. Applicants point to the fact, which clearly emerges from particu
lars furnished by Respondent in its Counter-Memorial, that syllabuses in
Native secondary schools offer fewer options to Native pupils than do
syllabuses in European schools to European pupils. In this regard Res
pondent stated in its Counter-Memorial that secondary education for
Natives was of fairly recent origin in the Territory, and that small
numbers hampered subject differentiation 1.
Applicants say in this connection that the Committee on South West
Africa, in its 1960 report,
"... regret[ted] that the courses contemplated for 'Natives' [by the
Administration, after the report of the Commission of Enquiry into
Non-European Education had been considered in 1959] are based on
syllabuses different from those offered for other sections of the
population rather than on a system of education which would
prepare them to participate more fully and on an equal basis in the
2
political, economic and social life of the Territory ."
Assuming that the Committee intended to refer not only to syllabuses in
primary schools, but also to the matter here in issue, viz., courses, and
options, offered in secondary schools (which is not clear), the Committee's
approach was quite obviously that there should be no separation in the
education of Native and European children, but that there should be
integration in the educational, political, economic and social spheres.
This is a matter with which Respondent bas already dealt, and it is not
intended to repeat what has already been said. Suffice it to say that the
Committee's suggestion is unrealistic and that it will, if any attempt is
made to implement it, create a situation which will be to the detriment of
all education in the Territory 3•
In regard to courses offered in secondary schools in the Territory,
Applicants say, in a footnote 4,that Native students who may not wish to
take agriculture as a subject are nevertheless obliged to do so at the
Augustineum and at Onguedira, although the position is different at
Doebra. This is true. As Respondent has indicated, lack of numbers has
thus far restricted subject differentiation. lt is incorrect to suggest, how
ever, as Applicants do, that the first-mentioned schools should be re
garded as agricultural schools of the kind Gammams and Stampriet had
been 4, for the latter had been agricultural schools in which "cultural
subjects" had played a minor, and supplementary, role.
48. In regard to secondary school courses it is pointed out that the
Odendaal Commission has recommended that provision be made for
three Junior Certifi.cate courses, viz., a general course, a commercial and
clerical course, and a technical course 5•
1III, pp. 437 and 450. Respondent also pointed out that subject differentiation
in European schools was of recent origin (ibid.,p. 5or). ltshould, furthermore, not
be thought that ail European secondary schools offer the several types of courses
reierred to (ibid.),numbers being there also a limiting factor.
1 IV, p. 385.
3 Vide Ill,p. 382.
4 IV, p. 385, footnote 2.
5 R.P. No. r2/r964, p. 257 (paras. ro64 (c), (d) and (e)). In South Africa, it may
be pointed out, there are three Junior Certificate courses of the same name for
Bantu students.n8 SOUTH WEST AFRICA
The Commission mentioned the following as subjects which could be
included in the varions courses:
General course:
"... the mother tongue, Afrikaans, English, social studies, general
arithmetic, religious instruction, physical training, singing and mu
sic, and subjects chosen from: a science, agriculture, mathematics,
woodwork, arts and crafts, homecrafts, etc. 1".
Commercial and clerical course:
"... basically the same as the General Junior Certificate Course,
but with subjects chosen from the following: bookkeeping, commerce,
typewriting, shorthand, commercial arithmetic and a science 2".
Technical course :
"... basically the same as the General Junior Certificate Course, but
with subjects chosen from the following: building construction,
joinery, carpentry and cabinet-making, drawing and design, tailor
mg, wickerwork, ]eathenrnrk, mechanics, etc. 3".
Consideration is at present being given to the introduction, at the
earliest possible moment, of a Junior Certificate technical course as re
commended by the Commission.
49. In regard to industrial and vocational courses Applicants point
out, by reference to information which Respondent supplied in its
Counter-Memorial, that there are fewer such courses available to Native
pupils than to European pupils •, Respondent has pointed out in this
regard that not much interest is shown inthose courses which are available
to Natives 5•
Applicants also refer, in connection with the aforementioned courses, to
loans and bursaries which the Administration makes available for study
in South Africa 4.They point out that there arc six bursaries open to alt
students in the Territory 6;they also say-correctly-that one bursary
has since January 1964 been made available "to a deserving Native
student" 7, but they add that a Native student's chances of winning a
7
bursary are "practically limited to the one bursary" , and refer to a pas
sage in the Counter-Illemorial where Respondent stated that "thus far no
Native student has in any way merited . .. [one of the six bursaries open to
all students]" 7•It is not clear precisely what Applicants' complaint is, for
they do not dispute that the merit bursaries-the number has since been
8
increased to ten -are open to ail students in the Territory, or that one
bursary has been established specially for Native students. Respondent
points out, as has already been stated in the Counter-Memorial 9, that
secondary education for Natives in the Territorv is of fairly recent origin,
and that few Native students have thus far ·been candidates for the
Matriculation examination. Jt was in the light of these circumstances
that it was decided to establish a btirsary specially for Natives as from
1
2 R.P. No. 12/1964, p. 257 (para. 1o64 (c)).
Ibid. (para. 1064 (d)).
4 Ibid. (para. 1064 (e)).
IV, pp. 385 and 386.
5 Ill, pp. 466 and 467.
6 IV, p.385, and vide III, p.477.
7 IV, p. 385.
8 Departmental information.
9 lll,pp. 449-451. REJOINDER OF SOUTH AFRICA ng
1964, and it has since been decided to institute a second such bursary as
1
from 1965 for the same purpose ,viz., to encourage Native students,
who have thus far not succeeded in winning any of the merit bursaries
open to all students.
Respondent points out that the Odendaal Commission, while notinf
that the demand for vocational training "has not been encouraging" ,
has nevertheless, in view of the general development programme which it
proposes for the Native groups of the Territory, recommended that
facilities be established for training in agriculture and animal husbandry,
and also for various tvpes of technical training. Its recommendations
provide that- •
"[t]echnical training be continued at the Augustineum, notwith
standing the small numbers at present making use of such training,
and also that provision be made for commercial subjects and, pos
sibly, training in mechanics 3."
"Training in agriculture and animal husbandry be provided in
collaboration with the Government departments concerned for ( a)
the Herero-Damara complex and (b) the Ovambo-Okavango com
plex 4."
"A technical training centre be established in Ovamboland (possi
bly on the same site as the Government training school) for fonnal
technical training after Std. VI, initially concentrating on training
in brick-laying, woodwork, tailoring, wickerwork, leatherwork, com
mercial subjects, mechanics, etc., with further provision for training
as social workers, assistant stock and health inspectors and other
courses for which the practical necessity may arise during the new
phase of development 5."
"ln addition to formal technical training, short directed courses
be arranged, particularly for adult employees, to increase their effi
ciency in the practical performance of their duties, for instance
courses in mana~ement and administration, commercial. practice,
mechanics, buildmg, simple engineering, such as the construction
and maintenance of ordinary roads, dams, etc. 6 "
50. In regard to the extension of educational facilities as proposed by
the Odendaal Commission, Respondent draws attention to 1ts decisions
on the Commission's proposais. With respect to the nature of educational
services, itwas decided in general-
"... to give effect to the Commission's recommendations concerning
the extension and improvement of the nature of the educational
services, whereby wider and better educational opportunities will
be created, particularly for the non-White population groups 7",
and to leave decisions concerning details to the educational authorities.
In regard to the development of educational services generally Respon
dent's decision is that-
l Departmental information.
2 R.P. No. 12/1964, p. 259 {para. 1079).
' Ibid. (para.1080).
t Ibid. (para. 1081).
' Ibid. (para.1082).
6 Ibid. (para.1083).
1 Vide IV,p. 208.120 SOUTH WEST AFRICA
"... provision will be made for more advanced and greater numbers
of schools, hostel facilities and facilities for the training of teachers.
This applies mainly to the areas of the non-White groups, where
the Commission estimates that expenditure on schools, hostels and
training centres will amount to R3,500,ooo during the first five
1
years ."
51. In conclusion: Respondent rejects Applicants' allegation that the
present difference in facilities available to European and Native students
2
in the Territory is due to any "larger policy''as described by Applicants •
Respondent has shown in the Counter-Memorial 3 that various factors
have contributed to retard the development of Native education in the
Territory, and it is denied that courses and bursaries at present available
are the "result of Respondent's larger policy conceming the position of
the 'Native' in the 'European' economic world, or, in the alternative, the
level of sk.ill required or desirable in the development of the 'Natives'
own 'communities' 2". The views expressed by Dr. Verwoerd in the pas
sage quoted by Applicants from his 1953 speech in the House of Assem
bly 2 are to the same effect as some of the views expressed in his 1954
speech in the Senate 4, and have already been deait·with. As has been
shown, Dr. Venvoerd stated that whilst the Bantu could not expect to be
absorbed in the European community above certain levels, all doors
were open to him in his community \ the development of which was one
of the aims of Respondent's policy 5•In Respondent's submission there is
no basis for Applicants' suggestion that there is a limit to the Ievel of skill
"requircd or desirable in the development of the 'Natives' own 'com
munities' ".
1 Vide IV, p. 208.
3 Ibid., p. 386.
III,pp. 407 ff.
• Vide Chap. II, para. 8.
' Ibid., para. 5. CHAPTER IV
THE EXTENTOF EDUCATIONIN THE TERRITORY
A. General
I. In section (C) of Chapter IV B.3.c.l of the Reply Applicants deal
with the "Extent of Education in the Territory". In the introductory
passage of the said section Applicants say that-
"... the extent of education in the Territory is a violation by Res
pondent of its obligation to promote ta the utmostthe well-being and
progress of the inhabitants 1".
This charge is then particularized as follows:
"Respondent has failed in this dynamic obligation in at least
three respects: (1)it bas adopted a policy of 'laisser-faire', relying on
the 'Native' population to take the initiative with respect to educa
tional advancement; (2) it has failed to attempt to introduce com
pulsory cducation; and (3) it has spent, and continues to spend,
disproportionately small amounts of mone2 on 'Native' education
as compared to 'European' education ."
Respondent deals with these allegations in the same order and under
the same headings as Applicants, viz.,
Laisser-/aire;
Compulsory education;
Disparity in expenditure.
B. Laisser-Faire
2. Under this heading Applicants deal with what they term-
"... the implications and consequences of Respondent's policy of
(a) ostensible compliance with the 'feelings' or 'wishes'·of the
'groups' concemed, coupled with (b) reliance upon the initiative of
such 'groups' in determining the extent of education in the Terri
tory 2".
Before commencing their discussion of the above matters, Applicants
quote certain remarks made by a member of the Permanent Mandates
Commission, M. Rappard, in 1930, conceming education in South West
Africa 2•These remarks were made in connection with one aspect of
Native education, viz., the establishment of schools in the Native re
serves of the Police Zone, which presented serious practical difficulties in
the early years of the Mandate. As will be indicated below, the Chair
man of the Commission seems to have held the view that M. Rappard's
views were not justified.
3. In its report to the Council of the League for the year 1929 Respon
dent referred to the difficultics of establishing schools in the reserves in the
following terms:
1 IV, pp. 386-387.
2 Ibid., p.387.I22 SOUTH WEST AFRICA
"The difficulties in this connection may be summed up in the
foJlowing points: (1) Many of the inhabitants of the reserves lead a
nomadic life; (2) there is a good deal of opposition to education and
schools; (3) schools for natives stand under the local control of
missionaries and the mission societies do not see their way clear to
erect buildings on ground which does not belong to them. The Ad
ministration, on the other hand, is not prepared to cede the neces
sary ground in reserves to mission societies, ail the more because it
would have to grant the same facilities to all the different mission
societies once they have adopted the principle 1."
The report mentioned that the following arrangement had been made
for establishing schools:
"After detailed discussions and negotiations the Administration
ultimately came to the following decision: If there is a desire for
education in a reserve the parents have in the first instance to apply
to the Local Council. If the Council approves of the application they
may recommend it to the Administration and indicate at which
centre the school is to be built and how large it should be. If the
Administration agrees the building may be built out of the funds of
the reserve 2."
"If a school building has been erected in the manner indicated
above the parents are at liberty, with the approval of the Adminis
tration, to invite a Mission Society to take charge of the school until
such time as the Administration is prepared to establish Govern
ment schools for natives 3."
After M. Rappard had expressed his vit!ws as recorded in the passage
quoted in the Reply \andin answer ta questions put by M. Rappard and
other members of the Commission, Respondent's representatives, Messrs.
te Water and Courtney Clarke, supplied the Commission with information
regarding difficulties encountered in developing education in the Terri
tory generally, and in the reserves in particular. Thereupon M. Rappard
is reported to have-
" .•. repeated that the entire object of his remarks was to help the
Administration in its extremely difficult task. He hoped that it
would be able to assist the Missions still further and that the
frn,ooo granted for education would be appreciably increased 5."
According to the Minutes the Chairman of the Commission then
pointed out that-
"... the natives in South West Africa were for the most part in a
very low state of civilisation. That being so, he did not think it wise
for the Commission to show too great impatience or.to be too exacting
in so far as the education of natives in the reserves was concerned.
Such education inevitably took a long time, and was at the moment
in the hands of the Missions 6."
The Chairman also indicated that he appreciated that existing conditions
1 U.G. 23-1930, p. 51 (para. 328).
2Ibid.,p. 51 (para. 329).
3Ibid., p.51 (para. 330).
• IV, p. 387.
' P.M.C., Min., XVIII, p. 137. Mr. Courtney Clarke is reported to have replied
" ... that it would no doubt be increased as the country developed and as the
financial position warranted" (ibid.).
6Ibid., p.138. REJOINDER OF SOUTH AFRICA 123
ruled out rapid progress, particularly in the reserves. He is reported to
have stated that-
"[h ]equite understood MlleDannevig's desire for schools in the towns.
That was certainly a recommendation which the Commission could
make. He did not think, however, that it should be too insistent in
regard to education as a whole, for the mandatory Power must be
permitted to organise this branch of its activity calmly and surely.
The suggestion of M. Rappard that a larger subsidy should begranted
to the Missions might, no doubt, be considered; but it was too
much to ask the Administration to undertake, under existing con
ditions, the direct education of natives in the reserves. The explan
ations of the accredited representative seemed to the Chairman
to be very just and he did not wish i\Ir. te Water and Mr. Courtney
Clarke to go away with the impression that the Commission was
asking for the impossible 1."
4. Respondent's re.Port for the next year (1930) contained a review of
education in the Terntory. In the report it was stressed, i'nteralia, that-
"[t]he educationist who wishes to achieve success must first gain
the confidence of the natives. After the bitter wars of comparatively
speaking recent years between 2uropean and native in this country
this is not an easy matter ... ."
The report also contained a memorandum by Dr. Vedder 3 in which
he dealt, inter alia, with the establishment of schools in the reserves. In
regard to the procedure of establishing such schools, he stated:
"Now the usual arrangement is that the Mission has to erect the
school building. Govemment is, however, not in the position to cede
building sites in the reserves to a Mission, as this would be contrary
to the Reserve Act. The Mission, on the other hand, cannot erect
any building on rented ground. Nevertheless a way out of the diffi
culty has been found along the following lines:
(1) The Council of the Reserve, which is composed of natives, may
apply to Government for permission to erect a school building with
money taken from the Reserve Fund, which building then solely
and wholly belongs to the inhabitants of the Reserve.
(2) The Council of the Reserve thereupon gets into touch with a
Mission Society in order to obtain the teaching staff from it and to
place itself under its special protection.
(3) The Administration then trcats such a school in exactly the
same way as it does any other Mission school 4."
Dr. Vedder also pointed out in this memorandwn that a number of
reserve schools had already been established in accordance with the said
arrangement and that others would shortly be opened, but that diffi
culties of various kinds remained 4•In this regard it was stated in the
memorandum:
"These difficulties have their origin not so much in the attitude of
the Administration or the Mission, but in the peculiar attitude of the
inhabitants of the reserves. The Hereros especially adopt a recalci-
1 P.M.C .• Min., XVIII, p. 138.
3 U.G. 21-1931, p.51 (para. 313). Vide also III,p.410.
4 U.G. 21-1931, pp. 59-62. Asto Dr. Vedder, vide III, p. 409.
U.G. 2r-1931, p. 60.124 SOUTH .WEST AFRICA
trant attitude in regard to this new branch of the school system. As
the possibility is afforded them to lead their lives in the Reserves in
the same manner as their forebears had done of yore, they think
more of their cattle than of their children. They, moreover, fear that
the schools in the Reserves will prevent them from employing
their children as cattle herds. Hence the task has arisen for the
Mission first of all to prepare the soil by their missionaries and
itinerant teachers and to impress on the parents the significance of
the school for their later lives 1."
The last sentence in the passage quoted above is important as showing
how, in the early years of the Mandate, development of education was
in fact initiated-i.e., by the Missions. In the annual report in regard to
which M.Rappard made his aforementioned remarks, Respondent stated,
inter alia, that before schools could be established in reserves, Native
parents had to show a desire for education and make application for a
school to their local councils. Respondent never intended to suggest,
however, that no measures were taken to arouse an interest in education
amon$ parent communities, or that nothing was done to persuade local
counc1lsto take steps to have schools established in their reserves. As is
apparent from the situation as described by Dr. Vedder, a request from a
reserve community or board for the establishment of a school was, of
necessity, preceded by agood deal ofexternat exhortation and persuasion.
5. The arrangement referred to in Respondent's aforesaid report 2 and
in Dr. Vedder's memorandum was made because of the practical diffi
cultics mentioned therein, and in order to avoid the possibility of dissatis
faction or subsequent lack of co-operation because of the use of land or
money belonging to reserve inhab1tants for a purpose of which they did
not approve.
ln Respondent's submission, thereforc, there was no justification for
M. Rappard's suggestion that the aforesaid arrangement pertainin~ to the
establishment of schools in reserves "appeared to throw the imtiative
... of obtaining education on to the native". There was, likewise, no
basis for bis suggestion that the arrangement appeared to throw "the
sole cost of obtaining education" on the Native. There is, also, no foun
dation for Applicants' treating M. Rappard's words as indicative of
Respondent's "attitude toward 'Native' education" 3•
Applicants say that M. Rappard's remarks "treat two aspects of Res
pondent'sattitude toward 'Native'education" 3•"ln the first place", they
say, "Respondent has professed extraordinary solicitude conccming the
attitudes of the 'Natives' toward education, and has shaped its policy in
deference to such attitudes" 3• The allegation is not substantiated in any
way, and Respondent says that it has no substance.
Applicants do not mention the second aspect of Respondent's policy
which the statement by M.Rappard isalleged to have "treated". Presum
3
ably it isRespondent's alleged "lack of initiative" •This lackof initiative,
Applicants say, reveals itself "with respect to methods of instruction,
compulsory education, wider s:yllabuses, mixed schools and intensified
education" 3• What the expression "mcthods of instruction" is intended
to signify, is not known; Applicants have nowhere dealt therewith. The
2 U.G. 21-1931, p. 60.
Vide para. 3, supra.
J IV,p. 387. REJOINDER OF SOUTH AFRICA 125
same applies to "intensified education" 1. Applicants are saying, therefore,
as Respondent understands them, that Respondent's allegcd failure to
provide "wider syllabuses" for Natives and to establish "mixed schools"
1sevidence of its "lack of initiative", i.e., its attitude of laisser-faire. The
allegation is a curions one. Elsewhere in their Reply Applicants ascribe
the alleged lack of "wider syllabuses" in the case of Natives to a conscious,
or deliberate, policy of restricting opportunities for Natives 2• Similarly,
allegations previously made in regard to the policy of separation (also in
education} cannot be reconciled with an allegation that such policy is the
result of laisser-faire 3•
6. Respondent deals next with Applicants' allegations regarding
alleged "implications and consequences of Respondent's policy of ...
ostensible compliance with the 'feelings' or 'wishes' of the 'groups'
4
concerned" •
Applicants' complaint in this connection seems to be that Respondent
has not removed, or not done enough to remove, certain "attitudes" of
the Native people in the Territory, including "attitudes" in regard to
mixed schooling. In support of their complaint, Applicants refer to infor
mation which was supplicd by Respondent in the Counter-Memorial
when dealing with one of several factors which have served to retard the
development of Native education in the Territory 5• Whilst referring to
such information, however, Applicants ascribe to Respondent allegations
which it did not make, thereby creating a false impression of the present
extent of attitudes unfavourable to education. They ascribe to Respon
dent a statement that "the 'Natives' feel little 'need' for schooling" 6.as if
Respondent stated that ail Natives (or Natives generally) still felt little
need for education. Respondent neither sai~ nor suggcsted any such
thing. Whilst Respondent stated that there were still many parents who
did not send their children to school, or else sent them to school for only
short periods 7, it also showed that good progress had been made in the
past, and that education was now being extended at an ever-increasing
rate 6• Applicants also make the untrue allegation that "[a]ccording to
Respondent, the situation remains unchanged today" 9, i.e., unchanged
from the earlier days of the .Mandate when Respondent reported to the
Permanent Mandates Commission on attitudes unfavourable to education
among the Native communities of the Territory 10•
Having made these misleading statements, Applicants proceed to say:
"That such attitudes should still exist to any significant degree, more
than forty years after the Mandate' s inception, isan accusation in itself 9."
And they add "... that Respondent should rely upon such attitudes
to justify passivity and negligence compounds the offence" 9• These
1 Compulsory education is dealt with in paras. 14-21, infra. •
z IV, pp. 383 and 386. Vide also p. 277, and 1, p. 159 (para. 186}.
3 Vide IV, pp. 362-370; also p. 373. where it is alleged that Respondent·s policy
of having separate schools for European, Coloured and Native children was "de
veloped only after the Second ,vorld \Var'.,
+ IV, pp. 388-389 and vide para. 2, supra.
' Vide IV, p. 388, footnotes I and 2,and III, pp. 407-410.
0IV, p. 388. (Italics added.}
7 III,pp. 393, 409 and 461.
8 Vide. e.g., III, pp. 394, 443-444 and 461.
9 IV, p. 388.
10 Vide III, pp. 408-409.126 SOUTH WEST AFRICA
allegations have no substance. Respondent does not propose to discuss
the extent, or "degree", of such negative attitudes as were mentioned
by it in the Counter-Memorial. It is unnecessary to do so. Respondent
points to the progress which has been made, and which is continually
being made. It appears from the progressively increasing percentage of
Native children who attend school 1 that attitudes involving opposition
to education are steadily being overcome.
Furthermore, for attitudes of the kind mentioned in the Counter
Memorial to remain in some strength among some inhabitants of the
Territory even at the present time, is quite understandable when regard is
had to conditions at the inception of the Mandate, and to the difficulty
of removing such attitudes in conditions commonly found in Africa.
That such attitudes are still common in Africa as a whole, appears clearly
from the Counter-Memorial 2•
7. Applicants also quote a passage from Respondent's Counter
Memorial 3 dealing with expenditure on education. Its relevance to the
matter in issue is obscure. The passage referred to "various factors and
conditions which inhibited the introduction and development" of Native
education \ and not merely to "attitudes". For this reason alone it can
not validly be advanced as an illustration of Respondent's alleged
reliance on negative attitudes displayed by Native inhabitants. The
suggestion of such reliance is, in any event, denied, and Applicants' sub
mission in regard to expenditure, made a propos of the passage quoted, is,
in Respondent's submission, without substance.
8.Applicants conclude their allegations in this context by stating that
"[t]he extent to which Respondent has permitted its attitude of
laisser-faire to lirnit the extent of education in the Territory-both
with respect to isolating 'group' from 'group' and with respect to
instituting enthusiasm for education-is made clear in Respondent's
own words . . . 3",
and then follow nine quotations from Book VII of Respondent's Counter
MemoriaL These quotations are, therefore, advanced as evidence of
the alleged extent to which education has been limited by Respondent's
so-called policy of laisser-faire.
An analysis of the quotations reveals the following:
(a) Sorne of them (viz., the first, third, fourth and ninth) refer to
separation in the education of the European, Coloured and Native
groups. In the first it is stated that the introduction of a mixed
school system at the inception of the Mandate would have run
directly counter to the :prevailing order and that it would, for that
reason, have failed. It 1s not clear to Respondent whether Appli
cants' suggestion is that mixed schooling should have been intro
duced, even if failure was inevitable. If so, Respondent rejects the
suggestion.
In the third, fourth and ninth quotations the desires of the
inhabitants of the Territory are referred to as only one operative
1
2 IIIpp. 443·444 and 461. Vide also para.2r,infra.
3 Vide ibid., pp396.406.
IV, p.388.
• Vide Illp. 535 (para.24 (c)),a.nd the reference thereinta pp. 407·421 (paras.
3·3°). REJOINDER OF SOUTH AFRICA
127
factor in the system of separate education. This appears clearly if
the quotations in the Reply are read in their full context in the
Counter-Memorial 1•
Nowhere in the Counter-Memorial are the desires of the in
habitants referred to as the sole reason for separate educational
facilities. Respondent says, furthermore, that it is in no way wrong
to have regard to the wishes of the inhabitants in regard to separa-
tion in education. ·
(b) One quotation, the second, refers to the desires of Native groups
to have separate facilities. Respondent repeats that there is nothing
improper in paying regard to such desires on the part of the Native
groups, and says, furthermore, that the matter is not concemed
with anv limitation of the extent of education.
(c) Of the remaining four quotations, two (the fifth and the seventh)
refer to the fact that many Native parents still do not send their
children to school because they see no good in schools. Respondent
has already dealt with this matter 2•
One quotation (the sixth) refers to Respondent's statement that
Native parent communities have on occasion asked for compulsory
education, but that it almost invariably appeared that theY.did not
appreciate what a system of compulsory education entalled, and
that in Respondent's view the introduction of such a system before
parent communities desired it and appreciated what it entailed,
could "only create hardship and cause resentment" 3• In Respon
dent's submission there is nothing improper in wishing to avoid
hardship and resentment on the part of the Native inhabitants of
the Territory. Furthermore, as has already been stated, the school
attendance rate in the Territory is increasing at a satisfactory rate
and when regard is had also to other difficulties, particularly the
shortage of teachers, there can be no justification for a premature
introduction of compulsory education.
The remaining quotation (the eighth) refers to an attitude found
amongst parents in the Eastern Caprivi Zipfel that "by attending
school their daughters become lazy, and, accordingly, less attractive
to prospective husbands" •.
Attitudes of this kind in regard to the education of girls are not
easily rooted out amongst primitive communities, and are still
prevalent in parts of Africa 5• Respondent says that the fact that
1 Vide III, pp. 375-376 (paras. 49 and 50) in regard to the third quotation;
ibid.,pp. 375-378 (paras. 49-54) and 381-382 (paras. 60-62) in regard to the fourth
quotation; and ibid., p. 513 (para. 5 (b) and the paragraphs referred to therein) in
regard to the ninth quotation.
z Vide para. 6, supra.
3 III, p.393.
4 Ibid., p. 461.
5 Ibid., pp. 397-398. Ville also the following statement in the report of the Con
ference of African States on the Developmcnt of Education in Africa, held at Addis
Ababa in 196r: ''Research indicates that girls make up less than 30 percent. of the
present total African primary school enrolment and about 22 per cent. of the
secondary school enrolmc:nt. Unfortunately, the factor of conservatism in certain
areas has slowed the expansion of education for girls because of its imagined effoct
on estabfüihed tra::litions.(UNESCO/E0/181, Chap. I.p. 6 {para. 21).) ln the case
of Liberia and Ethiopia girls made up 24 percent. and 21 percent .• re,pectiv~ly.of SOUTH WEST AFRICA
girls constitute 25 per cent. of the children who attend school in
the Eastern Caprivi 1shows, when regard is had to the brief history
of education in that territory, that good progress bas been made,
and submits that Applicants' complaint is without merit.
g. In regard to Respondent's alleged reliance on the initiative of the
groups, Applicants say that Respondent's policy is one of "professed
reliance upon the initiative of the 'Natives' to promote their own material
and moral well-being and advance their own social progress" 2• Respon
dent never professed any such policy. Applicants, it seems, rely on the
following statement in the Counter-Memorial for their aforesaid allegation:
"Respondent's task is in essence one of advising, encouraging and
assisting the various groups by providing facilities consistent with
their needs and guiding them towards sclf-help. Whether, and t-0
what extent, the groups make use of the opportunities offered rests
largely with themselves. They will, however, continue to receive
sympathetic assistance and guidance from Respondent ." (Italics
added by Applicants.)
These words clearly do not mean, and were not intended to mean, that
Respondent relies "upon the initiative of the 'Natives' to promote their
own material and moral well-being and advance their own social pro
gress". Nor do they afford any justification for saying that Respondent
"appear[s] to throw the initiative ... of obtaining education on to the
native"•. Applicants' main objection is, apparently, to the words they
have italicized, but in Respondent's submission no valid objection can
be taken thereto. Surely it is tme to say of any pcrson who is given
advice, encouragement, guidance, assistance and facilities consistent with
his needs that it will rest largely with himself whether, and tl) what extent,
he makes use of the opportunities offered to him 5•
Applicants, after quoting the words "appear[s] to throw the initiative
... of obtaining education on to the native" from 1\1.Rappard's afore
mentioned remarks 6,allege: "This applies not only to the interest shown
by the 'Natives' in the education available but also, more specifically,
to the system of 'community schools', to the question of compulsory
education, and to the financing of education 4." These allegations are
denied.
IO. In regard to the community school system, Applicants' complaint
is that "[t]he 'Natives' have ... been delegated the duty of promotion
of their own social progress which, in the Mandate, was entrusted to
Respondent" 7• By quoting part of a sentence in one of a number of
paragraphs dealing with the system of community schools, and by assign-
primary school enrolments in the late 1950s. (Unesco: Basic Facls And Figures
r960 (1961), p. 29.)
1 III,p. 461.
2 IV, p. 389 and ui,ù p. 387 (in fine).
3 Ibid. Quoted from Ill, p. 537.
" IV, p.389.
5 Ifthis is not so, the following statement in an official publicationof one of the
Applicant States makes no sense: "\Ve cannot fight in raising the standards of our
schools when we have teachers who ... will not avail themselves of the opportunity
to learn." Vide III, p. 424.
6 Vide para. 2,supra.
7
IV, p. 390. REJOINDER OF SOUTH AFRICA
ing thereto a meaning which it does not, and was not intended to, bear,
Applicants try to create the impression that Respondent has done
nothing less than to admit that it has rid itself of the duty to promote the
progress of the Native inhabitants of the Territory, and that it has dele
gated that duty to the Natives themselves. The words they quote are:
''it is hoped that all Native parent communities will in time utilize
to the full the opportunity which has been given them of promoting
education through their own efforts l". (Italics added by Applicants.)
Respondent pointed out in its Counter-Memorial that the system of
community schools gave parent communities an opportunity of playing
a part in the development of education, and that it contributed, at the
same time, to their social and political development. Respondent stated,
inter alia,
"[t]he system of community schools offers Bantu parent communi
ties the opportunity of playing an active part in the control of the
education of their children, and at the same time affords them an
excellent training ground in self-management and citizenship 2",
and quoted from a book written by a foreign author in which the follow
ing issaid about the system: "The system as a whole is thus certainly on
this level, a positive contribution to the development of the body civic
of the Bantu ... 3". The words quoted by Applicants appear in the fol
lowing paragra ph :
"After its experience thus far of community schools in Ovambo
land, the Administration has every confidence that the system will
be a success. School committees and school boards, acting under the
guidance and with the advice of the Administration's officiais, are
doing good work, and it is hoped that all Native parent communities
will intime utilize to the full the opportunity which has been given
them of promoting education through their own efforts 4."
It is clear from what has been stated above that Applicants' complaint
is without substance.
Respondent says, furthermore, that its system of comrnunity schools
serves as an instrument in developing Native communities to the point
where they will be able "to stand by themselves" 5•
II. Applicants' next allegation reads as follows:
"Respondent admits that the 'Native' parents often cannot afford
to bear the boarding expenses of their children at hostels and sug
gests that this, together with the problem of teacher shortage, is a
reason why 'in the case of Native education such facilities have thus
far been found practicable only to a very limited extent' 6."
It is not stated in what respect Respondent is relying "upon the initia
tive" of the Native inhabitants. Presumably the suggestion is that a
shortage of teachers and the inability of parents to pay boarding fees
1 IV, pp. 389-390. Vide III, p. 371.
2 III, p. 370.
3 Ibid.,p. 371.
• Ibid.,p. 37z.
5Art. 2z (1) ofthe Covenant.
6IV, p. 390.130 SOUTH WEST AFRICA
cannot be a valid rearnn for a shortage of toarding facilities. If so, the
suggestion is clearly untena ble.
12. Applicants purport to see a further example of "reliance upon fu
initiative" of Native inhabitants in the fact that in the Eastern Caprivi
Zipfel each of the two main tribes "has shown itself prepared to grant
bursaries from tribal funds to students who wish to be trained as teach
ers" 1. Applicants say that this is "not altogether surprising, since
Respondent itself has only granted two bursaries for such purpose" 2•
In the Counter-Memorial Respondent referred to the short history of
education in the Eastern Capr3vi, and to some of the difficulties which
have retarded development • It also referred to progress which had been
made, and, as "[a]n indication of a growing interest in education" 4.
it mentioned the aforementioned fact that the tribes had shown them
selves prepared to grant bursaries to prospective teachers. This did not
corne about, as Applicants suggest, because of the small number of
bursaries granted by Respondent, but was the result of efforts made by
officiais to arouse greater interest in education on the part of the Native
authorities. Their willingness to assist education in the area shows that
they are being helped to help themselves, and this, in Respondent's sub
mission, constitutes progress 5•
13. Applicants conclude by saying:
''Similarly, Respondent's complaints about 'lack of support' or
'lack of interest' in various educational ventures undertaken with
respect to the 'Native' groups resound of laisser-faire and are 6
wholly incompatible with the dynamic nature of the Mandate ",
and then they refer to certain features of Native education which were
mentioned by Respondent in the Counter-Memorial, viz., early school
leaving; small numbers in the senior secondary course; small numbers
in industrial courses; the slow response to opportunitics offered for
training as nurses; and early loss of interest in evening classes for adults.
It is not clear what Applicants intend to convey. In the Counter
M.emorial Respondent referred to carly school-leaving and other mani
festations of lack of interest in education, but it is not appreciated how
Respondent's references thereto-"complaints", according to Applicants
-can be said to "resound of laisser-faire" and to be "incompatible with
the dynamic nature of the Mandate". In Respondent's submission
Applicants' allegation does not make sense. The fact that Respondent
1 IV, p. 390, quoted from Ill,p. 462.
2 IV, p. 390. Vide also III, p. 462,
3 III,pp. 459-462.
• Ibid., p. 462.
3 A Junior Certificate course was introduced in the Eastern Caprivi in 1964 when
a Form I class was instituted at the Roman Catholic school at Katima Mulilo. Each
of the 10 pupils who enrolled received a bursary of R30 from the Department of
Bantu Administration and Development. The cost of the buildings needed (RS,ooo)
to accommodate the extra classes is to be paid by the said Department.The aim is,
also, to instituteteacher training at this school. For this reason Respondent bas
decided to award annually 15 bursaries of R30 each to students taking secondary
courses at the above-mentioned school, and to do away with the two bursaries which
are awarded at present for study in South Africa. Three more community schools
were established in 1964, bringing the total number of schools to20. (Departmental
information.)
• IV, p. 390. REJOINDER OF SOUTH AFRICA 131
referred to difficulties 'which are encountered in regard to Native educa
tion does not mean that Respondent is in any way responsible, or that it
adroits responsibility, for such diffi.culties. Nor does it mean that Res
pondent in any way relies upon "the initiative" of the Native inhabitants.
C. Compulsory Education
14. Applicants commence their discussion of this subject with an
allegation which is not borne out by the material quoted by them in
support thereof. The allegation is probably made with the intention of
creating the impression-an impression which would be entirely wrong
that the Permanent Mandates Commission held the view that the absence
of compulsory education for Natives in South West Africa constituted
a dereliction of duty on Respondent's part. Applicants' allegation reads
asfollows: -
"The Permanent Mandates Commission made clear its view that
compulsory education for 'Natives' was an important aspect of the
duty to promote the well-being and social progress of inhabitants of
Territories under l\Iandate 1.''
In support thereof they quote the following two extracts from the Minutes
ofthe Commission:
"Mme Bugge-Wicksell said that she had no question to ask, but
desired to express her admiration for the steps taken by Australia as
regards education in the mandated territory [Nauru]. She was happy
to note that there was conipulsory education for children from 6 to
16 years of age and that the proportion of children who attended
schools was 100 percent .... 2"
"?!IlleDannevig drew attention to the provisions of Article 2 of the
decree reorganizing official education in [French] Togoland ...
'School attendance may be made compulsory for all children
between 7 and I2 years of age wherever the number of schools
allows. It is always compulsory for the children of chiefs, notables
and officiais'2."
Itisobvious from the passages quoted-and the context in which they
appear in the Minutes of the Commission contains no contrary indi
cation~that the Commission did not express the view, as allcged by
Applicants, that it regarded compulsory education as an important
aspect of the duty to promote the well-being and social progress of the
inhabitants of territories under Mandate. It goes without saying that the
Commission would have welcomed a situation in which compulsory
education was feasible, as it expressly did in the case of Nauru, but that
is afarcry from saying that it thought such education an important part
of a l\fandatory's duty, irrespective of what the circumstanccs in a
particular territory m1ght be. The Commission no doubt knew that
circumstances in most mandated territories were such that compulsory
education, as a system which could actually be put into practice, could
be no more than a distant ideal. Indeed, on the occasion referred to in the
second quotation above (i.e., regarding French Togoland), Mlle Dannevig
immediately asked the question "... whether any part of the territory
1 IV, p.390.
2 Ibid., p391.I32 SOUTH WEST AFRICA
had enough schools to enable this to be carried out" 1•The reply given
to the question is recorded as follows in the Minutes, viz., "that the
mandatory Power was anxious that there should be the greatest possible
number of pupils and schools, and the only limits set to the realization of
these ahns were material possibilities" 2• Respondent points out that
in I938-the quotation dates from I934-only about 6.05 percent. of the
school-age population of French Togoland (or slightly less than I.4 per
cent. of the whole population) attended school 3•
The Permanent Mandates Commission, as stated above, no doubt
welcomed the introduction of compulsory education-particularly
where it could be made to work successfully in practice--but it would, in
Respondent's submission, have been the first to admit that Nauru was an
exceptional case. This small island, about 5,263 acres in extent and with
a circumference of approxhnately r2 miles, had, in I920, a population
of only r,084 4,and it could"not possibly have presented the difficulties
found in a country like South West Africa-or French Togoland 5•
I5. After their reference to the Permanent Mandates Commission, as
set out above, Applicants proceed to say that-
"[s]ince the dissolution of the League of Nations, the organized
international community bas frequently emphasized the importance
and desirability of compulsory education 6".
Applicants do not refer to any authority in support of this statement,
but Respondent accepts that every responsible govemment fully realizes
"the importance and desirability of compulsory education''. Respondent
would add, however, that every govemment must nevertheless have due
regard to ail factors which have a bearing on the question of compulsory
education before deciding on its introduction.
Respondent points out in this regard that, according to a Unesco
publication, only nine of some 40 African countries listed had a system of
compulsory education pertaining to indigenous inhabitants (i.e., ex
clucling Europeans, Asiatics and Coloureds) as at the end of the r95os 7•
Respondent has not attempted to establish what percentage of school-age
children attended school in each of these African countries at the time
stated, but points out that in the case of one country mentioned as having
t P.M.C., .Min., XXVI, p. 115.
2 Ibid. The decree referred to in the quotation was intended to apply only to
"official"(i.e., Govemment) schools. and not to mission schools. l'ide "The manda
tory Power had no means of influencing the missions .•. " (P.~ll.f.C.• ..•XXVIII.
p. 64), and the statement that the missions themselves decided "where to exercise
their activities".(P.M.C., Min .• XXXIV, p. 125.)
3 In 1938 there were in Togoland 10,857 pupils in ail types of schools. The popula
tion consisted of 780,170 Natives. ,470Europeans and 59 Syrians. (Respondent as
sumes the school-age population to constitute 23 percent. of the total Native popu
lation: vide III, p. 462.) Vide also Rapport annuel adressé par le Gouvernement
francais au Conseil de la Sociétédes Nations sur l'administration sous mandat du
territoire du Togo pour l'annéeI938 {1939), pp. 104 and 111-113.
• There were, also, 597 temporary Chinese workers on the island (including 2
women and 3 children). Vide P.A!.C .• Min .•II, p. 50.
5 In 1962. it may be pointed out. the total population of Nauru was 4,849 {com
posed of 2,516 Nauruans, 1,173 other Pacifie Islanders.748 Chinese and 412 Euro
peans): vide G.A ., O.R., Eighteenth Sess., Suppl.No. 4 (A/5504), p. 22.
6 IV, p.391.
7 Unesco, Basic Facts and Figures I960 (1961). pp. 166-167. REJOINDER OF SOUTH AFRICA
133
compulsory education for children from 6 to 14 years of age, viz., Chad,
it appears that only about 5.6 per cent. of the school-age population
1
attended school in I958, or about 1.3 percent. of the total population •
In the case of Togo, referred to by Applicants 2, the corresponding per
centages in I958 would appear to have been about 28.6 and 6.6 3.
16. Respondent has alieady referred to the question of compulsory
education and school attendance in one of the Applicant States, Liberia 4,
and it is not intended to repeat what has already been said. Respondent
points out, however, that whilst this State, as one of the Applicants in
these proceedings, stresses that "the organized international community
has frequently emphasized the importance and desirability of compulsory
education", a 1958 publication of Unesco, an agency of this organization,
reveals that, because of local conditions, it would not serve any purpose
to enforce this conntry's 50-year-old compulsory education law. It is said:
"Compulsory education under the Education Act starts for all
children at the age of 6 and ends at 16. Quite recently, the problem
of compulsory education has shifted from one of attendance to that
of providing accommodation and facilities. Consequently there is no
obvions need for the enforcement of this law 5."
Respondent points out that in 196I-I962 about 22 percent. of the school
agc children of Liberi7 attended school 6. In I958 the percentage must
have been smaller •A shortage of teachers, as Respondent has shown 8
has been one of the main difficulties-presumably it also played a
significant part in the decision that there was no "need for the enforce
ment of this (i.e., the compulsory education) law".
The Ethiopian Government, Respondent assumes, has also been
prcvented by practical difficulties from showing in practice, viz., by
passing and putting into effcct a compulsory education law, that it is in
full agreement with the emphasis which the "organized international
community" has frequently placed on the "importance and desirability
of compulsory education".
17. ln the case of South West Africa, however, Applicants take up the
attitude that no account should be taken of factors which have elsewhere
been considered of sufficient weight to affect the question of compulsory
education. They say, in effect, that the difficulties which have retarded
development and, accordingly, affected the practicability of compulsory
education, are either of Respondent's own making, or else the result of its
1 Unesco, Basic Facts and Figures z960 (1961), pp. 29, 36 and 156. Vide the
primary and secondary (including vocational) enrolments at pp. 29 and 36, and the
total population figure at p. 156. Respondent assumes that the school•age pop
ulation constituted 23 per cent. of the whole population. Vide III, p. 444.
32 IV, p.391.
Unesco, op. cit.,pp. 30, 38 and 157: vide the primary and secondary (including
vocational) enrolments at pp. 30 and 38, and the total population figure at p. 157.
According to this publication,Togo has compulsory education for the sons of chiefs
and officiais (p. 167, and footnote 9 at p. 172). No mention is made of provisions of
the kind referred to in the Minutes of the Permanent Mandates Commission: vide
para. 14, supra.
• III, pp. 406 an<l 445.
~ Unesco, World Su~vey of Ed11catio11-ll: Primary education (1958), p. 674.
6
7 III, p445.
8 ln 1955 it was approximately 3.5 percent.: ibid.
III, p. 423.134 SOUTH WEST AFRICA
own Jack of initiative. And, mirabile dictu, thev see fit to offer solutions to
problems which they themselves have not yet managed to solve, and
which, as Respondent has shown, are common and not easily solved in
rmderdevcloped African countries having no tradition of modem edu
cation.
Applicants' allegations and suggestions in regard to what Respondent
could or should have done in the Territory 1 are rejected. Save for what is
said in the paragraph immediately helow, Respondent does not propose
to deal with each of these allegations or suggestions. They amount to
repetition of what is contained in an earlier section of the Reply 2, and in
no way controvert what is stated in the Counter-Memorial in regard to
compulsory education and the various factors which have retarded
3
education m South West Africa .
18. In a paragraph dealing with the shortage of Native teachers in the
Territory, Applicants conclude their remarks with the allegation that-
"... Respondent decries the lack of interest or of motivation on the
part of the 'Natives' with respect to vocational, higher, or adult
education; yet Respondent's apartheid policy with respect to job
opportunities in itself places a <lamper upon any nascent enthusiasm
among young 'Natives' to seek educational opportrmities which, as
Respondent concedes, would merely produce 'frustration' 4".
(Footnote omitted.)
This allegation is not directly relevant to the question of teachers, save
in so far as it may relate to efforts made by Respondent to raise the
qualifications of teachers in service by means of evening classes 5, Re
spondent denies, in any event, that statutory measures relating to "job
opportunities" 6 have affected teacher training, or enrolments in the
industrial or adult classes referred to in the Cormter-Memorial 7• Appli
cants' remark in regard to higher education is not understood. In the
Counter-1'1Iemorial Respondent pointcd to the fact that secondary
education was of fairly recent origin in the Territory 8, and that the first
students wrote the Standard X examination only at the end of 1960 9•
Respondent points out, furthermore, that one cannot reasonably blame
any apartheid measure if a student starts a teacher-training course and
then drops out because he lacks the qualities needed to complete
the course 10• Applicants have previously dealt with the question of
1 IV, pp. 391.392.
2 Ibid., pp.387·390.
3 Ill,pp. 379·382 and 407.42r.
• IV, p. 392.
5 Vide III, p.421 (para. 30).
6 IV, p. 392, footnote 5.
1 Vide Il[, pp. 4r7·42r (teacher training); pp. 466·467 (industrial courses); and
pp. 489-490 (adult education).
8 III, pp.437-438 and 449.451.
9 Ibid., p. 526 (para. r8 (c)).
10 Vide IV, p.392, and the first italicized words in the fi.rsquotation in footnote
4. The second quotation in the footnote relates to the problem of raising the quality
and qualifications of Native teachers, and not to the shortage of teachers, as Appli
cants suggest. Respondent indicated in the relevant paragraph in the Counter
Memorial that teachers (who were better qualifi.ed than those in the Territory) could
not be imported from South Africa-hence the only solution was to raise the quality
of teachers, and of education generally, in the Territo:ry. REJOINDER OF SOUTH AFRICA 135
1
"frustration", and Respondent refers to what it has said in that regard •
19. Respondent points out that Applicants have apparently, as com
pared with the position taken up in the Memorials, considerably narrowed
the scope of their complaint in regard to compulsory education in the
Territory. In their Memorials Applicants complained that there was
"compulsory education for all 'European' children of the Territory" 2,and
education for "only a small fraction" 2 of the Native children. TheY.
stated that there was compulsory education for European children untll
3
the age of 16 , and that "by contrast,3 education for 'Native' and
'Coloured' children is not compulsory" •Their complaint was, in other
words, that the same system did not apply to Natives as to Europeans.
Applicants now say, however, that they-
"... have not insisted in their Memorials, nor do they now insist,
that education be made compulsory for ail the 'Native' children in
the Territory 4". (Footnote omitted.)
This statement is, in Respondent's submission, not in accordance with
what Applicants stated in the Memorials. Applicants, presumably to
support their allegation that they did not in their Memorials "insist" that
education should be compulsory for ail Native children, say that they
"reaffirm their objection", as stated in the Memorials, to-
"... a system of education in which a far smaller fraction of the
'Native' children within the Territory receive any schooling than in
the case of the 'European' children of the Territory 5." (Italics
omitted.)
This passage, Respondent submits, does not support Applicants' afore
said allegation.
20. Applicants' present attitude appears from the following paragraph
in the Reply:
"This Court is not asked to decide to what extent compulsory
education ought to be introduced for the 'Native' children of the
Territory, nor to what extent such a system ought to have been
introduced in the past. Applicants submit, however, that the failure
by Respondent, to introduce any compulsory education, on any
level, for any population other than the 'European', is a manifest
failure to promote the well-being or social progress of the inhabi
tants 6."
Respondent agrees with what is said in the first sentence of the passage
quoted above, i.e., that the honourable Courtis not called upon to decide
to what extent compulsory education should have been, or should now
be, introduced. The contention advanced in the second sentence of the
passage, however, is, in Respondent's submission, without substance.
In Respondent's submission, the Court will have regard to the question
whether the well-being or social progress of the inhabitants of the Terri
tory has in fact been promoted, and will not make the existence or
1
Chap. II, paras. 5-20 supra. Vide also sec. E, Chap. X, supra.
3 I, p.16o.
4 Ibid., p.l53·
IV, p. 391. In footnote 6 on p. 39l of the Reply Applicants refer to I, pp. 153.
r54, 160 and 165-166 of the Memorials. Respondent finds no support for Applicants'
present statement on these pages.
s IV, p. 391.
6 Ibid., p. 392.I36 SOUTH WEST AFRICA
otherwise of a compulsory education law its criterion of progress. Re
spondent has shown in the Counter-Memorial, and again in the preceding
paragraphs, that the existence of a compulsory education law in a country
does not necessarily afford a guide to the extent of the progress which has
been made in that country.
Respondent points out, furthermore, that Applicants are not quite
correct when they say that Respondent has not "introduced" compulsory
education for any population group other than the European. As was
pointed out in the Counter-Memorial 1,the Education Ordinance of 1962,
which came into operation in December 1963, gives the Administrator
of the Territory the power to introduce, on the recommendation of the
Education Department, compulsory education at any state school for
Coloured children.
21. Applicants conclude with the allegation ihat-
"... Rcspondent's total failure to narrow the educational dis
crepancy between the 'European' and the 'non-European' children
of the Territory has violated its obligations under Article 2, para
2
graph 2, of the Mandate ".
There is no substance in the allegation. Applicants have not proved any
failure of the kind referred to, let alone a "total failure", and Respondent
submits that there has not been any such failure. Respondent does not
propose to deal with this allegation in any detail. It refers the honourable
Court to details given in the Counter-Memorial which show that rapid
increases in school attendance have indeed "narrow[ed] the educational
discrepancy between the 'European' and the 'non-European' children of
the Territory". In regard to Coloured children it was stated that more
than So percent. attended school 3,and in regard to Native children it
was illustrated that there had been substantial progress, particularly
since 1951. It was shown, inter alia, that the increase in the number of
Native children attending school was about 54 per cent. during the
years 1951-1960 as against an increase of about 17.4 percent. in the total
population\ and that about 44 percent. of ail Native children of school
age attended school in 1961 5 •Respondent points out, furthermore, that
enrolment figures as at 30 June 1964 were substantially higher than on
the correspondin? date in 1963. In the Police Zone the increase was more
than 6 per cent. and in the northern territories it was no less than IS
per cent. It is estimated that about 52 percent. of the Native school-age
population now attend school 8• Respondent refers, finally, to proposais
which have been made by the Odendaal Commission for the extension of
educational facilities during the next few years, and to Respondent's
acceptance of the said proposals 9•
1III, p.392.
2 IV,pp. 392-393.
' III,p.391.
• Ibid.,p. 444.
5 Ibid.,p. 445.
6 From 16,764 (vide III, pp. 434-435) to 17,912 (Departmental information).
7
From 32,533 (vide Ill, pp. 441-442) to 37,622 (Departmental information).
a Calculated on an estimated total Xative population of 463,000, which figure
represents an annual increase of 2 percent. on the 1962 population figure cited in the
report of the Odendaal Commission (R.P. No. 12/1964, p. 245 (table LXXXXII)).
9 Vid~ Chap. TIJ, para. 50, supra. REJOINDER OF SOUTH AFRICA 137
D. Disparity in Expenditure
22. This section of the Reply is divided into three parts headed, re
spectively, "On Education in General", "On Teachers in Particular" and
"Conclusion". These matters are dealt with hereunder in the same order.
23. In the Counter-Mernorial Respondent, while adrnitting that
"amounts spent on Native education have at ail times been substantially
less than the arnounts spent on European education" 1,submitted that-
"... in the light of the circumstances which have prevailed and still
prevail in the Territory, a comparison between the two things
expenditure on European education and expenditure on Native
education-cannot per se be indicative of unfair discrimination
against the Native groups 1",
and that-
"[c]onditions which have governed, and still govem, European and
Native education, have been, and are, vastly dissimilar, and ail
comparisons based on mere differences in expenditure must inevitahly
be invalid in the context of charges as made by the Applicants. The
same considerations apply, though to a Jesser extent, to Native
education in the Police Zone as compared with Native education in
1
the areas beyond it ."
Respondent submitted, furthermore, that-
"[t]he question of expenditure on education of each of the popu
lation groups must, in the first place, be considered in the light of the
social and econornic status and levels of developme1t of each of the
groups, and their respective educational nceds ",
and that-
"[t]he varions factors and conditions which inhibited the introduc
tion and development of education in the case of the Native groups,
rendered it almost inevitable that expenditure on education, in the
Territory should have begun on a basis of sttbstantial excess on the side
of European edttcation over that of Native education 1". (Italics
added and footnote omitted.)
It was pointed out at the same time that-
"[w]ith the progressive extension of education to the Native groups,
increasingly larger suros have ... been spent on Native education,
and with the continued social and economic advancement of the
Native peoples of the Territory, the difference in expencliture on
Native and European education must, in the course of time, of
necessity disappear 1".
24. In the Reply Applicants do not deal with the various conditions
and factors to which Respondent referred in the Counter-Memorial as
having thus far rendered European education more expensive than
Native education. Their treatment of the matter amounts to the following:
(a) Their answer to Respondent's submission as contained in the
partly italicized passage above is a submission that "the v~ry
reverse of the foregoing proposition was true in 1920 and remams
true today. The inhibiting factors referred to by Respondent
1 Il[p. 534.138 SOUTH WEST AFRICA
should have made 'inevitable' proportionately higher expenditures
1
on the 'Native' group . In this regard it may be pointed out that,
at least in so far as the pre-Second World \Var period is concerned,
Applicants' submission is in direct conflict with the view of a member
of the Permanent llfandates Commission, Mlle Dannevig, who,
as was pointed out in the Counter-Memorial, stated in 1939 that she
"... fully appreciated ... that schools for European children must
cost considerably more in proportion" 2• Applicants completely
ignore this statement 3•
(b) Applicants point to the differences in expenditure on Eurnpean
and Native education as revealed in Respondent's Counter
Memorial, and, on the basis thereof, they submit that-
"... so astonishing a discrepancy, viewed in the context of the
affirmative obligations of the Mandate, is a per se indication
that Respondent has, from the inception of the 11Iandate, ne
glected the 'Native' population, to the advantage of the 'Euro
pean' population 4".
They add:
"Respondent has spent, and continues to spend, a great ma
jority of its educational funds on a small minority of the inha
bitants; this can only be interpreted as a promotion of the well
being and social progress of a minority of the inhabitants, to
the disadvantage of the overwhelming majority thereof 4."
In addition to referring to expenditure figures in the Counter-Memorial,
as stated above, Applicants in the Reply make a calculation of expendi
ture by Respondent in 1962-1963 on, firstly, each European and Native
child of school age and, secondly, on each such child actually at school 5.
rn the Counter-Memorial Respondent gave per capita expenditures, cal
culated on attendances, in varions years in the case of both European and
Native children 6• Applicants, in a footnote 7,allege that Respondent's
calculations are "misleading" because they are based on the number of
pupils attending school rather than on the number of school-age children.
The allegation is without substance. There is no justification for calling
figures "misleading'' when they are expressly stated to reflect expenditure
1
IV, p.388.
2 Vide III,p. 536.
3 In other mandated territories with European populations there seems to have
been a pattern of expenditure similar to South \Vest Africa. ln Tanganyika in 1938,
e.g., the amount spent on each European child at school was 25r.65 shillings as
against 43.48 shillings in the case of African children (taking into account amounts
spent by Native administration). The amount spent per head of the total European
population of 9,128 was 25.14 shillings as against 0.30 shillings in the case of the
total African population of 5,182,515. Vide Report by His Majesty's Government in
the United Kingdom of Great Brilain and Northern freland to the Council of the League
of Nations on the Administration of the Tanganyika Territory for the year r938, p. 119.
4
5 IV, p.393·
Ibid.,pp. 393-394. They use the population figures for 1962 as estimated in R.P.
No. 12/1964 in footnote 5 on p. 394.
6 III, pp. 457-458 (Native children in Police Zone and northem territories);
pp. 506-507 (European children). The position in the Caprivi is easily determinable
from pp. 46o and 465 (paras. 85 and 95).
7 IV, p. 393, footnote 5. REJOINDER OF SOUTH AFRICA 139
on "pupils at school" 1.They also make the suggestion, which Respondent
rejects; that Respondent based its calculation on pupils actually at school
in order to render the comparison between expenditures on European and
Native education "less shocking", but they omit to acknowledge that
Respondent gave the expenditure percapita of the total Native population
in r96o in the Counter-Memorial -an 2 amount obviously substantially
less than in the case of the European population. Respondent points out
that, in any event, all the particulars necessary to make per capita calcula
tions on the basis suggested by Applicants are either expressly stated in,
or easily detenninable from, the Counter-Memorial. Respondent says,
furthennore, that a comparison of per cafrita expenditures cannot be
considered to "reflect the total efforts" 3made on behalf of the European
and Native populations: Such a comparison would, by reason of the
varions factors which have thus far operated to make the Native school
attendance rate lower than that of the Europeans, be particularly un
realistic ifper capita expenditures were to be calculated on the total
European and Native school-age populations 4•
25. To sum up: the aforegoing shows that Applicants base their
contention that "Respondent has, from the inception of the Mandate,
neglected the 'Native' population, to the advantage of the 'European'
population" purely on a comparison of expenditures on European and
Native education. and that, apart from submitting that factors which
have inhibited the development of Native education should have made
inevitable "proportionately higher expenditures on the 'Native' group",
they have not dealt with varions factors which, as Respondent indicated
in its Counter-Memorial, show that "all comparisons based on mere
differences in expenditure must inevitably be invalid in the context of
charges as made by the Applicants" 5•
26. In regard to expenditure on teachers, Respondent indicated in the
Counter-Memorial that it was not clear whether Applicants' contention
was that there should be no difference in the salaries paid to European
and non-European teachers 6, and it dealt with various factors and con
siderations which apply in South West Africa in order to show that,
if that were indeed Applicants' contention, it would not be a valid one 7•
In their Reply Applicants have still not indicated precisely what their
contention is. They do not say outright that there should not be a differ
ence in the salaries of European and Native teachers who have the same
qualifications. What they do, is to describe the difference between the
salaries of European and Native teachers holding the same qualifications
as an "extraordinary disparity" 8,and to allege 8 that Respondent has
1
III, pp. 457-458. As to Europea.n pupils and expenditure, vide pp. 500 and
506-507.
2 Ibid., p. 459. The year 1g6owas chosen because a population census was taken
in that year.
3IV, p. 394, in footnote 5, carried over from p. 393.
• Respondent points out that in 1963-1964 expenditure on Native educationin the
Police Zone was R46I,915, and in the northern territories R499,588. (Depa.rtmental
information.} In 1962-1963 the corresponding figures were }405,432 and R251,689
(videIII, p. 458).
~ III, p. 534.
~ Ibid.,p. 532.
7 Ibid., pp. 532-533.
• IV, p. 395.140 SOUTH WEST AFRICA
attempted to justify this "extraordinary disparity", whereas it is quite
clear from the CoW1ter-Memorialthat Respondent merely indicated why
European and Native salaries were not the same, and that it in no way
dealt with the extent of the differences in such salaries.
lt would seem, in the circumstances, that Applicants' contention is not
that there should be no difference in the salaries of European and Native
teachers holding equal qualifications, but that differences existing at
present are "extraordinary". Applicants make no attempt, ho_w'ever,to
indicate what a reasonable, or "ordinary", difference would be when
regard is had to all relevant circumstances in the Territory. As will ap
pear from the Reply, their answer to Respondent's treatment of the ques
tion of teachers' salaries 1amoW1ts to the following:
(a) the y allege tha t the shortage of Native teàchers shows that salaries
offered to Natives are insufficient to attract them to the teaching
2
profession ; and
(b) they allege that Respondent "attempts to justify" the "extra
ordinary disparity" between European and Native salaries, and they
then proceed to reply to what Respondent said in the CoW1ter
Memorial in regard to varions factors which play a part in the
determination of salaries and allowances of teachers in the different
population groups 3•
Respondent will deal with these matters in turn.
27. Applicants refer to the shortage of Native teachers in the Territory
and to the fact that Respondent attributes this shortage, inter alia, to
"the absence of a keen feeling for the need for such services [on the part of
the 'Native' groups] at their present stage of social evolution" ~. They
point out that Respondent has stated that "the Herero, in particular,
5
show very little interest in the teaching profession ... " •
Then, apparently in an attempt to discredit Respondent's aforemen
tioned statements and to show that there is a general interest in the
teaching profession, Applicants proceed to say:
"Yet Respondent cites the Report of the 1958 Commission as
holding that 'it was remarkable to what extent the idea of serving
on [school committees] ... and exercising authority over their
schools stirred the imagination of Native parents, tribal councils and
chiefs, without exception' 6",
and-
"[a] reasonable conclusion is that Respondent has failed to render
the teaching profession (as distinguished from part-time service
on school committees) sufficiently attractive to the 'Native' popu
7
lation ''.
This alleged "reasonable conclusion" is in fact unfounded. Itis also not
a reasonable inference from the statement referred to by Applicants.
1 Vide III, pp.532.533.
2 IV, pp. 394·395-
3 Ibid., pp.395.396.
+ Ibid.,p. 394.
5 Ibid.,referring to III, p360.
6 III, p. 501. The relevant paragraph in' the Commission's report appears in
III,p. 369.
7 IV, p. 395. REJOINDER OF SOUTH AFRICA
The fact that all Native witnesses before the said Commission showed
great interest in controlling their schools is no warrant for suggesting
that there is general interest on the part of Natives in the teaching profes
sion, or for saying that Respondent has failed to rcnder the profession
sufficiently attractive. Respondent does not propose going into any
detail in regard to this issue. It merely points out in regard to the Herero,
whom Applicants mention, that at present there are no Herero teacher
trainees at the Augustineum, and only six at Doebra, i.e., six out of a total
of rno trainees at these two centres 1.
Applicants also refer, apparently in an effort to bolster their aforesaid
"conclusion", to a statement made by Mlle Dannevig during the 36th
Session of the Permanent l\fandates Commission in 1939. As appears from
the part of the Minutes quoted by Applicants 2,Mlle Dannevig expressed
the view, as she had also done the year before, that "the offer of higher
salaries would perhaps induce more young natives to be trained as teach
ers". In Respondent's submission this expression of opinion cannot be
taken to show that the then existing salaries in fact had any significant
effect on the supply of teacher trainees, or that Respondent in fact failed to
render the teaching profession sufficiently attractive. Furthermore, as is
pointed out in the Counter-Memorial 3,salaries are adjusted from time
to time, with the result that an opinion expressed at any particular time
must of necessity relate only to conditions as then existing.
28. Applicants also attempt to use the aforementioned quotation from
the Minutes of the Permanent Mandates Commission, and the reply of
Respondent's representative, l\fr.Andrews, to Mlle Dannevig's view in
regard to salaries ~, as a basis for suggesting that Respondent does not,
otherwise than in the case of European education, recognize higher
salaries as a means of inducing young Natives to become teachers. This
suggestion has no basis in fact. Furthennore, l\Ir. Andrews' reply does not
support the suggestion. His view was obviously not that higher salaries
were inappropriate to attract Natives to the teaching profession. His
point was that, in circumstances as they prevailed at the time, there were
"arguments a?ainst the idea of teachers who were such /rom lucrative
motives only" . In other words, whilst higher salaries might attract more
teachers, those who were attracted only by the remuneration offered
might well provc unsuitable for the task they had to perform. That is
why he referred to Dr. Vedder who, by reason of his position and
experience of conditions in South West Africa 6, was eminently qual
ified to say what qualities were most needed in Native teachers at that
time.
29. Applicants say that "higher salaries are openly recognized as
incentives by Respondent" 2 in the case of European teachers, and they
quote a passage from the Counter-Memorial in which it is stated that "a
considerable increase in the number of teacher trainees" since the war is
"probably to be ascribed largely to increased salary scales for teachers,
1 Departmental information.
z IV, p. 395.
3 Ill,pp. 452-457 and 532-533.
• Vide IV,p. 395, footnote 2,for this reply.
5 Ibid. (ltalicsadded.)
6 Vide III,p.409. SOUTH WEST AFRICA
and to the financial aid offered since r950 by the Administration in the
form of bursaries and loans" • It is, of course, true that higher salaries
are "openly recognized" as incentives by Respondent in the case of
European education, but how this fact can, either by itseli, or incombina
tion with what was stated by the aforesaid r958 Commission or in the
Permanent Mandates Conumssion, be used as a basis for suggesting that
Respondent does not regard higher salaries as inducements in the case of
Native education, is not clear.
Applicants' quotation from the Counter-Memorial, as referred to above,
is followed by the following words:
"Yet 'Native' teachers are offered salaries and allowances far
lower than those available for 'European' teachers in the Territory.
The commencing salary of a married male 'European' teacher in the
lowest category, includin~ a special allowance, is Rr,4o6. The com
mencing salary of a mamed male 'Native' teacher with comparable
qualifications, together with his cost of living allowance, is R696 3."
(Footnotes omitted.)
The suggestion seems to be that the mere fact of a substantial difference
in the salaries of European and Native teachers shows that Respondent
has not rendered the teaching profession "sufficiently attractive" to the
Native population, or that Respondent does not regard higher salaries
as incentives in the case of Native teachers. Respondent rejects this
suggestion and, refers to what is stated in the Counter-Memorial in regard
to the varions factors which operate to make the salaries of European
teachers higher than those of Native teachers, and in regard to Native
teachers' salaries and their increase from time to tnne •.
In the latter regard Respondent mentioned in the Counter-Memorial
that "[n]ew salary scales for Native teachers, to operate with retrospec
tive effect as from a date in 1963, are at present under consideration" 5•
The new scales were fixed at the end of r963 and came into operation
with retrospective effect as from 1 April 1963.These scales are as follows:
QualificaJirms Scale
I Lower Primary Teachers Cer- Men: R384x36-6oox48-936
tificate Women: R294X18-312x24-3S4x36-492
2 Higher Primary Teachcrs Cer- Men: I456x36-6o0X48-1o32
tificate Women: R336x24-384x36-6oox4S-648
3 Matriculation plus profession- Men: R56ip:36-600X48-108ox60-1440
al Certificate Women: I456x36-6oox48-840
1 IV,p. 39.5,and vide IIIp. 508, where Respondentpoints outthat, despitehigher
salaries and the other aids mentioned, "there has been, a.nd still is, a considerable
shortage ofproperly qualifi.ed teachers". On Applicants' argument this shortage of
European teachers must be ta.ken to indicate that European teachers' salaries are
too low.
3 Vide para. 27, supra.
IV, p. 395. The final figure of R696 should be R776 for teachers in the Police
Zone. Applicants have omitted to take into account a regional allowance of R8o;
vida III, p. 457-
5 III, pp. 452-465 and pp. 532-533.
Ibid., p. 455, footnot1. REJOINDER OF SOUTH AFRICA
G~ade Qualifications Scale
4 Four Degree courses plus pro- Men: R6oox48-108ox60-1500
fessional Certificate \Vomen: R492x36--6oox48-888
5 Eight Degree Courses plus pro- :Men: R648x48-108ox60-1560
fessional Certificate \Vomen: R528x36-6oox4B--936
6 Degree plus professional Cer- Men: R744x48-108ox60-1680
tificate \Vomen: R6oox48-1032
The aforementioned scales apply in the Police Zone and in the northem
territories, save that teachers in the northem territories teaching in
lower primary schools are remunerated according to the following scales,
which are the same for men and women:
(i) Lower Primary Teachers Certificate:
R294xr8-3r2x24-384x36-492.
(ii)Higher Primary Teachers Certificate:
R336x24-384X36-600X48-648.
In fixing the said new scales the cost-of-living allowance previously paid
to teachers in addition to their salaries 1 was consolidated in the new
salaries.
A comparison of these scales with those in operation prior to r April
1963 2 will show that the increases are fairly substantial. In all cases it
exceeds the total of salary and cost-of-living allowance paid prior to 1
April 1963, save in the case of married men, who commence at a lower
salary but receive higher increments and rise to a higher maximum than
was the case under the previous scales. This result followed from the fact,
as already stated, that the cost-of-living allowance previously paid was
consolidated in the new salaries, but a revision of the position in this
regard is now under consideration.
Persons already in service when the new salary scales came into opera
tion started on a notch in the scale which exceeded their previous salary
plus cost-of-living allowance.
30. In the Counter-Memorial 3 Respondent submitted, in answer to a
paragraph in Applicants' Memorials 4, that if Applicants' contention was
that "all teachers should be paid the same salaries, it would not be a
valid contention", and Respondent then dealt with various "circum
stances and factors relating to the determination of salaries and allow
ances of teachers in the different groups" 3•
Respondent stated, firstly, that-
"... the qualifications demanded in the case of European teachers
are generally higher than in the case of non-European teachers, and
it stands to reason that teachers with higher qualifications should
command better salaries 3". (Footnote omitted.)
As Applicants point out, and as also appears from the Counter-Memorial
itself5, it is possible to have European and Native teachers who have the
same qualifications. Respondent's aforequoted statement was not in-
1 Vide III, p. 456.
2
3 III, p. 455 and cost-of-livingallowances at p. 456.
Ibid.,p. 532.
• I, p. 158 (para. 183).
5 111, pp. 455, 462, 463. 503 and 504.r44 SOUTH WEST AFRICA
tended to crcate the impression that Native teachers necessarily have
Jower qualifications and thereforc rcceive smaller salaries than European
teachers, but to point out why the vast majority of Native teachers
(having passed only Std. VI and a teacher training course) receive smaller
salaries than European teachers with the lowest recognized qualifica
1
tions •Respondent points out, furthermore, that the statement was made
in a paragraph which deals with an allegation in the Memorials 2 in
which Applicants referred merely to differences in salaries without having
any regard to differences in qualifications.
31. Because of the incomplete and misleading way in which Applicants
in the Reply state the further facts and arguments advanced by Respon
dent in regard to the matter in issue, Respondent considei-sit necessary to
repeat in some detail what was said in the Counter-Memorial. Respondent
pointed out that the range of economic alternatives open to prospective
teachers was also an important factor in the determination of salaries. In
regard to European teachers Respondent said, inter alia, that-
"[f]or persans with the qualifications of the European teachers there
are many alternative employment opportunities, not only in the
Territory itself, but also in South Africa. The salaries of these
tcachers must, therefore, always bear a reasonable relationship to
salaries paid in the other sphcres of employment which are open to
them 3 ",
and that it had bcen found necessary to paya special allowance to Euro
3
pean teachers to attract them from South Africa to the Territory • In
regard to Native teachers Respondent said, inter alia:
"The aforementioned considerations do not apply to nearly the same
extent in the case of Native tcachers in the Territory ... The prob
lem is rather one of inducing a sufficient number in the Territory to
obtain even the lowest qualifications necessary for teaching purposes.
There has in the past been little competition for the services of such
persans on comparable salary bases ... 3"
Respondent then made the further point that, in its view,
"A teacher's salary should ... bear a relationship to the normal
incarne of other mcmbers of his group, otherwise he might become
separated or estranged from them as a result of an artificial financial
3
barrier ."
It was also stated that-
"The Native groups are in general still much Jessdeveloped in the
economic sphere than Europcans, and their whole structure of incorne
and of cost of living is generally lower 3'',
and that such factors resulted in a situation that "... salaries paid to
Native teachers are lower than those paid to ·European teachers, even
3
where qualifications may be comparable" •
Respondent indicated that social and economic considerations of the
kind mentioned by it also accounted for differences in the salaries of
European and Native teachers in other African territories 3,and referred
to the findings and recommendations of the Commission on The Civil
1 Vide III, pp. 388, 503-504 and 535.
2 I,p. 158 (para. 182).
3 Ill,p. 532. REJOINDER OF SOUTH AFRICA
145
Services of Kenya, Tanganyika, Uganda and Zanzibar, 1947-1948 l.
Respondent now turns to Applicants' answers to the various points
made in the Counter-Memorial, as restated above.
32. In regard to what Respondent stated in connection with economic
alternatives open to prospective teachers, Applicants say:
"... the argument by economic alternative is the creation of yet
another endless circularity-it has been Respondent's duty for more
than forty years to create meaningful economic alternatives for
'Natives', and its failure so to do cannot be adduced as a justification
for a failure of a different sort 2".
In Respondent's submission, this answer is given to avoid dealing with
realities as they exist not only in South West Africa, but also in other
underdeveloped countries where different population groups find them
selves at substantially different levels of social and economic development.
Itis, Respondent submits, without substance, being based on the wholly
unrealistic supposition that Respondent could, and should, in the brief
span of some 40 years have developed the indigenous peoples of the
Territory to a.social and economic level equal to that of the European
population or, in any event, to a level so near thereto as makes no real
difference.
Applicants do not (save for a remark in a footnote, to which Respon
dent refers below) deal with the merits of Respondent's point that similar
circumstances in other African territories have affected European and
Native salaries in the same way as in South West Africa. They evade the
issue by saying th.at "... such comparisons ar~ meanin&"les~and s~rve no
useful purpose, smce there are no other Afncan temtones subJect to
Mandate" 2. This is, of course, no answer. The economic considerations
here in issue do not apply only in mandated territories, and do not depend
for their validity on the status of a country.
In regard to the same point, Applicants add in a footnote:
"In any event, most other African territories, in recruiting
European teachers, do so /rom Europe; salary differences become
understandable in this light, since the motivation and effect is
wholly different than is the case ,vith respect to the 'Europeans' of
South West Africa 3."
As appears clearly from what is stated in the Counter-illemorial \ the
.question of hlgher salaries for teachers imported from another country is
only one of several considerations whlch are in issue. It is, furthermore,
quite incorrect to suggest that the question of higher salaries (or special
allowances) for imported teachers properly arises only when teachers are
imported from Europe, and not when teachers for the Territory are im
ported from South Africa. The question in each case is whether a teacher
leaves his home country toteach in another country, although the distance
between the two countries may play an important part in determining
salaries and other benefits. South West Africa is almost completely
dependent on South Africa for its European teachers, and experience bas
shown that to induce such teachers to corne to (or, in the cas(èof teachers
1 III,p. 533, footnote3.
2 IV, p. 396.
J Ibid., footnote 3.
4 III,pp. 388-389 and 532-533.14,6 SOUTH WEST AFRICA
born in the Territory, to stay in) the Territory, they have to be offered a
special allowance in addition to such salaries as are paid in South Africa 1•
33. In their answer to Respondent's submission that "[a] teacher's
salary should . . . bear a relationship to the normal income of other
members of bis group, otherwise he might become $eparated or estranged
from them as a result of an artificial fmancial barrier", Applicants com
mence by misrepresenting what Respondent said. According to them
Respondent stated that, "to pay higher salaries to 'Native' teachers
would 'sel?arate' and 'estrange' them" 2 from other members of their
group. This is obviously not what ResP?ndent stated. They then proceed
to say that Respondent's "statement' is- .
", .. yet another circularity, since if no members of the 'Native
group' are rewarded above others, the 'group' progress will at ail
times be limited to the rate of advance of its slowest member 2".
This "circularity" argument suffers from the fatal defect that Respondent
never stated, or in any way suggested, that there are no members of the
Native group who are rewarded above others, or that no members of the
Native group should be rewarded above others. Respondent's point
was that there should be a relationship, i.e., a reasonable relationship,
between a teacher's salary and the incarne of other members of bis group.
Furthermore, Applicants' argument has no factual basis, since it is m
no way true to say that no members of the Native group are rewarded
above others.
34. Having stated their "circularity" argwnent, Applicants quote a
part 3of the paragraph with which Respondent concluded its treatment
of the question of differential salary scales for European and Native
teachers, and which reads as follows:
"The situation is naturally not a static one, and is subject to
continuai adaptation and change, as will appear from the account
already given of increases and alterations from time to time in salary
scales and allowances. The opening up of a number of competing
avenues of higher employment throughjrogress made in the policy
of separate development, as recounte in other portions of this
Counter-Memorial, coupled with the teacher shortage in regard to
Native educa.tion, must naturally tend to increase the basis of
remuneration ofNative teachers. With continued social and economic
progress on the part of the Native population groups, the gap
between salaries for Native and European teachers must in the
ordinary course be narrowed and, eventually, disappear. lt could,
however, do incalculable harm to anticipate this process by singling
out Native teachers for parn:ient to them of salaries wh1ch would
produce a complete econom1cimbalance between 4 them and virtually
all other members of their communities ." •
They then say, apparently on the strengthof the passage quoted by them,
that "Respondent has thus stated that it will harm a man to pay him
more" :z,and they ask "Where does this 'incalculable harm' arise? 2"
l III,p.505.
1 IV, p. 396.
3 Ibid. (quotation at footnote 4).
4 Ill, p. 533- REJOINDER OF SOUTH AFRICA 147
Respondent never stated, or suggested, that it "will harm a man to pay
him more", but made the point that a teacher could become estranged
from the members of his groupas a result of an artificial financial barrier,
and that such estrangement has the harrnful result that "the teacher
ceases to be able to exercise the required influence over his own people,
and accordingly fails to be an effective instrwnent in advancing their
spiritual and material progress'' 1.Respondent pointed out, furthermore,
that a premature raising of salaries in the case of Native teachers 2could
cause harm in the following respect, viz., by causing "a complete eco
nomic imbalance between them and virtually all other members of their
communities" 3.
Applicants, in asking "[w]here does this 'incalculable harm' arise?",
say that "Respondent's answer to this question is to be found in astate
ment of Dr. Verwoerd in the South African Senate'' \ and they then quote
a passage with which Respondent has already dealt in another connec
tion 5•Respondent indicated that the answer to Applicants' question is to
be found in a proper reading of what is stated on the issue in the Counter
Memorial. As has been shown, Respondent's point was that a Native
teacher's estrangement from his own community means a loss to that
community. A possible desire on the part of such a teacher to join the
European community (which is what Dr. Verwoerd spoke about, although
not in connection with salaries), or any other community, is irrelevant
E. Conclusion
35. Applicants' "Conclusion" begins with the submission that-
"... this last-mentioned discrimination [i.e., in regard to expenditure
on teachers] is but another example of implementation of Respon
dent's basic policy of educational apartheid 6 ".
Respondent has already dealt with the question of educational expendi
tures and teachers' salaries, and with various social and economic factors
which have thus far operated to make such expenditures and salaries sub
stantially larger in the case of European education than in the case of
Native education. Respondent says that there is no substance in Appli
cants' submission that such differences constitute part of the implementa
tion of any particular policy, let alone a ''policy of educational apartheid''
as Applicants picture it in the Reply.
Applicants further allege that-
"[i]t [i.e., presumably, the alleged discrimination in teachers'
1III, p.388.
2 Vide the words "singling out", para. 34, footnote 3, supra.
3 Vide the passage quoted above. Respondent points out that the Commission on
The Civil Services of Kenya, Tanganyika, Uganda and Zanzibar (vide III, p. 389)
recommended that account should be taken of ruling income levels in those classes
of the community from which the civil servant cornes. It stated,inter alia:"The
disadvantages of so remunerating any class of Africans as to create a Mandarin
caste, divorced in income and interests from their fellows, would not be confined to
the economic field." (Report of the Commission on The Civil Services of Kenya,
Tanganyika, Uganda and Zanzibar r947-r948, Colonial No. 223 (1948), p. 27,
para. 92.)
• IV, p. 396.
5 Chap. Il, paras. 5-20,supra, and particularly para. ro.
6 IV, p.397.148 SOUTH WEST AFRICA
salaries) is a product and symptom of the policy which has prolonged
and aggravated the very conditions which Respondent relies upon
as justification for its policy 1".
Respondent is not sure that it understands the meaning of this passage.
It is not clear what the terms "the policy" and "its policy" arc intended
to signify. Perhaps the suggestion is that Respondent is itself responsible
for the varions factors which have, according to Respondent, thus far
operated to make expenditures on European education, and European
teachers' salaries, substantially larger than expenditures on Native
education, and Native teachers' salaries. If so, the suggestion is denied.
Perhaps, however, the allegation is intended to relate to the elaborate
"circularity" argument which follows it. This argument, which Respon
dent does not propose to quote in full 1,bas little relation to realities, and
is without· substance. lt has, as its starting-point, the allegation that
"'Natives' remain uneducated because there are not enough 'Native'
teachers". This alJegation is an incomplete and misleading statement of a
complex issue, as will appear from what is said in the Counter-.Memorial
in regard to the varions factors which have served to retard the develop
ment of Native education 2,and must inevitably lead to wrong conclusions
unless it is so qualified as to make clear that problems are gradually being
solved and that the percentage of children receiving an education is
increasing every year 3• Basic to_Applicants' argument is the further al
legation that the shortage of teachers is due to low salaries. The allegation
has in no way been proved by Applicants, and is denied. Respondent does
not propose analysing Applicants' argument any further. Suffice it to say
that, in Respondent's submission, neither its assumptions nor its con
clusions are justificd.
36. Applicants purport to see "[s]imilar circularities ... in every aspect
of the education of 'Natives' in the Territory" 1, and it is alleged that
"[s]uch patterns rest upon the same assumptions, and move toward a
1
common objective" • It is not stated what these "circularities" are, and
presumably the reference is to those "circularities" which are mentioned
in earlier parts of the Reply and with which Respondent has already
dealt.
Finally, Applicants refer to varions matters previonsly raised by them
in the Reply and then allcge that "ail of these aspects relate to, and are
informed by, the essential design and assumptions of apartheid". Res
pondent has already dealt specifically with the varions aspects referred to
by Applicants, and with the allegations made by Applicants in regard
thereto. Respondent has also demonstrated that Applicants' allegations
regarding what they term "the essential design and assumptions of
apartheid" 1 are ,~thout substance.
1 IV, p. 397.
2 Ill,pp.407-421.
3 Similar considerations apply in regard to M. van Asbeck's view-vide IV,
p. 397, footnote 2-that there was a "vicious circle" in that "there was no primary
education because there were no teachers and no teachers because there was no pri
mary education". Furthermore, and in any event, if there was such a frustrating
"vicions circle'' atthetimewhen M. van Asbeck spoke, it has since been successfully.
broken, as isevidenced by the number of teacbers and pupils at the present tiroe CHAPTER V
SEPARATE EDUCATIONAS VIEWED BY UNITED
NATIONSPOLITICALORGANS
A. Introductory
1. This Chapter deals with Annex 5 to the Reply 1, in which Applicants
advance evidence in support of the following statement made by them in
an earlier part of the Reply, viz.:
"Segregation on racial grounds has been condemned in ail civilized
nations ... It is excluded, for example, from the educational policies
of Territories subject to Trusteeship Agreement under Chapter XII
of the United Nations Charter, or subject to reporting as Non-Self
Governing Territories under Chapter XI 2."
The Annex begins with a paragraph in which it is alleged that-
"[t]he appropriate political organs of the United Nations have
deterrnined that racial separation in education is incompatible with
the purposes and principles of administration of dependent territo
3
ries " (italics added),
and that the United Nations, "[s]peaking through such organs", bas-
"... deterrnined that separation is incompatible with (a) the broad
goals of education; (b} the basic meaning of education; (c) the
principle of equal opportunity; (d) the principle of racial equality;
and (e) the goal of unification of the terri tory 3 ".
Then follow five paragraphs, lettered (a) to (e) 4, in which Applicants,
apparently in order to substantiate the five propositions mentioned in the
quotation immediately above, refer to views of and resolutions by "politi
cal organs" of the United Nations. These views and resolutions are also
described by Applicants as "standards" 5• It is alleged, furthermore, that
these "organs", in asserting the said "standards", had due5regard to the
"practical diffi.culties involved in implementing them" , and that the
"determination by the United Nations that separate development in
education is incompatible with the purposes and principles of administra
tion of dependent territories has been fully, or almost fully, complied
with in every Non-Self-Govcrning Territory with the exception of South
6
West Africa" • The Annex concludes with what is intended to be an
illustration that "[t]he promotion of the moral well-being and the social
progress of all the inhabitants of a territory by implementing non
discrimination in education is evidenced by the development in Somali
land under Italian Administration" 7, and a comparison is made between
this territory and South West Africa.
1
2 IV, pp. 398-403.
3Ibid., p.372.
Ibid.,p. 398.
• Ibid., pp. 398-399.
' Ibid., p. 399.
6 Ibid.,p. 4or.
1 Ibid.,p. 402. SOUTH WEST AFRICA
Respondent deals hereafter with the above-mentioned five propositions
and the other allegations made in regard thereto, but before doing so it
makes a few general observations as set out in the next paragraph.
2. It is a rnatter of great significance that, as noted above, the "stand
ards" in regard to education on which Applicants place reliance in their
Airnex 5, have allegedly emanated from pronouncements of political
organs of the United Nations. The extent to which Applicants' state
ments are in truth not supported by the pronouncements of the organs
in question, will be indicated hereafter. For the present Respondent is
concerned with the situation in so far as the pronouncements may well
be said to accord with Applicants' expositions. It is in this respect that
fondamental importance attaches to the political nature of the organs,
and to the fact that their pronouncements on education obviously ema
nated from, or were geared to, their vision of the socio-political future of
the trust territories concemed. This last factor also explains why Appli
cants discuss the pronouncements on education with reference to matters
such as "the goal of unification of the territory", "the principle of racial
equality", and "the principle of equal opportunity" 1.
It secrns clear to Respondent that no discussion of the question of
separation or integration in education-even in the light of the "broad
goals" or the "basic meaning" of education 1-can be divorced from the
socio-political context of the particular situation in which the question
arises. Respondent has already pointed out that in the United States of
America, where the question concems Negroes and White persons who
differ in racial originbut speak the same language, share the same culture
and participate in the same political institutions, and where there is no
policy to bring about an alteration in the last-mentioned respect, the
answer may well with justification be different from that to be given in
South West Africa-where the groups concemed have, inter alia, different
cultures, languages, political institutions, largely different areas separ
ate Iy occupied by them, where they are concemed to retain their separate
identities and where the policy is one of development towards separate
nationhoods. For similar reasons the answer in South West Africa, in the
socio-political context just indicated, may for very good reasons have
to be different from that decided upon in the trust territories in question
consequent upon a decision (rightly or wrongly taken) to attempt to inte
grate the varions ethnie groups into a socio-political unit. For this reason
alone there can be no question of abstracting, from pronouncements of
the United Nations organs regarding such trust territories, any "stand
ards" capable of rule-of-thumb application to education in South
West Africa.
As is indicated in varions instances below, White populations consti
tuted a very small percentage of the total numbers of inhabitants of the
varions trust territories-and they were almost invariably further reduced
after decisions on the part of the Administering Authorities, in the second
half of the 1950s, to accept a policy of accelerated development towards
independence, on a basis of attempted integration of the inhabitants into
a single unit. As regards attempted integration even amongst the diverse
non-White groups, Respondent has indicated above that the results have
in some instances been disastrous and in others not much better. This
1 Vide para. ,supra.
z Vide sec. E, supra. REJOINDER OF SOUTH AFRICA 151
is a further reason wh;v the Court will not, in Respondent's submission,
attach any weight to 'standards" sought to be abstracted from the pro
nouncements of the political organs concerned.
B. The Proposition that Separation Is Incompatible
with the "Broad Goals of Education"
3. It is alleged that "[s]eparation on1account of race is incompatible
with the broad goals of education" • Neither of the resolutions referred
to by Applicants 2 in this connection was concerned with "the broad
goals of education", nor do Applicants say what "the broad goals of
education" are. The resolutions were concerned with what were termed
"objectives in education" in Non-Self-Governing Territories as defined
by the Committee on Information from Non-Self-Governing Territories.
It appears from these "objectives of education" that they are of much
wider scope than is normally associated with a school education. For
example, one such "objective" is stated to be "[t]o raise the standards of
living of the peoples by helping them to improve their economic pro
ductivity and standards of health" 3•
There is, in Respondent's submission, nothing in the first resolution
referred to by Applicants which says that separation is not compatible
with education, or even with the "objectives of education" as stated in
the resolution. In the second resolution mentioned by Applicants, the
General Assemblv considered that, for the attainment of the aforesaid
objectives, "it is·necessary to establish systems of primary, secondary
and higher education which will meet the needs of all, regardless of sex,
race, religion, social or economic status, and provide adequate preparation
for citizenship" 4.
It is clear, in Respondent's submission, that the General Assembly
was here concerned with the provision of educational facilities at varions
levels, to "meet the needs of all", and that it held that no one should be
deprived of education because of his sex, race, religion, etc. The resolution
does not mean that all children must have the same education, or that
all must attend the same schools.
C. The Proposition that Separation ls Incompatible
with "the Basic Meaning of Education" •
4. Separation in education is alleged by Applicants to be incompatible
with the "basic meaning'' of education, or with "the meaning of education
iself" 4. Applicants do not say what the "basic meaning" of education is,
nor what "the meaning of education itself" is supposed to be, and in
Respondent's submission these expressions are not self-explanatory. It
would seem, furthermore, that the Committee on Information, whose
1
IV, p. 398 (para. (a)).
3 Ibid.,footnotes Iand 2.
G.A. Resolution 743 (VIII), 27 Nov. 1953, G.A ., O.R., Eighth Sess., SupplNo. 17
(i\.}2630), p. 24. From a 1ater United Nations document it appears that the above
mentioned Committee regarded it as its function "to seek to coritribute to the
promotion of eclucation in the ... broadest sense of the work[sic) 'education' ... ":
G.A ., O.R., EJevenlh Sess., Suppl. No.15 (A/3127), p. 14 (para.12). . ·
• IV, p. 398. The word "race" is not italicized in the original, as Applicants'
quotation would indicate. SOUTH WEST AFRICA
view that "the principle of non-discrimination is essential to and is an
essential part of education" is quoted by Applicants, was not concerned
with philosophlcal concepts about the "basic meaning" of education,
but with the need for non-discrimination as a means of ensuring equality
of opportunity. That this is so, appears from the words which follow
immediately upon those quoted by Applicants, viz.:
"lt [i.e., the principle of non-discrimination] should be encouraged
by ail means and every effort made to overcome the technical
difficulties of1linguistics and finance that may limit equality of
opportunity ."
It follows, therefore, that the proposition here in issue is, in essence,
the same as the proposition mentioned in the paragraph immediately
below.
D. The Proposition that Separation is Incompatible
with "the Principle of Equal Opportunity" 2
5. Applicants allege that "[s]eparation in education is incompatible
with the principle of equality of opportunity", and that "[i]n order to
assure equal opportunity, there must be equal trcatment, not separate
treatment, of the population" 2•
In support of the latter allegation Applicants quote from a resolution
of the General Assembly in the year 1949 when Administering Members
were invited "to take steps where necessary to establish equal treatment
in matters relating to education between inhabitants of the Non-Self
Governing Territories under their administration, whether they are
indigenous or not" 3• The Special Committee on Information gave the
following interpretation of the above resolution, as appears from the
report of the Sub-Committee on Education for 1950:
"The Special Committee considers the resolution to stress equality
of opportunity for different ethnie and religions groups of the school
population, in order that every child, regardless of race, religion,
language or social status, may acquire both a knowledge of his own
culture and a sympathetic understanding of the cultures of others.
1t does not necessarily mean that a common educational programme
should in alt cases beprovided for alt groups in a community of ditferent
racial or religious composition\" (Italics added.)
According to the above-mentioned report, the Special Committee ex
pressed the view, which is quoted by Applicants, that "[i]n the field of
education no principle is more important than that of equality of oppor
tnnity for ail racial, religious and cultural groups of the population" 5,
and it also held that "it should be accepted as a general principle that no
school should exdude pupils on grounds of race, religion, or social
6
status" • At the same time it held, as the italicized words in the above
quoted passage indicate, that "a common educational programme ... for
all groups in a community of different racial composition" was not neces-
1 G.A., O.R., Eleventh Sess., Suppl. No. 15 {A/3127), p. 23.
2 IV, p. 398.
3 Ibid.,p. 399, footnote 1.
• U.N. Doc. Afr303/Add. 1,p. 16 (para. 43).
' Ibid., p. r7 (para. 50(a)).
6 Ibid.,p. r8(para. 50 (c)). REJOINDER OF SOUTH AFRICA
I53
sarily required, but that "programmes and organization of different
types of school may properly be designed to meet the needs of different
groups of pupils" 1 .The Committee felt that regard should be had to
local conditions in every country, and to the wishes of any group "desirous
of separate school activities for the maintenance of its cultural heritage" 2•
(Italics added.) It is recorded that-
"[t]here was ... a strong belief tha tthe principle of equaltreatment in
education has so many ramifications that its consideration can be
adequate only v.ithin a picture of the whole cultural organization
2
and the complete social context of any territory '',
and that the Special Committee held the view that-
"[r]espect should be paid to the wishes of any group desiring to
establish particular educational facilities for its members, but this
should be subject to the overriding consideration that the general
welfare of the whole community is·not thereby prejudiccd and that
the practical operation of any system of differentiation does not
lead to discrimination against any group 3".
The aforegoing shows, in Respondent's submission, that in 1950 both
the General Assembly and the Committee on Information, whilst holding
that no person should be excluded from any school merely on account of
his race, and tha t there should be protection against discrimination against
any group, thought that regard should be had to the wishes of any group
desiring to establish particular educational facilities for its members,
and that there could properly be differentiation in school facilities and
programmes 4•
6. In the years that followed, however, as Respondent will now indi
cate, there came a chanse in attitudes. Thus, in I955 the Committee
expressed the following view in regard to separate systems at the secon
dary level:
"Practical difficulties, particularly those of language are held by
some Members to justify school systems adapted to the special needs
of groups of the population. But the Committee holds that, at the
secondary level, this justification can only be accepted in very
exceptional circumstances and as a temporary expedicnt ... 5",
and in 1956 it stated, in regard to secondary education, that "every effort
should be made to develop a unified school system open to children of
6
all races" • In primary education, however, it was thought that different
considerations applied. In the same year the Committee recognized that
"special schools to meet the special needs, particularly linguistic, of
young children may be justified so long as the system established has
7
relation to these needs and not to race barriers" •
Respondent points out in this connection that in a "Study of Dis-
1 U.N. Doc. A/1303/Add. 1, p. 18 (para. 50 (c)).
2 Ibid.,p. 17 (para .•t7). '
3 Ibid .para. 50 (b).
• This submission also covers G.A. ResolutiOfl 324 (IV) of 15 Nov. 1949. U.N.
Doc. (A/1251), pp. 39-40. {Vide IV, p. 400, footnote 6. The resolution was passed
before G.A. ResolutiOfl 328 (IV) of 2 Dec'. 1949. Vide IV, p. 399, footnote 1.)
s G.A., O.R.• Te11thSess., Suppl. No. 16 (A/2908). p. 30 {para. 92}.
6 Ibid .• Eleventh Sess., Suppl. No. 15 (A/3127}. p. 22 {para. 78).
7
Ibid.,para. 77.I54 SOUTH WEST AFRICA
crimination in Education", issued by the United Nations Economie and
Social Cowicil at about this time, it is stated that whilst the tenn "dis
crimination in education" should be interpreted as broadly as possible so
as to cover all "inequalities ... based on race, colour, sex, language,
religion ... " 1,the tenn "discrimination measures" cannot be applied-
"... both to unjust discriminatory measures and to certain legiti-
mate distinctions calculated to restore rather than to prevent equal
ity in enjoyment of the right of education. This is, for instance, true
of special education provided for a separate population group in its
2
own language or in accordance with its own cultural traditions ... ''
It is pointed out in the abovementioned "Study" that the United
Kingdom Government observed in re~ard to the Trust Territory of
Tanganyika, forwhich it was the Admimstering Authority, that-
"... the suggestion that there should be racial unification in primary
schools runs counter to the opinion of the majority educationalists
who, throughout the world, emphasize the necessity, in the case of
primary education, for schools to be related to social and home
environments and the advisability of teaching the very young in
their mother tongue or in the language they use in their home
environment. It is only at later stages that persons from different
environments can and should be mixed ... 3"
And in regard to Kenya, according to the aforementioned "Study", the
United Kingdom Govemment stated, inter alia, in a memorandum:
"This idea of the multi-racial school is very attractive. It suggests
a solution of the political problem of the plural society: children, it
is said, have no race feeling, and ifyou educate thern side by side on
the same benches they will remain free of it when they grow up.
Such schools exist in the United States, and in cosmopolitan cities
like Cardiff or Liverpool; why should thev not exist in Africa?
We admit the attractiveness of the idea, and we hope to show that
some educationists in Kenya are working towards it. But the case
of the United States or of the cosmopolitan city in Britain is not a
parallel. There, you have a country with a well-established civili
zation and language of its own, and the problem is to assimilate the
alien immigrant ... This is not the problem in Kenya. Nobody
suggests that the aim of education there should be to make the
European child or the Asian child into a good African, to teach him
to forget his parents' mother-tongue and ancestral traditions ...
It is true that some countries, in which the problems of a plural
society have proved intolerable, have accepted the multi-racial
school as the only way out. l\lalaya is a case in point: there, the
Malay, Chinese and lndian communities are coming together in
so-called national schools in which the medium of instruction is
none of the three main languages, but English. The· price which
each community in Malaya pays which joins in the national schools
isthat its own language and traditional civilization are inevitably
subordinated to the need for giving its children a common inhen
tance.''
1 Vide U.N. Doc. E/CN. 4/Sub. 2/181, 7 Nov. 1956 (para. 50), p. 24.
2 Ibid., para. 51.
i Ibid., p56 (para. 159). REJOINDER OF SOUTH AFRICA 155
Having dealt with some language difficulties with which an inte -rated 9
school system in Kenya would have to cope, the memorandum contmued:
"\Vhich ever language is chosen as the medium of instruction,
some of the class are going to be taught through the medium of a
foreign language. And since language is the vehicle of culture, and
since the cultures of a Kikuyu, a Gujerati, and an English child are
so different, we believe that at the present stage, co-racial education
is not possible at the primary stage. If it is admitted in theory that
something might be done by a system of parallel classes on a lan
guage basis in the same school, this still w.illbe very expensive in
staff; and the differences between the pupils lie much deeper than
merely linguistic differences .. .1''
In 1959 the Committee on Information from Non-Self-Governing
Territorics stated that it had decided to go a step further than it had in
1956, and recommended the development of a common system of edu
2
cation also at the primary school stage •The Committee now expressed
the view that "on no ground whatsoever can education on a racial basis
be justified" 3, and that separate school systems should disappear \
At about the same time the aforementioned Committee stated, inter
alia, that "whether or not it had been feasible to provide equally advan
tageous facilities for each of the racial groups, it was liable to entail a
multiplication of staff, effort and resources which no territory appeared
able to afford" s.
7. Three resolutions, later than those referred to above, are cited by
Applicants, dated respectively 19 December 1961, 19 December 1962 and
20 November 1963 6. These resolutions must be read, at least in part,
against the background of, firstly, movements for independence in the
case of some non-self-goveming territories and, secondly, the General
Assembly's support for such movements, as expressed, inter alia, in its
"Declaration on the granting of independence to colonial countries and
peoples" 7 and in its condemnation of what it terms "colonialism and all
practices of segregation and discrimination associated therewith" 8• In.
the said "Declaration on the granting of independence to colonial
countries and peoples", which is expressly referred to in the first two
of the above-mentioned
three resolutions, it is stated, inter alia, that
"the peoples of the world ardently desire the end of colonialism in ail its
manifestations"; that "an end must be putto colonialism and all practices
of segregation and discrimination therew.ith"; and that "the increasingly
powerful trends towards freedom in such territories which have not yet
attained independence" are "recogniz[ ed]". In both the said resolutions
the General Assembly expressed the view that "racial discrimination and
1 U.N. Doc. E/CN. 4/Sub. 2/181, pp. 58-59 (para. 163}.
2 G.A., O.R., FourleenO, Sess., Suppl. No. r5 (A/4111), p. 16 (para. 33}.
3 Ibid. (para. 37).
5 Ibid. Vide quotation at footnote 2,IV, p. 400.
G.A ., O.R., Fifteenlh Sess., Suppl. No. 15(A/4371},p. 51 (para. 239).
6 Vide IV, p.400, footnotes 7 and 8, and p. 401,footnote I.
7 G.A. Resolulion 1514 (XV), 14 Dec. 1960, G.A., O.R., Fifleenlh Sess., Suppl.
No. 16 (A/4684), p.66.
9 G.A. Resolulion 1904 (XVIII), 20 Nov. 1963, G.A ., O.R., Eighteenth Sess.,
Suppl. No. 15 (A/5515}, p. 36.The same phrase occurs in the "Declaration", being
the resolution referred to in the footnote immediately above. SOUTH WEST AFRICA
segregation in Non-Self-Governing Territories can be eradicated fully
and with the greatest speed by the faithful implementation of the Dec
laration on the granting of independence to colonial countries and
peoples" 1•
None of the above-mentioned three resolutions deals speciftcally with
the subject of education and the organization thereof in any particular
country, but it is nevertheless clear from what has been said above that
the political organs here in issue moved, within the short space of about
a decade, from the position where they recognized that the educational
and social development of different cultural groups in a country might
require separate educational facilities and programmes, to the point
where such recognition is no longer given, and where ail facilities and
programmes are required to be joint, and where consideration of the
particular needs of different cuJtural groups bas been pushed into the
background.
E. The Proposition that Separation is Incompatible
2
with "the Principle of Racial Equality"
8. In the first paragraph of the Annex the proposition is stated that
"separation ... is incompatible with ... (d) the principle of racial
equality". In the paragraph containing material in support of this pro
position it is alleged that "[s]epa.ration ... inevitably leads to the develop
ment or encouragement of racial _{)rejudice'' 3•
ln Respondent's submission, 1t needs no profound analysis of these
two allegations to observe that they are not the same. The difference is,
however, of no consequence, for in Respondent's submission neither
allegation can validly be made as holding true for ail contact situations
in all countries. Whether separation in education in any cowitry does, or
will, in fact have the consequences referred to by Applicants must, in
Respondent's submission, obviously depend on ail relevant factors within
such country. It is accordingly denied that separation "inevitably" leads
'to racial prejudice.
In support of their allegation, Applicants cite two passages from
reports of the Committee on Information from Non-Self-Govcming
Territories 4. Neither of these expressions of opinion by the Committee
can, in Respondent's submission, validly be advanced as propositions
which have general application. They are, it is submitted, contradicted
by recent events in the United States of America, where it bas been
illustrated that a joint system of education, if not desired by all the
groups concerned, can increase and exaŒrbate "racial attitudes" and
"interracial suspicion" 5•ln South West Africa, as has been stated else
where 6 ,any attempted policy of integration is bound to cause prejudices
and strife.
1G.A. R.esoluticm 1698 (XVI), 19 Oec. 1961. G.A ., O.R., Sixteenth Sess., Suppl.
No. 17 (A/5100), p. 37, and G.A. Resolution 1850 (XVII), 19 Dec. 1962, G.A., O.R.,
Seventeenth Sess., Suppl.No. 17 (A/5217), p. 43.
2IV,p.398.
3 Ibid.,pp. 398-399.
4 Ibid.,p. 399.
' Vide sec. E, Chap. XI, supra.
6 Vidi,Il,pp. 457 etseq.,and IV, p. 382 (para. 62); videalso sec. E,sr,pra. REJOIXDER OF SOUTH AFRICA 1 57
F. The Proposition that Separation is Incompatible
witb "the Goal of Unification of the Territory" 1
9. It is alleged that separation in education is "incompatible with the
goal of a unified territory capable of striving toward self-government and
social progress" 2•To illustrate that "political organs" 1 of the United
Nations have so "determined" 1, Applicants quote a passage from a
report of the Trusteeship Council from which it appearsthat the Council,
in dealing with Tanganyika, stated that it had on a previous occasion
"expressed the opinion that the system of separate schools was an
obstacle to the evolution of a unified and integrated society, and that it
was important to bring together children of different races as soon as the
4
language barrier between them disappeared" •
In Respondent's submission the words used by the Council do not
support Applicants' broad and general allegation that separate education
is not compatible with the goal of "a unified territory capable of striving
toward self-government and social progress". The Council did not speak
of a "unified territory", nor of a "striving toward self-government and
social progress". It merely expressed the opinion that a system of separate
schools was an obstacle to the evolution of a unified and integrated
society.
Respondent has no serious quarrel with the logic of the Council's
opinion in so far as it concerns a country where the aim is-and such an
aim had been set in the case of Tanganyika 5-to establish a "unified and
integrated" society 6•The opinion bas no relevance, however, in the case
of a country where the aim is not to establish such a society but, on the
contrary, to preserve the separate identity of the various constituent
population groups.
m. Applicants say, further, that "[o]ne of the most important ques
tions concerning the relation of education to social unification bas been the
1 IV, p.398.
z Ibid. In the first paragraph at IV, p. 398, separation is said to be incompatible
with the "goal of unification of the territory".This ··territory" is not identified, and
"the" should probably read "a", as in the first sentence of paragraph (e).
' Ibid., p. 399 at footnote 4.
4 G.A .• O.R., Eleventh Sess., Suppl. No. 4 (A/3170), p. 61.
~ Ibid., p. 33. ln 1956 (the date of the report) Africans constitnted 98.6 percent.
of the total population (8,084,000 out of 8,195,700). The remainder were Asians,
Arabs and Europeans. Europeans (an estimated 22.500) oonstituted about 0.27 per
cent. of the total population. Vide figures ibid. ln 1958 the European population
was estimated at 20,619 (or 0.23 percent. of the total), of whom only about 3,000
were considered to be pennanently settled in the country: G.A ., O.R.• Thirteenth
Sess.,Suppl. l'\o. 4 (A/3822), pL In regard to the Council's opinion it may be pointed
out that in 1950 the Committee on Information expressed the view that "[d]ifferen
tiation in school facilities and programmes should not militate against the develop
ment of mutual sympathy and a feeling of common citizenship among the inhabitants
of a territory"-thereby implying that differentiation need not militate against
such feelings of sympathy and comrnon citizenship. Vide G.A., O.R., Fi/th Sess.,
Suppl. No. 17 (A/1303/Add. 1), Report approved by G.A. Resolution 445 (v), 12 Dec.
1950, G.A ., O.R., Fi/th Sess., Suppl. No. 20 (A/1775), p. 54.
ij"\\'hether suc-h aim bas proved to be in the best interests of the inhabitants, is
a different matter. Vide para. 2, supra. and sec. E, Chap. III, supra.158 SOUTH WEST AFRICA
problem of a suitable language of instruction" 1.They say that "[l]an
guage barriers have often been cited as an excuse for postponing inter
racial schools" 2,and cite a statement made by the Committee on Infor
mation in its 1950 report to the effect that "[t]he problem of the choice of
language in instruction, important and diffi.cult as it is, loses many of its
elements of conflict where there is a general conviction that the educa
tional system does not favour any section of the population at the ex
pense of others" 2.
Respondent points out that the Committee on Information did not
make the above-quoted statement in relation to what Applicants call
"social unification". The passage quoted is the first paragraph in a section
3
headed "Equal treatment" , and the Commission wished to indicate, in
Respondent's submission, that whilst there would be no "equal treat
ment" if the language of one group were used as medium of instruction in
schools where there were also children of other language groups, "elements
of conflict" would be reduced if there was a general conviction that
facilities were otherwise "equal". In this same report, as has been shown
before 4. the Committee expressed the view that equality of opportunity
did not necessarily entail "a common educational programme'', and that,
subject to certain requirements, respect should be paid to the wishes of
any group which was "desirous of separate school facilities for the
maintenance of its cultural heritage' '.
It is clear, in Respondent's submission, that the Committee on In
formation did not, as Applicants suggest, deal with languages of instruc
tion in relation to "social unification".
It may be noted that Applicants' approach involves the admission that
"social unification" in a heterogeneous situation will require the mernbers
of one or more groups to sacrifice the advantages of being taught in their
own language. Respondent would point out that it may involve a great
deal more, viz., the loss of a group's cultural heritage.
In regard to Applicants' reference to the Trusteeship Council's state
ment conceming education in Tanganyika 5, Respondent points out that
cornpletely separate systems were apparently still maintained at that
time (i.e., 1957). It appears from the report of the Council that it reminded
the Administering Authority of previous recommendations to unify the
educational system, and that the Administering Authority stated that
one of the main obstacles to their implementation was "the accepted
view ... that primary education should be given in the children's
mother-tongue" 6• The Administering Authority, as pointed out in the
passage quoted by Applicants, agreed that it was desirable that
English should be taught in the primary schools at the lowest :possible
levels, but its view apparently was that sound edncational princ1ples re
quired that instruction in primary schools should be in the pupils' mother
tongue.
1 IV,p. 399.
2Ibid., and vide U.N. Doc. A/r303/Add. I, p. r6.
3 U.N. Doc. A/1303/Add. 1,p. 16.
4 Vide para. 5, supra.
' IV, p. 399, footnote 7.
6 G.A ., O.R., Twel/th Sess., SupplNo. 4 (A/3595), p. 50 (para. 198). REJOINDER OF SOUTH AFRICA 159
1
G. Alleged Consideration of Practical Difficulties
II. Having dealt with views expressed by the "political organs" of the
United Nations in connection with the above-mentioned propositions,
Applicants make the following allegation:
"ln asserting the preceding standards required by the duty to
promote education in dependent territories, the various organs of the
United Nations have been entirely aware of the practical difficulties
involved in implementing them 2.''
It may be assumed that the "various organs" of the United Nations
have been aware of the practical difficulties involved in implementing
their requirements. Respondent would respectfully point out, however,
that the establishment of joint systems of education as at present required
by these organs involves much more than a mere question of practical
difficulties and the solution of such difficulties. It involves that children
who belong to a language group whose language is not chosen as the
common medium of instruction are deprived of all the generally admitted
educational, sociological and psychological advantages of mother-tongue
3
instruction •It involves, furthcrmore, that cultural groups may ultimate
ly suffer the loss of nothing less than their cultural heritage. Respondent
has shown in this regard that these same "political organs" recognized,
not so many years ago, that respect should be paid to the wishcs of every
group "desirous of separate school facilities for the maintenance of its
cultural heritage", but that this view has since changed into one which
demands joint education in ail circumstances 4•In stating this view, these
organs say that "on no ground whatsoever can education on a racial
basis be justified" 5,but it is clear that they do not condemn only such
separation as can properly be said to be based on race. In Respondent's
submission they unreasonably and unrealistically identify all separation
in education, even where based on the linguistic and cultural differences
which characterize racial groups in a country, with "education on a
racial basis". ln this regard Respondent says, furthermore, that it seems
most unlikely that they would have taken this line of consciously at
tempting to minimize the difficulties and problems involved in mixed
education if they had not been imbued with the overriding philosophy
and policy that there should be integration in the socio-political structure
of the various territories 6•
It may be pointed out in this connection that Administering Autho
rities from time to time informed the Trusteeship Council that separate
educational systems in the territories administered by them were not
based on race. Respondent cites two examples:
(i) In 1959 the following was reported in regard to Ruanda-Urundi:
"So far as discrimination in schools is concerned there are, at
the primary level, schools with an African syllabus, a school for
1
IV, pp. 399-400 and vide para, r,supra.
2 Ibid., p. 399.
3 Vide III, p. 377 and vide Chap. III, paras. r5 (a) and 21 (b), supra.
4 Vide paras. 5-7, supra.
' Vide para.. 6, supra.
6 Vide para.. 2,supra.160 SOUTH WEST AFRICA
Asians at Usumbura and schools run on Belgian lines. The Ad
nùnistering Authority explains that these distinctions are
prompted not by racial discrinùnation but by practical require
ments arising from the location of the establishments and from
profound differences in customs, education and, particularly,
language, which make a single common system of education
1
impossible ."
(ii) The following appears in the 1962 Trusteeship report in regard to
New Guinea:
"The great majority of bath mission and Administration
primary schools are classified as Primary 'T', and have a curri
culum specially designed for indigenous pupils. The others,
classified as Primary 'A', follow the primary school curriculum
of the State of New South Wales. The Admmistering Authority
states that the difference in schools is necessary because of the
wide variations in the respective cultural and educational
backgrounds of the students attending them 2."
12. lu dealing with the aforesaid political organs' alleged awareness of
the practical difficulties involved in complying with their requirements,
Applicauts refer, somewhat incongruously, to a statement by the Com
mittee on Information to the effect that there should be no separate
3
school systems • They say in this regard that "[i]t is clear that the
operative part of the Committee's statement is its insistence upon the
principle of equal opportunity" \ It does not appear from the passage
quoted by Applicants that this is so, but it seems clear from other
paragraphs in the report that the Committee thought that joint systems
of education were necessary to ensure equality in practice. It referred,
e.g., to the poor quality of indigenous primary schools in some terri
tories 5• As has been shown 6, the Committee held the view that
"whether or not it had been feasible to provide equally advantageous
facilities for each of the racial groups, it was liable to entail a multipli
cation of staff, effort and resources which no Territory appeared able to
afford".
With respect to the question of "practical difficulties", Applicants
quote a conclusion of the Trusteeship Council in regard to mixed schools
in the Cameroous under French Administration 7. On the strength of this
conclusion, for which no supporting evidence is mentioned in the Council's
report, Applicants say that it is a "fact" that "primarily separate schools
may quickly become completely inter-racial without increasing the
quantum of practical difficulties" 4. Rcspoudent submits that the said
conclusion establishes no such "fact", and, furthermore, that a con
clusion drawn from conditions in one territory is not necessarily valid
elsewhere.
1 G.A., O.R., Fourteenlh Sess., Suppl. Xo. 4 (A/4100), p. 58.
2 Ibid.,Sevenleenlh Sess., Suppl.No. 4 (A/yw4), p.27 (para. r41).
3 IV, p.400, quotation at footnote 2.
• IV, p.400.
5 G.A ., O.R., Fourleenth Sess., SupplNo. 15 (A/4II r), p.16 (para. 35).
6 Vide para, 6, supra.
7 IV, p. 400, quotation in footnote 4. REJOINDER OF SOUTH AFRICA I6I
H. Alleged Compliance with United Nations
Requirements
I3. Applicants state that "[t]he determination by the United Nations
that separate development in education is incompatible with the purposes
and principles of administration of dependent tcrritories has been fully
or almost fully complied with in every Non-Self-Goveming Territory
with the exception of South West Africa" 1, and they then proceed to
show how there has been compliance with "the requirements laid down
by the appropriate organs of the United Nations" in respect of various
types of education 2•
Respondent submits that it is in no way obliged to comply with the
said "requirements" in the case of South West Africa. lt says, further
more, that no real purpose can be served by an inquiry on its part into
the degree of school intcgration in the various territories mentioned by
Applicants 3•lt seems to Respondent, with respect, that the relevance
not to mention the propriety-of an inquiry by it as to compliance or
otherwise by other governments with ''requirements" or "standards"
which have becn laid down by United Nations organsin respect of terri
tories administered by such governments must be open to serions doubt 4.
ln the circumstances Respondent will deal but briefly with what is
stated by Applicants in support of their above-quoted allegation.
I4. Respondent submits, generally, that the evidence advanced by
Applicants does not seem, save in the case of university institutions 5.to
support the allegation that there has, in practice, been "full", or "almost
full" compliance with the said "requirements". The allegation would
seem to be an over-statement in the case of secondary education, and it
is certainly such in the case of primary education. This appears not only
from what is said in the relevant paragraphs in the Reply 6, but also from
the following passage in Part Two of the I960 rePort of the Committee
on Information from Non-Self-Governing Territones:
"From an early date in the period, ... efforts were made in a
number of Territories-of which those under French administration
provided a notable example-to abolish ail such [i.e., racial] distinc
tions in the public school systems. In others, the principle of inte
gration in educational facilities was proclaimed then or later,
although in most of these cases a policy of graduai application of the
principle, working downwards through the system from the univer
sity level, was applied. In the majority of these cases, the process
of integration had not, at the end of the period, penetrated far into
the secondary level, and the primarv schools remained almost
wholly separated. There also remained cases, as the Committee
1 IV, p. 401.
2 Ibid., pp. 4m-402.
l Ibid., pp. 401-402 in paragraphs (a) ta (e).
• It may be pointed out, also. that of the "dependent" territoriesmentioned or
referred to in footnotesby Applicants at IV, pp. 401-402, all save two (New Guinea
and Nauru-the latter being referred to in footnotg at p. 401) were independent
territoriesat the date of the Reply.
s IV, p. 401 (para.(a)).
6 Ibid.pp. 401-402 (paras. (b) and (,;)).162 SOUTH WEST AFRICA
pointed out in 1959, where separate systems were still maintained
as a matter of policy 1."
In regard to primary schools 2,Applicants say that "[a]part from South
Africa, no Adrninistering Authority has contested the principle of inter
racial schools on the prirnary level" 2• Respondent has already referred
to cases where administering authorities pointed out that joint education
at the primary stage was in conflict with the principle of mother-tonguc
instruction for young children, or that linguistic and cultural differences
made it impossible to have joint systems of education 3, and says that
Applicants' allegation is unfounded. To support their allegation, Appli
cants refer, firstly, to Ruanda-Urundi, but what they say in regard to this
Territory, whether correct or not, is in no way supported by the report
cited by them 4. They refer, secondly, to the Cameroons under French
administration, and say that "by 1957 all schools were open to students
5
of all races" •From the report referred to by Applicants it appears that
the Trusteeship Council commended the policy of the Administering
Authority "which has led to the establishment of schools open to students
of ail races" 6•This, it is submitted, doesnot support Applicants' sweeping
allegation as to "all schools".
In regard to vocational schools Applicants say that "[v]ocational
schools are increasingly established upon an inter-racial basis" 7,and they
refer to Tanganyika and the Cameroons under French Administration-
territories which have been independent for some time.
Two statements arc made in regard to Tanganyika. The first, relating
to the establishment of an inter-racial Technical Institute at Dar es
Salaam, is correct 8• The second, viz., that "[f]rom 1958 on, there was no
distinction as to race in any aspect of vocational training in Tanganyika'',
9
is not supported by the authority quoted •
In regard to the Cameroons under French Administration, the alle
gation is that inter-racial vocational schools were (or were about to be)
established at Yaoundé, Douala and Garua. The allegation is not sup
ported by tqe authority referred to 10•
15. Applicants say, furthermore, that "[i]n ail dependent territories
other than South West Africa, the general practice has been to narrow
the gap between European and indigenous teachers in all aspects of their
11
ernployment" •In proof of this sweeping statement as to the "general"
practice, Applicants refer to Togoland under French Administration, and
to New Guinea. In regard to Togoland they say that "[a]s early as 1949,
European and indigenous teachers . . . were placed on a completely
• G.A., O.R., Fifteenth Sess.. Suppl. No. 15 (A/4371), p. 51 (para. 239),
2 IV, p. 402 (para. (c) ).
3 Vide para. 6, supra.
• Vide IV, p. 402, footnote 4. The page of the report cited by them deals with
Tanganyika.
s Ibid., footnote 5.
6 G.A., O.R., Twelfth Sess., Suppl. No. 4 (Af3595), p. 144 (para. 286).
1 IV, p. 402 (para. (d)).
s Ibid., footnote 6.
9 Ibid., text at footnote 8 and report cited in footnote 8.
to Ibid.,footnote 7. The report mentioned by Applicants merely notes that "voca
tional schools have been or willbe set up" at the three places mentioned. No mention
is made of their racial character.
11 Ibid., p. 402 (para. (e) ). REJOINDER OF SOUTH AFRICA
equal footin1,(, and refer to a Trusteeship Council report in which it is
stated that' [a]s regards teacher-training, the annual reports stated that
under the arrêté of 18 December 1949, the staff had been reorganized
and European and indigenous teachers placed on completely equal
footing, the only distinctions made being on the basis of diplomas" 1•
It is not clear, in Respondent's submission, whether the report refers to
all teachers (as Applicants say), or only to teachers connected with
teacher-training establishments.
In regard to New Guinea, there is nothing in either of the two reports
cited by Applicants 2 to support their above-quoted allegation. The first
report in no way deals with conditions of employment of European
and indigenous teachers 3. From the second report cited it appears that
there were 236 non-indigenous and 565 indigenous teachcrs at Adminis
tration schools in the territory. Nothing is said of conditions of employ
ment.
It is clear, in Respondent's submission, that Applicants have in no
way established any "general practice ... to narrow the gap between
European and indigenous teachers in all aspects of their employment".
It is, furthermore, not correct to say that there has been no narrowing
of the gap between conditions of employment of European and Native
teachers in South West Africa 4•
I. Somaliland under ltalian Administration 5
16. Applicants conclude their Annex S by citing "the development
in Somaliland under Italian Administration" as an example of the
"promotion of the moral well-being and the social progress of all the
inhabitants, of a territory by implementing non-discrimination in
6
education" • Their reasons for choosing this territory as an example
are stated to be the following:
"Somaliland is chosen because Italy was faced with natural
obstacles exceeding those of South West Africa when Somaliland
was made a Trust Territory on 2 December 1950. The Somalis were
nomadic people to a degree far greater than that of the indigenous
inhabitants of South West Africa. The population density was
extremely low (two persons per square kilometer). Finally, unlike
South West Africa, Somaliland was very poorly endowed with
natural resources, and as a result the Territory could ill afford high
expenditures on education 5."
Particulars of this nature would no doubt have been relevant if they
had been followed by evidence of increased educational facilities or
1 G.A ., O.R., Sixlh Sus., Suppl.No. 4 (A/1856), p. r99. It may be pointed out that
in I947 there was a European population of r,082 in the Territoryas against 943,364
Africans. Two years later the respective figures were Europeans 841, Africans
970,983 (vide G.A., O.R., Fifth Sess., SupplN'o. 4 (A/z306), p. So).
2 IV, p. 402, footnote Io.
3 Applicants, referencemaybetoG.A.,O.R., FifteenthSess.,Suppl.No.4 (A/4404),
p. 145, where it appears that I 1non-indigenous teachers took up employment at
indigenous schools. But nothing is said of conditionsof employment.
4 Vide III,pp. 456 and 505,in regard to salary increases in the case of European
and Native teachers; vide also pp. 532-533.
" IV, pp. 402-403.
6 Ibid., p.402. SOUTH WEST AFRICA
increasing school attendance figures, but their rclevance to the only kind
of "development" mentioned by Applicants, viz., the presence of a few
hundred Somali children in Italian, Ind.ian and Pakistani schools 1 , is
not apparent, and is not explained by Applicants.
Applicants say that "[aJt the outset of the Trusteeship period, pefüions
filed before the Trusteeship Council claimed that Somali and Italian
1
pupils in elementary schools were completely segregated" , but their
allegation is not supported by the report they cite 2• It appears from this
report that Somali students were admitted to ltalian schools "following
an entrance examination" 3,and that the Administering Authority stated
that "pupils were admitted without discrimination to all schools in
Soma1iland" 3•
The figures of Somali pupils attending non-Somali schools, as cited by
Applicants 4,are correct. It appears from the relevant reports, however,
that what Applicants call "Italian" schools were, in fact, Italian, Indian
and Pakistam schools 5 • Respondent points out, furthermore, that the
distinction between Italian and Somali schools was maintained through
out the period of trusteeship, and that the former, which were attended
principally by ltalian children, offered the metropolitan curriculum,
whereas the latter were "adapted to the particular rcquirements of the
6
population of the Territory" • The Italian population, always a small
part of the total population of the Territory 7, fell from 4,858 in about
1955 to 2,331 in about 1958 9•
17. Reports of the Trusteeship Council reveal the following particulars
in regard to school enrolments in Somaliland during the trusteeship
period:
In 1950-1951 there was a total enrolment of 7,479 in all scbools 10 i.e.,
about r.5 percent. of the school-agepopulation 11. In 1954-1955,when the
total number of school children stood at II ,219 12,the representative of one
country remarked at a meeting of the Trusteeship Council on the con
siderable increase in elementary school enrolment 13, while the represen
tative of another country noted that "only some 4 percent. of the school-
1
IV, p. 403, and vide infra.
2 Ibid., footnote 5. The page of the report cited deals with another territory. If
App!icants' reference was intended to be to p. 97 of the report, this page also does
not support their allegation.
3 G.A .O.R., Si:rth Sess., Suppl. No. 4 (A/r856), p. 97.
4 IV, p. 403.
' G.A ., O.R., Tenth Sess., Suppl . .No. 4 (A/2933), at p. r40; and G.A ., O.R., Twelfth
Sess. Suppl. No. 4 (A/3595), p. 97.
6 Vide ibid., Sixth Sess., Suppl. No. 4 (A/r856), p. 97; G.A ., O.R., Tenth Sess.,
Suppl. No. 4 (A/2933), p. 140; G.A., O.R., Fou~teenth Sess., Suppl. No. 4 (A/4100)
p. 86.
1 About 0.3 percent. in 1950. Vide figures in G.A ., O.R., Sixth Sess., S4ppl. No. 4
(A/1856), p. 81.
8 G.A ., O.R., Tenth Sess., Suppl. Xo. 4 (A/2933), p. 107.
9
Ibid., Fifteenlh Sess., Suppl. No. 4 (A/4404), p. 86.
10 Ibid., Sixth Sess., Suppl. No. 4 (A/1856), p.97. The report states that attendance
was "noticeably lower than the enrolment figures". (Ibid.)
11 Ibid.,p. Sr, for population figures. The percentage calculation is on the assump
tion that school-age children constitute 23 percent. of the total population. (Vide
Ill, p. 444.)
12 G.A ., O.R., Tenth Sess., Suppl. No. 4 (A/2933), at p. 140.
13 Ibid., p. 142. REJOINDER OF SOUTH AFRICA
age children attended school" 1.In I956 it was noted by a member of
the Council that "[e]ven from the city po;mlation only I7 per cent. of
children of school age attended school" . ln I957 a United Nations
Visiting Mission noted "that the enrolment of children in schools was
low, being I2,557 in I956-I957, while the target of the five-year plan
had been 22,080" 3• ln I958-1959 total enrolment in all schools in the
country increased to about 18,600 4.
I8. As appears from all the aforegoing, Applicants have in no way
demonstrated how "implementing non-discrimination in education"
promoted "the moral well-being and the social progress of all the in
habitants" of Somaliland under ltalian Administration. Beyond showing
that a few hundred Somali students attended ltalian, lndian and Paki
stani schools, Applicants have failed to show how the implementation of
"non-discrimination" played any part at all in the devclopment of
education in that country.
1 G.A .• O.R., Tenth Sess., Suppl. No. 4 (A/2933), p. 142.
2G.A ., O.R., Eleventh Sess., Suppl. Xo. 4 (A/3170), at p. 115. In this year,also,
the Council, remarking on the continued use of languages other than the children's
mother tangue, viz., Somali,as the medium of instruction, drew the attention of the
Somali Govemment to the view expressed by Unesco that "many experiments in
this :field conducted in varions countries ... have shown that the use of languages
other than the mother tongue in primary education rcduces the effectivencss of the
instruction given and tends to discourage pupils from pursuing their studies".
(Ibid .. p. II2.)
3G.A., O.R., Fourleenth Sess., Suppl. No. 4 (A/4100), at p. 86 (para. 227). The
school age-population in 1957 was estimated by Unesco at 225,000 children between
5 and 12 years old. ( Ibid.)
4 Ibid., para. 228. SECTION H
The Economie Aspect
CHAPTER I
INTRODUCTION
I. In the l\Iemorials Applicants dealt with the economic situation in
South West Africa in two separate parts headed, respectively, "Well
Being, Social Progress and Development in Agriculture" and "Well
Being, Social Progress and Development in lndustry". At the end of
each of the said parts Applicants forrnulated a concluding charge l,
In essence each of these charges was one of a "deliberate, systematic
and consistent course of conduct" which not only failed to promote to
the utmost the well-being of the Native population of South West Africa
but, on the contrary, had the very opposite effect, namely that it "in
hibit[ed] [their] well-being", "prevent[ed] [their] social progress and ...
development", and "reverse[d] possibilities of social progress [for them]
into a steady rcgression'' •
In other words, Respondent here also stood indicted of improper
mobves, i.e., of exercising its powers of administration w:ith the un
authorized abject of preventing progress on the part of the Native
population, and even of reversing possibilities of progress for them.
Upon this understanding of Applicants' case 2, Respondent in the
Counter-l\Iemorial 3 dealt in detail with the aspects of well-being, social
progress and development relating to the economic position of the
inhabitants of the Territory, and particularly of the Native inhabi
tants.
2. In keeping with their reaction generally • to the manner in which
Respondent met their case in the Counter-1\:Iemorial,Applicants in the
Reply attempt to widen their charge also in respect of economic con
dit10ns in the Territory by reliance on an alleged "norrn of non-discrimi
nation or non-separation", although not expressly mentioning it by that
name.
Thus, in the introduction to their treatment of the economic aspect
in the Reply, Applicants first inforrn the Court that "Respondent's
purported explanations of the particular measures by which it effectuates
the policy of apartheid evade Applicants' central point ... ", and that
Respondent's "characterization" of Applicants' case "misses the central
point at issue" 5•The Courtis then told that Applicants' "central point"
1sthat "... the policy of apartheid itself violates Respondent's obligation
to promote the well-being and progress of the inhabitants of the Terri-
1 I,pp. II7 and 130.
2 Vide II, pp.392-395.
3 III, pp.2-103.
• Vide Part Ill, sec. A, paras2-10, supra.
5 IV,p. 404. (Italics added save for the word "apartheid".) REJOINDER OF SOUTH AFRICA
tory" 1• And the reason advanced by Applicants for thls contention is
that-
"... the inherent evil of [apartheid] lies in the allotment of status,
rights, duties, opportunities and burdens on the basis of membershlp
ina 'group' ortribe 1".
This proposition is later repeated with reference to the following state
ment in the Counter-Memorial, which, according to Applicants, reflects
the "premise underlying" Respondent's "apartheid policies", viz.,
"In the history of the Territory there has at ail times been social
separation between these groups, and experience has shown that
members of each group prefer to associate with members of their
own group, and that certain kinds of contact between members of
these groups tend to create friction ."
Applicants say that "such a premise and policy is (sic) wholly repugnant
to Respondent's obligation to promote the well-being and social progress
ofthe inhabitants of the Terri tory" 3•
Admittedly the policy of separate development applied in South West
Africa basically involves differentiation between the various population
groups in the Territory; but it is denied that the said policy can, by
reason merely of such differentiation, be regarded as repugnant to Re
spondent's obligation to promote thewell-being and progress of the inhab
itants of the Territory. In this regard Respondent refers to what has been
stated in section C of this part of the Rejoinder with regard to Applicants'
alleged legal norm of "non-discrimination or non-separation".
3. It is apparently on the basis of their reliance upon the said norm
that Applicants seek to exclude from consideration much of the infor
mation submittcd by Respondent in the Counter-Memorial. Thus they
state that-
"[s]pecific measures of implementation of the general policy of
apartheid, or separate development, merely illuminate and confirm
the nature and consequences of that policy .. .1'',
and that such measures are "highly relevant" but, apparently, only in so
far as they "give dimension and effect to that policy" 1. Whatever all this
might mean, it seems to be intended to provide the basis for Applicants'
further averrnents that "the bulk of the Counter-Memorial, including
Book V [which deals, inter alia, with the economic aspect] is concemed
with largely irrelevant minutiae" 1,and that "little if any purpose is
served by Respondent's lengthy examination of the details of restrictive
laws and regulations designed to effectua te that policy" 3•
In so far as Applicants rely on the aforementioned norrn, it would
indeed be unnecessary for them to go into details of measures which
admittedly involve differentiation as between ethnie groups and their
members. But in so far as Applicants persist in the charges of improper
motives advanced in the Memorials, it is hard to see how any information,
however detailed, which can throw light on Respondent's real motives,
can be regarded as irrelevant.
1 IV, p.404.
2Ill, p.55 and IV, p. 405.
3 IV, p.405.168 SOUTH WEST AFRICA
4. Applicants indeed proceed, as m regard to other aspects of their
case conceming their Submissions 3 and 4, to advance factual allegations
that would be unnecessary and irrelevant in the event of reliance solely
upon the alleged norm of "non-discrimination or non-separation". They
rely here also on so-called "current norms" 1 and "recognized stand
ards" 2, against which, it is contended, Respondent's policies and
practices should be measured. In this regard Respondent refers to what
has already been stated in general regarding the relevance of such vague
and undefined norms and standards to the matters in issue 3•Respondent
deals later with the specific allegations made by Applicants when sceking
to apply these so-called "norms" or "standards" to certain aspects of
Respondent's economic policy 4•
5. Applicants further persist in the Reply with a charge that Respond
ent's legislative measures and administrative acts relative to the econo
mic aspect are purposely directed at preventing the progress and develop
ment of the Native inhabitants of the Territory.
In this respect Applicants sta te in the Reply:
"Furthermore, as in the case of restrictionsupon rights of residence
and movement, Respondent's major premise conceming the role
and place of the 'Native' in the Police Zone infects specific measures
of economic apartheid with an unacceptable design 1." (Italics added
and footnote omitted.)
In support of this contention the following is advanced:
"Thus, Respondent explains its policy of dealing with 'idle per-
sans' in the PoJice Zone on the basis that~
'... it involves removal from an area in which their presence
serves no purpose in the absence of willingness to work, to a place
which is their real home. These considerations do not apply to
White or Coloured persons whose only real home may be in urban
and proclaimed areas '.'
Respondent thus by fiat and by policy denies to the vast majority
of the inhabitants of the Territory, including those spending a large
part of their working lives in the Police Zone, any possibility of a
'real home' in 70 per cent. of the Territory (whatever the quoted
phrase signifies) 6." (Footnote omitted.)
It isto be noted that this charge, although concemed with measures
irnplementing Respondent's policy, is advanced by Applicants in out
lining their case in the "Introduction" to their treatment of "The Eco
nomie Aspect". In the circumstances Respondent feelsconstrained to deal
with it at once, and to point out that the charge, and the conclusion of
"unacceptable design" derived therefrom, rest on nothing more than a
rendering out of context, distortion and unwarranted general application
of an explanation given by Respondent in the Counter-Memorial with
regard to a particular Jegislative measure.
The explanation in question was concerned with a provision in the
1IV, p. 413.
2 Ibid., pp. 417-418.
3 Vide sec. C, paras. 32-39, supra.
4 Vide Chap. II. paras.95-103,and Chap. IV, paras. 1-7, infra.
J Quoted from Ifl, p. 218. ftalîcs added by Applicants.
6 IV, p. 405. REJOINDER OF SOUTH AFRICA
Native (Urban Areas) Proclamation of I951 1,which empowers a Native
Commissioner or Magistrate, who has upon due enquiry declared a
Native within an urban or a prodaimed area to be an idle person 2, inter
a!.ia,to order that such Native be removed from the urban or proclaimed
area and sent to his home 3.
As will be sbown hereinafter, this provision is applicable, in so far as it
concems persons who could be affected thereby, to only a small number,
namely idle Natives in urban or proclaimed areas who have homes
elsewhere, and it is operative only in respect of a very small part of the
Territory, namely the urban and proclaimcd areas.
6. There are at present in South \Vest Africa 30 "urban areas", 21 of
which have been declared "proclaimed areas" in terms and for the pur
poses of the said legislation 4•The total extent of land in respect of which
the provision in question is operative is 394,688 hectares 5,representing
0.69 percent. of the Police Zone, or 0.48 percent. of the whole Territory.
The total Native population of the said areas at present is 70,459 5•It is,
of course, impossible to detennine how many Natives within the said
areas are potentially idle pcrsons who, having their homes elsewhere, are
liable in tenns of the provision in question to possible removal from such
areas to their homes. In fact, however, only 5 Natives have, in tenns of
the said provision, actually been renwved from urban or proclaimed areas
5
as idle persons over the last five years •
In the light of the above, it is clear that Applicants have misused
Respondent's explanation, which they quote in the Reply. Whereas the
provision in question is operative only in respect of a very limited part of
the Territory, i.e., the total extent of urban and proclaimed areas, repre
senting 0.48 percent. of the whole Territory, Applicants for the purpose
of their argument simply extend its operative effect to "70 per cent. of
the Territory" 6• And, whereas the provision potentially affects only a
very Jimited number of persons, i.e., idle Natives in the urban and pro
claimed areas who have homes elsewhere, Applicants for the purpose of
their argument simply render it applicable to "the vast majority of the
inhabitants of the Territory, including those spending a large part of
their working lives in the Police Zone" 7•
In the premises, it is clear that Applicants' allegation that
"Respondent thus by fiat and by policy denies to the vast mafOTity
of theinhabitants of the Territory ... any possibility of a _'realhome'
in 70 per cent. of the Territory 8" (italics added),
rests upon a distorted version of Respondent's explanation, and that the
• 1 Proc. No. 56 of 1951. sec. 26 in The Laws of South West Africa r95r, Vol. XXX.
pp. q4-146, as amended by Ord. No. 25 of 1954 in The Laws of Sortth West Africa
r924. Vol. XXXIII (Il), pp. 736-752.
For the definition of an "idle person" in the said legislation, vide III, p. 215.
3 Ibid.,p. 215.
• AU the proclaimecl areas are in fact urban areas; there are no other proclaimed
areas.
5 Departmental information.
6 IV, p. 405. No indication is given as to the manner in which Applicants have
calculated this percentage.
1 Ibid. Ina footnote Applicants aver that the latter admittedly number more than
170,000 and they refer to II, p. 402. The figure of 170,720 there given was the total
Native population of the whole of the Police Zone according to the 1960 Census.
s IV, p. 405.IJO SOUTH WEST AFRICA
allegation is false. It is hardly necessary to add that Respondent denies
Aoolicants' further contention tbat-
"... Respondent's major premise concerning the role and place of
the 'Native' in the Pobce Zone infects specific measures of economic
apartheid with an unacceptable design 1",
a contention in support of which Applicants, in the present context,
advance nothing other than the false allegation aforementioned.
In so far as Applicants' contention regarding improper motives on the
part of Respondent is repeated later in the Reply relative to particular
policies or measures in the economic sphere, Respondent will deal there
with in answer to Applicants' specific allegations.
7. The rest of Chapter IV B.3.c.2 of the Reply is devoted to an attack
by Applicants on Respondent's economic policies, and to criticism of par
ticular economic measures and conditions. Applicants <lividetheir treat
ment thereof under the following heads:
General considerations 2•
The reserves 3•
The Police Zone 4.
Conclusion 5•
In reply to Applicants' allegations under the above heads, Respondent
will in the succeeding chapters follow the order in which the said allega
tions appear, save where a particular matter is raised by Applicants
under more than one of the aforementioned heads, in which case it will
be convenient to deal therewith comprehensively under one of the said
6
heads only •
8. Before proceeding to deal with Applicants' specificcharges, Respond
ent makes the following general observations:
(a) In their treatment of the economic aspect, as in their treatment of
other aspects of government, Applicants in the Reply also criticize
policies and conditions in South Africa. Respondent has already
explained its attitude in this regard, and the approach which will
be followed in answering Applicants' averments 7• The economic
sphere, in particular, is one in which the conditions prevailing in
South Africa differ in many respects from those in South West
Africa, and in which the policies applied in South Africa cannot be
properly evaluated without a complete picture of the economic
conditions prevailing in the Republic, and without a systematic
and detailed explanation of such policies and their application-a
7
task which, for reasons already stated ,will not be undertaken by
Respondent. Respondent will, however, in keeping with the ap-•
proach which has been indicated, deal with Applicants' specific
allegations relative to economic policies and conditions in South
Africain order to meet Applicants' criticisms in as brief a manner as
1
IV, p. 405.
i IV, pp. 405-414 and also Annex 6 (1), pp. 426-430.
3 Ibid., pp. 414-417.
• Ibid., pp. 417-424 and also Annex 6 (2), pp. 431-438.
' Ibid., pp. 424-425.
• The parts of the Annex referred to in footnotes 2and 4, sup,a. will bedealt with
under the heads to which their contents relate.
1 Vide sec.A, para. 24, supra, and sec. D, supra. REJOINDER OF SOUTH AFRICA r7r
possible, without entering into a systematic or detailed discussion of
such policies or conditions.
(b) Also in the part of the Reply now under consideration Applicants
have raised new complaints . ln this respect the remarks contained
in section D, supra, apply, viz., that although in its submission not
obliged thereto, Respondent will for the sake of completeness
answer such complaints in this Rejoinder, but that in the nature of
things its treatment thereof cannot be as complete as it would have
been had these complaints been raised properly and timeously.
1 E.g., complaints relative to alleged "cheap" or "low-cost" labour (IV, pp. 406
and 408} and complaints relativeto legislativemeasures such as the \Vorkmen's
Compensation Act, No. 30 of r94r (ibid .• p. 416), the Social Pensions Amendment
Ordinance No. 2of 1962 (ibid., p. 417), and the Motor Carrier Transportation Act,
No. 39 of r930 (ibid., p. 420). CHAPTER II
GENERALCONSIDERATIONS
A. Introductory
r. In this Chapter Respondent deals with the various matters discussed
by Applicants in Chapter IV B.3.c.2.(B) of the Reply under the heading
"General Considerations" 1, which matters can for convenience be
grouped under the following heads:
(a) Applicants' allegations regarding the "structural fonndation" and
"premise underlying" Respondent's policy of apartheid.
(b) Migratory labour in South West Africa and the implications thereof.
(c) Applicants' allegations regarding low wages in the Territory.
(d) The rights of Natives in respect of the acquisition and occupation
of land.
(e) The position of Natives in the mining industry.
(/) The opportunities of employment for Natives in the Railways and
Harbours Administration.
(g) Applicants' allegations regarding a policy of ''laissez-faire with re
spect to tribalism".
(h) Applicants' allegations regarding economic conditions in dependent
territories 2_
Respondent will, in dealing with Applicants' allegations, follow the
order indicated above.
B. Applicants' Allegations regarding the "Structural
Foundation" and "Premise Underlying" Respondent's
Policy of Apartheid
2. This tapie is introduced as follows in the section of the Reply nnder
consideration:
"Respondent's policy of apartheid, as applied to the economic life
of the inhabitants of the Territory, rests, as has been shown, upon
the same structural foundation, and reasoning as does Respondent's
policy of apartheid in education 3."
Later in the same section of the Reply this allegation is repeated in the
following terms: "Economie apartheid is necessarily based upon the
same major premises as is educational apartheid" ~. And the "premise
nnderlying [Respondent's] educational and other apartheid policies" is
described by Applicants with reference to the followmg statement made
by Respondent in the Counter-Memorial:
"ln the history of the Territory there has at all times been social
separation between these groups [the European and Native popula-
1 IV, pp. 405-414.
i Ibid., Annex 6 (r),pp. 426-430.
3 .Ibid.p. 405.
• Ibid.,p. 407. REJOINDER OF SOUTH AFRICA 173
tion groups], and experience has shown that members of each group
prefer to associate with members of their own group, and that cer
tain k.inds of contact between members of these groups tend to
create friction 1."
This statement was made by Respondent in explaining the reasons
underlying certain provisions in the mining regulations of the Territory,
in accordance with which there is separation between the European and
Native population groups employed in certain posts in the mining indus
try. The statement is correct as far as it goes, but is not, and was not in
tended to be, a full exposition of the circumstances and considerations
which influence and shape Respondent's policies generally in regard to the
administration of the Territory. Such an exposition was given in another
2
part of the Counter-Memorial ,where Respondent dealt fully with the
particular circumstances of the Territory; with the ethnie, linguistic and
cultural differences between the varions population groups; with the differ
ences in stages of advancement attained by them; and with their develop
ment, against the background of history, on the basis of separation be
tween thegroups. It is inthe light of ail these circumstances and considera
tions that Respondent's policies and practices in South West Africa are
to be seen and evaluated.
Such policies, for the reasons stated by Respondent, do involve the
adoption of mcasures which recognize, and as far as is practicable give
effect to, the principle of separate development of the different groups,
and to their wishes in that regard. This applies in ail spheres of adminis
tration--educational, economic and other. In this sense it is correct to
say that a general or common premise underlies Respondent's "education
and other apartheid policies" in South WestAfrica, and that "Respondent's
policy of apartheid, as applied to the economic life of the inhabitants of
the Territory, rests ... upon the same structural foundation and reasoning
as does Respondent's policy of apartheid in education" 3•
3. However, Applicants' conclusions as to the effect of, and the in
tention underlying, the application by Respondent of its policy to the
economic life of the inhabitants of the Territory, are as unwarranted as
are their conclusions relative to Respondent's educational policy.
In this regard Applicants say-without any justification, in Respond-
ent's submission-that-
"[t}he education received by the 'Native' child prepares the 'Native'
adult for his distinctive role in the economic life of the Territory,
that of agricultural or industriallabourer ... Denial of equality m
the educational sphere leads to a denial of equality in all other
spheres, not only as a conscious continuation of 'the deliberate design
that pervades the several parts' of the life of the Te"itory, but also as an
inevitable consequence of the lack of educational training. Educa
tion and economic status are inseparable, as are economic statusand
political rights and opportunities •." (Italics added and footnotes
omitted.)
Respondent of course accepts the proposition that there is a necessary
1 IV, p.405 as quoted in Ill,p. 55.
2 III,pp. 399-488.
3 IV, p. 405.
• Ibid.,pp. 405-406.I74 SOUTH WEST AFRICA
and close relationship between education and economic status, and that
denial of opporlunities in the educational sphere must lead to a denial
of opportunities in the economic sphere. The question, however, is
whether the application of Respondent's policies is intended to have, and
in fact have, the alleged effect. Indeed, Applicants' complaint is not only
that Respondent's educational policy as applied in the Territory has the
effect of denying opportunities in education, and therefore economic
opportunities, to the Natives, but that Respondent's policy is designed
to have that effect. Thus they speak of the "distinctive role[of the Native]
in the economic life of the Territory, that of agricultural or industrial
labourer", for which the "education received by the 'Native' child pre
paresthe 'Native' adult",andof a "deliberatedesign"to that end 1• (Italics
added.)
4. ln support of the aforementioned charge Applicants quote the
Committee on South West Africa to the effect that-
"... beyond some minor teaching and menial positions at the
lowest levels, their training and education seems (sic)directed merely
to preparing the 'Natives' as a source of cheap labour for the benefit
of the 'Europeans' 2". (Italics added.)
This statement appears in the 1g60 report of the said Committee,
which, although dealing, inter alia, with educational conditions in South
West Africa, contains no factual averments wbich could justify this
conclusion. In fact, the Committee had before it the report of the 1958
Commission of Inquiry into Non-European Education in South West
3
Africa ,which described in detail the then existing conditions relative to
the education of the Native and Coloured groups in the Territory, and
which contained proposais for extending and improving facilities for the
said groups. The report of the Commission in itself belles the charge that
opportunities in education are denied to the Natives, and that Respond
ent's educational policies and practices are directed to that end. Re
spondent can only conclude that the Committee on South West Africa
must, in making the aforementioned charge, have been influenced by
false and preposterous allegations contained in petitions submitted to the
United Nations by organizations and individuals, or made in oral state
ments by petitioners who appeared before the Committee. Thus, in its
report the Committee cited from petitions to the effect that the object of
the system of "Bantu Education" was to "teach African children from
childhood that they are inferior to 'Europeans'" 4, and that the said
system had been "introduced by the Union Govemment in order to
prevent the people from reading books and newspapers through which
5
they might be informed about the world situation" •
5. Although both these accusations are so preposterous and palpably
1
IV, pp. 405-406.
2 Ibid.,p. 406, as quoted by Applicants from G.A .. O.R .. Fifteenth Sess., Suppl.
No. 12 (A/4464), p. 56.
' Report of the Coinmission of Inquiry inlo Non-European Education in South West
Africa (1958),unpublished.
• G.A ., O.R., Fifteenth Sess., SuppNo. 12 (A/4464),p. 54. This statcment in the
petition of Senior Headman (also referred to as chief} Hosea Kutako was also
referred to by Applicants iu1, p. 158, and was dealt with by Respondent in Ill,
pp. 531-532.
s G.A ., O.R., Fi/teenth Sess.• SupplNo. 12 (A/4464), p. 54. REJOINDER OF SOUTH AFRICA 175
false as to merit no discussion, the Committee on South West Africa
attached sufficient importance thereto to record them in its report. In
this regard Respondent draws attention to similar false or exaggerated
statements made by petitioners to the United Nations, inter oJia, with
regard to educational and economic conditions in South West Africa,
which statements were relied upon by Applicants in Chapter VI of the
Memorials, headed "Supplemental Material in regard to the alleged
violation by the Union of Article 2 of the Mandate". Respondent dealt in
the Counter-Memorial 1 with the extracts from the petitions cited by
Applicants, and demonstrated not only that the accusations made were
for the most part false, exaggerated or rnisleading, but also that such
petitions emanated largely from what may be called a group of "pro
fessional petitioners", united by a common purpose to end Respondent's
2
administration of South West Africa by all means •
In this regard it is significant that the petitions which, in the words of
the Comrnittee on South West Africa, were "taken into account by [it]
during its examination of conditions in South West Africa" 3. appear on
the whole to emanate from the same sources 4as the petitions upon which
Applicants sought to rely in their Memorials 5•
It is therefore strange that Applicants in the Reply should place
reliance upon the conclusions of the Committee on South West Africa,
which appear to be based, at least to some extent, on the allegations of the
said petitioners, whereas Applicants have not even attempted to refute
or even to deal with the submissions made by Respondent in the Counter
Memorial relative to such petitioners and to their accusations.
The conditions in the Territory relative to the education of Natives,
and the facilities and educational opportunities provided for them, have
been dealt with fully in ·the Counter-Memorial 6, and have again been
treated of in section G of this Rejoinder.
In the light of what has been stated, Respondent emphatically denies
the unwarranted conclusion of the Committee on South West Africa that
"their training and education seems directed merely to preparing the
'Natives' as a source of cheap labour for the benefit of the 'Europeans' ", 7
and points out that Applicants themselves offer no evidence in support
of the conclusion.
6. Respondent likewise denies the charge made by Applicants that
the education received by the Native in South West Africa prepares him
for a "distinctive role in the economic life of the Territory, that of agricul
tural or industrial labourer" 8•
Not only is this accusation contradicted by evidence furnished re
garding the educational facilities and opportunities actually provided for
1
IV, pp. I-46.
2 Ibid.,p. 46.
3 C.A., 0.R., Fifteenth Sess., Suppl.No. 12 (A/4464), p. 7.
4 Ibid., PP· 7-8.
' I, pp. 167-I80.
6 Book VII (III).
7 With regard to the Committee·s allegation of "cheap labour", vide paras. 43
et seq., infra.
f> IV, p. 400. Vide also in tbis connection the allegation made by the Special
Committee on South ,vest Africa, as quoted by Applicants at IV, p. 408, viz.,
" ... except for a few minor activities in [the] townships or locations [the Natives]
have no economic possibilities other than wage labour".176 SOUTH WEST AFRICA
the Native groups of South West Africa, both in the Territory itself and
in South Africa, but it is also contradicted by the stage of advancement in
fact attaincd by many Natives of South \Vest Africa in the cconomic
field.
There is not, as Applicants allege, a "distinctive role" intended for the
Native "in the economic life of the Territory". It is true that the majority
of the Natives who are wage-earners are employed as semi-skilled and
unskilled workers in enterprises established by European initiative, but
this is not so by reason of a denial of educational or economic opportuni
ties to them. It is due to the fact that the Natives generally are still on a
path of transition from a traditional economic and social system to a
modern one.
Respondent has already demonstrated the progress made by many
Natives in advancing from the limited role generally played by Natives
in the economy of the Territory at the inception of the l\Iandate 1 to
increased participation at progressively higher levels in agriculture 2,
industry 3, commerce 4.and the general administration of the Territory s.
In further eJucidation thereof, the foJJowinglist bas been compiled of
occupations held by Natives in the Territory not employed as labourers or
engaged in farming acti vities 6:
No.
I. Professional, technical and related worker . .
1,348
2. Administrative, executive, managerial worker. 140
3. Clerical worker . . . . . . . . . . 2I2
4. Sales worker . . . . . . . . . . . . . 606
5. Miner, quarryman and related worker .. 64
6. \Vorker in transport and communication . 1,038
7. Craftsman, production worker 2,040
8. Service, sports and recreation worker 14,597
9. Fisherman, lumberman, hunter, etc.. 1,185
21,230
lt will be observed that the number of Natives in the aforementioned
occupations totalled 21,230, which figure represented 4.95 percent. of the
total Native population of 428,575 in 1960, and 12.69 per cent. of all
6
Natives economically active in that year (167,344) •
That Respondent's policy has been directed not only at creating
increased economic opportunities for the Natives, but also at protecting
the Natives in their own areas against competition by Europeans, is
clearly evidenced, not only by the general exclusion of Europeans
from the Native reserves, but also by the protective measures adopted
for the benefit of the Natives in the townships occupied by them in the
7
urban areas of the Territory •
Extension of Respondent's policy of separate development through a
system of homelands for the different population groups, as proposed by
1 Il, pp.404-414.
2 Ill,pp. 1-39.
3 Ibid.,pp. 40-100.
• Ibid.,pp. 101-103.
' Ibid.,pp. 139-166.
6 Departmental information.
1 Vide III,pp. 102-103. REJOIXDER OF SOUTH AFRICA 177
the Odendaal Commission 1, would, in Respondent's submission, lead
to ever-increasing opportunities for the Native at all levels, as much in
the economic sphere as in others.
In the Reply Applicants have, save for repeating criticism of certain
particular measures or conditions relative to the economic aspect-which
criticism will be dealt with hereinafter-not thought fit to traverse the
factual ground covered by Respondent in Book V of the Counter-
1\iemorial. They simply brush it aside as being "concerned with largely
irrelevant minutiae" 2•In the result nothing has been advanced by Appli
cants in the Reply to support their charge that there is a "deliberate
design" on the part of Respondent to relegate the Native in South West
Africa, in so far as the economic life of the Territory is concerned, to
the "distinctive role" of "agricultural or industrial labourer" 3, save the
view expressed by the Committee on South West Africa, which, for the
reasons aforestated 4,must be rejected.
7. Although their intention is not clear, Applicants seem to suggest 5,
with reference to an extract from the report of the Commission on
Native Education 1949-1951 (the Eiselen Commission), that there is
a lack of educational training in the Territory. In the first place, the said
Commission dealt with Native education in South Africa, and not with
conditions in South West Africa.
Secondly, the quotation from the Commission's report, which can be
misleading if read in isolation, does not, when read in its context, in any
way support a view that there is a lack of educational training of the
Natives. In the part of the report referred to by Applicants, the Commis
sion mentioned the desire on the part of the Bantu in South Africa to
have the same curricula and examinations as are found in European
schools, with the abject of obtaining the same educational certificates as
the Europeans. The Commission explaincd that the desire for the same
certificates by the Bantu had an economic motivation, based upon a
reasoning that without equal certificates the Bantu would not have a
daim to equal pay.
The Commission fully realized the relationship between education and
economic opportunities, but said in this regard:
"The enunciation of an economic policy lies beyond the scope of
the work of this Commission. Attention, however, must be drawn to
the fact that much of what is taught and learnt in Bantu schools is
never applied in practice, because the economic incentives which
should operate when children leave school are either absent or of
such a nature as to undo the work of the schools. The reform of these
economic conditions cannot be the fonction of an Education Depart
ment, but the success of the work of the schools is dependent upon
the existence of social and economic opportunities for absorbing
6
the products of the schools .''
Contrary, therefore, to what Applicants suggest the Commission did
not find that there was a "lack of educational training". It felt that
1 Vide IV, pp. 475-483, R.P. No. 12/1964, pp. 81-107 and 213.
2IV, p. 404.
3 Ibid., p406.
4 Vide paras. 4-5,supra.
6 IV,p. 406, footnote 3.
U.G. 53-195c, p.104.178 SOUTH WEST AFRlCA
economic opportunities should be created to absorb the educated products
of the schools.
It was in the course of considering economic factors relative to edu
cation, that the Commission referred to the desire of the Natives for the
same certificates, which, inter alia, elicited the following comments from
the Commission:
"From the evidence presented to the Commission it seems quite
clear that teachers, parents and children alike are far more concerned
with the obtaining of certificates than they are with the deeper
values of education 1",
and-
''The attitude of the Bantu towards their schools, their culture,
and their languages, are highly coloured by existing economic
conditions which are such as to emphasize out of true proportion
certificates and skills marketable among the European population
or in State employment 2."
Since the Commission issued its report in 1951, there has not only
been a substantial increase in the educational facilities and opportunities
offered to the Bantu in South Africa, but, as will be demonstrated here
inafter 3, progressively more and more economic opportunities have
been created for "absorbing the products of the schools".
8. In stating the proposition that "[e]ducation and economic status
are inseparable, as are economic status and political rights and opportu
nities" \ Applicants refer to adverse allegations and comments regarding
policies and practices in South Africa, which they then seek to apply to
South West Africa because, as they allege, "precisely the same considera
tions and circumstances apply in the Territory'' 5•
Respondent firstly wishes to point out that the last allegation is nn
founded. Although it may be correct to say that basically the problem
is the same-because of the fact that in South West Africa, as in South
Africa, there are different population groups at difforent stages of devel
opment, a situation which gives rise to differences in participation by the
groups in the economic sphere-the economic conditions and circum
stances differ widely in many respects as between the two countries.
Itwould, however, be out of place to enter into a systematic comparison
of conditions and circumstances as they exist in South Africa and in
South West Africa; and, indeed, such a task would be unnecessary as, in
Respondent's submission, the criticism of South African policies relied
upon by Applicants is devoid of substance, as will be shown immediately
below.
9. Thus Applicants cite the following comments by Professer de
Kiewiet in a lecture delivered in J anuary 1956 and published under the
title The Anatomy of South A/rican Misery, viz.:
"A special theory is developed in which the economic life of
society is subordinated to its political objectives, so that non-
1 U.G. 53-1951, p. 43.
2 Ibid., p.104.
3 Videparas. II-I3,infra.
4 IV, p. 406.
' Ibid., footnote 5. REJOINDER OF SOUTH AFRICA 179
European workers are not free to improve their standard of living
if thereby they seek also to gain added political opportunity or social
advancement 1."
The theory suggested by Professer de Kiewiet as underlying Respond
ent's policy in South Africa is that the Bantu should not develop
politically, and that, in order to prevent his advancement in the po
litical sphere, he is denied opportunities of economic advancement.
That there is no such theory underlying Respondent's policy is clear,
not only from what has been specifically stated by Respondent to be the
objectives of its policy, but also from what has in fact been accomplished
by Respondent in the implementation of that policy.
Professor de Kiewiet's condemnation of Respondent's policy rests on
a complete misconception of the basic principles of that policy. This is
clear from the following statement made by him in the very lecture to
which Applicants refer, viz.:
"In the concretc language of economics and politics apa;tkiidTs
actually a system in which the power of the state is used to maintain
the economic and political supremacy of the white community over
a population of approximately ten million Africans, Indians and
coloured men 2." ·
That the objective of Respondent's policy is not to main tain supremacy
of the White community over the other population groups, politically or
economically, has been repeatedly stated at the highest government
levels, and has been evidenced by the advancement achieved by the said
groups. With regard to their political achievements, Respondent refers
to what bas already been stated in the Counter-Memorial 3and elsewhere
in this Rejoinder \ These considerations in themselves disprove the
theory propounded by Professor de Kiewiet, namely that because Re
spondent wishcs to withhold political rights from the Bantu, it curbs their
economic advancement.
ro. Professer de Kiewiet's allegation is also disproved by what bas in
fact been done by Respondent in improving economic conditions for the
Bantu in South Africa.
Respondent does not in this regard propose to present a survey of the
economic position of the Bantu in South Africa, but will cite a few
authorities who have studied the position and have expressed themselves
thereanent; and, in so doing, perhaps a natural starting point will be to
quote Dr. W. W. M. Eiselen, the Chairman of the Commission on Native
Education 1949-1951, who is also relied upon by Applicants.
Before domg so, it is necessary to point out that the excerpt from Dr.
Eiselen's article in Optima, which appears in the Reply 1, may, if taken
out of its proper context, create a wrong impression. \Vhat Dr. Eiselen
said in this article, whlch was written in I959, was the following:
"So it seems to the writer and to most members of the European
electorate, as well as to many enlightened representatives of the
Bantu and other groups, that the maintenance of \Vhite political
1IV, p. 406, footnote 5.
2 De Kiewiet, C. W., The Anatomy of South African Misery (1956),p. 49.
3 Il,pp. 477-483.
• Vide secs. E and F, supra.180 SOUTH WEST AFRICA
supremacy over the country as a whole is a sine qua non for racial
1
peace and economic prospcrity in South Ahica ."
Indeed, as Applicants say, this is the converse of the position taken by
Professor de Kiewiet, namely that in order to keep the non-Europeans in
South Africa from gaining added political opportunity, they are restrained
in economic development.
What is clear is that Dr. Eiselen was not so much concerned with
describing declared government policy, as with possible future develop
ments. ln the same context he cited Sir Percivale Liesching, then High
Commissioner for the United Kingdom in South Africa, to the following
effect:
"The High Commission Territories are advancing into a consti
tutional sphere, into more representative forms of govemment, but
it is not to be foreseen that their progress along these lines, which is
the policy of Her i\Iajesty's Government, would ever mean that they
would advance to the status of independence comparable with
Ghana, that is, complete independence within the Common
wealth 2."
II. Since Sir Percivale Liesching and Dr. Eiselen expressed the a.fore
mentioned views in 1958 and 1959, respectively, much water has flown
under the bridge of political developmcnt of the Bantu both in the High
Commission Territories and in the Bantu homelands in South Africa 3,
and problems regarding the eventual political rights of the Bantu, which
Dr. Eiselen described as "problems for the future" 1,have been resolved
much sooner than he could ever have foreseen. However, whatever doubt
Dr. Eiselen might have had as to the political future of the Bantu peoples,
he had no doubt as to the path of economic progress planned for them
in South Africa. ln the very article from which Applicants have taken the
excerpt quoted in the Reply, Dr. Eiselen outlined the plans of the Depart
ment of Bantu Administration and Development, of which Department
he was then the Secretary, for the economic development of the Bantu in
South Africa. He said in that regard that-
"[t]hose Bantu who remain behind on the land will, as full-time
progressive farmers, be taught to make the maximum productive
use of their ground and livestock in their own interest and that of
their community. For the others, man y of whom still migrate to our
urban and mining areas in search of work at present, other outlets
are being created. That is why, in the second place, we are busy
building a series of rural townships in the Bantu areas, man y of them
on sites recommended by the Tomlinson Commission. Since 1954,
18 of these places have been laid out and proclaimed, and a further
47 are at various stages of development and 31 sites are being
examined from this point of view. The purpose of these townships is
to provide a source of livelihood for those inhabitants of the Reserves
who have had to leave the land, by opening opportunities for them
in trade, the professions and administration, while it is also antici
pated that the increased production of raw materials to be expected
from the Ban tu areas under the new agricultural policy will graduall y
1 Optima, Mar. 1959, p. 8.
2 The Cape Argus,12 Sep. 1958.
3 11,pp. 477-483. REJOINDER OF SOUTH AFRICA 181
lead to the establishment of Bantu industries and factories in such
centres to supplement the others being created or encouraged on the
borders of the Bantu areas but near enough to allow workers to
return home either daily or at least for week-ends. Briefly, therefore,
our purpose is to promote in the Bantu areas that transition from
primitive pastoralism and mono-culture of maize to a diversified
modern economy, which is essential for the support of any large
population above the mere subsistence level.''
And he stated that, in order to give a more direct stimulus to this
process of development,
"... we have established a Bantu Investment Corporation with the
South African Native Trust as sole shareholder, specially to promote
and encourage the economic development of the Bantu areas, by
inter alia, 'the provision of capital or means, technical and other
assistance and guidance, the furnishing of expert and specialized
advice, information and enlightment . . . the encouragement,
extension and establishment of existing or new industrial and
financial undertakings in Bantu areas . . . the encouragement of
thrift and the planning and promotion of capital accumulation by
Bantu ... and the promotion of Bantu self-help in the economic
sphere'.
To prove the increasing interest that the Bantu themselves are
showing in commerce, I may mention that over the last seven years,
from 1951 to 1958, the number of Bantu traders in their own terri
tories has almost doubled itself, rising from 3,871 to 6,032 ."
12. As further evidence of the advancement of the South African
Bantu in the economic sphere, Respondent quotes the following authori
tative statements:
(a) Pro/essor Wilhelm Ropke-Professor at the graduate School of
International Studies, Geneva:
"Exhaustive figures would be superfluous here, because it is a
matter of record that South Africa, along with Western Europe,
North America, Japan, Australia and New Zealand, belongs to
the definitely well-to-do nations. Its Bantu population partici
pates to such a great extent in this prosperity that its standard
of living far exceeds that of the inhabitants of all the other
African countries 2." (Translation.)
"Ail statistics prove, in addition,that nowhere in Africa is the
Negro so well paid, provided with such good living quarters, so
3
well fed and so well dressed as he is in South Africa ." (Trans
lation.)
(b) Allen ]. Ellender-1\iember of the Senate of the United States of
America:
"South Africa is exceedingly p~osperous, and the peoples of
ail races are in varying measures sharing in that prosperity.
Consequently, the great majority of them are happy and
contented. The natives are eaming better wages and enjoying
1 Optima, Mar. 1959, p.ro.
2 Rôpke, W., "Südafrika. Versuch eîner Vtiürdigung",Schweizey Monatshefte,
No. 2, 44th Year (May 1964), pp. 97-112, at p. roi.
3 Ibid., pro8. SOUTH WEST AFRICA
Ill
greater benefits in respect to education, health, and housing
than the black man in any other country of Africa 1."
(c) Démians d'Archimbaud-in an article published in La Revue
Française:
"One can say in conclusion that it is undeniable that the
[South African] Bantu is by far the best nourished African
people, the best dressed, the best homed and the best educated
in Africa. In ten years time, it is probable that this country so
maligned today will have become the incontestable leader and,
I am persuaded thereof, uncontested in Africa south of the
Sahara 2." (Free translation.)
(d) Pro/essor Henry Hofstetter-Professor of the Indiana University,
United States of America:
"I would be very much surprised to find another country
governed by ,Vhites where the Non-Whites are given such a
3
square deal in the economic field as in South Africa ."
(e) Marcus D. Banghart-Vice-President of the Newrnont Mining
Corporation, United States of America:
''TheBantu races ofSouth Africa have experienced great chan
ges in purchasing habits and living standards and are now spen
ding some R 700 million ($1billion) per year on domestic purch
ases. Ther own four times asmany automobiles per capita as the
people o Russia. The market opportunities offered by the
development and advancement of the Ban tu are enormous 4."
(I) Clarence B. Randall--retired board Chairman of lnland Steel Co.,
United States of America, and adviser to Presidents Kennedy and
Eisenhower of the United States:
"How has the Bantu fared under this policy of separation?
First of ail, he has today, beyond question, the highest percapita
incarne of ail the black races in Africa-an income that exceeds
that of the citizens of Ghana or of Nigeria, for example. His
opportunity ta eam makes him the envy of ail his neighbours to
the north, as witness the fact that 20,000 of them endeavour
5
each year to enter South Africa illegaily ."
(g) M. R. ,M. Dale-Canadian Trade Commissioner in South Africa,
is quoted to the effect that:
"South Africa was doing more for its indi~enous population
than any other country ... South Africa prov1ded in such a way
for the non-White population that they dispose of considerable
purchasing power 6." (Free translation.)
(h) Mr. Garfield Weston-Canadian businessman, is reported to have
said that-
1 United States of America: 88th Congress, 1st Session-Senate-A Report on
United States Foreign Operations in Africaby Honorable AllenJ. Ellender, United
States Senator from the State of Louisiana (1963),p. 121.
2
La Revue Française, No. 139 (Apr. 1962}, p.19.
' baNtu, Aug. r96o, p.482.
• Ibid.,Apr. 1962, p. 227.
5 The Reader's Digest, Vol. 83 (Oct. 1963)p. 47.
6 Die Transvaler, 28 Aug. r961, p. 2. REJOINDER OF SOUTH AFRICA
"... the Govemmen t was raising the living standards of Africans
by five percent. a year. . .1''.
The above serve as examples of staternents which have been made by
persons who have observed the economic conditions of the Bantu in
South Africa. These examples can be multiplied many times.
13. The following table, which reflects the occupational distribution
of ail econornically active Bantu in South Africa as on 7 September
1960, other than labourers or Bantu engaged in farrning activities, further
illustrates the degree of econornic advancement reached by the Bantu in
South Africa:
TABLEZ
Number of Natives
Occupations employed
r. Professional, technical and related worker . . 48,714
2. Administrative, executive, managerial worker. 4,796
3. Clerical worker . . . . . . . . . . . . 19,472
+ Sales worker . . . . . . . . . . . . . 28,473
.5. Miner, quarryman and related worker . . 3,136
6. Worker in transport and communication . 64,402
7. Craftsman, production worker . . 76,487
8. Service, sports and recreation worker . . 720,593
g. Fisherrnan, lumberrnan, hunter, etc. . . . 29,165
Total
995,238
14. Applicants, after stating that economic apartheid, being "based
upon the sarne major premises as is educational apartheid ... produces
identical results with respect to the inhabitants affected" 3,say:
"The 'Coloured' inhabitants fall between the 'Native' and the
'European' ~roups, and reflect yet another application of the
apartheid pohcy, inasmuch as the rights, opportumties and burdens
of the 'Coloureds' are likewise wholly allotted on the basis of mem
bership in a group 4."
It is correct to say that the Coloured people of South West Africa
constitute a separate population group, and that in the application of
Respondent's policies they are treated as such. lt is also true, in a sense,
that they fall between the Native and Europeangroups, in that, inter alia,
in the economic sphere they generally stand on a level higher than the
Native groups but sornewhat below the Europeans. But this is so not
by any decree of Respondent. It flows naturally from the fact that they
have generally reached a stage of developrnent exceeding that attained
by the Native inhabitants of the Territory, but still below that of the
European inhabitants.
Respondent, moreover, denies the accusation of the Cornmittee on
South West Africa that Respondent aims at "keeping the coloureds as
a group apart, superior to the Natives but inferior to the Europeans",
1 Sunday Express, 15 Nov. 1964.
z Population Census, 1960: Sample Tabiilation, No. 5-It1dustry Divisions, Age
Groups, Maior Occupational Groups-Bantu (Mar. 1963), table 3.1, pp. 52-55 and
table 3.2, p. 56.
3 As ta this propositionvidepara. 2,supra.
4 IV, p.407. SOUTH WEST AFRICA
which accusation Applicants quote in the section of the Reply dealing
with education , and also incorpora te by reference 2 in their treatment of
the economic aspect.
There is no question of a forcible keeping apart of the Coloured group
against its wishes. lt is the desire of the Coloured people to be treated
as a separate group, and Respondent acts in observance of that dcsire;
but not, as the Committee suggests, by placing them in a position
"superior to the Natives but infcrior to the Europeans". Respondent
has already stated 3,and here repeats, that its policy of separate develop
ment, which involves, inter alia, the treatment of the Coloured people as a
separate group, is not based on a concept of superiority or inferiority, but
solely on the fact that the people of the various groups are different.
Indeed, there is nothing in Respondent's policy to prevent the Coloured
people generally, or individuals from amongst them, from developing
to a stage of civilization and prosperity equalling or surpassing that of the
Europeans.
C. Migratory Labour in South West Africa,
and the Implications thereof
1. !NTRODUCTORY
15. Although Applicants in the Memorials mentioned the fact that
Natives recruited from the northern areas have to return to their homes
after completion of their contract periods, which may in no case exceed
two-and-a-half years 4, they did not make a substantive complaint re
gardin~ employment of migratory labour in the Territory. Such a corn
plaint 1snow newly introduced in the Reply, and it is accordingly neces
sary to devote more space to a treatment thereof in this Rejoinder than
would otherwise have been the case.
In the succeeding paragraphs this subject will be dealt with under the
following heads :
(a) the role of migratory labour in the economy of South West Africa;
(b) migratory labour in other countries;
(c) the extent to which the labour force in the Territory is in fact
migratory;
(d) future developments regarding the system;
(e) Applicants' criticisms of the system.
IL THE ROLE OF MIGRATORY LABOUR IN THE ECONOMY OF
SOUTH WEST AFRICA
16. That the labour employed in the Territory is partly migratory
is a natural consequence of the social and economic conditions prevailing
in the Territory, a full exposition of which was given in the Counter
Memorial 5.
From the information there furnished it is clear that the situation in
South West Africa resembles that found throughout Africa and elsewhere
1
2IV, p. 362.
Ibid., p407, footnote 1.
3Il, p.47r.
• Vide 1,p. 12-..
5li, pp.409-414 and Ill, pp. 4-ro3. REJOINOER OF SOUTH AFRICA 185
in underdeveloped countries of the world, in that there are two sectors
constituting the total of the Territory's economy. This situation is briefly
described as follows in the report of the Odendaal Commission:
"The economy of South West Africa may be described as a dual
economy, consisting of a predominantly modem money or exchange
sector and a traditional subsistence sector 1."
The modem sector of the Territory's economy comprises farming, min
ing, fishingand other productive enterprises conducted in accordance with
modem commercial principles. These enterprises create labour require
ments, and offer opportunities of gainful employment not only to the
inhabitants of the said sector, but also to persons whose homes are
elsewhere. From this sector there can be distinguished the traditional,
or indigenous sector, populated by the majority of the Natives of the
Territory, who still largely adhere to the traditional pattern of a sub
sistence economy, but many of whom are at the same time desirous of
eaming a monetary reward for services in the modem economy.
Respondent has already explained 2 that, in the circumstances afore
stated, the best course that could be adopted was to concentrate upon and
encourage a rapid development of economic enterprises in the modem
sector as growth points for further development of the economy of the
Territory as a whole. Itwas economically the most rational and practical
method of employing the available resources of the Territory. The modern
sector would in this process not only produce income which could be
applied towards development of the Territory as a whole, but would also
provide increased and more diversificd opportunities of gainful employ
ment to the inhabitants of the Territory.
The only contributory role which the traditional sector could play in
the course of such economic development would, at least in the carlier
stages, be the provision of labour for reward. However, with progress
in the education of the indigenous population and their understanding
of modem economic systems and methods, development could in the
course of time and as capital became available gradually be extended
from the modem to the traditional sector.
17. In this pattern of economic growth it was only natural that, for
some time at least; the modern sector would continue to be better
developed than the traditional sector. Such a result is the natural
consequence of economic development being fostered in a backward
economy, and its very existence is regarded as a sign of progress. In the
words of Albert O. Hirschman, Professor of International Economie Re
lations at Columbia University, U.S.A.,
"... we may take it for granted that economic progress does not
appear everywhere at the same time and that once it has appeared
powerful forces make for spatial concentration of economic growth
around the initial starting points 3''.
The same authority goes so far as to advocate the creation of imbalances
in order to stimula te economic growth. Thus he says:
"\Vhatever the reason, there can be little doubt that an economy,
to lift itself to higher incarne levels, must and will first develop
1R.P. No. 12/1964, p.315.
2Il, pp.409-414.
3 Hirschman, A. O.,The Strategy of Economie Development (1960),p. 183.186 SOUTH WEST AFRICA
within itself one or several regional centres of econornic strength.
This need for the emergence of 'growing points' or 'growth poles' in
the course of the development process means that international and
interregional inequality of growth is an inevitable concomitant and
condition of growth itself 1.''
In South West Africa, as well as in many African countries, the growth
points referred to by the said author have been created and maintained
by European entrepreneurs who have established themselves as producers
of minerai, fishing and agricultural products.
The situation described by Applicants, namely that "[a]reas of the
Territory occupied by 'Europeans' are in ail respects economically well
developed in comparison with the areas occupied by approximately 75
percent. of the 'Natives' " 2,is a situation normally encountered where a
modern economy has been introduccd to countries with an indigenous
population practising a traditional subsistence economy. Indeed, as
stated by two other economists:
"The Creator has not divided the wor!d into two sectors, devel
oped and under-developed, the former being more richly blessed
with natural resources than the latter. Ali developed countries began
by being underdeveloped by modern standards, which are the
operative ones; indeed they rcmained in this state until quite
recently 3."
The resultant effcct mentioned by Applicants, namely that " 'Native'
labour will, to a significant degree, be drawn from the reserves to service
the more advanced 'European' economy" 2, is likewise a normal and
inevitable concomitant. In this regard it has been stated in a United
Nations study that-
"... where immigrant settlers from advanced economic backgrounds
establish themsclves as producers for export in the midst of a tradi
tional economy ... it draws away part of the labour resources of the
traditional economy into wage-earning employment 4".
In such a pattern of development migratory labour is a normal, and very
often inevitable condition, brought about by social as well as economic
considerations. ,
18. Despite its known disadvanta.gcs, to which reference is made
below 5,the migratory labour system has positive advantages both for the
migrant worker and for the economy in which his services are employed.
Although it is an inevitable feature of the system that the worker is
temporarily separated from his family during the periods of his employ
ment, the system enables him to obtain a cash incarne without severing
his traditional ties and tribal relationships. These ties and relationships
are often so strong that many Native workers would not be willing to
settle permanently in the modern economy sector if that entailed a
sacrifice of their accustomed agricultural and social ways of life. As
1
2 Hirschman, op. cit., pp183-184.
3 IV, p. 407.
Bauer, P. T. and Yamey, B. S., The Economies of Under-developed Countries
(1960),p. 46.
~ U.N. Doc. E/3137, ST/ECA/57, Structure andGrowth of Selected African Econo
mies (1958),p. 2.
5 Vide paras. 20-21,infra. REJOINDER OF SOUTH AFRICA
stated by William Watson of the University of l\lanchester, an authority
on migrant labour:
"As long as Africans have secure rights to the use of tribal land
they will ding to the land, to the subsistence it provides, and to their
tribalism, for this offers a security they understand 1."
A United Nations publication concerning the Federation of Rhodesia
and Nyasaland contains the following:
"As yet, there seems to be a rather strong resistance among the
African labourers to settle their families in town. Quite apart from
the need for suitable housing, rupture with the traditional tribal and
village surroundings, and facing a new life on an individual family
basis among people from other villages and tribes-perhaps with
other languages-free from the traditional checks and restrictions,
and subject to unfamiliar western laws and law enforcement, cause
the African to hesitate 2."
And, in a survey of African labour, the International Labour Office
observed that the Native worker-
"... while prepared to adopt work for wagcs as a more or less
permanent means of subsistence ... is not prepared, at least under
the conditions now prevailing, to give up contact with the village
from which he has corne, since he considers that there alone lies
security for him in old age and in periods of sickness or unemploy
ment 3".
To these people migratory labour, which offers an opportunity of satis
fying specific needs demanding cash means, obviously represents a practi
cal solution. While the worker is employed away from his home, the
members of his family continue in the ordinary way ,vith their farming
operations in the traditional sector. And, not only are they in this manner
provided with sustenance during the absence of the workman, but their
presence and activities on the land ensure that the workman retains his
land rights, which would, in accordance with Native law and custom, be
lost to him if he and his family were to remove therefrom and Jeave it
unoccupied.
In so retaining his rights to tribal land the worker remains assured of
a living in times of industrial recession and economic depression, when
his services cannot be utilized in the modem economy and unemployment
results, or when for shorter or longer periods he prefers to live in the
tribal area rather than work in the modern sector, and also when, as a
result of ill health or old age, he can no longer hold employment. This
aspect is dealt with by another authority, W. Elkan, as follows:
"A permanent move to town would ... involve giving up apart of
income and also of course, a potent form of insurance against hazards
of industrial life. This remains true whether the wage in town is low
or high, whether or not family bouses are available and irrespective
of what social insurance may exist for wage earners. Unless a
1 'Watson. \V., "Migrant Labour in Africa South of the Sahara-2. Migrant
Labour and Detribalisation", Inter-A frican Labour lnsliluBulletin, Vol. VI, No.2
(Mar. 1959), pp. 8-33, atp. 30.
1 U.N. Doc. E/3137, ST/ECA/57, Structure and Growth ofSelected Ajrican Eco11Q..
mies (1958), pp. 73-71.
3 International Labour Office.Ajrican Labour Suroey (1958), p. 138.188 SOUTH WEST AFRICA
permanent withdrawal from the countryside is actually made a
condition of employment in the town, workers will tend to hold on
to their land and the income and security which it affords 1."
Another economist who has noted this tendency, William J. Barber,
states:
"ln taking up the options which are open to him as the money
economy expands, the African bas appeared to demonstrate a
rationality in his economic behavior. It is, however, a rationality
which can only be understood within the context of the dualistic
economic structure within which he lives. If he isa wage-earner, he
iswelladvised-as long as the real wageobtainable from employment
in the money economy remains at its traditional level-to kcep a
'foot in two camps' by moving between the money and the indigenous
economies. He dare not risk a sacrifice in the output of the subsi
stence agricultural community which would follow from his continu
ons absence. This situation recommends perpetuation of the migra
tory system-an arrangement which is both rational and economic,
even though it may not appear so to the European employer or to an
outside observer who expects rational economic behavior to take the
same form in both the underdeveloped and Western economies 2.''
The system of migratory labour does not, however, offer advantages
only to the individual worker. It is beneficial also to the general economy
of the traditional sector, in that the worker brings back to the said sector
cash emoluments, which raise local levels of living and assist in the eco
nomic developments of the area, as well as experience, which can be ap
plied in the process of development of that sector. Another advantage of
the system is that it ensures that employment, and opportunities of earn
ing cash wages and gaining experience, are not confined to a fortunate few
employed on a permanent basis, but that these are spread out and ex
tended to a much larger labour force on a temporary basis.
19. From the viewpoint of the modem economy, the system also has
decided advantages. White the economic enterprises in the modern sector,
which serve as growth points for the economy of the Territory as a whole,
can, in making use of the services of the migrant worker, pay him for such
services and provide him with sustenance and accommodation, it would
for the larger part be economically impossible to absorb him and his
family permanently into the modem economy.
The economy of the modem sector would not be able to bear the
financial burden of accommodating and providing a large number of
people, consisting of workers and their families, with housing and other
social amenities and facilities such as schools, hospitals, etc. The Terri
tory's economy, being based upon the exploitation of primary resources,
agriculture, mining and fishing, and being geared to exports of pastoral,
minera! and fishing products, is subject to world market conditions. It
has therefore not only a limited income potential, but is also subject to
1 Elkan, \V.,"1"IigranLabour in Africa South of the Sahara-6. The Persistence
of Migrant Labour", Inler-AfricanLabour InstituteBulletin,Vol. VI, No. 5 (Sep.
1929),pp. 36-43,at p. 42.
Barber, •V. J.,"Economie Rationality and Behaviour Patterns in an Under
developed Area: A Case Study of African Economie Behaviour in the Rhodesias",
Economie Development and Cultural Change, Vol. VIII, No. 3 (Apr. 196o),pp. 237-
251, at p. 25L REJOINDER OF SOUTH AFRICA 189
large and erratic fluctuations in world market prices and demand 1•
In the words of the Odendaal Commission,
"[t]he basis of its economic activities is however still very limited and
sensitive to foreign price fluctuations, while disappointments and
setbacks in the past have led to a cautions policy of capital invest
ment 2."
In view of past experience it would be unrealistic to assume that fluc
tuations and setbacks will not occur in the future, and that unïm:eeded
growth isassured. A doser look at the facts makcs it clear that it will re
quire a long time (ifit is not altogether impossible) to lessen significantly
the Territory's dependence on primary production with its attendant
instability. However, short of far-reaching changes in the structure of
production, it would be irresponsible, from an economic point of vicw,
to permit a large-scale settlement of people within the modern economy
scctor on this uncertain basis. Droughts, industrial recession and econo
mic depressions would bring about unemployment and make it impossible
for the modem economysector to maintain its labour force.In this regard,
Lord Hailey, referring to Africa in general, states:
"It is truc, on the one hand, that the fluidity of the boundaries
between the subsistence and the money economies contributes to the
long-term stability of the economy as a whole. A people that con
tinues to produce its own food isless vulnerable to a world depression
than a people that is largely dependent on the market for its liveli
hood 3."
And a United Nations Study on Processes and Problems of bidustrializa
tion in Under-developed Countries has found that the difficulty in stabili-
zing the industrial worker- .
"... is in many cases intensified by the instability of employment in
industries that are directly dependent upon foreign trade or seriously
affected by it and are sensitive to the fluctuations of the world
market+''.
Industrial workers displaccd by the adverse cffects of fluctuations in
world trade, tend to flock back to the rural areas. Asthe aforementioned
study points out, this reverse flowinto agriculture has adverse consequen
cesfor living conditions there i; but on the other bandit should beobvious
that failing such return to rural areas the alternative would be starvation
in the towns.
20. Admittedly the system of migratory labour has certain adverse
effects, socially and economically. These result mainly from the fact
that the worker is separated from his family during his period of cmploy
D?ent, and the fact that temporary employment often makes for ineffi
c1ency and waste.
When giving consideration to these adverse effects, sight must, how
ever, not be lost of the extremely clifficultprocess of adaptation which
bearers of a traditional culture inevitably have to face when coming into
1
Vide also paras. 36-39, infra, in regard to special circumstances affecting labour
in the Territory.
3 Lord Ha.iley,AliA/rican Survey: ReYiscd 1956 (1957), p. 1314.
• U.N. Dor;. E/2670, ST/ECA/29, Processes and Proble'lflof Industriali.tatiin
Under-de1JelopedCountries (1955), p. 22.I90 SOUTH WEST AFRICA
contact with the conditions of modern civilization. Thus a United Nations
publication observes that-
"... the gulf between the traditional culture of Africans in their
own surroundings and the culture of modern cities remains wider
and deeper than the rural-urban gulf in any other major region of
the world. The problem of transition, as a social and psychological
1
problem, is thus encountered in Africa in an extreme form ."
And in a publication from the same source it is stated that the transition
from rural peasant to urban industrial worker-
"... requires, at the point of departure, emancipation from the
dictates of custom and tradition, and at the place of employment,
adjustment to an unfamiliar kind of work and labour discipline, and
assimilation to a new type of social environment. Peasant patterns of
work and leisure are generally incompatible with the demands of
machine work and factory discipline 2."
It is also observed in this publication that-
"(i]n many instances, therefore, the undesirable social consequences
of industrial development reflect incongruities between the demands
of industrialization and the established ways of pre-industrial so
cieties 3''.
Elsewhere in the Reply 4 Applicants, in dealing with Respondent's
influx control measures, aver that the "true cause'' of social evils, such as
prostitution, vencreal disease, alcoholism, crime and the like,
"... is not to be foundin the fact that 'Natives' congregate in urban
and proclaimed areas; it is in fact found in the discriminatory sys
tem of migratory labour itself. Splitting of families, an evil attribute
of the system Respondent nowhere seeks to justify, generates many
of the evils the influx control policy is designed to meet 4."
And in support of this allegation Applicants refer to a report of the
United Nations Economie Commission for Africa, in whlch it is stated
that the disruption of family life by a system of migratory labour creates
situations which "breed the problems of venereal disease, prostitution,
crime and delinquency" 4•
It is, however, a fact that the social evils in question are found in many
cities and towns of developing countries where there is no migratory
labour, but where people from traditional societies corne into contact
with modern civilization.
Thus it has been stated in a reccnt United Nations Report on the World
Social Situation:
"... in the process of transition, of breakdown of old social forms
and creations of new ones, there is a particularly dangerous phase
when attitudes and behaviour may be without anchors, controlled
1 U.N. Doc. E/CN.5/324/Rev. r, ST/SOA/33. Re,porton theWorld Social Situation
(1957). p. 147.
2 U.N. Doc. E/2670, ST/ECA/29, hocesses and Problems of lndustrialization in
Under-developed Counlries (1955), p. 21.
3 Ibid.,p. n9.
4 IV, p. 467. REJOINDER OF SOUTH AFRICA 191
more by passing winds of demagogy, faddism or mob spirit than
by established values of home and community 1".
Respondent must, however, not be understood to underestimate the
adverse effects of the migratory labour system. What Respondent wishes
to emphasize, is that at least part of the cause of the undesirable pheno
mena often attributed to a system of migratory labour is to be sought in
the difficulties which are cxperienced independently thereof by members
of traditional societies in adapting themselves to the conditions of modern
economies and the ways of modern civilization.
21. That the system of migratory labour inevitably entails social
sacrifices, stands beyond doubt. But, it is Respondent's contention that,
on objective appraisal, the adverse effects of the system are far out
weighed by its advantages in the process of developing a modern economy
in an under-developed territory snch as South West Africa. lndeed,
in the present circumstances of the Territory, as is also the position in
many other territories in Africa having as yet under-developed economies
and largely backward population groups, a system of migratory labour
appears to be the most practical method of utilizing the available econo
mic resources and fostering economic development.
Thus Lord Hailey, though drawing attention to the unfortunate social
consequences of the system 2,remarked as follows:
"It seerns inevitable that in the existing circurnstances of Africa,
the labour market should be in a large measure dependent on floating
or migrant labour. lt is, as the East African Royal Commission of
1953-5 bas observed, the only system through which a considerable
section of the African population can now meet its needs. For many
Africans it is not possible to gain a higher incarne level for the sup
port of their families without wage-eaming, and the migrant labour
system appears as the most economic choice which they can make,
however socially undesirable it may be 2.'' (Italics added.)
The Inter-African Labour Institute, while drawing attention to, and
emphasizing, the adverse effects of the system of migrant labour, bas
stated:
''There are other more general considerations which should not
be left unnoticed. In the conditions of African industrial develop
ment migrant labour is no doubt a necessary phase: some bridge bas
to be thrown across the gulf separating tribal and modern econo
mies 3.''(Italics added.)
And the United Nations Committee on Information /rom Non-Self
Governing Tenitories, though stating that in a system of migratory
labom-
"[t]he disadvantages of excessive movement and instability are
many. There is loss of time and energy, wage levels are low, possi
bilities for training are few and continuity in employment is lacking.
The separation of the worker from his family leads to the perpetua-
1
U.N. Da&.E/CN.5/346/Rev. 1, ST/SOA/42, Repc,ri on the World Social Situa
ti2n (I961), p. 25.
3 Lord Hailey. An African Survey: Revised 1956 (1957), p. 1387.
"The Human Factors of Productivity in Africa: A PreliminarySurvey", lnler
Af-Yican Labo-urlnstitute, 2nd Ed. (1g6o). p. 93. SOUTH WEST AFRICA
192
tion of low levels of rural productivity and sometimes to social
disorganiza tion 1'',
nevertheless concluded that-
"[h]owever undesirable extensive labour migration may be, itcan be
viewed as an unavoidable stage of the economic development in these
[the Non-Self-Governing] Territories 1". (Italics added.)
22. Respondent, recognizing the economic advantages of the system,
and perrnittin~ it to operate in the Territory to an extent which will be
explained heremafter 2,has, at the same time, sought to curb and counter
act the social evils attendant in the system by adopting appropriate
control measures, and by providing housing, social amenities and health
facilities.
Ill. MIGRATORY LABOUR IN ÜTHER COUNTRIES
23. The dualistic cconomic pattern in South West Africa-i.e., a total
economy comprised of a modem as well as a traditional economy-is
largely characteristic of African economies as a whole. Thus, in the words
of a United Nations publication regarding African economies,
''... at the present stage of their development the economies of
African countrics are heterogeneous economies; therefore, in ana
lysing their significant structures and relations it would be mislead
ing to deal with them as if they were homogeneous modem money
economies 3".
It follows as a natural corollary that the system of migratory labour is
a common phenomenon in most African territories. Prof. D. Hobart
Houghton of Rhodes University states that the system-
"... has arisen throughout the continent [of Africa] wherever forcign
enterprise and invcstment and new contact with world markets have
drawn Africans out of their primitive subsistence economies 4".
And a United Nations publication, in which economic conditions in
Africa are reviewed, describes the labour position as follows:
"A considerable part of the African labour supply consists of mi
grant workers seeking employment, in some cases in areas far distant
from their country of origin. In certain regions-for example, in the
Gold Coast, and in the plantation areas of eastern Africa-thcre is a
seasonal migration which follows a pattern common to many other
parts of the world at harvest time. The most important migrant
labour in Africa, however, is of a non-seasonal type, in mining,
industrial and commercial areas. The migrants are almost exclusively
males in their most productive years, most of whom return after a
period to their tribal homes, though many leave again after a short
stay. There is therefore an almost continuous movement back and
forth 5."
1
G.A., O.R., Sixteenth Sess., Suppl. No. 15 (A/4785), p. 53 (para. 75).
2 Vide paras. 27-28, infra.
3 U.N. Doc. E/3137, ST;ECA/57, Structure and Growth of Selected African Econo
mies (1958), p. 3.
• Smith, P. (Ed.), Africain Transition (1958),p. 39.
5 U.N. Doc. E/1910/Add. r/Rev. r, ST/ECA/9/Add. r (1951), Review of Economie
Conditions in A frica,p. 74. REJOll!sDER OF SOUTH AFRlCA 193
With regard.ato the extent to which migrant labour is employed in
African territories, Guy Hunter quotes the Report of the Director-Gen
erat to the First African Regionat Labour Conference of the International
Labour Organisation to the effect that-
-· "[olf the 12 to 13 million adult males in Southern, East and Central
Afnca, it is estimated that 5 million are absent from their tribal
homes, engaged on wage labour 1".
24. As an indication of the extent to which the system operates in
certain African territories, Respondcnt gives the following available
particulars, in some cases by suitable quotations from authoritative
sources, and in others by a brief statement of the facts culled from such
sources:
(a) The British High Commission Te"itories
(i) Basi,toland
"It would seem, therefore, that the Territory is deprived every
year of a proportion-generally estimated to be between 50 and 60
per cent.--of its able-bodied men 2."
(ii) Bechuanaland
Estimates of the absence from the Territory of male workers
vary from 27.5 percent. in 1938-1940, to 50 percent. in later years 3•
(iii)Swaziland
Absence of male workers from the Territory is estimated at 25
to 30 per cent. 3
(b) Moçambique
It is recorded that in 1958, 112,450 workers proceeded from Moçam
biquc to South Africa, and 47,345 to Southern Rhodesia "·
"According to Portuguese sources, there were at the end of 1953
155,000 workers from Moçambique in Southern Rhodesia 5."
(c)Southern Rhodesia
According to the 1951 census, the immigrant labour force totalled
nearly 247,000 as compared with 271,000 indigenous Iabourers em
ployed at that time. The distribution of migrants by origin was roughly
86,ooo from Nyasaland, 48,500 from Northern Rhodesia, nearly 102,000
from Moçambique, and the balance from elsewhere 6•
"... in 1957-1958, Southern Rhodesia recruited in Nyasaland more
than 15,000 workers who were added to some 40,000 who had al-
1
Hunter, G., Ths New Societies of Tl'opical Africa (1962)p. 201.
2 Lord Hailey, An African Survey: Revised 1956 (1957), p. 1379.
3 Ibid.,p. 1380.
• ivligranl Labm1r in A/Yica South of the Sahara (C.C.T.A. Publication, No. 79,
1961), p. 132.
5 Oblath, A., "International Migrations in Africa. South of the Sa.ha.ra.", i11îgration
News, 12th Year, No. 6 (N"ov./Dec. 1963),pp. 5-10,at p. 8.
6 Lord Hailey, An African Survey: Revised 1956 {19.57), p. 1380.r94 SOUTH WEST AFRICA
ready been in Southern Rhodesia a long time. At that time 20,000
1
workers from Northern Rhodesia were in this territory ."
{d) Zambia (lormerly Northern Rhodesia)
"lt has been estimated that taking the territory as a whole at
least one-third to a half of the able-bodied men are normally away
from their villages, the actual proJX)rtion varying from as little as
3 percent. in certain areas near the railway to 70 percent. or more
in certain outlying areas 2."
"Northern Rhodesia had at the end of I957 about 20,000 immi
grants who came principally from Nyasaland and Tanganyika and
who were employed in industry 1."
(e) Malawi (formerly Nyasaland)
"The number of adult males in the Protectorate suited for em
ployment bas been put at about 380,000. It was estimated that in
r954 there were about r6o,ooo Nyasaland workers employed outside
the Protectorate ... 2''
{f) East A/rican Territories
(i) Uganda
" ... considerable interna} movements take place in the last-named
territory, originating mainly in certain districts in the northern
and western provinces, where between 40 and 50 percent. of adult
tax-paying males are normally absent from their homes 3". {Italics
added.)
"ln so far as the supply is concemed, the question arises-where
does the labour corne from? In Kampala [the largest town in Uganda],
we find it cornes from all parts of Uganda and is very largely mi
grant 4."
(ii) Tanganyika
In 1954 altogether 2r,350 migrant labourers proceeded from the Ter
ritorv to mines in Northern Rhodesia, Southern Rhodesia and South
Afriéa 5 ,
"... the number of workers from neighbouring territories, princi
pally Ruanda-Urundi and Moçambique, was estimated in r957 at
some 55,000. In 1958, the number of workers recruited in Nyasa
land, in pursuance of arrangements was estimated at about 30,000;
the workers recruited in Ruanda-Urundi, in pursuance of arrange
ments also, was evaluated at 2,550 in r959. The number of workers
recruited from l\foçambique in employment on July 31, 1959 was
22,75r 1".
1 Oblath. A., "International Migrations in Africa South of t:1eSahara", Migration
News, 12th Year. No. 6 (Nov./Dec. 1963), pp. 5-10, at p. 8.
2 Lord Hailey. An Af,ican Survey: Revised 1956 (1957), p. 1381.
3 International Labour Office,African Labour Survey (1958), pp. 130-131.
• "Migrant Labour in-Africa South of the Sahara-XIII. Migrants and Proleta
rians'",Inler-A/rican Labour lnstitute Bulletin, Vol. IX, No. 1 (Feb. 1962), p. 58.
5 International Labour Office.A/rican Labour Survey (1958), p. 131. REJOINDER OF SOUTH AFRICA
r95
(g) West African Territories
(i) Ghana
"Most inter-territorial migrations in this area are directed to
Ghana, ... whose mining enterprise and native agriculture are
largely dependent on extra-territorial labour. The r948 census
recorded 53,000 persons from other British territories and 122,000 of
other foreign origin in the Gold Coast. The total number of persons
to enter the territory incrcased from ro8,ooo in 1938 to 392,000 in
1953 ... Extra-territorial workers originate mainly in the neigh
bouring French territories of Upper Volta, Ivory Coast and Togo,
but a considerable immigration also cornes from Nigeria 1.''(Foot
notes omitted.)
"... during the period r953-r954, 253,610 persons entered Ghana
from French territories while 273,897 left the country i".
(ii) Nigeria
"... no less than 250,000 migrants have been checked leaving the
Sokoto province of North Nigeria, of whom three-quarters originated
inthe province 3",
(iii)Ivory Coast
"For the Ivory Coast, which also receives a large number of
Soudanese, the Abidjan census of 1955 showed that out of 127,600
inhabitants, almost 22,000 were Voltaics, and more than 18,000
Soudanese; according to an investigation made in 1953-1954 in the
Abidjan region, 50% of the employed workers were forcigners, of
whom 30% were of Voltaic origin, and, in the south-east, almost
80% of the workers employed were foreigners, of whom 70%
were Voltaies i."
(iv) Liberia
It appears that a significant proportion of labour employed on some
of the plantations is obtained through a traditional system of recruitment
with the assistance of tribal chiefs 5•
"... the tribal chief [in Liberia] fonctions in much the same manner
as the 'labor contractor' in the Orient. To ensure that the men will
return to perform work for the chief, it is common practicc to deny
6
families permission to accompany the men ."
25. From the aforegoing it is clear that migratory labour is cornmon
to many African countries, in the sense of migrations not only within
the boundaries of a particular territory, but also beyond the boundaries
of certain territories to neighbouring, and even distant territories, to
1 "Inter-Territorial Migrations of Africans South of the Sahara", International
Labour Review, Vol. LXXVI, No. 3 (Sep. 1957), pp. 292-310, at p. 306.
2International Labour Office,A/rican Labour Survey (1958), p. 133.
3 Hunter, G., The New Socielies of Tropical Africa (1962), p. 202.
4 Oblath, A., "International Migrations in Africa South of the Sahara", Migration
New5, 12th Year, No. 6 (Nov./Dec. 1963), p. 9.
International Monetary Fund, The Economy of Liberia (Prepared by the African
Department and Exchange Restrictions Department, Feb. 1963), p. ro; Taylor,
W.C., The Firestone Operations in Liberia (1959), p. 67; Anderson, R. E.,Liberia:
America's African Friend (1952), p. 136 and vide also III, p. 76.
6 United States Department of Labor, Labor in Liberia (May 1960), p. 9. 196 SOUTH WEST AFRICA
which workers are attracted by more opportunities and better wages.
This phenomenon is particularly evident in the Republic of South
Africa, whcrc agricultural, industrial and mining entcrprises attract
workers not only from the traditional Ban tu areas in the Republic itself,
but also from neighbouring and other territories, for temporary work in
mines, industries and agriculture. Instructive in this regard is the follow
ing table, which reflects the distribution of foreign Bantu mine workers in
the Republic on 30 June 1961:
TABLE 1
Country of Origin Employees
Basutoland 68,3n
Swaziland ... 9,231
Bechuanaland . 21,200
Southern Rhodesia ~
Northern Rhodesia 2 47,562
Nyasaland
i\loçambique . . II5,728
Other countries . 50,312
Total . 312,344
In addition there were 53,281 foreign Bantu employed in urban areas
on 30 June 1961, of whom 35,353 came from the three High Commission
Territories, 4,120 from Moçambiquc and 13,808 from other countries 3•
And the number of foreign Bantu workers in agricultural employment in
the Republic on that date was estimated as 270,000 i. In total, therefore,
approximately 635,000 forcign male Bantu workers were in employment
in the Republic on 30 June 1961.
26. l\li~ratory labour is, of course, not peculiar to the African Conti
nent; it 1s also noticeable in many countries outside Africa where ex
panding industries and mining enterprises offer employment to workers,
including foreigners, who are preparecl to migrate temporarily in search
.of highcr wages. An International Labour Office publication describes the
position as follows:
"Alternating movement is now a feature of the employment
market in many countries, but at present little dctailed information
is available concerning it 5."
Although this particular publication deals largely with labour conditions
in African territories, it mentions the system as operating also in non
African terri tories. Thus the following is stated with regard to Turkey:
"Migration from subsistence farming into temporary urban
employment or seasonal work in commercial agriculture is a perma
nent feature of the Turkish employment market 6."
And it also records that in Yugoslavia-
1 Van der Merwe, P. J.,"Die Bantoe-Arbeidsmag in die Republiek van Suid
Afrika" (The Bantu Labour Force in the Republic of South Africa), baNtu, Vol. IX,
No. 4 (Apr. 1962), pp. 2rn-218,at pp. 2r5-216.
2 Separate particulars for these three countries are not available.
3 Report of the Committee re Foreign Bantu (Apr. 1962), p. 164.
4 Ibid., p.142.
~ International Labour Office, Why Labour leaves the Land (1960), p. 165.
6 Ibid., p.170. REJOINDER OF SOUTH AFRICA
1 97
"About half the industrial labour force (some 600,000 in mining
and manufacturing in 1953) are estimated to be 'peasant-industrial
workers' of one kind or another. A large proportion of peasant
income is derivcd from industrial and other non-agricultural work:
a sample survey covering ail regions of the Republic in 1953 showed
that on private farms only 61 percent. of the total cash income was
derived from work on the holding, white 39 per cent. was derived
from off-farm activities 1." (Footnotes omitted.)
In the following sub-paragraphs a brief illustration is given of the
operation of a system of migratory labour also in other countries of the
world. In some cases the illustration is by way of quotations from
authoritative sources, in others by a brief statement of facts obtained
from such sources.
(a) Switzerland
"Over half a million forcign workcrs are now being employed in
Switzerland in the course of each year 2."
"In August, the peak period for seasonal work, there were 550,000
in 1961 and 645,000 in 1962, which isequivalent to about a quarter of
all persons in remunerated activity in Switzerland 2."
"As the figures show, the great majority of foreign wage-earners
currently employed in Switzerland are non-seasonal workers subject
to control. A foreign worker in this category is not permitted to
change his employer, his occupation or his branch of the economy.
What is more, he is forbiclden to bring his family, either wife or
children 3."
(b) Federal Republic of Germany (West Germany)
i'.llr.Anton Sahel, the President of the Labour Exchange and Labour
Insurance; said that-
"[a]ccording to his statistics there will be only 970,000 foreign
workers in the Federal Republic by the end of September [1964].
i'.lfostof the Foreigners working in the Federal Republic, about 31 pc.
corne from Italy, 15 pc. each corne from Spain and Greece. Re
cruiting of labour in Portugal has only started recently. Until today
there were only 3,500 Portugucse working in the Federal Republic 4."
(c) France
According to the International Labour Review there were 78,879
foreign workcrs in France in 1961, mostly from Italy, Portugal and
Spain. The figure in 1962 was II3,019 5•
(d) United States of America
According to statistics furnishcd by the Organization for European
Economie Co-operation, there were in 1957 more than 450,000 immigrant
1 International Labour Office, Why Labour leaves the Land (r960), p.r79.
2 "Foreign \Vorkers in Switzerland", International Labour Review, Vol. LXXX VII,
No. 2 (Feb. r963), pp. r33-r 55, atp. r33.
3 Schneiter, E., "Foreign Labour in Switzerland", EFTA Bulletin (Dec. r963),
pp. 8-12, at p. 8.
•5The German Tribune, 3 Oct. r964.
International Laboiir Review. Vol. LXXXVIII, Xo. 2 (Aug. r963), p. r83. SOUTH WEST AFRICA
farm workers employed in the United States, mainly from Canada, the
West Indies and Mexico 1. 1
"The United States have, since l\)46, attracted a considerable
number of seasonal immigrants, mamly from Mexico. Not all of
these enter the country legally, so that only partial records are
available 2."
"'The domestic migrant labor force is augmented by a foreign
migrant labor force of equal number. A half a million foreign nation
als annually corne to America to harvest our crops. They corne singly,
leaving their families behind, and work for short periods of time
under contracts with our large farm-factories 3."
(e} Mexico
"The number of agricultural workers involved in annual internai
migratory movements was estimated at about 200,000 in 1940. In
1945, according to the census, there were 593,970 workers in .Mexican
manufacturing industries.''
" ... 70,000 migrant workers were admitted to the United States in
1950 under a formai agreement to remedy manpower shortages, in
particular in the south western part of the United States. The
immigration of such workers is complicated by the abnormally large
number of clandestine entrants to the United States from Mexico;
in 1950, for instance, some 565,000 illegal immigrants were identified
and returned to Mexico +."
(f}Peru
"Another result of the poverty of the peasants is the emergence of
a floating indigenous rural population which is obliged to migrate
periodically to the coast in search of employment on the big cotton,
sugar and rice plantations.
Only a small proportion of Indian labour is full-time, however.
Normally the Indian alternates between mining work in the high
tablelands and agricultural work in the valley 5.''
(g) Argentine
"In the north of Argentine several thousand Indians penomcally
leave their tribal homes to work in the sugar plantations in Salta and
Jujuy. It was estimated in 1940 that 25,000 Toba and Mataco
emigrate each year for this purpose. Thousands of Indians also corne
from Bolivia to work in the plantations or in the mining area of
6
Jujuy .''
(h} Puerto Rico
"Recently the demand for farm labour in the United States has
given rise to a seasonal type of migration. American farm interests
contract the labourers in Puerto Rico, pay their transportation to the
1 International Labour Office, Internationali\.figration r945-r957(1959), p. 154.
2 Ibid.,p.153.
3 United States Senate Committee on Labor and Public Weliare, Sub-Committee
on Migratory Labor, The Migrant Farm Worker in America (1961), p. 10.
4 International Labour Office~Intemational Labour Conference, Thirty-Seventh
Session, 1954, Fifth Item on the Agenda: Migrant Workers ( Underdeveloped Countries),
Report V (1) (1953), pp. 44-45.
~ International Labour Office, op. cit., p. 5r.
6 Ibid.,p.55. REJOINDER OF SOUTH AFRICA 199
mainland, and retum them to the island after the harvest. As long as
there is full employment and high labour wages in the United States,
this type of scasonal movement fill probably continue 1."
IV. THE ExTENT To wmcH THE LABOUR FoRcE IN Sourn WEST AFRICA
ls IN FACT MIGRATORY
27. For an appreciation of the extent to which migratory labour is in
fact employed in the economy of South West Africa, it is necessary to
deal with certain calculations made by Applicants in regard thereto. and
with statements in the Reply which misrepresent the position.
In the Counter-Memorial 2 Respondent indicated that of the 65,998
adult male natives employed in the Police Zone in 1960, 27,771 came
from Ovamboland and 850 from the Okavango.
Applicants say that these 28,621 workers represent approximately 10
per cent. of the population of the northern sector, and, calculating on a
life expectancy of 60 years as a base, they compute that "10 percent. of
the population of the northern sector is the equivalent of approximately
one-half of the adult male 'Natives' between the ages of eighteen and
forty-two" 3• However, when this calculation is applied by them in argu
ment, Applicants simply aver that there is a "prolonged absence of
approximately one-half of the adult male population [from the northem
reserves)" 4.(ltalics added.)
This statement is, of course, false. It departs from Applicants' own
calculation, in which the number of workers in question was expressed
notas one-half of all the adult male Natives of the northem sector, but as
one-half of the adult male Natives of a certain age group only.
28. Also in another respect Applicants misrepresent the labour position
in the Territory. They say that the balance of the Native labour force in
the Police Zone (i.e., not hailing from the northern sector), which is
"recruited from among the inhabitants of the 'Native' reserves within
the Police Zone, or is obtained from 'Natives' resident on 'European'
farms or in urban areas", also provides labour which is "temporary in its
essence" 5.This they say is so because of "the sweeping powers of the
Administration with respect to 'Native' rights of residence anywhere in
the Territory", and because "[d)e jure and de facto the entire 'Native'
population of the Territory is so controlled and powerless with respect to
rights of residence and freedom of movement" 5.
Respondent denies that the measures effected in order to control the
residence of Natives in urban areas, or the movement of Natives within
the Police Zone, which measures have been dealtwith fully in the Counter
Memorial 6, have the effect that labour in the Police Zone is "temporary
in its essence". On the contrary, the said measures have a stabilizing
effect in preventing Natives from roaming over the Police Zone without
employment or other means of livelihood. .
That there is some measure of migratory, or shifting, labour among
1 International Labour Office, op. cit. pp. 57-58.
2 III, p. 74 (para. 17).
l IV, p. 407,footnote 4.
• Ibid., p.408.
5 Ibid .. pp407·408.
6 III, Book VI (III), passim.200 SOUTH WEST AFRICA
Natives who are ordinarily resident within the Police Zone, is not denied.
Natives do move from the reserves within the Police Zone to take up
employment in the nrral and urban areas. There are, however, no statis
tics availableas to the incidence of'such movements. In most cases such
movements would hardly be of a migratory nature in the sense in which
that word is generally used relative to labour conditions, inasmuch as the
majority of such Natives have their families with them at the places
where they are employed, i.e., either on farms or in Native townships in
the urban areas.
The following statement relative to migratory labour in the Territory is
contained in the report of the Odendaal Commission:
"The oniy migratory part of the population is the 27,771 workers
from Ovamboland and 850 from the Okavango who work temporarily
inthe Southern Sector for periods ranging from one to two years for
married persons and from one to two and a half years for single
persons 1."
The figure of 28,621 [27,771 plus 850] given by the Commission for the
year 1960 did not include a further 4,528 Native workers who entered the
Police Zone from beyond the borders of South West Africa, mostly from
1
Angola .Here too, as in many rapidly developing countries, it is found
that foreign workers are attracted to the Territory for gainful employ
ment.
The number of territorial Native workers in the Police Zone in the
year 1960 who can properly be called migratory (28,621), reprcsented
approximately 43 per cent. of the total labour force employed in that
Zone during the said year.
V, FUTURE DEVELOPMENTS REGARDING THE SYSTEM IN SOUTH WEST
AFRICA
29. The prcsent dualistic pattern of the economy of South West
Afnca-i.e., an economy divided into a modern and a traditionalsector
must in Respondent's view be seen as a transitional phenomenon, bound
to disappear intime as the traditional sector is gradually brought to the
same level of productivity as that of the present modern economysector.
By "exporting" its labour services, the traditional sector is ensuring the
continued growth of the modern economy, a process which, in conjunc
tion with appropriate measures aimed at the development of the non
White areas, will gradually but steadily bring about a transformation of
the traditional cconomy of the Native groups into a modern one.
This implies that migrant labour in the Territory is not to be viewed
as a permanent institution, but rather as a temporary expedient in the
economic development of the Territory-albeit an essential one. As the
traditional economy of the non-White areas is being transformed and
developed, it will offer ever increasing opportunities of employmcnt to
the inhabitants of such areas, and thus the need to leave these areas in
scarch of gainful employment elsewhere as migratory workers will
consequently diminish, and may eventuallydisappear altogether.
30. This process of transformation must, however, of necessity be one
that will take some time. Economie dualism is inextricably bound up with REJOINDER OF SOUTH AFRICA 20I
traditional and deep-seated socio-cultural attitudes whlch cannot be
altered by radical steps, but require considerable time and patience to
change. To quote an authoritative United Nations publication in this
respect:
"If it is to be a smooth and not unduly painful process, the
transition from rural peasant to urban industrial worker is not one
tha t can be grea tly accelerated 1."
The same publication contains also the following:
"The social organization of the subsistence or near-subsistence
sectors of under-developed countries invariably contains elements
which are not conducive to the internai growth of new forms of
industrial production and which generally constitute serious
2
obstacles to the introduction of these new forms from without .''
In this regard an International Labour Organization Survey of African
Labour states:
"The deep social implications which land-and cattle in areas
where they are raised-have for Africans mean that resistance to
reforrns, which is often stigmatised as conservatism, laziness or
stupidity, in fact springs from complex social and cultural factors
linked to existing customary systems of agriculture ."
And another authority, N. S. Carey Jones, has written:
"One of the biggest problems in Africa, and which has hardly been
tackled, is that social institutions and ways of living adapt them
selves to a changed economic environment slowly 4."
31. Where, for the reasons aforestated, transformation of the economy
of the traditional sector must of necessity be a slow process, while at the
same time economic development in the modem sector may proceed at
a faster rate, the question may well arise whether in these circumstances
a diminution of migratory labour can ever be expected-at least in the
foreseeable future.
With regard to Africa generally, the International Labour Organisation
has answered this question as follows:
"However, a diminution of migrations is not likely to occur in the
near future; it may be expected, on the contrary, that the slow
progress of social measurcs as compared to the rapid industrial
development of the continent will lead to a further increase in
migratorymovements 5."
ln South \:Vest Africa, however, future developments may, in view of
the particular circumstanccs of the Territory, be different, and are, indeed,
expected to be. In the first place, it is questionable whether, with its
present known resources, much further development can be expected
in the economic potential of the Police Zone. And, secondly, the develop
ments which, pursuant to the report of the Odendaal Commission, are
1 U.N. Doc. E/2670, ST /ECA129, Processes and Problems of Industrializationin
Under·developed Coun/ries (r955), p. 21.
2 Ibid., pr8.
3 International Labour Office,African Labour Si,rvey (1958),p. 6r.
• Carey Jones, N. S.,The Pattern of a DependentEconomy (1953), p. 12r, footnote r.
5 ··rnter-TerritorialMigrations of Africans South of the Sahara", International
Labour Review, Vol. LXXVI, No. 3 (Sep. 1957), pp. 292.310, at p. 310.202 SOUTH WEST AFRICA
being initiated or accelerated in the non-White areas 1,must create ever
increasing opportunities and avenues of employment within such areas,
thus tending to diminish the need for migrato:ry labour from such areas
into the Police Zone. This would apply particularly to Ovamboland,
whence the bulk of the present migra tory labour force is drawn, and where
large development projects are being initiated in implementing the
2
recommendations of the Commission •
VI. APPLICA::ns' CRITICISMS OF THE MIGRATORY LABOUR SYSTEM
ÛPERATING I~ THE TERRITORY
32. Applicants contend that, in permitting the operation of a system
of migratory labour in the Territory, Respondent has violated its obliga
tions towards the inhabitants, inasmuch as the "consequences of the
policy are impossible to reconcile with the positive obligations of Article
2of the Mandate" 3•Arguing in support of this contention, they say:
"A factor contributing to economic stagnation of the northern
reserves is the prolonged absence of approximately one-half of the
adult male population therefrom 4."
Respondent has already indicated that this statemcnt, in so far as it
describes the proportion of the population which is usually absent from
the northem reserves as a migrant labour force, is incorrect 5• Much
less than "one-ha1f of the adult male population" is absent from the
northem reserves at any one tirne.
33. As proposais for counteracting what they describe as the "econo
mic stagnation" of the said reserves, Applicants put forward two sugges
tions. The first suggestion is that-
"[w]ere the families of 'Native' labourers permitted to accompany
them to their work, population pressure upon the land inevitably
would decrease with the possibility of a correspondingly more
prosperous agriculture for those remaining; similarly, the land in the
northern reserves would tend to be farmed by persons who would
devote themselves exclusively ta fanning, rather than on a 'part
time' basis by persons who migrate to and from the Police Zone at
intervals 4 ".
The suggestion that the families of migrant workers should accompany
the workers "to their work", is apparently put forward on the basis of
a suggested temporary sojourn in the Police Zone. This is, indeed,
implied in another statement in the Reply, where Applicants speak of-
". . . the widely-criticized policy of preventing the families of
'Natives' from the northern reserves from accompanying them on
their tours of employment ... 6".
Jt is, however, followed by a more far-reachingsuggestion in the following
terms, viz.:
"If equality of opportunity were afforded to inhabitants without
1IV, pp. 202-21r.
a Ibid.pp. 203-204.
3 Ibid.p. 409.
• Ibid., p.408.
' Vide para. 27, supra.
6 IV, p. 413. REJOINDER OF SOUTH AFRICA 203
restriction based on 'group', tribe or colour, many families would
remove from the reserves to the Police Zone; a surplus of production
would result in the reserves, in place of the subsistence economy
which now frustrates creation of capital or entrepreneurial skills
from within 1."
In making these suggestions, Applicants, in the first place, seem to have
misled themselves as to the whole premise upon which their argument is
based, and, secondly, to have given no thought to the implications
involved.
34. Applicants' argument in respect of both the aforementioned
suggestions is based on an assumed premise that there is a "population
pressure upon the land" in the northern reserves, and that this situation
compels the practice of a mere subsistence economy, or, to put it in their
own words, "the inhabitants cannot generate capital owing to the
subsistence economy which is fostered ... by the large population" 1.
Applicants' basic premise is, of course, false: there is in fact no "popu
lation pressure upon the land".
As a reason for assuming that there is such a "pressure", Applicants
refer to certain statistics furnished in the Counter-Memorial relative to
population increases in the northern reserves, including Ovamboland,
in respect of which Respondent commented as follows:
"This rapid increase of population, particularly during the period
of Respondent's administration of the Territory, points to the
favourable conditions under which the Ovambo have been living 2."
It does not, however, follow that, because there has been a rapid increase
in population, there is also a "pressure upon the land". Far from that
being the case, large portions of the northern reserves are not put to
agricultural use at all. Nor is a form of subsistence economy practised
because of any alleged limitations of land, or because of any increase in
population figures. It is practised by the indigenous people of South
West Africa, like the inhabitants of other countries in Africa, as an
age-old tradition 3,which can be altered only by a very slow and gradua!
process of education and the introduction of modern economic methods ~.
Subsistence economy in the reserves is as little fostered by the size of the
population today as it was "fostered" by the very much smaller popu
lation which existed at the inception of the Mandate 5,when the practice
was even more tradition-bound than it is at present.
In this regard Applicants, when quoting from the report of the Oden
daal Commission 6 to the effect that the inhabitants of the northern
sector "consume what they produce and there is consequently little
building up of permanent capital assets", and that "animal husbandry
and crop production are practised mainly for self-maintenance", conve
niently omit to state that the Commission did not find this situation to
exist because of a "population pressure upon the land", but because, to
use the words of the Commission, the" ... economy [of the Natives] is
1 IV, p. 409.
2 III, p. 8.
3 Vide Chap. III, para.5, infra.
4Ibid.,para. 6, infra.
' Vide III, p. 8.
6 IV, pp. 408-409.204 SOUTH WEST AFRICA
still rooted in the traditional subsistence economy, in both the physical
and the psychological sense of the word ... 1''.
Respondent deems it appropriate to draw attention, in so far as the
future is concerned, to its acceptance in principle of the Commission's
recommendations that provision be made for an appreciable extension
of the areas of the existing Native reserves in South West Africa. Save
in the case of the Kaokoveld, which is very sparsely populated, the
recommendations of the Commission involve, inter alia, the addition of
large areas of land to the proposed homelands in the northern sector 2•
35. Applicants' further arguments that a reduction of population in
the northern reserves will bring about "more prosperous agriculture for
those remaining" 3. that "the land in the northern reserves would tend
to be farmed by persans who would devote themselves exclusively to
farming" 3;that "a surplus of production would result in the reserves" 4;
and that "[n]ot only would production be more efficient, but a natural
modernization of agricultural methods would take place" •, not only
founder with the premise upon which these arguments are based, namely
that there is a "population pressure upon the land", but also reflect a
totally unrealistic view of the situation in the northern reserves and the
traditional customs of its peoples.
The fact that the Native inhabitants of the northern territorics gene
rally practisc a form of subsistencc economy and do not produce a
surplus over and above their immediate needs, cannot be ascribed to
lack of opportunity for expansion in their farming activities, nor to a
lack of encouragement to apply modern methods. It is, as already stated,
due to an ingrown tradition which, as indicated elsewhere in this Rejoin
5
der ,will take a considerable time to change by educating the Natives,
and leading them from a subsistence economy to a modern economy.
That much has already been achieved in this regard, is evidenced by
the finding of the Odendaal Commission that-
"[t]o a great extent ... the modern exchange economy has already
strongly influenced the snbsistence economy of a large part of the
population 6".
But that further efforts in educating and encouraging the Natives to
adopt improvcd mcthods, and to look beyond their immediatc needs,
will still entail a lengthy process, is equally clear from other findings of
the Commission, viz., that the Natives in the northern areas-
"[o]n the whole ... have not sufficient skill and enterprise, either to
triumph over local conditions and the limitations imposed by nature
in their own areas 1",
and that-
"these traditional sectors are still a long way from capital formation
by their own efforts for investmcnt in projects which could promote
their own cconomic development-still far from the stage where the
1 R.P. No. 12/1964, p. 315 (para. 1286).
2 Ibid., pp. 81·89 and Chap. III, paras. 27-28, infra.
3 IV,p. 408.
4 Ibid., p409.
s Vide Chap. III, paras. 5·8.
6 R.P. No. r2/r964, p. 315 (para. 1284). REJOINDER OF SOUTH AFRICA 205
indigenous population could advance themselves by their own drive
and volition from a stationary economy to self-sustaining growth.
They will still have to be given much aid and advice to encourage
them on their way ... 1"
The aforementioned considerations apply equally to Applicants'
further criticisms that the migratory labour system deprives the northern
reserves "of the presence of a large percentage of the able-bodied men"
and "[a]t the same time, the initiative for effecting changes devolves
upon the women inhabitants in addition to their accustomed labour
on the land" 2•In this regard, too, custorn and tradition play their part,
inasmuch as the bulk of the work as far as agricultural activities are
concerned was traditionally performed by the womenfolk 3• And this is
still the position today, even when the menfolk are not absent in the per
formance of migratory labour but are resident with their families in the
reserves.
36. Not only would implementation of Applicants' suggestions fail
to bring about the progress and prosperity which they predict for the
northern areas if there were to be a mass exodus of workmen and their
families to the Police Zone, whether on a temporary or a permanent basis,
but their suggestions reflect a total lack of insight into, and appreciation
of, the economic conditions of the Territory and the customs and tradi
tions of the indigenous people.
ln suggesting that the families of Native migrant workers should be
permitted to accompany them "on their tours of employment" 4, Appli
cants seem to have given no consideration to the implications of such a
policy, either in so far as the workmen themselves are concerned or as to
the effect which it would have on the economy of the Territory.
Irrespective of the light in whîch the tribal authorities would view this
proposai 5,it is doubted, for the reasons already stated 6,whether, if such
permission were to be granted, and if the workmen were to appreciate the
necessary consequences of taking their families with them, any apprecia
ble number would in the long run avail themselves of the right. Those
that would venture the step, would upon their retum to their rural homes
after expiration of their contracts of service, be sadly disillusioned, for
not only would their farming activities have corne to an end during their
absence, but they would also, in the words of the authorities to which
reference has been made , have lost the "only security" which they
understand, viz., the "rights to the use of tribal land" 6•And the question
would then immediately arise as to their sustenance in the reserves while
waiting for the next period of employment to commence. Applicants do
not venture an answer to this problem. Nor, it would seem, have Appli
cants given thought to the other implications which would arise in the
modem economy sector if their suggestion were to be implemented. There
would be the cost of transport of the workmen and their families over
many miles in a land in which transport is at all times a vexed problem;
1 R.P. No. 12/1964, p. 513 (para. 1551).
2 IV, p. 409.
3 Il, p. 324 (para. 47).
i Vide para. 33,supra.
' Vide II,p.325 and III, p. 73, regarding the opposition of the tribal authorities
to such a step.
6 Vide para. 18, supra.206 SOUTH WEST AFRICA
the cost of accommodation of the workmen and their familles and the
provision of other facilities and conveniences at their places of employ
ment, albeit only for the duration of their contract periods. These costs
would have to be borne by the economic resources within the Police Zone,
either by way of a very much increased wage to the workmen or by pro
viding accommodation, conveniences and other facilities in kind, neither
of which can, as will be shown hereinafter, be afforded by the economy
oftheTerritory 1.
37. Similar, and even more serious, implications would be involved in
the implementation of Applicants' other suggestion, viz., that-
"[i]f equality of opportunity were afforded to inhabitants without
restriction based on 'group', tribe or colour, many families would
remove from the reserves to the Police Zone ... 2".
For the same reasons as have been mentioned relative to Applicants'
suggestion that families should be allowed to accompany the workmen on
their migratory visits3,Respondent expresses grave doubt whether, ifthe
consequences were realized, any appreciable number of Natives would
choose to sever their ties with the traditional sector and settle permanent
ly with their familles in the strange surroundings of the modern economy
sector, away from their traditional cultures and customs, and without re
taining rights to the use of tribal land. That many Natives would be at
tracted by the novelty of living in urban areas, and would, if permitted,
embark upon such a venture, can be foreseen. But it can equally be fore
seen that the rigours of city life, and conditions in times of unemploy
ment, sickness and old age, might well, after the experiment had been
tried, cause many such settlers to return to the reserves.
In any event, 1mplementation of Applicants' proposai is not economi
cally feasible. Under present circumstances, implementation of their
suggestion would require that the large number of people envisaged would
have to be provided with employment, with housing and with other social
amenities by the enterprises which at present attract the bulk of the
labour force: the mining industry, the fishing industry and agriculture.
The suggestion implied in Applicants' proposai, viz., that these three
sources of employment can create employment opportunities at will,
rather than in accordance with market conditions, is so naïve that it
merits no further consideration.
38. With regard to the suggested permanent accommodation of a
large number of workmen and their families in mining, industry and
agriculture in the Police Zone, Respondent states as follows:
(a) The Mining Industry
Mining areas in the Territory are situated in parts which have no
other economic activities on any scale, so that the mining companies
concerned are compelled to accommodate ail their employees themselves.
Apart from accommodation, recreation and other social amenities must,
of course, be provided. This means a heavy capital outlay for industries
already affected by very long distances separating them from both
sources of supply and from markets, and by the considerable extra
1 Vide para.38, infra.
2 IV, p.409.
3 Vide para.36, supra. REJOINDER OF SOUTH AFRICA
207
awards they have to pay in order to attract both capital and skilled
personnel.
It goes without saying, that this outlay would have to be very much
greater if whole families were to be housed in individual dwellings and
provided with schools, hospitals, and other necessary facilities, than
when single workers are accommodated. Mining is based on the exploi
tation of a wasting asset, the exhaustion of which automaticallyrenders
obsolete not only the productive apparatus, but also the homes and
other facilities which cannot be transferred to other occupants in an
otherwise uninhabited area. In this regard mention may be made of
the view expressed by the Odendaal Commission that the diamond fields
and base metal mines in the Police Zone, which at present produce more
than 90 percent. of the mining output in the Territory, "will in ail prob
ability be largely worked out in 25 years' time" 1.
These are important considerations when thought is given to pro
posais to stabilize a labour force dependent on the mining industry. Thus,
with regard to migrancy and urbanization of Native workmen in the
Republic of South Africa, G. E. Stent has stated:
"Were the anticipated life of the mines long, or were it a question
of beginning new operations with riew methods, it might be an
economical proposition [i.e., to encourage a stabiliz:ed labour force].
As it is, however, the outlay would be spread over only a limited pe
riod of working, and as such its cost would prove prohibitive 2."
In the circumstances it must be obvions that the mines would suffer
heavily and could be forced to dose down, if they were compelled to
provide not only for the workers but also for their families-whether
provision were to be made in cash, by way of increased wages, or in kind.
(b) The Fishing lndustry
The fishing industry differs from the mining industry in that it opera tes
on a more permanent basis or is, at least, expected to do so. The industry
îs, however, subject to significant seasonal fluctuations, with the result
th:at it is active for only part of every year, and cannot afford to employ
a permanent labour force. It would a fortiori be unable to provide
permanent accommodation for workmen and their familles. The migra
tory labour system is therefore the only practical modus operandi in this
industry. The average number of extra-territorial and northern Natives
employed in factories in the Police Zone every year is 2,588, their con
3
tracts generally being for eight months of the year • A very large
proportion of the said number are employed in the fishing industry.
(c) Agriculture
Although stock farming in the Police Zone is also a permanent activity,
and is not marked by seasonal fluctuations, it offers very little scope for
large-scale permanent settlement by non-White workers. Inasmuch as
the Police Zone often suffers protracted droughts, stock diseases and
epidemics, resulting in a substantial curtailment, albeit temporarily, of
the agricultural labour force, settlement of a large number of. workmen
and their families on farms would be at best a precarious venture.
1 R.P. No. r2/r964, p. 333 (para. r3r2 (v) b).
2 Stent,G. E., "Migrancy and Urbanization in the Union of South Africa",
A/rica,Vol. XVIII, No. 3 (July r948), pp. r6r-r83at p. r83.
3 Departmental information. SOUTH WEST AFRICA
208
With regard to non-White persons employed in other branches of
activity in the modern economy sector, it is true that many of them are
in fact housed in urban townships together with their families. It may
be expected that as employment opportunities in commerce, building and
construction, administration and the services increase, their number wm,
for some time at least, also rise. The scope for such an increase is, however,
limited, and will largely depend on the extent to which primary economic
production-mining, fishing and agriculture-stimulates secondary and
tertiary activities. And, as has already been stated 1, it is questionable
whether any considerable further development can be expected in the
economic potential of the Police Zone. ,
39. From the aforegoing it is clear that fondamental economic factors
strictly limit the modern sector's capacity for absorbing, on a permanent
basis, a large number of the population of the northern territories.
There are, however, additional and equally fW1damental considera
tions bearing on the absorptive capacity of the said sector. A policy of
encouraging stabilization of labour by way of settlement of a larger
permanent labour force in the Police Zone, must tend to reduce sub
stantially employment opportunities for those normally resident in the
traditional sector. Implementation of Applicants' suggestion could,
therefore, in this respect result in hardship for the majority of the Natives
in the Terri tory.
40. Another fondamental consideration bears on the number of people
involved. It is of course impossible to estimate the number of Natives
who would, if permitted, remove with their families from the northem
sector and settle in the Police Zone. Applicants' whole thesis, however,
is based on a presumption that there will be a large exodus of the popula
tion from the northern territories-otherwise the whole point in Appli
cants' suggestion is lost. An absorption of such a large community into
the Police Zone must surely, in addition to the economic problems
attendant thereupon, bring about more and even greater social evils than
the adverse effects of the present system of migratory labour. Thus, in
the words of a United Nations publication already referred to,
"[t]he multitudes that congregate in and around the cities ofmany
of the W1der-developed countries today, technically living in an
urban environment bnt socially and culturally still to a large extent
peasants, by the sheer magnitude of their numbers pose social
problems that the industrializing countries of Europe did not have
2
to face ".
There are signs that, failing appropriate counter-measures, a similar
condition could very easily develop in the Territory, for in the words of
the Odendaal Commission:
"From evidencc submitted to the Commission it would appear
that there is at present a considerable influx of non-Whites with their
familles from the rural areas [within the Police Zone J into the larger
towns despite the fact that there are insufficient avenues of employ
ment for them in the urban areas 3."
1 Vide para.31. supra.
z U.N. Doc. E/2670, ST/ECA/29, Processes and Problems of Induslrializationin
Under-developed Countries (I955),p. 119.
3R.P. No. I2/1964, p. IIJ. REJOINDER OF SOUTH AFRICA 209
In the circumstanccs Respondent would indeed be failing in its duty
if it were to adopta policy as suggested by Applicants, instead of taking
steps to prevent the position from deteriorating into the chaos and misery
which beset the urban areas of so many other under-developed countries.
Applicants' suggested solution of the problems of migratory labour,
i.e., by permitting an uncontrolled influx of Native families from the
northern sector into the Police Zone, can, to say the least, only result in
economic regression and an aggravation of existing social problems.
The position which would be created by an implcmentation of Appli
cants' suggestion would be bad enough intimes of relative prosperity, as
is now being experienced in the Territory, but, inasmuch as the economy
of the Territory is geared to exports of primary products and is therefore
dependent on world market. prices, the position must surely and in
evitably lead to disaster in the event of industrial setbacks or economic
depressions.
41. For the reasons aforestated, implementation of Applicants' sug
gestions would not foster progress in the reservcs, nor would it be feasible
from the general economic point of view. On the contrary it could only
lead to economic disruption of the enterprises which have been built up
in the Police Zone and which serve as the foundation of the economy of
the Territory.
42. In the premises Respondent submits that, upon analysis, there is
no substance in Applicants' charges that "[t]he ... consequences of the
policy [of migratory labour] are impossible to reconcile with the positive
obligations, of Article 2 of the Mandate" 1, and that, in permitting a
system of migratory labour to operate in the Territory, Respondent has
violated its obligations towards the inhabitants of the Terri tory 1.
D. Applicants' Allegations regarding Low Wages
in the Territory
I. GENERAL
43. Whereas in the Memorials Applicants made no complaint regarding
wages paid in South West Africa 2, a complaint is now introduced in the
Rcply that Native labour is cheap, and that the wagcs paid to Native
labourers are low. Thus, in support of an argument that the Native child
is educated for a "distinctive role in the economic Iife of the Territory,
that of agricultural and industrial labourer", Applicants rcly, inter alia,
on a statement bv the Committee on South West Africa to the effect
that- ,
"... their training and education seems directcd merely to preparing
the 'Natives' as a source of cheap labour for the benefit of the
'Europeans' 3".(ltalics added.)
In dealing later with the opportunities offcred to the Natives in the
1
IV, p. 409.
2 The only rcference in the Mcmorials to alleged "low wages" was contained in an
extract from a petition by Hosea Kutako and others to the United Nations, quoted
by Applicants at I, p. r7r, as supplementalmaterial in support of their allegations
regarding "Government and Citizenship". Applicants themselves did not make such
a complaint. Vide IV, p. 18 (para. 47).
3 IV, p. 406.2IO SOUTH WEST AFRICA
economy of the Territory, Applicants refer to "[t]he predilection of
1
employers for low-costlabour ... " (italics added). and, still later, there
follows the categorical statement by Applicants that "[t]he wages paid
to 'Native' labourers are extraordinarily low" 2 (italics added).
Respondent has some diffi.cultyin dealing with Applicants' bald allega
tions that the cost of labour in the Territory is "low" and that the wages
paid to Native labourers are "extraordinarily low" in that-
(a) Applicants themselves furnish very limited and, in fact, incorrect
information regarding the wages paid to Native workers in the
Territory 3, and may therefore, in drawing their conclusions, have
been misled by their incorrect factual information; and
(b) they do not state by what criterion they have measured wages when
drawing the conclusion that such wages are "extraordinarily low".
Respondent will hereinafter give consideration to both these aspects.
44. With regard to wages paid to Native workers in the Territory,
Applicants say:
"The average cash earnings per month of 'Native' workers in the
Administration, the railways, the mines, on roads, in municipalities,
in industries and in domestic service was reportcd by the Committee
on South West Africa as estimated at f5 10s. Sd. [i.e., Rn.06], for
1956 2."
That Applicants have in the above staternent misrepresented the fig
ures givcn in the Committee's report is clear whcn regard is had to the
relevant part thereof, which reads as follows:
"Average wage rates for recruited or local 'Natives' during 1956
were reported to be fS Ss. gd. [Rrn.88] for farm labourers and in
urban areas f8 6s. o!d. [RI6.6o]. These calculations were based on
wages earned by workers in the Administration, the railways, the
mines, on roads, in municipalities, in industries and in domestic
service. The average cash earnings per month of the last mentioned
group were stated to be {,s Ios. Sd. [Rn.06] 4." (Italics added.)
The figure given by the Committee was obtained by it from the report
of the Commission of Inquiry into Non-European Education in South
West Africa. The figure of f5 ros. 8d. (Rn.06) quoted by Applicants was
the average monthly wage of domesticservantsand not the average month
ly wage of the other classes of workers mentioned by Applicants, which
was f8 6s. o!d. (R16.60).
45. The only other particulars furnished by Applicants with regard to
Native wages are contained in the following extract from a report of the
Special Committee for South \Vest Africa, viz., "[t]he basic wage under
[the contracts for Northern labour] ... is 18 cents a day, increasing
1~~~ •
2 Ibid.,p. 4I7,footnote 3.
3
In section (2)of Annex 6 to the Reply, IV, p. 437, reference is made in the
Rep01't ofthe I.L.O. Ad hoc Committee on F01'cedLabour to allegations in petitions
received by it from Native persons and organizations in South West Africa to the
effect that the wages paid to Native workers in the Territory are Iow. No information
is, however, given in the Committee's report regarding wages in the Territory, and
the Committee did not deal with the complaint, inasmuch as it considered that
"investigation of [the] question would be outside its terms of reference" (par382).
• G.A ., O.R., I5th Sess., SuppNo. 12 (A/4464), p.41 (para.321). REJOINDER OF SOUTH AFRICA 2II
slightly with length of service" 1.The true position is that a minimum cash
wage is fixed for all northern and extra-territorial Natives who enter the
Police Zone in order to take up employment therein. The minimum wage
differs as between the varions occupations in which the said Natives
are employed. The minimum wage rates which apply at present are the
following 2 : '
(a) For Natives employed on mines and in industry
17t cents per shift for the :first 155 shifts;
20 cents per shift for the next 77 shifts;
22t cents per shift for the remaining 77 shifts.
This works out at an average of 19.3 cents per shift for 309 shifts
in the contract period of a year. As Native industrial workers and
mine employees work one shift per day, their minimum cash wage
on an average is 19.3 cents per day, excluding additional remune
ration for overtime.
(b) Domestic servants
The minimum cash rate rises from R4 per month for workers who
are inexperienced, or have physical disabilities, to R5.50 per month
for those who are experienced and have no physical disabilities.
(c) Farm workers
For farm workers, who are not employed as shepherds, the mini
mum cash rate rises, on the same basis as stated in (b) above, from
R4.30 per month to R6.30 per month. In the case of shepherds,
corresponding figures are R5.30 and R7.30 per month.
The minimum wages apply only to northern and extra-territorial
Natives, and are administratively fixed by the Minister of Bantu Ad
ministration and Development in collaboration with the South West
African Executivc Committee, after consultation with the various ~roups
of employers. From time to time the minimum wage rates are ra1sed in
accordance with the rise in the cost-of.living, or as a result of other
changing conditions which bear upon the determination of a reasonable
wage. The minimum rates at present applicable have been in effect since
July 1961. It may be stated in this regard that the following minimum
rates were fixed on 16 November 1964, to corne into operation on a date
to be determined by the Minister of Bantu Administration and Develop
ment 2•
(i) In ail occupations, excluding work on mines, an increase of 50 per
cent. over present rates;
(ii)In respect of mine workers, the rates are to be as follows:
30 cents per shift for the fi.rst 155 shifts;
35 cents per shift for the next 77 shifts;
40 cents per shift for the remaining 77 shifts.
46. While the aforementioned rates are minimum rates, the vast ma
jority of Natives are paid well above the stipulated minimum. In addition,
many receive annual or seasonal bonuses over and above their wages.
Moreover, ail the Native employees who are recruited from the northern
areas are supplied with free accommodation and food, or rations, free
1
IV, p. 417, footnote 3.
z Departmental information. The figures are given in Rand and cents: Rr=rn
shillings.2I2 SOUTH WEST AFRICA
medical attention and also with some articles of clothing, as well as
blankets.
The following tables fumish illustrative examples of the value of
remuneration in cash and kind received by Natives who contract for
employment in the diamond mining industry and in the fishing industry:
TABLE 1
Average monthly wages Average monthly wages
ConsolidatedmDiamondby of Natives employedby
Mines of S. W.A. Ltd. fishingenterprises in
ditring :r963 Walvis Bay during :r964
Basic wage ...... . R6.85 . R5.78
Proficiency and company
allowance ... . R5.65
Overtime .... . 1<4.35 . R10.05
Bonus ..... . R2.rr R3.n
Expenses on Food. R7.57 RS.oo
Clothing expenses . R1.36 Ro.55
Hostel expenses . . . R3.oo
Recreation expenses . R4.13
Ro.23
Medical services . . . R2.57 Ro.30
Total per month R34.82 R30.79
It will be noted from the above tables that in both cases the cash
wages and allowances paid far exceed the stipulated minimum wage, and
that payments in kind fonn a substantial part of the total remuneration.
47. Respondent has already stated that the aforemcntioned minimum
wage rates are applicable only to northern and extra-territorial Natives
who are employed in the Police Zone. Although there is no minimum
wage rate applicable to other Natives employed within the said Zone,
i.e., Nativcs who are ordinarily resident therein, they generally receive
wages which are well in excess of the aforestatcd minimum rates.
This is illustrated by the following table, which reflects the average
monthly income of Natives employed in certain stated occupations in
the rural and urban areas of the Police Zone during 1962:
TABLE 1
Average income per month
Occupatio1ts Rural A reas Urban A reas
Teachers, policemen, clerks . . . . . . . . R45.79 R48.57
Labourers in govemment service ..... R20.64 R22.11
Labourers in service of the railways and
harbours administration . . . . . . . . R22.77 R23.76
Labourers in industrial enterprises. R18.10 R24-38
Labourers in mines . . . . . . . R22.35
Municipal employees . . . . R21.59
Labourers on fanns . . . .
R14.72
Domestic servants (male}. . Rr6.r8
Domestic servants (female) . Rr3.oo
• Departmental information. REJOINDER OF SOUTH AFRICA 213
The above figures stand in sharp contradiction to the average figure of
~~6 per month mentioned by Applicants in the Reply 1.
48. The second feature of Applicants' complaint to which Respondent
drew attention above, is that Applicants nowhere indicate what com
parisons they have made in ordcr to conclude that the wages paid to
Native labourers in South West Africa are "extraordinarily low" 2•
It is therefore impossible to deal with the complaint in this respect
without speculating as to what comparisons Applicants could have had
in mind. In so speculating, Respondent can conceive of only two bases
upon which Applicants could possibly have made a comparison, namely
a comparison of the wage level of the Native labourers of South West
Africa with the wage level of Native employees in other countries, or a
comparison thereof with the general wage level of the European employ
ees of the Territory. Rcspondent will therefore deal with these in turn.
IL COMPARISONS OF THE WAGE LEVEL OF THE NATIVE LABOURERS OF
SOUTH WEST AFRICA WITH TI-IAT OF NATIVE EMPLOYEES IN OTHER
TERRI TORIES
49. International comparisons of wage levels often create misleading
impressions inasmuch as, for obvions reasons, it is almost impossible to
present a complete, accurate and objective picture, mainly for the follow
ing reasons :
Firstly, the purchasing power of a given sum of money can, and very
often does, differ considerably from one country to another.
Secondly, cash wages are often only a part of total wages,especially
in Africa. Apart from free food and housing, which can be interpreted as
wages paid in kind, the cash cquivalents of medical care, educational and
recreational facilities, free transport to and from work, free grazing of
employees' stock, etc., are difficult to determine. Yet these benefitsoften
represent significant contributions to the workers' welfare.
50. While conceding that, for the reasons aforestated, as well as for
other lesser reasons, comparisons cannot be taken to be accurate in aH
respects, Respondent has endeavoured to meet Applicants' bald accusa
tions with regard to low wages by preparing as accurately as it can a
comparative table of the wage level of Native employees in South West
Africa and in other comparable territories.
The table on the following page compiled from the most recent informa
tion available to Respondent, reflects the average monthly wages of
African employecs in the major divisions of economic activity in the
territories mentioned therein.
5r. \Vhile repeating that the said table cannot be regarded as an
accurate comparison of wagc-lcvels, Respondent submits that it gives a
broad picture of the truc position and, in that sense, indicates that the
wages paid to Native employees in South West Africa compare favourably
with the wages of African employees in the countries mentioned in the
table, and particularly with wages paid in the two Applicant States,
which appear to be very low when compared with those in other African
terri tories.
1 Vid~ para.44,supra.
2 Vide para.43, supra. 'rABLE 1
AVERAGE MON'rHLY EARNINGS OF AFRICAN WORKERS
Monthly eamings in Rand
General Major divisions of economic activity
level -
Country 2 Date of Manufac- Con- Agri-
wages 3 turing Mining j structjon Transport culture
1
(a) Total remuneration : pari/y in cash
and partly in kind
South \\'est Africa • . 1964 26.8 27.6 25.9 27.6 26.8 13.8
Kenya• 1959 12.8 5 14.1 7 13.6 7, 13 14.3 7,13 20.5 7,13 6.9 6
Malawi (formerly Nyasaland) 1 1962 13.4 11.4 8.2 I I.4 19.0 6.4
10.0
Southern Rhodesia 1 • 1962 21.2 23.4 18.2 20.4 32.6
Zambia (forrnerly Northern Rhodesia) 1 1962 27.4 23.6 48.2 2r.2 30.4 g.o
Nigeria 9 • r960 14.8 14.8 14.4 10 12.8 24.7 15.0 11
Tanganyika 1962 - - - - - 7.7
- -
Ethiopia. 1958 - 7.4-12.1 - -
(b) Cash remuneralion only
Hepu blic of South Africa. 1963 23.1 35.2 12.0 3r.7 33.o
Ethiopias 10.0 - ro.7-52.1 7-5
1958 ± - - 1.4-7-4
Liberia• . 1957 ± 11.0 - 5.9-10.4 - - 4.6-6.5
Tanganyika 1962 15.4 13.6 14.1 12.7 21 .0 12 -
1 In titis table wa~es pald in othe.r currnndcs have b{!en can,·crted to Ranrt. South Afrlc.1: Munl"111 Hul/;tiof S/aliRlfr•, Yol. XLIII, No. 5 (May 1064),
ILI~ f.0.5= 10 shillings. tables 113, 7, 0 and 1S, pp. 18, 20 and 20.
lnforma!ûm abtaintà /rom the /ollmrin1011rcu: fiouth West Afrlca: Departmental Information.
Ali countrie.,, exccpt Ethlo11la, Liberia,Sonth Africa and South West • J,'ootnlltcs a11pearing imrnediately behind namc of countrles tulude reference
Africn: to agriculture.
Tnternational Labour Office, l'tar Hool: of I,,.JwrStalislic, • lncludlng ail dhislons of activity npr,enrlng ln ndjolnlnl! column~. cxcept
1963, tables 15, 10and 18, pp. 300-361 nnd 414-429. ngrlculturc.
Ethiopia: State J!nnk of Ethloph, Stnt!stlcal Office, Jlrmev Supp/11, • Males only.
Cost o/ Lirino and Relaled J/atùr, (Sep. 1!158), pp. l}-7, • li'alrohl. Adult males; including salaried em11loyccs.
Luther, E, \\'., Etl,iopia Toda11(1958), p. 118. • Il.egular mlult male Jabourers.
Lipsky, G. A., Ethiopia: Its People, lts Culture (!062), pp. ' Inclnding sularie(l employe<ls.
272-274. • l'lo figure• on n strictly comparable bru;\s are nvnilahle for thesi, countries;
l,iberia: 11-16.epartment of Lnbor, Labo• i.Mbaria (May 1900), pp. i11dicat1on of prcrnlling eamings. It is posslhlc tlont sume of the quotcd figures
T11ylor, W. C., Th,, Fire•l.<mOJMralÎ<ml in Lw,ria (1050), iur.lurle payrocnt ln ltind without cxplicitly snyiug so.
p. 6S. • Ali unskllled cmployecs.
Hempstone, S., The Neu, Africa (1001), p. 457. 1• Re fers to 105ij.
Ilance, W. A., African Economie lJerelopment (1%8), p. 238. " Un5klllc,I mules only. llemuncrat!on wholly ln cash.
Carter, G. M., A/rican Ono 1'art11Stale~ (1002), p. 378. " J,;xduding Tanganyika Hailways,
11 Adults ouly. REJOINDER OF SOUTH AFRICA 215
Ill. (OMPARISON OF THE WAGE LEVEL OF THE NATIVE LABOURERS WITH
THAT OF THE EUROPEAN EMPLOYEES IN THE TERRITORY
52. If a comparison between the wages paid to Native and European
workers, respectively, is the criterion upon which Applicants' charge of
"extraordinarily low" is made, then Respondent says that the charge is
wholly unfounded. All over Africa a large and inevitable gap exists in this
regard, for reasons which will be dealt with hereinafter. The only useful
guide to be afforded by this criterion would therefore be to see whether the
gap in South West Africa is wider or narrower than in other parts of
Africa.
53. In the Territory, as in ail other countries characterized by the
juxtaposition of a small but economically highly productive group and a
large but economically backward group, two distinct wage structures are
inevitable, and the reason therefor is twofold. In the first place, in a free
market economy, such as obtains in South West Africa, wages reflect the
productivity or the value of the services of the worker. With the exception
of the physically or otherwise handicapped, where other considerations
prevail, no one is paid more than he deserves on the gronnd of his produc
tivity or the market value of his services. Secondly, wages in the Territory
must, in order to attract and retain a highly productive and skilled Euro
pean man-powrr, at least keep pace with the rate of earnings in neigh
bouring South Africa and elsewhere. In the succeeding paragraphs
consideration will be given to each of these reasons.
54. With regard to productivity and value of services, it is only natural
that, since the European employees are on the whole better educated,
more experienced, and accustomed to skilled work, they generally fill the
more highly remnnerated posts, as compared with the Native employees,
the majority of whom, by reason of lack of education, knowledge and
experience, can only be employed as semi-skilled or unskilled workers.
And it follows as a matter of simple economics that the general wage-Jevel
of the European employees would be higher than that of the Native
employees.
This is generally recognized as the basic reason for a differential wage
level between Europeans and Natives, in Africa. The point is made as
follows in an article in an International Labour Office publication, the
International Labour Review:
"To a large extent, racial wage differentials in Africa are skill
differentials. Europeans and Africans have been, and to a considera
ble extent still are non-competing groups 1."
In the same article the following is stated with particular reference to the
copper mining industry in Northern Rhodesia:
''... the 'skilled' Africans do not have the same degree of skill as the
Europeans and are not given, nor are they at present capable of
2
accepting, the same amount of responsibility ".
Another authority, Professor Stephen Enke, has given the following
general explanation for this situation:
"The wages of natives in the colonies, as in other backward but
1"Interracial Wage Structure in Certain Partsof Africa", InternationalLabour
Review, Vol. LXXVIII, No. 1 (July r958), pp. 20-55, at p21.
2 Ibid.p. 23.216 SOUTH WEST AFRICA
independent conntries, appear to be inhumanly low to most North
Americans. These men must be 'worth' more! They are surely being
'exploited'!
It is often overlooked that native labor in the colonies, lacking
many persona! traits and skills that are taken for granted in more
prosperous countries, is often of value for its muscular strength and
little more ... ln Africa especially, 'cheap' labor has often proved
very expensive, although the truth of this statement may be hard
for anyone to believe who has not worked with it. Labor produc
tivity depends largely on basic cultural attributes 1."
In considering the relationship between the productivity of the African
worker and his wage, the following statement in another issue of the
International Labour Review is of interest:
"If the output of unskilled labour in industry were to be taken as
a yardstick, the picture of the African worker's standards of pro
ductivity would undoubtedly be gloomy. It is unanimously recog
nised that the output of unskilled African workers is extremely low
in almost all the undertakings that employ them 2."
And J. Guilbat, writing on the same subject relative to workers in the
Federation of Cameroon, has stated:
"As compared with a White worker's output, that of the Negro
varies between one-third and one-seventh or one-eighth, depending
on the employer and the trade (or within a given trade). The usual
proportion is about one-quarter. In other words, it takes a Negro
four days to do what a White does in one. And this opinion was con
firmed by ail the employers that we talked to 3."
55. The following tables, taken from one of the aforementioned articles
in the International Labour Review, clearly illustrate the wage differential
between European and Native employees in certain African territories.
(a) Kenya
AVERAGE EARNINGS OF EUROPEAN, ASIA~, A~D Al'RlCAN MAI.ES, 1956 •
Privale indus/ry Public services (inclu-
Race anà commerce ding local government) Agricultu~e
Europeans"'. root 1oot root
Asians* .. 33.45 41.08 45.06
Africanst : . 5.89 2.95
Domestic 4.87
Non-domestic
5.37
Notes: • In full-time employment.
tAli Africans in employment; the proportion of women in the African
labour force is quite small.
:fEarnings of Asians and Africans expressed as a percentage of those of
Europeans.
1Enke, S., Economies /or Development (1963), p. 441.
i "The Productivity of African Labour", International Labour Review, LXXII,
No. 2 and 3 (Aug.-Sep. 1955), pp. n9-r37. at p. r20.
3 Guilbat, J.,Petite étudesur la main-à'Œuvreà Douala, 1947, pp. 50-51, as quoted
in "The Productivity of African Labour", op. cil.
• "Interracial Wage Structure in Certain Parts of Africa", International Labour
Review, Vol. LXXVIII, No. 1 (July 1958), pp. 20-55, at p. 35. REJOINDER OF SOUTH AFRICA 217
(b) Southern Rhodesia
AVERAGE ANNUAL EARNINGS PER HEAD OF EUROPEAN AND AFRICAN EMPLOYEES,
IN MANUFACTURJNG, CONSTRUCTION, AND WATER AND ELECTRICJ'J'Y INDUS
TRIES, 1938-1952 1
A frican earnings as per
cenlage of European earn-
Year ings
1938. 4.63
1943 · 5.08
1948. 5.79
1952. 6.65
(c) Zambia (formerly Northern Rhodesia)
EARNINGS IN CASH AND KIND OF AFRJCANS AND EUROPEANS EMPLOYED BY TBE
COPPER MINING COMPANIES 2
A verage A frican earnings as
percenlage of minimum
Year European earnings
1952. 7.39
1953. 8.98
1954. 9.64
1955. 8.64
Commenting, inter alia, on the aforementioned statistics the article
states:
"Examination of available statistics indicates that the range
between low and high wages is much greater in Africa than in most
other parts of the world. This is a skill differential and at the same
time a racial differential, since Africans are heavily bunched in the
lowest-paid unskilled occu:pations and the highest-paid skilled jobs
3
are occupied almost exclus1vely by Europeans ."
56. In regard to another African territory, Uganda, it was observed in
1962 that "[t]he average monthly cash wage in Kampala is for an African
employee 107 shillings, for a European froo, for an Asian, a little below
[40" 4_
And a publication of the Deparlment of Labor of the United States of
America gives the following description regarding wage differentials in
Lilieria: ·
"Of the 74,000 persons employed in the money economy in mid-
1 "Interracial Wage Structure in Certain Parts of Africa", op. cit.p. 33.
2 Ibid., p. 24.African average earnings include "cash (basic wages, cost-of-living
allowance, copper bonus) and cost of food, housing, light and water supplied free".
European minimum earnings include "lowest basic wage, plus cost-of-living al
lowance, copper bonus and housing subsidy".
' Ibid., p. 54.
• ".Migrant Labour in Africa South of the Sahara-XIII Migrants and Proleta
rians", lnter-African Labour Institutc Bulletin,Vol. IX, No. I (Feb. 1962), p. 6o.:n8 SOUTH WEST AFRICA
I958, approximately 2,700 were Europeans, Americans, Lebanese,
and other non-Africans. Almost without exception, these persans
were comparatively high salaried personnel, self-employed business
men, or members of foreign diplomatie, economic, or religions
1
missions ."
The position is very much the same in Ethiopia, in respect of which
G. A. Lipsky wrote as follows:
"The difference in pay between skilled and unskilled labor is
considerable, even though the particular skills involved may be
very basic. The very highest rates for skilled work are paid to non
Ethiopians, a fact which greatly increases wage differentials between
unskilled and skilled labor 2.''
Another authority, E. W. Luther, who made a study of conditions in
Ethiopia, stated:
"Administrative and technical staff, mostly non-Ethiopian;
receive salaries ten and fifteen times as high as ordinary workers,
with a few top officiaisearning much more 3."
And G. H. T. Kimble, in dealing with wage differentials, stated:
"Comparable disparities could be cited from most of the multi
racial territories. At Dakar (Senegal). for instance, the basic salary
in the mid-I95os of a European clerk employed in a commercial
bouse ranged from the equivalent of SI70 a month to $300 a month,
depending on his length of service in the country. The basic salary
of an African clerk employed in the same kind of work ranged frorn
the equivalent of S35 a month to SI50 4."
57. No comparable figures of wage differentials are available for South
West Africa, but the differential there cannot vary much from the differ
ential in the Republic of South Africa, in respect of which the position is
illustrated by the following table:
SOUTH AFRICA
AVERAGE ANNUAL '.&ARNINGS AT CURRKNT PRICKS OF WHIT.IISAND
BANTU EMPLOYED IN PIUVATE MANUFACTURING AND
CONSTRUCTION INDUSTRIES (m RAND) 5
Bantu earnings as
per,enlage of White
Year Whites Bantu ean1ings
I955-I956 I,62I 300 I8.5
I8.2
r956-I957 I,692 308
I957-I958 I,Jfü 3I6 IJ.9
I958-r959 I,819 330 I8.I
I959-I900 I,872 348 I8.5
I960-r96I r9.r
r,938 JJI
1 U.S. Depa.rtment of Labor, Labor in Lib6ria (May I960), p. 6.
z Lipsky, G. A., Etkiopia: Its People. ItsSociety, ItsCulture (1962), p. 274.
' Luther, E. W., Ethiopia Toda.y (1958), p.118.
4 Kimble, G. H. T.• Tropical Africa, Vol. 1 (I96o), p. 6oo.
5 Steenkamp, \V. F.J.."Bantu Wages in South Africa", The South African]our
nal of Eronomi&s, Vol. 30, No. 2 (June 1962), pp. 93-118, at p. g6. REJOIN'DER OF SOUTH AFRICA 219
Commenting on the above statistics, Professor W. F. J. Steenkamp,
from whose work the said table has been extracted, states as follows:
"A comparison of the South African and European wage diff~
tial does not, in itself, show that local unskilled labour is, economi
cally speaking, being grossly underpaid. If that were so, one would be
justified in concluding that unskilled labour was being exploited in
most dual economies, for largeskill differentialsarea /eature of these
societies. Demand and supply conditions in the labour markets of the
developedand underdevelopedeconomiesdiffersogreatlyas to invalidate
comparisonsofthis nature 1." (Italics added.)
Although the differential figures in the above table on the whole cover a
later period than those dealt with in the tables cited in the aforegoing
paragraphs relative to other African territories, they do, in Respondent's
submission, show that the position in South Africa compares favourably
with that prevailing in the said territories and, inasmuch as the differen
tial pattern in South West Africa cannot vary much from that of South
Africa, the conclusion also applies for South West Africa.
58. A factor having an important bearing on the wage structure in
South West Africa, is that alternative opportunities are open to European
employees in the Republic of South Africa and elsewhere. This means
that the Territory can only attract and retain a skilled and experienced
European manpower by offering it a rate of eamings at least equal to, or
greater than, that obtainable outside the Territory. On the other hand,
this factor does not influence the general wage level of the Native workers,
the large majority of whom are unskilled. This phenomenon is encoun
tered in practically ail the countries on the African Continent where
European employees fill the higher and more skilled posts, while the
indigenous people are largely unskilled workers.
59. The importance of offering a competitive remuneration in order
to attract and retain skilled and experienced personnel, is emphasized
in the following statement in a report of an Economie Survey Mission of
the International Bank for Reconstruction and Development of Tangan·
yika, with regard to expatria te officials:
"While expatria te officials are currently well paid by localAfrican
standards, their remuneration does not compare favorably with
their market value in their own and many other countries. The
Mission encountered various cases where the present salary scale
in the territory appeared insufficient to attract qualified people and
where, in other words, a greater salary differential is perhaps called
for z." (Italicsadded.)
This phenomenon of paying relatively much higher wages to skilled and
experienced expatriates than the wages paid to the indigenous people,
has been noticed also in the other African territories to which reference
has been made above 3.
60. In the premises aforestated, Respondent submits that, if Appli-
1 Steenkamp, o-p.cil., p. 100.
2 The Economie Development of Tanganyika (1961), p. 347-Similar statements
are made in reports of the InternationaBank for Reconstruction and Development
Missions to Kenya (The Economie Deveiopment of Kenya, 1963, pp. 37 and 47) and
to Uganda (The Economie Devel<>pmentoj Uganda, 1962, pp. 23-24 and 38).
3 Videparas. 54 and 55, si;pra.220 SOUTH WEST AFRICA
cants' complaint regarcling alleged low wages of the Native labourers of
South West Africa is based upon a comparison between the general wage
level of European employees of the Territory and that of the Native
employees, then the comparison is meaningless, and the complaint
unfounded. Not only is the differential wagc structure that does exist
inevitable in the economic circumstances of the Territory, as it also is in
other countries with comparable conditions, but the differential appears,
in fact, to be less in degree than in those territories in Africain respect of
which available statistics have been quoted above.
6r. It will be convenient to deal in this context also with certain
further accusations made by Applicants which are allied to their charges
concerning alleged "low-cost labour" and "low wages".
In the Reply 1 Applicants quote an extract from a newspaper, the
Windhoek Advertiser, in which the former Administrator of the Territory,
Mr. D. du P. Viljoen, was reported to have made a plea to employers of
labour in South West Africa to "do with as little non-European labour
as possible. We must create a surplus of labour".
Applicants say with reference to this reported statement that Respond
ent "has not concealed the racially discriminatory motivation of
economic apartheid'' 1,thereby apparently contending that it is Respond
ent's policy to create a surplus of non-European labour in the Territory,
with the implication that Respondent fosters the creation of a low wage
level for non-European employees.
Applicants' contention, and the implication arising therefrom, are
unfounded. With regard to the statement of the Administrator, Respond
ent states that the newspaper report related to a speech made by Mr.
Viljoen at a social function at Walvis Bay during January 1960 in which
he referred, inter alia, to labour conditions. \Vhen the newspaper report
was brought to the notice of Mr. Viljoen, he stated that his speech was
neither fully nor correctly rcndered in the report. Indeed, if Mr. Viljoen
had made the statement attributecl to him, it would have been in dlfect
conflict with the policy of, and pronouncements made by, Respondent
regarding this self same issue. It has never been Respondent's policy to
create a surplus of labour, or to reduce, or peg, the wages of Natives or
othcr non-Europeans in the manner suggested by Applicants, or other
wise. On the contrary, Respondent's whole system of control of Native
labour is designed, inter alia, to protect the Native population in the
developed areas. If Respondent's existing control measures were to be
abandoned, an influx of Natives to the urban areas would bring about a
surplus of labour, and consequently a lowering of wages. And the very
fact that a minimum wage is laid down for northern and extra-territorial
Natives who enter the Police Zone to take up employment therein 2,
dispels any suggestion of a desire to create a situation of "cheap labour".
62. In support of its denial of Applicants' allegations in this regard,
Respondent quotes the following extracts from statements regarding
labour policy made by the South African Prime Minister, Dr. Verwoerd,
both before and after the occasion of Mr. Viljoen's speech in January
1960.
At the opening, on 17 Decembcr 1956, of the Fifth Annual Congress
1 IV, p.410.
2 Vide para.45, supra. REJOINDER OF SOUTH AFRICA 22I
of the Administrators of non-European Affairs in Southern Africa,
Dr. Verwoerd, then 11inister of Native Affairs, said, inter alia:
"In the long run it is perhaps the Native who will be the biggest
victim of the selfishness of the European if he allows uncontrolled
influx, because when excessive numbers of Natives are present then
the consequences are low wages, inferior housing and vagrancy and
from the vagrancy arise crime, poverty, distress, and the disintegra
tion of family life. These are social evils which we must avert, inter
alia, by seeing that unlimited, uncontrolled influx does not take
place ...
In other words, w1controlled influx merelv to create an unneces
sarily large pool of labour, in spite of the damaging effect on the
Native and in the European commnnity and notwithstanding the
heavier burden of providing housing and finding land for locations
which it brings about, is altogether wrong. Influx control which is
sometimes represented as merciless in its operation, is in reality
merciful and sensible as regards both European and non-European 1."
And, as Prime Minister, Dr. Verwoerd said the following in the South
African Parliament on 9 March 1960:
''Influx control ensures that there will be no redundant pool of
labour in the cities with consequential unemployrnent and low wages.
Steps are being taken by means of influx control to see that the
amount of labour while suffi.dent is sufficiently limited so that there
can be competition for that labour, competition which is basic to the
building up of any wage structure 2."
Although the above statements relate more specifically to conditions
and policy in South Africa, they are basically applicable also to South
West Africa.
63. Another accusation made by Applicants relative to the cost of
labour is the following:
"The predilection of employers for low-cost labour, coupled with
Respondent's concern that no 'European' person be placed in the
position of 'serving under the authority of a Native' ... assures
that the horizon of 'Native' economic potential remains confined to
the semi-skilled level 3."
Here again is a case where Applicants utilize a wrong premise for the
formulation of a charge which is baseless.
As Respondent has indicated 4, the wage-levels of the Native workers
in the Territory are in fact not low by any comparable standards, and
nothing is advanced by Applicants in support of their statement that
there is a "predilection" on the part of employers for "low-cost labour"
which, if intended to mean that employers in the Territory are generally
not prepared to pay their workmen a reasonable wage, is wholly un-
1 Local Authorilies and The State, Opening Speech delivered by the Hon. Dr.
H. F. Verwoerd, Minister of Native Affairs, at the Fifth Annual Congress of the
Administrators ·of Non-European Affairs in Southern Africa on 17 September,
1956 (1957), pp. IO-I2.
z U. of S.A., Parl. Deb., House of Assembly,Vol. 104 (1960), Col. 2996.
3 IV, p. 408.
4 Vide paras. 50-51, supra.222 SOUTH WEST AFRICA
founded. On the contrary, as Respondent has indicated 1, many em
ployers pay their workmen well above the stipulated minimum wage,
and thereby a tendency is created for wages generally to rise above the
minimum.
64. Likewise, when speaking of "Respondent's concern that no
'European' person be placed in the position of 'serving under the authori
ty of a Native' ", Applicants make use of part of an explanation given
by Respondent relative to certain provisions in the mining regulations of
the Territory 2 in such a manner that it creates a wrong impression.
Respondent's explanation of the said measures was, inter alia,that,
due to the traditional position of the European group vis-à-vis the Native
~roups in the economic field, "most Europeans would refuse to serve
m positions where Natives might be placed in authority over them" 3,
and that, accordingly, "[a] major and harmful degree of tension and
friction could result from situations in which European employees in the
mining industry could be placed by their employers before the choice of
either serving under the authority of a Native or relinquishing their
employment" 4.
It is not so mucha case, as Applicants suggest, "of concern on the part
of Respondent that a Native should be placed in a position of authority
over a European", but rather a case of being concerned about the conse
quences of such an act in the situation which obtains in the Territory.
65. Finally, it may be observed that Applicants fail to indicate how
the factors mentioned by them do, or could in any way, "assure" that
"the horizon of 'Native' economic potential remains confined to the
semi-skilled level"-which, as a factual statement, is in itself untrue.
Respondent has already indicated 5 that many Natives are employed
in higher and skilled occupations in agriculture, in industry, in commerce
and in the general administration of the Territory.
The fact that the majority of the Native workers of the Territory are
still employed as unskilled or semi-skilled workers, cannot be attributed
either to the aforementioned regulations, or to the wages which are paid
5
to Native employees. It is, as Respondent has already stated ,due to the
fact that, inasmuch as the Natives generally are still on a path of transi
tion from a tradition al economic and social system to a modern one, the
majority of them have not yet attained the skill or experience to hold
higher and skilled posts.
The position which the majority of Natives occupy in the economy of
South West Africa can no more be ascribed to the lcvel of wages paid in
the Territory than the labour position which obtains in the Applicant
States can be ascribed to the wage levels in those countries •
With regard to the position in Ethiopia the following is stated in a
publication of the United States Department of Commerce:
"The labor force employed for wages is not known, but it is a
small minority of the total working population. The unskilled labor
force is virtually entirely Ethiopian. Much skilled labor ïsstill non-
1 Vide para. 46, supra.
2 As to which vide III, pp. 55-56 and paras. 76-77, infra.
3 III, p. 55.
• Ibid.,p.56.
5 Vide para. 6, supra.
6 Vide in this regard para. 50, supra. REJOINDER OF SOUTH AFRICA 223
Ethiopian, but increasing numbers of Ethiopians are entering the
skilled category as competence is acquired through education and
on-the-job training 1."
Another authority has described the labour position in this country as
follows:
"One of the basic handicaps of industrial development is the
shortage of skilled labor ... Virtually the entire unskilled labor force
is Ethiopian 2".
The position obtaining in Liberia is very much the same. Thus, in
another publication of the United States Department of Commerce, it is
stated that-
"Liberian workers on the whole have had relatively little training
in modern work methods and skills. Such training as they have
received has corne almost entirely from foreign employers and, to a
lesser extent, from the Liberian Government ... 3"
And W. A. Rance wrote in 1958 that-
"[t]he shortcomings in quality of tabor stem largely from the lack of
training and educated Liberians ... Almost the entire labor force is
unskilled 4."
66. Respondent, for the reasons aforestated, denies Applicants'
allegations that wages paid to Native employees in the Territory are
"low" or "extraordinarily low", or that the level of wages in the Territory
"assures that the horizon of 'Native' economic potential remains confined
to the semi-skilled level''.
E. Rights of the Natives in Respect of the Acquisition and
Occupation of Land
67. In this connection Applicants say:
"The relegation of 'Native' interests to a low priority occurred
from the inception of the i\fandate; it is apparent even from the
manner in which Respondent describes certain historical situations,
in its Counter-Memorial 5."
Upon this sta tement there followin the Reply four short passages extracted
by Applicants from a part of the Counter-Memorial in which Respond
ent explained the policy which was applied from the inception of the
Mandate in developing the agricultural potential of the Police Zone, and
dealt with certain allegations made in the Memorials thereanent 6•
Applicants do not indicate in what respects the passages quoted by
them are regarded as illustrating that there has been a "relegation of
'Native' interests to a low priority". However, from the fact that Appli
cants italicize certain words in the quoted passages, and from their
remark that "the 'Natives' acknowledged as living on land ... were not,
1 United States Department of Commerce, ''Establishing a Business in Ethiopia",
World Trade Information Seroice-Ecmiomic Reports, Part 1, No. 59-16, p. 6.
2Lipsky, G.A., Ethiopia: Its People, Its Society, Its Culture (1962), p.270.
3 U.S. Dept. of Labor, Labor in Liberia (May 1960),p. 10.
• Rance, W.A., African Economie Deveiopment (1958), p.238.
5 IV, p.410.
6
III,pp. ro-38. SOUTH WEST AFRICA
of course, in 'possession' thercof" 1, coupled with their submission that
the said passages contain "mutually contradictory contentions" 2, Re
spondent understands the points sought to be made by Applicants to be
the following: ·
(i) Whereas ResIXJndent, on the one hand, averred that the Natives
in the Police Zone were at the inception of the Mandate "to a
considerable extent landless", and that Respondent had to create
reserves to ensure possession of land by thcm, it stated, on the other
hand, that when land was granted to European farmers, on which
Natives were living at the time of the grant, such Natives had to
remove from the land unless they were prepared to work for the
farmers: Respondent's contentions were thereforc "mutually
contradictory".
(ii) Inasmuch as Natives who were living on land were thus forced off
such land, unless they were prepared to take up employment with
the farmers to whom the land had becn granted, their interests were
relegated to a "low priority".
Respondent states that both these conclusions, which can be reached
only by contrasting, out of context, certain passages contained in the
Counter-Memorial, are unsound. For a proper understanding of Re
spondent's contentionsin question,regardmust be had to the full context
in which the said passages appear, in which an exposition was given of the
situation in South West Africa at the inception of the Mandate, and in
which the application and development of Respondent's policies relative
to land tenure were described against the historical background.
6S. Dealing fi.rstwith Applicants' point that Respondent's contentions
are "rnutually contradictory", Respondent states that there is no contra
diction between its statement that the Natives 1nthe Police Zone were at
the inception of the Mandate "to a considerable extent landless", and its
further staternent that in cases where land had been granted toEuropean
fanners on which there were Natives, such Natives were rcquircd to rc
move from the land unless thcy were prepared to work for the farrners.
Tlùs will appear from the following brief restatement of the lengthier
exposition given in the Counter-Memorial.
The limited extent to which the Native groups in the Police Zone were
at the inccption of the Mandate settled in defined areas of land to which
their rights of occupation were recognizcd under the German regime, is
described in the Counter-Memorial 3• For the rest there had, as a result of
the wars during the German regime, been a considerable confiscation of
tribal lands by the German authorities \Asa result thereof, and also as a
result of the severe conflicts which had taken place between the Native
groups themselves, mainly due to conflicting daims to land, the Natives
in the Police Zone, which had a low density of population, were at the
inception of the Mandate largely detribalized persons scattered all over
that Zone, in many cases separated from their clans and families 5,and
without any recognized occupa tional rights to land. Many simpJy sq w1 tted
on land which had not been occupied by them prior to the inception of
1 IV, p.4ro, footnote 3.
2 Ibid.,p.410.
' Ill, PP. 239-240.
• Ibid.,p. 239.
~ II,p. 408 and III,p. 239. REJOINDER OF SOUTH AFRICA 225
the Mandate, and a large number were vagrants who moved from place
to place.
It was in describing this situation that Respondent stated that the
Natives of the Police Zone were "to a considerable extent landless",
which in the context does not stand in contradiction to the other fact
stated by Respondent, viz., that these Natives were in fact living on, or
roaming over, land in the Police Zone.
69. With regard to the second point sought to be made by Applicants,
viz.,"the relegation of 'Native' interests to a low priority", Respondent
explained fully in the Counter-Memorial the basic considerations of its
reserve policy, in implementation of which it from time to time estab
lished new reserves for the Natives in the Police Zone and extended
them over the years .
Ali these considerations had at heart the interests of the Native groups,
who, through the creation of reserves, were provided with defined por
tions ofland in which their rights of occupation were recognized and could
not be disputed by others who originally made conflicting daims. The
land was protected for them by prohibition against alienation thereof, and
provided a basis for their advancement in a manner and at a pace appro
priate to their circumstances.
At the same time, however, Respondent had to develop the agricul
tural potential of the Terri tory, and the most practical way in which this
could be done was by cncouraging European settlement of parts of the
Police Zone that had not been reserved to the Natives as aforementioned 2•
In the process of settling European farmers on the land it was un
avoidable that in those cases where Natives were present on farms gran
ted to European settlers they should be requircd to remove therefrom
and settle in the rescrves created for them, or elsewhere-unless they elec
ted to remain on the farms as employees of the farmers.
Looking at the situation as a whole, the requirement that Natives
should in such circumstances remove from land and take up residence
elsewhere, cannot, in Rcspondent's submission, be described as a "rele
gation of 'Native' interests to a low priority' '.In its entirety Respondent's
policy made provision, by the establishment of rescrves, for Natives who
had to depart from land upon which they might, at the time of the grant
thereof, have been living, but to which they had no recognized right of
occupation.
Without such an arrangement economic development of the Territory
would have been stultified, to the detriment of ail the inhabitants, in
cluding the Natives.
70. In support of a contention that also other "mutually contradictory
contentions of Respondent underscore its preoccupation with 'European'
interests and its abdication of responsibilities with respect to 'Native'
interests" 3,Applicants quote certain passages from the Counter-Memo
rial in which Respondent dcalt with individual land tenure in the urban
areas of the Police Zone.
By quoting these passages, Applicants seek to bring in contrast, as
contradictory contentions, Respondent's statement, on the one hand,
1Ill,pp. 24r-252.
2II,pp. 409-4 ro and II lpp. 10-2r.
3IV, p. 410.226 SOUTH WEST AFRICA
that, although it has always been open to Natives to purchase land in the
rural areas of the Police Zone, they have not done so or shown any
interest in the possibility, with, on the other hand, the following state
ment relative to leases under Respondent's land settlement scheme, viz.:
"The condition regarding miscegenation in the probationary
lcase cannot by itself be relevant to 'well-being, social progress and
development in agriculture', except to the extent that it indicates a
contemplation that such leases would . .. begranted to Europeans only.
That this has indeed been the contemplation, is admitted. When Re
spondent deems the Native population ripe for individual land settle
ment, provision can be made therefor 1." (Italics added by Appli
cants.)
Here, too, there is no contradiction. The fact that it was Respondent's
purpose that the leases under the said scheme were to be granted to
Europeans only, is not in conflict with Respondent's statement that no
Native has ever, despite the absence of any legal impediment in that
regard, purchased land in the Police Zone. The reason why the leases in
question_were intended only for European farmers was that the Coloured
and Native persans were regarded by Respondent as on the whole not
sufficiently advanced to meet the requiremcnts of modem farming prac
tices in the Territory 2.In their case other provision was made, in the
form of reserves, to meet their needs as these increased from time to
time 3•The fact remains, howevcr, that most of the farms in South West
Africa are already held in individual ownership without any restriction
regarding alienahon thereof, and while farms change hands from dav to
day, no Native has as yet purchased a farm. ·
71. In this connection Applicants say:
"lt is not surprising that no 'Native' has ever purchased land.
'[A]ssistance under the land settlement laws had not been requested
by, or granted to, Natives'~-"
Respondent explained in the Counter-Memorial why its land settle
ment scheme has up to the present been applied only with respect to
European farmers, by referring to-
"[t]he difficulty of developing land in the Territory, the necessity for
applying modem scientific methods of farming, soil conservation and
water utilisation, and generally the complexity of agricwture and
marketing in the adverse conditions existing in South West Africa 5",
and by stating that the Natives generally have not yet reached the stage
of development where, under the circumstances aforementioned, they
5
would benefi.t from individual land ownership •Inasmuch as Applicants
fail to deal at all with Respondent's reasoningin this regard, it isconsidered
unnecessary to take the matter further, save to deny Applicants' charge
that there is in this connection a "preoccupation with 'European'
interests" or "an abdication of responsibilities with respect to 'Native'
interests".
1 IV, p. 4 r r. Vide also in this regard the allegatiat p. 415.
2 Ill,p. 33 and vide Chap. III, para. 25, inf~a.
3 Ibid.,p. 31.
• IV, p. 4Ir.The portion in single quotation marks is cited from III, p. 26.
' III, p. 33. REJOINDER OF SOUTH AFRICA 227
While Respondent has, on the one hand, granted assistance to Euro
pean farmers, it has, on the other, also assisted the Natives by estab
1
lishing and enlarging the Native reserves , and by contributing to the
agricultural development thereof 2 •The form of assistance granted to
each of the groups was, in Respondent's submission, appropriate to the
circumstances of that group.
72. Applicants conclude their comments relative to Respondent's land
settlement scheme with the following remark:
"Furtherrnore, any such purchase [of land] would give to a
'Native' precarious tenure, inasmuch as he could at any time be
moved from his land 'to any other place within the mandated
Territory' by a government in which he is not represented 3."
This remark is made with reference to section r of the Native Adminis
tration Proclamation No. I5 of I928 4, which, inter alia, empowers the
State President, "whenever he deems it expedient in the generat public
interest, [to] order the removal of any tribe or portion thereof or any
Native from any place to any other place within the mandated Territory".
(Italics addcd.)
Respondent explained fully in the Counter-i\1emorial the necessity for
vesting the State President with powers of this nature 5,and mentioned
the few occasions on which the said powers had been exercised, on each
occasion to protect the public interest 6 •
Applicants have not dealt at all with Respondent's arguments or with
the facts adduced by it in this connection; instead they simply refer in a
4
footnote in the Reply to what they terrn a "survey of a nurnber of such
removals in the past". This reference is to a 1957 report of the Committee
on South \Vest Africa which dealt, inter atia,with newspaper reports and
petitions received by it relative to (i)the voluntary rernoval of certain
Natives from the Aukeigas Reserve to other and larger areas added to a
proclaimed reserve for thern 7 ;(ii) a proposai to add a certain portion of
land called the Corridor to the Aminuis Reserve in exchange for two
inferior portions of the said reserve, and (iii)the proposed removal from a
farm Hoachanas of certain Natives who were unlawfully resident there
on 9•In fact none of the said matters was dealt with under the proclama
tion referred to by Applicants.
Respondent finds it strange that Applicants should refer to the so
called "survey" when Respondent had dealt fully with the above mat
ters in the Counter-~femorial 9 and had given a detailed explanation
1 III, pp. 249-250. Vide also Chap. III, paras. 26-29, infra, regarding the recom
mendations of the Odendaal Commission for the further extension of the Native
areas and the constitution of homelands for the various groups.
2 Ibid., pp.6-8 and 17-18.
lIV,p.411.
• Ibid., footnote 4.
5 III,p. 268 et seq.
6 Ibid., pp. 270-271.
7 Vide R.P. No. 12/1964, p. 69 (para. 250).
8 The report of the Committee also made mention of an exchange of a portion
of land in the Eastern Reserve for land added to the \Vaterberg-East Reserve (G.A .,
O.R., ;e2thSess., Suppl. No. 12 (A/3626). p. 16, para. 79). This exchange did not,
however, involve any removal of Natives.
9 With regard to Aukeigas, vide III, p. 130. With regard to the proposed addition
to the Aminuis Reserve, IV, pp. 3-5. \Vith regard to Hoachanas, IV, pp. 6-9.228 SOUTH \"IEST AFRICA
which Applicants have not controverted or even mentioned in the Reply.
Applicants' contention that the existence of such powers as are vested
in the State President by the Proclamation in question renders individual
land tenure precarious for a Native, is so preposterous that it merits no
consideration. One could equally say that the existence in the Territory,
as in most countries of the world, of legislation which permits of land
being expropriated by the State for public purposes renders land tenure
precarious for everyone-European, Coloured and Native 1•
F. The Position of the Natives in the
Mininglndustry
73. With regard to the role of the Natives in the mining industry,
Applicants say:
"Respondent's assumption of inevitability of permanent main
tenance of the status quo has led to deprivation of opportunity and
incentive which helps in turn to assure the continuance of the status
2
quo ."
In this connection they quote in contrast two passages from the
Counter-Memorial 2• In the first passage Respondent pointed out that,
despite the fact that prospecting and mining in the Native reserves have
for all intents and purposes been reserved for the Natives, they have thus
far generally shown a lack of interest in mining activities. And in the
second :passage Respondent explained that, because of certain inherent
difficulttes in the conduct of mining operations in the Territory, such
operations have to be on a large scale, requiring the employment of
qualified and experienced technical personnel and substantial capital
fwids. In illustration of the latter statement Respondent pointed to the
fact that as much as 96 per cent. of the mining output in South West
Africa is controlled by two companies.
Respondent does not apprcciate how, in the circumstances as above
described, Applicants can speak of a "deprivation of opportunity and
incentive", or of an "assumption [on the part of Respondent] of perma
nent maintenance of the statusquo".
Far from there being a deprivation of opportunity and incentive, the
position is just the opposite, inasmuch as opportunities for the Natives to
prospect and mine in their own areas have been specially reserved for
them 3•The fact that the Natives have thus far generally shown a lack of
interest in mining activities, save in participating as employed mine
workers, is in no way due to any deprivation of opportunities but, as
Respondent cxplained 4,to their stage of development, their background
and traditional subsistence economy. And, as Respondent pointed out
by reference to a United Nations publication, the position of the Natives
in the mining industry in South West Africa is very much the same as
that found elsewhere in Africa 4•
1 Videin this regard the recommendations of the Odendaal Commission concerning
the acquisitionof certain European farms in itproposais for the establishmentand
extension of homelands for the various groups. R.P. No. 12/1964, pp. 87, 89-93,
95, 101 and 103; IV, p.210.
1IV,p. 411.
3 III,pp. 50-51.
4 Ibid., p.56. REJOINDER OF SOUTH AFRICA 229
In the circumstances it is indeed strange that, while Applicants
singularly fail to deal with the facts related and arguments advanced in
the Counter-Mcmorial, they make a bald accusation in the Reply of a
"deprivation of opportunity and incentive" without adducing any facts
or argument in support thereof.
74. Equally wifounded is Applicants' charge regarding an "assumption
[on the part o( Respondent] of inevitability of permanent maintenance of
the status qieo", a charge which totally ignores the factual material
presented in the Counter-:Memorial.
While Respondent did state that at the present stage of development
96 percent. of the mining output in the Territory is controlled by two
companies-a state of affairs which was explained with referencc to
factors necessitating large-scale operations-it also mentioned future
developments which it had in mind, particularlv in so far as the Native
inhabitants were concerned. Thus Respondent cfealt with the reasons for
the appointment of the Odendaal Commission, its composition and its
terms of refercnce, which included the task of investigating and ascer
taining how further provision should be made, inter alia, for the develop
ment of mining in the Native areas 1•
In its report the Commission gave a complete survey of mining activi
ties in the Territory 2,and made extensive recommendations regarding
the exploration and mapping of the Territory, and the exploitation of its
minerai resources. lncluded in the said recommendations are the following
with regard to prospecting and mining in the Native areas:
"(!) minera} rights, including mining rights, [to) be held in trust for
the various homeland authorities and be transferred to thern as
soon as practicable; it is also important that the inhabitants
of the Homelands should be encouraged and assisted to become
entrepreneurs in their own areas, as well as managers and re
sponsiblc officers in their own mining. The inhabitants should
be encouraged as far as possible to take an active part in the
economic development of their Homeland;
(g) under the guidance of the Division of Geological Survey of the
Department of Mines and the Department of Bantu Adminis
tration and Development, those interested in the varions
Hornelands be acquainted with characteristic properties of
some important minerais so as to stimulate the interest of the
inhabitants and encourage their participation in prospecting
for minerai occurrences. ln mining itself, too, the inhabitants
of the various Homelands must as far as possible be encouraged
and trained to occupy the most responsible posts 3."
Although, for reasons which have bcen stated 4, Respondent has
defcrred its decisions on the Commission':; recommendations relative to
the constitution of homelands for the various population groups, it con
sidered that the exploration and development of the minerai resources of
the Territory were matters which required immediate attention, and
announced that it had been dccided "( a) to organize the exploration and
1 Il,p. 476 and Ill,p. 56.
2 R.P. No. 12/1964,pp. 335-343.
3 IV, p. 457.
4 Ibid.,pp. 212-216.230 SOUTH WEST AFRICA
mapping of the whole Territory" and "(b) to assist and encourage the
inhabitants of the non-White areas in prospecting and exploiting the
1
minera! occurrences in such areas'' •
75. In this connection it may be stated that large-scale mapping and
exploration work is already under way, and prospecting operations are
expected to follow soon after the preliminary work has been completed.
It may also be stated that, in accordance with decided policy, the
assistance to be given to Natives in connection with prospecting and
mining in their areas will be of such a nature that the Natives will as far
as possible be drawn into mining enterprises in such areas, not only as
employees who may aspire to and occupy all posts to which they merit
appointment, but also as entrepreneurs. Although developments in this
direction will take some time and cannot be unduly rushed, Respondent
hopes that, with due encouragement and appropriate assistance, Natives
will before long become established in their own mining enterprises. In
this connection Respondent points out that in addition to the instances
mentioned in the Counter-Memorial of Natives and Coloured people
already engaged in prospecting and mining operations of their own 2,a
resident of the Kaokoveld, one Willem Hartley, is at present carrying on
mining operations on a Sodalite deposit in the Kaokoveld 3.
In the premises, it is hardly necessary to say that Applicants' accusa
tion regarding an assumption on the part of Respondent of "permanent
maintenance of the statusquo" is without substance, and is denied.
76. With regard to the mining regulations at present in force in the
Terri tory 4,Applicants allude to concessions which Respondent is alleged
to have made in the Counter-l\lemorial. Thus they say that Respondent
conceded "that only 'Europeans' may be employed in levels above
common labour in mining enterprises 'owned by a European' " 5•This
version of what was stated in the Counter-Memorial is entirely wrong.
\Vhat Respondent did say was that in terms of the mining regulations
certain specified posts in mines belonging to Europeans may not be occu
pied by Natives 6• Respondent, however, went on to say that the role of
the Natives in the mining industry is not confined to that of unskilled
labourers, and listed a number of skilled occupations in which Natives
are employed in European mining enterprises 7.
77. Applicants in the Reply repeatedly refer to what they term the
"discriminatory provisions of the Mining Regulations" 8, Respondent
must consequently point out again that when, by reason of the overriding
advantages dealt with in the discussion of general principles earlier in this
Rejoinder 9, a policy of separate development is decided upon in prefer
ence to attempted integration, the drawing of boundary lines becomes
1 IV,p.207.
2 III, p. 6I.
' Departmental information.
• G.N. No. 33 of 1956 in The Laws of South West Africa I956, Vol. XXXV (li),
pp. 499-723.
5 IV, p. 405.
6 Ill, p55.
1 Ibid.,p.56.
a These regulations, or their alleged effect, are referreto in the section of the
Reply, dealing with the economic aspect at IV, pp. 405,411 and 420.
9 Vide sec. E, supra. REJOINDER OF SOUTH AFRICA 23r
indispensable. And these boundaries are required not only in the political
and territorial sense, but also, particularly in the transitional stages, in
the economic sphere. If this is not done, and attempts were made at
creating economic integration, the resultant tensions, reactions and
struggles would render impossible progress towards the goal of separate
development, viz., the peaceful co-existence of separate population
groups. ln the circumstances all measures at present having an adverse
effect on some must be judged against the advantages envisaged for all
in the application of the policy of separate development. In the light of
the foregoing, Respondent proposes to elucidate in more detail than
before the practical effect which the said mining regulations have in
respect of Native mine employees, in so far as they may not in terms of the
regulations be appointed to certain posts in mining enterprises belonging
to Europeans.
The posts which Natives may not be appointed to in such enterprises
are the following: Manager; Assistant, sectional, or underground man
ager; Mine overseer; Shift boss; Ganger; Engineer; Person in charge of
boilers, engines and machinery; Surveyor; Winding engine driver;
Banksman or onsetter 1.
At present the following numbers of persans of all groups are employed
in the mining industry in the Territory:
Europeans.
2,143
Coloureds 162
Natives .. 8,344
Total . 10,649 2
In the whole of the mining industry there exist at present 190 posts
which, in terms of the aforementioned regulations, may not be filled by
Natives. This number is made up as follows:
Designation of Post Number of Posts
Manager ............... . 6
Assistant, sectional or underground manager
4
Mine overseer 6
Shift boss .. 22
Ganger ...... . 104
\Vinding engine driver 20
Banksman and onsetter . 28
190 3
If, therefore, despite what is stated hereinafter relative to the qualifi
cations and ability of Native mine employees generally, the assumption is
made that there is a sufficient number of Natives competent to fi.liall the
said 190 posts, then the regulations in question would at present pre
judicially affect only 190 Natives, i.e., slightly more than 2 percent. of the
Native employees in the industry.
1Ill, p. 55.The two last-mentioned posts were inadvertently omitted from the
list in the Counter-Memorial.Vide in this regard G.N. No. 33 of r956, secs. 66(2}
and 71 (r), in The Laws of South West AfYica r956, Vol. XXXV (Il), pp. 56r, 563
and 569.
2Departmental information.
3 Ibid. The said number does not include those posts in respect of which exemp
tion has been granted from the provisions of the regulations as mentioned in para.
79, infYa.232 SOUTH WEST AFRIC.'\
78. The fact is, however, that, save perhaps for a very few, the Natives
employed in mining are as yet not qualified or competent to fill any of
the said posts, and the few that constitute the exception could at best
only aspire to the lower levels of such posts.
Enquiries made in this regard from the five largest mining concerns in
the Territory, all of which are companies, are revealing. Three of the said
companies intimated that the rcgulations do not prejudicially affect
their non-White employees in that none of them would be competent to
fill any of the posts from which thcy are excluded under the regulations.
The fourth company took the position that it was quite impossible to
estimate how many of its non-White employees might be eligible for any
of the said posts, as no steps had been taken to classify them or train
them for promotion to such posts. The fifth company replied that only
one of its non-White employees might qualify for promotion to some of
the said posts, but that he was holding a clerical post 1•
79. Finally, Respondent points out that, in terms of the regulations,
exemption may in suitable cases be granted from the provisions which
exclude non-\Vhite persons from the aforementioned posts in European
mines. In this regard Regulation I67 provides as follows:
"\Vhenever the circumstances at any mine or works are such as to
render any provision of these regulations inapplicable or unduly
onerous ... the Inspector [of i\fines] may grant exemption from such ·
provision under such conditions as he may detennine 2".
Since I962 five non-\Vhite mine employees have in terms of this provision
been granted exemption in particular circumstances to enable them to
occupy positions in mines owned by Europeans, which positions would
otherwise have been closed to them.
In the premises aforestated, Respondent submits that Applicants
grossly exaggerate the effect which the said regulations have on the
Natives employed in the mining industry.
Res pondent stresses again tha t the adverse effect which such regulations
have at the present time must be weighed against the greater over-all
advantages-for all inhabitants of the Territory-of a policy of separate
development as compared with attempted integration of all the popu
lation groups. Seen in this light, it is submitted that the limited adverse
effect ofthe said regulations is of little consequence in the total picture.
80. Applicants also question a further statement made by Respondent
relative to the aforementioned provisions of the mining regulations, viz.,
the statement that such provisions are considered desirable·in the present
phase of transition through which the Natives are passing towards
separate self-realization, and "are destined to fait away when develop
ments in the latter respect remove the reason for them" 3• They say in
this regard-
"[t]he implication is either that the 'Natives' will develop their own
comparable mining enterprises or that they will, in any event,
eventually be discharged from employment in the Police Zone mines.
The first alternative is strikingly improbable, if only in view of the
1 Departmental information.
G.N. No. 33 of 1956, sec. 167 in The Laws of South West Africa I956, Vol.
XX3V (II), pp. 655-657.
Ill,p. 56. REJOrnDER OF SOUTH AFRICA 233
quotationsset forth hereinabove; the second alternative would lead to
the labour surplus desired by the Administrator, but to neither the
material well-being nor the social progress of the 'Natives' 1."
(Footnotes omitted.)
lnasmuch as Respondent was specific in stating its contentions and
expectations with regard to the future economic development of the
Native areas, including the development therein of the mining industry,
there was no need for Applicants to speculate on possible implications.
Thus Respondent, after referring to the preference, encouragement and
protection consistently given to members of the Native groups in their
own areas 2, and after drawing attention to the task entrusted to the
Odendaal Commission with regard to the development of mining in the
Native areas 2, expressed the hope "that the Natives will in time show
increased interest in the mining industry, and establish mining enter
prises which will accommodate such Natives as aspire to the technical
and higher posts in the industry'' 2•
Respondent's attitude was therefore made clear, and, as indicated
abovc 3, its views and expectations have been reaffirmed by the recom
mendations of the Odendaal Commission regarding encouragement and
assistance to be given to the Natives in the development of mining enter
prises in thcir own areas 4•
Sr. Although, as Respondent stated in the quotations cited by Appli•
cants 5,the Natives have thus far generally shown a lack of interest in
mining activities otherwise than as employees, and that in the circum
stances of the Territory mining operations must, to be successful,
generally be conducted on a large scale 5, which quotations Applicants
now rcly on for their statement that the "first alternative is strikingly
improbable", there is, in Respondent's opinion, no reason why the Native
inhabitants, or at least some of them, should not, with due encouragement
and appropria te assistance, in time show sufficient interest in establishing
.their own mining enterprises. Respondent realizes, however, that progress
and development in this regard may take time. Nevertheless it is Respond
ent's expectation that more and more Natives will gradually be offered
employment in their own areas, rcsulting in a corresponding withdrawal
of Native workers from the existing mines operated by Europeans,
which must be expected to corne to the end of production in the not too
distant future 6•
There will in any event not be occasion for the drastic step referred to
by Applicants as an alternative, viz., that the Natives at present em
ployed in European mines "will ... eventually be discharged from em
ployment in the Police Zone'' -unless, of course, this may be occasioned
by unavoidable circumstances such as the closing of a mine when it has
reached the end of production, or for other economic reasons. Applicants'
suggestion of a possibility that the Natives may eventually be discharged
from employment in the Police Zone because of a desire for surplus
1 IV, p.412.
; III, p. 57.
3 Vide para. 74, supra.
4 Ibid. Vide also Respondent's reaction as there set out.
s Vide IV,p. 411.
6 Vide R.P. No. 12/1964, p. 333 (para. 1312 (v) b).234 SOUTH WEST AFRICA
labour, does not merit further consideration inasmuch as Respondent
has already explained 1 that it is not its policy to create a .situation in
which there will be a surplus of labour.
82. Applicants also state in this regard:
"In fact, the actual result will be that the 'Native' labour forces
will continue to man the mines, under the same 'unpopular control
measurcs', for many years into the foreseeable future. These
measures, although allegedly 'destined to fall away', have an in
2
determinate future, as they have had a long history ."
In support of the view thus expressed, Applicants rely on a statement
made by the South African representative in a letter to the Permanent
Mandates Commission in 1928, when he explained that Natives were
not employed by the Administration or by the Railway Department in
certain posts involving the risk of human Life,because of their then low
state of dcvelopment, but that that practice was a temporary one which
would corne to an end when the Natives were sufficiently advanced to
undertake such responsible work.
The point which Applicants apparently seek to make with reference to
this statement is that, although many years have elapsed since the state
ment was made, Natives have not yet been allowed to undertake such
responsible work. If this is their point, then Applicants have completely
disregardcd the factual information presented in the Counter-Memorial
relative to the ever-increasing number of higher and skilled posts which
are being filled by Natives in employment on the railways 3, and in the
service of the Administration 4, as well as the reasons advanced by
Respondent why in the process of separate development, Natives are not
appointed to certain higher posts in the Railway Administration except
where they serve their own people 5•
The South African representative, when giving the aforementioned
explanation to the Permanent Mandates Commission in 1928, could, of
course, not have foreseen the exact form which future developments
would take in the application of the policy which has become known as
"separate development", in accordance with which self-realization of the
different population groups is sought to be attained by territorial separa
tion, with protective measures for each group in its own area.
83. With progress in the implementation of the policy of separate
development, and increase in the tempo of development, more and more
opportunities will be created for the Natives in their own areas, and this,
6
as Respondent had indicated ,is expected to be the position also in the
mining industry.
Although it may be true that Natives will for many years still be em
ployed in European mining enterprises outside their own homelands,
where they will be subject to control measures, the effect of such mea
sures on their opportunities of employment-which, as Respondent has
7
indicated, is in any event minor -will automatically be reduced further
1 l'ideparas. 6r-62, supra.
2 IV,p. 4I2.
3 Jll,p. 67.
4 Ibid., pp.I49-155.
5 Ibid., pp. 67-68.
6 Vide paras.74 and 75, supra.
7 Vide paras. 77-78, supra. REJOINDER OF SOUTH AFRICA 235
as alternative opportunities become open to them in mining and other
enterprises in their own areas. Moreover, developments along these lines
are bound to reduce and remove situations in which members of one
population group can feel themselves threatened with political, economic
and cultural domination by others. And, as has been indicated in the
treatment of the general principles of Respondent's policies, this factor
must necessarily, in the long run, tend towards mutual agreement, by ail
concerned, upon removal of irksome controls, or their reduction to bare
necessities. Exactly how long this will take, will depend to a very large
extent on the capacity shown by the more talented members of the non
White population groups to grasp the opportunities for self-realization
offered to them and their peoples by the policy of separate development,
particularly in the phase of accelerated advancement in pursuance of the
Odendaal Commission report.
G. The Opportunities of Employment for Natives in the Railways and
Harbours Administration
84. In the Counter-Memorial Respondent described the progress which
the Bantu people in South Africa had made in qualifying themselves for
appointment to skilled and responsible positions in the Railways and
Harbours Administration in which they serve their own people. In that
regard Respondent stated further:
"As the Natives become better qualified, educationally and
technically, they will be able to perform more and more services for
themselves, and it is hoped that they will eventually be able to
1
occupy the highest posts in their own areas ."
Respondent also explained that in South West Africa the Native popu
lation had not yet reached the same level of development as the Bantu
population of South Africa, but that they had nevertheless made pro
gress, and that a number of posts falling within the category of "better
class work" 1 were open to them in the Railways and Harbours Adminis
tration.
Applicants' response to these statements is the following:
". . . any prospect for the disappearance of the policy of racial
discrimination appliedin the Railways andHarbours Administration,
by 'Natives' becoming 'eventually ... able to occupy the highest
posts in their own areas', will be confined for at least fifteen years to
the stretch of approximately twenty miles of main railway line, from
Keetmanshoop to Windhoek, which passes through the Berseba
Tses Reserve 2". (Footnotes omitted.)
The basis stated by Applicants for their line of reasonin~ in the above
statement, is that the Odendaal Commission mentioned in its report that
"no railway expansion in South West Africa is contemplated for the near
future", and that none of the Five-Year Development Plans put forward
by the Commission "contemplate expansion" 3•
85. Applicants' description of the future opportunities of employrnent
for Natives in the Railways and Harbours Administration in the Terri-
1 III, p. 68.
2 IV, p.412.
3 Ibid., footnote 7.236 SOUTH WEST AFRICA
tory is, however, wrong in two major respects, both of which have an
important bearing on the matter in issue.
In the first place, Applicants have, in order to draw the conclusion
which they advance, and despite an apparently careful study on their
part of the report of the Odendaal Commission, conveniently left out of
account the fact that in1addition to operating 1,453 miles of railway line
in South West Africa , the Railways and Harbours Administration also
operates a road motor transport service over a large network of routes in
the Territory 2, totalling at present approximately 5,000 miles 3• The
latter service is utilized mainly by Natives, the number of passengers
conveyed in 1959-1960 having been: Natives 77,621, and Europeans
39,840 \
Secondly, Applicants have, in predicting developments over the next
15 years, completely ignored the Commission's recommendations
with regard to the extension of the existing Native areas and the con
stitution of homelands for the different population groups. It is of course
true that Respondent has for the present deferred its decision on the
Commission's recommendations regardingthe constitution of homelands,
but the reasons for such deferment can only be of temporary duration 5,
and there is no justification for concluding that the homelands scheme
will not corne into operation well within the period of 15 years mentioned
by Applicants, or that the existing Native areas will not, in any event, be
extended within that period.
If consideration is given to both the factors which Applicants have
ignored, the position, as indicated in the next succeeding paragraph, is at
present, and will in future be, entirely different from that described by
Applicants.
86. It is the policy of the Railways and Harbours Administration not
to construct new railway lines unless there is justification on economic
grounds for the introduction of a new service in an area not previously
served by rail. Where a rail service cannot be justified, but public
transport is nevertheless required, the Railways and Harbours Adminis
tration operates a road transport service until such time as a railway
becomes an economically feasible proposition.
Although the Odendaal Commission stated in its report that no railway
expansion in South West Africa is contemplated for the near future 2,
there has over the last few years been a gradual expansion of the road
motor service routes operated by the Railway Administration, and
further extensions are expected, particularly in Ovamboland where
large-scale development projects are underway.
If the recommendations of the Commission with regard to the consti
tution of Homelands for the different groups are to be accepted and
implemented, the following stretches of the existing railways, and of the
existing road transport routes operated by the Railway Administration,
will pass through the homelands mentioned below:
1R.P. No. 12/r964, p. 377 (para. 1373 2 (a) (i)).
2 Ibid.p. 38r.
3Departmental information. Vide IV, pp. 2r3-2r6.
+ Departmental information.
' IV, pp. 213-216. REJOlNDER OF SOUTH AFRICA 237
(a) Proposed Namaland l
(i) existing railway line, 85 miles 2•
3
(ii) existing road transport routes, approximately 80 miles •
(b) Proposed Damaraland ~
5
existing road transport routes, 337 miles .
(c) Proposed Ovamboland 6
7
existing road transport routes, approximately 185 miles •
From the above information it is clear that, even without taking into
account future extensions of either the present railway system or the
present road transport service routes, there will be very much greater
activity by the Railways and Harbours Administration in the Native
areas than predicted by Applicants.
87. In so far as Applicants' allegations under consideration may have
been intended as criticism to the effect that Respondent has been dilatory
in its duties with regard to railway facilities in the Territory, or perhaps
as criticism of the extent to which such facilities serve the interests of
the Native inhabitants or provide opportunities of employment for them,
Respondent draws attention to the comparative table of rail facilities
given by the Odendaal Commission in respect of a large number of terri
tories in Africa 8•
It will be noticed that the position in South West Africa compares very
favourably with that of the other territories mentioned in the table, and
particularly with the position in the Applicant States, in respect of which
the following further information is here given.
According to a publication of the International Monetary Fund 9,
Liberia has no state-operated railways. As at the beginning of 1963,
there was only a private railway running for a distance of 94 miles, with
a further 165 miles under construction.
Very much the same position obtains in Ethiopia, where, according
to a United Nations publication w. there were no state railways as at
1962, and only 500 miles of railways owned by foreign enterprises.
1 R.P. No. 12/1964, pp. 101 et seq.
2 Departmental information. This stretch of the line passes through the existing
Berseba and Tses Reserves for a distance of 30 miles, and through the existing
Gibeon Reserve for a distance of ro miles.
3 Departmental information.
• R.P. No. 12/1964, pp. 89 et seq.
5 Departmental information. Sorne of these routes pass through the existing
Okombahe Reserve.
6 R.P. No. 12/1964, pp. 81 et seq.
7 Departmental information. Large sections of these routes pass through the
existing Ovamboland territory. As soon as the Kunene Water Scheme (IV, p. 203)
is completed. consideration will be given to an extension of the said routes by ap
proximately another 100 miles.
8 R.P. No. 12/1964, p.379.
9 International Monetary Fund, Economy of Libe'fia (Prepared by the African
Department and Exchange Restrictions Department (Feb. 1963)), p. rr. Vide
also United States Department of Commerce, "Basic Data on the Economy of
Liberia", World Trade Information Service~Economic Reports, Part I, No. 59-57,
pp. II-12.
10
U.N. Doc. E/CN. 14/17r, Economie Bulletin for Africa, Vol. li, No. 2 (June 1962).
p. 17.238 SOUTH WEST AFRICA
88. In the light of the information given above, Respondent denies
Applicants' allegations relative to the opportunities which are at present
open to Natives, or will in the future be open to them, in the operations
of the Railways and Harbours Administration in their own areas.
H. Respondent's Alleged Policy of "Laissez-Faire with Respect to
Tribalism"
89. Applicants introduce this topic in their treatment of the economic
aspect by referring to Respondent's explanation that one of the reasons
why the families of migratory workers from the northern territories
are not allowed to accompany the workers on their tours of employment
in the Police Zone is that the tribal authorities are opposed thereto 1•
They say that "tribalism" has thus "been deliberately fostered through
apartheid" 1, and they charge Respondent with an "abdication of the
positive and progressive obligations of the Mandate by its policy of
2
'laissez-faire' with respect to tribalism" • The reason advanced for the
averment of conflict with the obligations of the Mandate, is that-
"... tribalism ... was one of the reasons why 'Native' inhabitants
were 'not yet able to stand by themselves under the strenuous
conditions of the modem world' .. .1''.
Although not clearly stated, Applicants' contention appears to be that
the mandate system did not permit the fostering of tribalism but, on the
contrary, imposed a positive duty to counteract it.
90. In this connection Respondent refers to what has already been
stated with regard to tribalism, and denies that it was implied in the
Mandates, or even contemplated by the authors thereof, that tribal
systems should be abolished and tribalism as such be eliminated in the
mandated territories. Whilst many tribal systems no doubt recognized
customs and permitted practices considered to be in conflict with the
concepts and standards of modern civilization, and whilst tribal traditions
and ways of life, and tribal animosities and conflicts contributed to the
factors which retarded the advancement of many of the indigenous
peoples who at the end of the First World War were regarded as "not yet
able to stand by themselves under the strenuous conditions of the modem
world", it is, nevertheless, fallacious to say, as Applicants do, that
tribalism in itself, i.e., the condition of existing as a separate population
group or tribe , "was one of the reasons why 'Native' inhabitants were
'not yet able to stand by themselves .. .'" 1•And equally fallacious is
AP.phcants' submission that the Mandate did not permit the fostering of
tnbalism but imposed a positive duty to the opposite end.
91. Respondent has already demonstrated in this regard that the
authors of the Mandate could never have intended to impose a prohi
bition against differentiation on a group basis, when they themselves
contemplated that there would be differentiation on that basis, and, in
fact, themselves made express provision for such differentiation in
1
2 IV, p. 4r3.
3Ibid., pp. 412-4r3.
Vide Onions, C. T. (Ed.), The Shorter Oxford English Dictionary (1959), p. 2243,
which defines the word "tribalism" as: "[t]he condition of existing as a separate
tribe or tribes; tribal system, or organization, or relations." REJOINDER OF SOUTH AFRICA 239
1
respect of certain particular matters .Respondent has also shown that
throughout the lifetime of the League of Nations, it was allowed to follow
a policy by which it took steps to eliminate such tribal customs and
practices as were considered to be in conflict with civilized concepts and
standards, and by which it sought to introduce the indigenous people to
new methods and to lead them from their tradition-bound type of society
to a more modern one, but by which, at the same time, it recognized the
indigenous groups' own social, cultural and political institutions and
adopted a system of "indirect rule", in which the said institutions could,
and did, play a meaningful part. Indeed, Respondent was commended for
doing so 2•
· 92. Applicants' attitude in this regard appears to be that they do not
deny that fostering of tribalism, in the sense aforestated, was permissible
when the Mandate was conferred and was, in fact, allowed during the
lifetime of the League, but that they contend that it is not permissible
today. Indeed, the phraseology which they use seems to indicate that
this is what they have in mind. Thus, in the context of the charge under
consideration, they speak of "Respondent's abdication of the positive
3
and progressive obligations of the Mandate" • And later they say-
"[i]nasmuch as Respondent's policy is assertedly founded upon an
'evolution towards separate self-realization for Natives in homelands
of their own', and inasmuch as such 'homelands' are to be oriented
entirely to tribal considerations, Respondent's policx may fairly
4
be characterized as a headlongadvanceinto the past ". (Italics added
and footnote omitted.)
Such an attitude, viz., that Respondent's obligations are not static, but
"progressive", and that with the changing of views in the world new
obligations take the place of the old, so that practices and policies which
may originally have been permissible become impermissible, is in keeping
with Applicants' basic proposition that there exists a current norm of
"non-discrimination or non-separation".
If, as would seem to be the case, Applicants' argument relative to
tribalism is intended to rest on the basis that there is a Iegal norm, formu
lated on current standards, which prohibits differentiation on, inter alia,
a group basis, and that Respondent's "homelands" policy is violative of
this norm because it is based on tribal considerations, i.e., because it
distinguishes between tribal groups, then Respondent repeats its denial
of the existence of such a norm and refers to its argument refuting the
proposition that the Mandate must be interpreted as embodying such a
norm 5•
If, however, in stating that "such 'homelands' are to be oriented entire
ly to tribal considerations", Applicants intend to convey anything more
than has been stated above, for example, that Respondent's policies
foster tribalism in the sense that they seek to bind the Native people to
uncivilized customs or to outmoded traditions which hamper their
advancement, then Respondent denies such allegation and refers to what
1 Vide sec.B, paras. 8-II,supra.
2 Ir, pp. 417-418 and sec. E, Chap. V, sup~a.
3 IV, p. 412. (Italics added.)
• Ibid., p.413.
5 Videsec. B, supra. SOUTH WEST AFRICA
has already been stated in this regard 1. Applicants might mean to convey
that inasmuch as they advocate the attempted creation of one integrated
nation in South West Africa, as being in fact the bcst method to promote
well-being and progress to the utmost, distinctions between tribes and
ethnie groups are for that reason to be eradicated. Respondent has,
howevcr, already indicated the overwhelming advantages which separate
development, in its view, has over attempted integration 2, and the
importance of giving due recognition in this regard to the different
ethnie identities, cultural heritages, and aspirations of the indigenous
peoples of South West Africa 2•
93. In concluding this aspect of their case Apphcants give what they
tenn "an exposition of economic apartheid" by quoting a single passage
from one of the lectures of Prof. de Kiewiet published under the title
The Anatomy of South African Misery. In this passage Prof. de Kiewiet,
whom Applicants describe as an authority with unquestioned first-hand
knowledge, makes the complaint that by "trying to herd the native popu
lation back into separate economic and political arcas" Respondcnt is
"in effect allying itself with the primitive and backward components of
native life, with those customs and practices which are the first cause of
poverty and stagnation" 3•Respondent's answer to this is that, far from
it being an "exposition of economic apartheid", the said passage, as is
the case with the larger part of the lecture from which it is extracted, is
nothing more than an emotional expression of viev>'snot only devoid of
objective appraisal, but showing a Jack of understanding of the very
subject on which the authoris held out by Applicants to be an "authority".
It has already been indicated 4that Prof. de Kiewiet's criticism of apart.
heid in both the political and the economic aspects stems largely from a
wrong basic premise, namely that-
"... apartheid is actually a system in which the power of the state
is used to maintain the economic and political supremacy of the
white community over a population of approximately ten million
Africans, Indians and coloured men 5",
Equally wrong is this "authority" when he says that Respondent is
"in effect allying itself with the primitive and backward components of
native life, with those customs and practices which are the first cause of
poverty and stagnation" 3.Respondent has in this regard already ex.
plained the manner in which, and the extent to which, tribalism plays a
role in its policy of separate development.
Prof. de Kiewiet does not say what are the "backward components of
native life", "customs", and "practices" to which he refers. But, perhaps
there is no need to enquire as to what he had in mind, inasmuch as he
bas clearly indicated that he can see no good whatsoever in tribal
affiliations or, indeed, in African traditions, cultures or customs. Thus,
in another lecture, included in the aforementioned publication, be said:
"The whole myth of a separate native culture collapses when it is
recognised that, for the African, progress and emancipation depend
1
Vide sec. E, Chap. V,supra.
z Vide sec. E,supra.
lIV, p. 413.
• Vide paras.9-10, supra.
' De Kiewiet, C. W., The Anatomy of South ,1/rican Misery (1956).p. 49. REJOINDER OF SOUTH AFRICA
upon an escape from the tribe and a deeper entry into the life of the
West. At its best and strongest, native leadership aspires to abandon
the past and seek a future in the western world. Its goals are educa
tion, opportunity and advancement in the environment created by
European enterprise. In far-off East Africa the Mau :Mau tragedy
shows that the African has nothing to resuscitate in protest against
the white man except tribalism, no tradition to invoke higher or
more dignified than the cruel sanctions of witchcraft and barbarism.
On the face of the earth there are few non-western peoples who
depend more than the African upon the west for everything that
can be ca!led advancement and progress 1."
9+ I t is difficult to understand how Applicants can in this regard rely
upon Prof. de Kiewiet, when his views as to tribal institutions and African
cultures and traditions are diametrically opposed to the views ex
pressed on this subject by leaders of the governments of the Applicant
States 2,to the policies which in fact are applied in the Applicant States 2,
and to the declarations and resolutions in which Applicants have joined
with other African countries regarding a revival of African cultures and
traditions 3•
-=-
1. Applicants' Allegations regarding Economie Conditions r-:Î
in Dependent Territories 1 ,:,.I
..,.
95. Applicants, whilst noting that this honourable Court has held that
Respondent is not obliged to conclude a Trusteeship Agreement with
respect to the Territory, and that Respondent bas refused to do so,
allege that policies pursued by govemments administering trust terri
tories, and standards enunciated by United Nations organs in regard
thereto,
"... are relevant indications of current norms in respect of the pro
motion of the well-being and social progress of inhabitants of de
pendent Terri tories 4",
On the basis of the alleged relevance of such policies and standards,
Applicants include in their treatment of the economic aspect what they
term "... a summary of policies and practices in Trusteeship Territories
involving situations analogous to those in South West Africa" 5• Ac
cording to Applicants this summary, which is contained in Annex 6 (r)
to the Reply 6,
"... demonstrates the generally accepted objective of maximum
effort on the part of the Administering Authority to integrate inhab
itants into the economy of the Territory as a whole, on an equitable
and progressive basis 5". (Italics added.)
96. The said summary is divided into three numbered paragraphs.
In the first paragraph Applicants set out declarations and recommenda
tions made by organs of the United Nations with respect to general aims
1
1 De Kiewiet, C. -w., The Analomy of South African j1fisery (1956), pp. 54-55.
3 Vide sec. E, Chap. V, supra.
III, pp. 378-382.
5 IV, p. 413.
6 Ibid.,p.414.
IV, pp. 426-430.242 SOUTH WEST AFRICA
conceming participation by indigenous inhabitants of dependent terri
tories in the economic life of such territories. The second paragraph
contains adverse comment by Applicants on certain aspects of Re
spondent's economic policy in South West Africa, whilst the third deals
with economic policies and practices in certain Non-Self-Goveming
Territories, presumably with a view to showing that such policies and
practices are in conformity with the aims expressed by United Nations
organs, as referred to in the ftrst paragraph of the summary.
In the succeeding paragraphs Respondent deals with the contents of
Applicants' summary, but will, for convenience, not follow the sequence
of Applicants' numbered paragraphs. Respondent will first deal with the
subject-matter of paragraph (r) of the summary; then with the allegations
in paragraph (3); and, finally, with paragraph {2).
97. It will be observed that although Applicants purport to rely on the
subject-matter contained in Annex 6 (r) as proof of alleged "standards
enunciated by United Nations organs" and as indicative of "current
norms in respect of the promotion of the well-being and social progress of
inhabitants of dependent Territories" 1,paragraph (r) of the said Annex
contains no declarations by United Nations organs (or by anybody, for
that matter) which can in any way be regarded as objective "standards",
or criteria. The varions declarations and views recorded in the said para
graph of the summary arnount, in Respondent's submission, to no more
than a statement of broad aims and objectives to be pursued in the
economic development of Non-Self-Governing Territories. Save for a
statement of the broad principle that the indigenous inhabitants of such
territories should be allowed and encouraged to participate in the econo
mic life of the territories, and save for mentioning certain specific steps in
tended to achieve that end in particular territories-such as, e.g., the
making of grants and loans, the expansion of existing systems of credit
facilities,the encouragement of technical training, the raising of stand
ards of living, increasing minimum wage scales, etc.-the said paragraph
contains no evidence of a prescription of general standards or methods
to be applied in pursuing the aforesaid broad objectives and aims. Indeed,
it is significant that in the very report of the Committee on Information
relied on by Applicants, the Committee noted that-
''[c]ircumstances differ greatly in different Territories according to
their degree of evolution and according to the extent and value of
their natural resources ", •
and stated, -wi.threference to Chàpter XI of the United· Nations Charter,
that development of Non-Self-Goveming Territories should proceed
"... according to the particular circumstances of each terri tory and its
peoples and their varying stages of advancement" 3• Itis clear, therefore,
that while the Committee formulated general economic objectives to be
pursued in the Non-Self-Goveming Territories, it also realized that, in
pursuing such objectives, regard must be had to the different circum
stances existing in, and to the problems peculiar to, the varions territories.
Subject to the qualification recognized by the Committee, Respondent
is in agreement with the Committee regarding the "fundamental aim of
1IV, p. 413.
2G.A ., O.R., Ninth Sess., SupplNo. 18 (A/2729), p. 15.
3 Ibid., p. 16. REJOINDER OF SOUTH AFRICA
243
economic policy" 1, and states in this regard that it has always been
Respondent's aim, in the words of the Committee, to-
"... develop ... [the Territory). .. in the interest of all sectors of the
population, to raise the standard of living by increasing individual
real purchasing power, and to increase the total wealth of ... [the
Territory] ... in order to make possible a higher standard of social
services and administration 1".
98. Paragraph (3) of the aforementioned summary 2 contains, for the
larger part, particulars of a variety of steps taken in various territories for
the economic advancement of their indigenous inhabitants. These particu
lars furnish no evidence of the recognition, or application, of any objective
norms or standards, but merely of particular practîcal steps taken to
improve the condition of the indigenous inhabîtants of the territories
concerned. Respondent does not propose to deal with any of these steps:
the fact that they were apparently considered advisable in the circum
stances pertaining in the said territories, does not seem to Respondent to
have any important bearing on issues in this case. Applicants have made
no attempt to show that conditions and problems in such territories are,
in so far as is relevant to the particular steps, the same as in South West
Africa, or even that, in that context, they can truly speak of ''situations
analogous to those in South \Vest Africa" 3.
The remainder of the said paragraph contains allegations to the effect
that "[t]here is no Mandated Territory or former Mandated Territory,
other than ·South West Africa, in which land is divided along 'racial'
lines" ~; that "[s]uch stark dissociation of groups from centres of modern
economic development would be illegal in any dependent territory" \
and that "... geographical segregation is not allowed" 4.
It is not clear from the above allegations whether Applicants' conten
tion in the present context is that geographical segregation is per se im
permissible, or that such segregation is impermissible when it has the ef
fect of separating, to their detriment, certain sections of the community
from "centres of modern economic development". If the first, the con
tention would involve the application of Applicants' so-called legal norm
of "non-discrimination or non-separation", in regard to which Re
spondent refers to what it has said elsewhere in demonstrating that
no such norm is embodied in Article 2 of the Mandate, or is otherwise
binding on Respondent 5• If, however, Applicants' contention is that
segregation is impermissible if it has the detrimental consequences afore
stated, then it appears to link up with what is said in paragraph (2)of
Applicants' summary, with which Respondent deals in the succeeding
paragraphs.
First, however, Respondent may point out again that in weigbing
advantages and disadvantages of separation against those of attempted
integration, the economic sphere cannot be considered in isolation from
the political and social spheres. Consequently, the observations made
earlier in this Rejoinder 6 regarding unsettled conditions, hostilities,
1 IV, p. 426.
2 Ibid.,pp. 428-430.
3 Ibid.,p. 414 and vide alsopara. 95, supra.
• IV, p.428.
s V ide sec.B, supra.
~ Vide secs. E and F, supra. SOUTH WEST AFRICA
refugee problems, strained relations, etc., in somc of the very territories
referred to as examples by Applicants in paragraph (3) of their summary,
are not without significance in the present context.
99. Applicants' first allegation in paragraph (2) of their summary
reads as follows:
"The legally enforced separation of the peoples of South West
Africa into a predominately {sic) African 'labour' area in the North
and a predominately 'European' industrial and urban area in the
Police Zone exacerbates the gulf between 'Native' well-being and
the benefits of the modern economy, as well as contributing to ineffi
cient allocation of economic resources to the detriment of the people
as a whole 1."
The above allegation gives a misleading picture of the situation in the
Territory. This will be apparent from various parts of Respondent's
answer to Applicants' treatrnent of "The Economie Aspect", and need,
thercfore, not be demonstrated in any detail in dealing with their Annex
6 (1) and, more particularly, with the paragraph thereof now under
consideration. Respondent merely points briefly ta the following:
(i) A completely false impression is created by describing the northern
tcrritories merely as a "'labour' area", without any mention of
farming or other activities in, and the development potential of,
these terri tories;
(ii) no mention is made of the reasons-historical, social and econo
mic 2-which underlie the fact that the role of the northern inhabit
ants in the modern economy has thus far been limited largely
to one of supplying labour; the impression is created that this
situation is the fault of Respondent, i.e., the consequence of
"Iega1ly enforced scparation", whilst it is a fact that simibr si
tuations are common in other countries in Africa where a modern
economy has comparatively recently been introduced to an in
digenous population with a traditional subsistence economy 3;
(iii) the impression is created that the inhabitants of the northern
areas are being Icft to their own resources. and that by design
they are destined to be labourers in the modern economy for ail
time, and no mention is made of progress alrcady made in those
areas, nor of development projects accepted for such areas and in
some respects already in the course of implcmentation 4;
(iv) in referring to the so-ca1Icd "inefficient allocation of economic
resources", nothing is said of relevant historical circumstances
pertaining to occupation of land; nor of climatic and other factors
which affect the value and agricultural potential of land 5; nor of the
system of developrnent of the Territory which. in Respondent's
submission, was the most realistic to adopt in all the circurnstances 6;
nor of future developments proposed for the benefit of the Native
inhabitants of the Terri tory\
1 IV, p. 427.
2 Vide, e.g., para.35,supra.
3 Vide para. 17, supra.
• Vide IV, pp. 202-21 r.
' II, pp. 304-306 and vide also Chap. III, paras. 18-f,infra.
6 Ibid., pp. 409-414; Ill, pp. 4-6 and Chap. III, paras. 15 and 23, infra. REJOINDER OF SOUTH AFRICA 245
roo. The misleading impression created by Applicants' aforementioned
allegation is aggravated by the "evidence" which Applicants quote
in support thereof. The said quotation does not refer to South West
Africa, but to certain other territories. The quotation, taken from a
report of the Economie Commission for Africa, reads as follows:
" ... The setting aside of land for members of different racial groups
has almost invariably led to overcrowding and exhaustion of much
of the land set aside for Africans and under-utilization of other
areas ... In brief, the division of the economy intoarbitrary African
and non-African sectors rather than treating the economy as one
whole, has had and cannot but have deleterious consequences. Until
land allocation is non-racial and all the other aspects of agriculture
are seen as non-racial problems the process of economic development
must remain heavily and artificially burdened 1."
The Commission gave three reasons for its finding, viz.:
(i) "the setting aside of land for members of different racial groups
has almost invariably led to overcrowding and exhaustion of
much of the land set aside for Africans and under-utilization
of other areas;
(ii) unequal agricultural services and restrictions on the growing of
specific crops have rctarded production;
(iii) rigid marketing controls and the discriminatory pricing system
2
of agricultural commodities have similarly had adverse effects ".
None of these reasons are valid in the case of South West Africa, which
was not includcd in the Commission's stucly. There are no discrimina tory
marketing contrais, no price systems or restrictions on the growing of
crops, and there is no question of the northern territories in South
West Africa (i.e., the areas here in issue) being overcrowded or exhausted.
Furthennore, it cannot be said that the economy of the Territory has
been divided into "arbitrary" Native and non-Native sectors. In this
regard Respondent refers to what is said elsewhere about land occupation
at the inception of the .Mandate 3; the reservation of land for Native
4
occupation and the protection of the Natives' rights to such land ; the
traditional subsistence sector in the northern areas, and Respondent's
method of developmcnt of the Territory by first concentrating on the
expansion of the existing modern money economy in the sonthem portion
of the country 5•
IOI. Applicants also say that the above-mentioned Commission-
"... found that separation of heavy industry from the African re
serves has 'turned these areas gencrally into economically inactive
centres--denuded of the prime of their manhood, and incapable of
attracting private Europcan capital' 6".
Whatever the position may be in the countries studied by the Commis
sion, Respondent says that the abovc statement bas little relation to the
1 IV, p. 427.
z U.N. Doc. E/CN. 14/132, Rev. r, Economie and Social Consequences of Racial
Discriminatory Practices (1963), p. 38.
' Il, pp. 406-407 and 426.
• III, pp. 238-251 and Chap. III, paras. 15-16 and 23,infra.
5 II, pp. 409-414 and para. 16,supm, and Chap. III, paras. 15-16 and 23, infra.
6 IV, pp. 427-428. SOUTH WEST AFRICA
realities of the situation in South West Africa. There is no question of
the Native reserves having been "turned" into "economically inactive
centres". Any suggestion that this is so fails to take account of thè con
dition and level of development of the Native inhabitants of the Territory
at the inception of the Mandate, and, more particularly, of their traditio
nal subsistence methods and their capacity for development and change.
Such a suggestion loses sight, furthermore, of the fact that the develop
ment and expansion of a modern money economy in the southern portion
of the country have in the past had a beneficial effect on the economy of
the Native areas, and that they will do so in future in progressively
greater measure.
Respondent understands the allegation regarding reserves being
"denuded of the prime of their manhood" to be a reference to the system
of migra tory labour, and in this connection it refers to what is said above 1.
As regards the allegation that reserves are "incapable of attracting
priva te European capital", Respondent refers to what it has said else
where in connection with protecting Native interests in land 2•
102. With reference to the report of the Commission, Applicants also
allege that-
"... there is economic wastage in duplicating houses, since tempo
rary accommodations must be provided for migrant workers who
3
might otherwise be living with their families in their own homes ".
Applicants have not attempted to show that there is, in fact, such a
"wastage" as referred to by them. The position regarding the accommo
dation of migrant workers is, briefly, that a large proportion of them are
housed in hostel s,which are permanent structures, and there is no question
of providing "temporary accommodations", or of "duplicating houses",
when new migrants arrive in the Police Zone to take the places of
those who have completed their term of employment. Workers not housed
in such hostels (e.g., those on farms or in domestic service) occupy houses,
or rooms, provided by their employers, and here, too, there is no question
of providing "temporary accommodations". Applicants' allegation of
"wastage" is, therefore, based on a misconception of the position regard
ing the accommodation of migrant workers in the Police Zone. Respond
ent says, furthermore, that the question of housing Native workers from
the northern areas with their families in the Police Zone, whether on a
temporary or permanent basis, involves much more than a mere question
of economics. Respondent refers to what has already been said in this
regard 4.
103. Applicants' final allegation in paragraph (3) of the summary is
that-
"... the primary evil of territorial apartheid, such as that proposed
by the Odendaal Commission, and endorsed in principle by Respond
ent, is maintenance of a bare subsistence economy among the
'Natives' outside the Police Zone, and prevalence in the reserves of
frustration 3",
1 Vide paras.r5 et seq., supra.
2 II, pp. 426-427; III, pp. 245-251 anvideChap. III, paras. 2-13,infra.
3 IV, p.428.
4 Vide paras. r9 and 36-39,supra. REJOINDER OF SOUTH AFRICA
247
and they then quote a passage from a report of the Committee on Infor
mation in which it is said,inter alia, that-
"... material benefits to the advantage of only a limited group of
peoples always breed discontent. If the advantage is to be found only
outside the community concerned, such discontent will be bitter and
justified ".
Respondent emphatically denies that "maintenance of a bare subsist
ence economy among the 'Natives' outside the Police Zone" forms any
part of the policy of separate development or of "territorial apartheid,
such as that proposed by the Odendaal Commission". lt has never been
Respondent's policy to "maintain" a bare subsistence economy in the
northem territories. Nor do the proposals made by the Odendaal Com
mission involve the "maintenance" of such an economy as a matter of
policy, as a reference to such proposals will immediately reveal.
No proof is given by Applicants of the alleged "prevalence in the re
serves of frustration", nor is the nature of the said "frustration" stated.
It would seem, however, from what is said by Applicants, and from what
is stated in the passage quoted from the report of the Committee on Infor
mation, that Applicants are probably referring to "frustration" which
allegedly arises from, or is linked with, the alleged "maintenance of a bare
subsistence economy among the 'Natives' outside the Police Zone".
Respondent has already denied that it is part of its policy to maintain
such an economy. It is true, of course, that a subsistence economy is still
practised by many Natives in the northem areas, but it is equally true
that it is Respondent's aim to improve and develop their territories, and
to make it possible for them to progress to higher standards of living than
are at present enjoyed by them.
1 IV, p.428. CHAPTER III
THE RESERVES
A. lntroductory
I. ln this Chapter Respondent deals with the matters discussed by
Applicants in Chapter IV. B.3.c.2. (C) of the Reply, headed "The Re
serves" 1.The subject-matter with which the said part of the Reply is
concemed can conveniently be grouped under the following heads, and
will hereinafter be dealt with in that order, viz.,
(a) development of the northem reserves outside the Police Zone;
{b) allocation and alienation of land to Europeans, and the alleged
graduai extension of the Police Zone;
(c) measures taken for the relief of persons affected by drought;
(d) social welfare measures which are alleged to be discriminatory.
B. Development of the Northern Reserves outside the Police Zone
2. Applicants in the i\femorials made a complaint to the effect that the
Native population in the northern areas, outside the Police Zone, is
"far removed from the principal areas of modem economic development
and activity", and that the activities of the said population "do not make
it part of the modem monetary economy" 2•
In reply thereto, Respondent, while admitting thatthat was the factual
position 3, submitted that, in the circumstances which obtained, the
situation could have been altered in one of two ways, namely either by
encouraging or forcing the people to leave their lands and flock to the
Police Zone, or, altematively, by a proccss of rapid development of the
northem territories with the aid of European initiative and capital 4•
Respondent further explained why both these alternatives were im
practical and inadvisable, not only m so far as the economy of the Terri
tory as a whole was concemed, but also, and particularly, in so far as the
interests of the Natives themselves were concerned. Applicants do not
contest the reasons advanced by Respondent for not following either of
the aforcmentioned courses, but they submit that "Respondent's options
were not in fact limited to such extremes" 5 ,inasmuch as there was, in
their submission, a third course which could, and should, have been
adopted by Respondent. They state in this regard:
"lndeed, a sound sociological and economic approach would have
been to develop the northern territories with outside capital, slowly
at first, but with increasing speed as capital and surplus resources
werc created within the reserves themselves 5."
1
2 IV, PP· 4 r4-417.
I, p.II2.
3 Subject. of course. to their participatias wage-earners in the modern economy.
• III,p. 22.
5 IV, p. 414. REJOINDER OF SOUTH AFRICA 249
Although the approach suggested by Applicants may appear attractive
in theory, it stands divorced from the realities of the situation, and ignores
the basic considerations involved. Their suggestion that the course
advocated by them was feasible from the outset, and would, if adopted
from the inception of the Mandate, already have brought about a radical
change in the economic position in the northem territories, shows a
complete lack of appreciation on their part of the economic implications
and of the adaptability of the Natives concemed to modem economic
methods.
3. There is, in the first place, the question of funds required for a
project such as that suggested by Applicants. As has already been men
tioned 1,at the inception of the Mandate, and for many years thereafter,
the concept of financial aid by international agencies or others to under
developed or non-viable States was unknown. Of course, as Respondent
has stated 2,it could have allowed "outside capital" to be introduced in
to the northem reserves by permitting European entrepreneurs to exploit
the resources of the said areas; but Applicants themselves describe such
a course, which was, for the reasons given by Respondent, not followed as
one of the two "extremes" to which Respondent was not limited in its
options. Consequently, the development of the reserves had to be financed
out of the resources of the Territory and the contribution which South
Africa itself could make towards that end. In this regard it has already
been explained 3 that in the circumstances of the Territory, and with
limited funds at its disposal, especially in the earlier years, Respondent
was obliged to adopta policy by which it was sought first to concentrate
upon and encourage a rapid development of productive enterprises in the
modem economy sector as growth points for further development of the
Territory as a whole. In this process the modem economy sector could,
and did in fact, provide funds for the administration and development of
the Territory, as well as increased opportunities of employment also for
the inhabitants of the northern territories. And opportunities of employ
ment for them not only brought about an additional income in the form
of a regular flow of cash earnings into the northem reserves, but also
contributed generaUy towards progress in the said reserves, in that the
workers gained new skills and experience and became adapted to modem
methods which could be introduced into their traditional society. In this
regard Respondent draws attention to the following remarks in a publica
tion of the International Labour Organisation:
"An opportunity for productive work is not merely a means to a
higher income. It is a means to self-respect, to the development of
human potentialities and to a sense of participation in common
purposes of society \"
And the following observations are made in the said publication with
regard to the role of opportunities of employment in econornic develop
ment:
"The purpose of economic development is to raise levels of living,
and the main purpose of insisting that employment objectives should
1 li, p. 4ro.
3 Ibid., p. 411.
Ibid., pp. 409-414; III, pp. 4-103 and vide also Chap. II, pa16-17,supra.
• International Labour Office,E,nploymml Objectives in Economie Development
(r96r),p.iii. SOUTH WEST AFRICA
be given weight in the choice of alternative paths of economic
development is that this is the surest, if not the only, way of making
certain that the irnprovements in levels of living that corne about as
economic development proceeds will be widely shared. Unemploy
ment and underemployment are major causes of poverty, and the
objective of providing more, and more productive, employment is
the major element in the broader objective of promoting higher levels
of living 1."
In another publication of the said organization it was stated, with
reference to African employees,
"[i]n particular, the extension of wage-earning employment means
for an ever-increasing number of Africans a new way of life in the
widest possible sense: because of the fact that centres of employment
and previously existing concentrations of population often do not
coïncide, wage-earning employment generally begins with a change
of residence and involves not only the learning of new skills and
habituation to work routine, but also adaptation to t2e multifarious
aspects of a new form of social organisation ... ".
Although the Natives in the northern reserves would, at least in the
earlier stages, participate in the modern economy of the Territory only
as wage-earners, they would later, with progress generally in education
and in their understanding of modern systems and methods, become
receptive to changes in their traditional ways of life which would even
tually lead to the establishment and development of modern economic
enterprises in their own areas.
4. The course advocated by Applicants would not have permitted of
economic development on the lines aforestated. It would of necessity
have entailcd that Respondent should, with the limited funds then at
its disposai, have concentrated on developing both the southern sector
(the modern economy sector) and the northern territories (the traditional
sector) at the same time. Inevitably such a policy would have resulted in
a retardation of progress in the modern economy sector, with a resultant
loss of income and, therefore, of funds available for the development of
the Territory, as well as in a curtailment of employment opportunities
offered also to the inhabitants of the northern reserves. At the same time
little bencfit would, at least in the earlier years, have resulted from the
establishment of new enterprises in the traditional northern sector, if
only for the reasons mentioned in the succeeding paragraphs.
5. Applicants, in suggesting that, with the introduction of "outside
capital", the northern territories could rapidly have been transformed
from a traditional subsistence economy into a modern economy, show an
unawareness of the importance of the human factor in economic develop
ment. In this regard it has been stated inaUnited Nations publication that-
"... as most governments acknowledge, development is only
possible with the active co-operation of the population. This, in turn,
presupposes their desire for change and their confidence that the
results of change will benefit them; but such understanding is again
inhibited by poverty and suspicion and a general lack of awareness.
1 International Labour Office,Employment Objectives in Economie Development
(1961).p. iii.
2
Idem, African Labour Survey (I958),p. 15. REJOINDER OF SOUTH AFRICA
A transformation of man himself will initiate and ensure the perma
nency of the advance. To describe economic development as a
'human' problem may be somewhat too general; but it is probably
the most fundamental way of stating the problem 1."
Professor Colin Clark has briefl.y stated the same view as follows: "The
principal factors in economic growth are not physical but human ." This
is so particularly in the case of tradition-bound people, such as the Native
inhabitants of the northern territories, whose agriculturaJ and pastoral
practices are hallowed by age-old observance. Thus it bas been said with
regard to the modernization of under-developed countries generally
that-
"... no division of the problem into parts permits escape from the
fondamental proposition that the paramount requirement for the
modemization of any Society is that the people themselves must
change. Our understanding of the process of modemization in the
underdeveloped countries, and in tum our understanding of the
policy problems involved, must be infonned by awareness of the
ferment of individual thoughts and emotions at the core of any
drastic change in a society. Here, in what might be called the realm
of psychological change, the requirements for modemization give
rise to tensions and resistance, to visible and invisible conflicts
which are often the hardest for the outside world to comprehend
and accept 3."
That modemization must necessarily be a lengthy process, is empha
sized in the following passage, also from the aforementioned publication:
"American and free-world policies can marginally affect the pace
of transition; but basically that pace depends on changes in the
supply of resources and in the human attitudes, political institutions,
and social structure which each society must generate. It followsthat
any effective policy toward the underdeveloped countries must have
a realistically long working horizon. It must be marked by a patience
and persistence which have not always been its trademark 4."
6. That the problems which beset modemization of a traditional
economy are common to under-developed countries, especially in Africa,
appears from a recent United Nations Study undertaken by the Eco
nomie Commission for Africa. It was observed in this study that in the
greater part of Africa-
"... the development of the modem sectors is still marginal and
society on the whole is still tradition bound, 'old blocks and resis
tances' to change still prevail and dominate individual decisions,
traditional attitudes determine and limit freedom of action ".
A former President of the World Bank, E. R. Black, has described the
general position on the African Continent as follows:
1 U.N. Doc. E/CN. 14/67. Economie Bulletin for Africa.Vol. I, No. 1 (Jan. 1961),
p. 87.
2 Clark, C., Gf'owthmanship (1961), p.51.
' Millikan, M. F. and Blackmer, D. L. M. (Eds.), The Emerging Nations: Their
Gowth and United States Policy (1961), p. 23.
~ Ibid.,p.142.
' U.N. Doc. E/CN. 14/171, Economie Bulletin for Afri&a, Vol. II. No. 2 (June
r962), p.7. SOUTH WEST .-\FRIC.-\
252
"... nowhere in the world does the bulk of the population play so
restricted a role in economic life and development as it does in
Africa. The continent is uniquely dependent on foreign capital and
foreign initiative ."
After stating that "[t]here is no mystery about this lag", he gives the
following reasons for this state of affairs:
"Development initiative in Africa has always corne, and still
cornes, almost exclusively from a smalt number of European, Tndian
and Levantine entrepreneurs ... Africa's growth has been limited
by the pace at which the bulk of the population is willing and able to
leave its traditional subsistence economy and participate more
actively in the modern. money economy. A shift from subsistence
living to a lite of saving and investing, of course, requires funda.
mental changes and popular attitudes towards life and work 1 ."
7. This phenomenon is not limited to the new emerging African States,
but is common also in other African States which have been independent
for a long time. Indeed, the two Applicant States serve as good examples
of a traditional subsistence economy being rooted in the indigenous
population. Thus it has been stated of conditions in Liberia:
"Liberia has always been an agricultural country and her climate is
idcally suited for the cultivation of foodstuffs for home consumption
and the production of cash crops for sale abroad. But the traditional
methods used by the majority of the tribal population are so primi
tive that our soil yields only a very small fraction of what it could
produce ... 2"
The extent to which a traditional subsistence economy is still practised
in Liberia has been summed upas follows:
"The basic economy of most of the people is subsistence agricul
ture. The vast bulk of the population depending on farming of a
shifting fields type 3."
The position is very much the same in Ethiopia, of ,vhich it has been
said that "[o]ver 90 percent of the country's labor force derives its
livelihood from subsistence agriculture of various kinds" 4.
In discussing a remedy for this state of affairs, C. Jesman says:
"To raise the productivity of Ethiopian agriculture, for e..xample,
something other than chemical fertilisers, foreign advisers and stud
animais ... is needed. Ali this has been tried in Ethiopia in the past
and has failed. The Ethiopian farmer, in order to become really
5
interested in the yield of his land, must see the reason for it ."
8. Professors Buchanan and Ellis, who share the view of the afore
mentioned author that administrative action and aid from outside, or,
1 Black, E. R., ·'How the World Bank is helping to develop Africa"', Optima, Vol
VIII, No. 3 (Sep. 1958), pp. rn5-1 r2, at p. 107.
2 Simpson, C. L., The Memoirs of C. L. Simpson: The Symbol of Liberia (t961),
p.247.
l Solomon, M. D., "Education in Liberia", Science Education, Vol. 43, No. 3
(April 1959), pp. 22r-227, at p. 222.
• Department of the Army. U.S. Am1y Area Handbook for Ethiopia, 2nd ed.,
Pamphlet No. 550<,8 (June 1964), p. 225.
5 Jesman. C., The Ethiopian Paradox (t963), p. 4. REJOINDER OF SOUTH AFRICA 253
as Applicants put it, the introduction of "outside capital", cannot solve
the problem, have stated the position thus:
"... merely providing more capital equipment from abroad or
demonstrating superior techniques of production will not create an
environment from which innovations are bound to appear, or in
which the entrepreneurial spirit and point of view are certain to
flourish. If these could be assured, interna! productive capital
formation would almost certainly follow. Only in a vcry limited and
comparatively trifling sensc can economic development be 'im
ported'. In nearly all its important essentials it must be generated
from within 1."
And a United Nations report has in this regard pointed out that-
"[t}he human qualities that promote economic growth are variously
identifted ... [but] Govemments cannot create such qualities by
legislative fiat or budgetary appropriation. There are no operative
branches of government in sociology and pyschology disposing of
2
funds to cultivate directly the desired qualities ."
9. With regard to the utilization of outside capital in carrying out
development programmes in territories in Africa, Professor I. M. D.
Little has said:
"Few African countrics could have usefully absorbed in reccnt
years more capital than has been available to them: indeed, much
of the capital expenditure made has been of little benefit 3."
Reporting on the foreign operations of the United States of America
in Africa, Allen J. Ellender, a member of the United States Senate, stated
as follows with regard to financial aid programmes:
"It seems to me that by now it should be fully understood that
'dollar diplomacy' is not the solution to the world's ills. "\Veare told
that, in addition to the development of economic and human
resources in Africa, our aid must also provide a 'physical measure
of achievement' to give a sense of direction and accomplishment to
our program. Our past experience has proven this concept of aid
to be fallacious because it is so wasteful and only invites corrup
4
tion ."
Indeed, another authority, Professor S. H. Frankel, has expressed the
view that the introduction of "outside capital" can in certain cases do
more harm than good to economic progress in under-developed countries.
He makes the point as follows:
"The problems of the borrowers are not solved by the reccipt of
capital which leads to the adoption of an economic pattern which is
not income-creating or is incapable of relatively permanent integra
tion into the economic structure into which it is imported. Such
injections of capital disrupt the existing but do not rebuild new and
1 Buchanan, N. S. and Ellis, H. S.,Approaches to Economie Development (I955),
p. 4o7.
2 U.N. Doc. E/CN.5/346/Rev. l, ST/SOA/42, Report on the World Social Situation
(I961), p. 32.
l Little, I. M. D.,Aid to Africa (1964), p. 4.
4 United States of America: 88th Congress, rst Session-Senate-A Report on
United States Foreign Operations in Africa by Honorable Allen J. Ellender, United.
States Senator from the State of Louisiana (1963), p.13.254 SOUTH WEST AFRICA
continuing patterns of economic behaviour. Such capital imports
mayincertaincases only postponethe need formeetingthe realprob
lem of the economy as long as the capital lasts ."
IO. It is, however, not to be understood that Respondent adopts the
attitude that it could not, and therefore did not, take any steps to educate
and encourage the indigenous peoples of the northern territories to
accept reforms and to adopt modern methods which would lead them to
an understanding of, and to the graduai introduction of, a modern
economy system-a contention which Applicants seem to advance else
where in the Reply, where they speak of "Respondent's maintenance,
2
up to the present, of a subsistence economy in the Reserves" •In this
regard Respondent explained in the Counter-Memorial 3 that its policy
was "to guide the population in the direction of greater productivity by
means of a gradual adaptation of their traditional economic and social
institutions, rather than by means of revolutionary changes". And
Respondent described what had been done in this regard by way of
improvement of livestock; measures for selective breeding of stock;
experimentation in systems of crop rotation; introduction of tested and
selected seeds; veterinary services and, particularly, the development of
water resources and storage facilities 4• These measures were. of course,
in addition to the assistance and encouragement generally of the educa
tion of the Native people.
II. \Vhen Applicants say:
"Respondent's duty in this regard was one of education and
systematic development. The situation required, and continues to
require, special effort; ail the more soif. as Respondent asserts, there
existed a so-called 'lack of interest' on the part of the inhabitants of
the Territory toward mining, land ownership, and other aspects of
the 'strenuous conditions of the modern world' 5",
Respondent's answer is that it has done precisely what Applicants in
the above passage suggest should have been done, but at the same time
Respondent stresses the human factors mentioned above, which made it
inevitable that progressin leading the indigenous people from a traditional
subsistence economy to a modem one would be slow.
12. That Respondent counselled itself wisely in making the reforma
graduai one instead of attempting to bring about a revolutionary change.
is borne out by the views of others who can speak with authority on the
subject. In this connection it may be stated that a group of eminent
scholars, representing different fields of interest, and having wide ex
perience in the problems of under-developed countries, recently recom
mended a very similar approach in a comprehensive study designed to
advise the United States Scnate Committee on Foreign Relations in
respect of under-developed parts of the world. As a choice of policy they
recommended-
". . . the graduai modification of the institutions, practices, and·
1 Frankel, S. H., TheEconomie Impact on UndeY-deuelopedSo&ieties (1953),p. 76.
2 IV,p. 262.
5 III,p.6 (para. 6).
• Ibid., pp.6-8.
5 IV,p. 4r4. REJOINDER OF SOUTH AFRICA 255
structure of the traditional society in the direction of modernization
while retaining some of its traditional cohesive features ".
And they expressed the view that-
"... if the forms of modernization are adopted more rapidly than
they can be made to function effectively, then traditional values,
institutions, and gratifications will bedestroyed before modern substi
tutes have been developed .. .1''.
13. With the progress which has already been made by the indigenous
peoples in South West Africa, a stage has now been reached where more
pronounced consideration can be given to their economic development,
and where the rate of progress can be accelerated. In the words of the
Odendaal Commission,
"[t]he second phase, namely where the non-White groups have in
creasingly to be given the opportunity, necessary assistance and
encouragement to find an outlet for their new cxperience and capa
bilities,must in future receive special attention in a programme of
development for South West Africa. On the one hand they must be
afforded protection against the more effective competition of the
White group, and on the other hand they must be given financial
aid and technical assistance both from the local modern economy
and from the Republic of South Africa 2."
The Commission, therefore, felt that-
"... every effort must be made in the first place to ensure greater
participation of the indigenous non-\Vhite groups in animal hus
bandry, agriculture, forestry and mining 3",
and made extensive recommendations in that regard, particularly in
respect of the northern territories \
That it isRespondent's object to give immediate attention to the devel
opment projects recommended by the Commission, is clear from the pro
nouncement of Respondent's decision relative to such recommendations 5,
and several of the projects are already under practical consideration
and even in the course of implementation.
C. Land Allocation and the Alienation of Land to Europeans, and the
Alleged Gradua!Extension of the Police Zone
14, One of the complaints made in the 11fomorialsrelative to well
being, social progress and development in agriculture, was that there
had since the inception of the ~Iandate been excessive extensions of the
Police Zone boundary, so that by the end of 1952 the European farm
lands represented 45 percent. of the total area of the Territory, whereas
1
Millikan, M. F. and Blackmer, D. L. M. (Eds.), The Emerging Nations: Their
Gr2wth and United States Policy (1961), p. 98.
R.P. No. 12/1964, p. 429 (para. 1437).
' Ibid. (para. 1438).
4 As to agriculture uide R.P. No. 12/1964, pp. 307-311.
As to water supplies, uidepp. 449-455.
As to mining,uide pp. 457-459.
As to industriesuide p.459.
~ IV, pp. 203 and 207. SOUTH WEST AFRICA
the European population of the Territory constituted Iess than 12 per
cent. of the total population 1.
Respondent, while admitting the factual allegation contained in the
said complaint, explained the reasons for the extension of the Police
Zone boundary, as well as the reasons for encouraging the settlement of
European farmers on available land in the Police Zone •
In the Reply Applicants comment as follows on the explanations given
by Respondent:
"Res_pondent marshals detailed argument in reply to Applicants'
observation about the allocation and alienation of land to 'Euro
peans' and the graduai extension of the Police Zone without, how
ever, explaining why 'the Mandatory has progressively reduced the
proportion of farm land avai1ab1e for cultivation or pastoral use by
the 'Native' population, while it has progressively increased the
proportion of such farm land available to 'Europeans' 3." (Footnotes
omitted.)
In so restating their complaint, it seems that Applicants have either
mîsunderstood the explanations given by Respondent, or have simply
disregarded them.
15. With regard to the allegation that Respondent had progressively
increased the proportion of farm land available to Europeans, it was
explained in the Counter-Memorial that for economic reasons it was
necessary to develop the agricultural resourccs of the Territory in order
to increase and stabilize income, exports and revenue".
The Native inhabitants of the Territory, who were unaccustomed to
agricultural practices other than of a traditional subsistcnce nature, and
whose general level of development was such that they could not provide
the capital, initiative or entrepreneurial skill required for the exploitation
of the agricultural resources of the Territory, could not be relied upon
for the development of such resources on a modem commercial basis.
It was for this reason that Respondent was obliged to look to European
settlers who had the experience, initiative and skill for its land devclop
ment schemes 5•And it was in the process of such dcvclopmcnt that over
the period 1920 to 1g60 a substantial area within the Police Zone, which
had previously been govemment land, or land owned but not used pro
6
ductively, was made available for settlement by European farmers •
There is, however, no justification for the conclusion drawn by Ap
plicants, namely that by allocating such land for occupation by Euro
pean farmers Respondent "progressively reduced the proportion of farm
land available for cultivation or pastoral use by the 'Native' population"
-unless this conclusion is based on the premise that by right all land in
the Territory should have been allocated to, or reserved for, the Native
population, and that any grant of land to a European pro tanto reduced
the land available for the Natives, a premise which would, of course.
be absurd.
As Respondent bas indicated, although land was allocated for settle-
lI, p. n5.
2II, pp. 409-411 and III, pp. 29-31.
3 IV,p. 414.
4Il, p.4II.
$ Ibid., andIII,p. 31.
6 Ibid., and Ill, pp. 28-29. REJOINDER OF SOUTH AFRICA 257
ment by European farmers, there was no reduction of the land set aside
or reserved exclusively for the use of the Natives. On the contrary, the
reserves within the Police Zone were gradually increased by the extension
of the land reserved for the Native population from 998,101 hectares at
the inception of the Mandate 1 to 6,092,245 hectares in 1961 2•
16. \Vith regard to the northern territories outside the Police Zone,
substantial increases were also made in the land reserved for the different
groups. In Ovamboland the Natives at the inception of the Mandate
occupied only about one-half of the area which was later proclaimed as
3
a Native reserve for the Ovambo people •
The position is the same in the Okavango. At the inception of the
Mandate only a narrow strip along the Okavango River was occupied
by the Native people. A very much larger area of land was proclaimed
as a reserve for the Okavango group 4•
In the Kaokoveld three small pieces of land, totalling in ail 418,500
hectares, were orginally set aside for occupation by certain tribes of this
5
region •The total area of land reserved for the people of the Kaokoveld
eventually exceeded 5,500,000 hectares 6.
\Vith regard to the Caprivi, approximately 500,000 hectares of land was
in 1939 added to the area originally occupied by the Caprivians 6. In
addition to the extension of the defined northern rcserves, an unnamed
area of 356,433 hectares was set aside in 1952 for Native occupation 7•
It is clear from the abovc that there has at no time been any reduction
in the extent of land included in the reserves in the northern territories
outside the Police Zone. In this connection Applicants err when they say
that the extension of the Police Zone boundary has reduced the farm land
available for use by the Native population. Respondent, in explaining
8
the reasons for cxtending this boundary from time to time ,stated, inter
alia, that there was no question of encroaching on the northem reserves
inasmuch as there has always been a substantial area of uninhabited
land of varying width adjoining the Police Zone which does not form part
of the northern reserves 8 •
17. Although, as is indicated above, Applic:mts' conclusions under
consideration are unsound, it would scem that in the present context
they are, without saying so explicitly, merely repeating a complaint made
1II, p. 411, and Ill, pp. 240 and 246, i.e.,excludinthe RehobothGebiet of 1.750,000
hectares.
2 Ill,pp. 249-251. There is in this respect a small difference bctween the figures
given in the Counter-Memorial and those reflected in the report of the Odendaal
Commission (R.P. No. 12/1964, p. 71). The figures in the Counter-Memorial were
based on the latest revised extents asfurnisbed by the Surveyor-General, and can
be accepted as correct.
3 Froc. No. 27 of 1929 in The Laws of South West A frica r9z9, Vol. VIII, pp.
258-264 and III, p. 250.
• Froc. No. 32 of 1937 in The Laws of South West Africa I937, Vol. XVI, pp.
306-312 and III, p. 250.
5
Vide Ill, p. 247.
6 Ibid.,p. 250.
1 G.•N. No. 193 of 1952 in The Laws of South West Africa 1952, Vol. XXXI, pp.
850-852. Vide also III, p. 250. The Odendaal Commission has now recommended
that this area be added in part to Ovamboland, and in part to the Okavango
(R.F. No. 12/1964, pp. 83 and 85).
8 III, p. 30. SOUTH WEST AFRICA
elsewhere in the Reply, namely that, relative to the difference in numbers
between the Native and European inhabitants, there is a gross disparity
between the extent of land occupied by Europeans and that reserved
for the Natives 1•That they indeed intend to repeat that complaint in the
present context, is evidenced by their further statement that there is
no valid basis for Respondent's conclusion that ''the provisions that have
been made [relative to the allocation and occupation of land] are not un
reasonable" 2, and their reference to a comment by Professor WeUington
to the effect that "[wJe seem to have looked after ourselves very well" 3•
Ç>n the understanding that this is in fact the complaint which Appli
cants intend to make in the present context, Respondent will in the
succeeding paragraphs demonstrate the basic fallacies underlying the
conclusions drawn by Applicants from the fact that, in respect of extent,
there is a disproportion between the areas of land occupied by Europeans
and the areas reserved for the Natives.
18. The fi.rst,and perhaps the major, respect in which Respondent sub
mits that the comparison sought to be drawn by Applicants is fallacious,
is that they have completelY. ignored the physical attributes which
circumscribe the potential utdization of the different regions in South
West Africa for agricultural purposes.
As has already been stated 4, agricultural operations in South West
Africa are crucially influenced by climatic conditions, particularly rainfall
and evaporation. Any comparison between the varions agricultural
regions of the Territory is therefore meaningless unless it takes account
of these factors.
For agricultural purposes, the areas reserved to the non-European
groups in the Territory are generally much more favourably endowed by
nature than those occupied by the Europeans. This applies especially to
rainfall. Thus only 32.r per cent. of the Territory receives an average
annual rainfall of more than 400 mm. (16 in.), which can be regarded
as the absolute lower limit for dry-land agriculture in warm-temperate
summer rainfall regions such as South West Africa 5•This area of approxi
mately one--third of the Territory lies entirely to the north-east 6, where
nearly 65 per cent. of ail the inhabitants live, composed of g6 per cent.
non-Europeans and 4 percent. Europeans. In other words, 70 percent.
of the total non-European population of South West Africa and only
20 percent. of the Europeans are to be found in this most favourable
region. On the other hand, only 15 per cent. of that area of the Police
Zone to which the European group is confined (that is, excluding non
European reserves and diamond concession areas), falls within this
comparatively better region. In other words, 85 percent. of the area to
wh~chthe European population is confined, falls within the lower rainfall
reg10n.
19. A clear indication that the non-European a.reas are largely situated
1 Vide,e.g., IV, pp. 405 and 458.
2 Ibid., p415.
3 Ibid.Vide also Applicants' reference at IV,p. 4oS of the Reply, to a statement
in a 1962 report of the Special Committee forSouth \Vest Africa that "certain in
adequate areas are reserved as the homelands of the indigenous groups"".
• n, pp. 304-306.
' Ibid.,p. 295.
6 Ibid.,map on p. 294. REJOI~DER OF SOUTH AFRICA 259
in the better rainfall regions, is furnished by the following table, which
shows the distribution of European and non-European farming a.i:eas
according to the average incidence of rainfall:
1
TABLE
Area of
Rainfall in non-European European
millimetres reserves farming area
% %
Below IOO II.6 8.6
I00-200 r7.9 39.2
200-300 II.9 I2.3
300-400 ro.6 19·9
400-500 23.6~ I4.8f
500-6oo 2I.O 48.0 5.2 o.o
Over6oo. 3.4
According to the above table, only 20 percent. of the European farming
area receives an average rainfall of 400 or more millimetres, which is
the minimum for dry-land agriculture, whereas the corresponding figure
for non-European areas is 48 percent.
In this context it may also be mentioned that the area of land in the
non-European areas receiving an annual average rainfall cxceeding 500
millimetres, which is the lower limit for marginal dry-land farming, is
nearly two-and-a-half timcs larger than land similarly placed in the
European fannland area 2•
20. Attention must be drawn to the more favourable position of the
northern and north-eastern regions of the Territory with respect to the
seasonal distribution, effectiveness and variability of rainfalls, and
with respect to evaporation 3• Similarly, the said regions also enjoy an
advantage with respect to vegetation and water resources 4• Indeed, the
only considerable water potential in South West Africa is confined to
these areas, which are e.xclusively occupied by the non-European popula
tion groups 5•
Furthermore, the livestock carrying capacity of the northem and
north-eastem regions is the most favourable in the Territory, being 8 and
less hectares per large stock unit 6, whereas in the regions occupied by
47 percent. of the European farmers the carrying capacity is extremely
poor, decreasing from north to south progressively from 9 to 45 hectares
per large stock unit ".
21. From the aforegoing comparison of the physical attributes of the
different regions of the Territory, it is clear that the areas reserved for the
exclusive occupation of the large majority of the Native population are
1 Departmental information..
2 II, map on p. 294. The approximate comparative figures are 53,6oo square
kilometres as against 21,6oo square kilometres. ·
3 Ibid.,pp. 295-298.
• Ibid.,p. 302.
5 Ibid.,pp. 301-304.
6 Ibid.,map on p. 305.260 SOUTH WEST AFRICA
far more favourably endowed by nature, and hence offer much greater
potentialities, than the areas to which the European farming community
is confined. Indeed, this is confirmed by the fact that at the time of their
first contacts with modern development, the Native groups were already
concentratedlargely in the areas at present occupied by their descendants.
22. Another factor which Applicants leave out of consideration whcn
making their comparison regarding the allocation of land is the human
factor. This·factor may indeed account for varying levels of individual
performance even where territories are equally gifted by nature. In this
regard an authority on African economic development has stated:
"Differences of wealth may be found, however, even when one
country has no noticeable advantages over another. ln such cases
the differences are due to other factors, such as the degree of know
ledge, skill and energy of the people in using the resources the land
provides ."
This statement is particularly applicable to South West Africa, where
European farmers have succeeded in achieving a high level of productivi
ty and income in the southern areas, which are less favourably endowed,
while the Native inhabitants with their traditional agricultural practices
have generally not progressed beyond a stage of subsistence economy
even in the more favourable regions.
ln addition to what has already been said in this regard 2. Respondent
finds it apposite to refer here to what has been stated by Professor
Richard F. Logan, Professor of Geography at the University of California,
U.S.A., who has made a thorough study of the conditions of the indige
nous peoples in South West Africa. After comparing conditions in the
Berseba Reserve with those on a European farm immediately adjoining
the reserve, Professor Logan concludes as follows:
'Thus, in short, the European farmer has succeeded in gaining for
himself and his family and his native employecs a far better way of
lifethan is obtained by the natives in the adjacent reserve, although
the physical geography and resources of the two areas are identical.
The difference lies solely in the initiative and the managerial ability
of the European owner in contrast to the apathy and inefficiency
which characterizcs the South \Vest African native where handling
his own affairs 3."
And, speaking of the Herero in the \:Vaterberg Reserve, Professor Logan
mentions the fact that although the Administration, in its efforts to
control the spread of foot-and-mouth disease, had provided the inhabi
tants of the reserve with fencing material, they made little effort to erect
the necessary fences. In this regard Professor Logan says:
"Yet, at the same time, one could visit any village on the reserve
at any time, on any day of the week, and find the total male popu
lation sitting under their favourite tree, talking, despite the fact that
they repeatedly complain that they have not had the time to build
the mangas and corrals. The patience of the European administra
tors working in such Reserves must be infinite. The Natives are
1 Batten, T. R.,Problems of African Deuetopment (1954), Part I,p. 23.
2 Vide paras. 5-II, supra.
3 Logan, R.F., A Study of Conditions in S. W.A. Relating to the Indigenous Peoples,
Unpublished (1962), p.12. REJOINDER OF SOUTH AFRICA 261
fully aware of the need of such devices, and agree whole-heartedly
that they should be constructed; yet they seem unable to stir them
selves from the shade of the village Council-tree long enough to do
that which will save their herds and greatly increase the prosperity
of the group. Even more anno)ing is the fact that they will not
undertake such work for their own betterment unless they are paid
in cash wages for so doing ."
2
23. As stated above , Rcspondcnt,in order todevelop the agricultural
resources of the Territory on a commercial basis, had to rcly on the capi
tal, initiative and skill of Europeans and was consequently obliged to •
settle European farmers on land in the Police Zone which could be
productively used for the said purpose.
Applicants, in suggesting that the allocation of land should have been
proportionate to the numbers of the population groups involved, and
should have been based only on the extent of land available, ignore not
only the fact that the different regions of the Territory are not equally
endowed with natural resources, but also the significant differences in
productive utilization thereof by Natives and Europeans respectively.
Not only do they tacitly assume that the physical potentialities of ail the
land areas are the sa.me, but they also appear to assume that the produc
tive capacities of the varions population groups, at their present stage of
development, are the same-an assumption which would, of course. be
absurd. On the other hand. if they do not make the last-mentioned
assumption, and were to contend that. despite the substantial difference
in the productive capacity of the Native and European groups, Respon
dent should nevertheless have allocated the land resources to the said
groups in proportion to their numbers, they would in fact be advocating
that Respondent should deliberately have smothered all prospects of
building up and expanding the economy of the Territory.
24. lt is prccisely in the respects aforestated that Professor J. H.
Wellington, to whom Applicants refer in the Reply. errs when he com
ments that "we seem to have looked after ourselves very well" 3•Not only
does Professor \Vellington fail to take into account the economic con
siderations mentioned above, but the conclusion which he draws is based
largely on the following incorrect factual statement made by him, which
is not included in the extract citcd by Applicants from his address, viz.•
"The Natives, numbcring 400,000 now held 20 million hectares,
whereas the Europeans, settled mainly by South Africa since 1952
and numbering 60,000, held altogether 37.6 million hectares of the
bestland ."(Italics added.)
Respondent has indicated above that the bulk of the land occupied by
European farmers, far from being "the best land", is in fact the least
endowed with physical resources and potentialities. Professor ·wellington
errs further when he states- _
"South Africa ... had allocated only a small area to the Hereros in
1 Logan, op.cit.. p22.
2 Videpara. 15, supra.
~ IV, p. 415.
~ The Windhcek Adverliser. 5 July 1960. Respondent regards the allegation con
cerning settlement of Europeans "mainly ... since 1952" as irrelevant for present
purposes. For particulars of allocations of farmvideIII, p. 29. SOUTH WEST AFRICA
the Southern Hardeveld and had sent the remainder of the Hereros
to the barren Kalahari sand area. The Union had then settled South
African farmers on the fertile Hardeveld area 1."
The area referred to by him as the Hardeveld is that described in the
Counter-Memorial as the Central plateau 2•
The Herero reserves 3 in South West Africa are the following:
(a) The Kaokoveld, in extent 5,5I4,6I7 hectares, situate partly in
the Namib, but mainly in the Central plateau (Hardeveld);
. (b) The Otjohorongo and Ovitoto Reserves, in extent 426,299 hectares,
situate wholly in the Central plateau (Hardeveld);
(c) The Aminuis, Epukiro, Waterberg-East and Otjituo Reserves, in
extent 2,687,809 hectares, situate in the Kalahari area.
Ali these reserves, with the exception of Aminuis, fall within the region
over which the Herero had in early years trekked and grazed his stock.
From this information it is clear that Professor \Vellington is wrong
when he says "only a small area ... in the Southern Hardeveld" had been
allocated to the Hereros. He is also wrong in saying that the reserves
mentioned in (c) above, i.e., in the Kalahari, are in a "barren ... sand
area". The large stock increases in the said reserves referred to in the
Counter-Memorial, espccially in the Aminuis Reserve 4, serve in them
selves to show that the area is a good one for farming. In this regard it is
apposite to quote the following observation made by Lord Hailey:
"... on the whole the conditions of soil and grazing in the Reserves are
not inferior to those in the farming areas of the Police Zone 5.''It may
also be mentioned that before the Aminuis and Epukiro Reserves were
proclaimed as such, the leaders of the Herero people inspected these
areas and declaredthemselves satisfied with the land.
Professor Wellington's further statement that "the Union had then
settled South African farmers on the fertile Hardeveld area'' is only
partly true. European farmers were settled in the Hardeveld area, but the
larger (southern) part thereof bas an extremely low rainfall 6, and can be
described from an agricultural point of view as being of the least favour
ably endowed regions in South West Africa.
25. Respondent has already dealt with certain allegations made by
Applicants elsewhere in the Reply which are in the present context
repeated in the following terms :
"In view of the poverty of 'Native' inhabitants, the fact that
financial assistance was available to 'European' settlers but not to
'Natives', and that Respondent's laws and practices render residence
by any 'Native' anywhere in the Territory insecure and make it
impossible for 'Natives' to lease land, there is no valid basis for
Respondent's conclusion that '... the provisions that have been
made, are not unreasonable' 7•''
1 IV, p. ,p5. footnote 4.
~ Il, map on p. 292. Prof. \Vellington divides the Territory geographically into
three areas, "thearid Coastal Desert, the Eastern Kalahari Desert sand area and
the central Hardeveld".
3 Reserves in which the Herero preponderate.
• IV, pp. 10-u.
5 Lord Hailey, An African Suroey: Revised 1956 (1957). p. 764.
6 Vide Il,map on p.294.
7 IV, p. 415. REJOINDER OF SOUTH AFRICA 263
These allegations are made relative to Respondent's statement that
Natives are entitled to purchase agricultural land in the Police Zone.
Respondent, in dealing with this matter 1,explained why, on the one
hand, fi.nancial assistance was made available to European settlers to
acquire land in individual tenure, whereas, on the other hand, the Natives
were assisted by the establishment and extension of reserves set aside for
exclusive occupation by them. It has also been shown that the allegation
that Respondent's laws and practices "render residence by any 'Native'
anywhere in the Terri tory insecure", is absurd and devoid of truth 2•
Applicants' further allegation relative to the "poverty of [the] 'Native'
inhabitants" hardly calls for a reply, inasmuch as no averment is made
that this alleged state of affairs is due to any act or omission on the part
of Respondent. Admittedly the Native inhabitants of the Territory
gen~rally have less fi.nancial resources than the Europeans. That is so,
however, not because of any limitation placed on opportunities for them,
but because of their traditional outlooks and practices which result in
their own economy being on the whole still of a subsistence nature. And
to say, as Applicants do, that Respondent's laws and practices "make it
impossible for 'Natives' to lease land", is also untrue. Respondent has
explained 3 why the probationary leases in its land settlement schemes
prohibit assignment or cession of such a lease to a non-European during
the subsistence of the lease. There is othe.rwise no legal impediment to
agricultural land in the Police Zone being sold or leased to Natives.
26. In addition to what has been stated above in refuting Applicants'
allegation that Respondent "has progressively reduced the proportion
of farm land available for cultivation or pastoral use by the 'Native'
population", reference can also be made to more recent developments
which belie the very basis of Applicants' complaint that Respondent's
policies are directed at the oppression of the Native inhabitants of the
Territory for the benefi.t of the Europeans in so far as, inter alia, the
economic situation is concerned.
The Odendaal Commission, the most recent of a number of official
commissions appointed over the years to report on the needs of the non
European population groups of the Territory, has in its report recom
mended a development programme which will entail that the existing
non-European areas be enlarged by more than 50 per cent. In order to
implement this recommendation it will be necessary not only to make use
of State lands which are at present unalienated, but also to acquire from
European farmers, at large expense, substantial areas of land which they
have developed and improved over the years 4.
The proposed extension of the existing reserves, however, forms part
of a complex of recommendations made by the Commission with a view
to the establishment of separate homelands for each of the population
groups; and as Respondent has, for reasons which are known, decided
to defer its decision relative to the creation of the proposed homelands,
the question of extending the reserves is therefore also held in abeyance
for the present.
Despite such defennent, however, Respondent is proceeding with the
1
2 Ibid.,para. 71,supra. 70-71,supra.
3 III, pp. 32-33, anvide also Chap. II, para. 70supra.
4
R.P. No. 12/1964. pp. 87, 89-93, 95 and 101-105. SOUTH WEST AFRICA
acquisition of the European farms involved in the proposais, so that when
the time cornes for deciding upon the homelands scheme, the demarcation
of the new borders can be facilitated 1•
27. A clear indication of the substantial additions to the non-European
areas involved in the recommendations of the Commission is given in the
following table, which reflects the present functional subdivision of the
Territory as compared with that proposed by the Commission.
TABLE
PRESENT AND PROPOSED FUNCTIONAL SUBDIVISION OF LAND
Present Proposed
Percent- Percent-
Subdivision Square age of Square age of
km. the km. the
whole whole
Farms: European 2 7
389,650 47.34 355,744 43.22
Others 21,249 3 2.58 21,249 7 2.58
Towns and township areas 4,740 4 0.58 4,740 7 0.58
Non-European areas . 219,642 5 26.68 329,858 8 40.07
Nature reserves, government lands,
6 9
etc. 187,864 22.82 Il1,554 13.55
Total .. . 823,145 100.00 823,145 I00.00
28. On the assumption that the recommendations of the Commission
will be accepted without modification, the following table reflects the
availability of land for the different non-White groups as at 1920, at
present, and as proposed by the Commission.
It will be observed frorn this table that, in spite of the fact that the
population doubled itself over the last 40 years, the increase in hectares
percapita of the Native population will, if the Commission's proposals are
adopted, be more than twofold, i.e., from 31 hectares to 74 hectares per
capita.
29. The figures in the tables must be viewed in conjunction with
the fact that, whereas European-owned land has since the inception of the
Mandate been purchased by the owners thereof, all the additions to the
l IV, p. 2IO.
2 Vide III, p. 30. (Refers to May 1961.)
3
Obtained by deducting area of European farrns from the figure for all farms
given in the Commission's report, p. 29, table XI, viz., 158,653 square miles (=
410,899 square kilometres).
• Vide R.P. No. 12/1964, p. 29, table XI, where the area is given as 1,830 square
miles.
5
Ibid., p. III.
6 Ibid., where the figures quoted add up ta 77,3r4 square miles (=200,243 square
kilometres).
7 Ibid., p. 109 (para. 425, A. and B.).
8 Obtained by adding increases proposed by the Commission (ibid., item G.),
viz.,rr,021,619 hechi.res (=IIo,216 square kilometres) to present area. It will be
noted that the resulting figure is 3,564 square kilometres more than the 326,294
square kilometres shown on p. III of the report.
9 Obtained by subtracting increases to non-European areas proposed by the
Commission (ibid., p.III, item G.) from farms and government lands in table XI
on p. 29 of the report. TABLE 1
AVAILAB!LITY OF LAND IN VARJOUS NON-EUROPEAN HOME AREAS:
IN 1920, AT PRESENT, AND AS PROPOSED BY THE ODENDAAL COMMISSION
Home area Population Arca in hectares Hectares per capita
1920 196o 1920-21 Present Proposed I920•2l Present Proposed•
(r) (2) (4) (5)
(3)
Ovamboland 91,500 239,363 ±2,000,000 4,201,000 5,607,200 22 18 23
Oka vangoland. 20,000 :2 27,87r ± 500,000 3,299,617 4,r70,950 25 rrS 150
Kaokovcld . 1,500 3 9,234 418,500 5,525,129 4,898,219 28 600 530
Damaraland 20,883 44,353 172,780 626,375 4,799,02 r 83 14 108
Hereroland . 31,063 2 35,354 4,374,469 5,899,680 124 167
Eastern Caprivi . 4,249 15,840 600,000 1,153,387 1,153,387 141 72 72
Tswanaland. 200 t 155,400
9,992 59
Bushmanland . 3,931 I 1,762 2,392,671 203
Rehoboth Gcbict 5,719 I 1,257 1,750,000 1,312,239 I ,386,029 307 117 123
Namaland 20,968 34,086 825,321 r,115,529 2,167,707 39 32 62
Unallocated Land 356,433
Total 200,013 447,192 5 (,,266,601 2I ,964, 178 32,629,364 31 50 74
1 The information given in the different columns in this table has been taken from the following sources:
Col. (r) R.P. No. 12/1964, p. 37, table XVI. Col. (2) Ibid., p. 41, table XIX and p. 99 (para. 378). Col. (3) Counter-Mernorial, Book
VI, Ill, pp. 239-240 and pp. 246-247. Col. (4) R.P. No. 12/1964, p. III, table G. Col. (5) Ibid.
2 This was probably a complete over-estimate.
3 This figure is based on a 1925 estimate of 2,000. U.G. 22-1927, p. 22.
• This figure also includes "others".
5 This figure of 447,192 includes 7,360 non-Europcan persons not listed in this column.
6 The figures in this column are calculated on the present population figures.266 SOUTH WEST AFRICA
Native reserves have been made on a gratuitous basis, except for one
farm in the Otjiwarongo district which was added to the Waterberg-East 1
Reserve, and which was paid for out of the trust fund of the reserve •
ln addition to the above consideration, there is the fact that by far the
greatest amount spent, and to be spent, on improvements in the Native
reserves, e.g., on fencing, boreholes, engines, windmills, dipping tanks,
dams, reservoirs, canais, etc., has been, and wm be, der.ived from public
moneys. On the other band, ail impfovements on private farms owned by
Europeans have been, and will be, paid for by the owners concemed.
30. In view of what is stated above, and bearing in mind the economic
considerations involved, Respondent denies Applicants' accusations that
its policy with regard to the allocation of agricultural land to the different
population groups has been unreasonable, or unfair, in so far as the Native
population group, or any other population group, is concemed.
D. Measures Taken for the Relief of Persons Affected by Drought
3r. In the Counter-Memorial Respondent stated that the picture
drawn by Applicants in the Memorials with regard to the assistance given
in South West Africa to persans affected by drought conditions was
misleading, largely because Applicants failed to distinguish between the
types of assistance given to the European population and the Native
population respectively 2• Respondent went on to explain that assistance
given to European fanners largely took the form of loans repayable
together with interest at stipulated rates, whereas the assistance given
to the Natives was by way of direct or indirect grants, although loan
facilitieshad also been created for those Natives who had suffered stock
lasses as a result ofthe drought and the foot-and-mouth epidemic 3•
Applicants revert to this matter in the Reply, and compile a table in
which they distinguish between the types of assistance given over the
period 1959 to 1961, and in which they compare the value of assistance
given to Europeans and Natives respectively in the form of loans and
4
grants •Commenting on the position as reflected in the said table, Appli
cants say-
"[t]he 'Native' population composes 85.24 percent. of the combined
total 'Native' and 'European' populations, yet was restricted to
2-4 percent. of the total loans and 36.17 percent. of the total grants
made available for drought relief. Its share of the total outlay was
but +53 per cent.4''
32. Again, as in the Memorials, the picture drawn by Applicants is not
only factually wrong in certain respects, but is also generally misleading.
In the first place, it is unrealistic and illogical to make a comparison of
the assistance given respectively to Natives and Europeans who have
been affected by drought conditions on the basis of total population
figures. Many people, European and Native, are not dependent on per
sona! incarne from farming, and are therefore not directly affected by
drought conditions. Many, however, may well be indirectly affected. In
this connection mention may be made of the large number of Natives who
1Departrnental information.
3Ill,p. 33.
Ibid.pp.35-37.
• IV, p. 416. REJOINDER OF SOUTH AFRICA
are employed as wage-earners on European farms. \Vhereas a relief loan
~anted to a European farmer may be looked upon as assistance to him,
1t enures also, at least in part, to the benefit of the Native farm worker,
in the sense that he is assured of payment of his wages and employment
despite setbacks occasioned by drought. The Native farrners, on the
other hand, save perhaps with a few exceptions, do not, in the form of
agriculture practised by them, employ the help of wage-earners.
Then also, drought conditions differ from place to place in the various
parts of the Territory, and the consequences thereof are different for the
members of the various population groups. Thus, for the European
farmer who must, in order to subsist in the modern economy, of necessity
maintain a large number of livestock, the type and the measure of
assistance, in order to provide adequate relief, must necessarily be
different from that required by the Native farmer, who practises a form
of subsistence economy 1_
This situation provides the answer to Applicants' question "why the
'Natives' with far fewer financial resources to begin with, should be less
damaged in the overall by the drought than the 'Europeans' " • The
European farmer, who is obliged to pay interest or capital instalments on
mortgages and also the wages of his workmen, as well as other operational
costs, cannot, when seriously affected by drought conditions, carry on his
farming operations unless he is given assistance of the nature explained.
In the absence of such assistance he and his employees and their families
are forced off the land, with the resultant loss of the contribution which
he makes to the economy of the Territory. In the case of the Native
farmer, the position generally is different. Although he admittedly suffers
a setback in drought conditions, the consequences are not nearly the
same for him as for the European farmer. Farming in the reserve, he is
not subject to the burden of capital charges, interest or an outlay of
operational costs. For him, drought conditions mainly affect his sub
sistence resources, which can be augmented by grants to tide him over
the periods of difficulty, or, if he so elects, by making use of loan facilities
created for him 3•And many Native farmers in the reserves, who are also
migrant workers, can, with the assistance of the wages eamed by them,
manage to "weather the storm" in tunes of drought, whereas the Euro
pean farmer whose sole income is derived from his farming operations is
more materially affected.
It is in the circumstances entirely fallacious to draw a comparison
between the share of the total outlay made available, on the one hand, to
Europeans by way of loans repayable with interest, and, on the other
band, the share made available to Natives by way of grants in aid.
33. In the second place, the figures upon which Applicants have based
their conclusion are wrong.
Applicants say in this regard that the "financial data" given in the
table compiled by them "is derived solely from examination of [the]
Counter-Memorial" 4.\Vhat they omit to state, is that in certain respects
they have adapted the figures to suit their purpose. Thus, their compara-
t Compare in this regard the figures of livestock owned by Natives and Europeans,
respectively111,pp. 8 and 13.
2 IV,p. 415.
' Vide para. 3r, supra.
• IV, p. 416, footnot2.268 SOUTH WEST AFRICA
tive table reflects a figure of R300,ooo as having been utilized to assist
European fanners by way ofgrants, but nowhere in the Counter-Memorial
was it stated that such a sum, or any particular sum, was expended in the
form of grants to Europeans. \Vhat Respondent did say was that-
"[s]ave for the ... sum of frso.ooo [R300,ooo] [which was intended
for unforseen emergency relief] the whole amount [of f2,600,ooo]
was applied solely towards providing loans for farmers, and not, as
Applicants would seem to suggest, free grants 1".
Applicants, without justification, draw the conclusion that the said
sum of R300,ooo was applied in making grants to European farmers.
In fact it was not. It was applied as follows:
(a) A sum of R200,ooo was used to purchase mealies, mealie-meal and
other foodstuffs for Native scholars and patients in Ovamboland
and in other Native reserves, as well as for emergency relief in the
Rehoboth Gebiet 2•
(b) The balance of Rroo,ooo was applied in making a loan, repayable
with interest at the rate of 4} per cent. per annum, to a Company,
Damara J\foat Packers Limited. The loan was to enable the said
Company to buy cattle in the drought-stricken areas, including the
Native areas, which were not in a marketable condition, but could
be used for Canning purposes 2•
In the premises it is clear that Applicants' whole table, in so far as it
deals with grants, and Applicants' calculation that the Native population
"was restricted to ... 36.17 percent. of the total grants made available
for drought relief" 3,fall by the board. In fact, by far the larger portion
of the moneys expended by way of grants was appropriated directly or
indîrectly to the relief of the Natives; the European fa1mers did not share
therein, save in so far as provision was made for subsidized transport
of drought-stricken stock and for a subsidy on maize sold to fanners
affected by the drought 1.
34. With regard also to loans, the figures in Applîcants' comparative
4
table are not correct. Respondent stated in the Counter-Memorial that
loans totalling Rrzo,500 were granted by the South West Africa Adminis
tration to tribal funds to enable Native fanners who had lost stock in
conseqnence of the drought and foot-and-mouth disease to replace such
stock. In fact the said sum was made available for the purpose stated,
but only R47,ooo was taken up by certain of the reserves. The balance of
R73,500, although allocated for use, was not taken up, the Reserve
Boards concemed refusing the assistance offered. The reasons given for
the said refusai were either that the inhabitants of the reserves were not
prepared to burden themselves with loan debts, or that they were not
prepared to replace stock lost in the drought as they feared that there
would be a repetition of drought conditions in the next year, with a
resultant loss also of the stock purchased in replacement. Furthermore,
of the sum of R4,900,ooo reflected by Applicants as loans to Europeans,
an amount of R2 million was made available to commercial banks on
investment to enable them to grant greater credit facilities. Although
2Departmental information.
3
4 IV, p. 4r6.
Ill, p. 36. REJOINDER OF SOUTH AFRlCA
such credit facilities would generally have enured to the beneftt of
Europeans, they were not limited to them, and there was no reason why
Natives, ifable to provide the necessary security, could not have availed
themselves of such facilities.
In the premises, Respondent contends that also in respect of the loan
position the comparison sought to be drawn by Applicants does not lead
anywhere. Surely, Applicants cannot justly complain that the loan
facilities provided for the Natives were inadequate, when the Natives
themselves did not make full use of such facilities as were offcred to them.
35. In concluding their discussion of this topic, Applicants say that the
figures in the table compiled by them must be viewed-
"... in conjunction with the obvions factor that the margin of
financial elasticity, or 'cushion' against adverse circumstances, is
infinitely less for the 'Natives' than it is for the 'Europeans' in the
Territory in spite of the fact that the 'Europeans' have progressed
to the point where they may incur debt obligations 1".
This statement may be true, but only up to a point. Although the
European farmers rnay, generally speaking, have greater financial re
sources than the Natives, assistance was given only to those who, as a
result of the drought, were in need of aid; and, as has already been
pointed out, the consequences of a prolonged drought are not only more
disastrous, but also entirely different, for the European farmer who needs
assistance than for the Native fanner. The result is that the type and
measure of assistance given are not comparable.
E. Alleged Discrimination in Social Welfare Measures
36. In respect of alleged discrimination in what they tenn "other
Iegislative policies in the Territory as a whole" 1,Applicants refer to the
following legislative measures:
(a) Pneumoconiosis Compensation Act 2•
(b) The Workmen's Compensation Act 3•
(c) The Social Pensions Amendment Ordinance •
The first-rnentioned of the said measures was referred to in the Counter•
Mernorial 5 in answer to certain allegations made in the Memorials 6
relative to the Pneumoconiosis Act No. 57 of r956, which had been re
pealed. The other two measures were, however, not referred to in the
Memorials or in the Counter-Memorial, and are now brought up for the
fi.rsttime in the Reply.
These three measures will be dealt with separately hereinafter.
l. THE PNEUl\lOCONIOSIS COMPENSATION ACT
37. Respondent denies that this Act implements "legislative policies
in the Territory". As pointed out in the Counter-M:emorial 5, the Pneu-
1IV, p. ,p6.
z Act No. 64 of 1962 in Statutes oftheRepublic of South Africa r96z, Vol. Il
(Nos. 59-93), pp. ro23-u83.
~Act No. 30 of 1941 inStatutes of the Union of South Africa r940-r94I, p366-480.
4Ord. No. 2 of 1962 in The Laws of South West Africa r962, Vol. XLI, pp. 5-21.
s IIIpp. 62-63 and 91.
6I, pp. 121-122 and 128-129.270 SOUTH WEST AFRICA
moconiosis Act, No. 57 of 1956, which was concemed with mines in
South Africa, did not apply to mines in South West Africa, although
certain of the sections of the Act relating to medical and post-mortem
examinations referred to the Territory 1•And, as stated 1.the position is
the same under the Pneumoconiosis Compensation Act of 1962, which
repealed the 1956 Act.
Applicants, in reverting to this measure in the Reply, state:
"Respondent asserts that the new Act is 'in no way relevant to
mine workers within the Territory'. Thls may be true as long as no
Territorial mines have been scheduled as 'controlled mines' within
the meaning of secs. 1 (12) and 54 (4) of the Act, but it is applicable
to South \Vest African 'Natives' who may contract pneumoconiosis
in 'controlled mines' in the Republic, and is therefore relevant in the
2
premises ."
In answer to this statement Respondent says that, in the first place,
Applicants' suggestion that mines in the Territory can be scheduled as
"controlled mines" in terms of the Act is unfounded. The Act is in no
way applicable to mines in South West Africa, and no mines in the
Territory can be brought within the scope of the Act.
38. Secondly, Applicants' submission that the provisions of the Act
are relevant in the present enquiry merely because South West African
Natives may contract pneumoconiosis in controlled mines in the Republic
of South Africa, is a change of front to whlch they have been driven, and
is ridiculous. Surely the mere fact that the Act may affect individual
Natives from the Territory who voluntarily take up employment in the
Republic, cannot make it relevant to an enquiry regarding "legislative
policies in the Territory".
AUpersons from the Territory, be they Europeans, Coloured or Natives,
who accept employment on mines in the Republic, do so of their own
choice. Although the number so employed is not known, it is considered
to be negligible. What can be stated, is that over the last five years only
15 Natives from South West Africa qualified for, and received, compen
sation under the Pneumoconiosis Act, No. 57 of 1956, and the present
Act of 1962 3•
In the premises aforestated, Respondent reaffirms the attitude adopted
in the Counter-Memorial, viz., that the provisions of the Act are not
relevant to the issues before the Court.
Il. THE WoRKMEN's COMPENSATION Acr
39. Applicants say that this Act-
"... differentiates between racial groups in the following ways: on
his death, a 'European' or 'Coloured' workman's family receives a
pension, with allowances for children, whereas a 'Native workman's
famiiy receives a lump sum settlement; a 'European' or 'Coloured'
workman's family receives f45 for burial expenses, and.a~Native'
workman's family receives fis 4".
The factual allegations in this statement are correct, save that the
1
2III, pp. 62-63 and9I.
3Departrnentalooinformation.
• IV, pp. 416-417. REJOINDER OF SOUTH AFRICA 271
figures mentioned in respect of burial expenses have since 196r been
increased to f50 (Rrno) and f20 (R40) respectively 1•
40. The reason why compensation is paid to the dependants of a
Native workman in a lump sum, instead of in the form of a monthly
pension, derives purely from practical considerations. Many thousands
of workmen are recruited from tribal territories, both inside and outside
the borders of South West Africa, where the payment of pensions to
their dependants would be quite impracticable, and where in most cases
it would be difficult to ensure that periodical payments over long periods
are made to the right persons. And in the areas outside the reserves, the
dependants of many deceased workmen are inclined to move from place
to place in seeking new avenues of employment. It would therefore be
extremely difficult to keep track of them from month to month, and year
to year.
Another consideration is that in many cases there is no evidence to
establish the ages of Native children who are dependants of a deceased
workman. This makes it impossible to apply a system of paying a monthly
pension terminable on the child attaining a fixed age, which is the system
operating in the case of dependants of a European workman. Support
for the children of a deceased Native workman is therefore provided
for in the lump sum paid to his family. It is anticipated that as the Native
labour force becomes more settled, and the practical difficulties can be
overcome, provision for monthly payments will also be made for the
dependants of deceased Native workmen.
In this regard it may be pointed out that there is already provision in
the Act in terms whereof periodical payments, instead of a lump sum,
can be made to a Native workman or his dependants where arrangements
in that regard are practicable. In this connection section 46 of the Act,
as amended, provides as follows:
"46. (r) Any compensation payable to or in respect of any person
under this Act may, in the discretion of the commissioner and for
reasons deemed by him to be sufficient, be-
(b) invested or applied from time to time as the commissioner may
deem to the advantage of the workman, orthose dependent on
2
him for maintenance ... "
In practice there are a number of cases where, in terms of the afore
mentioned provision, the amounts awarded are invested, and monthly
payments are made to dependants of Native workmen instead of lump
. sum payments.
41. The fact that there is a difference between the amounts awarded in
respect of burial expenses of Natives and non-Natives respectively, is due
to the different stages of development and living standards generally
attained by, on the one band, the European and Coloured groups, and,
on the other band, the Native groups. On the whole, the Native workers
have a lower income level than the two other groups, and their individual
cost of living is also lower: inhe result amounts usually spent by them on
1Vide Act No. 7 of rg6r, secs. 6(d) and r6 inStatutes of the Republfo of South
Africa I96r,Vol. I (Nos. r-4r), pp. 40 and 44.
1 Act No. 30 of 1941, sec. 46 (r)Statutes of the Union of South Africa r940-r94r,
p. 428.272 SOUTH WEST AFRICA
occasions such as funerals are also lower, and customs and charges
pertaining to funerals are attuned to this fact.
The different amounts fixed as awards in respect of burial expenses
are based on Respondent's experience of the costs generally involved in
the burial of members of the different population groups.
42. Applicants also say, with reference to the Act, that bencfits for
disability are "calculated by percentages of wages, and therefore are not
visibly discriminatory by themselves" 1. They, however, add to this
remark the comment that "[t]hc wages paid to 'Native' labourers are
extraordinarily low" 2_
Respondent has already dealt with Applicants' allegations regarding
low wages paid to Native labourcrs in the Tcrritory 3.and in the present
context need merely repeat its denial of Applicants' charge in that regard.
There can otherwise be no complaint against a system under which
benefits for disability are calculated on the basis of percentages of wages.
Ilf. THE SOCIAL PENSIONS AMENDMENT ÜRDINANCE
43. Applicants point out that, in terms of the above measure, Euro
pean and Coloured persons in the Territory are entitled to old age,
disability and blind persons' pensions or grants, although on a differential
scale, whereas in the case of the Native population no provision for such
pensions or grants is made 1•
Their complaint in this regard is a twofold one, viz., firstly, that the
provision made for such benefits in the case of the Europeans and the
Coloureds is "on a discriminatory basis", and, secondly, that " 'Natives'
1
... are excluded from these public pension schemes'' .
It is truc that the measure in question diffcrentiates between the scale
of benefits which are applicable to Coloureds and Europeans respectively
and that the Natives of the Territory have thus far not shared in the
benefits provided for in the measure. There are, however, as will be
indicated below, good reasons for this differentiation between the said
population groups.
44. The pensions and grants provided for in the Ordinance in question
are not funded by direct contributions from the inhabitants of South
\Vest Africa, all the funds required being supplied from the ordinary
revenue of the Tcrritory.
The fact that the income of the European inhabitants of the Territory
is, on the whole, substantially more than the income of the Coloured
inhabitants, has an important bearing on the difference in the awards
provided for in the Ordinance for the members of these groups. In the
first place, the contribution of the Coloured people to the revenue of the
Territory, by way of taxes on incomes and on persons, is but a fraction of
the contribution made by the European population. Secondly, with
their lower income levels, the cost of living for the Coloured people and
their general standards of living are lower than those of the Europeans.
In addition, Coloured people in urban areas are provided with housing,
water, electricity and sanitation at lower rates, and in many cases they
are wholly exempt from taxes on property.
1 IV,p. 417.
2 Ibid., footnote 3.
3 Vide Chap. II, paras. 43-66, supra. REJOINDER OF SOUTH AFRICA 273
Itstands to reason, therefore, that, while the object of the Ordinance is
to provide assistance to people who are in need by reason of old age or
disability, the measure of relief required by the members of these two
population groups must of necessity be different.
It would in the circumstances have been unrealistic to pay pensions to
Coloured persons at the same rates as those applicable to Europeans.
In fixing the scales of benefits applicable to the members of these two
population groups, Respondent has given due consideration to the general
standards of living of the two groups. Consequently, the income entitling
a European to a pension is fixed at a higher rate than that for a Coloured
person, and the maximum pension rates are highcr for a European than
for a Coloured persan.
45. In the case of the Native population different considerations have
thus far applied. ln their traditional ways of life they are accustomed to
traditional fonns of assistance, and the concepts of mutual aid and care
of the extended family have wide prevalence amongst them. This is parti
cularly soin the reserves, where a form of communal subsistence is prac
tised within the family group. In this system old age and physical disabil
ity do not have the same consequences for the Native living within his
communal society as they have for the European·or Coloured person who
is wholly dependent upon his own efforts and resources.
46. It must, however, not be understood that Respondent does not
contribnte to such traditional forms of assistance. Indeed, the very
establishment and maintenance of reserves for the Native groups 1 per
mits of the continuation of the traditional systems which promote, inter
alia, the welfare of the aged and the infinn members of the groups. In in
dividual cases where Natives cannot benefit from traditional forms of as
sistance, relief is granted in other ways, such as the provision of weekly
rations.
47. Development and progress in the Territory in recent years have
made it feasible to consider the introduction of a system of social pensions
also for the Natives, and Respondent has in fact already decided in prin
ciple upon the introduction of such a system.
lnasmuch as the administration of such a scheme for all the Native
inhabitants of the Terri tory must, in the nature of things, require careful
and dctailed planning, particulars thereof are at present bcing worked
out, and it is expected that the schemc willbe brought into operation in
the near future.
48. \Vhile Respondent admits that the measures at present in operation
differentiate in the respects aforestated between the different population
groups, it denies Applicants' suggestion that such differentiation is in
spired by a motiv: to discriminate between the said groups in an un
reasonable or unfa1r manner.
1 Videpara. 29, supra. CHAPTER IV
THE POLICE ZONE
A. Introductory
r. This Chapter is devoted to a treatment of the matters raised by
Applicants in Chapter IV B.3.c.2 (D) of the Reply under the heading
"The Police Zone" 1•The subject-matter of this part of the Reply is di
vided by Applicants into three so-called "areas of economic rights" 2, as
summarized below, and will be dealt with by Respondent in the same
order, viz. :
(a) Admission to employment and access to vocational training;
(b) Measures allegedly having the effect of compulsion to labour;
(c) Freedom of association and the right to organize.
2. Inasmuch as Applicants purport to discuss Respondent's policies and
practices relative to the above matters in the light of what they term
"recognized standards applicable to the three said areas" 3,it is necessary,
before proceeding to deal with Applicants' specific charges, to give con
sideration to these so-called "recognized standards". This will be clone
in the following paragraphs.
3. Applicants themsel vesnowhere define the content of the" standards"
on which they rely. They merely refer to the "I.L.O. Programme for the
Elimination of 'Apartheid' in Labour Matters in the Republic of South
Africa", which forms an Annex to the I.L.0. "Proposed Declaration
concerning the Policy of 'Apartheid' of the Republic of South Africa" 4,
and they say that the said "Programme" is included among the docu
mentation in these proceedings inasmuch as it expresses-
"... the judgment of the Organisation with respect to recognized
standards applicable to the three said areas, and is based upon exa
mination of a legal and administrative system which is analagous 3
[sic}, in all relevant aspects, to that existing in the Territory ".
(Footnote omitted.)
From a perusal of the said "Proposed Declaration" it appears that the
''Programme" in question was drawn up by the I.L.O. in compliance
with a request of the Goveming Body of the International Labour
Office for-
"... suggestions conceming the contribution which the I.L.O.
could make to the complete elimination of apartheid and to suggest
what action should be taken to secure the observance of the
1IV, PP· 4r7-424.
2Ibid.,p. 419.
3 Ibid., pp,p7-418.
• InternationalLabour Office-International Labour Conference, Forty-Eighth
Session, 1964, Tenth Item on the Agenda: Proposed Declaration concerning th~
Policy of "Apartheid" of the Republic r,f South Africa (Report X). REJOINDER OF SOUTH AFRICA 275
principles in the Constitution and to protect human dignity" 1•
The said "Programme" avowedly concentrates on what is referred to
therein as the aforementioned "three broad areas" 2• It contains a short
discussion of various legislative measures and practices in the Republic of
South Africa relative to the said "areas", and concludes with "Recom
mendations for Action" which would involve the repeal and/or amend
ment of certain legislative measures at present in force in South Africa.
Neither the "Proposed Declaration" nor the "Programme" annexed
thereto contains any clear statement as to any particular standards ap
plied by the Organisation in evaluating Respondent's said legislative
measures and practices. However, in advancing reasons for concentrating
on the aforementioned "three broad areas' ',the I.L.O. stated, inter alia-
"... well-established standards approved by the International
Labour Conference with near unanimity exist in respect of all of
them; these standards give expression to principles proclaimedin the
Declaration of Philadelphia as being among the aims and purposes
of the International Labour Organisation ... 2",
and
"... the widespread acceptance of these standards in Africa gener
ally, and in substantial measure by South Africa's immediate neigh
bours in southern Africa, refutes the suggestion that 'the present
stage of social and economic development' of South Africa, which is
generally conceded to be technically the most advanced of all Afri
can countries, precludes their immediate application there ... 2".
These statements in no way elucidate the nature and content of the so
called "standards" purported to have been applied in the enquiry made
by the Organisation. A reference to the provisions of the Declaration of
Philadelphia 3,referred to in the above quotation, takes the matter no
further, inasmuch as the said Declaration merely expresses in the follow
ing broad terms, humanitarian concepts which are considered to underlie
the aims and purposes of the International Labour Organisation, viz.:
"... all human beings, irrespective of race, creed or sex, have the
right to pursue both their material well-being and their spiritual
development in conditions of freedom and dignity, of economic
security and equal opportunity ... 4".
4. In this particular respect, therefore, as is the case generally in the
Reply regarding undefined so-called "norms and standards" 5upon which
Applicants seek to place reliance, there is an avoidance of any treatment
which could throw light on the alleged juridical nature or content of such
norms or standards.
1
International Labour Office-International Labour Conference, Forty-Eighth
Session, 1964, Tenth Item on the Agenda: Proposed Declaration concerning the
Policy of "Apartheid" of the Republic of South A frica (ReportX). p. 13.
2 Ibid. (i.e., (a), (b) and (c) in para.1,supra).
3 International Labour Office, Constitution of the InternationalLabour Organisa
tion and Standing Orders of the International Labour Conference (1963 edition).
Annex, pp. 21-23.
• Ibid., p. 22 and vide also International Labour Office-International Labour
Conference, Forty-Eighth Session, 1964, Tenth Item on the Agenda: Proposed
Declaration concerning the Policy of "Apartheid" of the Republic of South Africa
(Report X), p. 7.In this regard vide also sec. B, para. 25, supra.
' Vide sec. C, para. 34, supra. 276 SOUTH WEST AFRICA
There seems to be little doubt, however, that Applicants are not in the
present context relying on norms or standards allegedly possessing a
defined and certain legal content-likc their oft mentioned legal norm
of "non-discrimination or non-separation"-but rather on norms or
standards which are not advanced as having attained the status of legal
norms, but which are said to enjoy wide acceptance in practice. Respon
dent has already dealt with Applicants' norms and standards of the latter
type, and has demonstrated that "evidence" tendered by Applicants
regarding the existence of such norms and standards cannot serve to
introduce new obligations into the Mandate, and that such evidence can
at most be relevant only on the basis of an enquiry whether 1espondent's
policies and practices are inspired by improper motives .
It is, therefore, only on this basis that the "judgment" of the Inter
national Labour Organisation as expressed in the l.L.O. "Programme"
.with respect to so-called "rccognized standards", can be relevant to the
present enquiry, and it is upon this basis that Respondcnt will give con
sideration thereto. In this regard Respondent at the outset makes the
following observations:
(a) The whole approach of the International Labour Organisation
inthe examination of Respondent's policies and legislative measures
rested upon an a priori assumption that such policies and measures,
being founded on a general policy of apartheid, were impermissible.
In this regard Respondent has already indicated that the "Pro
gramme" was drawn up by the Organisation in performance of a
specifictask entrusted to it, viz., to make suggestions "conccrning
the contribution which the LL.0. could make to the complete
elimination of apartheid" 2. It is thercfore not surprising that the
Organisation, in examining the relevant South African legislation,
did not approach the matter without bias, and did not attempt
to make an objective cvaluation against the background of ail the
relevant circumstances and considerations. Of major importance
in this regard is the fact that, although the Organisation was fully
aware of ·the basis upon which Respondent justified the existence
of the measures examined by it, viz., separatc dcvelopment of the
different population groups in South Africa, and, although mention
thereof is made in the "Programme", this was not taken into account
at ail in the examination and condemnation of the legislative mea
sures in question.
Thus, the "Programme" recited the following cxplanation furnished
by Respondent in a report sent toit in 1962 relative to the legisla
tion under consideration:
"The population of the Republic of South Africa comprises
four very distinct population groups of whom eleven million
are Bantu, three million of European origin, 500,000 of Asian
origin and one-and-a-half million of mixed origin. The problem
of ensuring the economic advancement and peacefulco-existence
of this heterogeneous society in different stages of social and
industrial evolution, in a manner which will ensure justice and
the furtherance of the welfare of all, has necessitated the pur-
. suancc in this country of a policy of separate development with
-----
Vide sec.C, paras.34-39, rnpra.
Vide para.3, supra. REJOINDER OF SOUTH AFRICA
277
a view to securing for all groups the realisation of their highest
ideals within their own communities. Socio-economic conditions
in the sphere of employment and occupation have necessitated
the enactmcnt of legislative measures peculiar to the needs of
the different population groups so that they may progress in the
direction of self-determination. The introduction of an integra
ted labour system would inevitably lead to economic and social
injustices, bearing in mind that there are distinct communities,
which differ culturally, ethnically and socially. These differences
can be minimised only by affording such legislative protec
tion as circumst..Lnceswarrant in order to ensure that no group
is deprived of the benefits to which its energies, labours and
initiatives entitle it.
In certain fields where the considerations outlined above do
not apply, there is a prohibition against discrimination on the
grounds of race or colour. Section 24 (2) of the Industrial Con
ciliation Act, 1956, and section 8 (4) of the \Vage Act, 1957, for
instance, prov1de specifically that wage-regulating measures
under those enactments shall not differentiate or discriminate
on the grounds of race or colour. These two measures cover
practically the whole field of statutory wage regulation in
industry and commerce. Similarly the Apprenticeship Act,
1944, which regulates the admission of persons to apprentice
ship training docs not permit of any discrimination of the nature
referred to in the Convention. Generally speaking, however,
the law and practice in South Africa, based as it is on the endea
vours of the Government to ensure that each population group
develops to the maximum of its economic potential with mi
nimum impingement on the rights and aspirations of others,
inevitably necessitates limitations on the rights of all 1."
This explanation made clear, and stressed, the fondamental
character and objective of Respondent's policies, viz., develop
ment towards separate nationhoods for the various peoples forming
the total population of the Republic. Thcre is, howevcr, on the
part of the Organisation, a significant absence of any attempt to
examine and test the legislation concerned on this basis; in fact,
no further reference thereto is made at all in the "Programme".
Instead, the "Programme" simply proceeds ta examine particular
legislative measures as ifthey were enacted for a society which
either was homogeneous or integrated in fact, or which the Govern
ment concerned was developing, or was obliged to develop, in
the direction of becoming an integrated entity. It stands to reason
that standards appropria te for an integrated nation, real or emergcnt,
cannot without material adaptation be considered appropriate
for a group of separate nations, real or emergent. For example,
as far as Respondent is aware, nobody bas ever suggested that the
standard of "equal opportunity" is neccssarily to be applied within
a state as between nationals and non-nationals thereof. If the
Republic of South Africa is not expected to apply ·such standards
..
1 InternationalLabour Office-International Labour Conference, Forty-Eighth
Session, 1964, Tenth Item on the Agenda: Proposed Declaration concerning ihe
Policy of "Apartheid" of the Republic of South Ajric(Report X), p. 15. SOUTH WEST AFRICA
as between her nationals and inhabitants of the Protcctorate of
Basutoland, it seems unrealistic to expect ber to apply it as between
her White citizens and inhabitants of the emergent independent
Transkei territory. Yet the whole underlying approach of the
Organisation is exactly such an unadapted application of standards
appropriate for integration to a factual situation of emergent,
separate nationhoods. In Respondent's submission this fallacious
approach tends, ab initio, to render valueless the conclusions arrived
at by the Organisation.
(b) The I.L.0. "Programme", moreover, in examining certain legis
lative measures in the Republic of South Africa. does so without
consideration of the historical background and the socio-economic
conditions which in certain respects necessitate differential treat
ment of the different groups in order to do justice to ail. In the result
the exposition in the "Programme" regarding the legislative mea
sures in question is not complete, fair or accurate.
(c) In the premises Respondent submits that the findings in the so
called "judgment" of the Organisation can hardly be of assistance
in evaluating policies and practiccs in South Africa: not only does
this "judgment" proceed on the assumption that the policy of
apartheid, which is allegedly implemented by the measures examined
by the Organisation, is impermissible and must be eliminated,
but it ignores the principles and basic objectives of Respondent's
policy of separate development, and disregards socio-economic
conditions in South Africa. And, inasmuch as the "Programme"
is concerned only with legislation in South Africa, the relevance
of the findings of the Organisation to the present proceedings,
which are concerned with South West Africa, is even more question
able. Applicants contend in this connection that the "legal and
administrative system" in South Africa which was examined by
the Organisation "is analagous, in ail relevant aspects, to that
existing in the Territory" 1. Respondent denies that there is such
an analogy, save in broad respects, and says that its aforegoing
remarks regarding the relevance of the said findings in the "Pro
gramme" apply with even greater force to Applicants' attempt
to extend such fmdings to legislation in South \Vcst Africa.
5. In regard to the aforementioned "standards" Applicants also rely
on the 1953 report of the United Nations-1.L.O. Ad Hoc Committee
on Forced Labour for a contention that-
"[t]he parallels between the Territory and the Republic were ex
pressly recognised [by the Committee] in the second area (freedom
from forced labour) ... 1".
ln so far as the said report is concerned, the Committee concluded
that the South African pass laws-
" ...may serve the purpose of directing a suppl y of ample, and con
sequently cheap, labour towards regions where it is required for·
economic reasons 2" (italics added),
and that legislation in South Africa involving penal sanctions for breach
1 IV,p.418.
2 Ibid.,p.432. REJOINDER OF SOUTH AFRICA 279
of contract "... might lead to a system of forced labour for economic
1
purposes" . (Italics addcd.)
With reference to similar legislation applicable to South West Africa,
the Committee confirmed in the case of the Territory the conclusions it
had reached with regard to South Africa itself 2•
The conclusions of the Committee regarding the aforementioned
3
legislation will be dealt with elsewhere in this Rejoinder , save that its
findings in regard to the master and servants laws will be discussed
hereinafter relative to Applicants' charges in that connection \ As will
be shown, there is no foundation for a finding that the laws in question
involve, even in a remote sense, compulsion to labour.
6. Finally, Applicants rely on a passage from the 1957 report of the
United Nations Committee on South West Africa 5 in which the Com
mittee recommended that the "... labour laws of the Territory should
conform to the standards approved by the International LaboHrOrganisation
for non-metropolitan Territories . .. " 6•Applicants allege that this recom
mendation "... accurately and expressly acknowledged the standards
approved by the LLO .... " 6•
In the report of the Committee no discussion of I.L.O. "standards"
is to be found, and it is consequently difficult to understand how the
Committee can be said to have "accurately" acknowledged such stan
dards. It is in any event clear that if the I.L.O. "standards" do not assist
Applicants' case~as is submitted above-then neither does the Com
mittee's express approval thereof.
7. Respondent next deals with Applicants' allegations concerning the
aforemen tioned three "areas of economic rights''.
B. Admission to Employment and Access to Vocational Training
8. Applicants' main charge in relation to the subject-matter under
consideration is that Respondent has closed a number of skilled trades
to persons other than Europeans. They rely on the provisions of the
Apprenticeship Ordinance (S.W.A.) 7,as amended 8, to substantiate their
charge. This Ordinance was not referred to in the Memorials, but, subject
to what has already been said regarding the introduction of new material
in the Reply, Respondent will deal with Applicants' allegations there
anent.
9. By alleging that only European minors may execute contracts of
apprenticeship, and that a minor may be employed in designated in
dustries only if he has executed a contract of apprenticeship with his
1
IV, p. 434.
2 Ibid.,p. 438 (paras. 385 and 386).
3 Vide sec. 1infra.
• Vide paras. 23-33,infra.
' G.A ., O.R., Twelflh Sess., SupplNo. 12 (A/3626).
6 IV, p. 418.
7 Ord. No. 12 of 1938 in The Laws of South West Ajrica r938, Vol. XVII, pp.
214-234.
8 Ord. No. 15 of 1948 in The Laws of South West Africa r948, Vol. XXVII, pp.
224-226; Ord. No. 25 of 1957 in The Laws of South West Africa r957, Vol. XXXVI,
pp. 252-254 and Ord. No. 20 of 1959 in The Laws of South West Africa r959, Vol.
XXXVIII, pp. 520-524.
~ Vide sec. D, rnpra,280 SOUTH WEST AFRICA
employer, Applicants create the impression that n~n-White minors may
not be employed in such industries 1• This impression is erroneous, as
will be shown hereunder.
The Ordinance, as originally enacted, provided, inter alia, for the Ad
mirùstrator to designate trades for defined areas to which the provisions
2
of the Ordinance would be applicable ;for the entering into and refistra
tion of apprenticeship contracts pertaining to designated tradcs ; and
for the appointment of (i) an inspector of apprenticeship to carry out the
powers confcrred and duties imposed by the Ordinance, a.nd (ii) an
apprenticeship committee to make recommendations to the Administra
tor 4• The Ordinance also provided that only European minors who had
passed Standard VI or who had, after being employed for six months
at any designated trade, passed an educational test to the satisfaction
of the Apprenticeship Committee concerned, could bind themselves as
apprentices in any designated trade '· but did not contain a prohibition
against employment in a designated trade in the absence of a contract
of apprenticeship.
Such a prohibition was introduced in I948 when section 4 of the
Ordinance was amended by the insertion of a new sub-section (2) which,
in sofar as isrelevant, reads:
"... no person shall ... without the written consent of the inspec-
tor ... given after consultation with the apprenticeship committee
concemed, employ a minor in any designated trade . . . unless a
contract of apprenticeship has been entered into in accordance with
this Ordinance ... 6".
This amendment was conceived to ensure that unscrupulous employers
in designated trades would not take minors into their service and there
after refuse to enter into contracts of apprenticeship with such minors,
thus frustrating the very object of the Ordinance. In formulating the
amendment the legislature had in mind only such minors as could in
terms of the Ordinance enter into contracts of apprenticeship. The
amendment does not affect the position of non-\Vhite minors, who m.ay
be freely employed in designated trades, whether in a skilled or unskilled
capacity, but who may not enter into contracts of apprenticeship. The
reasons for this differentiation are considered in the succeeding para
graphs.
IO. As already mentioned, a European minor may enter into a con
tract ofapprenticeship only if he has passed Standard VI or a comparable
educational test. In I938, when the Ordinance was originally enacted,
very fewnon-Wllites possessed this qualification, and those who did were
absorbed by the teaching and other professions. In this regard it may be
mentioned that, although the Ordinance had been in existence since 1938
it did not corne into effective operation until I957, when the first trade
was designated by the Administrator. Consequently, prior to that date
1IV, p. 419.
.2Ord. No. 12 of 1938, sec.1 in The Laws of South West A/rua I938, Vol. XVII.
pp. 214-216.
_:!~ .• secs4 and 6, pp. 216-218 and :218-220.
4 Ord. No. 12 of 1938, secs. 5 and II, pp. 218 and 222-224 •
. Ibid., secs. pp. 220-222.
• Ord. No. 15 of 1948, sec. 1 (a) in The Laws of South Wesl Africa I948, Vol.
XXVII, p. 224. REJOINDER OF SOUTH AFRICA
minors, irrespective of race, could enter into contracts of apprenticeship
relating to any trade whatsoever in terms of section 23 of the Master and
Servants Proclamation (S.\V.A.) 1, and the fact that not a single non
White ever entered into such a contract shows that non-\Vhite minors
.either were not interested in the skilled trades or were not considered by
prospective employers to have the necessary qualifications to serve as
apprentices.
n. Since I956 provision has been made at the Augustineum, a govem
ment educational and technical school for Natives 2,for practical and
.theoretical courses in masonry, carpentry and tailoring. These courses
run for three years. The qualification for entry has purposely been made
low, viz., Standard IV, so as to enable as many Natives as possible to
qualify. After successful completion of such a course the Native concerned
is free to practise his trade in the Terri tory.
Since the number of candidates who have enrolled for the three courses
in the past has been rather disappointing, provision for additional courses
bas not thus far been made. The following table reflects the number of
students who successfully completed the existing courses during the
period I958 to I963 3:
I958 I959 Ig60 1963
Masonry . 4 I 3 0
Carpentry 2 3 2
3
Tailoring 5 4 I 5
Although the total number of students at present enrolled in these
courses is only 37, it has been decided. with a view to meeting new
demands expected to accompany the increased development of the non
White areas proposed by the Odendaal Commission, to provide for addi-
. tional courses also in welding, leatherwork and motor mechanics. For
the same reason it is intended to make provision in the near future for
courses in carpentry, masonry, tailoring, welding, leathcrwork and motor
mechanics also in the northem territories.
I2. As regards the industries mentioned by the Applicants 4,it should
be observed tbat conditions of apprenticeship have notas yet been pre
scribed in respect of certain designated trades, viz., the boot-making,
clothing, carnage building, food (baking and butchery) and leather
trades, which means that the Ordinance is not yet in effective operation
in the case of these trades. ·
I3. With reference to the South African Native Building Workers
Act s, Applicants allege-
"[b ]ecause of the restrictions imposed under the Apprenticeship
Ordinance _of I938, it has not been necessary to promulgate legisla
tion similar to the South African legislation which prevents 'Natives'
1 Froc. No. 34 of 1920, secs.20-32 in The Laws of South West Africa z9z5~I922.
Vol. I,pp. 342-346. • .
2 III,pp. 466-467.
3 Departmental information. ·
4 IV, p. 419.
' Act No. 27 of 1951 in Statutes of the Union of South Afnca z95r, pp. 106:152
as amended by Act No. 6o of 1955 in Statutes of the Union of South Africa, r955,
Part II (Nos. 56-70), pp. 1508-1510.282 SOUTH WEST AFRICA
from being cmployed 'on skilled work' in any urban area other than
a 'Native' area 1".
This allegation creates the impression-
(a) that Natives are, in effect, debarred from qualifying as skilled
workers in South West Africa by virtue of the provisions of the
Apprenticeship Ordinance; and
(b) that the said South African statute prevents Natives from per
forming any skilled labour in urban areas in South Africa other
than Native areas.
As regard the first aspect, it has already been shown that Natives
are in fact trained for skilled work in the Territory, and that a Native
who has successfully completed a technical course may practise his trade
anywhere in the Territory. l\foreover, there is nothing to prevent a
Native from being employed in a skilled trade in which he can gain
practical experience, or from enrolling for one of the theoretical courses
prescribed by a number of institutions, for example the Witwatersrand
Technical College, which sets examinations for European apprentices
in the Territory. Respondent stresses that no Native is debarred from
practising a skilled trade in the Territory, and refers to what has already
been stated regarding the extent to which Natives are already employed
in skilled work 2• Furthennore, it is government policy to employas far
as is practicable only Native workers, skilled and unskilled, on govem
ment projects in Native areas.
r4. Applicants also create the impression that Natives are, in fact,
prevented from being emploved on skilled work in the Territory by
referring to the following exŒrpt from the r956 report of the Committee
on South West Africa:
"The A/Jgemeine Zeitung of 8 November I955 ... reported that
the Chief Native Commissioner, acting under the direction of the
l\f.inister for Native Affairs, had stated that the use of 'Natives' for
qualitative jobs, as was under consideration in Northem Rhodesia,
would not be permitted in South West Africa. The statement had
been occasioned by information which had been circulated that
'Natives' in the Territory would perfonn work which had until then
3
been reserved for 'Europeans' ."
The above quotation from the Committee's report follows on a para
graph with which it was intended to be read. Before referring to the
report in the Allgemeine Zeitung. the Committee stated that, according
to newspaper reports, the secretary of the South \Vest Africa l\'line
workers' Union had said during August I955, that White employees
on a mine at Tsumeb were concemed about losing their jobs to Natives.
This was due to the fact that the Rhodesian Selection Trust was then
in the process of negotiating with the Northern Rhodesian European
Mineworkers' Union regarding the advancement of Natives on its mines
in Northem Rhodesia to certain posts held by Europeans. It is clear,
therefore, that the report in the Allgemeine Zeitung was concerned only
with "qualitative jobs" on mines.
The statement which, according to the Committee, was reported in
1IV;pp. 419-420.
2 VideChap. Il, para. 6,supra.
3 IV, p.420. REJOIXDER OF SOUTH AFRICA
the Allgemeine Zeitung, was not made by the Chief Native Commissioner
but could have been made by one of the officers in charge of the labour
branch of the office of the Chief Native Commissioner at the time, since
it correctly reflects Respondent's policy regarding higher skilled work on
European mines in the Police Zone outside the reserves. Respondent has
already explained the reasons why certain qualitative jobs in such mines
are reserved for members of the \Vlrite group 1, and it is unnecessary to
repeat the reasons here. There is, in any event, no doubt that the state
ment reported in the Allgemeine Zeitung, if it was in fact made, did not
apply to skilled work generally, as is suggested by Applicants.
15. As regards Applicants' reference to the South African Native
Building Workers Act 2,it should be observed that while section 15 (r) of
the Act provides in general terms that no Native may be employed on
skilled work in any urban area other than a Native area, section r (xvi)
defines "skilled work'' as work performed in a number of trades pertaining
to the building industry. In view of the fact that this Act only applies to
the building industry, Applicants' reliance thereon for the broad alle
gation that Natives in South Africa are prevented "from being ernployed
'on skilled work' in any urban area ot).ler than a 'Native' area" 3. is
unjustified.
16. Respondent does not propose to deal in detail with job reservation
in South Africa, but in view of Applicants' reference to the Native
Building Workers Act a brief elucidation of the principles underlying the
Act will be given.
Neither the Applicants nor the I.L.O. "Programme" 4 mentions that
the Act also makes provision for machincry to prevent persons other than
Natives from performing skilled work in the building industry within a
Native area, except with the written consent of the Minister of Labour 5•
It will thus be seen that job reservation in the building industry cuts both
ways, protecting Native building workers in Native areas and European
workers in Europcan areas. The principlcs embodied in this Act are in
accord with Respondent's general policy of conferring priority rights on
the different population groups in their respective areas.
17. Opponents of job reservation tend to Jose sight of its beneficial
reciprocal effect from the point of view of the Native. Separate develop
ment, in the economic sphere, ensures for the Native the opportunity of
establishing his own business in bis own area, sheltered from the competi
tion of European institutions with greater capital resources. In the words
of a South African Bantu sociologist, D. E. Mabudafahasi:
"The Policy of Separate Development, however, lirnits competi
tion for work or for business within each group. The white man, e.g.,
may not run a business in a Bantu Area.
In this area it is the right and privilege of the Bantu to run
business.
Even if he has a small capital he has a chance to make a start and
1 Vide III, pp.55-57 and vide also in this regard Chap. IIparas. 77-79.
2 Vide para. 13,supra.
3 IV, p. 420.
• Vide para. 3, supra.
5 Act No. 27 of 195•, sec. 16 iStatutes of the Union of SoutA/rica I95I,pp. 126-
128. SOUTH WEST .-\FRIC.-\
build himself up-;-a thing which could not happen in an open
1
situation under a common program of development .''
It is significant that even persons critical of Respondent's policy of
separate development concede that job reservation as introduced by the
Native Building Workers Act is justified. So, for instance, a former Chief
Justice of the Supreme Court of South Africa, Dr. H. A. Fagan, who is
quoted by Applicants in another context 2,wrote:
"If Bantu are trained to do skilled work in this line (i.e., the
building industry) and are then allowed to compete freely with
Whites, Coloureds and Asiatics, that would be the kind of unequal,
and thcrefore unfair and harmful, competition to which I have
referred. On the other hand, the provision of low-priced housing
accommodation for the Bantu is one of the most pressing needs of
the country. The solution which the Govemment has found, and
against whicli I can see ,w objection in principle, is that provision
should be made for the training of Bantu artisans in the building
industry and that in their case a lower wage rate than the usual one
should be allowed, but that they may be employed in their skilled
capacity only in the Bantu Areas and in Bantu locations 3.''(Italics
addcd.)
18. Applicants also allege in this regard that practices involving eco
nomic differentiation "are wasteful, in the extreme, of available human
resources" 4, and they quote the following passage from a statement by
Mr. S. G. Menell:
"I have heard the argument that the African is not yet ready to
rise above foreman level. However, there is little value in assessing
people in grottps. In business, the employer seeks talented individuals
-whose talents he tries to utilise to their own and the company's
best advantage. It is for this reason that the laws restricting certain
jobs to certain groups of the population seem illogical 5.''
From a purely short-term businessman's point of view, Mr. ?1Ienell's
statement seems logical; but be appears to give no consideration to the
fact that a government bas to take a wider view of the community's
interests. It is one of the primary fonctions of a govemment to ensure
peace and orderliness, to promote the interests of all sections of the
population for which it is responsible, and, therefore, inter alia, to avoid
policies which are likely to lead to serious disruption and strife. The
"restricting laws" to which Mr. Menell refers were designed to forestall
the emergence of inter-racial competition with its inevitable consequences
of social unrest and economic instability, and to serve the long-term
interests of the communitv as a whole.
In this connection Dr. "M.S. Louw and Professor J. L. Sadie, who are
generally regarded as being, respectively, among South Africa's foremost
financiers and economists, have replied as follows to arguments of the
kind advanced by Mr. Menell:
1 Dagbreek en Sondagnuus, 20 Sep.- 1964.
2 IV, p. 285.
3 Fagan, H. A., Our Responsibility: ADiscussion of SouthAfrica's Racial Problems
(196o), pp. 75-76.
• IY,p.-420.
' Ibid., italics added bApplicants. REJOINDER OF SOUTH AFRICA
"Very broadly, two main types of policies, or solutions to our
economic problem, can'be distinguished:
(a) the laissez-faire (orempiricist), and
(b) the separate development or positive apartheid (or fundamenta
list) solution.
Elements of both solutions could, of course, be combined in one
policy.
Although the alternative to separate development has not yet
been unequivocally formulated, it appears to us to arnount to some
kind of laissez-faire policy according to which, in a vague sort of way,
free or equal opportunities are promised for all in an integrated
society. It would imply the abolition of influx control and of all
legislation which accords White workers some preferential treatment
or restricts the progress of non-\Vhites in the skilled grades ...
The idea of opportunities for all has great appeal, but on doser
examination may lose some of its attraction. The realizable goal
would appear to be 'free' opportunities, in the sense that no specific
economic barriers are put in the way of non-\Vhites by means of
legislation. Those who are in the position to rnake use of, or create,
opportunities are then free to do so. But under existing conditions
not many non-\Vhites are in this position, so that the masses would
not benefit under this scheme of things. Moreover, the conventional
colour bar cannot be legislated away ...
In fact, a full-blooded laissez-faire policy should abolish the Bantu
Areas as land reserved for Bantu only. The effect of such a measure
would be that within a decade the land would be in the hands of
White farmers, the Areas would have become fully developed areas,
at least agriculturally, the money paid for the land would have been
squandered or spent on consumer goods, and most of the crstwhile
peasants would be slum-dwellers.
A laissez-faire policy canoot be fair where there is i1iequality in
1
degreeof development, in talents, wealth and income ." (Italics added.)
I9. Finally, Applicants allege that-
"[in] addition to the skilled trades which Respondent has closed to
persons other than 'Europeans', the fields of mining, railways and
harbours, and public transportation are subject to the effects of
economic and social apartheid 2".
Respondent has already dealt with Applicants' charges relating to rail
ways and harbours 3and the mining industry i, and it therefore remains to
consider their rather vague allegation regarding public transportation, a
matter which was wt raised in the Memorials.
Apart from the bare statement that the field of public transportation
is subject "to the effects of economic and social apartheid", Applicants
merely allege that the Motor Carrier Transportation Act (S.A.) 5, as
1 Louw, l\1. S.·and Sadie, J.L., "The Dynamics of Separate Development", South
Africa, The Road Ahead, Spottiswoode, H. (Ed.) {Nov. 1960), pp. 95-107, at pp. 100-
10:i.
2 IV, p. 420.
3 Vide III,pp. 64-69 and Chap. li, paras. 84-88, sup,a.
4 ibid.,pp. 47-63 and Chap. li, paras. 73-83, sup,a.
l Act No. 39 of 1930 in Statuhs of the Union of South A/rica r930, pp. ·460-483
and for amending Acts, vide IV, p. 420, footnote 5.286 SOUTH WEST AFRICA
amended, which is applicable to the Territory, "... establishes separate
transport services or, in certain cases, facilities for 'Natives', and discri
mina.tes by race in the use of public transportation" •
This allegation does not correctly reflect the effect of the relevant
provisions of the Act. Far from directly establishing separate transport
services or facilities for different groups, the Act merely empowers the
National Transport Commission and local road transportation boards
which are independent administrative bodies~to issue motor carrier
certifica.tes or exemptions subject to the condition that the vehicles
concerned be utilized only for the conveyance of a specificclass of persans,
or that portions of vehicles be set aside for the conveyance of such a class.
It is consequently the duty and prerogative of the Commission or a
loca.lboard to decide in every case, in the light of surrounding circum
stances, whether a certificate or exemption should be issued subject to
the above conditions. The reasons why it was considered necessary to
confer this power on the Commission and local boards, are set out below.
20. Firstly, experience has shown that tension is apt to occur when
members of different groups are conveyed indiscriminately in the same
vehicle, or when members of one group are conveyed in transport services
operated by members of another ~wup. As an example, it may be men
tloned that the conveyance of Natives in Indian buses in Durban and the
resultant friction between the two groups were contributory causes of
the clashes as between Natives and lndians in that city in r949, in the
course of which scores of lndians and Natives were killed 2•lt was con
sequently deemed necessary to empower the administrative bodies con
cerncd to stipulate for separate transport services or facilities should
circumstances so require.
In the second place, it has been considered necessary to have separate
services in order to assist the Natives, manv of whom are not able to
pay the same fares as members of other groups. Throughout South Africa
the charges for public transport of Natives, on the one hand, and Euro
peans, Coloureds and Indians, on the other hand, differ substantially,
the cheaper service to Natives being made possible by the grant of sub
sidies or loans from the Bantu Services Transport Account created under
3
the Bantu Transport Services Act • During the period 1957 to rg64 an
arnount of R9.829,I74.40 was paid from this Account to local authorities
operating transport services for Natives •
21. ln South West Africa the only bus service for Europeans wqs
operated in Windhoek by the munic1pality from 1953 to 1960, but it
proved to be uneconomical and was terminated. In contrast, a municipal
bus service for Natives between \Vindhoek and the Native township
Katutura is still in operation although it runs at a Joss. In 1963 alone the
Jossamounted to RS,882, which amount was recouped from the revenue
account 4•
22. In view of the context in which Applicants refer to the Act, how
ever, it would seem that their main objection is that the Commission or a
local board may grant a certificate to a Native who operates a transport
1IV, p. 420,footnote 5.
2 U.G. 36--1949, p.15.
~ Act No. 53 of 1957 in Stulutes o/ the Union of South Africa z957, Part II (Nos.
45-83),pp. 776-79'2.
4 Departmental information. REJOINDER OF SOUTH AFRICA
service on condition that only Natives be conveyed by him. Respondent
concedes that the imposition of such a condition could have the effect of
limiting the sphere of operation of such a Native, but it is also true that
the imposition of similar conditions on White, Coloured and Indian
operators, would produce exactly the same effect. In fact, section 13 (2)bis
of the Act provides specifically that in granting any application for a
motor carrier certificate the Commission or a local board-
"may give preference to an applicant who belongs to the same class
as the majority of the persons to be served by the transportation
service for which a certificate is sought 1".
This provision is in keeping with Respondent's general policy, already
outlined above 2, of according priority rights in the economic sphere to
members of specific groups in relation to their own areas or groups.
The sub-section enures for the benefit of Native applicants who, because
of limited financial resources. would hardly be in a position to apply for
the conveyance of Native passengers on the same footing as members of
other groups, unless some preference was given to them.
23. The above exposition shows that Respondent does not discriminate
unfairly against Natives in South West Africa as far as admission to
employment and access to vocational training is concemed. It suffices to
reiterate that Applicants' general allegation that Respondent has closed
the skilled trades to pcrsons other than Europeans, is unfounded.
24. In regard to Applicants' reference to the section of the Reply
dealing with education in the Territory 3, Respondent refers to what has
already been stated in this connection 4. Applicants also refer to certain
paragraphs of the aforementioned I.L.O. Proposed Dedaration dealing
with vocational training in the Republic of South Africa 5• In this regard
6
Respondent refers to what has been stated above ,and, beyond saying
that there are adequate facilities for vocational training for ail population
groups in South Africa. Respondent does not propose dealing with the
allegations in the said Proposed Declaration.
C. Measures Allegedly Having the Effect of
Compulsion to Labour
25. In this connection Applicants rely mainly on the provisions of the
Master and Servants Proclamation (S.W.A.) 7 to substantiate their charge
that there exist in the Territory "measures having the effect of compul
sion to labour which involve racial discrimination" 8•
Applicants' basic contention regarding the Proclamation is formulated
as follows: "Penal sanctions for breach of labour contracts illustra te the
9
dominance and privilege afforded 'European' interests ."
1This section was inserted by Act No. 44 of 1955, sec. 11 (e) in 51.alutes of the
Union of South Africa I955, Part I (Nos. 1-55), p. 45 4·
2 Vide para. 16. supra.
3 Vide IV, p. 421.
~ Vide sec. G and para. II. supra.
' Vide IV, p. 421, footnote 2.
6 Vide paras. 3-4, supra.
7 Froc. No. 34 of 1920 in T/Je Laws of South West A/rica .i:9I5-I9z3. Vol. I, pp.
336-366.
8 IV, p. 421. (Heading sec. {2).)
9 Ibid .. p. 203.288 SOUTH WEST AFRICA
It appears on analysis that Applicants charge Respondent with having
subjected the interests of Native employees to those of their European
employers by providing for penal sanctions for breach of contract by
employees. This charge in its very nature imputes an improper motive to
Respondent. In the succeeding paragraphs the supporting material
offered by Applicants will be analysed with a view to showing that it
fa11svery far short of establishing such a motive on Respondent's part.
26. In the Memorials 1 Applicants created the impression that the
relevant provisions of the Proclamation apply only to Native servants.
In the Counter-Memorial Respondent demonstrated that the Proclama
tion isbasically applicable to all persons, irrespective of race, and that it is
only in certain spheres of employmcnt that the legislation applies to
Natives only. An exposition was given covering, inter alia, the reasons for,
and the background to, the Proclamation; the provisions enuring for the
benefit of servants; and the existence of similar legislation in other coun
tries 2•
In the Reply Applicants, while for the most part ignoring the exposition
in the Counter-Memorial, concede that the Proclamation, as originally
enacted, "did not define 'Servant' in terms of race" 3• Applicants con
tend, however, that the discriminatory nature of the Proclamation is
evidenced by the 1923 amendment which added to the definition of
"servant" certain categories of Native employees, and say in this regard:
"Apart from this instance of explicit discrimination, it is signifi
cant that those sectors of the economy in which the largest number
of 'Europeans' are employed in manual work are precisely those
which are not included in the original definition of 'Servant', but
which are included in the amendment of 1923 (which is specifically
confined to 'Natives' employed in those sectors) 3."
In support of their contention that the largest number of Eumpeans
who perform manual labour are employed in those sectors of the economy
which are included in the definition contained in the 1923 amendment,
Applicants rely on the 1961 Survey of Race Relati'ons in South Africa 4.
This survey does not, however, bear out Applicants'. contention. At the
page quoted by Applicants, the Survey merely gives statistics of the total
number of members of the White, Coloured, Asian and Native groups
employed in certain economic sectors in South Africa 4.
It is not possible to establish from available statistics whether in South
West Africa more Europeans are at present employed in manual labour
in the said sectors of the economy than in others, or whcther this was the
case in 1923, when the said amendment came into force; but Respondent
is prepared to accept that a relatively substantial number of Europeans
have at all times been so employed. Respondent denies, however, that this
fact entitles Applicants to draw the inference that the amendment was
intended to subject the interests of Native employees to those of their
European employers.
As explained in the Counter-Memorial 5,the main reason for the amend-
1I, pp. r24-r26.
2III,pp. 8r-89.
3 IV, p. 42r.
• South African Institute of Race Relations,A Survey of Race Relations in South
Africa, r96r (1962), compiled by Muriel Horrell, p. 219.
5 III, p. 83. REJOI;,,;-DER OF SOUTH AFRICA 289
ment was the serious difficulty which had been experienced with private
contractors working for the Railway Administration, who failed to pay
the wagcs due to their Native servants. Since the Proclamation did not
apply, or at least was thought not to apply, to the relationship between
such contractors and their Native servants, there was, in the opinion of
the Secretary for South West Africa, "... no means of dealing with such
cases except by Civil process which the native labourer is unable or un-
willing to initiate" 1. •
Since the unlawful withholding of wages from a servant constitutes a
1
criminal offence in terms of section 65 of the Proclamation , the 1923
amendment ensured that adequate steps could be taken against con
tractors who failed to pay wages due to their Native servants.
27. It is true that, according to the explanation given by the Secretary
for South West Africa, the amendment was also conceived as a deterrent
against desertion by Natives employed on a railway, but this does not
mean that the lcgislation was motivated by any intention to discriminatè
against Native employees. As is often the case with amending lcgislation,
the 1923 amendment was introduced merely to meet the exigencies of an
existing situation, and since no trouble was experienced with European
and Coloured employees falling within the categories of servants added to
the original defmition, it was apparently not considered necessary to make
the amendment applicable to them. It should be observed, however, that
Europeans employed in manual work in the sectors of the economy
mentioned in the 1923 amendment, are subject to stringent disciplinary
measures as provided for in the Public Service Act (S.A.) 2, the Railways
and Harbours Service Act (S.A.) and the Municipalürdinance (S.W.A.) ~
In terms of these measures disciplinary punishment may be imposed on a
European employee under a variety of circumstances, including cases
which constitute criminal offences in terms of the Master and Servants
Proclamation. So, for instance, an employec is guilty of misconduct in
terms of section 17 of the Public Service Act if he " ... disobeys, disre
gards, or makes wilful default in carrying out a lawful order ... or by
word or conduct displays insubordination ... " 5,or if he " ... is negligent
or indolent in the discharge of his duties ... " 6,or if he" ... absents him-
self from his office or dutv without leave or valid cause" 7• Persons found
guilty of a contravention"of these provisions are liable to a fine, reduction
8
of emoluments, or summary dismissal •
28. Applicants also allege that-
"... Respondent's explanation of the background to .the legislation
1 Ill,p. 83.
2 Act No. 54 of 1957 in Statu/es of the Union of South Africa r957, Part II (Nos.
45-83), pp. 794-859. This Act also applies to the Territory.
3 Act No. 22 of 1960 in Statutes oj the Union of South Africa 1960, pp. 151-213.
This Act also applies to the Territory.
• Ord. No. 13 of 1963 in The Laws of South West Africa r963, Vol.-XLTI (I), pp.
138-488.
5 Act No. 54 of 1957, sec. 17 (c) in Statutes of the Union of South Africa r957,
Part II (~os. 45-83), p. 838.
6 Ibid., sec. 17 (d).
7
Ibid., sec. 17 (q), p. 840.
a Ibid., sec. 18 (21), p. 846. SOUTH WEST AFRICA
conclusively shows that it was in fact aimed at the members of the
'Native' group 1".
In the Counter-Memorial 2 Respondent stated that, in order to appre
ciate the necessity for the penal provisions of the Proclamation, regard
should be had to the conditions which existed in the Territory at the
inception of the Mandate and which, to a large extent, still exist today.
On the whole the labour class~s were poorly educated and had very little,
if any, knowledge of legal principles governing contractual relationships,
this being especially true of the indigenous labour class. ln these circum
stances it was imperative that workers should be impressed with the
necessity of honouring their contractual obligations towards employers.
Since the labour classes more often than not had very small means, an
ordinary civil action for damages against a defaulting employee was
generally an illusory remedy. On the other hand, few employees had the
knowledge, or the funds, to institute legal proceedings against employers
for the enforcement of conditions of employment. It was consequently
considered to be in the intcrests of bath masters and servants that penal
sanctions should be provided for certain categories of breach of contract.
Respondent fails to see how it can be said that this explanation shows
that the Proclamation "was in fact aimed at members of the Native
group". It is conceded that the basic situation which the Proclamation
was designed to remedy, was to a large extent caused by the fact that the
majority of labourers were illiterate Natives with little or no conception
of the nature of contractual relationships, but it surely does not follow
that the legislation was "aimed at" the Native inhabitants of the Terri
tory. The Proclamation was directed at breach of contract by master and
servant alike, and not at any particular population group.
29. By stating that "... the Ad Hoc Committee on Forced Labour had
no diffi.culty in weighing the effect and the character of such legis
lation ... " 1,immediately after having made the allegation dealt with
above, Applicants create the impression that the Committee made a
finding that the Proclamation is "aimcd at" members of the Native
group. No such finding was, in fact, made by the Committee.
In support of their statement Applicants refer 3 to paragraphs 352 to
360, and 372 to 375 of the Committee's report. In the first-mentioned
paragraphs the Committee dealt with allegations regarding the compul
sory nature of labour contracts for non-Europeans, and more specifically
with allegations that under the South African Native Labour Regulation
Act\ which does not apply to South West Africa, a breach of a labour
contract by a Native employedonanymine or work is acriminal offence 5•
For reasons which are not relevant this Act applies only to Native
labourers. Because of the nature of the allegations examined by the
Committce, no reference was made to the South African Master and
Servants Acts, which apply to all servants irrcspective of race. As regards
the Native Labour Regulation Act, the Committee merely concluded
1 IV, p. 421.
2 III,pp.82-83.
3 IV,p. 421, footnote ro.
• Act No. 15 of 191 l in Statutesof the Union of South A{Yica 19w-19u, pp.
528-556.
5 InternationalLabour Office, Report of the Ad Hoc Committee on Forced Labour,
E/2431 (1953), p. 76 (para. 352) read with p.72 (para. 330). REJOINDER OF SOUTH AFRICA
that "... legislation of this kind, ifabused or vigorously implemented,
might lead to a system of forced labour for economic purposes" 1.
In paragraphs 372 to 375 of its report the Committee was obviously
referring to South African pass legislation, and not to any legislation
providing for penal sanctions for breach of contract 2•
As regards South West Africa, the Committee had to examine an
allegation conceming "compulsory labour imposed on indigenous
3
workers" . The Committee's finding on this allegation ,ms expressed to
be the same as that reached in the case of South Africa 4, i.e., the con
clusion quoted above.
It is clear, therefore, that the Committee did not find that the Master
and Servants Proclamation "was in fact aimed at the members of the
'Native' group" 5•
30. Applicants also rely on the I.L.O. "Programme" in which it was
found, with respect to the South African Master and Servants laws,
that-
". . . provisions for penal sanctions for breaches of contract of
employment, although not limited to 'nath·c' workers, are in practice
applied overwhelmingly to such workers 6".
The compilers of the "Programme" presumably intended merely to
convey that the great majority of servants found guilty under the
provisions of the said laws, were Natives. The fact, however, that more
Natives than members of other groups are convicted under any specific
law, does not show that the legislation was "aimed at" Natives, in the
sense that the legislature intended to discriminate against thcm.
31. In the Memorials Applicants did not in this regard rcfer to the
Permanent Mandates Commission. In the Reply, however, they allege
that the Commission, "was highly crüical of the l\faster and Servants
7
Proclamation" , and in support of this allegation they quote the remarks
of a l\Ir.Grimshaw relative to the said Proclamation, whereby the im
pression is naturally conveyed that l\Ir.Grimshaw was a member of, or
spoke on behalf of, the Commission. This was, of course, not the case:
1\ir. Grimshaw was nota member of the Commission, nor did he speak on
its behalf. He attended the Fourteenth Session of the Commission as the
representative of the International Labour Organisation 8• The Com
mission itself did not express objection to the legislation in question.
32. In further support of their contention that the penal sanctions for
breach of labour contracts provided for by the Proclamation "illustrate
the dominance and privilege afforded 'European' interests" 9, Applicants
quote the following extract from a report of the I.L.O. Ad Hoc Com
mittee:
1 International Labour Office, op. ât., p. 77 (para. 360). IV, pp. 433-,J34.
z Ibid., pp. 79-80 (paras. 372-375). IV, p. 436 read with p. 294 (paras. 349-351).
IV, pp. 432-433.
3Ibid., p. 80 (para. 377). IV, p. 437. (Italicadded.)
4 Ibid., para. 375. IV, p. 438.
5 Vide para. 28, supm.
6 IV, p. 421.
7 Ibid.,p. 422.
8
9P.M.C., 1vlin.,XIV, p. r1.
Vide para. 25, supra. SOUTH WEST AFRICA
"There can, however, be no doubt, in the Committee's view, that
the fact that it is impossible for the worker to terminate his contract
unilaterally before the expiration of its term, without running the
risk of heavy penalties, constitutes a serious restriction of his
persona! liberty 1."
In all civilized legal systems known to Respondent, an employee who
has bound himself to perform services under a contract is obliged to
honour that contract, and to that extent voluntarily imposes restrictions
on his personal liberty. A breach of a contract of service may render
the worker liable to civil sanctions, e.g., a daim for damages. Respondent
has already explained why in the circumstances of the Territory it was
considered advisable to introduce criminal sanctions to prevent breaches
of contractual obligations of service 2•Such sanctions serve as an addi
tional deterrent to prevent an employee from doing what he is in any
event not entitled to do in law, viz., to break his contract. In no way can
such sanctions, in Respondent's subm_ission, be regarded as illustrating
3
any "dominance" or "privilege afforded 'European' interests" •
33. The Committee's fui:ther reasoning that the Master and Servants
laws of South Africa and the Terriroty "... if abused or vigorously
implemented, might lead to a system of forced labour for economic
purposes" 1, is also somewhat difficult to understand. The cnforcement
of legal obligations voluntarily undertaken by employees cannot, in
Respondent's submission, fairly be regarded as the implementation of a
system of forced labour. It is pointed out furthermore that neither
Applicants nor the Committee bas fumished proof that the said laws are
in fact "abused or vigorously implemented".
34. According to Applicants the following comment of a member of
the South African Parliament with respect to proposed legislation to
implement influx control, "is equally applicable to penal sanctions for
breaches of contract": "It is a cardinal principle except in a slave
country, that the labourer may go where the pay is highest 4."
In the context in which this comment is quoted by Applicants, it is
apparently offered as no more than a rendering of the same view as that
of the I.L.O. Ad Hoc Committee, discussed above. It is of course true
that, generally speaking, a labourer should be free to go where the pay
is the highest, but this is the first time that Respondent has encountered
a contention, seriously advanced in a court of law, that the labourer
should, to this end, be permitted to break a contract of employment to
which he bas voluntarily bound himself.
35. Applicants' charge that the Proclamation subjects the interests of
Native employees to those of their European employers, ignores the
provisions of the legislation which enure for the benefit of the employee.
In the Counter-Memorial Respondent enumerated the circumstances
under which an employer commits an offence under the Proclamation,
1 International Labour Office, Report of the Ad Hoc Committee on Forced Labour,
E/243I (1953), p. 77 (para. 36o).
2 Vide para. 28,supra.
3 It may be noted that of the 1rn members of the I.L.O., ouly 14 have thus far
ratified The Abolition of Penal Sanctions Convention,I955 (No. Io4). Vide Interna
tional Labour Conventions: Chart of Ratifications, I June 1964.
" IV,p. 423. REJOINDER OF SOUTH AFRICA 293
e.g.. withholding of wages, failure to pay damages, etc. 1 Respondent also
drew attention to some of the other sections of the Proclamation which
were designed to protcct the interests of servants, e.g., provision for
gratuitous legal representation of a servant on appeal, for cancellation
of contracts of employment by the court, etc. 2
Applicants' only reference to Respondent's exposition of the above
mentioned provisions of the Proclamation is to be found in a footnote
where thcy state:
"With respect to Respondent's contention that the l\faster and
Servants Proclamation inures equally to the benefit of the master
and the servant, it is noteworthy that an employee thereunder is
guilty of an offence if he commits certain breaches of contract
'without lawjul cause' ... whereas the employer must not commit
certain acts 'without reasonable and probable cause for believing' that
bis action is justified. Thus, in certain instances an employer may have
recourse to the criminal courts for enforcement of a labour contract,
even in cases of misunderstanding or dispute as to the terms thereof;
on the other band, the employer may be convicted only if he acts
'unreasonably' 3."
Applicants' inference from the difference in wording of the various
provisions of the Proclamation is unjustified. In a decided case 4, the
correctness of which bas not been questioncd by the Courts, it was held
by a Division of the Supreme Court of South Africa in regard to legis
lation of the kind here in issue that the expression "lawful cause"
covered a bona fide misundcrstanding on the part of an employee as to
the terms of his contract of employment.
36. In emphasizing the alleged "dominance and privilege afforded
'European' interests" by the Proclamation, Applicants seem to be under
the impression that only White employers can avail themselves of the
penal provisions relating to servants. This is a misconception. In terms
of section 2 of the Proclamation "l\faster" means any person employing
for remuneration a person falling withing the definition of "servant".
It follows that Native and Coloured employers are accorded the same
rights, and are subject to the same obligations, as European employers.
37. Apart frorn the l\laster and Servants Proclamati~n, Applicants in
the present context also refer to the pass laws applicable to the Territory,
and to section r4 of the Vagrancy Proclamation of r920 5, in terms of
which a first offender may in lieu of the prescribed punishment be ordered
to do service on public works, or to enter into employment with .a
municipality or a private person other than the complainant. The
relevant statutory provisions are also referred to by Applicants in the
part of the Reply headed Secierity of the Person, Rights of Residence and
Freedom of Movement 6, and will be dealt with by Respondent in answer
to the allegations made unde1 the said heading 7•In particular as regards
' IIIp. 83.
2Ibid.,pp. 83-84.
3 IV, p. 421, footnote 11.
4 Rex v. 1l1agosane and Others, •937 Griqualand \Vest Local Division, p. 47.
Vide also R. v. Ramahau, 1959 South African Law Reports, Part 4, p. 642.
~ IV, p. 423.
6 Ibid., pp. 458 ff.
1 Videsec. I. infra.294 SOUTH WEST AFRICA
section 14 of the Vagrancy Proclamation, it will be shown that, in
deference to the views of the Permanent Mandates Commission, orders
compelling offenders to take up employment with a private person have
not been made for many years 1•
38. Finally, Applicants suggest that the practices relating to the re
cruiting of northern Natives have the effect of compulsion to labour.
They allege in this regard that-
"... a perusal of Respondent's description of the operation of the
labour recruiting system ... reveals that the contract offerecl is a
standard contract, that the prohibition on recruiting by individual
employers eliminates al! possibility of competition between em
ployers in the labour market, that the restrictions on entry into the
Police Zone make itvirtually impossible for a labourer from outside
the Zone to obtain employment through his own effort, or otherwise
than through SWANLA, and that the choice is therefore between
accepting the standard contract or remaining unemployed 2."
It is obvious that Applicants have misread Respondent's exposition of
the recruiting system 3•The fact that only New S.W.A.N.L.A is entitled
to recruit labourers in the northern territories, does not eliminate "ail
possibility of competition between employers in the labour market".
Prospective employers inform New S.\V.A.N.L.A of the wages they are
willing to pay, and their offers are then transmitted by the organization
to prospectiveemployees. Although the contracts entered into by northern
Natives are of standard form-as regards general conditions of employ
ment-the wages to be paid by employers are not standardized, save that
a minimum wage is prescribed 4. It follows that the existing system does
allow for competition between prospective employers.
Respondent fails to understand how it can be said that the pass system
applicable to northern Natives "make[s] it virtually impossible for a
labourer from outside the [Police] Zone to obtain employment through
his own effort". There is nothing to prevent a Native from applying to
the Bantu Affairs Commissioner for an identification pass to enable him
to proceed to the Police Zone to take up employment. It is true that very
few Natives apply for such passes, but this is due to the decided advan
tages of the present recruiting system for the northem Natives who seek
to take up employment in the Police Zone. As was pointed out in the
Counter-Memorial 5, the recruiting system provides northern Natives,
free of charge, with an avenue through which they can find employment,
which, if left to their own resources, comparatively few would be able to
obtain.
With a view to assisting northern labourers further, Respondent is
at present contemplating the establishment of a labour officeat Ondangua
in Ovamboland. This office will initially concentrate on assisting Natives
who wish to proceed on their own to the Police Zone in order to take up
employment there.
1 Vide sec. 1, infra.
l IV, p. 423footnote 1.
3Ill, pp. 72-73.
• Vide in this regard Chap. II, paras. 44-46.
5 III, p. 73. REJOISDER OF SOUTH AFRICA 295
D. Freedom of Association and the Right to Organize
39. In the Memorials reference was made by Applicants to some of
the provisions of the Wage and Industrial Conciliation Ordinance of
1952 {S.\V.A.) concerning the registration of trade unions and conciliation
of industrial disputes. Applicants drew attention to the fact that the
Ordinance does not provide for the registration of Native trade unions
or for conciliation of disputes in tcrms of Chapter II of the Ordinance in
so far as Native employees are concemed •
Respondent in the Counter-Memorial 2 pointed out that prior to
I August 1953, when the Ordinance came into force, there were no
trade unions whatsoever in the Territory, and that at present there are
no Native trade unions, although there is no statutory provision which
prevents the formation of such unions. Respondent explained that Native
trade unions are not recognized by the Ordinance for the purposes of
Chapter II thereof, because of a danger that the interests of Native
workers, if left to the protection of trade unions, could be neglected, and
that such workers could be exploited by unscrupulous individuals. Since
a large proportion of ail Native employees are illiterate or semi-litera te,
they have little or no understanding of trade unionism and have conse
quently not yet reached a stage where they c._w partake in collective
bargaining on an equal footing with their employers. For this reason the
Ordinance provides that an inspector may attend any meeting of a
Conciliation Board and take part in its proceedings whenever the interests
of employees who are not represented on the Board, are under discussion.
40. In the Reply 3 Applicants refer to views expressed by the Com
rnittee on Freedorn of Association of the Goveming Body of the I.L.O. to
the following effect :
". . . discrimination against African workers (with respect to the
right to organize) is ... inconsistent with the principles that workers
without distinction whatsoever should have the right to establish
and, subject only to the rules of the organisation concerned, to join
organisations of their own choosing without previous authorisation
and that all workers' organisations should enjoy the right of collec
tive bargaining 3 '.
4
Applicants also say that the LLO. "Programme" supports this view •
It is clear that the said Committee, Iike the compilers of the said
"Programme", started from the premise that any differentiation on a
group basis was impennissible as being in conflict with generally accepted
principles or standards. In this connection Respondent repeats what has
already been stated in regard to the relevance of such principles or stan
dards, and to the fallacy of seeking to apply them to all conditions irre
spective of the special circumstances of a particular country or area.
41. As indicated above 5, Respondent dealt in the Counter-Memorial,
with the reasons why no official recognition is as yet given to Native
trade unions. Applicants' response thereto is as follows:
"... the reasons advanced by Respondent for its restrictive policy
1 I,pp. I29-130.
2 III,pp. 92-93.
' IV, p. 423.
4 Ibid.,p. 424.
5 Para. 39, supra. SOUTH WEST AFRICA
should call for encouragement, training, and fosterfog of partici
pation by 'Natives' as representatives of 'Native' workers, rather
than the converse ".
Respondent submits that Applicants do not squarely face the reality
of the situation, viz., that the Native inhabitants of the Territory have,
as a whole, not yet reached a sufficiently high level of development to
appreciate the true meaning and purpose of trade unionism, and that the
introduction of trade unions at too early a stage might harm, rather than
advance, the interests of Native workers. In this regard Respondent
draws attention to developments in other African territories where it
has been sought to introduce trade unionism among people not sufficiently
mature to ensure its proper operation. Thus it was stated in 1964 of trade
unions in Zambia (formerly Northem Rhodesia):
"Trade Unionism in Northern Rhodesia is reaching farcical pro
portions. Almost every day there are reports of a new trade union
which has just been formed with 15, 20 or 25 members. It takes a few
weeks, and these unions are dead, but there are always others to
replace them.
The majority of industries have two or even three splinter unions,
constantly at loggerheads.
At present, registered organizations include a Charcoal Burners'
Union, a Fishenm:n's Union, Hunters' Union, two Farming Unions
and two Mineworkers' Unions, constantly at each other's throats.
There was even a short-lived Loafers' Association-a union for
the unemployed.
Official parent body of trade unions in Northern Rhodesia is the
United Trades Union Congress, which claims 15 affiliated and more
than too,ooo members. But the UTUC, as it is known, certainly
does not present a united front for affiliate members to follow.
Since 1961, this Congrcss has been split into a number of factions,
each claiming the right to lead the trade union movement in North
em Rhodesia. These arguments reached such ridiculous proportions
that at the end of May this year, the executive leaders fired each
other and claimed leadership ... 2"
The same source quotes a K itwe newspaper to the following effect in
regard to conditions in the same country:
"There is hardly one trade union that has any sense of direction.
Nearly all of them are going round in little cirdes with their eyes
fixed firmly on the ground.
There is hardly a trade union that is working for the workers.
1iuch more time is spent in jockeying for top position.
Leaders of rival unions spend most of their time condemning each
other. As a result they cannot show a united front. Yet, they want
respect from their members and expect employers to agree to their
daims.
The trade unions have been and are being led largely by a bunch
of disorganised leaders, some of them self-styled. This cannot
continue 2."
Dr. V. L. Allen, who was commissioned by the International Labour
i IV, p.4~4.
z The Natal 1lfercury20 Aug. 1964. REJOI:NDER OF SOUTH AFRICA 297
Organisation to make an intensive study of trade unionism in East
Africain I959, made the following observations after he had completed
his investigations:
"They [the trade unions] are trying ito practise internai democ
racy-which requires an informed as well as Iiterate membership
with workers who are illiterate. Little wonder that so many of the
East African unions have large paper memberships and few regular
dues-payers; that the officials are often overwhehned by the size of
their tasks and are preoccupied with the task of balancing accounts
which will not balance; and that the financia.l position of so many
unions is so prccarious that they cannot themselves afford to pay
the salaries of fulltime officiaisor even the costs of simple administra
tion, and are incapable of withstanding the shock of strikcs or lesser
strains 1.''
42. It may be significant, also, that in the Applicant States trade
unionism does not seem to have advanced beyond the infancy stage
no doubt not because of any disinclination to promote the welfare of
workers, but probably because of prevailing standards and levels of
development. Thus it has been said in regard to Liberia:
"... Liberia cannot yet be said to have a genuine trade union
movement ... In general, the workers of the country-particularly
those from the tribal areas-are neither interested in trade unions
nor do they possess the skill and experience needed for organizing
them 2."
And:
"No active trade unions are in existence in Liberia ... In the past,
the two principal labor union movements in Liberia were initiated
by the Labour Union of Liberia, founded in I949, and the Labor
Congress of Liberia, founded in 1954. The two movcments had,
successively, the endorsement of President Tubman, but neither
had the personnel or financial resources to organize Liberian workers
effectively. The President General of the Labor Congress of Liberia
left the country early in I958, leaving the labor movement dormant 3.''
In regard to Ethiopia the position has been stated as follows:
"Labor unions as such do not exist in Ethiopia proper with the
exception of an organization of workers of the Franco-Ethiopian
Railway which has an estimated membership of 2,500, mostly in and
around Diredawa 4."
And:
"Actually, however, the government has discouraged labor
organization and generally has been prompt in subduing strikes by
military or police force. The only formai labor organization in
Ethiopia proper is the Ethiopian Railroad Workers' Syndicate,
whose limited goals are confined mainly to welfare matters '.''
1 Allen, V. L., "TradeUnionism in East Africa", inFree Labour World, May 1962,
pp. 164-156, atp. 165.
2 Taylor. W. C., The FfrestontJ Operations in LibeYia(1956),pp. 35-36.
3 U.S. Department of Labor. Labor in Liberia (May 1960), pp. 15-16.
+ United States Department of Commerce, ''Establishinga Business in Ethiopia",
World Trade Information Service-Economie Reports, Part I, No. 59-16, p. 7.
' Lipsky, G. A., fühiopia: Its People, Its Society.Its Culture (1962), p. 280. SOUTH WEST AFRICA
43. Applicants also charge Respondent with having left "[t]he con
ditions of the employment of 'Natives' ... entirely to the jud1ment and
management of members of the 'European' group ... " . This charge is
presumably based on the factual situation that a European inspector
represents the interests of Native employees in proceedings of Conciliation
Boards, the members of which can be only European or Coloured persons.
This would explain Applicants' allegation that-
"[t]he terms and conditions of work of 'Natives' are left to the dis
cretion of officials of a government in which such workers have no
representation. and to conciliation by Conciliation Boards composed
of persons drawn entirely from 'groups' which Respondent's basic
policy distinguishes and separates from 'groups' of which 'Native'
workers are members 1".
2
Respondent has already explained why the present system is con
sidered more beneficial to Native workers than a system of trade
unionism would be at present, and it is not necessary to repeat what has
been said in this regard.
Respondent is, however, not opposed to allowing Native employees a
greater degree of participation in proceedings of Conciliation Boards,
should it be in their interests to do so. In South Africa legislation intro
duced in 1953 ensures that the interests of Native workers are adequately
represented in proceedings of Industrial Councils. The Native Labour
(Settlement of Disputes) Act 3of that year made provision for the creation
of a Central Native Labour Board, Regional Native Labour Committees
and Native Works Committees. The latter Committees are elected bv
Native employees, and whenever a labour dispute arises in an area where
a \Vorks Committee has been established, the Regional Committee for
the areas must consult such Works Committee in regard to the dispute.
If the Regional Committee, with the assistance of a Native Labour Officer,
cannot effect a settlement of the dispute, the matter is referred to the
Central Native Labour Board. If the Board also fails to settle the dispute
the matter is reported to the Minister of Labour, who may refer it to the
\Vage Board for recommendation.
lt is also pointed out that, whenever an Industrial Council proposes to
determine conditions of employment to be i4corporated in an agreement
under the Industrial Conciliation Act in respect of an industry, trade or
occupation in an area where Natives are employed, a representative of
the Native Labour Board and the chairman of the Regional Committee
of the area concerned are entitled to attend the meeting of the Council
and to take part in the proceedings.
Respondent is at present giving consideration to the question of
enacting for the Territory legislation similar to the South African Native
Labour (Settlement of Disputes) Act. In Respondent's view such legisla-
1 IV, p. 424.
2 III, pp. 91-98 andvide para. 39,supra.
3 Act No. 48 of 1953 in Statutes of the Union of South Ajrica I953,pp. 276-326,
as amended by Act No. 59 of 1955 in Statu/es of the Union of South Africa z955,
Part II {Nos. 56-70) and Act No. 28 of 1956 inStatu/es of the Union of South Africa
r956, Part I (Nos. 1-47), pp. 519-753.
• Act No. 28 of 1956 in Statutes of the Union of South Africa z956,Part I {Nos.
1-47). pp. 519-753. REJOINDER OF SOUTH AFRICA
299
tion will at present serve the interests of Native labourers far better than
would the formal recognition of Native trade unions.
44. Applicants have proceedêd from the premise that the Native
workers of the Territory have reached such a degree of development
that they can to advantage take part in organized trade unionism.
Applicants have, however, not fumished proof to substantiate their
premise, or to show that, in the present circumstances, "[a]dministrative
action by government officiais can be no substitute for collective bar-
garnmg... )J 1.
45. In view of what has been stated, Respondent submits that Appli
cants have failed to show that the policy underlying the Wage and Indus
trial Conciliation Ordinance "is repugnant to the positive obligations
1
contained in Article 2 of the Mandate" .On the contrary, this policy was
conceived and in fact serves to promote the interests and progress of ail
the inhabitants of the Territory.
t IV,p. 424. CHAPTER V
CONCLUSION
r. In concluding the section of the Reply dealing with the economic
aspect, Applicants say that they have demonstrated that-
"... Respondent's policy of economic apartheid is inconsistent with
the Mandate in that it degrades and /rostrales what Respondent is
obligedto promote 1". (ltalics added save for the word "apartheid".)
And they say that such a policy is-
"... inherently inconsistent by creating an endless series of circu
larities, which, interwoven with the educational, political, and civil
policies of apartheid, aggravate the conditions asserted as justifying
the policies themselves 1".
In effect, therefore, Applicants daim to have established the charge
which they originally made in the Memorials and repeat in their intro
duction to the economic aspect in the Reply, viz., that Respondent's
economic policies and practices are inspired by improper motives 2•
Respondent's reply to this contention is that the expositions furnished
by it in the Counter-Memorial and in this Rejoinder with regard to its
policy in general, and with regard to the specific practices and measures
which fonn the subject-matter of Applicants' charge, effectively dispel
any suggestion that in its administration of the Territory it is actuated by
irnproper motives with respect to the Native inhabitants-the section of
the population to which Applicants refer in particularizing the substance
of their charge -or with respect to any other population group.
The high-water mark of the factual averments established by Appli
cants is that implementation of the policy of separate development bas
the practical effect that in certain respects members of the different
population groupsarc subject to particular disabilities and disadvantages.
This, however, cannot lcad to the inference that Respondent's policies and
practices are inspired by improper motives. Respondent has not con
tended that the system of separate development operates without dis
advantages. Indeed, Respondent bas itself drawn attention to certain
disadvantages 4.But, at the same time, Respondent bas advanced the
contention, which is repeated here, that the issue is not whether, dis
abilities and disadvantages exist, but whether from the factual situation
as a whole, seen in the light of Respondent's declared policy and the
steps which have been taken in effectuation thereof, the conclusion can
be drawn that Respondent's conduct is tainted with mala /ides. It is sub
mitted that, far from that being the case, the record indeed establishes
the very opposite. Respondent has demonstrated, not only by reference
IIV, p. 424.
i Vide Chap. I, paras. 1-5, supra.
3 Ibid., paras1 and 5, supra.
4 Vide sec. E, supra. REJOINDER OF SOUTH AFRICA 301
toits declared intention, but also by an exposition of the factual situation,
that its policy of separate development is directed at the advancement
and ultimate self-realization of each of the population groups of the
Territory in all spheres-political, economic and social-on a basis of
territorial separation. It is Respondent's bona fide belief that such a
policy offers the only practical and permanent solution to the problem
which arises from the fact that there are in the Territory various popu
lation groups of different ethnie origin, with different cultures, languages,
Ievels of development and habits of thought. It is this basic situation
which makes it inevitable that some disadvantages must attach to any
policy directed at promotion to the utmost of the well-being and progress
of all concemed. The alternative course suggested by Applicants, viz.,
the total integration of the different groups in all spheres, as if they
constituted a homogeneous society, is in Respondent's opinion wholly
unrealistic: it would not only lead to endless animosity and strife, but
must eventually result in the dominance of majority groups over others,
and probably also in the withdrawal of the more advanced group, the
European group, from the Territory. ·
In Respondent's submission nothing has been advanced by Applicants
which could persuade any person, viewing the situation objectively and
without bias, that, on the whole, the course advocated by Applicants is
preferable to the course followed by Respondent. Indeed, the very
evidence tendered by Applicants in concluding their treatment of the
economic aspect-which evidence will be dcalt with in the succeeding
paragraphs-reflects the type of proof fumished by them throughout the
piece, viz., expressions of opinion by persons who do not have a proper
understanding or appreciation of Respondent's policies, or who, in their
evaluation thereof, approach the subject with predetermined bias, or who
are prepared to express condemnation mcrcly by looking at particular,
and sometimes minor, aspects of apparent disadvantage without regard
to all facets of administration and without regard to the broad objectives
involved.
2. As critical comment on Respondent's economic policy Applicants
cite a passage from a speech made in 1963 by Mr. S. G. Menell, Chairman
of the Anglo-Transvaal Consolidated lnvestment Company Limited, in
reviewing the said company's activities over the previous financial year
in which he dealt, inter alia, with the problem of meeting a shortage of
skillèd labour in industry in South Africa. For present purposes it is
unnecessary to enter into a detailed discussion of everything said by
Mr. Menell on the subject. Apart from what is cited in the Reply, he,
inter alia, drew attention to the Govemment's policies of encouraging
immigration of skilled workers from other countries and training of semi
skilled South African workers, which he described as "desirable policies
being energetically pursued by the Govemment" 1, and he considered
that "industrialists, must find a solution by applying fresh and energetic
thinking to this problem" 1. What is important for present purposes is
that Mr. Menell immediately thereafter proceeded, in the part of bis
statement quoted by Applicants, to criticize present economic policies
in South Africa on the ground that an abundance of unskilled labour
and the limited application of·methods of collective bargaining in South
Africa "work against changes in present employment policies" and
1 Financial Mail, 13 Dec. 1963, p. 887.302 SOUTH WEST AFRICA
"tends to restrict the wage-eaming and spending power of the community
and thus its economic growth" 1.
This criticism is voiced by Mr. Menell without apparently giving
thought to the considerations which gave rise to such policies. Evidence
of this nature tendered by Applicants can, in Respondent's submission,
have no value in the present enquiry.
3. Another "noted authority" cited by Applicants is Professor de
Kiewiet, whose views are also referred to elsewhere in the section of the
Reply dealing with the economic aspect 2•
Respondent has already demonstrated 3 that Professor de Kiewiet's
condemnatory statements regarding all aspects of policy in South Africa
do not arise from objective thought but are based on a misconception of
Respondent's policies, and are clearly inspired by predetermined bias.
No purpose would therefore be served by giving consideration to his
sweeping and emotionally charged statement cited by Applicants in the
present context save to say that it has no factual basis.
4. In view of what has been stated in this and the aforegoing chapters,
Respondent denies Applicants' charge that "[apartheid] reflects and
assures domination of the many by the few, of the underprivileged by
4
the privileged, of the ward by the guardian" • Upon an objective
appraisal it will be clear that Respondent's policies are indeed aimed at
the very opposite end, viz., that no section of the community, be it the
majority or the minority, should stand in a position of dominance over
the others, but that each section or group should develop on a basis of
territorial separation to ultimate self-realization.
Itsuffices to say that Respondent denies Applicants' concluding charge
that "[a]partheid is based upon a fundamentally unacceptable series of
major premises, which are wholly incompatible with the spirit and the
letter of Article 22 of the Covenant and Article 2 of the Mandate" 4.
and denies that it has in any way violated its obligations under the said
Articles.
1Financial Mail, l3 Dec. 1963, p. 887, and vide also IV,p. 425.
z IV, pp. 406 and 413.
3 Vide Chap. II, paras. 9 and 93-94, supra.
4 IV, p. 425. Section I
Security of the Pcrson, Rights of Residence and
Frcedom of Movcment
CHAPTER I
INTRODUCTION
r. This section of the Rejoinder deals with Applicants' charges in
part 4 of Chapter IV B.3.c of the Reply conceming Security of thePerson, •
Rightsof Residence and Freedomof Movement.
2. In the Memorials Applicants purported to demonstrate that certain
statutory provisions and administrative policies and practices relative
to the said matters create "... a pattern of comprehensive, pervasive
and tight control over the lives of the 'Native' population of the Terri
tory" 1. After dealing separately with each of the said three subjects,
Applicants advanced the general conclusion that the measures concemed
were arbit2ary and deliberatelyoppressive of the Native inhabitants of the
Territory • In summarizing the factual situation as described by them
Applicants stated that Respondent-
"... ha[d] given consideration solely to the convenience or advantage
of the Mandatory government and of the 'European' citizens and
residents of the Territory 3",
and
"... ha[d] followed a systematic course of positive action which
thwart[ed] the well-being, inhibit[ed] the social progress and frus
trate[d] the development of the great majority of the population of
the Territory in vital and fondamental aspects of their lives 4".
3. In the Counter-i\femorial Respondent devoted a separate chapter
to each of the subjects here under consideration 5,and dealt systematic
ally with each measure mentioned by Applicants, with reference to its
content and the historical, ethnological and socio-economic factors that
gave rise toit. Respondent thus demonstrated, in its submission conclu
sively, that the measures concerned were neither arbitrary nor oppressive,
as alleged by Applicants, but, on the contrary, were aimed at the pro
motion of the well-being and progress of ail the inhabitants of the Terri
tory, including the Natives, and indeed have had that effect.
4. In the Reply Applicants do not rest their case solely on the charge
advanced in the Memorials, but, in conformity with the attitude adopted
by them relative to other aspects of government 6,they now seek to rely
1 l,p. l34,
2 ibid.,pp. l5l-l52,
3 ibid.,p. l5I.
4
5 ibid .p. 152.
Asto Security of the Person, vide Ill,pp. l97-230; as to Rights of Residence,
ibid., pp. 231-297; as to Freedom of Movement, ibid., pp. 298-338.
6 Vide sec. B, paras. 7-rn.supra. SOUTH WEST AFRICA
also on a new cause of action. The Iegal basis of their case as now pre
sented appears clearly from their "Legal Conclusions" 1 read with their
preceding "Statement of Law" 2•
In the first place, Applicants "reaffirm the Legal Conclusions set forth
1
in the Memorials" • ln effect, therefore, Applicants repeat their charge
of unfair discrimination against, and oppressive treatment of, a particular
population group in the Tcrritory, viz., the Native inhabitants 3•
Second]X,, Applicants now contend that Respondent's policies and
practices 'in respect of security, equal rights and opportunities in resp(..,çt
of home and residence and protection of basic human rights"-
"... constitute measures of implementation of the policy of apart
heid, which ùi itself violates Article 2, paragraph 2 of the Mandate,
by reason of the fact that it allots the status, rights, dulies, opportunities
and burdens of the population on the basis of membership in a 'group',
or colof'r, rather than on the basis of individual quality, capacity or
potential 1." (Italics added.)
Thus Applicants apply also to this aspect of the case their newly
formulated JegaJ.nonn of "non-discrimination or non-separation", in
accordance with which it is contended that any differentiation on the
basis of membership in a group, class or race is in itself a violation of
Respondent's obligations to promote the well-being and progress of the
inhabitants of the Territory 4.
5. Respondent bas already dernonstrated, conclusively it is submitted,
that no such legal norm is embodied in the Mandate, or is otherwise
binding on Respondent 5• And inasmuch as Applicants do not in the
present context advance any inclependent or further argument in support
of the existence of the alleged norm, it is unnecessary to add anything
to what Respondent bas already stated. It rnay, however, be convenient
at this stage to refer to certain statements made by Applicants in applying
the said norm to the factual situation regarding the aspects of the case
now under consideration. This is done in the following paragraphs.
6. In the first paragraph of the section of the Reply under considera-
tion Applicants say that in the Memorials they-
"... summarize[d] the interlocking statutes, regulations, decrees,
orders and administrative policies and practices by which inhabi
tants of the Territory, solely on the basis of their 'group', tribe or
color, are subject to restrictions on their security, rights of residence
and freedorn of movement 6".
And they say further that-
"Respondent admits the decisively relevant fact that such legis
lative and administrative policies and practices are based upon the
pervasive prernise of differentiation according to 'group' 6."
While it is true that many of the measures referred to by Applicants
in the Memorials with regard to Secu,ity of the Persan, Rights of Residence
1 IV, p. 475.
i Ibid., pp. 473-475.
' Vide para. 2, sup,-a.
• Ibid.,and sec. A, paras. 7-10,supra.
5 Vide sec.B, supra.
' IV,p. 458. REJOINDER OF SOUTH AFRICA
305
and Freedom of Movement, differentiate on the basis of membership in
a group, this, as has been shown in the Counter-Memorial 1, and as will
2
again be pointed out in the next succeeding chapter , is not true of all
such measures.
7. Another statement repeatedly made in the section of the Reply
under consideration is that Respondent's measures and policies in ques
tion involve that "... ail 'Natives' are to be treated alike, whatever their
individual merit, capacity or potential" 3 (italics added); that all inhabi
tants are classified "... on the basis of 'group' or tribe, ignoring indivi
dual merit or need 4" (italics added); and that "... individuals are cate
5
gorized and treated solely as members of a 'group', notas persans" • (Ita
lics added.)
The italicized words in the above passages misrepresent the purpose
and effect of Respondent's policies and measures under discussion, even
in so far assuch policies and measures do differentiate on a basis of group
or colour. The exposition in the Counter-i\:lemorial has already indicated
the large measure of differentiation as between individuals of the same
group or colour actually provided for and practised in pursuance of the
said policies and measures-exactly by reason of differences in individual
6
"rnerit", "capacity", "potential", "need" or circurnstances •Applicants
have chosen to ignore this aspect which is again adverted to in the suc
ceeding chapters 7• In this connection it is also apposite to refer to what
has already been stated relative to the objectives of Respondent's policy
of separate development, viz., that the very separation of the different
population groups on a territorial basis provides for opportunities which
will enable the rnembers of each group to progress in their own .areas
without restriction and in accordance with individual rnerit, capacity and
potential s.
It follows that Respondent's policy, viewed in its entirety, is actually
directed at the very result desired by Applicants.
8. In addition to their Iegal norm of "non-discrimination or non-
9
separation" , Applicants also rely on-
"... a generally accepted current international norm or standard,
according to which Respondent's obligations should be rneasured
and, as thus rneasurcd, should be adjudged by this honourable
Court tq be incompatible with Respondent's obligations nnder the
Mandate 10".
As already indicated elscwhere in this Rejoinder 11, the subject-rnatter
discussed in the section of the Reply at present under consideration is a
particular sphere in which Applicants seek to apply further undefined
1
Vide, c.g.• III, pp. 197-198, regarding the Vagrancy Proclama~ion; ibid.,
p. 225, regarding the Undesirables Removal Proclamation.
z Vide Chap. II, para. 6, fo/ra.
' IV, p. 468.
• Ibid.,p. 469.
s Ibid., p. 470.
' Vide, e.g..III,pp. 315, 319-320 and 325.
7 Vide Chap. IV. paras. rg-20 and 30, and Chap. V. para. 3, infra.
8 Vide sec.'E, supra,
9 Vide para. 4, supra.
10
IV, p. 475.
1l Vide sec. C, para. 32, supra.306 SOUTH WEST AFRICA
"norms and standards" according to which, in their submission, Re
spondent's obligations should be measured.
For their contention that such alleged "norms and standards" exist in
relation to the aspects of government under discussion, Applicants rely
on "[t]he findings and conclusions of the Committee on South West
Africa and of the I.L.O. Ad Hoc Committee on Forced Labour" 1•In this
regard Applicants make the following averments in their Statement of
Law:
"Periodic condemnation by the Committee of the limitations on
security, rights of residence, and freedom of movement in the Ter
ritory delineates the standard established by the United Nations
with regard thereto 2" (italics added),
and
"[c]urrent standards in this area have similarly been established by
the International Labour Organisation 3". (Italics added.)
9. Respondent has already demonstrated that the views of persons
and bodies such as the Committee on South West Africa and the I.L.O.
Ad Hoc Committee on Forced Labour cannot serve to introduce into the
Mandate objective "norms" governing the exercise of Respondent's
powers or defining Respondent's obligations under Article 2 of the
Mandate 4, but can at most be relevant considerations in an enquiry
whether Respondent's policies and measures are motivated by good or
bad faith 5• Respondent will in the succeeding paragraphs deal briefly
with the findings and conclusions of the said Committees.
ro. The Committee on South West Africa essayed a purported evalua
tion of facts and conditions, including laws and their effects, in South
West Africa, and applied toits "findings" in this regard what it termed
6
"principles and purposes of the mandates system" • Itshould be observed,
however, that the Committee did not base its findings on an objective
evaluation of Respondent's approach, policy or conduct. In fact, whilst
referring to a number of laws, the Committee made no attempt to ascer
tain or examine the historical and socio-economic circumstances which
gave rise to their enactment. Moreover, the Committee's conclusions were
based in part on information contained in petitions-the unreliability
of which has been demonstrated in the Counter-Memorial 7-without
it being in possession of information, argument or the like fumished by
Respondent.
II. It may also be pointed out that the Committee's exposition of the
relevant legislation is far from accurate. It suffices to refer in this regard
to the following examples of statements contained in the 1958 report of
the Committee 8 :
(a) The Committee states in the report that in urban areas any Native
i IV, p. 475.
2 Ibid., p473.
3 Ibid., p474.
• Vide sec.C, paras. 33-37, supra.
5 Ibid., paras.38-39.
6 G.A ., O.R., Ninth Sess., SupplNo. I4 (A/2666), p. 25,as quoted at IV, p. 473.
Vide alsoG.A., O.R., Thirteenlh Sess., Suppl.No. rz (A/3906), p. 23.
7IV, pp. 1-46.
8G.A., 0.R., Thirteenth Sess., Suppl.No. 12 (A/3906). REJOINDER OF SOUTH AFRICA 307
who has insufficient honest means of support or is leading an idle
existence may be forced to take up employment on essential pub
lic works or services either inside or outside the urban areas 1. As
has been pointed out 2, however, a Native may be declared an
idle person only if he is habitually unemployed and has no sufficient
honest means of support. Furthermore, no idle Native may be
forced to take up employment 3.
(b) The Committee states that Native men living in an urban area
are subject to ejection from such an area if unemployed for one
month 1• This statement is completcly unfouncled.
(c) According to the Committee a Native cntcring an urban area
requires a permit to seek work, valid for a limited period, during
1
which he must either find work or leavc the area .As will be pointed
out\ there is no limit to the numbcr of consecutive permits that
may be issued to any particular Native, and if there is a reasonable
chance that a Native will find employment, a new permit will be
issued as a matter of course.
12. Since the Committee did not have the opportunity, as this honour
able Court has, of full and unbiasscd investigation of the issues inquestion,
upon the basis of information and argument supplied by both sicles,
Respondent cannot understand of what assistance the Committee's
fmdings and conclusions could be to this Court. Yet Applicants suggest
that the conclusions of the Committee, based as they are on an entirely
one-sided and inaccurate appraisal of facts, are to be regarded as confirm
ing "a generally accepted current international norm or standard,
according to which Respondent's obligations should be measured" 5.
This is but another example of Applicants' attempt, already referred to 6,
to persuade this honourable Court to abrogate its judicial fonction and to
act as·a rubber stamp to decisions, views and desires of political bodies.
Surely, it is peculiarly the function of this Court to form its own opinion
as to whether Respondent has complied with the obligations created by
the Mandate.
13. The l.L.O. Ad Hoc Committee on Forced Labour was concemed
with legislative measures operating in, inter alia, South West Africa. It
did not, however, attempt an investigation into factual circumstances in
the Territory, but contented itself with saying that certain measures
"may" or "might" result in indirect economic compulsion, if abused 7•
The Committee did not find that such measures are in /act used to exert
economic pressure upon the Native population or to create conditions
of indirect compulsion for economic purposes. In brief, neither the
Committee nor Applicants have attempted to show that such measures
are abused in practice. ,
14- In the result Respondent submits that no significance can be
attached to, and no reliance placed on, the fmdings and conclusions
· referred to by Applicants, and that the suggestion that they are to be
1 G.A ., O.R., Thirteenth Sess., Suppl. r2.(A/3906), p. 2'~.
2 Ill, pp215-216 and vide Chap. V, para. 8, infra.
~ Ibid., p. 23.
• Vide Chap. IV, para. 19, infra.
~ IV, P- 475-
6 Vide sec.A, para. 25,supra.
1 Vide IV, pp. 432 and 434.308 SOUTH WEST AFRICA
regarded as constituting or confimüng any "norms" or "standards"
according to which Respondent's obligations can be measured, is entirely
without substance.
I5. There remains to be considered Applicants' allegations regarding
arbitrary and deliberately oppressive conduct on the part of Respondent
relative to the Native inhabitants of the Territory 1. Before proceeding
to do so, Respondent makes certain general observations in the following
paragraphs.
I6. In the part of the Reply under consideration Applicants include
what they term a "Relevant Historical Resumé". Inasmuch as the sub
ject-matter thereof, and the conclusions sought to be drawn by Applicants
from their version of historical events, are concemed not only with
security of the person, rights of residence and freedom of movement,
but have a bearing on aU their char~es relative to alleged violations of
Article 2 of the Mandate, the said "h1storical resumé" is dealt with in an
earlier section of this Part of the Rejoinder which is devoted to a general
treatment of Respondent's policics 2•
r7. In the treatment of the factual situation by Applicants in the
Reply the three subjects under discussion, viz., security of the person,
rights of residence and freedom of movement, are not kept apart, as
was the case in the Memorials 3.but are linked up with one another,
though some points made by Applicants pertain more specifically to
one subject or the other. In the proccss no systematic reply is given to
the subject-matter of the Counter-Memorial, but a somewhat haphazard
collection of assertions, inferences, reasoning and suggestions is offered,
whereby Applicants' original lines of attack are in some instances aban
doned, and in other instances altered or replaced by others. By reason of
this state of affairs it will not be convenient to adhere in this section of
the Rejoinder strictly to the order in which Applicants adduce their
arguments in the Reply. Respondent will in the next succeeding chapter
deal with the general nature and effect of the allegations made by Appli
cants in the Reply. Thereafter Chapters III-V will respectively be devoted
to a treatment of the following subjects:
Respondent's basic reserve policy;
Provisions implementing and supplementing the reserve policy;
Measures not related to the reserve policy.
In this treatment an indication will be given of the extent to which the
case, as now adduced, differs from that originally advanced in the l\Ie
morials or seeks to avoicl Respondent's case as set out in the Counter
Memorial. Respondent will endeavour to show that the supporting
material offered by Applicants largely rests on false premises, wrong
facts, wrong rendering of the purport and effect of legislation, distortion
or quotation of statements out of context, and the like, and that such
-~aterial falls far short of establishing Applicants' contentions. .
· A final chapter, Chapter VI, will contain Respondent's conclusion on
this part of the case.
1 Vide para.2, supra.
% Vide sec. E, Chap. V, supra, and Anncx A, Vol. I, supra.
' I,pp. 144-151. CHAPTER Il
GENERAL NATURE AND EFFECT OF APPLICANTS'
ALLEGATIONS
A. Introductory
I. ln the preceding chapter reference was made to the manner in
which Applicants present their case in the Reply relative to the subjects
under consideration 1. ln order to facilitate Respondent's treatment of
these subjects in the Rejoinder this chapter is devoted to an analysis of
the nature and effect of the allegations made by Applicants regarding
measures which affect security of the person, rights of residence and free
dom of movement. This will be donc by swnmarizing the case sought to
be made în the Memorials, Respondent's answer thereto in the Counter
Memorial and Applicants' reaction thereto in the Reply.
B. The Memorials
2. In the l\Iernorials Applicants did no more than refer to certain
legîslative measures conceming:
As regards Rights of Residence
(a) The establishment and development of Native reserves and urban
residential areas 2,
(b) Restrictions upon the residence of
(i) northem Natives in the Police Zone 3;
(ii) Natives generally in and around certain urban areas "·
As regards Freedom of M ovement
(a) The control of the movement of Natives
{i) in areas occupied by the White group 5 ;
6
(ii) into urban and proclaimed areas ;
(iii) into the Police Zone from the northem territories 6;
(b) Egress from and entry into the Territory 6;
(c) Curfew restrictions in some urban areas 6•
As regards Security o/ the Person
Powers of arrest and of making certain corrective or restrictive orders
relevant to problems of-
(a) Vagrancy and idleness 7,
(b) Undesirable conduct in certain Native reserves 8;
1 Chap. I, para. 4, sup,,a.
2 1, pp. 146-147.
3 Ibid., p. x47.
• Ibid., pp. 147-148.
5 Ibid .• p.148.
6 Jàid., p. x49.
1
I, pp. 144 and 145.
8 Ibid.,p. I45.3ro SOUTH WEST AFRICA
(c) Undesirable conduct by foreigners in the Territory 1;
(d) Infringements of the pass laws 2•
As has already been pointed out 3, Applicants in the Memorials com
plained that the restrictions affecting Natives were arbitrary and dis
criminafory. As regards the latter aspect Applicants. from the mere
existence of the restrictive legislative provisions concerned, and without
any inquiry into the full context of the legislation or the practical and
circumstantial background thereto, sought to draw the inference that
in enacting the said legislation Respondent gave consideration "solely
to the convenience or advantage of the Mandatory government and of
the 'European' citizens" \ and deliberately and systematically oppressed
the Natives 5.
C. The Counter-Memorial
3. Respondent, in the Counter-Memorial, apart from correcting
inaccuracies in Applicants' presentation of the facts, dealt with the con
text, background, practical circumstances and objectives of the legislation
in question, thereby demonstrating that Applicants' charges regarding
arbitrary and deliberately oppressive conduct relative to the Natives were
unfounded. ln particular, Respondent indicated that the laws on which
Applicants relied regarding Rights of Residence all fell-
"... within the framework of Respondent's policy of making pro
vision for the separate development of the various population
groups, conceived by Respondent as the best and probably the only
effective method of achieving the ideals of the i\Iandate in the pecu
liar circumstances of South \Vest Africa 6".
Accordingly, under that head a full exposition was givcn of Respon
dent's reserve policy whereby, in various parts of the Territory, prefer
cnce and protection ara given to different groups 7•Respondent demons
trated that the measures complained of by Applicants as restricting the
rights of residence of Natives in certain parts of the Terri tory were a natu
ral corollary of the basic reserve policy, more particularly opcrating as a
counterpart to reciprocal restrictions upon Europeans and other non
Natives as regards residence in Native reserves and urban residential
areas. In so far as the restrictions on the residence of northem Natives
in the Police Zone were concerned, thcse were demonstrn.ted to accord
with the wishes of the tribal authorities in the northem territories 8•
And as regards control of the influx of Natives into urban areas, Re
spondent fully explained the need for and advantages of the system 9•
4. In regard to Freedom of A1ovement a full exposition was given
covering ail aspects of Respondent's pass or permit system. Respondent
demonstrated that, as in the case of Rights of Residence, a system of
' I, pp. 145-r46.
2 Ibid.,p. 145.
3 Vide Chap. I, para. 2, supra,
• I, p. 151.
5 ibid., pp. 151-152.
6 Ill, p.232 (para. 4).
iibid., pp. 232-266.
8 Ibid.,pp. 276-277.
9 Ibid., pp. 277-287. REJOINDER OF SOUTH AFRICA
3II
reciprocal restriction and control was found to be necessary in order
to give effect toits basic reserve policy, and that the position was notas
represented in the l\lemorials, viz., a system of restrictions affecting only
Natives. Accordingly, Europeans and other non-Natives need permits
to enter Native reserves and urban residential areas, while, on the other
hand, Natives need passes to travel away from their ordinary places of
residence or employment in the Police Zone, or to enter the Police Zone
from the northem territories 1•
5. Applicants had, in respect of Freedom of Movement, also complained
regarding the control of entry of Natives into urban and proclaimed
areas, a matter which Respondent dealt with under Rights of Residence 2•
Applicants had further objected to curfew restrictions upon Natives
in certain White urban areas. Respondent demonstrated in the Counter
Memorial that reciprocal, and even more restrictive, provisions apply
to non-Natives in Native urban residential areas. Respondent also
showed that the curfew regulations applicable to Natives were except
îonal measures, destined to fall away with rising standards of education
3
and development on the part of the Native groups •
6. In regard to Security of the Person only some of the provisions
complained of by Applicants were directly concerned with the basic
policy of providing separate areas for the va.rio~ population groups.
One of these was the provision for arrest and attendant action in cases
of infringements of the pass laws. Respondent demonstrated that such a
provision was necessary to prevent the pass system from being rendered
nugatory, and that there was ample provision to prevent hardship and
abuse 4. Respondent further pointed out that the deportation Iaw re
ferred to by Applicants applied only to foreigners 5, and that provisions
for the removal of undesirable persans from the reserves applied only to
certain reserves in the Police Zone and were conceived primarily to safe
guard the interests of the inhabitants of those reserves 6•
As regards legislation pertaining to vagrancy and idleness, Respondent
demonstrated that the Vagrancy Proclamation does not distinguish on
the basis of race, colour or group at all, but applies to members of ail
the population groups 7• An exposition was given of the historical back
ground to, and the need for, the Proclamation; of similar legislation in a
large numbcr of other countries, and of the necessity for powers of arrest,
entry and search to render the legislation effective. Reference was also
made to the fact that there had been relatively few prosecutions in recent
years, and to the fact that the Permanent Mandates Commission was
fully awarc of the provisions of the Proclamation and never objected there
to 8• Respondent further demonstrated that the special provisions per
taining to idle persons in reserves and urban areas supplement the
Vagrancy Proclamation by dealing specially with the problems of idle
1 III,pp. 306-319 and 322-323.
2 Ibid.,pp. 277-292 and 323-327.
! Ibid.,pp. 327-329.
• Ibid., p. 317.
s Ibid., p. 226.
1 Ibid., pp. 222-224.
Ibid .p. 198.
8 Ibid.,pp. 199-214.312 SOUTH WEST AFRICA
Natives in such areas, and that the said provisions also render it un
necessary for idle Natives to be dealt with as criminal offenders 1.
D. The Reply
7. In the Reply Applicants for the most part completely ignore the
aiorementioned expositions and explanations given in the Counter
Memorial.
In regard to Rights of Residence, no further reference is made in the
Reply to the powers to set aside and develop Native reserves and areas 2•
In fact, save for attempting to show that the Permanent Mandates Com
mission did not approve of Respondent's basic resen•e policy 3, Appli
cants' only answer to Respondent's full exposition in the Counter
Memorial regarding the need for and advantages of the said policy, is the
allegation that this policy confines Natives "to the poorest areas of the
Territory" 4.
As regards restrictions on the residence of northem Natives in the
Police Zone and of Natives generally in and around urban areas, as well
as the measures relating to Freedom of Movement, Applicants, while
virtually ignoring Respondent's relevant expositions, persist in con
tending, purely by way of inference from the mere existence of the pro
visions in question, that such provisions serve to kecp Natives and Euro
peans apart "except for purposes of migratory labour on behalf of 'Euro
pean' employers" 4_
8. Applicants' main charges in the Memorials relative to Security of
the Person were that the measures concerned subject Natives "to arbi
trary arrest, often without any warrant" 5, and that powers to make
arrests "may be exercised by designated persons at their largely un
5
controlled discretion" • In the Reply Applicants do not even attempt to
deal with Respondent's answer in the Counter-Memorial 6, and in fact
make no furthcr reference to the above charges save for a statemcnt in a
footnote that-
"[d]iscretion in the exercise of immensely important powers con
ceming the welfare of the indigenous inhabitants is also the essence
of Applicants' complaint conŒming Section I of Proclamation
No. 15of 1928 (S.W.A.) ... , and the essence of the complaint regard
7
ing the power of arrest under the vagrancy and pass laws ".
This statement, of course, does not take the matter any further and it is
consequently unnecessary to add anything to what was stated in the
8
Counter-Memorial regarding the said charges • It may be pointed out,
however, that in the Reply no reliance is placed on, and no further
reference is made to, the leg1slation in terms of which undesirable persons
may be removed from the Territory 9• lt would therefore appear that
1 III.pp. 214-22I.
2 Ibid .pp. 266-275.
3 IV, p.466.
• Ibid.,p. 245.
5 I,p. 151.
6 Vide para. 6, supra.
7 IV, p. 472. footnote 5.
8 Ill, pp. 195-230.
9 Vide I, p. 146; IV, pp. 225-228. REJOINDER OF SOUTH AFHICA 313
Applicants no longer· rely on the said measure as supporting their
charges.
9. Although the measures referred to by Ap1licants in the Memorials
under the head Security of the Person are not discussed in the Reply
with a view to substantiating their original charges, Applicants now
contend thàt the provisions relating to vagrancy and idleness and unde
sirable persons in reserves were also designed to keep Natives and Euro
peans apart save for the purposes of migratory labour. Applicants have
thus shifted their Iine of attack in this regard: whereas they do not repeat
their charge that the measures in question are arbitrary, Applicants now
place emphasis on their alleged discriminatory cffect, and assign to them
the design on Respondent's part to which reference is made hereunder 2•
IO. On analysis, the basic contentions advanced by Applicants in the
Reply relative to their char§e of discriminatory treatment of the Native
population of the Territory appear to be the following:
"Restrictions imposed by Respondent on the rights of residence,
freedom of movement, and security of the person of the indigenous
inhabitants of South West Africa, comprise a mechanism whereby
the policy of apartheid is implemented and 'non-White' inhabitants
are confined to the poorest areas of the Territory, except for purr,oses of
migratory labour on behalf of 'European' employers \' (Italics
added.)
"... the entire complex of legislative and administrative restrictions
implementing apartheid by restricting freedom of movement,
residence, and security of the person is designed for the convenùnce of
the 'European' inhabitants of the Territory. Almost without exception,
the provisions complained of by Applicants in part 5 of Chaptcr V
of the Memorials keep 'non-Whites'5and 'Whites' apart, except for
laboi1rdemanded of the former ." {Italics added.)
"In sum, Respondent's measures restricting rights of residence,
freedom of movement, and security of the inhabitants are based
upon membership in a 'group' and are designed to etfectuate the policy
of apartheid, or separate development. A key feature of that policy, as
has been shown, is the tolerance of presence of 'Natives' in the highly
developed areas of the Territory only as migrant and temporary
labour ers 6." (Italics added.)
In its factual aspects Applicants' charge, as now made in the Reply, is
therefore to the effect that by means of the measures under consideration
the Native 7 and White inhabitants pf the Territory are designed to be,
and are in fact, kept apart-
(a) in such a manner as to confine the Natives to "the poorest areas of
the Territory", in contrast with "the highly developed areas of the
Territory" where the White community lives,
1 1, pp. 144-146.
2 Vide para. ro, infra.
3 Vide Chap. I, para. 4, supra.
4IV, p. 464.
s laid.,p. 46g.
6 Ibid., pp. 472-473.
7 Although Applicants use the expressions "Non-White inhabitants" and" Non
'Vhites" in the first two passages cited above, the expressi'Native" is used in the
third passage quoted above, which contains a summary of Applicants'charge. SOUTH WEST AFRICA
(b) the only exception made being to tolerate "the presence of 'Natives' "
in the latter areas "as migrant or temporary labourers" for " 'Euro
pean' employers". (Italics added.)
The aforementioned allegations arc compatible only with a charge of
improper motives, viz., the subjugation of the Natives to the interests of
a privileged minority of White persans 1 .Despite their clisclàimcr in this
2
regard , Applicants' charge, therefore, still remains one of bad faith on
Respondent's part.
11. It is, of course, immaterial how often the above charge is repeated
in slightly differing but equally sweeping language. The crucial question
remains whether the evidence adduced by Applicants establishes the
factual elements of the charge. In demonstrating in the following chapters
that Applicants have not succeeded in establishing their charge, it will
be convcnient to deal first with Respondent's basic reserve policy, then
with the provisions supplementing such policy and rendering it effective,
and finally with the measures which, in Respondent's submission, are
unrelated to the reserve policy or the general policy of separate develop
ment.
1 Vide also IV, p. 274, for similar allegations made by Applicants, and vide
sec.E, Chap. V, supra.
z Vide IV, pp. 255-257 and sec. A, paras. 2-7, supra. CHAPTER III
RESPONDENT'S BASIC RESERVE POLICY
I. Reference has been made to the full exposition given in the Counter
Memorial of Respondent's reserve policy whereby preference and pro
tection are afforded to various groups in different parts of the Territory 1•
This exposition covered the historical circumstances which gave rise to
such policy 2 ;the underlying considerations for the well-being of all the
inhabitants as stressed, inter alia, in reports of Commissions of Enquiry 3;
the process of extension and development of the Native reserves in the
Territory from I920 up to the present 4; the prospect o( substantial
further extension and development pursuant to the report of the Oden
daal Commission 5 ; the fact that the Permanent Mandates Commission
was fully aware of, and approved of the policy 6 ;and also the considera
tion that similar policies were at varions tunes applied in other parts of
the world with a view to protection of underdeveloped communities or
7
peoples against encroachment by others •
2. As has been pointed out 8 Applicants in their Reply for the most
part ignore this exposition. With reference, however, to the historical
background to the reserve policy fumished by Respondent, Applicants
allege that ·'... Respondent relies upon its version of history as justifying
pre-emption of 70 per cent. of the Territory for a small minority of the
population" 9•
\Vhile it is true that Respondent relies partly on historical events in
South West Africa as justification for its policy of differentiation applied
in the Territory, Applicants confuse the issue by suggesting that Re
spondent relies on South A/rican history. With respect to rights of
residence Respondent in the Counter-Memorial 10 referred briefly to the
development of the reserve policy in South Africa, but at the sa.me time
made it quite clear that its policies in South \Vest Africa were conceived
and applied with reference to circumstances prevailing in the Territory 1•
3. Applicants set themselves the task of correcting what they term
"the fundamentally false impression Respondent creates of a kind of
historie 'separateness' " 1. Although this matter is dealt with in another
Part of this Rejoinder u, it is important to note for present purposes
' Vide Chap. II, para. 3, supra.
2 Ill, pp. 234-236 and 238-240.
3
Ibid.,pp. 241-246.
4 Ibid., pp. 246-253.
5 Ibid., p. 253.
6 Ibid.,pp. 254-257.
1 Ibid.,pp. 257-265.
• Vide Chap. II, para. 7, supra.
9 IV, p.458.
10HI, pp. 234-238.
IL ibid., p. 234.
12 IV, pp. 458-459.
13 Vide sec. E, Chap. V and Annex A, Vol. I, supra and also Chap. I, para. 16,
supra. SOUTH WEST AFRICA
that Applicants do not attempt to contradict Respondent's exposition of
historical events in South West Africa whlch influenced Respondent in
adopting a policy of differentiation in respect of the Territory. In fact,
in another section of the Reply Applicants admit that "[t)he lengthy
history and ethnology of the Tenitory may be taken as substantially
accurate for the present purpose" 1• Under the heading "Relevant
Historical Resumé" 2 Applicants deal ahnost exclusively with historical
events and political developments in South Africa. \Vith regard to the
Territory, Applicants merely quote some of the 1960 census figures con
tained in the report of the Odendaal Commission, and then proceed to
inake the sweeping and unsubstantiated statement that in South West
Africa "... a plural or multi-racial society is a fact" 3• Respondent has
dealt with this and other similar statements in another Part of thls
Rejoinder 4 and it is unnecessary to add anything to what has already
been stated. It sufficcs to reiterate that the said statement is without
substance.
5
4. As already indicated ,Applicants' basic charge relative to Respon
dent's reserve policy is that restrictions on, inter alia, rights of residence
"... comprise a mechanism whereby ... 'non-\Vhite' inhabitants are
confined to the poorest areas of the Territory ... " 6•Apart from the bare
statement that the "rcserves provide no more than a subsistence econo
my" 7, the only evidence adduced by Applicants in support of their
charge, is the following observation of Lord Hailey:
"... it is when one contemplates the poverty of soil and low agri
cultural possibilities of these Reserves that one realizes the difficulty
of assuming that the Native can ever achieve a really adequate
standard of living in the areas set aside for bis occupation ."
Even a superficial perusal of Lord Hailey's work makes it clear,
however, that the quoted passage bas no bearing on the northem terri
tories. Lord Hailev first refers to these territories and then deals with
the reserves in the-Police Zone. It is only when discussing the latter that
he makes the observation quoted by the Applicants.
5. By alleging that "reserves provide no more than a subsistencc eco
nomy, whereas the 70 percent. of the Territory set aside as the 'real
home' of the 'European' inhabitants, contains most of the wealth of the
Territory" 9,and then quoting the above passage, Applicants create the
impression that the Native reserves-whether in the north or in the
Police Zone-are very much inferior to the areas inhabited by the White
group. This is not true even of the reserves in the Police Zone. As was
pointed out in the Counter-Memorial, the northern territories are in fact
the most favourably endowed by nature in so far as climatic conditions,
10
e.g., rainfall, evaporation, etc., are concemed • And as regards the re-
1 IV, p. 261.
2 Ibid.,pp. 459-464.
' Ibid.,p. 460.
• Vide sec. E, Chap. V, sup,,a.
5 Vide Chap. II. para. 7, supra.
1 IV, p. 464.
Ibid.,p. 466.
8 Ibid .• p. 467 .
• 9 Ibid.,pp. 466-467.
10 Ibid.,p. 308. REJOINDER OF SOUTH AFRICA 317
serves inthe Police Zone, Applicants conveniently ignore another observa
tion of Lord Hailey-to be found on the same page as the passage quoted
by them-which also applies to the reserves in the Police Zone. The
a uthor states:
"Observation shows that on the whole the conditions of soit and
grazing in the Reserves are not inferior to those in the farming areas
1
of the Police Zone ."
It is consequently clear that in the passage quoted by Applicants Lord
Hailey was merely making the point that, considering the size and agri
cultural possibilities of the reserves in the Police Zone, ail the Natives in
the said Zone could not reside and achieve a really adequate standard
of living in the areas which were then set aside as reserves for their
groups.
6. Respondent has never contended that the reserves in the Police
Zone, as constituted at present, are to be viewed as adequate homclands
for ail the members of the groups involved. As stated in the Counter
2
i\1emorial , there have through the years been several difficulties mili
tating against the enlargement of existing reserves or the creation of new
ones. Apart from the difficulties with regard to water supplies, it would
certainly not have been wise to proclaim large tracts of land as reserves
without at the same time being in the position to develop the same.
Partly due to the development of farms by individual White farmers,
however, and especially as a result of the progress which has been made
in developing the Territory's economy, rendering more fonds available
for intensive advancement projects, coupled with the graduai rise in the
standard of development of the Native groups 3.the stage has now been
reached where enlargement, consolidation and development of reserves
into proper homelands for the groups concerned, have become practi
cable.
7. As stated in the Counter-Memorial, the total area at present set
aside for the sole use and occupation of Natives is approximately
20,617,651 hectares 4. According to the proposals of the Odendaal
Commission-which have been accepted in principle by Respondent
the suggested homelands will comprise a total area of 31,243,335 hec
tares 5, representing a gain of more than 50 per cent. The percentage
gain for the groups in the Police Zone will be even more spectacular, viz.,
more than no6 for the Nama approximately 94, for7the Herero approxi
mately 35 and for the Dama nearly 700 .It is also important to observe
that much of the land to be incorporated in the proposed homelands will
be highly developed farms at present owned or leased by White farmers 8.
1 Lord Hailey, An African Survey: Revised 1956 (1957), p. 764.
2 III, pp. 248 and 25r.
3 Vide IV, p. 202.
~ III, p.25 r (para. 62).
' R.P. Xo. 12/1964, p. 1r 1-i.e.,excluding the Rehoboth Gebiet.
6 The relatively small gain for the Herero is due to the fact that this group bas
at present much more land than the other groups in the Police Zone. If the proposais
of the Commission are implemented, the availability of land for the Herero per
capita will still be more than that for the other groups; viz., 167 hectares, compared
to rnS hectares per capita in the case of the Dama, and 62 hectares per capita in
the case of the Nama. Vide R.P. Xo. 12/1964, pp. 93, 95 and 105.
7 R.P. No. 12/1964, p. 11r.
8 Vide para. 8, infra.318 SOUTH WEST AFRICA
The areas of the various homelands, according to the Commission's
proposais, will be as follows 1:
Hectares 2
Ovamboland 5,607,200
·Okavangoland . 4,170,050
Kaokoveld . 4,898,219
Damaraland 4,799,021
Hereroland . 5,899,680
Eastern Caprivi 1,153,387
Tswanaland . 155,400
Bushmanland 2,392,671
Namaland 2,167,707
31,243,335
8. As regards Applicants' assertion that 70 per cent. of the Territory
is set side as "the 'real home' of the 'European' inhabitants" 3, Respon
dent has already shown 4 that only 47.3 per cent. of the land in the
Territory is at present owned or leased by members of the White group,
Should the aforementioned recommendations of the Odendaal Com
mission be given effect to, the extent of the \Vhite area will comprise
only 43.8 percent. of the Territory, since a total of 3,406,181 hectares of
land at present owned or leased by members of the \Vhite group is to be
5
induded in the proposed non-White homelands •
9. In connection with their assertion that the Natives ''are confined
to the poorest areas of the Territory", Applicants also allcge that-
"[t)he unjustifiahle nature of the discrimination practiced against
indigenous inhabitants is compounded by the fact that the reserves
within the Police Zone are not, in fact, tribal 6".
It is not clear what Applicants intend to signify by this allegation
relative to the charge under consideration. Respondent can only surrnise
that Applicants intend to suggest that Respondent is not bona fi.dein
saying that its aim is the creation of separate homelands for the various
ethnie groups. If so, the suggestion is unfounded, as will be shown
hereunder.
Of the 17 reserves in the Police Zone there are eight "mixed" reserves
in the sense that the admixture of non-members of the predominant
group is not negligible. As was pointed out in the Counter-Memorial 7,
it has not always been possible to accommodate all the members of one
tribe in the same rcserve. It must be kept in mind that when Respondent
took over the administration of the Territory members of Native families,
tribes and groups which had been broken up under the German regime
were scattered all over the Police Zone. \Vhen Native reserves were
proclaimed, disrupted members of various groups consequently flocked
t R.P. No. 12/1964, p. III.
2 JHectare=2.47 acres=± 0.00386 square miles.
3 IV,pp. 466-467.
• Vide sec.E, Chap. V, supra.
5
R.P. No. 12/1964, p. rn9.
6 IV,p. 467, footnote 2.
7III, p.268. REJOIXDER OF SOUTH AFRICA
to one and the sn.me reserve-usually the nearest one. Although care
was taken to ensure that members of different tribes-and even sections
within tribes-were grouped together, at the same time, in order to
cause a minimum of inconvenience, removals from one part of the
Territory to another were not insisted upon. ln consequence members of
more than one tribe or group were adrnitted to some reserves; e.g., in the
case of the Tscs Reserve, Nama-speaking Herero were adrnitted with
other Nama-speakin~ people, viz., Nama and Dama. Thus "mixcd"
reserves came into betng, and although Respondent has always considered
the existence of such reserves to be unsatisfactorv, full rectification of
the position has up to the present time not been practicable.
Although the reserves in the Police Zone "have not been proclaimed
in the name of particular tribes or sections of tribes" 1,Respondent has
encouraged members of the different groups to reside in reservcs in which
their groups preponderate, and has by means of administrative policy
endeavoured to obtain hornogeneity in the few reserves that are "rni.xed".
For example, some years ago Herero living in the Kranzplatz Reserve
were persuaded and assisted to move to the Otjituo Reserve which is
considered to be a Herero reserve.
In any event, the number of Natives in "mixed" reservcs is negligible
in comparison wîth the total number of Natives living in reserves in the
Territory. Of the latter number 95 percent. are to be found in one or other
reserve with a predominantly homogeneous Native group exceeding So
percent. of the particular reserve's population. So, for instance, the homo
geneity of the groups in the northem territories is g6 percent. and 99 per
cent., respectively, in Ovamboland and the Okavango Native territory,
and 100 percent. in the case of the Eastern Caprivi and the Kaokoveld,
while the group predominance in eight reserves in the Police Zone is as
follows 2 :
\Vaterberg-East 98 percent. Herero
Otjohorongo. 96 percent. Herero
Okombahc. g6 per cent. Dama
Soromas. 95 percent. Nama
Epukiro. . 91 percent. Herero
Ovitoto . . 84 per cent. Hcrero
Aminuis. . 81 per cent. Herero
Warmbad. 80 percent. Nama
Even in the case of the remaining 5 per cent. of Natives living in the
reserves more that half (7,752) live in reserves where a partkular Native
group predominates to _the extent of between 57 per cent. and 75 per
cent. Only 2 per cent. of ail reserve Natives are to be found living in re
serves where one or other Native group does not predominate to an
extent of more that 57 percent., and even in the two reserves in question
the majority group account for more than 50 percent. of the population.
The clcar aim, however, is that in consequence of the establishment of
enlarged homelands, "mixed" reserves should cease to exist. In this
regard reference may be made to the following extract frorn the report
of the Odendaal Commission:
1 Lord Hailey, An African Survey: Revised 1956 (1957). p. 764, as quotedat
IV2 p.467. footnote2.
Departmental information.320 SOUTH WEST AFRICA
"Sorne of the present areas in the Southern Sector, which have
hitherto been known as reserves, as well as their populations, are so
small that they cannot possibly continue to exist as separate self
governing homelands, and it is therefore the opinion of the Commis
sion that these small areas should, ifat ail possible, be integrated
with the ncarcst homeland of their own population group. Where
this is not possible, the populations concemed should be persuaded,
in their own interests and against compensation for their areas, to
move to the enlarged homelands of their own population groupwhere
they can share in all the residential, political and language rights of
1
thcir group ".
10. In the Counter-Memorial Respondent pointed out that while the
rights of residence of Natives in the areas inhabited by the \Vhite group
are to a certain extent limited, "the exclusion of residence by White
persons in the Native reserves is absolute" 2. Applicants allege that the
equivalence is false since~
" ... reserves provide no more than a subsistence economy, whereas
the 70 per cent. of the Territory set aside as the 'real home' of the
'European' inhabitants, contains most of the wealth of the Terri tory
and a highly developed economy 3".
In so far as Applicants draw a comparison between the "wealth" of
the areas inhabitcd by the White group and the "poverty" of the Native
reserves, this has already been dealt with f. Respondcnt has likewisc
refuted the suggestion that "70 per cent. of the Territory [has been]
5
set aside as the 'real home' of the 'European' inhabitants" •It remains
to consider the contention that, by reason of the antithcsis between
"subsistence economy" and "highly developed economy", restrictions
on the residence of Natives have no real counterpart in the restrictions
on the residence of the White group.
It is in the first place not true that the reserves prüvide no more than a
subsistence economy. Respondent has already pointed out that the
conditions of soil and grazing in the reserves in the Police Zone-not to
mention the northern territories-are not inferior to those in the farming
areas of the White group 6•If it is true, then, that the reserves provide no
more than a subsistcnce economy, the same must be true of the said
farming areas which, together with the urban areas, contain, according
to Applicants, "most of the wealth of the Territory". On the contrary,
the true position is that whilst a subsistence economy is still to a large
extent practised in the reserves, the rural areas of the Police Zone have
been improved and developed by the enterprise and capital of individual
members of the \.Vhite group.
rr. It must be self-evident that no govemment would embark upon
the enormous expenditure involved in the schemes for economic develop
ment of the reserves and contemplated homelands, as proposed by the
Odendaal Commission, and accepted by Respondent, if it werc tme that
the reserves could provide no more than a subsistence economy. A mere
1R.P. No. 12/r964, p. 79 (para.294).
2 III,p.267 (para. rr9).
3 IV,pp. 466-467.
• Vide paras. 4-5,supra, and sec. E, Chap. V, supra.
s Vide para. 8, supra.
6
Vide sec. H,Chap. III, paras. 1S-2r, supra,and also para. 5, supra. REJOINDER OF SOUTH AFRlCA 321
glance at "'.hat is said in this regard in the Counter-Memorial 1, read with
the report of the Odendaal Commission, will make it clear that the pros
pects and the targets involve much more than mere subsistence. As has
2
been pointed out ;it is expected that in the course of time a modern
economy will be built up in the Native homelands. It is consequently
important to realize that the existing subsistcnce cconomy in the reserves
is expected to be of a temporary nature only. In this regard reference
should be made to the Counter-l\Iemorial 3 where details are given of
what has been done up to the present to foster increased participation
of the Natives in a modern economy.
It is precisely because Applicants fait to appreciate, or refuse to
recognize, the distinction between what has been practised and what
can be achieved in the rescrves, that they also deny the significance of
the restrictions imposed on the residence of members of the White group.
If these r~strictions were to be abolished. large tracts of land at present
reserved exclusively for the occupation of Natives would, in Respondent's
submission, within a very short time pass into the bands of members of
the White group. Respondent reiterates, therefore, that one of the basic
considerations of its reserve policy-in tenns of which the rights of
residence of all the groups are to a certain extent restricted-is the need
to prevent alienation of non-'iVhite land\ and thus to lay the basis for
providing a protected sphere in which non-\Vhite groups can clevelop to
self-detennination and self-realization.
12. Finally, Applicants endeavour to refute Respondent's demonstra
tion that the Permanent !lfandates Commission was aware of, and
approved, its reserve policy 5• They allege that the Commission-
"... did not approve a policy of confining inhabitants to reserves and
forbidding them to take up permanent residence in the Police Zone
generally, or in urban areas within the Police Zone 6 ",
and they quote three extracts from the Minutes of the Commission in
support of their allcgation.
Before clealing with these quotations, Rcspondent wishes to make it
clear that there does not exist in the Territory any statutory provision in
terms of which Natives residing in the reserves in the Police Zone are
confined to such reserves, or are forbidden to take up permanent residence
in the urban areas within the Police Zone. It is true that certain provisions
control the influx of Natives into urban areas, and the movcment of
Natives generally, but this does not detract from the factual position
that a large number of Natives are permitted to reside permanently in
the urban areas in the Police Zone. It is also true that Natives from the
northern territories are not entitled to take up permanent residence in
the Police Zone. The reasons for this restriction were set out in the
Counter-Memorial 7,and will again be discussed hereinafter 8•
1
IV, pp.· 204, 207 and 208.
2 Vide sec. E, Chap. V, supra.
3 HI, pp. 13, 17, 18, 19 and 101-IOJ.
• Ibid., p. 245.
~ Ibid., pp. 254-257.
6 IV, p. 466.
7 Ill,pp. 276-277.
8 Vide Chap. IV, paras. 4 and 6, infra.322 SOUTH WEST AFRICA
13. As regards the questions put at the Third Session of the Permanent
Mandates Commission by its Chainnan to Sir E. iNalton 1, it is to be ob
served that the Commission was at that stage (1923) not fully acquainted
with the circumstances in South West Africa, and its mcmbers were
therefore attempting to establish what policies Respondent proposed to
adopt in respect of the Territory. After Respondent's representative had,
in reply to the said questions, given certain cxplanations, the Chairman
remarked that:
"He understood that the reserve was his [the Native's] home,
which was inviolable by the white man, but that the native might,
2
subject to certain rules, circulate freely ."
During the same Session l\L d'Andrade pointed out that-
"... if there were no reserves, there would be no place for the Natives,
as outside the reserves the territory was divided into farms which
were sold to the white people. If there were no reserves for the
natives, they would be unable to exist, or would be reduced to
complete subjugation to the white population 2."
1
14. Applicants also refer to a statement of M. Beau during the Com-
mission's Fourth Session that he-
"... wanted to draw attention to the difficulties which resulted from
the system of reserves, as at present practiced, in connection with
the development of the natives, confined as they were in a sort of
'watertight compartment'3".
Applicants fail to point out, however, that at the same Session l\L Beau
was reported to have stated further that-
"[t]he Government of the Union had assigned vast territories to the
natives. [He] thought that it was very praiseworthy that not only the
reserves promiscd by the Germans had bccn given to the natives, but
new and much more important ones. It appeared also that the
system in force in all the reserves was comparatively liberal, the
natives having the right to leavc them and the whites not being
allowed to enter them nor to acquire land there 4.''
M. Beau thereafter proceeded to enquirc whether provision was made for
the education of Natives in the reserves.
It seems clear, therefore, that he had no objection to Respondent's
reserve policy and merely wished to be satisfied that steps were being
taken for the development of Natives in the reserves, particularly as
regards their education.
It is also significant that at the end of the same Session the Commission,
in its special observations on the administration of South West Africa,
commented on "... the soundness of the views which had prompted the
Administration to adopt a system of segregation of natives in re
serves . . ." 5.
15. During later sessions the membcrs of the Commission, who had
1IV, p. 466.
z P.A!.C., 1Hin., Illp. 105.
l P.M.C., Afin., IV, p. 63.
• Ibid.,p.62.
5 Ibid., p. 154. REJOINDER OF SOUTH AFRICA 323
by then become acquainted with the reasons which had induced Respond
ent to adopt its reserve policy, never commented adversely on the said
policy. Respondcnt consequently reiterates that the Commission was
ful]y aware of, and approved of Respondent's reserve policy.
r6. ln view of what has becn stated above, it is clear that Applicants
have offered no proof of their sweeping charge that Respondent's reserve
policy is part of "a mcchanism whereby ... 'non-White' inhabitants are
1
confined to the poorest areas of the Territory" . It suffices to reiterate
that the said charge is unfounded. CHAPTER IV
PROVISIONS SUPPLEMENTING AND RENDERING EFFECTIVE
THE RESERVE POLICY
A. General
r. In this Chapter Respondent deals with statutory provisions relating
to--
(a) Rights of residence in the Police Zone generally 1;
(b) Rights of residence in urban areas 2;and
3
(c) Passes and permits .
2. In the Counter-Memorial Respondent pointed out that these
measures, although also serving other immediate· purposes aimcd, inter
alia, at th~ well-being of the Natives, are reasonably required to effectuate
the basic policy of providing and de\'cloping separate areas for the various
population groups of the Territory 4. Applicants' reaction in the Reply is
to be found in the charge that these measures form part of a scheme
whereby the Natives are confined "to the poorest areas of the Territory",
and Europeans and Natives are being kept apart "except for purposes of
5
migra tory labour on behalf of 'European' employers" •
Respondent has already dealt with Applicants' avènnents relating to
the alleged poverty of the Native reserves 6, and it therefore remains to
consider whether the second aspect of Applicants' charge is substantiated
by any evidence adduced by them. This will be done in the following
paragraphs.
B. Rights of Residence in the Police Zone Generally
3. Applicants correctly allege that labourers recruited from the north
ern territories for the purpose of employment within the Police Zone
must return to their reserves after two-and-a-half years at most 7• As a
result northern Natives may not effect a change of residence so as to
settle pennanently in the Police Zone. Applicants, however, fail to
mention and fait to controvert the important facts dearly stated in this
regard in the Counter-Memorial, viz., that northem Natives have full and
exclusive rights of residence in their reserves, which have since time
immemorial been their undisturbed homelands; that neither Native nor
\Vhite inhabitants of the Police Zone arc permitted to reside permanently
in the northern territories, and that in the result, although northern
1 Vide paras. 3·8, infra.
2 Vide paras. 9·24, infra.
3 Vide paras. 25·36, in/ra.
4 III,pp. 253, 276, 277, 287 and 308.
5 IV, p. 464.
6 Vide Chap. III, paras. 4·5,supra.
7 IV, pp. 464·465. REJOI~DER OF SOUTH AFRICA 325
Natives are restricted as regards residence in the Police Zone, they are
on the other hand protected in their full and exclusive rights of residence
in their homelands.
4. As was pointed out in the Counter-Memorial, section 6 (4) of Pro
clamation No. 29 of 1935 (S.W.A.) was enacted a.t the specific request of
the tribal authorities in the northem areas who wish to protect their
peoples from disintegration and to maintain sound relations within and
amongst them 1.
· Whilst not denying or attempting to controvert these facts in any way,
Applicants complain that the Proclamation does not take into account
"... the wishes or needs of the individual who has corne frorn the reserves
2
to work as a labourer in the Police Zone" • Applicants' reasonin~ is
difficult to follow, especially since the central theme of their cornplamts
regarding Respondent's general policies and practices is that no regard
is had to the wishes of the majority of the inhabitants of the Territory.
Surely, then, it cannot be expected of Respondent to give effect to the
wishes of individual northem Natives and to ignore those of the rnajority
as represented by their tribal authorities.
Applicants actually suggest that effect should be given to the wishes
of the majority of the population of the whole of South West Africa
"within the framework of a single territorial unit" 3• That this could lead
to the swamping of the wishes of entire smaller groups as a result of the
preferences of larger groups, is apparently regarded as of no account.
Applicants also suggest that :integration ought to be thrust upon un
willing individuals by enforced legislation 4• The aforementioned sug
5
gestions are dealt with elsewhere in this Rejoinder • For the present
Respondent merely draws attention to Applicants' inconsistent attitude
in deprecating the ·fact that Respondent gives consideration to the
wishes of duly constituted tribal authorities, aimed at the good of their
peoples as a whole, in contrast with the possible preferences of certain
individuals.
5. It should be observed that on the varions occasions on which the
groups in the northem territories have been consulted as to the length of
time the members of their groups should be permitted to remain under
contract in the Police Zone, the meetings have been fully representat:ive of
the groups. Besides the tribal authorities, viz., the chiefs and their
councils, or the councils of headmen, the ordinary members of the groups
have attended in large numbers. At these meetings anyone present is
permitted to voice bis opinion and many of the tribesrnen have taken
advantage of the.opportunity to do so. Parents especially have on many
occasions pleaded that their sons should be made to retum after a limited
period in order to spend the money they have earned in their home areas,
renew associations with their families and to contract marriages with
members of their group. It is, therefore, wrong to suggest that the tribal
leaders were not speaking on behalf of their people or that they were
acting against the interests of the individuals.
1 III,pp. 276-277.
i IV, p. 46g.
3 Ibid.,p. 441.
• Ibid., p. 309.
5 Vide sec.E, Chap. III, and sec. F, supra. SOUTH WEST AFRICA
6. Applicants also fail to refer to the other reasons advanced by Re
spondent for the enactment of the Proclamation. It was pointed out in
the Counter-Memorial 1that the Proclamation was conceived also for the
protection of the Native residents of the Police Zone against an influx of
Natives from the north, which would create conditions of unemployment
in the Police Zone.
There can be no doubt that the northern Natives, or in any event the
vast majority of them, would object most vehemently if it were proposed
to allow inhabitants of the Police Zone to sett1e in the northern territories.
Respondent has no intention of acting contrary to the wishes of the
northem Natives in that regard, but by the same token it also has a
duty to protect the Native inhabitants of the Police Zone, man y of whom
are dependent entirely upon what they earn from employment.
7. It is clear, therefore, that there is no substance in the suggestion that
the Proclamation was designed to serve the interests of \Vhite employers.
Although it is conceded that such ernployers benefit frorn the employment
of northern Natives, the converse is also true. That the employment and
conditions offered in the Police Zone are attractive and rewarding to
employees, is borne out by the fact that also Natives from beyond the
borders of the Tcrritory flock to this area in such numbers that it is
imperative to control their entry 2•Far from the bcnefits of employment
of northern Natives in the Police Zone accruing only to members of the
White group, the advantages gained by such Natives in remuneration,
experience, practical education, etc., counterbalance such benefits.
It should also be observed that neither the Proclamation nor any
other measure provides that northem Natives may be employed only by
members of the White group. On the contrary, Coloured and Native
employers in the Police Zone haYe the same opportunities as White
employers to recruit northern Natives through the recruiting organization,
New S.W.A.N.L.A.
8. Regard being had to what is stated in the foregoing paragraphs,
Respondent submits that Applicants have failed to show how the Procla
mation can in any way be relied on as proof of their charge that Euro
peans and Natives are being kept apart "except for purposes of migra tory
labour on behalf of 'European' employers", or of the statement imme
diately following reference to the Proclamation in the Reply, viz.:
"The inescapable fact is that the cntire complex of legislative and
administrative restrictions implementing apartheid by restricting
freedom of movement, residence, and security of the person is
designed for the convenience of the 'European' inhabitants of the
Territory 3."
C. Rights of Residence in Urban Areas
9. Legislative measures providing for the establishment of separate
urban residential areas for Natives in the Police Zone, and for machinery
to control the influx of Natives into urban areas, are again referred to by
Applicants in the Reply relative to the aspects of their charge at present
lIll,p. 277.
32 Vide sec. H, Chap. li, para. 28, supra.
IV, p. 469. REJOINDER OF SOUTH AFRICA 327
under consideration. ln the succeeding paragraphs Respondent will deal
separately with these measures with a view to determining whether the
material advanced by Applicants supports their charge.
10. It is common cause that separate residential areas may be, and
have in fact been. set aside for Natives in terms of Proclamation No. 56
of 1951 (S.W.A.) 1. The crucial question is whether the purpose or effect
of the legislation points to a design on the part of Respondent such as is
alleged by Applicants.
ln the Counter-Memorial Respondent explained that at the inception of
the Mandate Natives were of their own accord living apart from the
European inhabitants of the towns in separate residential areas adjacent
2
to the European areas • Because of the largely unorganized and hap
hazard manner in which the Native settlements had occurred on the
outskirts of the White towns, a primary concem of Respondent was to
see to it that the White municipal authorities and the employers of
Native labour in the towns played their part in providing these peri-urban
communities with proper housing and attendant facilities such as roads,
water, lighting, sanitation, etc.-facilities which the Natives concerned
could hardly have established if left to fend for themselves 3.
Because of the preference shown by the various Native groups to live
apart.from other groups, it was also incumbent upon Respondent to
endeavour to give effect to such preference and to provide, as far as
practicab_le, separate residential areas and other facilities for the various
groups living in urban areas 4•
ln the light, therefore, of the state of affairs prevailing when the Man
date was assumed, and of the clear preferences of the Native groups
themselves, it was natural for Respondent to act in accordance with
this tendency when making provision for proper housing and other
facilities for the varions Native groups. In Respondent's view it appeared
to be in the general interest of the population that this tendency should
be respected and given effect to, as was done by means of Proclamation
No. 34 of 1924 (S.W.A.), later superseded by Proclamation No. 56 of
1951 s_
IL The provision of separate residential areas for the different groups
also served to facilitate the administration of Native urban communities.
Not only did it afford a familiar community life to those Natives who
had corne into the generally unfamiliar \Vhite urban areas, but it also
made it easier for Respondent to provide educational facilities for the
different Native groups. Moreover, a homogeneous community with
its own artisans, tradesmen and government servants, could be encour
aged to develop in a particular area 6•Respondent also pointed out in the
Counter-Memorial 7 that other countries in which conditions basically
similar to those in South West Africa prevailed 'had in the past also
established separate Native townships and residential areas.
1 Proc. No. 56 of 1951, sec. 2 (1) inThe Laws of South West Africa z95z, Vol.
XXX, p. 94. .
2 III.pp. 168-161).
3 Ibid., p. 170.
4
Ibid., p.179.
s III, pp. 176 and 180.
6 Ibid., p. 180.
1 ibid., pp. 294-296. SOUTH WEST AFRICA
I2. No attempt is made by Applicants in the Reply to controvert the
above explanation of the aim and effect of the measure in question, and
no evidence whatsoever is adduced by them in support of their charge
pertaining to this legislation 1. Indeed, Applicants' charge rests solely
on an unsubstantiated inference drawn from the very existence of the
measure under consideration. It is consequently unnecessary to add
anything to what bas already been stated in the Counter-Memorial
regarding the establishment of separate Native residential areas 2, save
to say that the very fact that provision has been made for the residence
of Natives in urban areas on a settled basis, refutes Applicants' charge
that the legislation in question serves to keep Natives and Europeans
apart save for "purposes of migratory labour" 3 for the benefit of \Vhîte
employers.
It may also be pointed out that, contrary to what Applicants suggest 4.
the Proclamation does not absolutely forbid Natives to reside in an urban
area outside a Native residential area established in terms of section 2 (I}.
Section 9 (2) of the Proclamation makes provision for exempted Natives
to reside outside such areas, and in fact a large number do so s_Thus, for
example, hundreds of Native employees reside on the premises of their
emplo~r~ in the White residential areas.
6
13. As already stated , Applicants' charge under consideration also
pertains to the machinery created by Respondent to ensurc efficient con
trol over the influx of Natives into urban areas. In the Counter-Memorial
Respondent gave a full exposition of the need for, and the advai1tages of,
the system of influx control, including historical background; experience
in South Africa and elsewhere in Africa of the tendency for urban areas
to become overcrowded with unemployed Natives; the socio-cconorrûc
evils resulting from such a position as stressed by Commissions of Enquiry
and other students of the problem throughout Africa, including U.N.
committees and surveys and the African Labour Conference of 1950; the
existence of sirrûlar systems in other African territories; the exemptions
provided for in the South West African lcgislation, and the fact that
the policy and provisions in question wcrc known to the Permanent .Man
dates Commission and that no objection was raised thereto 7•Save in
the few respects indicated hereunder, this exposition is ignored by Appli
cants.
I4. As regards the basic considerations of the influx control policy
set out in the Counter-Memorial 8,Applicants deal only with the social
evils against which this policy is in part directed. They allege that-
"[t]he true cause of the social evils to which Respondent refers,
however, is not to be found in the fact that 'Natives' congregate in
urban and proclajmed areas; it is in fact found in the discriminatory
system of migratory labour itself. Splitting of families, an evd
1 Vide para. 2,sup,-a.
zIII,pp. 169--171, 179-180 and 292-297.
3 IV, p. 464. (Italics added.)
• Ibid., p. 465.
' Froc.No. 56 of 1951, sec. 9 (2)in The Laws of South Wesl A/rica r95~. Vol.
XXX, pp. 104-106.
6 Vide para. 9, sup,,a.
7 III, pp.279-292.
8 Ibid., pp. 279-287. REJOINDER OF SOUTH AFRICA 329
attribute of the system Respondent nowhere seeks to justify, gene
rates many of the evils the influx control policy isdesigned to meet 1."
It is true that Respondent did not deal with the system of migratory
labour in the Counter-Memorial, but neither did Applicants in the
Memorials. The subject is discussed fully in another part of this Rejoinder,
where the advantages of the system to the individual migrant labourer,
to the group to which he belongs, and to the economy of the Territory
2
as a whole, arc set out •As has been stated, the system admittedly gives
rise to social problems in South West Africa-as it does all over Africa~
but it is Respondent's contention that, on objective appraisal, the adverse
effects of the system are far outweighed by its advantages in the develop
ment of a modern economy in an under-dcvcloped country such as
South West Africa 3•
ln support of their allegations quotcd abovc, Applicants rely on
extracts from a report of the United Nations Economie Commission for
Africa and from a work of Lord Hailey, both of which extracts apply to
Africa generally and not specifically to South West Africa. Applicants
fait to mention that Lord Hailey makes it clear that a system of migratory
labour is, despite the disadvantages mentioncd by him, inevitable in
Africa, and that it is in fact economically desirable. As Lord Hailey puts
it:
"It seems inevitable that in the existing circumstances of Africa,
the labour market should be in large measure dependent on floating
or migrant labour. It is, as the East Africa Royal Commission of
r953-5 has observed, the only system through which a considerable
section ·ofthe African population can now meet its nccds. For many
Africans it is not possible to gain a higher income lcvel for the sup
port of their families without wage-earning, and the migrant labour
system appears as the most economic choice which they can make,
4
however socially undesirable it may be ."
r5. Respondent has shown that migratory labour occurs wherever
there are developed areas in juxtaposition to relatively under-developed
areas, resulting in labour flowing to the more developcd areas, and that
5
South West Africa is no exception • Attention was, however, drawn to
the fact that, as a result of future developments pursuant to the recom
mendations of the Odendaal Commission, it is expected that the extent
of migratory labour ,vill gradually diminish in the Territory 6•
r6. Respondent denies, however, that the social evils referred to in
the Counter-1\iemorial 7are caused solely-or for that malter mainly
by the system of migratory labour itself. The primary cause of these
evils is the uncontrolled congregation of unemployed Natives in urban
areas and the resultant creation of overcrowded sium areas. It follows
that even in the absence of a system of migratory labour, these evils
would still exist if no control were exercised over the influx of Natives
1IV, p. 467.
z Vide sec. H, Chap. II, paras. I8-19, supra.
3 Ibid., para.21.
• Lord Hailey, An African Survey: Revised 1956 (1957}, p. 1387.
$ Vide see. H, Chap. II, paras. 23-26, supra.
6 Ibid.,paras. 17 and 23-26.
7 III, pp. 279-285.330 SOUTH WEST AFRICA
into urban areas 1•On the other hand, those social problems of which
a system of migratory labour is a contributory cause, would grow to
enormous proportions in the absence of influx control.
ln the Counter-Memorial Respondent pointed to the serions housing
problems and the development of sium conditions arising from the un
controlled influx of Natives into urban areas, and quoted from varions
sources to substantiate its observation 2• Surely these problems-which
are completely ignored by Applicants-are not caused by a system of
migratory labour.
17. Applicants do not deny that influx control eliminates unemploy-
ment, but they allege that-
"... the central point again in this context is that Respondent's
failure to develop in any meaningful sense the economies of the
reserves, results m pressures upon 'Natives' to corne to urban areas
3
seeking employment ' '.
In the Counter-Memorial Respondent explained that its policy relative
to the Native rçserves was "to guide the population in the direction of
greater productivity by means of a gradual adaptation of their traditional
economic and social institutions, rather than by means of revolutionary
changes" • A description was given of what had already been done in
that regard by way of, inter alia,the development of water resources, the
irnprovement of livestock, the introduction of selected seeds, veterinary
services, the encouragement of dairy mdustries, and concessions to Native
traders 5•Respondent therefore denies that it has failed "to develop in
any meaningful sense the economies of the reserves". Elsewhere in this
Rejoinder 6 Respondent givêsthe reason why the Natives in the reserves
generally still practise a system of subsistence economy.
That some of the inhabitants of the reserves are at times compelled by
cirêumstances--especially conditions of drought-to resort to wage
employment in order to make a living, may be admitted. It would never
theless be wrong to asswne that economic "pressures" in the reserves
are the only, or indeed the main, cause of Natives venturing to urban
areas to seek employment. Many Natives flock to such areas in search
of adventure or expericnce without having any desire to stay there
permanently. Furthermore, since the towns and cities are the focal point
of economic and industrial development, administrative authorities do
their utmost to improve the levels of the urban poor. This tends "to
increase the attractive power of cities and encourage[s] more rapid
migration" 7 to urban areas.
18. In the Counter-Memorial Respondent referred to the application
1 Vide sec. H, Chap. II, para.. 20, supra, where it is shown that any economic
development brings inits wakecertain social evils resulting frointeralia, urbaniza
tion, the Ioosening of traditionaand farnily ties, and problems of adaptationto new
circurnstances.
2
3 Ill, pp. 279-285.
IV, p. 468.
• III,p.6.
5 Ibid., pp.6-g,17-21 and 101-103.
6Sec. H. Chap. III, paras. 5-9. supra.
7 U.N. Doc. E/CN. 5/332, ST/SOA/39, International Survey of Pmg,ammes of
Social Development (1959), p. 170. REJOINDER OF SOUTH AFRICA 331
of influx control policies in other countries 1• With refcrence to these
policies Applicants allcge that-
"[i]n no case, howevcr, are the policy considerations underlying
limitations on urban immigration based upon total and permanent
separation of 'Whites' and 'non-Whites' in the highly developed
sections ~··.
It is not correct to say that Respondent's influx control policy is based
upon a general policy of scparation of Natives and members of the White
group. While it is true that according to Respondent's general policy
of providing for separate development of the various groups, members
of a particular ~roup may, whcn in the area of another group, be subjected
to certain restnctions for the mutual benefit of themselves and such other
groups, control of influx to urban areas would be necessary quite inde
pendently of such policy. In South West Africa-as in most of the other
countries referred to in the Counter-Memorial-influx control legislation
is applicable only to Natives for the reason that the circumstances which
gave rise to the legislation apply peculiarly to Natives. There bas never
been any undue influx into urban areas by \Vhite or Coloured persons.
Respondent fails to see why influx contrai measures, required for sound
reasons in the interests of ail sections of the population, should be re
garded as objectionable merely because, by reason of practical circum
stances and needs. such measures apply to Natives only. This fact in
itself certainly does not afford any proof of Applicants' contention that
the measures in question were designed to serve the intcrests of White
employers only.
It is expected that influx control measures will largely become unneces
sary when the Native areas have reached the same stage of development
as the White area. As bas already been stated 3, active steps are being
taken by Respondent to develop the Native areas and to create economic
growth points there. It is therefore hoped that in the course of time the
necessity for these control measures will disappear.
19. With reference to particular legislative machinery created to
control the influx of Natives into urban areas, Applicants aver that
Respondent admits that-
"... if an indigenous inhabitant is seeking work in an urban area, he
has three days in which to get permission to remain a further two
weeks-and if emplovment cannot be found within that period, he
4
mustleave ". •
Respondent has never admitted that a Native workseeker must leave an
urban area if he fails to find employment within the period stated by
Applicants. In terms of section 10 of Proclamation No. 56 of 1951
(S.\V.A.)5 the designated officer may on the expiration of the said period
grant permission to a Native to remain in the urban area for another
period of 14 days. ln fact, there is no limit to the number of consecutive
permits that may be issued to any Native who seeks employment in an
1
2 III,pp. 285-287.
IV, p. 469.
J Vide sec. H, Chap. III, para. 13.
5 IV, p. 465. .
Froc. No. 56 of 1951, sec. 10 in The Laws of South West Africa r95r, Vol. XXX,
pp. I08•r 10. SOUTH WEST AFRICA
332
urban area. If there is a reasonable prospect of the Native concerned
fmding employment, further permits are granted as a matter of course.
Applicants also take no notice of the fact that section ro of the Procla
mation applies only to unexempted Natives. The section specifically
mentions certain classes of Natives who are exempt from its provisions
and thus do not need permission to seek employment in urban areas 1•
20. Applicants further allege that Native workseekers must register
with designated officers upon entering urban and proclaimed areas 2.
The true position, however, is that the relevant legislation-Regulation 2
of the Regulations for Proclaimed Areas -applies3 only to proclaimed
areas and then only to unexempted male Natives entering such areas 4•
In view of Applicants' often recurring complaint that Respondent
classifies all inhabitants on the basis of group and ignores individual
merit 5, it is perhaps not surprising that Applicants prefer to ignore the
exemptions-sa inconsistent with their complaint-provided for in the
above as well as in other legislation.
21. Applicants also allege that under influx control Natives who do
not succeed in finding employment within a period of two weeks "are
sent back to the very areas they had tried to escape" 6, i.e., the reserves.
Respondent has already pointed out 7 that in effect a Native may be
permitted to remain in an urban area for an indefinite period for the
purpose of finding employment, and that further permission will be
refused only if there is no reasonable prospect of his finding employment.
Even then there would be no question of such a Native being sent back
to a reserve. He would be perfectly free to proceed to another urban
area or to the rural areas of the Police Zone in order to find employment.
Surely, Applicants cannot seriously suggest that a Native should be
allowed to loiter in a town if there is no prospect of his finding employ
ment. Under such circumstances it would undoubtedly be in the interest
of the Native concerned, as well as that of the community as a whole,
that he should proceed to another place where employment can be
obtained, or to his reserve where invariably some means of subsistence or
organized relief are available to him.
22. Applicants conclude by saying that "'[i]nflux control' cannot
justify the total ban on residence by 'Natives' in the urban areas of the
Territory" 8, and that "[h]ousing problems, no matter how serious,
cannot rightly be the basis for 'Native' urban residence limited to
'European' labour requirements" 8• Respondent faiis to understand what
is meant by "the totalban on residence by 'Natives' in the urban areas".
Whilst it is true that the influx of Natives into urban areas is controlled,
neither the relevant legislation nor any other statutory provision abso
lutely prohibits Natives from rcsiding in such areas, whether on a tempo
rary or a permanent basis.
1 III, p. 289.
2 IV, p. 465.
3 G.N. No. 65 of r955 in The Laws of South West Africa I955, Vol. XXXIV,
pp. 750-788.
4 III,p. 290.
~ IV, pp. 468, 469, 470, 473 and 475.
6 Ibid., p. 468.
1 Vide para. rg, supra.
8 IV, p.469. REJOINDER OF SOUTH AFRICA 333
The second allegation shows a complete lack of appreciation on the part
of Applicants of the aims and effect of the influx control legislation. The
emphasis does not fall on the "labour requirements" of any specific
group, but on the possibility of the would-be Native immigrant making a
living in the urban area. Many Natives are to be found in urban areas
who are not employed by Europeans, such as teachers, professional men,
administrative officiais, etc. Moreover, Native labourers in such areas are
also employed by Coloured persons and other Natives, and no Native
will be refused permission to remain in an urban area if he can fmd
employment, be it ,vith a European, Coloured or Native employer. In
this regard it may be mentioned that there are in fact over 300 Native
1
independent contractors in the urban areas of the Police Zone .
23. In conclusion, attention is drawn to the fact that Applicants do not
dispute, or attempt to controvert, Respondent's demonstration that the
Permanent Mandates Commission was aware of, and approved, Respond
2
ent's influx control policy •
24. In view of what has been stated above, it is clear that Applicants
have failed to show that the restrictions on the rights of residence of
Natives in urban areas were conceived to keep Europeans and Natives
apart "except for purposes of migratory labour" for the benefit of \Vhite
employers.
D. Passes and Pennits
25. Applicants allege that the "complex of laws and regulations"
restricting the rights of residence of the Native groups "... is supple
mented and complemented by what have become generally known as the
'pass laws'" 3•
This allegation is in broad substance true, but Applicants again fail to
mention that the restrictions on the rights of res1dence of members of
the 'White and the Baster groups are also implemented by enactments
4
sirnilarin effect to "pass laws'' •
26. As has been pointed out 5,Respondent gave a full exposition in the
Counter-Memorial of its pass or permit system, covering the practical
need therefor; historical origins and development thereof, both in South
Africa and South West Africa;· underlying considerations as found by
Commissions of Enquiry and other qualified observers; steps taken to
minîmîze inconvenience by providing for exemptions, and also through
modernization and simplification; and the fact that the Permanent
Mandates Commission was aware of the system and never commented
adversely thereon 6•Save for disputing the latter fact, Applicants do not
attempt to controvert Respondent's exposition, and, in fact, ignore it.
Yet Applicants bluntly allege that "... the pass system is the mechanism
enabling Respondent to keep 'Natives' and 'Europeans' apart, except
for purposes of migratory labour'' 7•It should be observed that Applicants
furnish no proof of this sweeping assertion. Their approach seems to be
1 Departmental information.
% Ill,p. 326.
' IV, p. 465.
• Vide HI, pp.308-312. .
s Vide Chap. II, para. 4, sup,,a.
~ Il[, pp. 299-313.
7 IV, p. 470.334 SOUTH WEST AFRICA
that since the restrictions on the rights of residence of the Natives were
conceived to keep the groups apart save for the purposes of miçratory
labour, the same must a fortiori be true of the pass legislation, wh1chwas
admittedly designed to give effect to, inter alia, Respondent's reserve
policy. Respondent has already refuted Applicants' charge pertaining to
restrictions on residence, and it is consequently unnecessary to dwell at
any length on their identical char~e relative to the pass laws. Respond
ent's answer to this charge is conta.merl in the following paragraphs.
27. Any policy in terms of which certain areas are reserved for specific
population groups will obviously be rendered nugatory in the absence of
some system controlling the movement of members of one group into,
and within, the area of another. Respondent believcs that the only sys
tem by means of which efficient control can be exercised, is a pass or
permit system. For this reason members of the \Vhite group need a permit
to enter a Native reserve or urban Native residential area. For the same
reason a pass is required by northem Natives to enter the Police Zone,
and by Natives living in the reserves in the Police Zone to travel in the
areas inhabited by the \Vhite group. It follows that the reasons-sound in
Respondent's view-which gave rise to the reserve policy, likewise
render desirable a pass or permit system.
In addition to the above, Natives living in the Police Zone but outside
the reserves need a pass when travelling in the Zone. The reasons for this
requirement were explained in the Counter-i\Iemorial 1• The areas
occupied by the \Vhite group have, since the assumption of the J\landate,
offered such extensive opportunities of employment to members of other
groups that large numbers of Natives, some from other parts of the
Territory, and some even extra-territorial, have been attracted to these
areas. This has made it necessary to create machinery for the control of
entry into, and movement within these areas, in order to protect the
interests of the settled \Vhite and non-White communities. ln the absence
of such machinery it would obviously be impossible to establish whether
any particular Native travelling in the said areas is an extra-territorial
Native, an inhabitant of the northem territories, an inhabitant of a
reserve in the Police Zone, or a Native living in the areas inhabited by the
\Vhite group; in other words, to establish whether such a Native is
entitled to be in the Police Zone.
28. In alleging that the laws "implementing apartheid by restricting
freedom or residence of the indigenous inhabitants of South West
Africa" 2 are supplemented by the pass laws, Applicants also rely on
legislation in terms of which a Native "must have a written permit
2
enabling him to remain in an urban or proclaimed area" •Apart from
the fact that the relevant legislation does not apply to exempted Na
tives 3,it is, as already stated, not primarily based on a policy of separate
development or differentiation • It is unnecessary to repeat here the
reasons why Respondent deems the uncontrolled congregation of Natives
in urban areas socially and economically undesirable 5, reasons which, as
1
2 IV, p.299.
Ibid.,p. 465.
• Vide III, p. 289 (paras189 and 190).
• Vide para. 18, supra.
' Vide Ill,pp. 279-287. REJOINDER OF SOUTH AFRICA 335
pointed out above 1,are in no way controverted by Applicants and are in
important aspects not even discussed by them in their Reply. It will be
evident that if influx control is necessary, then a permit system to ensure
efficient control is also necessary.
29. Although Respondent believes that a pass or permit system is
indispensable, it also believes in revising and adapting the detailed
provisions and application thereof from time to time in order to cause as
little inconvenience as possible, consonant with effective achievement
of the salutary objectives of the system. For this reason the Natives
(Abolition of Passes and Co-ordination of Documents) Act of 1952
(S.A.) i abolished the old pass laws in South Africa and introduced a
new system in tenns of which the possession of a reference book incor
porating an identity card relieves the holder of carrying other documents,
including passes, as provided for in the earlier laws 3•As indicated in the
Counter-Memorial 4, Respondent intends also to revise and simplify the
system in South West Africa, but has met with practical difficulties which
require to be overcome. The Department of Bantu Administration and
Development is at present considering the revision and simplification
of the existing system in a manner best suited to the circumstances of
South West Africa, and practical developments in that regard can there
fore be expected in the near future.
30. With reference to steps taken by Respondent to ensure that the
application of its·pass or permit system causes the minimum of incon
venience, Applicants allege that-
"[t]he essence of the evil is not that passes are difficult to obtain, but
that a system is enforced in which individuals are categorized and
treated solely as members of a 'group', notas persans 5 ".
This allegation pertains to the newly formulated aspect of Applicants'
case and bas already been dealt with in general 6• The factual aspect of
the allegation is, however, also not correct. As has been pointed out,
provision for exempting particular individuals is made in, inter alia, the
7
general pass law 8 , in the legislation implementing Respondent's influx
control policy ,and in the Proclamation providing for the issue of curfew
restrictions 9• It is consequently untrue that Natives are treated "solely
as members of a 'group' ··.
Applicants' said allegation is rather surprising in view of the fact that
they state, in connection with their assertion that the pass laws supple
ment the restrictions on the "freedom of residence of the indigenous inha
bitants", that "Applicants concede the existence of class exemptions ...
butthesecannotchangetheessenceofthecomplaint" 10(italics added.)
Yet, when expounding the "essence of the evil" of the pass system,
Applicants conveniently ignore the existence of exemptions "which
cannot change the essence of the complaint".
2 Vide para. 13, supra.
3 Act No. 67 of 1952 in Statu/es of the Union of South Africa r952, pp. ro13-ro3r.
III, pp. 304-305.
• Ibid., p. 319.
s IV,p. 470.
6 Vide Chap. I, paras. 4-5, supra.
7 Vide III, p. 315.
8 Ibid., pp. 289 and 290.
• Ibid., p. 328.
10 IV,p. 465, footnote 7.336 SOUTH WEST AFRICA
31. In support of their general allegation that the pass or permit
system is "evil", Applicants rely on a newspaper report of a statement
by Mr. H.F. Oppenheimer, and on an excerpt from a study of the Inter
national Commission of Jurists 1.
With reference to conditions in South Africa, Mr. Oppenheimer is
reported to have said that the pass laws and other legislation operate to
prevcnt Natives from obtaining the right of permanent occupation in
urban areas. He sought to support this general statement by alleging
that if a Native in an urban area loses his job and does not find another
within a short period, "he may be uprooted and forced to go to quite a
different part of the country". In Respondent's view Mr. Oppenheimer
was giving an exaggerated and distorted description of the situation in
South Africa. In so far as he was relying on the possibility of orders of
removal for vagrancy and idleness, there is no question of their operation
in the case of Natives who "lose their jobs and do not find another one
within a short period" 2•South West African legislation similar to South
African legislation pertaining to idle Natives in urban areas was dealt
with in the Counter-Memorial, and it was shown that the said legislation
affects a Native only if he is habitually unemployed and has no sufficient
honest means of livelihood 3•
ln so far as Mr. Oppenheimer was relying on South Aftican influx
control measures, in that respect also there can be no question of the
summary removal of a Native who has been living in an urban area and
then has the misfortune to lose his job 4. Furthermore such a Native
cannot be "forced to go to quite a different part of the country" 1.If it
is clear that he cannot possibly fi.ndanother job, he can at most be forced
to leave the particular urban area 5.
It is particularly difficult to understand how "the growing number of
intelligent and educated men who hold responsible positions", referred
to by Mr. Oppenheimer. should have special concem in the above respects,
for there is usually an abundance of opportunities for such men to make
a living in South African urban areas. In the \Vhite part of the economy
skilled and semi-skilled Native employees are at a premium. and in the
Native urban areas there is no ceiling to the economic, professional
and administrative positions which they can achieve. Consequently
there is no reason why such "intelligent and educated" men should find
themselves without remunerativc cmployment for a period of time which
cannot be covered by temporary permits, or a fortiori why they should be
habitually idle and without honest means of livelihood.
. It should also be mentioned in this connection that Mr. Oppenheimer
is not only an industrialist, but also a politician. He was for some years
a member of the South African Parliament, in opposition to the present
Govemment, and though his parliamentary career has ended he is still
regarded as one of the leading figures in an opposition group known as the
"Progressive Party". The members of this party commendably concem
themselves with questions of according human rights and dignity to
ail persons, but proceed in this regard {as Applicants do) from the basic
iIV, p. 470.
2 Ibid. (ltalicsadded.)
3 III, p.215 and vide Cha . V, para. 8, infra.
• Vide para. rg,supra.
' Vide para. zr,supra. REJOINDER OF SOUTH AFRICA 337
political premise that the objective is to be sought through a particular
means only, viz., by moving in the direction of an integrated, multi-racial
society. Criticisrn of the kind cited by Applicants is usually intended to
advance the cause of this political movement, and is not unnaturally
inclined to exaggerate hardships and inconveniences said to be involved
in Respondent's policy of attempting to find, through separate develop
ment, a solution which will be fair and just for ail in terms of human
rights and dignity. Mr. Oppenheimer's quoted comment appears to be
no exception.
32. As regards the so-called study of the International Commission of
Jurists--which also deals with conditions in South Africa-it is apparent
that the Commission mcrely summarized the provisions of certain laws
without paying any attention whatsoever to the socio-economic condi
tions which gave rise to their enactment. So, for instance, the Commission
summarizes-not entirely correctly-the statutory provisions implement
ing Respondent's influx control policy in South Africa, and eventually
concludes that-
"... the presently existing restrictions of movement can only bring
forth the conclusion that the Government has for the purpose of
allocation of labour betwecn industry and agriculture erected a
careful system of discrimina tory legislation 1".
No attempt is made to examine the rcasons for the enactment of the
legislation in question, and not a word is saicl about the social and econo
mic evils flowing from the uncontrolled congregation of Natives in urban
areas.
As has been pointed out 2,the Commission's conclusion-in the passage
quoted by Applicants-that the movement of Natives is regulated to
meet the industrial and agricultural rcquirements of the European, is
without substance. lndeed, if that were its intention, Respondent would
not allow Natives to carry on business or to practise trades in urban as
well as in rural areas. It is true that a Native seeking employment may
be refused permission to settle in an urban area if thcre is a surplus of
labour available in such an area, but then regard is had to the require
ments of \Vhite as well as Native employers 2• Moreover, permission is
normally granted when the purpose of the applicant is not to obtain
employment, but to engage in some other useful occupation for which
there is scope within the urban area concemed. Surely, if Respondent
were concerned only about the requirements and convenience of \Vhite
employers, it would not control the influx of Natives into urban areas,
since the bigger the surplus of labour, the less the wages that \Vhite
employers would have to pay.
33. It should also be observed that the Commission made no mention
of the system of labour bureaux in South Africa, the existence of which is
inconsistent with the finding of the Commission. The major fonction of
these bureaux is to provide an employment agency whereby Bantu work
seekers are assisted, free of charge, in securing employment, and at the
same time to canalise, without compulsion, available labour in accordance
with the demand therefor. This can, however, not be accomplished with-
1International Commission of Jurists, South A/rica anthe R1.i.ofLâw (196o),
p.31.
~ Vide pam. '2'sup.,a.338 SOUTH WEST AFRICA
out also conducting a system of persona] identification. Without thesetwo
systems, identification and labour bureaux, the Native labour market
would soon revert to the chaotic employment and living conditions which
prevailed prior to the inauguration of the labour bureaux system, i.e.,
squatting, overcrowding, vagrancy, crime, low wagcs and poor working
conditions. It is therefore clear that the pass system-which ensures the
necessary personal identification-far from operating to the detriment
of the Native labour force, serves to protect the interests and welfare of
Native labourers.
34. In connection with their assertion that the pass laws supplement
and complement the restrictions on the rights of residence of Natives,
Applicants also refer to legislation in terms of which a Native "must have
a written permit to avoid possible curfew restrictions in 'White' urban
areas" 1• Although it is true that curfew notices have been issued in respect
of 14 urban areas in the 2erritory-the usual curfew hours being
between 9 p.m. and 4 a.m. -Applicants again ignore the fact that these
notices do not apply to cxemptcd Natives 3•Such Natives consequently
do not need a permit to be in a White urban area during curfew hours.
In the Counter-Memorial Respondent pointed out that the curfew
restrictions were conceived to prevent disturbances and crime, and stated
that with further advancement in the general educational level of the
Native populations in the cities and the towns it was hoped that such
restrictions would ultimately become unnecessary 2•In this regard Appli
cants allege:
"Similarly, curfew restrictions on 'Natives' are said to protect
against 'disturbances' and 'crime'. Yet such curfew restrictions ap
ply only in 'White' areas, and only to 'non-White' peoples 4."
This allegation is unfounded. As was pointed out in the Counter
Memorial, the type of restrictions involved in a curfew is entirely recipro
cal. The location regulations control the movement of members of the
White group in Native urban residential areas at least as stringently in
that White persons may enter such areas only on the authority of the re
2
sponsible superintendents, whether by day or by night •Moreover, curfew
restrictions are in their very nature appropriate only to circumstances of a
special nature, viz., to combat the threat which an accumulation of relati
vely under-developed persons could constitute to more developed commu
nities and their possessions in towns built on the European modeL They
were for that reason not appropriate for Natives in Native areas or even
in rural parts of the White area.
35. Finally Applicants allege that Respondent's exposition 5 of the
attitude of the Permanent Mandates Commission toward the pass system
6
is not correct •In this regard Applicants rely on observations of Lord
Lugard at the Third and Fourth Sessions of the Commission.
It is true that at the Third Session, during the preliminary examination
of Respondent's annual report, Lord Lugard called attention to the
pass system and that the Chairman of the Commission then commented
1IV, p. 465.
2 Vide III,p. 328.
3Ibid., p. 328.
4IV, p. 471.
5
6III, pp.312-314.
IV, p. 471, footnote 7. REJOINDER OF SOUTH AFRICA 339
that it would be well to ask the reasons for the restrictions imposed by
the system. At that stage (I923) the members of the Commission were not
fully acquainted with conditions in South West Africa and were obviously
anxious to establish whether valid reasons existed for the enactment of
the pass laws. It is therefore highly significant that after Respondent's
representative had explained the background to, and the reasons for,
Respondent' spass policy, M. d'Andrade during the same Session observed
that-
"... the pass system was used in many of the colonies of South
Africa and the territories of the Union. It was analogons to the pass
port system in Europe. The passes indicated the origin of the Native,
1
who was his chief, etc. It was no burden on the Native ."
During the Commission's Fourth Session, after Respondent's repre
sentative had. in reply to Lord Lugard's question referred to by Appli
cants, explained that the pass system was absolutely neŒssary under
existing conditions, the Chairman remarked that the presence of the
said representative and his very clear replies to questions "... had been
very useful in clearing up the varions doubts" 2•
During later sessions the members of the Commission never commented
adversely on Respondent's pass or permit policy, in spite of repeated
references thereto in annual reports--as summarized in the Counter
Memorial 3 and not controverted by Applicants-and it is therefore
obvions that the Commission did not regard the system as being objec
tionable.
36. In Respondent's submission the above analysis of Applicants'
charges relative ta the pass laws, and of the supporting material offered
by them, shows conclusively that the said charges are unfounded and
without substance.
1 P.M.C., Min., III. p.Ioo.
2 P.M.C., Min., IV. p. 64 and vide III,p.313.
3 III,pp. 3I2-313. CHAPTER V
MEASURES NOT RELATED TO THE RESERVE POLICY
A. General
I. It will be recalled that although the measures referred to by Appli
cants in the Memorials under the heading Security of the Person are not
discussed in the Replywith a view to substantiating their original charges,
Applicants now contend that the provisions relating to vagrancy and
idleness and undesirable persons in reserves were also designed to keep
Natives and Europeans apart save for the purposes of rnigratory labour 1•
The same charge is made in respect of the measures controlling egress
from and entry into the Territory.
These measures, which are basically unrelated to Respondent's reserve
policy or the general policy of differentiation 2,will be dealt with herein
atter with a view to analysing the material on which Applicants rely in
support of their charge.
B. Egress from and Entry into the Territory
2. As regards entry into the Territory, Respondent stated in the
3 4
Counter-Memorial that section 4 of Proclamation No. II of 1922 -
which requires a Native to obtain a permit for the purpose of entering
the Territory-does not apply to inhabitants of South West Africa.
Respondent also explained that the purpose of the section is to protect
the non-White employees of the Territory, by ensuring that they are
not displaced by foreign non-Whites from the Republic and other
countries 3• All this is in no way controverted, or even dealt with, by
Applicants in their Reply. It is consequently clear that there can be no
substance in Applicants' assertion-not supported by any evidcnce
whatsoever-that this measure was conceived to keep Natives and
5
Europeans apart save for the purposes of migratory labour •
3. In respect of egress from the Territory, Respondent pointed out in
the Counter-Memorial 6that section II of the aforementioned Proclama
tion, which provides that Natives may not leave the Territory without a
pass, does not apply to:
(a) Native females;
(b) Native males of the age of 14 years and under;
(c) exempted Natives.
Respondent explained that the required pass is in the nature of a passport,
' Vide Chap Il, para. 7, supt-a.
2 Ibid.,para. 9,supra.
3 III,p.321.
• Pmc. No. II of 1922, sec. 4 in TheLaws of South West A/rica I9I5-r922, Vol. I,
p. 750; as amended by Pt-oc. Xo. 24 of 1935, sec.1 in The Laws of South West A/rica
r935, Vol. XIV, p.140.
5 IV, p.471, read with p.470.
6
III, p.319. REJOI:-l"DER OF SOUTH AFRICA 341
and that the provision was designed to ensure that Natives in the Terri
tory who are inexperienced, illiterate, or in poor financial circumstances,
do not in ignorance embark upon trips to South Africa without realizing
1
the implications of such a venture . With reference to this explana
tion, Applicants allege:
"Exempted from the requirement, however, are 'Native' females
and 'Native' males 14 years of age and under, thus confirming that
the legislation in fact is designed to serve the labour requirements of
the 'Europeans' in the Terri tory and the Republic 2."
Applicants' inference isentirely unjustified; indeed, it involves a complete
non sequitur. It will be recalled that the Proclamation was enacted after
a Commission had .been appointed to enquire into Native Affairs in the
Territory 3. The Commission recommended that provision be made for
four types of passes, but specifically stated that the proposed pass law
should not be applicable to youths at all "... as it isundes1rable to expose
children to a position of having to undergo imprisonment for contraven
tion of the pass laws" 4. It was for this reason. and also for the reason
that according to Native law and custom both females and male youths
are regarded as minors who almost invariably travel in the company
of an adult male, that none of the provisions of the Proclamation relating
to passes was made applicable to Native females and youths.
It follows that there is no justification for the assertion that provisions
regarding egress from the Territory were conceived "to serve the labour
requirernents" of members of the \Vhite group.
C. Vagrancy and Idleness
4. In the Counter-Memorial 5 Respondent dealt fully with the le~is
lation in the Territory pertaining to vagrancy and idleness with a v1ew
to refuting Applicants' charges that such legislation subjects Natives to
arbitrary arrests and administrative orders. As already indicated ,
Applicants, in the Reply, seem to abandon their former line of attack,
and now rest their case on the suggestion that this legislation is part of-
"... a mechanism whereby the policy of apartheid is implemented
and 'non-White' inhabitants are confined to the poorest areas of the
Territory, except for purposes of rnigratory labour on behalf of
'European' employers 7".
It should be observed that Applicants do not attempt to controvert,
and in fact do not even refer to, the full exposition in the Counter-:M.emo
rial covering, inter alia, the historical background to and need for the
measures in question; similar legislation in a large number of other coun
tries; and the need for powers of arrest and administrative action to ren
der the legislation effective. In demonstrating that Applicants in fact do
no more than draw unsubstantiated and completely incorrect inferences
1 III, p.320.
2 IV, p. 471.
3 Ill, p.310.
4
Report of the Native Reserves Commission (S.W.A.), 8 June 1921 (unpublished),
p. 17.
~Ill, pp. 197-22 I.
6 Vide Chap. II, para. 9, supra.
' IV,p. 464 and vide also pp. 471-472.342 SOUTH, WEST AFRICA
from the very existence of the measures concerned, Respondent wiI1,in
the succeeding paragraphs, deal separately with statutory provisions
relating to :
(a) vagrancy;
(b) idle persons in urban areas;
(c) idle and undesirable persans in Native reserves.
5. In the Counter-Memorial 1 Respondent corrected the erroneous
impression created in the Memorials 2 that the Vagrancy Proclamation
applies only to Natives. Applicants apparently now accept that the
Proclamation applies to all persons-irrespective of race-but allege that
"... it cannot be denied that it is much easier for a 'Native' to be found a
vagrant, than it is for a '\Vhite' man" 3•
Respondent denies that it is easier for a Native than for a \Vhite man
to be declared a vagrant. The sarne provisions of law apply, and the same
degree of proof is required for a conviction, irrespective of the race of
an accused. It is true that more Natives than White or Coloured persons
are found guilty under the provisions of the Proclamation, but this is
due to socio-economic conditions and not to any objectionable feature
or design of the legislation itself, or of the application thereof in practice.
More Natives than White persons are no doubt found guilty of theft,
assault and other offences ail over Africa, but nobody has suggested that
the laws concerned are for that reason to be regarded as aimed at the
oppression of Natives for the benefit of \Vhite persons.
6. With reference to the fact that the Proclamation is in practi'ce only
applied to the Police Zone, exclusive of the Native reserves, Applicants
allege:
"It is applied precisely where the 'Native' rnost needs his pass
in the 'White' urban areas. The lack of a pass might well result in
a 'Native' being declared a vagrant 3."
This statement is wrong in several respects. Apart from the fact that
the Proclamation is also applied to the rural areas of the Police Zone,
it is not true that a Native may be declared a vagrant merely because he
lacks a pass. Whilst the possession of a pass will almost invariably and
conclusively show that the Native concerned is not a vagrant, the oppo
site does not hold good. In the event of a charge of va~rancy the prosecu
tion must prove that the Native concerned fails withm the ambit of the
definition of "an idle and disorderly person", and this definition contains
no reference to passes 4• Indeed, the Vagrancy Proclamation was enacted
two years before the general pass law.
· What is even more serious, is that the above allegation seeks to create
the impression that the Proclamation was conceive"dto punish vagrancy
only in so far as it affects the interests of the White inhabitants of the
Territory.
In the Counter-Memorial 5 Respondent explained the circumstances
prevailing in South \Vest Africa in 1920, which made it irnperative to
1 III, p. I98.
2 1, p.144.
3 IV, p. 47I.
4 Vide III, p.197.
' Ibid., pp. 199-200. REJOINDER OF SOUTH AFRICA 343
ensure some degree of social and economic stability in the Territory.
Respondent also pointed out that the Proclamation is in practice not
applied to the northern areas or to the Native reserves in the Police
Zone 1. In the former areas tribal authority and discipline were still
intact when the Mandate was assumed, and the problem of vagrancy has
never presented itself there to any appreciable extent. In the case of the
reserves in the Police Zone, vagrants can be dealt with under the provi
sions pertaining to idle persons in Native reserves, to which reference is
made hereunder 2,in lieu of being sentenced as criminals under the Va
grancy Proclamation. Applicants do not controvert, or even discuss,
these facts, but merely make the unsupported suggestion that the Vagran
cy Proclamation was intended to serve only the interests of the White
group. This suggestion entirely ignores the fact that in addition to Euro
peans there are the Natives themselves whose interests require protection
.from vagrants.
7. Applicants also allege 3 that Respondent has not correctly stated
the attitude of the Permanent Mandates Commission with regard to the
4
Vagrancy Proclamation •They refer in this regard to criticism expressed
by the Commission relative to only one aspect of one particular provision
of the Proclamation (section 14}(which empowers a magistrate to order
an accused to a term of service on public works, or to employment under
a municipality or a private person othei than the complainant, in lieu
5
of the prescribed punishment • It will be observed that the Commission's
objection was confined to what it termed the power "of imposing forced
labour for the bene/ifof private individuals" 6, and did not concern the
aspects of service on public works or employment under a munici
pality, or, indeed, any other aspect of the Proclamation. This criticism
by the Commission, therefore, concerned a minor and incidental aspect
of the Proclamation which was not complained of, or even mentioned at
all, in the Memorials. Applicants' complaints in the Memorials concemed
only sections l and 3 of the Vagrancy Proclamation 7, and it was with
specific reference to these provisions that Respondent stated in the
Counter-Memorial 4 that the Permanent Mandates Commission never
raised any objections. The weight of this consideration is, indeed, en
hanced by the fact that the Commission had scrutinized the Proclamation
with suffident care to bèable to criticize only a minor aspect of a particular
provision thereof. In view of the absence of any complaint by Applicants
regarding section 14 of the Proclamation, Respondent did not consider
it relevant to refer to the above-mentioned criticism of the Commission.
Had that topic been under discussion, Respondent would·have pointed
out that in deference to the views of the Commission persans dealt with
under the Proclamation are not ordered to take up employment with a
private persan 8• ·
In the circumstances there is no justification for Applicants' statement
1 III,p. 2or.
2 Vide para. r6, infra.
3
IV, p.471, footnote 7.
5 Vide III,pp. 2_13,214..
Proc. No.· 25 of 1920, sec. 14 in The Laws· of South West Africa I9I5-r9zz
Vol. I, p. 284.
6 P.M.C., 1\Iin., IIIp. 293. (Italics added.)
7 I, p. r44.
a Departmental information. SOUTH WEST AFRICA
344
that "Respondent's version of the attitude of the Permanent Mandates
Commission toward ... the Vagrancy Proclamation is not correct" 1•
On the contrary, Applicants have in no way controverted the fact,
mentioned in the Counter-Memorial 2,that individual members of the
Commission spoke out strongly in favour of the vagrancy legislation
in its general purport.
8. In the Counter-Memorial 3 Re~ndent pointed out that the pro
visions of section 26 of the Natives (Urban Areas) Proclamation 4, which
apply only to idle Natives in urban and proclaimed areas, cover for such
Natives largely the same ground as the Vagrancy Proclamation, which
applies to persons of all groups, irrespective of race. The difference in
substance between the two Proclamations lies in the treatment of the
vagrant or the idle person. Under the Vagrancy Proclamation an offender
is dealt with as a criminal, whereas section 26 of the Natives (Urban
Areas) Proclamation merely provides for administrative action against
idle Natives 5•
\Vith reference to the legislation pertaining to idleness in urban and
proclaimed areas, Applicants allegethat-
"[i]nsofar as 'Natives' are to be found in urban or proclaimed areas,
but are not in the employ ofthe govemment or of 'White'employers,
removal orwork iscertain" 6,
and that-
"[t]he presence in the 'White' zone, of a 'Native', regardless of his
persona! skill or attributes, 'serves no purpose in the absence of
willingness to work' ... 7".
These allegations are nothing short of preposterous. Section 26 of the
Natives (Urban Areas) Proclamation certainly does not provide, and does
not have the effect, that a Native may be declared an idle person because
he is not employed by the govemment or a White person. Accorclingto
sub-section I (a) of the Proclamation a Native is an idle person only if
he is habitually unemployed and has no sufficient honest means of liveli
hood, or if because of misconduct or addiction he fails to provide for his
own support or for that of a dependant.
It will therefore be seen that the section does not affect:
(a) a Native who carries on his own business, or practises an independ
ent profession, trade, art or craft;
(b) a Native employed by another person-European, Coloured or
Native;
(c) a Native who does not perfonn any regular work but may have
honest means of livelihood by reason of accumulated possessions,
maintenance by members of his family, or the like;
(à) an unemployed Native who honestly seeksemployment.
In this regard it may be pointed out that of the approximately 70,000
1 IV, p. 471,footnote 7.
2 Vide 111,pp. 213-214.
3 Ibid., p. :n6.
• Proc. No. 56 of1951, sec.26 in The Laws of South West Africa I95I, Vol. XXX,
pp. 144-146.
s III, p.216.
G IV, p. 465.
7 Ibid.,p. 468. REJOINDER OF SOUTH AFRICA 345
Natives in the urban areas of the Police Zone, approximately 40,000 are
women and children, the vast majority of whom are not in employment at
ail. Moreover, as already stated , there are over 300 Nativeindependent
contractors in these areas, many of whom employ other Natives.
9. Applicants further allege that should a Native be declared an idle
person, he will be rernoved from the urban or proclaimed area,
"... or if he had previously agreed to a contract of employment,
{he} may be ordered to carry out the employment, regardless of his
wishes .. . 2". (Italics added.)
This statement completely misrepresents the true position which was set
out very clearly in the Counter-l\Iemorial 3• If the words italicized above
are to make any sense, in conjunction with "previously agreed", it can
only be on the basis that the Native must have entered into the contract
some time previously and may at the time of being ordered to do so no
longer wish to carry it out. Exactly the opposite is true. The Native
Commissioner or Magistrate concemed may order a Native to enter into
employment only if, subsequent to bis being declared an idle persan, and
therefore immediately be/ore a consequential order is made, such a Native
agrees to enter into a contract of employment which is approved of by
that Native Commissioner or Magistrate. There is consequently no
question whatever of compulsion "regardless of his wishes". This position
is so clear from the wording of section 26 itself and from the discussion
thereof in the Counter-1\Iemorial, that it is rather surprising to find a
persistent misrepresentation thereof in the Reply \ especially after the
5
original misrepresentation in the Memorials ,where no reference was
made at ail to the requirement of agreement on the idle Native's part
was exposed in the Counter-1\Iemorial 3.
IO. In the Counter-Memorial Respondent further explained that, as
regards underlying policy, the provision in question should not be con
sidered in vacuo, as it were, but should be read together with the other
sections of the Proclamation relating to influx control 6. The main
consideration underlying Respondent's influx control policy has been the
necessity to prevent urban and proclaimed areas frorn being overcrowded
with unemployed Natives. It would consequently be rnost unfair to the
law-abidin1; Native inhabitants of such areas, and to Natives who wish
to enter such areas for the purpose of procuring ernployrnent, to allow
"idle" Natives to remain in these areas unless they are prepared to mend
theirways.
II. It should also be observed that section 26 does not provide that an
idle Native must be removed unless he consents to enter "the employ of
the govemment or of 'White' employers", as is suggested by Applicants 7•
The Proclamation contains no provision regarding the race of the
employer. \Vhile it may be true that in earlier times few, if any, non
\Vhites would have been able to qualify as suitable ernployers, the situa-
1 Vide Chap. IV. para. 22, supra.
2IV, p. 472.
3 III, p. 215.
~ IV, p. 472, and vide also the arobiguons earlier renderingat p. 466.
5 I, pp. 127 and 145.
6 III, pp.217-:lIS.
7 IV, p. 4t>5. SOUTH WEST AFRICA
: tion has changed in that respect, and an ever-increasing scope for such
contracts is emerging 1•
12. With reference to the fact that section 26 does not apply to idle
White persons, Applicants observe that-
"[t]he presence in the 'White' zone, of a 'Native' ... 'serves no
purpose in the absence of willingness to work' ... ''.
"A 'European', on the other hand, is in his 'real holI_le'in the
Police Zone; 'absence of willingness to work on his part' is not
relevant 2."
And they say that "so double a standard" is "unconscionable" 2•
It will be obvious that this rendering of the situation, particularly the
suggestion of a double standard, makes nonsense. In the Counter-Memo
rial Respondent went to somc length to explain that section 26 covers for
idle Natives largely the same ground as the Vagrancy Proclamation,
which applies to persons of all groups throughout the Police Zone J.
Applicants completely ignore this factor, and consequently leave out of
account the fact that an idle White person is dealt with as a criminal
offender under the Vagrancy Proclamation, being liable, on conviction, to
a sentence of imprisonment with or without attendant punishment. Save
for the above absurd assertion, Applicants have not attempted to
controvcrt that, as pointed out in the Counter-Mcmorial 3, the only
differentiation involved really opcrates in favour of the idle Native, in
4
that he need not necessarily be treated as a criminal offender •
13. In explaining why the special treatment of idle Natives by the
provisions of section 26 of the said Proclamation was appropriate to
Natives only, Respondent pointed out that such treatment of Natives
falling within the ambit of the definition of "idle persons" might involve
"removal from an area in which their presence serves no purpose in the
absence of willingness to work, to a place which is their real home" 5•
This followed on a passage indicating the premise that "particular
offenders" in fact had "rural homes" where the discipline of reserve
regulations and/or traditional tribal systems could minimize the harmful
effect which their tendency to idleness could occasion to others 4.
Fastening on to the expression "absence of willingness to work",
Applicants state:
"\Vith respect particularly to rights of residence and movement,
Respondent relies heavily upon the premise that restrictions upon
the presence in the Police Zone of 'Natives' defined as 'idle persans',
hence considered 'redundant' to the economy-
'... involves removal from an area in which their presence serves
no purpose in the absence of willingness to work, to a place which
is their real home. These considerations do not apply to White or
Coloured persons whose only real home may be in urban or pro
claimed areas.' (Italics added by Applicants.)
1 Vide Chap. IV, para. 22, supra.
2 IV, p. 468.
3 Ill, pp.2I6-2I7.
• Ibid.,pp. 217-2I8.
' Ibid., p.2r8. REJOINDER OF SOUTH AFRICA 347
Among the purported justifications for thus consigning some 170,000
inhabitants who spend most of their working lives in the Police Zone
,away from their 'real home' without normal family life, to reserves
far from their places of livelihood, Respondent relies upon its version
of history as justifying pre-emption of 70 percent. of the Territory
for a small minority of the population 1." (Footnotes ommitted.)
It will be observed that in this manner Applicants, with reference to
"rights of residence and movement" generally, and as an introduction
to their treatment of those subjects, seek to apply completely out of
context a statement made by Respondent with reference only to one
particular measure complained of by Applicants in regard to Security
of the Person. The result is that something said by Respondent in regard
only to the question of the most effective and most humane method of
dealing with the problem of idleness and vagrancy in urban areas is
distorted as if it were offered as an explanation and justification for the
whole of the general policy regarding control of labour, residence and
movement of Natives. The statement was not intended to have such
application, and cannot in the context in which it appears be read as so
intended. From what has been said above and also in the Counter
Memorial, it is clear that outside of the context of habituai idleness, the
statement quoted by Applicants does not apply. Applicants have thus
again commenced their reply to a portion of Respondent's case, as set
out in the Counter-Memorial, with a distortion of what Respondent in
fact said 2.
14. Applicants' aforementioned allegations are moreover, in their
factual aspects, incorrect and misleading in several respects. In the first
place, section 26 of the Proclamation does not apply to the rural areas
of the Police Zone. Secondly, the section applies only to Natives who
fall within the ambit of "idle persons", and therefore does not affect the
vast majority of Natives living in urban and proclaimed areas. Thirdly,
the section does not-even indirectly-affect "some 170,000 inhabitants".
The total Native population. inclusive of women and children, of urban
and prodaimed areas at present is 70,459 3. And as already pointed out,
only five Natives have been removed from theseareasundertheprovisions
of the section during the last five years 3• Fourthly, the total area.in
respect of which the section applies, comprises only 0.48 percent. of the
whole of the Territory, and there is consequently no question of "pre
emption of 70 percent. of the Territory for a small minority of the popu
lation" 3•
, 15. It is also not correct that Respondent considers "idle" Natives to
be " 'redundant' to the economy" of the Territory. White it is true that
in Respondcnt's view the presencc of ''idle" Natives~as defined in sec
tion 26-in urban and proclaimed areas serves no purpo§e, the said
section was in fact designed to encourage Natives, wherever possible, to
take a constructive part in the economic development of the Territory.
As has been explained, "idle" Natives, instead of being treated as crimi
nals under the Vagrancy Proclamation, are either given the opportunity
to enter into suitable employment or removed from urban or pro-
1 IV, p. 458.
2 Vide also sec. H, Chap. l, par . 5-6supra.
3 Ibid.,para. 6,supm SOUTH WEST AFRICA
claimed areas to their rural homes. If in the latter case such a Native is
removed to a reserve within the Police Zone and remains idle there, he
can be forced to take up employment on essential public works. If his
home is situated in the northern territories, he can be dealt with by the
tribal authorities under Native Iaw and custom. In both instances the
authorities concemed are in a position to ensure that the "idle" Native
does not remain " 'redundant' to the economy" of the Territory.
16. With reference to the legislative measures pertaining to idle and
undesirable persons in Native reserves, Applicants allege that-
"[t]he policy of apartheid is similarly effectuated by Iegislation
authorizing a supenntendent of a reserve within the Police Zone (i.e.,
within the highly developed area of the Territory) to order idle
'Natives' to take up employment on essential public works and
permitting the Administrator to remove 'undesirable' 'Natives'
from certain reserves within the Police Zone ".
By saying that "the policy of apartheid" is effectuated by these measures,
and by emphasizing the fact that the legislation applies only in reserves
"within the highly developed area of the Territory", Applicants appar
entlX seek support for their theme that the measures concerned are part
of 'the mechanism enabling Respondent to keep 'Natives' and 'Euro
peans' apart, except for purposes of migratory labour" 2• It should be
observed that Applicants do not even attempt to controvert Respondent's
explanation of the aims and effects of the measures in question as set out
in the Counter-Memorial 3• In fact, as in so many other instances, Appli
cants merely draw unwarranted inferences from the existence of the
legislation without adducing any proof in support of their charge.
The true position is that neither regulation 27bis -pertaining to
5
idle persons-nor regulation 27 -pertaining to undesirable persons
of the regulations issued under Proclamation No. II of r922 -has any
bearing on Respondent' s policy of differentiation or on the convenience
of members of the White group, and certainly does not have the effect
ofensuringmigratory labour for the requirementsofEuropean employers.
17. In the Counter-Memorial Respondent submitted that no objection
can be raised against the practice of ordering habitually idle and unem
ployed residents of a Native reserve within the Police Zone to take up
employment on essential public works in lieu of being sentenced as a
criminal offender ûnder the Vagrancy Proclamation. This is as much
in the interest of the idle persons themselves as in the interest of their
community, which require the construction of essential public works
such as the building of dams and roads, etc. 7 Respondent also pointed
out 8 that work to be done in terms of an order issued under regulation 27
bis, is work primarily in the reserve itself-and not for the benefit of
i IV, p.472.
z Ibid., p470.
' Vük III, pp. 220-224.
• G.N. No. IZI of I952 in The Laws of South West Africa. z95z, Vol. XXXI,
pp. 834-836.
5 G.N. No. 68 of 1924 in The Laws of South West Africa r9z4, pp. 57-63.
1 P,-o,. No.n of1922, sec.20 in The Laws of South West Africa z9z5-z9zz, Vol. I,
p. 754.
1 m, p.220.
t Ibid., p22I. REJOINDER OF SOUTH AFRICA
349
any White person or White community. And it was stated that it has
for some time not been found necessary to make use of the provision.
The reason why the regulation was not made applicable to the northern
territories, is that in these areas tribal life and authority were still largely
intact. Habitually idle Natives could therefore be dealt with by tribal
authorities according to Native law and custom.
It follows that there is no substance in the suggestion that the Regu
lation subjects the interests of Natives in the reserves to the requirements
of White employers.
r8. As regards the fact that idle Natives in reserves may be compelled
to perform forced labour on essential public works, Applicants refer to
the views of the International Labour Organisation "regarding such
practices" 1. The relevance of the views of this organization in these
proceedings are discussed in another part of this Rejoinder 2. In the
present context it may, however, be relevant to point out that idle
\Vhite and Coloured persons may also be adjudged to a term of service on
public works in terms of the Vagrancy Proclamation 3• It should also be
observed in this regard that Article 3 of the Mandate permits forced
labour for essential public works and services. Furthermore, the pro
visions in question conform to the terms of Convention 29 of the Inter
national Labour Conference 4 in that-
{a) the labour does not enure for the benefit of private persons, and
(b) a sufficient wage has to be paid.
r9. As regards regulation 27, it is truc that provision is made for the
removal of undesirable Natives from certain reserves in the Police Zone.
As pointed out in the Counter-Memorial 5, the regulation was introduced
to promote order and good government in those reserves in which there
would initially be little social cohesion and discipline by reason of the
fact that scattered remnants of varions tribes settled in such reserves.
It is consequently clear that the regulation serves no economic purpose
whatever, and that it is aimed at the general benefit of the communities
resident in the reserves concemed. And, as was aiso pointed out 6, as a
result of the better group relations and tribal discipline which have corne
into being under Respondent's administration, it bas not been found
necessary to make use of the regulation for a considerable period.
20. In view of what is stated above, Respondent submits that it is
abundantly clear that none of the provisions pertaining to vagrancy or
idle and undesirable persons supports Applicants' charge of a design to
keep Natives and members of the \\'hite group apart "except for purposes
of migratory labour" 7•
1IV, p. 472, footnote 4.
2 Vide sec. H, Chap. IV, paras. 29 and 32, supra.
3 Vide para. 7, supra.
4 Vide Convention concerning Forced or Campulsory Labour of 28th June 1930,
International Labour Office, Report of the Ad Hoc; Committee on Forced Labour,
E/2431 (1953), pp. 140-143.
) III,p. 222.
6 Ibid., p.224.
7 IV, p. 470. CHAPTER VI
CONCLUSION
I. It will be recalled that, apart from the alleged applicability of their
newly fonnulated legal norm of "non-discrimination or non-separation",
the existence of which Respondent has denied 1, Applicants' case as for
mulated in the Reply, relevant to the aspects of govemment here in
issue, rests solely on the charge that Respondent by design keeps Natives
and Europeans apart in such a manner as to confine the Natives "to the
poorest areas of the Territory"; the only exception made being to tolerate
"the presence of 'Natives' " in the White areas "as migrant or temporary
labourers for 'European' employers" 2•
2. In dealing in the foregoing chapters with the measures relied upon
by Applicants, Respondent has demonstrated that Applicants do not
afford any proof to substantiate their charge, and that the inferences
drawn by them from the mere existence of the measures in question are
entirely unjustified. It suffiŒs, therefore, to reiterate that Applicants'
charge is unfounded and without substance.
1 Vide Chap. 1, paras.4-5, supra.
z Vide Chap. Il, para. 10,supra. PART IV
Alleged violations by Respondent of
Article 4 of the Mandate
CHAPTER I
INTRODUCTION
I. In this Part of the Rejoinder Respondent deals with section A of
Chapter VII of Applicants' Reply 1 and Annex 9 thereto 2, concerning
alleged violations by Respondent of the "military clause", Article 4 of
the Mandate.
z. It may be convenient to draw attention at the outset to certain
basic features of Applicants' case on this subject, asit now stands. Thesc
are the following:
(a} The case now fonnulated in the Reply exhibits a major shifting
of ground as compared with the case fi.rst presented in Chapter VII
of the Memorials. The changes relate to the Iegal as weH as to the
factual aspects of the case presented, and manifest themselves
both in the general approach and in the particular charges made.
In the process the case originally made has in some respects been
abandoned entirely, and in others almost entirely. To a greater or
lesser extent each of the original charges is now sought to be founded
on new grounds, legal or factual or both; and a completely new
charge of a dragnet nature has been added.
(b) On analysis, stripped of their ve1biage, and correlated to true facts
which are in no way controverted by Applicants, the four charges
now sought to be presented will be found to rest fundamentally on
the following propositions:
(i) As regards the Regiment Windhoek: that although an institution
established, equipped and maintained solely for the training
of Native inhabitants of South West Africa for purposcs of
interna! police and the local defence of the Territory, would
not be considered to be a "military base or fortification" within
the meaning and intent of Article 4 of the Mandate, and would
not be prohibited by that clause, an identical institution,
except for the training being of European inhabitants of South
West Africa, is to be considered such a "military base" and
therefore prohibited.
(ii) As regards the alleged military landing ground in the Walvis
Bay area: that an installation admittedly situated outside the
boundaries of "the territory over which a Mandate [was]
conferred", as described in Article r of the Mandate, is never-
1IV, pp. 553-564.
lIbid., pp. 565-571.352 SOUTH WEST AFRICA
theless to be considered to be "in the territory" within the
meaning and intent of Article 4 of the Mandate 1.
(iii)As regards various landing strips : that a few landing strips at
varions places in South West Africa, which are in fact isolated,
unfortified and unmanned, and predominantly serving ordinary
administrative and civil purposes, are to be considered "military
bases" within the meaning and intent of Article 4 of the
Mandate, and that their maintenance is therefore forbidden
in toto, merely because they are occasionally and intermittently
used by airerait of the South African Air Force in the course of
training pilots for purposes of possible rescue opcrations,
internai security and the defence of the Territory, and "may
at any time be utilized for the purposes of a campaign" 2•
(iv) As regards military activity in general: that maintenance
of the above landing strips, coupled with alleged "build-up
of military strength in Walvis Bay" (i.e., outside the Territory),
taken together with alleged "great expansion in the school
cadet corps of the Territory" 3 and the activity of "Commando
Units", and finally "joined with Regiment Windhoek" "
(which is upon the facts purely a training institution for
purposes of interna! police and the local defence of the Terri
tory). have created a situation-
". . . where there is the equivalent of a series of military
bases or potential military bases in the Territory ... 5"
(italics added),
or altematively,
"... where ... the Territory bas been transformed into a
'military base' within the meaning and intent of the Cove
nant and the Mandate 5".
3. In Respondent's rcspectful submission, each of the above pro
positions is so palpably absurd that Applicants' case regarding the mili
tary clause, being entirely dependent on these propositions, hardly merits
further detailed attention. However, for the sake of completeness,
Respondent doesgive detailed attention thereto in the succeeding chapters,
the length of the treatment being occasioned mainly by the demonstration
of the fallacies, of the shifting of ground, and of the novelty, which mark
the Applicants' case as now presented.
4. Attached to Chapter VII of the Reply thcre is an Annex 9 which
puryorts to contain "Supplementary Material with respect to Rcspond
ent s violations of Article 4 of the Mandate" 6•
To a large extent the material in the said Annex consists of a mere
repetition or extension of arguments propounded by Applicants in
Chapter VII of the Reply, or of an addition of particulars to the matters
iIV, p. 56o.
2 Although Applicants further state that they "do not quarrel with 'internai
security and rescue operations in the Territory' ". Ibid .. p. 562, footno1.
3 Italics added.
• Ali quotations from IV, p. 563.
5IV, p. 564.
6 Ibid., p. 565. REJOINDER OF SOUTH AFRICA 353
dealt with in the said Chapter. To avoid repetition Respondent will,
therefore, in its treatment of the law and facts in answer to Chapter VII
of the Reply 1, deal also with such of the material in the Annex as can
conveniently be dealt with at the same tirne, leaving the remainder of
the material in the Annex to be considered in a final chapter 2•
t Chaps. II and III, infra.
% Chap. IV, infYa. CHAPTER II
STATEMENT OF THE LAW
A. Introductory
I. Applicants in the Memorials fonnulated the following legal proposi
1
tions regarding the provisions of Article 4 of the Mandate .
(i) "Armed installations not related to police protection or internal
security fall within the class of 'military bases' or 'fortifications'
and are therefore prohibited by Article 4 of the }fandate 2."
(Italics addcd.)
(ii) "Facilities for police or internat security purposes are permitted,
but not military bases 2." (Italics added.)
(iii) "The type of facility, its location, armament, equipment,
organization and place in the Union's administrative hierarchy
and chain of comma2d determine whether it is a military base
or fortifica tian ."
2. ln dealing with Applicants' aforementioncd propositions, Respond
ent in the Counter-l\lemorial made, inter alia, the following observations:
(a) That there was a basic fallacy in propositions (i) and (ii) in that
Applicants used the limitation in the first sentence of Article 4 of
the )fandate, which concerns the training of Natives, as their
criterion for determining whether a military installation or facility
was a "military base". Their propositions in effect ignored the
distinction between, on the one hand, the training of Natives, which
in terms of Article 4 was prohibited, save for the purposes of internal
police and local defence of the Territory, and, on the other hand,
the training of non-Natives, in respect o3 which the Mandate con
tained no prohibition or limitation •
(b). That the said propositions employed the expression "internal
security", instead of the expression "local defence" which appeared
in Article 4, thereby in effect reducing the two concepts in Article 4,
viz., "internai police" and "local defence", to one, called by Appli
cants "police protection or internai security" 4.
3. Applicants' reaction to the observations restated in paragraph 2
above emerges from paragraphs (3) and (4)of Annex 9 to their Reply 5•
ln paragraph {3)Applicants deal with the question of an alleged "incom
patibility" of the two "propositions" contained in Artide 4 of the Man
date, viz., that Natives of the Mandated Territory may be trained for
police and defence purposes, and that military bases and fortifications
are prohibited. In this regard they advance the following interpretation
as "the most likely, and the only reasonable, explanation":
1
To facilitatereference to the separate propositions a sub-paragraph number is
as1igned to each.
3 I, p. rSr.
Vide IV, pp. 59-60.
• Ibid.,p. 60.
5 IV, pp. 566-567. REJOINDER OF SOUTH AFRICA
355
"bases and fortifications are forbidden, and no facility whose
purpose is to assist the training of natives for police and local
defence is considered to be such a base or fortification 1".
Respondent will deal later 2 with Applicants' reasoning in so construing
Article 4. For the present Respondent is concerned only with drawing
attention to the effect of such a formulation, and to demonstrate that
Applicants now depart from their Statement of Law regarding Article 4
as formulated in the i\lemorials.
Firstly, Applicants now correctly speak of "police protection and local
defence", and no longer roll the two concepts into one 3•Secondly, how
ever, the criterion of being related to police or local defence is now
treated by Applicants as applying only to facilities for the training of
Natives 4. And, inasmuch as they accept that none of Respondent's
facilities complained of by them relates to the training of Natives, the
said criterion now falls out of the picture altogether.
+ In the last-mentioncd respect, Applicants say that-
"[s]ince ... Respondent's military facilities exclude members of the
'Native' population of the Terri tory ... all of such facilities must ...
be scrutinizedin the light ofthe second sentence of Article 4 and in the
broad scopeof the last sentence of Applicants' 'Statement of Law'~".
The last sentence in Applicants' "Statement of Law" in the i\Iemorials
is the proposition marked (iii) in paragraph r above. Again it is evident,
therefore, that in respect of ail their charges of alleged violation of the
"military clause", the propositions marked (i) and (ii} in paragraph I
above are now no longer relied upon by Applicants: indeed, the criterion
of being related to police or local defence is now treated as irrelevant 6•
5. In purported explanation of this completc departure from the stand
7
taken in the Memorials, Applicants allege that they learned that the
Territory's military facilities excluded members of the Native population
onlv when the Countcr-111emorialwas filed; and thev sav that, as a result
of this knowledge, "the immediate reason for pa;t of (their) previous
7
formulation has fallen away" • ln this regard Respondent observes that:
(a) Respondent's policy of cxcluding the Native population of South
West Africa from military training, and limiting such training to
the White inhabitants of the Territory, has been consistent ever
since the inception of the Mandate. The fact of the existence of
such a policy, and that the Permanent Mandates Commission was
fully awarc thereof, appears from Respondent's annual reports
8
to the League of Nations , from the Minutes of the Permanent
Mandates Commission 9, and from the attitude adopted by Re-
1 IV, p. 566.
2 Chap. IV, infra.
3 Vide para. 2 (b), supra.
• Vide para. 2 (a), supra.
' IV, p. 567. The last sentence of Applicants' Statement of the Law is cited in
para. r (iii), supra.
6 Applicants try to keep it alive-vide Cha.p. IV, para. r2, infra-but nowhere
seek to apply it.
7 IV, p. 567. .
8 Vide IV, pp. 54-56, 64 and the annual reports mentioned in footnotes Iand 2
on p. 55 and footnote 2 on p. 56.
9 P.,W.C., Min., XVIII, pp. 147-148; XXVII, p. 170 and XXXI, p. 135. SOUTH WEST AFRICA
spondent in answer to the League Council's request in I924 for
the views of Mandatories on military recruitment 1. Finally, the
existence of such a policy was also common knowledge amongst
commenta tors on the mandate system 2•
With regard to the position after the dissolution of the League,
the Committee on South West Africa mentioned specifically in its
I959 report that-
"[n]ew legislation goveming the defence of the Union of South
Africa and South West Africa, the Defence Act No. 44 of I957,
was brought into force in 1958. 'Non-Europeans' are excluded
from compulsory military service and other provisions of the
Act, however, except that they may be engaged for auxiliary
services as guards or watchmen or to perform other non
combatant duties, or they may engage themselves voluntarily
for service in the South African Defence Force in such capacity
and subject to such conditions as may be prescribed 3".
In the circumstances it is, to say the least, surprising that Appli
cants, who profess to have such a keen interest in what takes
place in the Territory, were unaware until the filing of the Counter
Memorial that there is no military training of Natives in the Terri
tory.
(b} But, even if Applicants were in fact unaware of Respondent's
aforementioned policy, this would still not in itself explain the
departure from their previous formulation and attitude.
It will be recalled that, in their application of the law to the facts
in the Memorials 4, Applicants sought to apply the criterion of
"police and internai security purposes" to each and every one of
the "installations" and "facilities" complained of, without drawing
any distinction in that regard between Natives and non-Natives.
Consistently with the attitude now adopted in the Reply 5, this
cannot be explained except on the basis that Applicants thought
that each "facility" or "installation" involved the training or use
of Natives only, and that the purposes extended beyond police
and local defence. Respondent finds it hard to believe that this
was the case.
6. Having demonstrated in the preceding paragraphs that Applicants
in the Reply discard the interpretation of Article 4 contended for in the
Memorials, Respondent will now proceed to a consideration of Applicants'
comments on the meaning and effect given to the clause by Respondent
in the Counter-Memorial 6• •
Applicants commence by saying-
"Respondent has given a narrow meaning to the 'military clause'
contained in Article 4 of the Mandate by the use of dictionary
definitions and its own assertions 7". (Footnote omitted.)
• P.M.C .• Min., VI, p.9.
2 \Vright. Q., Mandates under the League of Nations (1930), p. 472 and Hall, H. D.,
Mandates, Dependencies and Trusteeskip (1948),p. 67.
3 G.A., O.R., Fourteenth Sess., Suppl. No. 12 (A/4191), p. 12 (para. 84) .
• 1, pp. 182-183.
' Vide paras. 3 and 4, supra.
6 IV, pp. 47-53.
1 Ibid .p. 553. REJOINDER OF SOUTH AFRICA
357
This comment is wholly unwarranted. With regard to the first sentence of
Article 4, Respondent stated that the only possible construction thereof
was that the Mandatory was pennitted to give military training to
Natives for the purposes of internai police and local defence, and that,
inasmuch as the Article as a whole contained no provisions restricting the
military training of persons other than Natives, such persans could be
trained for any lawful purpose 1. This construction, which gives full
effect to the plain and ordinary meaning of the words employed therein,
can surely not in any way be regarded as "narrow", or as resting on
"dictionary definitions" or on Respondent's "own assertions".
2
\Vith regard to the second sentence of Article 4 , Respondent did rely
on dictionary definitions of the term "military base", and with reference
thereto Respondent stated the proposition that failing the purpose of
utilization for operations or a campaign, actual or prospective, by a force
or an army, a place or facility could not be said to be maintained as a
military or naval b_ase.Respondent also argued that, inasmuch as military
training of the inhabitants of the Territory was permissible in terms of
Article 4, and would indeed fall within Respondent's duties relative to the
Territory, it was inconceivable that the prohibition against military bases
was intended to cxtend to ordinary military training facilities , and in
support of this contention Respondent referred to actual military
activities in other mandated terri tories 3.Also in regard to this part of
Article 4, Respondent cannot understand how Applicants can make the
charge that Respondent's construction, which gives full effect to the
plain and ordinary meaning of the words employed, read in the context
of the Article as a whole, and which is in conformity with what was
practised in other mandated territories, is "narrow".
7. Applicants contend further that the meaning assigned to Article 4
of the Mandate by Respondent is inconsistent with-
{a) "the broad purpose of the military clauses in the mandates
system",
(b) "the plain meaning of the clause on its face", and
(c) "the interpretation of the military clauses by the Permanent
Mandates Commission" 4•
Respondent will in the following paragraphs deal with the comments
made by Applicants under the said heads.
B. The Purpose of the Military Clause
8. Applicants say that "[t]he military clauses had a broad general
purpose and the terms therein cannot be narrowly interpreted" 4 ;and
they cite Stoyanovsky to the effect that the basic principle of the said
clauses was " ... the complete neutralization of mandated territories in
the event of war, whether the mandatory is belligerent or not" 4. (Foot
note omitted.)
Respondent has already indicated that its interpretation of Article 4
1 IV, p. 48.
2 Ta which Applicants' said comment more particularly relates---vidibid.,
p. 553, footnote I.
l IV, p. 51.
• Ibid., p. 553. SOUTH WEST AFRICA
358
gives full effect to the plain and ordinary meaning of the words employed,
and that the charge of a "narrow" construction on its partis unfounded 1•
The statement of Stoyanovsky quoted by Applicants goes no further
than to expound a principle that, in the event of war, there was to be
complete neutralization of mandated tcrritories even where a ;\landatory
was a belligerent. The concept of neutralization in the event of a war does
not, however, exdude the right and duty to act in defence of the rnan
dated territory itself, and to train the inhabitants for that purpose.
R:espondent's contention is therefore not in conflict with Stoyanovsky's
v1ew.
g. Applicants further charge Respondent with qualifying the language
of the military clauses in two respects.
In the first place, they say, Respondent qualifies it~
"... by stating that the clause '... was probably ... intended to
prevent the i\fandatory from using the Mandated Terri tory as a base
of aggression, by training large Native annies, or by establishing
military or naval bases in the Tcrritory' 2". (Footnotc omittcd.)
By quoting only part of Respondent's statement relative to the purpose
of the military clause, Applicants create a misleading impression. Re
spondent's statcment was as follows:
"The abovementioned safeguard, which was reflected in Article 4
of the :Mandate for South West Africa, was no doubt conceived in the
interests of the indigenous population so as to prevent their milt'tary
exploitation by the Mandatory. lt was probably also intended to
prevent the Mandatory from using the Mandated Territory as a
base of aggression, by training large Native armies, or by establishing
military or naval bases in the Territory 3." (Italics added.)
Regard being had to the full statement, including the italicized words
omitted by Applicants in their citation from the Counter-Memorial,
Applicants' criticism of Respondent's suggestions as to the purpose of the
military clause is unwarranted. Respondent did not contend, as Appli·
cants aver, "that military bases must somehow be related to aggressive
designs" 2;nor does Respondent's rendering of the purpose of the military
clause call for Applicants' comment, by way of as submission, that "the
purpose of the Mandate is to benefit the inhabitants of the Territory" 2•
Respondent accepts that the establishment in the Territory of a facility
which is a military or naval base is prohibited, irrespective of the use to
which that facility may be put. What Respondent, however, does con
tend is that in determining whether a particular facility is, or is not, a
base within the contemplated meaning of Article 4, due regard must be
had, inter alia, toits intended purpose, whether for present or future use.
In this respect Applicants' statement that-
". _.. even though rnilitary and naval bases, or fortifications, may
have no presently intended offensive purpose ... they arc inconsist
ent wz.t.the Mandate because thev ar...usceptible of offensive
use
begs the question at issue. Military and naval bases and fortifications are
• Vide para. 6.supra.
2IV, p. 553.
3 Ibid., p. 47. REJOINDER OF SOUTH AFRICA 359
prohibited even though their present use may be innocent. But in deter
mining whether a facility is a prohibited installation, regard must be had,
inter alia, to its intended purpose. To regard a particular facility as a
prohibited installation merely because it is, in Applicants' words, "sus
ceptible of offensive use", must lead to farcical results, inasmuch as many
innocent installations-harbours, airfields, roads, etc.-would then have
to be classed as forbidden installations.
IO. Applicants' next point of criticism is directed at Respondent's
statements that there was at the Paris Peace Conference-
"... no doubt that a i\Iandatory was to be entitled to train the
inhabitants of a Mandated territory (including the Natives) for the
defence of that Mandated terri tory 1",
and that "[t]he duty-and the right-to defend the Territory, is that of
Respondent ... " 2•
Applicants say that Respondent's construction to the effect that it has
a right and duty to defend the Territory is-
"... wholly out of keeping with the nature and substance of the
Mandate institution, and ignores the hasic rclationship between the
Mandatory and the League of Nations 3".
In propounding their argument in support of the aforegoing contention,
Applicants repeat their quotation from Stoyanovsky to the effect that the
objective of the military clauses was the "complete neutralization of the
mandated terri tories in the event of war'' 3•Respondent has already dealt
with this statement of Stoyanovsky 4. and reiterates that it is not in
conflict with Respondent's contention-i.e., that Respondent has the
right and duty to act in defence of the Territory if the Territory itself is
attacked, and may for that purpose employ not only the inhabitants of
the Territory, but also Respondent's own forces.
rr. By reference next to Articles rand 8 to 17 of the Covenant, Appli-
cants say that-
"... the primary safeguard for [Mandated] territories did not reside
in the strength of the Mandatory, but in the system of collective
security establishcd by the League 3".
A proper reading of the said Articles shows that the intention of the
authors was to establish through the League collective security for the
preservation of peace-a safeguard intended for the benefit of all States.
In no way, however, could these Articles be read to contain or support
the proposition that the only safeguard for mandated territories resided
in the system of collective security established bv the League, to the
exclusion of any right or duty on the part of Mandatories to repel attacks
on the mandated terri tories committed to their charge. ln the absence of
clear provision to the contrary, a duty to promote the well-being and
progress of the inhabitants to the utmost must inclucle a duty to take
such stepsas the Mandatory may consider proper to protect them against
aggression. This would naturally include a right, in the Mandatory's
discretion, to train the inhabitants of the mandated territory for local
1 IV, p. 50.
2 Ibid., p.48.
3 Ibid.,p. 554.
4 Vide para. 8,supra.' SOUTH WEST AFRICA
360
defence purposes, and, as a necessary corollary, to use such troops in
repelling any attack on that territory. The fact that the military training
of Natives was not completely prohibited, but was permitted for police
and defence purposes, shows in itself that the system of collective
security established by the League could not have been intended to be the
sole safeguard for mandated territories against aggression. As regards
training and using inhabitants other than Natives for such purposes, there
was no provision prohibiting this or even qualifying the discretion of the
l\fandatory in that regard. And by the same token there could be no
reason, whether based on legal or moral considerations, why the Man
datory should not have used its own troops to assist the inhabitants of a
mandated territory in the defence of that territory when the latter was
threatened by aggression.
These remarks apply equally to the extract cited by Applicants from
Duncan Hall 1, and to Applicants' statement that "the mandates system
was founded upon a new, dynamic concept of collective responsibility" 1•
I2. Applicants in this regard state further:
"lt is consistent with this [the concept of collective responsibility]
that the League should bear the uUimateresponsibility in the eventof
an allack upon a Mandated Territory severe enot1ghto overwhelm the
native forces which would have been trained for 'internai police and
1
the local defence of the territory' ." (Italics added.)
The ttltimateresponsibility of the League for the preservation of peace
is not in issue. The point in issue is the right of a Mandatory to resist an
attack upon a mandated terri tory, and for that purpose to make use of the
trained inhabitants of the territory (Natives and non-Natives), as well as
its own forces.
Applicants advance no reasons, moral or legal, in justification of the
proposition that a l\fandatory should, in the event of an attack on the
mandated territory, allow the Native forces in the territory to be over
whelmed without calling in the aid of the non-Native forces of the terri
tory or of its own forces.
This untenable proposition advanced by Applicants is, in fact, con
troverted by the practice of Mandatories during the League of Nations
period to provide for the local defence of territories under mandate by
means not only of the Native inhabitants of such territories, but also
of non-Native troops, and even of troops brought into the mandated
territories from outside. The question of the training and use of non
Natives in the military organizations of mandated territories will be dealt
with later in this chapter 2•For specific examples of the use made of
extraneous forces in other mandated territories Respondent refers to the
position which obtained in Tanganyika, Ruanda-Urundi, and the Came
roons (under British Mandate).
(a) Tanganyika:
A substantial number of the troops stationed in the mandated
territory were for many years recruited in Nyasaland for service in
Tanganyika and elsewhere 3• The offi.cers of the military forces
i IV,p. 554.
~ Para. 14,in/ra.
3 P.M.C., Min .•IX, p. 147; XV, p.121; XVIII, p.34 and XXII, pp. 133 and 142, REJOINDER OF SOUTH AFRICA
stationed in Tanganyika were European officers of the British
Regular Anny seconded forservice to the King's African Rifles 1.
(b) Ruanda-Urundi:·
For many yearsthere was no military training of the Native inhabit
ants of this mandated territory. For its defence the Territory rclied
2
on the extraneous forces of the Bclgian Congo •
(c) Cameroons(under British Mandate):
The Territory relied for its defence and internai security on extra
neous Nigerian military forces, which were used in the mandated
territory. The Territory also contributed towards the cost of main
taining the Nigerian military forces J.
The practice on the part of Mandatories to employ extraneous forces
for the defence of their mandated territories was mentioned by Lord
Lugard as early as the Third Session of the Permanent Mandates Com
mission. He said:
"There are some mandated territories which are administered as
an integral part of the neighbouring colony or protectorate of the
mandatory Power. In such cases a separate force, either a military
force or an armed police constabulary, is not usually raised for the
defence of the mandated territory itself, and a detachment from the
permanent forces of the neighbouring territory of the mandatory
Power is sent into the country for its control and defence. It would
be relieved in due course by another detachment and would return
toits own headquarters 4."
At no stage was it even suggested in the Permanent Mandates Com
mission or by the League Council that the use of extraneous forces in the
defence of mandated territories could be regarded as an infringement of
the relevant rnilitary clauses. And at the outbreak of the Second World
War no doubts were raised as to the right of Mandatories, where their
rnandated territories were threatened or invaded by aggressors, to defend
them by the use of the Mandatories' own forces, as well as other extra
neous forces, both European and non-European 5•
With regard to Applicants' statement relative to particular provisions
inserted in the A Mandates, Respondent refers to what is stated in Chap
ter IV, paragraph 6, infra. Respondent contends that such provisions are
of no assistance in an interpretation of the rnilitary clauses in the B and C
Mandates.
13. Applicants deal next with what they describe as "attempts" on the
part of Respondent-
". . . to exclude military trainin~ camps from the definition of
'military base', [by] referring to considerable permanent military
forces stationed within (the) boundaries {of practically ail the
African territories under Mandate)' 6".
1 P.M.C .• Min., XV, p.I2I.
z P.M.C., Min., IV, p. 68; XIV, p.127; XXII, p. 247; XXIV, p.84 and XXXV,
p. 61.
3 P.M.C., Min., XIV, p.149 and XIX, p. 27.
• P.M.C., Min., III, p.196.
j Vide Hall, H. D., Mandates, Dependencies and Trusheship (1948),pp. 71, 26o
and 267-269.
' IV, P· 554· SOUTH WEST AFRICA
Applicants say that Respondent failed to point out that "such forces
were almost entircly composed of natives", and propound the following
argument:
"All of the other 'African territories under Mandate' were under
'B' Mandates, the language of which prohibited the Mandatories
from organizing • ... any nativemilitaryforces in the territory except
for local police purposes and for the defence of the territory'. Re-
spondent's whole argument becomes strained as soon as the word
'nl:l.tive'is added to all of Respondent's assertions conceming
'permanent military forces' 1.''{Footnotes omitted.)
Again Applicants' comment is unwarranted. The military clause in each
of the B Mandates-save the Mandates for French Togoland and the
Cameroons, which contained additional provisions-read as follows:
"The 1\fandatory shall not establish any military or naval bases,
nor erect any fortifications, nor organise any native military force
in the territory except for local police purposes and for the defence of
2
the territory ."
In support of its argument that the prohibition against military bases was
not intended to extend to ordinary military training facilities, Respond
ent referred to the position which, during the lifetime of the Lea~e,
obtained in the B l\fandated territories in Africa. A number of the Afncan
territories under mandate had large permanent military forces stationed
within their boundaries and trained Natives for police and local defence
purposes. Respondent pointed out that these territories had facilities for
their military forces, for military training, and for supplies, maintenance,
armament, material and transport, and that it was at no time suggested
that in providing such facilities the Mandatories concerned had established
"military bases" or "fortifications" in violation of the military clause.
This argument is sound and above criticism. In fact, Applicants pro
3
pound the same basic argument in their Reply •
What Applicants do sug~est, however, as a contention underlying
their interpretation of the military clause in both the B and C Mandates,
is that Respondent's argument holds good only for the training of Natives
and not for the training of non-Natives.
Applicants advance no reason for making this distinction, other than
indicating that the training of Natives for purposes of internai police and
local defence was specifically mentioned in the military clause. There is,
however, no ground for the distinction sought to be drawn by Applicants.
The training of Natives for purposes of internat police and local defence
was specifically mentioned in the military clause for a particular reason,
namely to state the pennissible purposes for which Natives could be
trained, as an exception to the general prohibition against the military
training of Natives, which was also specifically contained in the clause.
The clause did not, either in express terms or by implication, prohibit or
restrictthe training of non-Natives, and in this respect the wording of the
clause was in keeping with its intended purpose, as explained in dis
cussions before and during the Paris Peace Conference 4•
1 IV, p. 554·
2 E.g., Art. 4ofthe British Mandate for East Africa (Tanganyika Territory).
9 IV, p.555. and in Annex 9, p. 566 (para. 3).
4 Vida IV, pp. 48-50. REJOINDER OF SOUTH AFRICA
14. There càn be no doubt, both on the plain meaning of the wording
of the military clause, and in accordance with its purpose, that it was
pennissible for Mandatories-both in the B and C Mandated territories
to train the inhabitants of such territories, Native and non-Native, for
purposes of internal police and local defence.
The qualification which Applicants seek to introduce, namely that the
training of non-Native inhabitants of the B and C Mandated territories
was not pennitted, does not flow from the wording of the clause, and is
not consistent with the history of events and proposals before and during
the Paris Peace Conference. Nor is it consistent with the position which
in practice obtained in the African mandated territories during the life
time of the League. Applicants say in this last-mentioqed regard that the
military.forces stationed in the African territories under mandate "were
almost entirely composed of natives" 1.The use of the word "almost" in
itself refutes Applicants' contention that the military training of non
Natives was not permitted. In fact the composition of such forces is
significantly revealing.
In practically all cases such forces included Europeans serving as
officers. In Ruanda-Urundi a whole European volunteer corps was
created, and the Permanent Mandates Commission was informed that-
"[i]t was desirable that the Europeans should be organized on a
military basis in order to be prepared for any surprise. The volunteer
corps would only be used in case of disturbances or other unusual
occurrence that troubled the peace of the territory 2."
And as regards the military organization in South West Africa, Respond
ent has already indicated that the Permanent Mandates Commission
was well aware that it consisted solely of Europeans 3.
At no time was it suggested by the Commission or the League Council
that the training and use of non-Natives by Mandatories for police
and local defence purposes could be regarded as a violation of the mili
tary clause.
In the premises, it is submitted that the position taken by Applicants
has no juridical basis, and that their attempted attack upon Respondent's
contention relative to the purpose of the military clause is without
substance.
C. "The Plain Meaning of the Clause on its Face" 4
15. Respondent has already indicated that the military clause con
tained no provisions regarding the military training of non-Native in
habitants of the mandated territory. lt was concerned solely with the
training of Native inhabitants and with the prohibition against military
and naval bases and fortifications. The training of Natives for internal
police and local defence was specifically mentioned in the clause in order
to prescribe the permissible purposes for which the Native inhabitants
could be trained, as an exception to the general prohibition against their
military training. In the case of non-Natives there was no prohibition, and
therefore no need for an exception to a prohibition. There can be no
1 IV, p. 554. (Italicadded.)
2 P.M.C., Min., XXIV, p. 84.
l Vide para. 5, supra.
4
Vide IV, pp. 553 and 555. SOUTH WEST AFIUCA
question but that on the plain and natural meaning of the clause, on
the face thereof, the Mandatory was entitled to train any of the inhabi
tants of the Territory, Native and non-Native, for internai police and
local defence of the Territory. For the purpose of such training there
would, of course, have to be training facilities and, in Respondent's
submission, it follows that on a proper reading of the clause the prohibi
tion against military bases was not intended to extend to facilities
utilized solely for the normal training of inhabitants for internai police
and local defence purposes. As has been noted 1.Applicants in fact adopt
2
the very same line of reasoning ,but seek to limit it to Native forces,
i.e., so asto conclude that "... the prohibition on military bases [could
not have] been considered as being applicable to native forces" 3• (Italics
added.) This limitation in their conclusion results from a basic·premise,
namely that the Mandatory was permitted to train only Natives and not
also the non-Native inhab1tants, and not from anything contained in or
suggested by the clause. On the contrary, as already indicated 4.this
premise is not supported by the plain meaning of the clause, and is in
consistent with the purpose of the clause and with the practice of Man
datories during the lifetime of the League of Nations.
It need only be stated further that none of the arguments advanced by
Applicants in paragraph b, at page 555 of their Reply, serves to sul?port
the limitation which they seek to import into the clause. There 1s no
need to give consideration to the soundness or otherwise of these argu
ments. Sufficeit to say that each and every one would, if good in relation
to the training of Natives, also hold good for the training of inhabitants
ofa mandated territory other than Natives.
D. The Views of the Permanent Mandates Commission
I6. Applicants say that-
"[tJhe views of the Permanent Mandates Commission on the military
clauses demonstrate with singular clarity the common assumption
that they w3re intended to be scrupulously adhered to and vigorously
enforced ''(Footnote omitted.)
Respondent accepts this as a correct statement of the attitude of the
Commission, but fails to see itsrelevance tothe issuesunder consideration,
which concem the meaning of the clause. It is,in Respondent's sub
mission, a complete non sequitur to infer, as Applicants do 5, that the
"common assumption that [the military clauses] were intended to be
scrupulously adhered to and vigorously enforced" necessitates a vague
and so-called "broad interpretation" of the phrase "military or naval
base"-which really amounts to revision and not interpretation-as
opposed to the natural meaning thereof relied upon by Respondent.
Nor can support for Applicants' proposition be gathered from the
discussion in the Commission concerning the alleged existence of a naval
base in the Territory under Japanese Mandate, to which reference is made
1
2 Vide para. 13, supra.
3 Ibid.,p.5555.nd 566.
4 Vide paras.13-14, supra.
5 IV, pp. 555-556. REJOINDER OF SOUTH AFRICA
by Applicants. Applicants appear to attach significance to certain ques
tions put in that regard to the representative of Japan (Mr. Ito) by
members of the Commission. In the first place, Applicants regard as a
"sweeping approach" on the part of the Commission a question whether
~fr. Ito knew from a reliable source that " 'no establishment existed in
the South Sea Islands that could be called a naval base'" 1. Respondent
fails to see where the expression "could be called a naval base" takes
Applicants in thcir argument. The question as framed by M. Rappard
could never have been intended to signify that the Commission was
concerned about the establishment of a facility which, on a proper
construction of the military clause, could not be regarded as a naval base.
Nor is the matter taken further by the question put by the Chairman of
the Commission, namely whether the works undertaken were "intended
only to promote mercantile navigation" -a 1 question which most certainly
was pertinent to the matter then under enquiry, and which demonstrates
the correctness of the contention consistently advanced by Respondent,
i.e.,that in determining whether a particular facility is a prohibited
installation, regard must, inter alia, be had to its intended purpose 2•
Finally, Applicants appear to suggest, on the strength of one of the
questions asked by the Chairman of the Commission, that the presence
of a"single soldier ora single sailor in ... [a J... territory iinder mandate"
would constitute a violation of the military clause 3•Respondent submits
that the suggestion is too preposterous to warrant discussion.
17. Applicants' statement that the only meaning which may be given
to the second sentence of Article 4 of the Mandate "is the broadest
possible interpretation consistent with complete neutrality of the man
3
dated territory" ,is a repetition of the proposition advanced at page 553
of the Reply with reference to a quotation from Stoyanovsky, which
bas already been dealt with •.
18. Arguing further in justification of their novel approach, Applicants
say:
"... narrow dictionary definitions of 'military base' are wholly
incompatible with the interpretation laid upon such term by the
Permanent Mandates Commission and inconsistent with the entire
thrust of the Mandates System 5".
In the first place, Applicants produce no evidence of an "interpreta
tion" placed upon the term "military base" by the Permanent Mandates
Commission. Perhaps their contention in this regard is that the question
putto the representative of Japan by the Chairman of the Commission,
regarding "a single soldier or a single sailor", is indicative of an inter
pretation laid upon that term by the Commission. Indeed, when dealing
with the facts, Applicants put the same question to Respondent relative
to the Regiment Windhoek 6• In this regard Respondent repeats that it
would be preposterous to suggest that the question put by the Chairman
of the Commission was intended to reflect an opinion on the part of the
1 IV, p. 556. (Italics added by Applicants.)
2 Vide para. 9, supra.
3 IV, p. 556.
• Vide para. 8, supra.
5 IV, p. 557.
Ibid.,p. 559. Vide also Chap. III, para. 6,infra.366 SOUTH WEST AFRICA
Commission that the mere presence of "a single solclieror a single sailor"
in a mandated territory would constitute the establishment of a base in
terms of the military clause. If that had indeed been the opinion of the
Commission, then it must follow, in view of what has been stated above
relative to the practice in the African mandated territories , that the
Commission knowingly allowed large scale violations of the clause.
Secondly, Respondent does not understand what Applicants intend
to convey by the expression "entire thrust of the mandates system".
Respondent agrees with Applicants' statement that the prohibitions
contained in the military clause were conceived in the interests of, inter
alios, the inhabitants of mandated territories 2.and that there was a
"s:,rstem of collective responsîbility and securîty expressed by the man
3
dates system" •Respondent is, however. at a loss to see how the dictio
nary definitions referred to by it can be said to be inconsistent with these
features of the mandate system-if these are indeed the features relied
upon by Applicants as giving "thrust" to the system. There is no indi
cation that the authors of the system, when they used the term "military
base", had in mind anything else than what is signified by the plain and
ordinary meaning of the words employed, which is also the meaning
assigned thereto in the dictionaries.
I9. With regard to the dictionary definitions of the expression "mili
tary base" cited by Respondent, Applicants also say:
"Respondent has, in effect, limited the meaning of the term
'military base' to coïncide with the existence of astate of war,-since
neither 'operations' nor a 'campaign' can truly be said to exist other
than in wartime 3." ·
Arguing further that "the Mandates contain no language which can be
interpreted as prohibiting military installations onl,yintime of war", but
that, on the contrary, "[t)he purpose and application of Article 4 is
obviously in lime of peace", Applicants conclude as follows:
"It is a distortion of the clear language and intent of Article 4
to argue that the term 'military base', as used in ail 'B' and 'C'
Mandate agreements, referred only to operations or campaigns,
'actual or prospective' 3." (Footnote omitted.)
In so arguing Applicants are in effect attributing to Respondent a con
tention which it has not advanced.
· Respondent, in referring to the dictionary definitions of the expression
"military base". contended that-
"... failing the purpose of utilisation for operations or a campaign,
actual or prospective, by a force or an army, a place cannot be s~id
to be maintained as a military or naval base 4". (ltalics changed.)
Applicants' reproduction of this contention is completely at fault. The
contention centred round the "purpose of utilisation" of a facility-i.e.,
the purpose for which it was intended to be used-and was not depèndent
on actual utilization of the facility for such purpose. Applicants have
attributed no significance to the fact that the words "operations or a
1 Paras. 12 and 14.supra.
2 IV, p. 557. Vide para. 9,supra.
3 Ibid.,as to which vide pa.ra.II,supra.
4 IV, p. 50. REJOINDER OF SOUTH AFRICA
carnpaign" were expressly qualified by the words "actual or prospecti"ve".
The word "prospective" amply covers the possibility of a base being
established intime of peace, for the purpose of utilization intime of war.
Respondent therefore in no way limited the meaning of the term 'military
base' to coïncide with the existence of astate of war. It is fully aware that
the mandates contained no language which could be interpreted as pro
hibiting military installations only intime of war, and it did not construe
the military-clause as having that meaning.
20. vVith further regard to the de-finitions of the expression "military
base" cited by Respondent from dictionaries, Applicants state that they
"are not in the least prepared to accepta restrictive definition of 'military
base' which is limited to the 'operations or campaign' of a 'force or an
anny' "; and they proceed to quote other dictionary definitions, with the
implied suggestion that such definitions are of a wider scope than those
quoted by Respondent 1. Applicants have not, however, chosen to
demonstrate in which way these de-finitions differ in essence from those
quoted in Respondent's Counter-Memorial • On the contrary, Respond
ent submits that the definitions cited by Applicants all include the
following features as descriptive of a "rnilitary base", viz.,
(a) a locality or place, which
(b) is utilized by a military force,
(c) ~or the purpose of the projection or support of military operations,
I.e.,
(i) as a starting point for the operations, or
(ii) as a source of supplies or reinforcements required for the
operations, or
(iii) as bath.
These definitions therefore in no way derogate from, but are, on the
contrary, in full accord with, Respondent's conclusion that-
"... failing the purpose of idilization for operations or a campaign,
actual or prospective,by a forceor an army, a place cannot be said to
be maintained as a military or naval base 2".
2r. Applicants conclude their Statement of Law with the submission
that, for the reasons advanced by them, "a broad and flexible meaning
must be given to the term 'military base' in Article 4", an interpretation
which, they say-
"... would be fully consistent with the test advanced by [them] in
their Memorials, namely that 'the type of facility, its location,
annament, equipment, organization and place in the Union's
administrative hierarchy and chain of command determine whether
it is a military base or fortification' 3". (Footnote omitted.)
In reply Respondent reiterates that Applicants have in fact advanced
no reasons why effect should not be given to the plain and ordinary mean
ing of the words employed in the clause.
With regard to the so-called "test" advanced by Applicants in their
Memorials, and now relied upon in the Reply, the considerations men
tioned therein could of course be relevant in a deterrnination whether a
1IV, pp. 567-568 (para.5).
2Ibid., p.50.
3 Ibid.,p. 557.368 SOUTH WEST AFRICA
particular facility is a military base or not; but, in jettisoning the other
"tests" contemplated in the propositions formulated in the Memorials 1,
Applicants in effect now disregard the most important consideration,
narnely the purpose which a particular facility is intended to serve.
Indeed, the so-called "test" is now so broad that it does not ascribe any
meaning at all to the expression "military base". And, as appears from
Applicants' application of the "test" to the facts, the "broad and flexible
meaning" not only ascribes no concrete content to the expression
"military base", but introduces into such expression concepts notionally
distinct from it, e.g., ordinary training institutions and isolated landing
strips. Applicants even seem to suggest that the presence of "a single
soldier or a single sailor" in a mandated territory could constitute a
military base 2•The result of this new approach by Applicants is, as will
be demonstrated in dealing hereinafter with their treatment of the facts,
that they label particular facilities as forbidden installations for no other
reason than that they, Applicants, assert them to be such.
1 Vide para. I,supra.
z Vide paras. 16 and 18, supra and Chap. III, para. 6, infra. CHAPTER III
STATEMENTOF FACTS
A. The Regiment Windhoek
I. Applicants' charge as originally framed in the Memorials was that
"[t]he supply and maintenance facilities of the regiment, together
with the vehicles and material of the regiment itself would appar -
ently constitute what is commonly known as a 'military base' 1".
The sole reason then advanced by Applicants for the aforementioned
conclusion was the contention that the "purpose" of the regiment "(was)
not police protection or internai security"; and they sought to base this
contention on the following:
(a) that the Regiment was part of an armoured corps, and that such
corps are not nonnally used for "police protection or internai
security", and
(b) that the Regiment was part of a conventional military organization,
namely that of the "Union of South Africa", which "indicate[d]
that its purpose (was) not police protection or internal security" 2•
2. Respondent having exposed in the Counter-Memorial the basic
fallacies underlying Applicants' version, as set out in the Memorials, of
the legal position 3,Applicants now switch to another tack. Their charge
isnow very vaguely framed as follows:
"... the growth of Regiment Windhoek in its several forms since
1946, its incorporation as 'an integral part of the South African
Defence Forces', its establishment as part of the South West Africa
Command of the defence establishment of the Republic of South
Africa, and its corresponcling place in the Republic's administrative
hierarchy and cbain of command, constitute a violation of Article 4
of the Mandate i".
3. Upon analysis, the reasons at present advanced by Applicants for
their conclusion that the Regiment Windhoek-
"... in its prcsent form and strength, in organization and in opera
tion, involves the maintenance of a 'military base', within the
meaning of Article 4 ... 5",
are apparently as follows:
(a) "There appear to have been no South African military personnel in
command of the pre-war Burgher Forces. The Administrator
assembled the burghers for inspection and rifle practice; the Admi-
1 I, pp. r82-t83.
2 Ibid.,p. 182.
3 Vide Chap. Il, para. 2,supra.
• IV, p.558.
5 Ibid.,pp. 559-56o.370 SOUTH WEST AFRICA
nistrator had the power to call them up for service; the Administra
tor appointed the burghers' officers ... ln the case of the I927
Burgher Force, it was commanded and controlled by a Chief Com
1
mandant appointed by the Administrator ." (Footnote omitted.)
In contrast, Applicants point to the present-day position, in which
the Regiment Windhoek-
"... is part of the South African Armoured Corps of the Citizen
Force, which forms an integral part of the South African Defence
Forces 1".
(b) Applicants also compare what they term the "nature of the activity
and the equipment" of the pre-war Burgher Force with that of the
Regiment Windhoek today 1• In this regard they draw attention
to the fact that prior to 1939 military training never developed to a
point beyond rifle practice, and that during the years 1931 to 1935
· there was a curtailment even of that, whereas, in contrast, the
Regiment Windhoek is at present equipped with light reconnais
sance vehicles (i.e., armoured cars) and members of the force are
trained in the use thereof 2•
4. Conceding that there have been these changes, Respondent cannot
understand how the mere fact of such changes can be charged as a vio
lation of Article 4 of the Mandate. The inquiry is not whether there have
been changes in the administration, or in the quality or equipment, of the
military training of the White inhabitants of South West Africa, but
whether the changed situation involves violation of the said Article.
The purpose of the Regiment Windhoek is, and has always been, the
training of White inhabitants of South West Africa with a view to the
internat police and local defence of the Territory. l\fodernization of the
equipment of the Regiment, the training of men in the use thereof, and an
organizational arrangement whereby the Regiment is administered and
controlled as part of the South African Defence Forces, in no way dero
gate from that purpose.
\Vith regard to the functions previously performed by the Administra
tor, Applicants seem to forget that the Administrator was, and is, Re
pondent's agent, acting under the control and instructions ofRespondent.
Whether Respondent performs the functions mentioned by Applicants
through one agency (the Administrator) or through another (the Depart
ment of Defence) is inconsequential in deciding the point in issue.
As regards the personnel in command, although it may in passin·gbe
mentioned that the Commandant of the Regiment Windhoek is an
inhabitant of the Territory, Respondent submits that also this aspect is
quite clearly immaterial. The issue tums on the question whether the
complex of what has been established and what is being done at the
establishment constitutes a military base: Article 4 does not introduce the
agency or command through which the establishment and activities are
conducted as a relevant factor at all. In this regard, too, the practice
followed in other mandated territories in Africa during the League of
Nations period is instructive; the majority of the officers of the King's
African Rifles in the mandated Territory of Tanganyika, to cite but one
2 IV, p.558.
Ibid.,footnotes 5 and 6. REJOINDER OF SOUTH AFRICA
371
exarnple, were Briti_shofficers seconded frorn the Regular British Army 1•
And as regards the chain of command, the above remarks apply with
equal force. Thus no objection was raised by the Permanent Mandates
Commission when the Mandatory concemed proposed in 1929- _
"... that the military garrisons of Tanganyika and Nyasaland should
be grouped in one command under a Commandant who would
normally be resident in Dar-es-Salaam and would act as military
2
adviser to the Governors of both territories ... ".
And no objections were ever made by the Cornmfasion or the League
Council to the chain of command, officers or administration of the
forces, extraneous to the mandated territories, but employed therein for
3
purposes of police or local defence •
. Finally, as regards the equipment used for training, Applicants surely
cannot seriously suggest that such equipment as may be necessary for
local defence and internai police purposes at the present füne, is pro
hibited, and that only such equipment as was in fact used during the pre
Second World War period is permitted. And if Applicants cannot argue
along such Iines, there is no point in their comment regarding equipment,
unless they argue further that the present equipment exceeds the
requirements of internai police and local defence, which they do not do.
In fact, they seem to contend that the purpose of the Regiment is
for "internai security", and that it is "closely concemed with riot con
trol" 4.
5. Applicants fail to state on what legal basis the changes to which
they rcfer, are said to constitute a violation of Article 4 of the Mandate.
What they do say, however, is that such changes have taken place
"since the dissolution of the League of Nations, with benefit of super
vision neither by the League nor the United Nations" !i_
The relevance of this fact is not appreciated, since Applicants do not
in their Statement of Law in the Reply-and the same can be said of their
Statement of Law in the Memorials-rely on the absence of League
supervision or United Nations supervision as a factor in determining
whether a particular facility is, or is not, a forbidden installation-a
proposition which would, of course, be without substance.
6. Applicants also refer once again to the discussion at the 28th
Session of the Permanent Mandates Commission regarding rrùlitary
activities in the Japanese M:andated Islands 6,and pose the question:
"Is it possible for Respondent to confirm that '... there [is] not
a single soldier ... in the entire territory under mandate', and to
reply 'that there [is] not in the entire territory a single soldier or
sailor on the active list?' 5." (Footnote omitted.)
Respondcnt has already J?Ointedout that it would be farcical to suggest
that the presence of a "smgle soldier or a single sailor" in a mandated
territory would constitute the existence of a military base, and therefore
1 Vide Chap. II. para. 12,supra.
2 P.M.C .. Min., XV, p. no.
3 Vide Chap. II, para. I2,supra.
• Vide para. 7, in/ra.
s IV, p. 559-
6 Ibid.,p.556.372 SOUTH WEST AFRIC.-\
a violation of the military clause 1. In this respect Respondent again
refers to the position which obtained in practically all the B Mandated
2
territories during the lifetime of the League •
7. In the premises aforestated, it follows, in Respondent's submission,
that Applicants' citation from the "South West News" regarding alleged
training of members of the Regiment Windhoek, inter alia, for internai
police purposes, i.e., in methods for dealing with rioters 3, is pointless as
regards the issue under consideration. ·
The same observation would apply also to the citation by Applicants 3
of a statement made by Respondent's Minister of Dcfcnce, on 28 March
1960, in the South African Senate. It must be pointed out, however, that
the Minister was not dealing with the situation in South ,vest Africa but
in South Africa, and that the rz infantry units mentioned, as well as the.
Mobile Watches, were and are ail in South Africa. Applicants' citation of
the extract from the l\Iinistcr's speech is therefore entirely irrelevant.
8. Despite the full cxp1anation given by Respondent in the Counter
Memorial regarding the Regiment Windhoek 4, Applicants still profess
to be confused in their understanding of the organization and activities
of the Regiment 5• Respondent will therefore once more explain the
factual situation.
(a) The Rcgiment Windhoek is a Citizen -Force' unit, which means
that it is composed of civilians who undergo peace-time military
training for certain limited periods, as cxplainccl in sub-paragraph
(c) below. During the four years in which a trainee is enlisted as
a mcmber of the Regiment, be carries on with his ordinary civilian
occupation save for the intermittent periocls when he is in attend
ance at a training institution.
(b) There is only one institution for military training in South West
Africa, viz., the military camp at Windhoek. The sole fonction
of this camp is to cater for the training of the members of the
Regiment Windhoek during the periods set out in sub-paragraph
(c) (ii) below. The camp has ablution and cooking facilities only.
Sleeping accommodation is provided during every training course
by the pitching of tents. Except when a training course is taking
place, the training camp is totally inactive, i.e., for the major part
of every year.
(c) In regard to training received by membcrs of the Regiment, the
following was statecl in the Counter-Mcmorial:
"The Citizen Force recruits of the Regiment are ordinary
civilians of South \Vest Africa, whose only peacetime military
obligation is to attend two training courses, of fourteen days
each, cluring a period of three years, at the training camp at
Windhoek 6."
This statement requires amplification and correction as follows:
1 Vide Chap. Il, paras. 16 and 1S, supra.
2 IV, pp. 51-52, and Chap. II, paras. 12-14,supra.
' IV,p. 559.
• Ibid., pp. 54-57.
5 Ibid.,p.569.
6 Ibid.,p.57. REJOINDEH OF SOUTH AFRICA 373
(i) The two periods of 14 days each have been extended to three
weeks each 1.
(ii)The said two periods constitute the only training which mem·
bers of the Regiment reccive in South \Vest Africa itself, and
also the only training in which they are combinecl as units of the
Regiment. ln these respects the purport of the above statement
in the Counter-i\lemorial was perfectly correct.
(iii)The total training which the individuals cnlisted in the Regi
ment are obliged to undergo, is not, however, confinecl to the
above 2•The said two short periods of training are spread over
the last three years of the trainee's membership in the Regiment.
In his first year he receives, in the Republic of South Africa,
initial recruit training extending over a period of nine months.
While receiving this training, such recruits are dispersed at
varions training institutions in the Republic: in other words,
they are mingled with recruits from all over the Republic
receiving the same basic training. and they consequently do not
then operate as a unit of the Regiment Windhoek.
(d) Except for attending the aforementionecl courses, a member of
the Regiment Windhoek has no peace-time military obligations,
save that he may be called up at any time 3if needed for purposes
of rcstoring or maintaining law and order. There has, howcver,
been no such call up since the establishment of the Regiment in
1946 under the then designation of the South West African Infan
try 4.
(e) The Commanding Officer of the Regiment Windhoek, at present
Commandant A. S. Engels, is also a member of the Citizen Force
(i.e.,not a profcssional soldier in the Permanent Force) and is
predominantly occupied with his normal civil occupation. Ad
ministrative work in connection with the Regiment Windhoek is
attended to by the said Officer at the administrative headquarters
of the Regiment at ·windhoek after his normal working hours in
civil occupation. He receives his instructions, both in regard to
administration and in regard to training of the Regiment, from
command headquarters at \Vindhoek. The said headquarters,
known as the South \Vcst Africa Command, consists of a Permanent
Force staff of three officers and seven other ranks permanently
stationed at Windhoek. Its functions further include command
1
Departmental information.
2 The contrary indication convcycd by the above-quoted statement in the
Counter-l\lemorial, was duc to a misundcrstanding, which is sinccrely rcgretted,
between Respondcnt's lcgal rcpresentatives and its Department of Defcnce. The
Defence authorities supplied information which was intended to relate only to
activitiesof the Rcgimcnt as such, in South ,vest Africa itsclf, being under the
impression that that was ail that was required, whereas the lcgal representatives
understood the information as relating to the total obligation of the individuals
concerned. The misunderstanding was first realized in the course of prcparation
of this Rejoinder.
3 I.e., during the four years of his membcrship of the Regiment at the termination
of which he is placcd on the rcservist List.
• Vide IV, p.56. SOUTH WEST AFRICA
374
over the administration and training of the Commandos and the
1
School Cadet Organization .
In the light of the foregoing, the conclusions sought to be implied by
Applicants from their reading of the Counter-Memorial 2 are invalid.
There are no "field operations" or "other headquarters" of the Regiment
"at a place other than Windhoek", as suggested. The Regiment is not
"stationed" at a place other than Windhoek. No part of the Regiment
is at any time "pennanently stationed" anywhere. The Regiment is
either assembled at the training camp at Windhoek for the limited periods
of training stated in sub-paragraph (c) (ii) above, or totally inactive 3•
9. ln reply to Applicants' concluding rerninder that "Respondent is
applying its own narrow and inappropriate definition of 'military base'
to the Regiment in order to conclude that there is no violation of Article
4", as opposed to what Applicants tenn ''the broad thrust of the language
of Article 4" 4,Respondent says that there is no question of any "narrow
definition" on its part, and refers to what has been stated in Chapter II
ahove regarding the meaning and purpose of the Article.
IO. Respondent submits that in the premises aforestated Applicants'
contention that the-
". . . Regiment Windhoek, in its present form and strength, in
organization and in operation, involves the maintenance of a
'rnilitary hase', within the meaning of Article 4of the Mandate ... 5",
has no foundation whatsoever.
B. The Military Landing Ground in the Walvis Bay Area
IL Also with regard to this facility Applicants now shift from the
stand taken in the Memorials.
The charge made in the Memorials was that the landing ground in
question was one of three "military hases" maintained by Respondent
"within the Te"itory" 6_
It appcars that Applicants were in this respect misled by a report of the
7
Committee on South \Vest Africa • Respondent explained in the Counter
Memorial that the facility in question is not situated in the Territory
which was mandated to Respondent 8•
Although this explanation is accepted by Applicants 9,they now take
the position that there is a violation of Article 4 despite the fact that the
facility in question is not "within the Territory".
I2. Upon analysis, the only reasons advanced by Applicants for the
contention aforestated are the following:
1 Vide para. 23, iiifra.
2 IV, p. 569.
3 Vide sub-para. (c) (i}, supra, regardingthe basic training of individual members
of the Regiment in South Africa.
4 IV, p. 559-
5 Ibid.,pp. 559-560.
6
I, p. 181. The only reason then advanced by Applicants for their contention
that the said facilitywas a military base was that it "is apparently not intended
for police or internai secnrity use". I, p. 183.
7 I,p. 182.
8 IV, pp. 58-59.
9 Ibid., p.560. REJOINDER OF SOUTH AFRICA 375
(a) "The addition of substàntially greater military and naval
elements to Walvis Bav is, in relative terms, the 'establish
ment' of a base since the Mandate was conferred and/or since
the dissolution of the League of Nations 1", and
(b) "Furthermore, Walvis Bay must, in a military sense, be con
sidered to be 'in'South West Africa, inasmuch as it is completely
surrounded by territory subject to the Mandate and necessarily
depends thereon for essential services, transport, communica
tions and supplies, including water 2."
In the first place, assuming for purposes of argument that Applicants'
geographic and factual description of Walvis Bay as "completely sur
rounded by territory subject to the Mandate and necessarily dependent
thereon", is correct-a matter with which Respondent will deal later 3-
what legal justification is there for considering it, "in a military sense",
to be "in" South West Africa? Applicants do not referto,norisRespond
ent aware of, any legal principle which under such circumstances would,
"in a military sense'' or in any other sense, constitute one territory part
of anothcr.
13. Secondly, Applicants err in the facts stated as the basis for their
proposition. The Port and Settlement of Walvis Bay is not "completely
surrounded" by the Territory of South West Africa, nor does it "necessa
rily depend thereon for essential services, transport, communications and
supplies, including water". Walvis Bay is approachable from the sea
without entering or crossing any part of the Territory of South West
Africa. Although use is in fact made of certain services provided from the
Territory, such as road and rail transport, telephone and postal communi
cations 4, Walvis Bay is not "necessarily" dependent thereon. Nor is
Walvis Bay dependent on the Territory of South West Africa for its
water supply. In fact it does not obtain its water supply from the Terri
tory.
14. Applicants seek to bolster up this contention to which they are now
driven, with the statement that-
"[t]he central purpose of the military clause and the intent of the
framers of the Mandate, moreover, was the complete neutralization
of the Territory and the protection of the inhabitants from attack
provoked, inter alia, by the presence of military or naval bases 1".
In the respect under consideration, the purpose of the military clause
and the intent of the framers of the Mandate appeared clearly from the
clause itself, the relevant sentence of which read: "Furthermore, no
military or naval bases shall be established or fortifications erected in the
territory." (Italics added.)
There were no indications, either in the mandate instruments or else
where, that the framers of the mandates intended to prohibit, or place any
restriction on, the establishment by a Mandatory of military bases or
other military installations in its own Territory.
1IV, p. 560
2 Ibid. An additional argument advanced in support of this reason is dealt with
in para. 14, infra.
3 Para. 13, infra.
• This flows from the fact that \Valvis Bay is administere<i as ifit were part of
the Territory. Vide IV, pp. 58-59. · 376 SOUTH WEST AFRICA
15. Inasmuch as there is in Respondent's submission no substance in
Applicants' contention that Walvis Bay must "in a military sense, be
considered to be 'in'South West Africa", no purpose will, it issubmitted,
be served in deoJing with Applicants' citation from a statement made by
the South African Minister of Defence in 196! regarding military activities
in Walvis Bay l, nor with the citation from a2report of the Committee on
South West Africa on the same subject •
16. Asto Applicants' conclusion that-
"[w]ithout the safeguard of adequate administrative superv1s10n,
the presence of a large military and naval base such as Walvis Bay
entirely within the Mandated Territory ... is in violation of Article 4
of the Mandate ... 2",
Respondent cannot appreciate the relevance of administrative super
vision, or the Jack thereof, in respect of a region not forming part of the
mandated territory and never intended to be subject to supervision.
C. The Alleged "Military Camp" or "Military Air Base" in the Kaokoveld
17. Originally Applicants alleged the existence of a" 'military camp'
and/or 'military air base' " in the Kaokoveld 3 • Respondent in the
Counter-Memorial demonstrated that the "camp" had existed for a week
4
only to house a small visibng party • Applicants are apparently not
persisting with this aspect of the charge, and are concentrating on the
"air base" aspect. This relates to an unmanned, unfortified landing strip
at Ohopoho, in the Kaokoveld, as described in the Counter-Memorial 5.
In the Memorials Applicants' contention was that the facility com
plained of was a prohibited installation because it 6as ";:i..pparently not
maintained for police or internai security purposes" •
Respondent having in the Counter-)Iemorial exposed the fallacies in
Applicants' Statement of Law relative to Article 4 of the Mandate 7,and
having explained that this particular airstrip, like certain others in the
Territory, is used mainly by the South West Africa Administration for
administrative purposes, but also intermittcntly by aircraft of the South
African Air Force for purposes concemed with rescue operations and with
internai security and local defence, Applicants in the Reply adopt an
entirely cliffercnt line of reasoning. Their case as now presented is in effect
that if the airstrips in question are maintained for use by military air
craft and are available for such use, this in itself constitutes a contraven
tion of Article 4 of the Mandate-even if such use may be "intermittent
and occasional", and without regard to the purpose of such user, namely
whether for internai police and local defence or for other purposes.
That the above is now in effect Applicants' case appears clearly from
their new line of reasoning. Thus Applicants say:
"Even if Respondent's narrow defi.nition of 'military base' is
employed, it is clear that airfields which are maintained for use by
1 IV, pp. 560-561.
2 Ibid., p. 561.
3
I, p. r83 read with p. 182.
• IV, p. 59 (para. r3).
6 Ibid., pp. 58-59.
7 I, p. 183.
Vide Chap. II. para.2, supra. REJOINDER OF SOUTH AFRICA 377
military airerait and available for such use at any time, are places
which may be 'utilized ... for the purposes of operations or a
campaign' 1."
It follows from Applicants' contention that no airstrips in the Territory
may be maintained for use by, or made available for the use of, military
airerait, no matter what the purpose of such user may be.
Taken toits logical conclusion such a contention would mean that no
military training of Air Force personnel in the Territory could take place,
not even for the purposes of internal security or local defence-a pro
position which, in the light of the provisions of Article 4 of the Mandate,
is destroyed by its very absurdity.
18. In so far as Applicants make use of Respondent's definition of the
term "military base" in seeking to establish the above proposition, they
do not render Respondent's definition properly and fully.
In construing the said term Respondent stated that-
"... failing the purpose of utilization for operations ... actual or
prospective, &y a force or an army, a place cannot be said to be main
tained as a military or naval base 2".
Applicants in applying this test in the Reply, however, ignore the point
specifically made by Rcspondcnt, namely that the intended purpose
should be to utilize such facility-
"(i) as a starting point for the operations or campaign, or
(ii) as a source of supplies required for the operations or campaign,
2
or bath ".
To ignore this aspect leads to the absurdity that many places which are
notionally quite unrelated to the concept "military base"-e.g., roads,
railways, etc.-but which canin some sense be "utilizcd for the purposes
of operations or a campaign' ',are to be regarded as military bases.
Applicants also conveniently ignore the further point, specifically made
by Respondent, that-
"... whcreas in terms of Article 4 military training is permissible,
and would indeed fall within Respondent's duties, it is inconceivable
that the prohibition against military bases was intended to extend to
ordinary military training facifüies 2".
To say then, as Applicants do, that in terms of Respondent's own defini
tion the airstrips in question are forbidden installations because they are
places which may be "utilized ... for the purposes [of operations] or a
campaign" 3,is a misstatement of Respondent's definition of the military
clause. The unmanned strips in question, without facilities for mainte
nance, service or supplies, do not serve as starting points for, or sources of
supplies required for, operations or a campaign, and cannot therefore, in
terms of Respondent's definition, be regarded as prohibited installations.
Moreover, in applying Respondent's definition to the facts, Applicants
strain the meaning of the word "operation" when they say that the
1 IV, p. 56r.
2 Ibid.,p. 50.
3 This proposition is repeated at IV, p. 562 in the following terms:
" ...there has been a clear violation of Article 4 of the Mandate (even under
Respondent's narrow formulation) since such. strips are admittedly utilized
in the present for operational "purposes and may at any time be used for the
purposes of a campaign."378 SOUTH WEST AFRICA
present use of the airstrips in question by military aircraft for limited
purposes, including, inter alia, the training of Air Force personnel with
regard to interna! security and the local defence of the Territory, amounts
to the use thereof (by a force or an anny) for purposes of ''operations''.
r9. In a footnote to this part of their argument Applicants cite the
following passage from the Counter-Memorial:
"It is imperative that South African Air Force pilots should from
time to time be made acquainted with the landing strips within the
Territory so as to be able to perform the responsibilities which rest
upon Respondent in respect of defence, internai security and rescue
operations in theT erritory 1."
Applicants' response thereto is as follows:
"Applicants do not quarre! with 'internat security and rescue
operations in the Territory', but maintain that Respondent's mis
conception of its duties with respect to defcnce of the Territory has
led into a direct violation of Article 4 of the Mandate 1".
Ignormg for the present Applicants' further contention relabve to super
vision of Respondent's administration of the Territory, which will be
dealt with hereinafter 2, Respondent reads this passage as meaning that
the use of the airstrips in question for certain limited military purposes
intemal security and rescue operations-would not per se constitute a
violation of Article 4 of the Mandate, but that their use for defence of the
Territory constitntessuch a violation. Respondent has already dealtwith
Applicants' contention that Respondent is not entitled nor in duty bound
to act in defence of the Territory 3, and reiterates that it has such a right
and duty.
Upon a finding that Respondent has such a right and duty, the distinc
tion drawn by Applicants between use of the airstrips in question for,
on the one hand, interna! security and rescue operations, and, on the
other band, defence purposes, would fa11 away, and in consequence
render Applicants' whole argument baseless.
The isolated airstrips in question provide landing points for airerait,
but do not and cannot perse constitute bases from which a force operates
or draws its supplies.
In any event, Respondent fails to see how any misconception of duty
on its part could make a "base" out of something which inherently and
notionally could not possibly be a "base"-as that term is normally and
naturally understood in the military context. Even tested by Applicants'
own "broad" criteria it is impossible to suggest that such airstrips are
military bases. The type o/ /acility is not peculiar to military activity, nor
is its location; it boasts no armament and no equipment; it is unmanned;
it has no organization; and no place in (Respondent's) administrative
hierarchy and chain of command. It is not surprising that there is a striking
absence of even an attempt on Applicants' part to justify their submission
on their own "broad" test 4•
20. With regard to the use of the airstrips in question, Applicants
1IV, p. 562, footnote l.
2 Para. 20,infra.
s Vide Chap. II, paras. rn-14,supra.
4IV, p. 567. REJOINDER OF SOUTH AFRICA 379
propound a further argument relative to administrative supervision,
which leads them to contend that-
"[s]o long as Respondent fails ta recognize the administrative
supervisory authority of the United Nations, while at the same time
maintaining airstrips, such maintenance must be considered in
compatible with Respondent's duties under Article 4 if the purpose
and use of such airstrips in is [sic] an1 degree directed toward mili
tary ends (as Respondent concedes) ".
This contention not only rests on a misconception dealt with elsewhere
in Respondent's pleadings -namely that the United Nations has
"administrative supervisory authority" in respect of South \Vest Africa
but is also otherwise basically unsound. Ta say that the determination
whether a particular facility does or does not constitute a military base,
depends upon the existence of administrative supervision, is ta introduce
into the military clause a qualification which it does not bear either in
express terms or by implication. ln fact, it is significant that in their
Statement of Law-bath in the Memorials and in the Reply-Applicants
make no mention of such a qualification. It is simply introduced at this
stage of their argument as a reason why Applicants contend that there is
a violation of Article 4 of the Mandate, apparently because they can
find no legal basis for their contention. If Respondent should be under a
duty to submit to administrative supervision on the part of somebody,
and refuses to do so, such refusai would constitute a violation of that
duty, but it could hardly be relevant to the diffcrent question whether a
particular installation does, or does not, constitute a military base as
contemplated in Article 4 of the l\fandate. The question is not, as Appli
1
cants appear to suggest , whether "objection" ta any military use of
airstrips would be "unreasonable" in the absence of administrative
supervision, but whether such use constitutes a violation of a particular
provision, viz., Article 4 of the Mandate.
In Respondent's submission this charge also is baselcss.
D. Military Activity in General
21. Applicants originally complained that Respondent maintained
"three 'military bases' within the Territory" 3• In the Reply they are not
content to abide by this charge. They bring an additional complaint
that a situation bas been created-
"... wherc there is the equivalent of a series of military bases or
potential military bases in the Territory, or, at worst, where the
Territory itself and its 'White' inhabitants have become armed and
coordinated to the extent that the Territory has been transformed
into a 'military ba4e' within the meaning and intent of the Covenant
and the Mandate ".
Respondent respectfully submits that it is not obliged to deal with
what is in effect an entirely new charge. However, as very little need be
said to demonstrate that _the charge is preposterous, Respondent will
proceed to do so.
1
2 IV, p. 562.
3 Il, pp.I13-164 and Part II, Chap. III, supra.
I,p. 181.
• IV, p. 564. SOUTH WEST AFRICA
22. As regards the legal position, Applicants have not advanced any
argument to show that Article 4 of the Mandate can be construed to
include a prohibition against military activities of the nature now intro
duced into their complaint. Article 4 does not prohibit military activity
not rclated to military or naval bases or fortifications, or to the military
training of Natives. Neither does Article 4 prohibit any facility which,
although nota "military base'', can by somc or othcr process of reasoning,
or in some sense or another, be regarded as '.'equivalcnt''to amilitary base
or to a "potential'' military base.
With regard to Applicants' submission that the whole Territory "has
been transformed into a 'military base' ", the notion of a large, thinly
populated country constituting in its entirety a "military base", is
obviously incompatible with the concept "military base".
23. As a basis for their charge Applicants rely on the following alleged
facts and factors, taken together:
(a) "... Respondent's admitted practice of maintaining an in
determinate number of landing strips which may be, and are,
used by military airerait of the South African Air Force ... 1",
(b) "... the increasing build-up of military strength in Walvis
Bay ... 1",
(c) "... the apparently ever-incrcasing amount of military activity
by cadet corps and 'Commando units' in the schools, commu
nities and countryside of the Terri tory ... 1'',
(d) "... [the] Regiment Windhoek ... 1".
Respondent has dealt with the matters detailed under (a), (b) and (d)
above and has, in its submission, clearly demonstrated that the airstrips
in question, the military facility at Walvis Bay (which is not situated in
South West Africa) and the facilities of the Regiment Windhoek, can by
no stretch of imagination be considered, singly or collectively, as "mili
tary bases" in the Territory in terms of the Covenant and Article 4 of the
.Mandate. There remain the factual allegations quoted in (c) above,
with regard to which Respondent states as follows:
The cadet detachments established at certain schools for European
children in the Territory receive elementary training in drilling and target
practice with small calibre rifles. Each cadet spends approximately 45
minutes per weck in such activities. One rifle is issued to a school for
every 30 cadets.
\Vith regard ta the Commando units, membership is voluntary. Mem
bers are civilians, who can be ca1led upon when necessary to guard
vulnerable points and to assist the civil authorities to maintain law and
order: in other words, the purposes arc again strictly confined to internai
police and local defence. Each member is issued with a rifle, and each unit
is issued with three light machine guns and three sub-machine carbines
for target practice purposes.
By i;ioprocess of reasoning can the above organizations be regarded as
"military bases" in terms of Article 4.
24- \Vith regard to Applicants' reference to "three recent resolutions of
the General Assembly" 1 which impute bad faith and violations of the
tIV, p. 563. REJOIXDER OF SOUTH :\FRICA
military clause to Respondent, Respondent points out that such resolu
tions were seriously at fault in this respect.
Two of the resolutions referred to by Applicants 1 preceded the visit
to the Territory by M. Carpio and Dr. Martinez de Alva, respectively
Chairman and Vice-Chairman of the Special Committee for South West
Africa, during 1962. The events which followed upon the said visit have
been dealt with elsewhere 2, and it is sufficient for present purposes to
note that the findings of M.Carpio and Dr. de Alva completely refuted the
allegations of ex_Pansionof military forces and activity in the Territory,
as incorporated m the said two resolutions. Nevertheless the third of the
3
resolutions , adopted shortly after the said visit, once more implied
charges which in the light of the true facts, as set out in the Counter
Memorial and herein, were wholly unfounded.
25. In the premises it is hardly necessary for Respondent to say that
it denies Applicants' charge that-
"... there is the equivalent of a series of military bases or potential
military bases in the Territory, or ... [thatJ the Territory has been
transformed into a 'military base' within the meaning and intent
of the Covenant and the Mandate 4".
1G.A. Resolutions 1702 (XVI} and 1703 {XVI), 19 Dec. i961 in G.A., O.R.,
Sixteenth Sess., Suppl. No. 17 (A/5100), pp. 39-41, referred to in IV, p.563.
2 Vide IV, pp. 60-61 and Part I of the Rejoinder.
3 G.A. Resolution 1805 (XVll), 14 Dec. 1962 in G.A ., O.R., Seve:nteenth Sess.,
Suppl. No. 17 (A/5217}, pp. 38-39.
• IV, p. 564. . . CHAPTER IV
RESPONDENT'SANSWERTOANNEX9 OFTHE REPLY
SUPPLEMENTAR Y MATERIAL WITH RESPECT TO ALLEGED
VIOLATIONS OFARTICLE4 OFTHE MANDATE
A. General
I. The supplementary material contained in Annex 9 to the Reply is
divided into eight numbered paragraphs, which are concerned in part
with Respondent's Statement of the Law relative to Article 4 of the
Mandate 1, and in part with the facts as dealt with by Respondent 2.
Much of the material in the said Annex has, in some respects to a larger
and in others to a lesser extent, been dealt with in the preceding chapters 3,
and it will not be necessary to repeat what has been stated there. In
its treatment of the Annex in this chapter Respondent will therefore in
many instances merely refer to what has already been stated in the
preceding chapters.
z. The subject-matter of the Annex is hereinafter dealt with by refer
ence to the paragraph numbers assigned thereto by Applicants.
B. Paragraph (1) of the Annex 4
3. In this paragraph Applicants deny Respondent's contention that a
"Mandatory was ... entitled to train the inhabitants of a mandated
territory (including the Natives) for the defence of that Mandated Terri
tory" 5,and take the stand that-
"... the restriction on military and naval bases and fortifications would
logically place a clear limitation on the presence of troops other than
native"". (ltalic3 added.)
Respondent has already dealt fully with this issue 6, and will here
merely concern itself with the further arguments advanced by Applicants
relative to the discussion in the Council of Ten conceming the military
clause 7•
4. In the first place, Applicants say that the discussion "related only to
(a) the military training of the natives for police and defence; and (b)
raising nati"vearmies in the event of a general war", and they aver that
the interchange between Messrs. Clemenceau, Lloyd George and Wilson
"was concerned with the raising and training of native troops; the
presence, raising, or training of troops other than native was neither
anticipated, suggested, nor discussed" 4•
1IV, PP· 47-53.
2
3 Ibid.,pp. 54-62.
Vide explanation in Chap. I,para. 4, supra.
4IV, p. 565.
5 Ibid.,p. 50.
6 Chap. II, paras. 15-21, supra.
1 Vide IV, pp. 48-50 for statements made in the course of the discussion. REJOINDER OF SOUTH AFRICA
Save in one respect this statement of fact appears to be correct. The
respect in which it is incorrect, is the allegation that "the presence, raising,
or training of troops other than native was [not] anticipated". Admit
tedly that question was neither raised nor discussed, but there is nothing
on record to show that it was not "anticipated".
The position which Respondent takes with regard to the discussions in
question isthat the Council of Ten showed concem only about the training
of Natives, and not also of non-Natives, hence their resolution to prohibit
the training of Natives alone, and even then to a qualified extent only.
If there had been an intention to prohibit the training of non-Natives,
or, as Applicants suggest, even the presence of non-Native troops in the
mandated territories, the military clauses with regard to B and C Man
dated territories would surely have been differently worded.
5. Applicant's second point is that the discussion in the Council of
Ten "was, at best ... opaque" and they cite the following extract from
Baker, Woodrow Wilson and World Setilement: "It was not surprising
that, as a result of this colloquy, the secretariat should have been puzzled
as to what was really meant " 1•lt is true that Baker refers to ambiguity
and uncertainty arising from the discussions in the Council of Ten. Such
confusion as there was, however, centred entirely around the demands
of the French delegation which "wanted definite assurances of their right
to raise and train Negro troops to use in Europe or elsewhere if neces
sary" 2•There was no confusion at ail about the right of a Mandatory to
tram the inhabitants of a mandated territory (including the Natives) for
the defence of that mandated territory.
C. Paragraph (2) of the Annex 1
6. Applicants cite without comment passages from the works of Quincy
\Vright 3 and Duncan Hall•: Respondentcannot understand whatexactly
Applicants wish to establish by these citations. The passages in question
certainly do not support Applicants' contention immediately preceding
the quotations 5,viz.. that "the restriction on military and naval bases and
fortifications would logically place a clear limitation on the presence of
troops other than native". Nor do they support the contention advanced
6
elsewhere ,viz., that Respondent has no right to defend the Territory in
the event of it being attacked. Neither of these contentions was, inciden
taUy, as far as Respondent is aware, ever advancedby anycommentator,
State or person, up to the time of the filing of the Reply by Applicants.
Respondent can therefore only pass the following general comment
regarding the said quotations. Both the Covenant and the mandate
instruments differed materially in respect of the military clauses as be
tween A Mandates, on the one band, and B and C Mandates, on the
other 7•How the quotations here under discussion, both of which concern
i IV, p. 565.
2 Baker, R. S., Woodrow Wilson and World Settlement (1923), Vol. I, p. 429.
ltalicsadded.
J \Vright, Q., Mandates under the League of Naticms (1930).
• Hall, H. D., Jl.fa11dates,Dependencies and Trusteeship (1948).
~ IV, p. 565 (para. 1).
6 Ibid., p.554.
1 Vide Art. 22 (4) of the Covenantofthe Leagueof Nations; Art. 2 of the Mandate
for Syria and the Lebanon-and Art. 17 of the Mandate for Palestine. SOUTH WEST AFRICA
A Mandates, can be relevant to Applicants' contentions, is not apparent.
The only valid inference which can be drawn from the military provisions
in the A Mandate instruments, is that Applicants are quite wrong in de
nying that Mandatories had the right and duty to defend the territories
entmsted to their care. Applicants' statement that a right and duty of a
Mandatory to defend a mandated territory is-
"... wholly out of keeping with the nature and substance of the Man
date institution, and ignores the basic relationship between the Man
datory and the League of Nations 1",
is directly controverted by the express provisions on that subject in the
A Mandates. So, e.g., the Mandate for Syria and the Lebanon provided.
inter alia, that: "The Mandatory may main tain its troops in the said terri
tory for üs defence 2."
7. Applicants in the paragraph under consideration also say that
..... if there were, argi,endo, a duty and right to defend the Territory
... [s]uch 'duty and right' ... had, then, to be performed, and exer
cised, without establishing military or naval bases and without erect
ing fortifications; the language of the military clauses is too clear to
3
permit of any other construction ".
This statement Respondent admits to be correct as far as it goes; but
by the same logic it seems evident that certain activities directed towards
the defence of the Territory-e.g., training of inhabitants for that pur
pose, and provision of means of communication and reconnaissance
must have been contemplated as legitimate and even desirable. Conse
quently the authors of the clause could not have considered or intended
that the prohibition against the establishment of bases and fortifications
would extend to such activities per se.
3
D. Paragraph (3) of the Annex
8. Applicants in their reasoning in this paragraph proceed from the
basic premise that there is of necessity an "incompatibility of the two
propositions contained in the 'B' and 'C' Mandates" i, which have to be
reconciled by construction ifpossible. Applicants, however. adduce noth
ing in support of the suggested incompatibility. They do not refer to any
discussion of such alleged incompatibility during the Peace Conference,
nor to a single reference thereto during the League of Nations period, nor
to appreciation thereof on the part of even a single commentator on the
mandat.e system. ln Respondent's submission there is no such incompati
bility. The plain and ordinary meaning of the term "military base" in no
way includes a facility the sole purpose of which is directed towards
military training. There was consequently no reason why the authors of
the mandates should have regarded such a facility as being even prima
facie incompatible with a prohibition against bases. And this 1s the
straightforward explanation why they did not insert into the prohibition
any words of qualification with reference to contemplated military train-
iIV, p. 554.
2Art. 2 of the Mandate for Syria and the Lebanon.
3IV, p. 566.
• Ibid. The two propositions being: (i) bases and fortificationare forbidden and
(ii) mi!itary traininor'the Xatives for certain specific purposes is permitted. REJOINDER OF SOUTH AFRICA
ing of inhabitants. There is no need for an artificial construction that a
facility for the training of Natives for police and local defence is not to be
"considered" a base 1 :the authors of the mandates quite clearly in fact
did not regard any training facility as being Perse a base.
i\loreover, the practice of i\Iandatories during the League period,
without any objections from the Permanent Mandates Commission 2,
affords confirmation that the premise of "incompatibility", on which
Applicants base their reasoning, is incorrect.
l\Iilitary training of Natives was prohibited excepf for limited purposes,
and the training of persons other than Natives was not prohibited and
thereforc permitted. This situation is in no way affected by the prohibition
against "military· or naval bases" 3.
9. With regard to Applicants' submission that-
"[t]he very concept of 'military' or 'naval' bases suggests, in context,
the familiar patterns of European troops and ships, based in the
4
Mandated Territory for training, development, or operations ",
Respondent says:
(a) that no legal basis is advanced for this submission;
(b) that it is not clear what the expressi5n "familiar patterns of Euro
pean troops and ships'' means ;
(c) that institutions for "training" and for "operations" need not be
combined, and frequently have a separatc existence, with the result
that whereas the latter coulcl be bases, the former need not be; and
(d) that, in any evcnt, Applicants' proposition would ineffect mean that
a particular facility manned by Natives would immediately become
a prohibited installation if non-Natives were included in the person
nel-a situation which surely could not have been intended.
IO. Applicants' further argument that their-
"... interpretation is rcinforcecl by the juxtaposition, in the 'B'
mandates, of the language permittin~ certain 'native military forces'
with the language prohibiting bases ",
does not in any way !end support to thcir contention that the training of
non-Native inhabitants was not permitted. In view of the general prohi
bition against the training of Natives, every exception thereto required
to be expressly statecl; but as thcre was no such prohibition as regards
non-Natives, there was no nced or occasion for stating any exceptions in
their case.
II. Applicants finally argue that the word "cstablish" in Article 4-
"... suggests, in the context of the timcs, (a) an outside agency or
a force entcring the Mandated Territory from outside and becoming
established; and (b) a condition permanent in nature and related,
in scope, to objectives other than the objectives permissible for the
1 Vide Applicants' construction No. (iii) at IV, p. 566.
2 Vide Chap. JI, paras. 12-14, supra.
3 Vide Chap. II, paras. 13-15, supra.
4 IV, p. 566
s Applicants can hardly suggest that the training of non-Native inhabitants of any
territory relevant to the enquiry w,ts in accordance with a "familiar pattern"; and
if this is not Applicants' meaning, their suggestion is. irrelevanas to the point in
issue, viz., whether the training of non-Native inhabitants of the Territory in volves
th6 maintenance of a "military base".
IV, pp. 566-567386 SOUTH WEST AFRICA
military training of the natives under the 'C' Mandates or the main
tenance of native military forces under the 'B' Mandates 1".
Respondent submits that, on analysis of this proposition, Applicants
would defme a military base as-
(i) a facility of an extraneous force or agency, which
(ii) bas entered the territory from outside, and which
(1ii) has become permanently established therein, and which
(iv) is concerned with objectives other than the permissible objectives
of military training of the Natives.
No legal grounds are adduced by Applicants for this proposition, and
Respondent submits that it is without foundation or substance. Re
spondent does not understand what Applicants mean by the word "agen
cy", but rciterates that there can be no question of a "military base"
unless a military farce or an army utilizes a place for the projection or
support of its operations, actual or prospective, or unless the said place
is intended for such utilization 2•With regard to the "permissible objec
tives" mentioned by Applicants, Respondent reiterates that such objec
tives would include not only the training of Natives, but also the trâining
of non-Natives.
E. Paragraph (4) of the Annex 1
12. In this paragraph Applicants say-
"Respondent's contention that '... the sole criterion applied to
each facility (by Applicants) appears to be the fact ... that its pur
pose is not police protection or internai security' is wholly incor
rect 1." (Footnote ommitted.)
This comment by Respondent on the position taken by Applicants in
the Memorials is, however, valid and cannot be assailed. ln this regard
Respondent refers to its analysis in Chapter III above of the reasons
advanced by Applicants in the M:emorialsfor concluding that each of the
three facilitiesmentioned by them\vas a military base 1 .It is clear from
what is there stated that there was no "confusion on the part of Respond
ent" 1. as Applicants now suggest, when it passed what was, and still
remains, a valid comment on the stand taken by Applicants in the Me
morials. Respondent bas already demonstratcd 4. and reaffirms, that
Applicants in their Reply now adopt an entirely new approach.
Applicants also say that-
"... Respondent cannot deny that a generally reasonable criterion
for determining whether installations are military bases is, in fact,
whether they are intended solely for 'police protection or interna!
security' 1".
1 IV, p. 567.
z Vide Chap. Ill, para. 18, supra.
s Vide Chap. Ill, para. 1, supra, regarding the Regiment Windhoek. Vide Chap.
III, para.11, supra [footnote 1).regarding the military landing ground in the \Val vis
Bay [Swakopmund] area. Vide Chap. III, para. 17. supra, regarding the military
camp or air base in the Kaokoveld.
• Vide Chap. 1,para. 2; Chap. II, paras. 1-3; Chap. Ill, paras. 1-3, II and 17,
supra. REJOINDER OF SOUTH AFRICA
Respondent can, however, deny this. Although the so-called "criterion"
could possibly by itself lead to the negative conclusion that a particular
facility is not a military base, it is hard to see how it could ever by itself
lead to an opposite, positive conclusion. ln any event, however, Applicants
now in fact entirely ignore this critcrion in the position taken in their
Reply, where they merely "reiterate and repeat the far broader criteria
of [the] last sentence in their 'Statement of Law'" 1•
F. Paragraph (5) of the Annex 2
13. Respondent has already dealt with the definitions quoted by Ap
plicants in this paragraph 3,and respectfully refers the Court to what was
there stated. \Vith regard to the statcment by Paul H. Clyde, quoted by
Applicants from the book ]apan's Pacifie Mandate, Respondent says
that it is of no assistance at all in the prcsent enquiry, namely as to the
meaning of the term "military base". lt merely illustrates the difficulties
which may in particular cases be encountered in deciding whether a par
ticular facility is or is not a "military base".
G. Paragraph (6) of the Annex 4
14. The extracts cited by Applicants from The Windhoek Advertiser
take their argument no further. With regard to the first extract 5,Respond
ent has already confirmed that the Regiment Windhoek is a part of the
South African Armoured Corps of the Citizen Force, which forms an
integral part of the South African Defence Forces 6• The term "South
West Africa Command" is generally used to designate the Command
Headquarters referred to above 7, comprising the permanent administra
tive personnel stationed at Windhoek which consists of three officers and
seven other ranks 8. Its fonctions, as has been seen 9, are to exercise com
mand over the administrative work and the training operations in con
nection with the Regiment Windhoek, the school Cadet Corps, and the
Commando units. The Regiment Windhoek is not, as Applicants suggcst,
"referred to as the 'South West Africa Command' " 5• The further con
fusion professed by Applicants regarding the Regiment Windhoek 10has
alread y been clarified 11•
15. The second extract quoted by Applicants from The Windhoek
Advertiser referred to a proposai to forma Commando unit at Oranjemund.
The membership, armament and fonctions of Commando units have al
12
ready been explained •The proposed Commando unit at Oranjemund in
fact never came into being.
1 IV, p. 567, and vide also Chap. II, paras. 3 and 4, supra.
2 ibid., pp. 567-568.
3
Chap. Il, para. 20, supra.
• IV, pp. 568-569.
s Ibid., p. 568.
6 Ibid.,p. 56.
1 Vide ibid., p. 56 and Chap. III, para. 8, supra.
8 Vide Chap. Ill, para. 8 (e), siipra.
9 Vide Chap. III, paras. 8 (e) and 23, supra.
,o IV, p. 569.
11 Chap. Ill, para. 8, supra.
12 Chap. III, para. 23, supra.388 SOUTH WEST AFRICA
H. Paragraph (7) of the Annex 1
16. With regard to the quotations in this paragraph of the Annex Re
spondent states as follows:
Sttb-paragraph (a)
The "territorial sea area" mentioned in this quotation falls within the
territorial waters of the Port and Settlement of Walvis Bay, and is there
fore not part of the Territory of South West Africa 2.This quotation ac
cordingly warrants no further comment.
Sub-paragraph (b)
The area dealt with in this quotation, as appears from its text, is within
the boundaries of the Port and Settlement of \Valvis Bay and therefore
2
outside the Territory of South \Vest Africa • Also with regard to this
quotation Respondent refrains from comment, save to state that this is
another example of untrustworthy information conveyed to the United
Nations by petitioners. The quotation has been taken by Applicants from
a petition to the United Nations by SWANU and SWAPO 3 .The last
sentence of the quotation, viz., "[m]any more are in other Camps" is ficti
tious, and did not appear in the newspaper report of which it purports to
be a part.
Sub-paragraph (c)
The Hercules airerait, referred to in this sub-paragraph, was on a flight
from Pretoria to Walvis Bay on I April 1963. The aircraft landcd at \Vind
hoek to allow two officers, who were on an inspection visit to the South
4
West Africa Command to disembark. There were no trainees on the air
craft, which carried a total of only 14 passengers, of whom four were
civilians.
I. Paragraph (8) of the Annex 5
17. Respondent has already dealt with the attitude adopted by Appli
cants relative to the Joint Statement of 26 i\Iay 1962, to which the
Chairman (M. Carpio) and the Vice-Chairrnan (Dr. Martinez de Alva)
6
of the Spec1al Committee for South \Vest Africa were parties • The only
point sought to be made by Applicants in this paragraph is that, accord
ing to a letter written by the Chairman of the said Committee, the Com
mittee " [did] not consider or recognize such communique as anything
official or of any binding effect whatever "-the reason advanced for
such attitude being-
"... that the alleged communique was not an official act of [the]
Committee nor of the Chairman thereof, nor bas anyone been autho
rized cither by this Special Committee or the General Assembly to
enter or join in such a communique 5".
With regard to this argument Respondent _states that the question
1 IV, p.570.
2 Vide ibid.,p. 57.
3 Vide ibid., p. 570, footnotesr and 2.
• Vide para. q, supra.
6 IV, PP· 370-,371.
Vide Part I of the Rejoinder and also Chap. III, para. 2,1, rnpra. REJOJ::-.DER OF SOUTH AFRICA
whether the said communique was recognized as "official" or "binding"
on the United Nations organs or not, cannot affect the undoubtedly
strong probative value of the conclusions subscribed to by M. Carpio and
Dr. de Alva. Such conclusions represented a clear admission on their part
that the resolutions concerning militarization in the Territory, which the
General Assembly had passed prior to their visit, with the support of their
countries, the Philippines and Mexico 1,werc seriously at fault.
1 G.A. Resolutions r702 (XVI) and 1703 (XVI), r9 Dec. 196r inG.A .,0.R., Sixteenth
Sess., Suppl. No. r7 (A/5100). pp. 39-4r; G.A., O.R, Sixteenth Sess., 1083rd Plenary
Meeting, 19 Dec. r96r, p. r 106; G.A .. O.R., Sixteenth Sess., Founh Comm., 1247th
Meeting, 13 Dec. 1961, p. 588 and r248th Meeting, r3 Dec. r96r·, p. •591. CHAPTER V
CONCLUSION
r. In the light of what has been stated in the Counter-Memorial 1,
and in the foregoing chapters of this Rejoinder, Respondent denies each
and every one of Applicants' charges as originally advanced in the
Memorials 2,and as amplified in the Reply 3, relative to the establishment
or maintenance in South West Africa of alleged military bases.
2. In the premises Respondent denies that it has violated Article 4
of the Mandate and Article 22 of the Covenant of the League of Nations,
in the respect aforestated or at all.
1IV, pp. 47-6!).
2 I, pp. 181-183.
3IV, pp. 553-571. PART V
Allegcd Violations by Respondent of Article 2(1) of
the Mandate and Article 22 of the Covcnant
CHAPTER I
INTRODUCTION
I. Applicants' charges, as formulated in Chapter VIII of the Memorials,
concemed alleged. violations by Rcspondent of the following duties
imposed by Article 22 of the Covenant and Article 2 (r) of the Mandate:
(a) the duty to "refrain from unilateral annexation" 1,
and
(b) the duty "to advance the political maturity of the Territory's
i.hab"t1nts so that they may ultimately exercise self-determina-
t10n .
Applicants' charges were based on certain statements, set forth in
2
section B r of Chapter VIII of the l\Iemorials ,and on certain acts of
Responden t, recounted in section B 2 of the said chapter of the Memorials 3.
2. Respondent, before dealing with Applicants' charges in the Counter
Memorial, made the following specific statement:
"Although Respondent contcnds that the Mandate has lapsed, a
contention which, if upheld, will obviate an enquiry into the charges
made by Applicants in Chapter VIII of their Memorials, Respondent
nevertheless will in this and the following Chapters deal with Appli
cants' charges on the aswmption, for purposes of argument, that
the Mandate is still in force 4." (ltalics added.)
On the basis of the said assumption, Respondent first dealt with
Applicants' Statement of Law relative to the international status of
South West Africa and to the duty to advance the political maturity
of the Territory's inhabitants 5•
Having stated its contentions regarding the legal position, Respondent
devoted a chapter to the historical background relative to the status of
South West Africa and to Respondent's attitude thereanent, both during
the lifetime of the League of Nations and thereafter 6,and then dealt
fully with the statements and acts relied upon by Applicants 7•
In the light of this treatment of the subject, Respondent denied ail
the charges of violation of Article 2 (1) of the Mandate and Article 22
of the Covenant 8 •
1 1, p. 185; vide Analysis of Applicants' Statement of Law as set forth in IV,
pp. 67-68.
2 [, pp. 186-189.
3 Ibid., pp. 189-165.
• IV, p. 68.
' Ibid., pp. 68-85.
6 ibid.,pp. 76-85.
1
8 Ibid.,pp. 86-131.
Ibid.,p. 132.392 SOUTH WEST AFRICA
3. In the Reply App1icants do not deal specificallyeither with Respond
ent's Statement of the Law relative to its duties under Article 2 (r)
of the Mandate and Article 22. of the Covenant, or with the facts set
forth by Respondent relevant to the charges in question.
Instead of doing so, they mercly propound further "Argument" 1 for
persisting in their charges.
4. The aforestated "Argument" is introduced with the following
paragraph:
"The facts alleged by Applicants in Chapter VIII of the Memorials
are not disputed by Respondcnt; only their legal significance has
been placed in issue 2."
Respondent is not in agreement with this statement. Fundamental to
Applicants' charges in the Memorialswere the following allegations of fact:
(a) that Respondent in fact bas a plan to incorpora te the Terri tory 3;
(b} that the acts, recounted in section B 2 of Chapter VIII of the Memor-
ials were in fact perpetrated by Respondent in the effectuation of
the aforementioned plan to incorporate 3; and
(c} that there is an "awareness" on the part of Respondent "that its
actions in this respect exceed the permissible bounds of the Mandate,
ifthe i\Iandate is still effective" 4•
All the above allegations of fact were specifically denied by Respondent
in the Counter-Memorial. Furthennore, the "facts alleged by Applicants"
which, according to them, "are not disputed by Respondent", must,
for a proper appreciation of their legal significance, be viewed in the
light of the further relevant facts recounted by Respondent in the
Counter-Memorial 5, which facts are not disputed by Applicants.
5. In their "Argument" in the Reply, Applicantsfind it convenient to
"discuss [Respondent's] acts and the intent ... within the context and
2
framework of [three] legal conclusions" • These so-ca1led "legal con
clusions", and Applicants' discussion under each, will be dealt with
separately in the following chapters. Before, however, proceeding to do
so, Respondent draws attention to the fact that also in this part of
Applicants' case there appears to be a major shift from the position
taken by them in the Memorials.
Whereas the case made in the l\femorials appeared, on analysis, to be
a charge of improper motive, purpose or intent on the part of Respondent,
viz., a plan to incorporate the Territory unilaterally 6, Applicants have
now introduced an alternative contention to the effect that-
"Respondent's policies and acts ... constitute perse, and without
regard to Respondent's purpose or motive, a violation of Respond
ent's obligation to respect the separate international legal status
2
of the Territory ."
This aspect will be further illustrated and dealt with hereinafter 7•
1
Vide heading ta Chap. VII B 2 at IV, p. 573.
z IV,p.573.
3 I, pp. 189, 193, 194 and 195.
• Ibid .• p. 187.
~ IV, pp. 86-181.
6 Vide IV, p. 84 for analysis of Applicants' case.
7 Vide Chap. III, para. r,infra. CHAPTER II
RESPONDENT'S ALLEGED "PURPOSE OR MOTIVE TO
INCORPORATE OR ANNEX THE TERRITORY"
I. The first "legal conclusion" advanced by Applicants as part of
their "Argument" aforestated 1 is formulated as follows:
"Insofar as Respondent's purpose or motive to incorporate or
annex the Territory is relevant to a determination of Respondent's
violation of its obligations as stated in Article 22 of the Covenant
of the League of Nations and Article 2, paragraph 1,of the Mandate,
as Respondent contends, such purpose or motive clearly emerges
/rom the record herein 2." (Italics added.)
Before dealing with Applicants' discussion relative to this conclusion,
Respondent must indicate that the conclusion itself may create a wrong
impression of Respondent's contention conccrning the importance of
"purpose or motive" in the present context. Respondent did not contend
that "purpose or motive" is merely "relevant" to a detcrmination
whether there has been a violation of its duties in question. Respondent's
contention, stated in unequivocal tenns in the Counter-Memorial, was
that "purpose and motive"-
"... would be the very criterion, and the only criterion, for deter
mining whether a particular action is in violation of Respondent's
obligations under the Mandate ... Y',
in the respects under consideration.
2. In their discussion of the conclusion that "Respondent's purpose or
motive to incorporate or annex the Territory ... dearly appears from
the record herein", Applicants say: "in decisive respects, indeed, such a
purpose is conceded in Respondent's own avowals" 4.
The avowals which Applicants regard as conceding a purpose to in
corporate or annex the Territory are said to be embodied in the following
extracts from the Counter-Memorial:
(a) "... the Mandate for South West Africa gave effcct to a com
promise arrangement which involved, inter alia, that C Man
dates were, in their practical etfect, not far removed from
annexation 5" (italics added),
and
(b) "[t]he day to day exercise of the attributes of sovereignty thus
vest in Respondent, and the powers of Respondent m the
fields of administration and legislation are practically as wide
as that of a sovereign power in regard to its own territory 6"
lt is, however, clear that, on the plain meaning of the words employed,
1 Vide Chap. I, paras. 3 and 5, supra.
z IV, p. 573.
3 Ibid., p. 84 (para. 23). Vide also p. 69 (parro).
• Ibid.,p. 574. Italics omitted.
> 11,p. 95. Vide also IV,p. 574.
6 IV, p. 69. Vide also IV, p. 574.394 SOUTH WEST AFRICA
neither of these statements evidences any purpose or motive to incor
porate or annex the Territory.
The first statement concerns merely the practical effect of the Man
date, i.e., with reference to the government and administration of the
mandated territory, as distinct from its legal status; and the use of
the words "in their practical effect" and "not far removed from" speci
fi.cally dispels any suggestion of a claim that the position created was
equivalent to annexation. In this regard Respondent refers to what has
been stated in Part II of this Rejoinder relative to the practical effect
of C Mandates 1.
3. Likewise, the second statement concerns the de facto government of
the Territory, as distinct from its status in international law. lndeed, in
the very passage from which Applicants have extracted this statement,
Respondent drew the following distinction:
"As far as the status of the Territory is concemed, Respondent
must respect the requirement that it is to be a separate international
status. On the other hand, as far as the de facto government of the
Territory is concemed, Respondent is authorized to perform all
acts covering all facets of government, administration and legis
lation ." (Italics added.)
It is clear from the context that it was with regard to this last-men
tioned aspect, the de facto government of the Territory, that Respondent
made the statement quoted in paragraph 2 (b) above.
By the statement "[t]he day to day exercise of the attributes of
sovereignty thus vest in Respondent", nothing more was meant to be
conveyed than by the statement of M. Hymans in his report to the
Leaguc Council in 1920, which was adopted by the latter, to the effect
that Mandatories would enjoy "a full exercise of sovereignty" 3. or by
the statement of the Chaîrman of the Permanent Mandates Commission
that the Mandatory "exercises sovereign powers" i_
By the use of the word "practically" (purposely italicized in the text)
Respondent dispelled any suggestion of a daim to sovereignty in the
ordinary sense of the word. In fact, Respondent immediately proceeded
to elaborate on the word "practically" in the context by mentioning the
"limitations which fetter or condition the internai exercise of the powers
of government and legislation" 5, namely the specific prohibitions con
tained in the Mandate and the duty to "promote to the utmost the
material and moral well-being and the social progress of the inhabitants
of the tcrritory ... " 2•
Consequently Respondent explicitly recognized that the Mandate
created a "separate international status" for the Territory and that there
were limitations upon Respondent's powers of government and legislation
under the Mandate.
4. By a circuitous process of reasoning Applicants, however, seek
support for their contention that the purpose or motive to incorporate
1 Vide Part Il, Chap. II, paras.4-10,supra.
2 IV, p. 69.
3 L. ofN., O.].,1920 (No. 6), p. 337. (Italics added.)
• P.M.C., Min., X, p.22. (Italics added.)
5IV, p. 69 (para. 8). REJODIDER OF SOUTH AFRICA 395
or annex the Territory is "conceded in Respondent's [said] avowals".
Applicants first cite from Black's Law Dictionary a part of one of the
definitions given for the word "sovereignty".
The part cited by Applicants is that italicized in the following extract
from the said dictionary :
"Sovereignty. The supreme, absolute, and uncontrollable power
by which any independent state is govcrned; supreme political
authority; paramount control of the constitution and frame of
government and its administration; the self-suffi.dent source of
political power, from which all specific political powers are derived;
the international independence of a state, combined with the right
and power of regulating its interna! affairs without foreign dictation;
also a political society, or state, which is sovereign and independent 1.
The power to do everything in a state without accountability,-to
make laws, to execute and to apply them, to impose and collect
taxes and levy contributions, to make war or peace, to form treaties
of alliance orof commerce with foreign nations, and the like. Story,
Const. para. 207 2." (Italics added.)
According to the above definitions the essence of sovereignty is
unlimited and un/ettered power. Clearly, then, Respondent's admission 3
that there are "limitations which fetter or condition" its power in the
Territory • is irreconcilable with a daim to sovereignty in the ordinary
sense of the word.
5. Applicants point to Respondent's statement that its powers in
the Territory are limited by (i) the specific prohibitions contained in the
Mandate, and (ii) the duty to "promote to the utmost the material and
moral well-being and the social progress of the inhabitants of the Terri
tory" and say:
"Taken at face value, this statement appears to concede that the
Mandate is still in existence, and that Respondent recognizes its
duties of international accountability and the reviewability of its
performance of the Mandate obligations. In fact, Respondent has
devoted a substantial portion of its Counter-Memorial to an at
tempted demonstration that the Mandate 'lapsed in toto upon
dissolution of the League of Nations'. This is, as has been shown,
the premise upon which Respondent has in fact conducted itself
with regard to the Territory and its inhabitants, at least since
November I948, when Respondent referred to 'the previous Mandate,
since expired' 5." (ltalics in original and footnote omitted.)
Respondent answers the above statement as follows:
(a) In the first place, there is no need for surmise on the part of Appli
cants as to whether Respondent, in referring to the above-mentioned
limitations on its powers in respect of South West Africa, concedes
that the Mandate is in existence. As has been indicated above 6,
1 References to decided cases not recited.
2.Black, H. C., Blaû1's Law Dictionary, 4th ed. (1951), p.1568.
3 On the basis here under discussion.i.e., that the l\fandaexists-vide Chap. I,
para. 2.supra.
• IV, p. 6g (para. 8).
s Iàid., p. 574.
6 Vide Chap. I, para.2, supra. SOUTI{ WEST AFRICA
Respondent stated specifically and clearly in its Counter-Memorial
that it would deal with Applicants' charges in Chapter VIII of the
Memorials "on the assumption, for purposes of argument, that the
Mandate is still in force"; and the reference to legal limitations on
its powers in respect of South West Africa was clearly made on the
basis of that assumption.
(b} Applicants' further statement that, in referring to the said limita
tions, Respondent apparently "recognizes its duties of international
accountability and the reviewability of its performance of the Man
date obligations", is without substance. Respondent's case, stated
clearly and specifically, is that, whether or not the Mandate is still
in force, Respondent's former obligations to report and account
to, and to submit to the supervision of, the Council of the League
of Nations, lapsed upon the dissolution of the League, and have
not been replaced by any similar obligations relative to super
vision by any organ of the United Nations or any other organization
or body •
In stating, on the assumption that the Mandate isstill in existence,
that there are the aforementionedlimitations on itspowers, Respond
ent did not recognize, and cannot be read as recognizing, "duties
of international accountability and the reviewability of its perform
ance of the Mandate obligations".
(c) It is true that since, and by reason of, the dissolution of the League
of Nations, Respondent has consistently taken up the attitude that
the :Mandate had lapsed in toto.
It is, however, not clear to Respondent what precisely Applicants
intend to convey when they add that Respondent's contention
that the l\!andate has lapsed "is ... the premise upon which Respond
ent has in fact conducted itself with regard to the Territory and
its inhabitants, at least since November I948" 2•
Whilst Rcspondent bas adoptcd the attitude that the Mandate
lapsed upon dissolution of the League, it has also consistently
stated and given the assurance that it would continue to administer
the Tcrritory in the spirit of the l\fandate-i.e., as if all the obliga
tions comprised in the sacred trust were still in existence-and
Respondent has in fact so continued to administer the Territory.
In this regard Respondent refers to the facts stated and con
clusions drawn in Chapters II and III of section C of Book VIII
of its Counter-llemorial 3,which are not specifically dealt with by
Applicants in their Reply, and in particular, inter alia, to the
following explicit statement:
"Rcspondent's policy to administer the Territory 'in the
spirit of the Mandate' includes a voluntary abstention from
unilateral incorporation, exactly as if the Mandate were still
in legal operation in that regard"."
6. \Vith regard to Respondent's contention that since, and by reason
of, the dissolution of the League, the obligations to report and account
to, and to submit to the supervision of. the Council of the League of
1 Vide II, pp. 97 an213 and Part II, Chap. III, para1,supra.
2 IV, p.574·
3 Ibid., pp. 86-92.
• Ibid.,p. 87. REJOINDER OF SOUTH AFRICA 397
Nations have lapsed and have not been replaced by any similar obliga
tions, Applicants say: "This proposition ... is one which bas guided
Respondent in its conduct toward the Territory and its inhabitants, at
1
least since November 1948 ."
Again it is not clear what Applicants intend to convey. If they mean
that Respondent has refuscd to recognize the United Nations as having
supervisory authority in respect of Respondent's administration of South
\Vest Africa, and has refused to submit petitions and reports to the
United Nations, then their statement is correct. If, however, they mean
that Respondent has in other respects changed its motives or conduct
towards the Territory and its inhabitants, then Respondent denies that
charge. As has becn demonstrated, Respondent has since the dissolution
of the League administered the Territory in the spirit of the Mandate~i .e.,
as if all the obligations comprised in the sacred trust were still in existence.
7. Applican ts' comment in regard thereto is as follows:
"Respondent does, it is true, aver that its policies in the Territory
are carried out 'in the spirit of the Mandate', but the spirit which
moves Respondent in this respect is unilaterally defined, and remains
unaccounted for, unreviewcd and unreviewable. Sovereignty cir
cumscribed by such a 'fetter' surely is indistinguishable from the
unfettered kind 1."
This comment, of course, goes beyond the basis of Respondent's con
tention of not being accountable to a supervisory organ: it introduces in
addition the further contention that the Mandate has lapsed. It is true
that there would on such basis be no legal obligations resting upon
Respondent in respect of the Territory. But in pursuance of the policy of
administering the Territory "in the spirit of the Mandate", Respondent
has de facto been acting as if all obligations relevant for present purposes
were still in force, including abstention from unilateral incorporation.
Consequently the mere fact of expressing a view that the Mandate bas
lapsed, cannot be rclied upon as proof of violation of any of the said
obligations, assuming that they are in force. To speak in this regard of
"[s]overeignty ... indistinguishable from the unfettered kind" is to
indulge in a mere play of words, which can in no way assist Applicants
while Respondent in fact abstains from acting as if endowed with un
fettered sovereignty in respect of the Territory. In sum, a fmding that
the Mandate is still in force will signify that Respondent has been wrong
in an expressed view, but not that Respondent bas violated the provisions
of the Mandate in its administration and treatment of the Terri tory.
8. In further arguing their contention that "Respondent's purpose or
motive to incorporatc or annex the Terri tory ... clearly appears from the
record herein'' 2,Applican ts say:
"Respondent's daim of the day-to-day attributes of sovereignty
over the Territory reflects a posture which Respondent has main
tained with regard toits rights and powers under the Mandate, from
its inception.
The records of the Permanent Mandates Commission disclose its
constant effort to assert the separate international status of the
1 IV, p. 575.
z Vide para. '.supra. SOUTH WEST AFRICA
Territory in the face of Respondent's insistence that the Mandate
was in 'practical effect, not far removed from annexation' 1.''
Respondent denies the suggestion that it was continuously in disagree
ment with the Permanent Mandates Commission regarding the separate
international status of the Terri tory.
Respondent admits that there were, during the lifetime of the League
of Nations, discussions and an exchange of communications between it as
Mandatorv and the Permanent Mandates Commission relative to the
international status of the mandated territory, and to the allied question
of sovereignty in the mandate system. _
Respondent states, however, that whatever d1fferencesthere may have
been between it and the Commission, Respondent never adopted an
attitude which canin any way be described as a "denial to the Territory
of a separate international status" 2•
9. Applicants give what they term "two illustrations" which, they say,
"will suffice to demonstrate the extent of difference between the Commis
1
sion and Respondent in this respect" .The first illustration is a statement
by General Smuts in the South African Parliament during July 1925
which led to a discussion in the Permanent 1'.fandatesCommission during
June 1926 1•
\-Vithregard to this statement, which was made at a time when General
Smuts was nota member of the South African Government, Respondent
states as follows:
(a} It is clear from the statement that General Smuts did not regard the
position under the Mandate as being equivalent to annexation, or
that South Africa could, during the existence of the Mandate,
daim sovereignty over South West Africa.
The point of view expressed by General Smuts in addressing
Parliament was that under the Mandate South Africa had such
wide powers, administrative and legislative, that there was no need
to annex the Territory, but, at the same time, he gave recognition
to South Africa's obligations under the Mandate.
Thus he said in the same speech:
"Under these circumstances I maintain-and I have always
maintained-that it will never be necessary for us, as far as I
can see, to annex South-West. We can always continite to /ulfil
the conditions imposed on us by the mandate, and we can always
render annual reports to the League of Nations in respect of the
mandate 3.''(Italics added.)
(b) The Members of the Permanent Mandates Commission themselves
appear to have expressed different views on the matter raised for
discussion as a result of General Smuts's speech. Applicants quote
in the Reply comments on the speech by one member of the Com
mission, M. Orts 4• In contrast thereto Respondent draws attention
to the views of another member, M. Rappard, who is reported to
have said, inter alia, that he--
"... did not think that a malter of printiple was actually affected
• IV, p. 575·
• Ibid., p576.
3 Vide IV, p. 79, where a fuller extract from General Smuts' speech is quoted.
• Ibid.,pp.575-576. REJOINDER OF SOUTH AFRICA 399
by the declaration of General Smuts. The Covenant, by the terms of
which mandated territories were administered in the name of the
League of Nations, remained untouched. General Smuts was
perfectly free to state that an integral part of the territory of
South Africa was administered in the name of the League of
Nations, although, in [his] view ... it would appear more logical
to say that it was administered in the name of the League of
Nations as if it formed an integral part of the territory 1."
(Italics added.)
(c) The Commission did not consider it necessary to make any declara
tion on the matter to the League Council. In the circumstances
General Smuts's statement, and the discussion thereof in the
Permanent Mandates Commission, do not support Applicants'
conclusion that there was on the part of Respondent a "denial to
the Territory of a separate international status".
rn. The other "illustration" relied upon by Applicants is the fact that
certain differences arose between the Permanent Mandates Commission
and Respondent during 1926 with regard to the wording of a boundary
agreement concluded between Respondent and Portugal 2• Inasmuch as
this incident has already been dealt with in the Counter-Memorial 3,
Respondent will for present purposes merely draw attention to the
following:
(a) Applicants, in quoting from the said agreement in the Reply 2,
again omit, as they did in the Memorials 4, an important qualifica
tion contained in the preamble to the agreement. This qualification
was expressed in the italicized words in the following extract from
the preamble:
"... the Union of South Africa, subject tathe terms of the said
mandate, possesses sovereignty over the Territory of South
5
West Africa ... ".(Italics changed.)
(b) Although a controversy did arise as to the meaning of the word
"sovereignty" in the above context, it is instructive to have regard
to the light in which the Commission viewed the matter. Thus the
Commission reported to the League Council that the wording of
the preamble-
''... seems taimply a daim to legal relations ... not inaccordance
with the fondamental principles of the mandates system 6".
(Italics added.)
And the Commission expressed the hope that-
"... [the South African] Government will be so good as to
explain whether, in its view, the term 'possesses sovereignty' 7
expresses only the right to exercise full powers of administration
and legislation in the territory of South-West Africa under the
-----
1 P.M.C., 1\Jin., IX, p. 34-
2 IV, p. 576.
3 Ibid., pp. 28-29.
• I, p. 38.
s Vide II, p.28.
6 P.A1.C., Min., XI, p. 204.
7 During the Tenth Session of the Commission the Chairman had said that instead
of the expression "possesses sovereignty" the "correct expression should be 'e:rercises
sovereign powers' " (italics added)-P.1W.C.,Min., X, p. 22.400 SOUTH WEST AFRICA
terms of the mandate and subject to its provisions and to those
of Article 22 of the Covenant, or whether it implies that the
Government of the Union regards itself as bcing sovereign over
the terri tory itself1".
(c) Applicants omit to state that all misunderstanding was resolved
through the acceptance by Respondent, in a letter of r6 April 1930,
of reports adopted by the Council of the League to the effect, inter
alia, that "sovereignty in the traditional sensc of the word does not
2
reside in the Mandatorv Power '' •
(d) During the League o(Nations period similar questions also arose
with regard to sovereignty in respect of other mandated territories.
Thus in respect of Ruanda-Urundi, under Belgian Mandate, and
Togoland and the Cameroons, under French mandate, the Perma
nent Mandates Commission had occasion to discuss legislative
enactments, the wording of which suggested that the i\Iandatories
concerned claimed sovereignty over the tcrritories mandated to
them 3. And with regard to reports on the administrative union
between Togoland and the Cameroons, under British 1'.fandate,
which suggested a similar interpretation, the Commission commented
as follows:
"\Vhile the Commission desires to bring this matter to the
notice of the Council, it does not exaggcrate its importance. As,
howcver, the passages referred to might lead to annexationist
aims being attributed quite erroneously to the mandatory
Powers, it appcars to the Commission that their own interest,
no less than that of the League of Nations, requires that in
future any formula should be avoided which might give rise
to doubts on the subject in the minds of ill-informed or ill
intentioned readers f_"
11. ln the prcmises aforestated Respondent denies the conclusion
sought to be drawn by Applicants from the so-cal\ed "two illustrations",
namely a "continuing and long-standing posture [on the part of Respond
ent] of denial to the Territory of a separate international status" 5.
12. Respondent says that, in the light of the aforegoing analysis of
Applicants' "Argument", nothing has in fact been advancecl to support
their conclusion that "Respondent's purpose and motive has (sic) been,
and remains (sic), that of incorporatîng or annexing the Territory" 5.
On the contrary, Applicants have in no way countered Respondent's
exposition and analysis of its attitude towards the Territory as set forth
6
in the Counter-Memorial .
1 P.M.C., Min., XI, p. 205.
2
3 Vide Il, p. 29.
P.M.C., Min., Vil, pp. 52-61 and P.M.C., Min., II 1pp. 22 and 222-233. Vid~
also Wright, Q., Mandates under the League oj Nations (1930), pp. 206-207.
• P.M.C., Min., V, p. 190 and \Vright, Q., Mandates under the League of Nations
(1930). p. 207.
' IV, p. 576.
6Ibid., pp. 86-92. CHAPTER III
RESPONDENT'SALLEGEDPOLICIESAND ACTS
A. General
1. The second of Applicants' "legal conclusions" aforementioned 1 is
rendered by them as follows:
"Such policies and acts."including [Respondent's] rejection of inter
national accountability and its insistence upon the right to govem
the Territory on the basis of an unreviewable discrction, constitute
ipso facto, and without regard to Respondent's motive or purpose, a
violation of Respondent's obligation to respect the separate internation
(sic) status of the Territory 2.''
This conclusion calls for general comment in two respects.
In the first place, it introduces an alternative contention not previouslv
made by Applicants. "
ln the l\femorials Applicants alleged violation by Respondent of its
duty, or duties, to refrain from unilateral annexation and to promote
the progress of the inhabitants toward self-determination 3•Applicants
sought to establish this charge by referring, firstly, to certain statements
made, inter alia, by members of Respondent's Govemment, which state
ments, in their submission, proved that Respondent's "purpose is in
corporation" 4, and. secondly, to certain acts of Respondent which, in
their contention, had given "practical effect" to Respondent's alleged
intent to incorporate the Territory ,._Although they reiterate this charge
in the Reply 2, they also now introduce an alternative contention which
is new.
The attitude adopted by Applicants in this alternative contention is
that Respondent's policies and acts per se constitute "a violation of
Respondent's obligation to respect the separate international (legal]
status of the Territory"-"without regard to Respondent's purpose or
motive" 5•
The effect ,is that the essence of the original charge-an unauthorizcd
purpose or motivc-is ignored in this contention. Furthermore, Appli
cants advance this ncw contention without amending their legal con
clusion in the l\femorials. which conclusion reads as follows:
"By the foregoing actions, read in the light of the Union's av()'IIJed
intent, the Union bas violated, and is violating, its international
obligations stated in Article 22 of the Covcnant of the League of
Nations and in Article 2 of the Mandate 6." (Italics added.)
2. Respondent's second point of comment regarding this "legal con
clusion" concerns the following words embraced thcrein, viz.,
• Vide Chap. 1,para. 5, supra.
2 IV, p. 576.
3 Vide Chap. I, para.1 supra.
~ I,p. 189.
5 Ibid.,p. 573 and siipm.
6 I, p. 195.402 SOUTH WEST AFRICA
including [Respondent's] rejection of international accounta
bility and its insistence upon the right to govem the Territoiy on
the basis of an unreviewable discretion . . . 1''.
As Applicants' legal conclusion is worded, it is not clear to Respondent
what argument is sought to be based on Respondent's disclaimer of
supervision in the context of the charge here under consideration. Do
Applicants contend that Respondent's attitude relative to supervision is,
in itself, an act which constitutes "a violation of Respondent's obligation
to respect the separate international status of the Territory"? If so,
Respondent finds it strange that Applicants do not anywhere in their
Reply attempt to justify or to demonstrate the soundness of such a con
tention. Indeed, there is a significant omission of any treatment or dis
cussion of such a proposition in the Reply.
Respondent submits that such a proposition would be untenable. If
Respondent is correct in its contention-Le., that its obligations to
report and account to, and to submit to the supervision of, the Council of
the League, lapsed upon dissolution of the League, and have not been
2
replaced by any similar obligations relative to supervision -then, surely,
its rejection of so-called "international accountability" cannot constitute
a violation of any obligation. If, on the other hand, it should be held that
Respondent's aforementioned obligations did not lapse upon dissolution
of the League, then that would signify that Respondent has erred in its
aforestated rejection, and that Applicants' charge of a breach of Article
6 of the Mandate has been establishecl, but not that the "separate inter
national status of the Territory'' has in any way been affected. The sub
stantive nature of the discretion conforred upon Respondent regarding
the administration of the Territory can in no way be affected by the
presence or absence of supervision.
3. Another meaning which could be assigned to Applicants' legal
conclusion is that Respondent's contention relative to supervision is an
element or factor which substantiates Applicants' charge that the other
acts dealt with in the Reply 3 constitute a violation of Respondent's
"obligation to respect the separate international status of the Territory".
But then again there is, save in one instance. a significant omission on
the part of Applicants of any trcatment or discussion of the matter on
that basis. In the whole of Applicants' argument in the relevant part of
the Reply 3Respondent's contention relative to supervision is mentioned
only once, namely in dealing with the vesting of South West Africa
Native Reserve land in the South African Native Trust -a 5 matter
which will be dealt with hereinafter 6•In the premises, Respondent is at
a loss to deal further with this aspect of the "legal conclusion", which is
neither clear in itself nor based on any argument or discussion which
could throw light on its meaning.
Respondent deals next with the several acts referred to by Applicants
in the Reply 3 as being relevant to the "legal conclusion" here under
consideration. In the Memorials these acts were relied upon in con-
1 IV, p. 576.
2 Vide Chap. II, para. 5,supra.
3 IV, pp. 576-586.
4 Ibid., p.584.
s Vide paras. 24-27, in/ra. REJOIN"DER OF SOUTH AFRICA
junction with the alleged intent of incorporation 1, a charge which, as
indicated above 2,is repeated in the Reply. ln so far as such acts are
again referred to in the Reply in the latter context, Respondent will
deal therewith also on that basis.
B. Conferment of South African Citizenship 3
4. ln Applicants' Memorials the conferment of South African citizen
ship on the inhabitants of South West Africa was relied upon as one of
several acts alleged to have "given practical effect" to a plan or purpose
on Respondent's part to incorporate South West Africa •. Respondent in
its Counter-Memorial dealt fully with this charge 5• In the Reply Appli
cants now introduce the alternative contention that even "without re
gard to Respondent's purpose or motive" this act constitutes a "viola
tion of the duty to respect the separate international status of the
Territory" 6. Respondent denies that the act in question constitutes
such a violation, and submits that Applicants have advanced nothing
in support of this newly formulated alternative contention.
5. While admitting that the conforment, by Act No. 44 of 1949, of
South African citizenship on the inhabitants of South West Africa
involved, in so far as the Native inhabitants were concerned, an in
consistency with the resolution of the Council of the League of Nations
of 23 April 1923 7,Respondent submits as follows,on the basis ofthe facts
related in its Counter-.Memorial-which facts are not contested by
Applicants -and the argument propounded therein:
(a) The admitted inconsistency centres around the manne, in which
citizenship was conferrcd on the Native inhabitants of the Territory.
\Vhat the Council objected to was a particular manner of confer
ment of nationality and not the fact of conforment of nationality by
itself. Indeed the Council specifically stated that-
"[i]t is not inconsistent with [paragraphs r and 2 of its resolu
tion] that individual inhabitants of the mandated territory
should voluntarily obtain naturalisation from the Mandatory
Power ... 9".
(b) The fact of there bcing a common nationality, shared by the in
habitants of the Mandatory State and that of the mandated territory,
could therefore, in terrns of the Council's resolution, not affect
the international status of the mandated territory.
6. Applicants say in the Reply that the contentions advanced by
Respondent in the Counter-Memorial to the above effect are not-
"... consistent with the essential purpose of the resolution which,
in the words of the Permanent Mandates Commission quoted above,
1 Vide para. 1,supra.
2 Ibid., and IV, p.576.
3 IV, pp. 576-579.
' I,p. 190.
' IV, pp. 93-100.
6 Ibid., p. 579.
7 The relevant portion of the resolution is cited at IV, p. 94.
s Vide Chap. I, para. 4, si,pra.
9 Vide third para. of the resolution quoted at IV, p. 95. SOUTH WEST AFRICA
was to assure that in accordance with the principles of Article 22
of the Covenant of the League of Nations, inhabitants of the Terri
tory 'should be granted a national status wholly distinct from
that of the nationals of the mandatory Power' 1'.
Assuming that the purpose of the resolution was as stated by the
Permanent Mandates Commission, the Council nevertheless did not by
its resolution intend to declare a prohibition against all forms of confer
ment of citizenship, and could therefore not have regarded confer~ent
of citizenship as, in itself, affecting the international status of mandated
territories.
Applicants' further statement that-
"[t]he fact that by voluntary action, any inhabitants of the Territory,
or ail o( them, might be naturalized by Respondent, does not justify
the prohibited action of compidsory conferment of Respondent's
citizenship upon them 2",
begs the question in issue. Respondent has not contended that because
so-caUed "voluntary action" was permitted, "compulsory conferment"
would be permissible in ternis of the Council's resolution. What Res
pondent does say is that conferment of citizenship was not regarded by
the Council as an act which could, by itsdf, affect the international status
of a mandated territory.
7. Inasmuch as the legislation in question 3 did not extinguish or
diminish any rights which the Natives of South West Africa may have
had to a separate status as inhabitants of that Territory 4,-a point with
which Applicants do not deal at all in the Reply-the Act did not offend
against the cardinal concem of the Permanent l\fandates Commission
and the Council, viz., to guard against "... the assimilation of the
inhabitants of the B and C mandated territories to the nationals of the
mandatory Power" 5, which assimilation would be regarded by the
Commission as" ... contrary to the spirit of the mandates system ... ".:;_
(Italics added.)
8. That the legislation was, as regards the manner of conferring
citizenship, in so far as the Native inhabitants were concemed, at vari
anccwith theactual terms of theCouncil'sresolution of23Aprih923,isnot
denied. Respondent has been unable to ascertain whether the Council's
resolution was considered or overlooked when the legislation in question
was prepared and passed in 1949. The Parliamentary discussion throws
no light on the objectives of this aspect of the legislation, nor could any
assistance in this regard be derived from departmental records or officials
who dealt with the matter.
Looking at the matter ex post facto, however, it may be relevant to
point out that circumstances in 1949 were substantially different from
·what they had been in 1923 when the Council's resolution was passed.
By 1949 the mandate system as such had ceased to exist. Various States
had, particularly in debates at the United Nations, expressed the view
iIV, p. 577.
2 Ibid., p578.
3 Act No. 44 of 1949 in Statutes of tke Union of SouJh Afric1949, pp. 414-452,
~ Vide IV, p. 99 (,para. 14).
' Vide Memorandum of l\larquis Theodoli, P.1ll.C., Min .• H, p. 86 quoted at IV,
p. 578. REJOINDER OF SOUTH AFRICA
that the Mandate for South West Africa had lapsed, whereas other States
had contested that view 1. The question whether the Native inhabitants
of South West Africa could any longer be regarded as being under the
protection of a "mandatory Power", was thereforc a matter of un
certainty and controversy in the international world. In these circum
stances it was, in Respondent's submission, more advantageous for the
Native inhabitants of South \Vest Africa, and thcrcfore more in keeping
with the spirit of the sacred trust, to confer upon them the definite
benefits of South African citizenshirin addition to whatever rights or
status they might have had as inhabitants of that Territory-than to
leave the question of their national status entirely in astate of suspense
and uncertainty.
Applicants do not dispute that prior to the present proceedings no
one apparently ever suggested that the passing of the Act in question
was inconsistent with the international status of South West Africa 2 .
9. Respondent reiterates that in passing the Act it did not intend to
affect the separate international status of the Territory, and denies that
the said Act constitutes a violation of the duty to respect such status.
C. Inclusion of Representatives from South West Africa
in the South African Parliament 3
IO. Respondent in the Counter-Memorial ~ dealt with Applicants'
allegations relative to the legislation which provided for the inclusion
in the South African Parliament of representatives from South West
5
Africa , including the charge that it "was part of a plan to incorporate
the Territory politically". In Respondent's submission it thereby
effectively refutcd such charge.
In support of their present alternative contention that the said legisla
tion "defeats Rcspondent's duty to respect the separate international
6
status of the Territory" , Applicants neither relate any new facts nor
advance any fresh argument, but content themselves with giving the
"views of rcsponsible organs of bath the United Nations and the League
of Nations" 6•
rr. The first of such views relied upon by Applicants is expressed in
the 1954 report of the Committee on South West Africa.
It is clear from the extract which Applicants cite from the report 7,
that the Committee itsclf refrained from expressing its opinion "on the
strictly legal aspect of this question", and merely stated that it "be
lieves" that the inclusion of representatives from South West Africa
in the South African Parliament "is likely to prejudice the development
of the Terri tory as a separate political entity". (Italics added.)
In the first place the Committee advanced no grounds for its belie/,
and, in any event, was not prepared to say that the position affected the
separate international status of South West Africa. Apparently the belief
' Vide II, p.65.
2 Vide IV, p. 99 (para. 15).
3 IV, pp. 579-581.
• Ibid.,pp. IOI-I04.
5 Act No. 23 of 1949 in Stalutes of the Union o/ South Af,ica r949, pp. 178-196.
6 IV, p.58r.
7 Ibid.,p. 579. SOUTH WEST AFRICA
was not based on an objection to the fact of representation ter se, but
on the manner of representation, viz., "by Union nationals o European
descent" 1•
12. The second statement expressing views relied on by Applicants
is extracted from a report of the same Committee for the year 1956,
and follows on that part of the report, cited in the Counter-Memorial
in support of Respondent's prnposition that the Committee itself-
"... could not suggest that, seen objectively, representation of a
Mandated territory in the legislative institutions of the Mandatory
Power would be inconsistent with the international status of such
2
Territory ".
The extract from the report quoted by Applicants 3 does not serve
as a denial of the above proposition.
On the one hand, the Committee by implication criticized Respondent
for not extending representation in the South African Parliament to ail
the inhabitants of South West Africa. On the other hand, the fact that
the South West African representatives in the South African Parliament
have a voice and vote not only in matters relating to the Territory, but
in all matters affecting South Africa itself "... appear[ed] to the Com
mittee to imply an assumption by the Union of sovereignty over the
Mandated Terntory ... " •.
. It is clear that the Committee did not regard representation in itself
as inconsistent with the international status of South \Vest Africa. The
implication of an assumption of sovereignty on the part of Respondent
merely because the South \Vest African representatives have a voice and
vote in the South African Parliament in matters affecting South Africa
itself, is unwarranted.
Such representation and the rights of the South West African repre
sentatives, are in themselves neutral when inferences are sought to be
drawn as to whether-
(a) the Territory is, in terms of the Mandate, being administered "as
an integral portion of the [Republic] of South Africa", to which
Respondent "may apply the laws of the [Republic] of South
5
Africa" ,
or whether-
(b) the Territory is actually being incorporated, with an "assumption
6
of ... sovereignty" on Respondent's part. Other or accompanying
facts, or expressions of policy, have to be considered in order to
determine whether there is an intent to incorporate or annex the
Territory. Respondent has already denied such an intent or motive
on its part 7, and Applicants have brnught no new evidence with
a view to showing the contrary. Indeed, the legislation isapparently
now discussed by Applicants only with reference to their alter-
iIV, p. 579.
2 Ibid., p102.
3 Ibid.,pp. 579-580.
4Ibid., p.580.
' Vide Art. 2 of the Mandate for German South-vVest Africa.
6 Vide the Committee's report as quoted at IV, p. 580.
, IV, p.103. REJOINDER OF SOUTH AFRICA
native "legal conclusion" 1 for the purposes of which, in their own
words, "motive or purpose" is irrelevant 2•
r3. The other statements relied upon by Applicants as expressing the
"views of responsible organs of ... the League of Nations" 3 have been
extracted by them from the Minutes of proceedings in the Permanent
Mandates Commission during the year r934 4•\Vith regard to the extracts
5
quoted by Applicants ,Respondent states as follows:
{a) The discussion at the said session of the Commission did not relate
specifically to the question of representation of the inhabitants of
South West Africa in the South African Parliament, but to the
much broader "question of the incorporation of South West Africa
in the Union of South Africa as a fifth province" 6•
The discussion did not arise from any formai report to the Com
mission, but as a result of newspaper reports conceming a resolution
of the Legislative Assembly of South West Africa which aimed at
incorporation of the Territory 7•
(b) In the absence of full particulars of the proposa} of the Legislative
Assembly and the implications thereof, the discussion in the Com
mission took the form of a general exchange of thoughts by the
individual members on the subject of incorporation.
Indeed, M. Orts, who originally raised the subject, is recorded as
having said that he-
"... felt that it would be difficultto determine exactly the scope of
the problem as long as the Commission was not in possession of
all the factors. At present the information it had received was
merely that a vote had been taken by the Legislative Assembly
of South West Africa on a motion recommending the incorpo
ration of the mandated terri tory in the Union as a fifth province,
subject to the provisions of the mandate.
The Commission was tbus faced with a somewhat vague
situation, and it was impossible for it to determine to what
extent the incorporation of the mandated territory as a pro
vince of the Union would affect the territorial entity of South
West Africa ... 8"
In the circurnstances, he stated that, in bis view,
"... the proper procedure ... would be to frame an observation
in which the Commission ... reserved its opinion as to the com-
patibility with the mandatory system of the solution recom
mended by the Legislative Assembly 8."
In the end this was the course adopted by the Commission 9 •
5
{c) The extracts quoted by Applicants in the Reply are from the
recorded statements made on this occasion by three of the members
1 Vide para. 1. supra.
2 IV, p. 576.
3 Ibid.,p. 581.
• P.M.C., Min., XXVI.
5 IV, pp. 580-581.
' P.M.C., Min., XXVI, p. 163.
1 Ibid.,pp. 50-51.
8 Ibid., p.164.
9 P.M.C., Min., XXVI, p. 166. SOUTH WEST AFRICA
of the Commission, namely :Messrs.Rappard, Merlin and Sakenobe.
Upon a proper reading of the full statements of the said members,
it appears clcarly that Messrs. Rappard and Merlin directed their
thoughts generally to the broad question under discussion, namely
incorporation, and not specifically to the question whether re
presentation of the inhabitants of South West Africa in the South
African Parliament would per se be in conflict with the Mandate.
Thus M. Rappard, in sounding a note of caution in answer to a
statement by Lord Lugard 1,observed that-
"... there could be no comparison between the administration
of certain mandated territories as integral portions of the adja
cent colonial territories belonging to the mandatory Power and
the incorporation of the mandated territory in the territory of
2
the manda tory Power itself ".
The portion of l\I.Rappard's statement quoted by Applicants
merely illustrated one of the points of difference mentioned by
him in order to substantiate his contention that no such comparison
could be made. He did not express it as his view that representation
of the inhabitants of South West Africa in the South African
Parliament would perse be in conflict with the Mandate.
So, also, M. Medin occupied himself solely with thoughts on the
broad question of incorporation, which, in his view, would result
in the l\fandated Territory becoming "part of a political unity
namely, the Union of South Africa" 3• The far narrower question
here in issue, viz., representation in Respondent's Parliament,
was not even mentioned by M. Merlin.
It is true that l\I. Sakenobe, in the course of giving what he
termed a "very general opinion on the matter", expressed the view
that representation of the inhabitants of South West Africa in the
South African Parliament would be "quite contrary to the present
status of the Territory" 3•In advancing such a contention, which
Respondent submits to be wrong, M.Sakenobe, however, stood alone.
(d) Furthermore, Applicants omit to mention that in the discussion
certain members also expressed views directly in conflict with the
opinion of M. Sakenobe, and with the position now taken by Appli
cants.
Thus Lord Lugard, referring to an opinion by Professor A. B.
Keith, an eminent authority on constitutional law, to the e:ffect
that Respondent could, if it wished, incorpora.te South West Africa
in its territory, stated that he "was inclined to share [Professor
Keith's] view" 4.
Lord Lugard said that, as long as Respondent was bound by the
Mandate and continued to observe the provisions thereof, "in
corporation of South West Africain the Union of South Africa could
4
not be regarded as an attempt at annexation" •And in this regard
he drew attention to the fact that the motion adopted by the
Legislative Assembly of South West Africa stipulated that any
change should be "subject to the provisions of the Mandate" 4•
1 Vide sub-para. (d), infra.
2 P.M.C., Min., XXVI, p. 164.
3 Ibid.,p. 165.
4 Ibid.,p. 163. REJOINDER OF SOUTH AFRICA
It is implicit in the view expressed by Lord Lugard that the
inclusion of representatives from South West Africa in the South
African Parliament would not be in conflict with the Mandate.
14- In the premises aforestated, Respondent submits that Applicants
are clearly wrong in stating that "responsible organs of both the United
Nations and the League of Nations" have cxpressed "views ... opposing
inclusion of representatives from South West Africain the South African
Parliament" 1.The statements of the only organ of the United Nations to
which Applicants refer-the Committee on South West Africa-do not
reflect the view contended for by Applicants 2•
Likewise, no such opposing view was expressed by any organ of the
League of Nations-unless, of course, one member of the Permanent
Mandates Commission, M. Sakenobe, can be regarded as an "organ"
of the League; but then the conflicting views expressed by another
member of the Commission 3 would equally have to be regarded as the
views of another "organ" of the League.
15. Although Applicants mention Respondent's argument that, in the
case of certain trust territories formerly under mandate, the United
Nations permitted arrangements similar to that provided for in the
legislation under consideration relative to South West Africa 4, they
5
avoid dealing with the argument •
r6. In conclusion Respondent denies that the inclusion of Representa
tives from South West Africain the South African Parliament-whether
viewed separately, or together with conforment of South African citizen
ship upon the inhabitants of South West Africa -constitutes a violation
of the duty to respect the separate international status of the Territory.
D. Administrative Separation of the Eastern
1
Caprivi Zipfel from the Rest of South West Africa
17. ln the Memorials Applicants' charge was that the purpose of sepa
.rating the administration of the Eastern Caprivi Zipfel from the adminis
tration of the rest of South West Africa was to give effect to Respondent's
6
alleged intention to incorporate the Territory ,and that such separation
was effected under the pretext that it was occasioned by administrative
difficulties 7.
In support of this charge they relied upon a contention of the Com
mittee on South West Africa that the separate administration of the
Eastern Caprivi Zipfel prejudices one of the "General Conditions" which,
according to the Council of the League of Nations, had to be ful:filled
"before a mandated territory [could] be released from the mandatory
.regime" 8.
1 IV, p. 581.
2 Vide paras. n-rz, supra.
3 Vide para. r3 (d), supra.
• IV, pp. ro2 and 579.
5 With regard to like arrangements in the said Territorieswhile under Mandate
vide the statement by Lord Lugard in the Permanent Mandates Commission,
P.M.C., Min., XXVI, p. r63.
6 I,p. r93.
1
8 Ibid., p. 194.
Ibid., pp. r64-165: for the rest of the said General Conditions vide IV, pp. r14-II5. SOUTH WEST AFRICA
In the Reply Applicants completely shift their ground relative to this
charge. They now concede "that the Eastern Caprivi Zipfel is not readily
accessible from the rest of the Territory" 1,that it is in "an exceptional
situation" 1, and that "problems of accessibility [could] make adminis
trative separation expedient" 2.While still relying on the contentions of
the Committee on South \Vest Africa regarding the aforementioned
"GeneralConditions", theirchargeisnowthat Respondent has "... taken
nnjustified and improper advantage of [the] exceptional situation" 1•This
charge rests upon a contention that Respondent is obliged, in tenus of
the Mandate,
" ... to take other steps to preserve the territorial integrity of the
Mandated Territory as a whole, and to develop the 'sense of terri
torial consciousness among all the inhabitants' which is required by
the United Nations 2",
2
and that Respondent has failed to comply with such obligation .
Respondcnt will deal with this contention in the next succeeding para
graphs, but is concemed at this stage merely with pointing out the trans
formation which Applicants' complaint in this respect has undergone.
Whereas in the Memorials Applicants questioned the soundness of the
reasons advanced for separating the administration of the Eastern
Caprivi Zipfel, and condemned the act of separation as such, they now
concede that such separation could have been rendered expedient by
geographical and other circumstances beyond Respondent's control; but,
in order to persist with a complaint in some form or another, they
attempt to introduce a new obligation into the Mandate, formulated
with reference to requirements of the United Nations regarding trust
territories-an obligation which, as will be shown hereinafter, has no
legal foundation.
r8. Applicants do not spccify, with regard to their factual allegations,
what "other steps" Respondent should have taken, nor do they indicate,
with regard to their legal contention, whence they derive an obligation
in terms of the Mandate to take positive action of the vague nature
contended for by them. If any such obligation were to exist, it could have
arisen only under Article 2, paragraph 2, of the Mandate, and would
have to be to the effect that Respondent must positively promote the
integration of ail the population groups into one whole. "Territorial
integrity" and "territorial consciousness" are in fact expressions used in
some organs of the United Nations, as describing objectives considered
desirable in preparing the populations of certain trust territories for the
exercise of self-determination by a particular method, viz., by a majority
decision of the population of the whole territory, considered as one.
Respondent has in the Counter-11:emorial given its reasons 3,which have
in no way been controverted by Applicants, for rejecting the suggestion
that an obligation to adopt such a particular method in all cases and
under all circumstances can be said to be "implicit in the undertaking of
the Mandate itself" 2• Similarly, Respondent gave its reasons 4, which
have again not been controverted by Applicants, for its conviction that
1IV, p. 58r.
2 Ibid., p582.
3 Vide ibid.,pp. 7r-72 (especially para. r4).
• Ibid.,pp. 71-7'1Vide also II, Book IV, passim,espcciallypp.458-46r (paras. 4-7)
and 472-473 (paras. 26-29); also IV, pp. 2r3-214. REJOINDER OF SOUTH AFRICA
4II
such particular method.will, in the circumstances of South West Africa,
not be appropriate or likely to do justice to ail the various peoples con
1
cerned, inter alios the peoples of the Eastern Caprivi Zipfel .Further
more, the same organs of the United Nations have in certain cases
accepted total partition of former mandated and/or trust territories,
e.g., Palestine, the British Cameroons 2, and Ruanda-Urundi 3, which
confirms the necessity of treating each case solely on its own merits.
Respondent denies that, under the circumstances pertaining to South
West Africa, it was under any obligation to attempt to foster "territorial
integrity" or "territorial consciousness" in so far as, in its own view, such
attempts would not be realistic or conducive to the achievement of
eventual self-determination by the peoples concerned in the manner most
suitable and just for ail concerned.
Moreover, it is not clear what relevance the concepts in question can
have to a charge of failing to respect the separate international status of
South West Africa.
19. \Vith regard to Applicants' repetition of the contention of the
Committee on South \Vest Africa regarding the aforementioned "General
Conditions""', which contention they endorsed in their Memorials 5,
Respondent pointed out in the Counter-1\temorial 6 that the condition
in question concemed the ability of a territory to maintain its territorial
integrity and political independence a/ter liaving beengranted independence,
and was therefore intended to arise for consideration only when it was
proposcd to bring the Mandatory regime in respect of a particular
territory to an end by the grant of independencc.
Applicants' response thereto is that-
". . . the said General Condition is applicable throughout the
course of the development of a Mandated Territory, and not
merely in connection with a proposai to bring a Mandate régime
7
to an end ''.
Not only do Applicants fail to state any reason for this contention, but
a reference to the other conditions in the set of "Gcneral Conditions"
wholly disproves this contention 8• Furthermore, it must be noted that
the "General Conditions" are negative in nature-they prescribe con
ditiones sine qtta non for the grant of independence, and do not stipulate
positive duties incumbcnt on a Mandatory. Indeed, neither the Perma
nent Mandates Commission nor the League Council was competent to
prcscribe the positive duties contended for by Applicants. The immediate
reason why the League Council requested an enquiry, and the Permanent
Mandates Commission conducted the enquiry which gave rise to the
formulation of the conditions in question, viz., the proposed grant of
1 Vide,e.g., IV, p. n8 (para. 36).
zIl, pp. 519-520.
3 Ibid.,p.525.
4 Vide para. 17,supra.
5 I,p. 193..
6 IV, pp. II4-115.
1 Ibid., p.582.
• Vide No. (1) of the two "classes of preliminaryconditions", cited at IV, p. 114
and the conditions cited at pp. II4-n5.412 SOUTH WEST AFR1CA
independencc to Iraq, also corroborates Respondent's contention 1. And,
finally, Respondent points out that the Commission in its report to the
League Council referred to the said conditions as-
"... conditions the presence of which will in any case indicate the
ability of a political community to stand alone and maintain its own
existence as an independent State 2". (Italics added.)
20. Applicants argue further as follows:
"Moreover, the General Condition is applicable even in a situation
in which a Mandated regime ended by lawful incorporation, inas
much as such incorporation must be the result of a free exercise of
the right of self-determination, implying a choice among several
alternatives, one of which rnight be independence. Irrespective of
the ultimate choice by the inhabitants of a 1fandated Tcrritory,
the Territory must, prior to such choice, 'be capable of maintaining
its territorial integrity and political independence' 3."
This argument involves a non sequitur. Self-determination does imply
a choice between alternatives, one of which might be independence; but
that is no ground for saying that the League Council intended the condi
tions in question to operate before the choice is made, and whatever the
choice may be. lndeed, non-application of one or more of the conditions
may be a reason for the inhabitants to prefcr incorporation in, or amalga
mation with, another Territory or State. Particularly in the case of C
Mandates, it was conceivable, by reason of the circumstances set out in
Article 22 (6) of the Covenant, that the inhabitants would reach a stage
of maturity sufficient for the exercise of self-determination, but without
any prospect of satisfying the requirements for independence. Their
choice of alternatives at such a stage could be only between, on the one
band, incorporation in, or amalgamation with, another territory, and,
on the other band, indefinite prolongation of the mandate status. The
"General Conditions" would be totally inapplicable when a choice
between such alternatives had to be made. Respondent, therefore,
reiterates that the Mandates Commission, in framing the conditions in
question, and the League Council in approving thercof, were concerned
only with the case where a mandated territory was "desirous of emanci
pation", thereby raising the question whether the people concemed had
"become fit to stand alone without the advice and assistance of a manda
tory" 4•
21. Applicants' further statement that-
"[t]he Permanent Mandates Commission ceased to function in the
year of the adoption of the foregoing Proclamation, and thus the
Commission had no opportunity to consider or express views
3
thereon ",
is partly true and partly false. .
Although the Commission ceased to fonction in r939, it was infonned
early in that year of the proposed proclamation to bring about a separa-
1
Vide Evans, L. H., "The General Principles governing the Termination of a
Mandate", The A merican journal of InternationaLaw, Vol. 26, No. 4 (Oct. 1932), pp.
735-758, at p. 739-
2 Ibid., p. 749.
' IV, p. 582.
• Vide general considerationsmentioned by the Commission; IV, p. u3. REJOINDER OF SOUTH AFRICA
.41=3
tion of the administration of the Eastern Caprivi, and expressed the
view that-
"... the administrative ·arrangement contemplated calls for no
observations on its part provided ail the provisions of the mandate
are properly applied in the eastern portion of the Caprivi Zipfel 1".
22. Applicants conclude their argument as follows:
"Respondent's failure to take any measures designed to preserve
the territorial integrity of the l\.fandated Territory as a whole,
Respondent's total legal separation of the Eastern Caprivi Zipfel
from the Territory, and Respondent's annexation of the area, must,
in Applicants' submission be regarded as elements in Respondent's
plan to incorporate and annex the Territory as a whole. By such
actions Respondent has failed and refused to respect the separate
international status of the Territory, thereby violating Article 2 of
the Mandate and Article 22 of the Covenant of the League of
2
Nations ."
Respondent feels inclined to ignore the several irresponsible assertions
rolled up in this concluding passage of the argument, but will for the sake
of completeness deal briefly therewith.
In the fust place, as regards the idea of "territorial integrity", in so far
as separate administration of the Eastern Caprivi may possibly be said
to run counter to this idea, Respondent has shown that the only objec
tives involved are the best interests of the people concerned, and that no
support is thereby afforded for a charge of failing to respect the separate
3
status of South West Africa • A fortiori no support can be afforded there
by for an allegation of a plan "to incorporate and annex the Territory as
a whole".
Secondly, there has not been a "total legal separation" of the Eastern
Caprivi from the rest of South West Africa. The Eastern Caprivi has, as
from r939, merely "cease(d1 to be administered" 4 as part of the Territory.
In all other respects it remains in law part of the Territory and shares its
separate international status. Reference may in this regard be made to
paragraph 20 of Respondent's Memorandum on the Odendaal Commis
sion's report 5, which shows contemplation of a possibility that the
administration of the Eastern Caprivi may again be joined with that of
the rest of South West Africa.
Thirdly, there has been no "annexation" of the area. Applicants'
allegation that it has been annexed, pro tanto even outstrips their original
contention relative to the whole of South West Africa, namely that
although Respondent has as yet "not chosen . . . to announce de jure
annexation, its purpose is incorporation" 6.
Finally, Applicants revert to a consideration of motive and purpose
.when they refer to "elements in Respondent's plan ta incorporate and
annex the Territory as a whole", a consideration which, on their own
presentation, has no relevance to their second legal conclusion at present
1 P.M.C .• Min., XXXVI, p. 2Sl. Vide also IV, pp. III-II2.
z IV, p.582. '
' Vide para. I8, su-pra.
4 Proc.No. r47 of 1939 (S.A.) in The Laws of South West Africa r939, Vol. XVIII,
p. 28.
5 IV, pp. 212-213.
6
1,p. 189. SOUTH WEST AFRICA
under discussion. ln any event, Respondent repeats its denial that there
is any such plan 1•
23. In the premises Applicants' charge that Respondent bas, in sepa
rating the administration of the Eastern Caprivi, "failed and refused to
respect the separate international status of the Territory" 2,is denied.
E. Vesting of South West Africa Native Reserve Land
in the South Mrican Native Trust
24. Applicants' charge regarding the vesting of South West Africa
Native Reserve 1and in the South African Native Trust, as presented in
the 11emorials, was that such vesting is to be regarded as an element
"of [Respondent's] plan to incorporate the Territory" 3. ln the course
of discussion thev also stated that it was an act which could not be
"reconciled with the international status of the Territory" 4•Respondent
denied this charge and avennent, and dealt fully with the whole situation
in order to demonstrate that such vesting in the South African Native
Trust was a purely administrative enactment which in no way affected the
distinct character of the reserves as portion of South West Africa, which
Territory is administered by Respondent as a territory with a separate
international status 5.
25. Applicants now recite passages quoted in Respondent's Counter
Memorial from a report of M. van Rees to the Permanent Mandates
Commission, from a Memorandum of the Legal Section of the Secretariat
of the League of Nations, and from a resolution of the Permanent
Mandates Commission of7 July 1924, and they say:
"The South West Africa Native Affairs Administration Act of
1954 (which Act vested the South \Vest African Native Reserve
Land in the South Afrkan Native Trust), is by its terms in conflict
with the conclusions of the Legal Section of the Secretariat to the
effect that Respondent acquired no 'right of absolute ownership' of
lands and other public property in the Territory 6."
The particular respect in which Applicants allege that Act No. 56 of
1954 is by its terms in conflict with the conclusions of the Legal Section
of the Secretariat, is the provision in section 5 (2) of the said Act to the
effect that land, the setting apart or reservation of which as trust land
is rescinded, becomes "unalienated State property and may be dealt with
7
as such" • The whole charge as regards vesting of reserve land in the
trust has therefore now been made to rest on this submission regarding
section 5 (2) of the Act.
26. The submission of Applicants is without substance. The provision
in question is in no way in conflict with the conclusions of the Legal
Section of the Secretariat. Any land released from the trust, and becoming
1 IV, p. 113 and Chap. II, para. 12, supra.
2 IV, p. 582.
3
4 I, p.I94; vide a1so p. 195.
Ibid., p.195.
' IV, pp. I21-131.
6 Ibid.,p. 584.
7 Act No. 56 of 1954, sec. 5 in Statutes of the Union of South Africa I954, p. 563;
vide also IV, p. 584. REJOINDER OF SOUTH AFRICA
"unalienated State property" in terms of the said provision, is held by
Respondent in exactly the same way as any other unalienated lands in
the Territory which vest in Respondent.
In this regard Respondent repeats what was stated in its Counter
Memorial relative to unalienated state lands in the Territory, viz.,
"Respondent has at all times accepted the legal position as set out
in the said resolution [i.e., the resolution of the Permanent Mandates
Commission of 7 Joly I924] and in the Memorandum of the Legal
Section of the Secretariat of the League, viz., that Respondent did
not receive 'absolute ownership' of the land in question, but that
it ... 'obtained the cession of the territory and the transfer of the
property in question' only in its capacity as l\Iandatory, or Trustee,
with powers of management and administration. Respondent has,
furthennore, at ail times acted on the principles set out in the Legal
Section's Memorandum, 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
1
Mandated tcrritory as a whole' ." {Footnotes omitted.)
The attitude now adopted by Applicants in their argument in the
Reply is that their complaint is directed not at the vesting of reserve
land in the South African Native Trust, but as a provision which enables
the release of such land from the Trust. \Vhy this provision, which
enables Respondent to deal with released land as "unalienated State
property", should call for complaint, is the more difficult to understand
when regard is had to the fact that the same position obtained prior to
the passing of Act 56 of I954, when the reservation of any land for the
sole use and occupation of Natives could be rescinded by a resolution
of both Houses of Parliament and the land could thereupon be treated as
unalienated state land 2• The position then was, and still is, in no way
at variance with the conclusion of the Legal Section of the Secretariat.
27. \Vith regard to Applicants' further statement that-
"[s]uch rcscrved power must, in addition, be appraised in the light of
Respondent's refusai to submit its policies and acts in respect of the
3
Territory to international review, supervision or accountability ",
Respondent refers to what has been stated in paragraph 3 above.
Respondent does not appreciate how its contention that the United
Nations has no supervisory powers over its administration of South
\Vest Africa-a contention which Respondent submits is sound---can
have any bearing on the propriety or otherwise of its acts of administra
tion in the Territory. If such acts of administration are in themselves un
questionable, the fact that there is no supervision cannot render them
questionable. On the other band, if such acts of administration constitute
violations of Respondent's obligations, then again the existence or non
existence of supervision cannot alter the situation.
28. In the premises aforestated, Respondent denies Applicants' charge
that Act No. 56 of 1954 ipso facto violates Respondent's duty to respect
1 IV, p. 125.
2 Vide Act No. 49 of 1919, sec. 4 (3). referred to Ip.128, footnote 7.
3 IV, p.581. SOUTH WEST AFRICA
the separate international status of the Territory, and Respondent re
iterates its denial of the further charge that there is a plan to incorporate
the Territory of South \Vest Africa into the Republic or to annex the
Territory 1•
F. Transfer of Administration of Native Affairs to the
.Minister of Bantu Administration and Development
29. In the Memorials Applicants charged that this transfer was also
to be regarded as an element "of the plan to incorporate the Territory
2
into the Union" , and further averred that the ''[t]ransfer of 'Native'
affairs to an agency extemal to the Territory ... cannot be reconciled
with the international status of the Territory" 3•
Respondent in the Counter-:Memorial dealt with, and in its submission
refuted, this charge and averment •.
Applicants in the Reply merely repeat the averment that the transfer
is "inconsistent with Respondent's duty to respect the separate inter
national status of the l\fandated Territory" 5 without advancing any
argument in support thereof.
They also repeat the charge that the legislation effecting the said
6
transfer is "one of many measures ... by which Respondent has mani
fested its intention to incorporate and annex the Territory" 7• This
charge too is made in the Reply without furthcr evidence or argument,
save that Applicants quotc the views of the United Nations Committee on
South West Africa to the effect that the transfer in question" ... forms
part of the process and policy of progressive political integration of the
Territory with the Union ... " s, and was designed to-
"... bring about as complete an assimilation of 'Native' policies in
the Union {now Republic] and the Territory, taken as a whole, as
the Union Govemment may wish to achieve 7".
In the Iight of Respondent's clear and full statement as to the intended
purpose and effect of the said transfer 4,which has not in any way been
dealt with by Applicants, and is in no respect controverted in the Com
mittee's report, there.is no need to deal with the Committee's views,
save to deny their unwarranted and unsubstantiated conclusion as to
Respondent's motives.
30. With regard to the legal position, howcver, Rcspondent does
point out that the Committee· on South West Africa, in the same report
from which Applicants have quoted, was not prepared to express the
view that such transfer ipso facto constituted a breach of the Mandate.
The Committee reported that-
• Vide IV, p. 119.
2 I, p.194 and vide also p. 195.
3 Ibid.,p. 194.
• IV, pp. 119-121.
5 Ibid.,p. 584.
6 Act No. 56 of 1954. sec. 5 inStatutes of the Union of South A/rica r954, p. 563.
' IV, p. 585.
8 G.A ., 0.R.,Elevetilh Sess., Suppl. No, 12 (A/3r51)para. 36, p. 11,as quoted at
IV, p. 585. REJOINDER OF SOUTH AFRICA
417
"[(]rom a strictly legal point of view, and regarded as an isolated act,
it may be possible to claim that the transfer falls within [Respond
ent's] authority under the Mandate to .administer the Territory as
1
an integral portion of the Union ".
31. ln a footnote at IV, page 586 of the Reply Applicants state:
"Respondent's continuing purposc to carry out to the fullest
extent its plan for incorporation and annexation of the Territory
is confirmed by its endorsement of the principles of the Odendaal
Commission ...2' ',
and they refer to the Commission's recommendation that-
"... the Government of the Republic of South Africa take over
[certain] existing branches which are at present administered by
the South West Africa Administration 3".
In advancing this contention Applicants entirely ignore the fact that
Respondent was granted "full powers of administration and legislation
over the territory ... as an integral portion of the Union of South
Africa" 4.and that the organization of the administration of the Territory
is a matter vested in Respondent's discretion. Applicants further ignore
the cogent reasons advanced by the Commission for the recommendation
here in issue, as well as Respondent's stated attitude thereanent. The
purpose for which the Commission made such recommendation was, as
stated by the Commission, simply and solely the advancement of the
interests of the Territory and its inhabitants, particularly the non-White
population groups, by better administration and increased assistance
from the Republic's resourccs, especially financial and technological.
The Commission, after careful consideration and motivation, recom
mended " ... major development projects which will require big capital
sums, a high degree of managerial talent and trained manpower" 5, and
the Commission stated that it was convinced-
"... that its recommendations can best be carried out by the
Government of the Republic of South Africa if the Territory can be
linked up more closely, both administratively and financially, with
the Republic, so that the Government of the Republic of South
Africa can takc ovcr the financial burdens and the fonctions of
control involved in the carrying out of the recommendations 5".
The Commission concluded that-
"... the upliftment and development of the non-White groups ... is
a task for direct handling in all its facets by the Central Government
of the Republic of South Africa, and that, largely in view of the
implications involved, only the proposed White area in South \Vest
Africa should be administered by an Administrator, Executive
Committee and Legislative Assembly 6".
The fondamental considerations in arriving at this conclusion were
summarized by the Commission to the following effect:
1
G.A., O.R., Eleventh Sess., Suppl.No. 12 (A/3151), para. 36, p. II.
2 IV, p. 586, footnote r.
3 R.P . .No. 12/1964, p. 61 (para22 r).
• Art. 2 of the lllandatefor German South-\Vest Africa.
5 R.P. No. 12/r964, p. 57 (para. 195).
6 Ibid., p. 61 (para.2r4). SOUTH WEST AFRIC.-\
(i) the spirit of responsibility to promote to the utmost the material
and moral well-being and the social progress of the inhabitants
of the Terri tory 1 ;
(ii) the considerable extent of the new phase of dcvelopmcnt envisaged
by the Commission, especially in regard to acceleration of the
rate of dcvelopment of homelands for the various non-\Vhite
groups 2;
(iii) the requiremcnt, apart from financial implications, of expert
guidance, technical knowledge and effective planning 3;
(iv) the desire to promote the participation of the non-White population
groups in every sphere of the development of their respective
homelands 4;and
(v) the desirability of eliminating overlapping of responsibility in
the government and administration 5•
In reacting to the Commission's approach outlined above, Respondent's
Government statcd that-
"... it is in agreement with the general view of the Commission, and
believes that doser investigation will confirm that the major devel
opment projects contemplated, particularly in the interests of the
non-White population groups, can be carried out to the best ad
vantage through greater financial and administrative contributions
thereto from the Republic, of the nature envisaged in the recommen
dations 6''.
Respondent, however, clearly indicated that this was one of the matters
raised by the Commission's report "which require further investigation,
information and consideration before the Government can reach any
final decisions" 7, and stated that a number of considerations had com
bined to produce the result that with regard to the recommended "reor
ganization of administrative functions as between organs of the Territory
and those of the Republic ... no decisions concerning implementation
are at present being taken" 6•
lt will therefore be clear that the approach of the Commission and
Respondent's attitude thereanent, concem prospective measures entireiy
within the provisions of the Mandate, directed solely at the well-being
of the inhabitants of the Territory. Respondent fails to appreciate how
anything in this regard can be said to support. let alone confirm, a "con
tinuing purpose to carry out ... [a] plan for incorporation and annexa
tion of the Terri tory".
32. Respondent accordingly denies the charges which are made in
Applicants' Reply relative to the transfer in question.
l R.P. No. 12/1964, p. 6I (para. 216).
2 Ibid. (para. 217).
3 Ibid. (para. ·ir8).
• Ibid. (para, 219).
5 Ibid. (para. 220).
6
1 IV, p. 214.
Ibid., p. 212 (para.20). CHAPTER IV
THE ALLEGATIONTHATRESPONDENT'SPOLICIESAND
MEASURESARE INCOMPATIBLE WITHITSDUTY TO
PROMOTECONDITIONS UNDER WHICHTHE
INHABITANTSOFTHE TERRITORYMAYPROGRESS
TOWARDSELF-DETERMINATION
1
1. The third legal conclusion formulated by Applicants in the Reply
reads as follows:
"Respondent's policies and acts complained of by Applicants,
constitute a violation of Respondent's duty to promote conditions
under which the inhabitants of the Territory may progress toward
2
self-determination of the future status of the Terri tory ."
In the Counter-Memorial Respondent dealt with this charge in relation to
each of the measures and acts complained of by Applicants 3,and, it is
submitted, refuted the charge in each respect.
Save for their reference in passing to "Respondent's denial of inter
national accountability" 4, Applicants' argument in the Reply contains
nothing new, and no new allegations of fact are advanced. Applicants do
not say in what respect Respondent's denial of international accounta
bility ist ail relevant in the present enquirv, and, save forrcferring to what
has already been stated with regard to supervision and accountability in
the present context 5, Respondent does not consider it necessary to deal
further therewith.
2. Applicants state that-
"... [Respondent's] policies and measures ... violate the territorial
integrity of the Mandate and its political independence. The thrust
and effect of such measures is to foster disintegration of the Territory
and its political dependence upon Respondent.
It is self-evident that such a state of affairs is incompatible with,
and frustrating of, progress of the inhabitants toward self-determi
nation 4."
This statement illustrates the extent to which Applicants produce a con
fused, inconsistent and anomalous result in drcumscribing their con
ception of "progress toward self-determination". They indiscriminately
use the words "self-determination", "political independence", "self
govemment" and "sovereignty" 6 as if these concepts are all synonymous.
In their confusion they imply, in the statement here under discussion,
that a mandated territory enjoyed "political independence", which is, in
Respondent's submission, ipso facto a contradiction of the mandate
system, certainly in so far as the C Mandates were concemed, and which
exceeds pro tanto ail Applicants' previous submissions and statements.
1 IV, p. 573. Vide Chap. I, para. supra.
2 Ibid., pp. 573-574.
l Ibid., pp. 93-r3r.
• Ibid.,p.586.
5 Vide Chap. III, paras. 2-3supra.
6 IV, pp. 238-242.420 SOUTH WEST AFRICA
Amidst the confusion, however, it appears as if Applicants' Iine of
reasoning in this passage proceeds from two basic premises, viz.,
(a) that the political development of the Territory must, in terms of
the Mandate, be directed specifically towards the achievement of
"independence" 1, and
{b} that a majority decision by the population of the Territory, seen as
one, in accordance with the concept of "territorial integrity", is
the only permissible method whereby the varions peoples of the
Territorv can, in terms of the Mandate, exercise "self-determina
tion" 2••
Respondent bas given its reasons 3,which have in no way been contro
verted by Applicants, for rejecting both of these basic premises.
In the absence of any substantiation of their allegations, and in the
absence, moreover, of any answer by Applicants to the e..xpositionin the
Counter-Memorial of the reasons for, and effect of, the acts and measures
complained of by them, Respondent submits that the charge formulated
by Applicants in the "legal conclusion'' hcre under consideration is devoid
of substance.
3. In concluding their argument, Applicants add the following
remarks:
"... such a state of affairs ... is ... consistent only with Respond
ent's avowed purpose and manifest plan to treat the Mandate as
'being, in effect, close to annexation', and in line with Respondent's
explicit disclaimer:
'. . . that its right of administration is based on continucd
existence of the l\Iandate' 4". (Footnotes omitted.)
In Respondent's submission these remarks are pointless. Although
Respondent disclaims that its right of administration is based on contin
ued existence of the l\landate, it has in fact administered the Territory
in the spirit of the Mandate. Moreover, Respondent has dealt with
Applicants' charges on the assumption, for purposes of argument, that
the Mandate is still in force 5 ,and has in its rcspectful submission justified
its acts on that basis.
4. In conclusion, Respondent repeats its explicit denial of Applicants'
charge that it has violated its obligation to promote conditions under
which the inhabitants of South West Africa may progress toward self
6
determination •
1
IV, pp. 238-242.
2 Ibid.,p. 582.
1 Vide. e.g., II, pp. 458-46o and 472-473; IV, pp. 70-73; pp. 213-21.J and vide also
Chap. Ill, para. 18, supra.
+ IV, p.586.
' Vide Chap. I, para. 2,supra.
6 Vide IV, p. 132. CHAPTER V
CONCLUSION
1. In the light of what has been stated in Respondent's Counter
Memorial 1,and in the foregoing chapters of this Rejoinder, Respondent
denies each and every one of the charges advanced by Applicants in
Chapter VIII of the Memorials, as repeated and amplified in the Reply 2•
2. ln the premises Respondcnt dcnies Applicants' conclusion that
Respondent's policies and acts "viola te its obligations as stated in Article
22 of the Covenant of the League of Nations and Article 2 of the 1\Iandate
agreement" 3•
1 IV, pp. 67-132.
2 Ibid.,pp. 572-586.
3 Ibid.,p. 586. 0
PART VI
ALLEGED VIOLATIONS OF ARTICLE 7 OF THE MANDATE
A. lntr(!ductory
I. Respondent deals in this Part of the Rejoinder with section C of
1
Chapter VII of the Reply , which is concemed with alleged violations
by Respondent of Article 7 (1) of the Mandate.
The subject-matter of the charge under consideration will be dealt
with herein under the following heads:
The legal basis of Applicants' charge;
Applicants' statements of fact;
Conclusion.
The treatment of the said matters will be in the order aforestated.
B. The Legal Basis of Applicants' Charge
2. The charge made in the Memorials was that Respondent's alleged
acts as particularized in Chapters V, VI, VII and VIII of the Memorials,
"read in thelight of [Respon.dent's] intent, constitute a unilateral attempt
to modify the terms of the Mandate without the consent of the United
Nations, and that suchacts accordingly are, severally and in theirtotality,
a violation of Article 7 of the Mandate" 2•(Italics added.)
In support of this charge Applicants relied on the Advisory Opinion of
II July 1950 in which the Court held, inter alia, that, as a result of the
dissolution of the League of Nations, modifications of the terms of the
Mandate require the approval of the General Assembly of the United
Nations.
In the Counter-Memorial Respondent indicated that there was an
essential link between the Court's finding relative to Article 7 of the
Mandate and its previous finding in the Opinion that "powers of super
vision in respect of the administration of the Mandates" were vested in
the General Assembly of the United Nations 3,and Respondent contended
that, inasmuch as, in its submission, the last-mentioned finding was
incorrect, the first-mentioned finding was equally unacceptable in law.
For the reasons advanccd in the Counter-Memorial 4.as amplified in
this Rejoinder 5,Respondent repeats the contention aforestated; but, as
in the Counter-Memorial, Respondent regards it as unnecessary to devote
furthcr considcration to this question, inasmuch as, for the reasons
hereinafter stated, a determination whether in the present circumstances
the tcrms of the Mandate, if it should still be in existence, can be modi
fied, and, if so, in what manner, appears to be of academic interest only.
1 IV, p. 587.
2 I, p. 196.
' IV, p. 135.
• Vide Il, pp. 113-164.
~ Vide Part II, Chap. III,supYa. 0
424 SOUTH WEST AFRICA
3. Before proceeding to deal with the allegations of fact made by
Applicants in the Reply, Respondent draws attention in the following
paragraphs to certain matters conceming the legal aspect of Applicants'
charge as now formulated in the Reply.
4. ln the Counter-Memorial Respondent remarked, with reference to
Applicants' allegations in the Memorials, that they appear-
"... to concede that, in order to establish a contravention of Article
7, thcy would be required to prove an intent on Respondent's part
1
to modify the terms of the Mandate ".
Applicants' reaction thereto in the Reply is that Respondent-
"... misconstrues [theirJ Submission 9 as being limited to a corn
plaint that Respondent is, or has been 'motivated by an intent to
modify the terms of the Mandate' 2'',
and they say in this regard:
"As Applicants have made clear, Respondent's violations of the
Mandate in this, as in other respects, do not turn upon the question
of 'good or bad faith', or subjective motivation. Respondent is
presumcd to intend the reasonably predictable consequences of its
acts. In this sense, intention is implicit in Respondent's conduct ... 2"
Attention has already been drawn to the fact that Applicants adopt the
very same attitude in the Reply relative to their charges concerning
alleged violations of Article 2of the Mandate 3.Whereas, on the one hand,
they aver that their charges are not based on mata fides, they contend, on
4
the other hand, in accordance with a "universally accepted axiom" ,
that "in the absence of evidence to the contrary, the predictable conse
quences of conduct are presumed to be intended" \ and, by the applica
tion of this principle in their examination of Respondent's acts, they
draw inferences which are compatible only with improper motives on
Respondent's part. And thus, while disclaiming reliance on what they
tenu "subjective motivation" 2,they in fact seek to establish motivation
by an alJegcd "objective evaluation of [Respondent'sJ conduct" 4. In
effect, therefore, Applicants' charge, as already demonstrated 3 ,is clearly
one of mata fides. Similarly, in the prescnt instance their contcntionrests
in principle on alleged intent on Respondent's part to modify the terms
2
of the Mandate •
5. Whereas, in their treatment of Rcspondent's alleged violations of
Article 2 of the Mandate, Applicants in the Reply seek to introduce a new
cause of action based on the alleged existence of a so-called legal norm of
"non-discrimination or non-separation", no mention is made of such a
norm in the part of the Reply at present under consideration. There is
accordingly a striking contradiction in Applicants' approach as now evi
denced in the Reply. Their contention relative to Article 7 is that the
terms of the Mandate cannot be modified "unilaterallv"-which can
only mean that consent to modification is required on both sides, i.e., on
the part of Respondent as well as, according to their argument, on the
i IV, p. 135.
2 Ibid.,p. 587.
3 Vide Part III, sec. A, para. 6 and sec. C, paras. 29-38, supra.
• IV, p. 257. REJOINDER OF SOUTH AFRICA
part of the United Nations-nevertheless their contention relative to a
particular term of the Mandate, viz., Article 2,is that its content has now
become redefined, and in effect altered, by a process independent of
consent, i.e., by the application of a so-called legal norm, the existence
and applicability of which have always been contested by Respondent 1.
Respondent has demonstrated that no such legal norm is embodied
1
in the Mandate, or is otherwise binding on Respondent .For the present
Respondent is concemed only with drawing attention to the fact that
Applicants' charge relative to Article 7, as advanced in the Memorials,
is inconsistent with their contention regarding the alleged norm of "non
discrimination or non-separation", and that a consequential amendment
to their charge would accordingly be necessary. In fact. however, no such
arnendment is sought, and Applicants in the Rcply simply-
"... reaffirm their contention that Respondent's policies and actions
complained of in the Memorials, constitute an attempt on the part
of Respondent unilaterally, and without consent of the United
Nations, to modify the terms of the Mandate 2". (Footnotes omit
tcd.)
In the result Applicants have apparently overlooked the fact that
Respondent's policies and acts complained of in Chapter V of the
Memorials, which chapter was concemed with Respondent's duties under
Article 2 of the Mandate 3,are now, in the Reply, sought to be evaluated
and adjudged against the criterion embodied in an alleged legal norm
which is said to have corne into existence, and to be binding on Rcspond
ent, without its consent and even without the formai consent of the
United Nations.
If there has indeed been an attempt to modify the terms of the Mandate
unilaterally, which is the charge advanced by Applicants, then it seems
that the party guilty of such attempt is not Respondent.
C. Applicants' Statement of Fact
6. Applicants deal with the facts considered by them to be relevant
to their charge relating to Article 7 of the Mandate in one passage of the
Reply which reads as follows:
"On the basis of the demonstration made in the Memorials, and
elaborated in this Reply, that Respondent has admittedly dealt
with the Terri tory as if it were vested with 'day-to-day sovereignty'
thereover and that Respondent has denied obligations of internatio
nal accountability while at the same time asserting rights of adminis
tration and possession, Respondent's policies and actions reflect its
premise that the l\fandate has survived, but only to the extcnt
necessary to give Respondent the colour of a daim to the Terri
tory 1.''
In the Counter-Memorial and in other Parts of this Rejoinder Respond
ent has dealt with Applicants' charges relative to alleged violations of
1 Vide Part III, sec. B,supra.
2 IV, p. 587.
3 The policies and acts complained of in Chapter V of the ;\lemorialswere relied
upon by Applicants in respect of their charge relative to Article 7 (1, p. 196) and are
still so relied upon in the Reply (vide IV, p. 587, footn2). SOUTH WEST AFRICA
Articles 2, 4 and 6 of the Mandate, which form the basis of Applicants'
further charge that Respondent has violated Article 7 by attempting to
modify the terms of the Mandate unilaterally. Respondent submits that
in answering the allegations made by Applicants in respect of the afore
rnentioned charges, it has shown conclusively that it has not violated any
of the said Articles of the Mandate.
In the following paragraphs Respondent deals with the furtber conten
tions advanced by Applicants in the above-quoted passage of the Reply.
1
7. Elsewhcre in this Rejoinder Respondent has explained what was
rneant in the Counter-Mernorial by the use of expressions such as ''intheir
practical eUect, not far removed /rom annexation" 2 and the "day to day
exercise of the attribuks of s<Y/Jereignty" 3• It is not necessary to repeat
here what bas been stated in this regard, save to say that, on the assump
tion that the l\landate is still in existence 4. the contention that within its
powers of administration of the Territory the "day to day exercise of
the attributes of sovereignty" vests in it-in the sense in which that
expression bas been explained----can in no way be regarded as inconsistent
with the terms of the Mandate. Respondent has at all times since the
inception of the Mandate adrninistered the Territory in accordance with
its said conception regarding its powers, and denies that in so doing it has
in any way violated its obligations under the Mandate or bas attempted
to modify the terms of the Mandate 5• Respondent in this regard also
draws attention to the fact that Applicants use a self-coined expression
"day to day sovercignty" 5,the meaning of which is apparently under
stood by them, whereas elsewhere in the Reply they profess to have
difficuJty with regard to the meaning of the more exact expression used
by Respondent, viz., "the day to day exercise of the attributcs of sover
eignty", in connection with which they remark as follows:
"Respondent does not offer an indication of the respects, ifany, in
which 'day to day' exercise of sovereignty differs from year to year
exercise of the same prerogative 6."
In Respondent's submission further comment on Applicants' attitude
in this regard would be superfluous.
8. With regard to Applicants' statement that Respondent has "denied
obligations of international accountability while at the same time
asserting rights of administration and possession", Respondent admits
that it has since, and as a result of, the dissolution of the League of
Nations contended that it is not obliged to account to, and to submit to
the supervision of, any international organization or body with respect
to the administration of the Territory. Respondent's contention cannot
however be regarded as a unilateral attempt to modify the terrns of the
Mandate.
Upon the dissolution of the League the provisions of Article 6 of the
1 Vide Part 11, Chap. II, para.10 and Part V, Chap. II, paras. 3-12,supra.
2 Vide li,p. 96.
3 IV,p. 6g.
• lt is upon this assumption,for the purpose of argument, that Respondent dealt
with Applicants' charge relativeto alleged violations of Article 7 of the Mandate;
vùù IV, p.135.
~IV, p. 587.
6 Ibid .p.574, footnote 2. REJOINDER OF SOUTH AFRICA 427
Mandate became inoperable and, inasmuch as they were, in Respondent's
submission, not modified into or replaced by other provisions serving the
same or similar purposes, the said provisions lapsed 1•
Respondent therefore denies that its attitude in this regard amounts
to an attempt to modify the terms of the Mandate.
9. The only contention of Applicants which remains to be dealt with
is that-
"... Respondent's policies and actions reftect its premise that the
Mandate bas survived, but only to the extent necessary to give
2
Respondent the colour of a claim to the Territory ".
What Applicants have conveniently ignored in advancing this con
tention is that Respondent stated specifically in the Counter-Memorial
that it "... does not claim, but on the contrary expressly disclaims,
that its right of administration is based on continued existence of the
Mandate" 3, a malter which is again dealt with elsewhere in this Re
joinder 4•
There is accordingly no substance in Applicants' contention that
Respondent acts on the "premise that the Mandate bas survived" for the
purpose of giving it "the colour of a daim to the Territory". Respondent
bas indeed, as an alternative contention-founded on the premise that
accountability to the League supervisory organs was not an essential
part of the Mandate-advanced that the Mandate is still in existence but
without any duty of report and accountability to any supervisory body 5•
Furthermore, for the purpose of its argument relative to alleged violations
of Article 7, Respondent has assumed that the Mandate isstill inexistence 6•
Without such an assumption any discussion of alleged attempts to
modify the terms of the Mandate would have been pointless. Neither this
alternative contention, however, nor this assumption, affords any ground
for the statement that Respondent advances the "premise that the Man
date has survived" as something "necessary to give Respondent the
colour of a daim to the Territorv" 7•
The above answer, in Respondent's submission, also disposes of
Applicants' further comment that "[n]o more drastic or effective 'modi
fication' of the terms of the Mandate is imaginable than one which
disclaims duties while asserting rights" 2•
Respondent does not, on the alternative basis that the Mandate is in
existence, disclaim ail duties thereunder: indeed, it has assumed arguendo
that the Mandate survives and that its duties under the Mandate (ex
cepting those depending on the existence of the League of Nations)
accordingly remain in existence. It is upon this basis that Respondent
has met Applicants' charge that it bas attempted to modify the terms
of the Mandate.
1 Vide Part II, Chap. III, supra.
2 IV, p. 587.
3 11, p. r74.
~ Vide Part II, Chap. IV A, paras. 32-35, supra.
5
Vide II,p. 97 and Part II, Chap. IV A, para. r3, supra.
7 IV, p. 135.
On the contrary, vide Part II, Chap. IV A, para. 35, of this Rejoinder. SOUTH WEST AFRICA
D. Conclusion
10. In the premises aforestated Respondent submits that, quite apart
from the legal contention advanced in the Counter-Memorial 1 and re
peated above 2 , Applicants have failed to establish in any way that
Respondent is, or has been, motivated by an intent to modify the terms
of the Mandate, or that it has-
"... conducted itself with regard to the Territory in a manner
consistent only with a Mandate the terms of which would be utterly
incompatible with those of the Mandate in issue 3".
n. Respondent therefore denies Applicants' charge that it has violated
Article 7 (1) of the :Mandate.
i IV, p. 135.
2 Para. 2, supra.
' IV, p. 587. PART VII
SUBMISSIONS
r. Upon the basis of the statements of law and fact set forth in the
Counter-Memorial, as supplemented in this Rejoinder and as may here
after be adduced in further proceedings, Respondent reaffirms the Sub
1
missions made in the Counter-Memorial and respectfully asks that such
Submissions be regarded as incorporated herein by reference.
2. Respondent further repeats its prayel'.that it may please the Court
to adjudge and declare that the Submissions of the Govemments of
Ethiopia and Liberia, as recorded in the Memorials 2 and as reaffirmed
in the Reply 3, are unfounded, and that no declaration be made as
claimed by them.
(Sgd.) R. McGREGOR
(Sgd.) J. P. VERLOREN VAN THEMAAT
Agents of the Govemment
of the Republic of South Africa
1 II, p. 6.
2 I,pp. 197-199.
l IV,p. 588. LIST OF DOCUMENTATION
PARTI
United Nations
A. GENERAL AssEMBLY
r. Fourth Committee
G.A., O.R., Seventeenth Sess., Fourth Comm., r381st Meeting,
pp. 339-340.
2. Special Committee forSouth West A/rica
Summary Record of the Eighth Meeting, 24 July 1962, A/AC.
no/SR. 8, pp. 3 and 5.
Summary Record of the Thirteenth Meeting, 2 Aug. 1962,
A/AC.no/SR. 13, pp. 4-5and 7-9.
Summary Record of the Fourteenth Meeting, 3 Aug. 1962,
A/AC.no/SR. 14, pp. 3-rr.
Report of the Special Committee for South West Africa, G.A.,
O.R., Seventeenth Sess., Suppl. No. 12 (A/5212), p. 20.
B. SECRETARIAT
r. Officeof Public Information
U.N. Press Release GA/2501, 26 May 1962, Joint Statement on
Pretoria talks following visit of U.N. Representatives to South
West Africa.
2. Director of Personnel
Information Circular to Members of the Staff ST/ADM/SER.
A/837, 29 Mar. 1963.
PART II
1. League of Nations
A. OfficialJournal, 1920 (No. 6), pp. 339-340.
B. Official Journal, Special Supplement No. I94, 1946, pp. 278-279.
C. Minutes of the Permanent Mandates Commission, sess. XXVI,
1934, p. 164.
D. 0THER
r. Covenant of the League of Nations.
2. Mandate for German South-West Africa.
3. The Mandates System-Origin-Principles-Application
(Geneva, 1945), pp. 6 and 53. ·
Il. United Nations
GENERAL AssEMBLY
1. Resolutions
65 (1),14Dec. 1946 in U.N. Doc. A/64/Add. 1, p. 123.
141 (II), r Nov. 1947 in U.N. Doc. A/519, pp. 47-48.
227 (III), 26 Nov. 1948 in U.N. Doc. A/8IO, pp. 89-91.
337 (IV), 6 Dec. 1949 in U.N. Doc. A/1251, p. 44. REJOINDER OF SOUTH AFRICA 431
338 (IV), 6 Dec. 1949 inU.N. Doc.A/1251, p. 45.
2. Plenary Meetings
G.A., O.R., Second Sess., Vol. I, 104th Plenary Meeting,
pp. 581 and 585; 105th Plenary Meeting, p. 618.
G.A., O.R., Fourth Sess., 269th Plenary Meeting, p. 532.
3. Fourth Committee Meetings
G.A., O.R., Third Sess., Part I, Fourth Comm., 78th Meeting,
p. 314; 81st Meeting, p. 349; 82nd Meeting, p. 360.
G.A., 0.R., Fourth Sess., Fourth Comm., 135th Meeting,
p. 247; 139th Meeting, p. 269.
III.France
Conférencede la Paix I9I9-20. Recueil des Actes de la Conférence,
(Paris: Imprimerie Nationale, 1934), Partie VI, Traités avec
les Puissances Ennemies mise en vigueur, A, Préparationde la
mise en vigueur, 1erFasc., pp. 335-337, 340-341 and 353.
IV. Books
AUTHORS AND TITLES
A. r. Hall, H. D., Mandates, Dependencies and Trnsteeship (Lon
don: Stevens and Sons, 1948), pp. 68-69 and rr7.
2. Earl of Halsbury, The Laws of England, Third Edition,
Simonds Edition (Butterworth & Co., Publishers Ltd.,
1962), Vol. 38, pp. 976-977.
3. Hudson, M. O., International Legislation, 4 Vols. (Washing
ton: Carnegie Endowment for International Peace, 1931),
Vol. I, p. xiii.
4. Madol, H. R., The United Nations Association Yearbook
I947 (London: Hutchinson & Co., Publishers Ltd.). pp.
291-292.
5. Lord McNair, The Law of Treaties (Oxford: The Clarendon
Press, 1961), pp. 729-739 and 745.
6. White, C. M. and Wells, M. M., Underhill's Law relating to
Trusts and Trustees, Tenth Edition (London: Butterworth
& Co., Publishers Ltd., 1950), pp. 384-387.
7. Wright, Q., Mandates under the League of Nations (Chicago:
University of Chicago Press, 1930), pp. 363, 388 and 472.
B. TITLES
The Shorter Oxford English Dictionary on Historical Princip/es,
Third Edition revised with Addenda, rev. and ed. by é. T.
Onions (Oxford: The Clarendon Press, 1959), p. 197.
V. Articles
AUTHORS AND T!TLES
Bowett, D. W., "Estoppel before International Tribunals and
its Relation to Acquiescence", British Year Book of Internatio
nal Law, Vol. XXXIII (1957), pp. 176-202 at pp. 188-190_and
202.432 SOUTH WEST AFRICA
PART Ill: SECTIONA
1. United Nations
GENERAL ASSEMBLY
Fourth Committee Meetings
G.A., O.R., Sixteenth Sess., 1225th illeeting, p. 429.
Il. Books
TITLES
The Slwrter Oxford English Dictionary on Historical Principles,
Third Edition revised with Addenda, rev. and ed. C. T. Onions
(Oxford: The Clarendon Press, 1959), p. 2116.
PART Ill: SECTIONB
I. League of Nations
A. Minutes of the Permanent Mandates Commission, sess. IV, 1924,
p. 154.
B. 0THER
1. The Mandates System-Origin-Principles-A PPlicati·on
(Geneva, 1945). pp. 28-32 and 53.
2. Mandate for German South-West Africa.
Il. United Nations
SECRETARIAT
United Nations Treaty Series-Treaties and international agree
ments registered or fi.ledand recorded with the Secretariat of
the United Nations, Vol. 15 (1948), p. 112.
III. Books and Pamphlets
A. AUTHORS AND TITLES
I. Ganji, M., International Protection of Human Rights (Paris:
Librairie Minard, 1962), p. 47.
2. Lord Hailey, An AfricanSi,rvey (London: Oxford University
Press,1938).p.432.
3. Lauterpacht, H., An International Bill of the Rights of Man
(New York: Columbia University Press, 1945), p. n6.
4. Lauterpacht, H., International Law and Human Rights
(London: Stevens & Sons Lirnited, 1950), p. 353.
5. Rosenne, S., The International Court of Justice-An Essay in
Political and Legal Theory (Leyden: A. W. Sijthoff's Uit
geversmaatschappij, 1957), p. 62.
6. Temperley, H. W. V. (Ed.), A History of the PeaceConference
of Paris, 6 Vols. (London: Hodder and Stoughton, 1920-24);
Vol. I, pp. 193, 195 and 399.
B. TITLES
I. Encyclical Letter, "Pacem in Terris". His Holiness John
XXIII by Divine Providence Pope (Vatican Polyglot Press,
1963), pp. 25-26. REJOINDER OF SOUTH AFRICA
433
2. The Shorter Oxford English Dictionary on Historical Prin
ciples,Third Edition revised with Addenda, rev. and ed. by
C. T. Onions (Oxford: The Clarendon Press, 1959), p. 1468.
IV. Articles
AUTHORS AND TITLES
r. Fitzmaurice, Sir Gerald, "The Law and Procedure of the
International Court of Justice, 1951-54: General Principles
and Sources of Law", British Yearbook of International Law,
Vol. XXX (1953), pp. 1-70 at pp. 5, 25 and 26.
2. Fitzmaurice, Sir Gerald, "The Law and Procedure of the
International Court of Justice, 1951-54: Treaty Interpreta
tion and other Treaty Points", Bri"tish Yearbook of Inter
national Law, Vol. XXXIII (1957), pp. 203-293 at pp. 212,
225, 226.
3. Lauterpacht, H., "Restrictive Interpretation and the Prin
ciple of Effectivenèss in the Interpretation of Treaties",
British Yearbook of International Law, Vol. XXVI (1949),
pp. 48-85, at p. 83.
PART III: SECTIONC
1. League of Nations
A. Otficial] ournal, 1920 {No. 6), pp. 334-341.
B. Minutes of the Permanent Mandates Com,mission,sess. IX, 1926,
p. 134.
C. ÛTHER
r. The Mandates System-Origin-Principles-A pplication
(Geneva, 1945).
2. The Mandate for German South-West Africa.
Il. United Nations
The Cha1;terof the United Nations.
III. Books
AuTHORS AND TITLES
r. Bentwich, N., The Mandates System (London: Longmans,
Green and Co., 1930), p. 98.
2. De Laubadère, A., TraitéElémentairede Droit Administratif
(Paris: Librairie Généralede Droit et de Jurisprudence, R.
Pichon et R. Durand-Auzias, 1963), p. 214.
3. De Smith, S. A., Judicial Review of Administrative Action
(London: Stevens & Sons Ltd., 1959), p. 167.
4. Forsthoff, E., Lehrbuch des Verwaltungsrechts {München:
C. H. Beck'sche Verlagsbuch-handlung, 196!}, Vol. I, p. 84.
5. Galeotti, S., The Judicial Control of Public Authorities in
England and in Italy (London: Stevens & Sons Limited,
1954), pp. 102-162.
6. Lauterpacht, H., An International Bill of the Rights of Man
(New York: Columbia University Press, 1945), pp. 12-14,
174-175 and 187-188. SOUTH WEST AFRICA
434
7. Lauterpacht, H., International Law and Human Rights
(London: Stevens & Sons Limited, 1950), pp. 377 and 383.
8. McNair, A. D. and Lauterpacht, H. (Eds.), Annual Digest of
Public International Law Cases, 1927-1928 (London: Long
mans, Green and Co., 1931), pp. 55-56.
9. Venezia, J., Le Pouvoir Discrétionnaire (Paris: Librairie
Généralede Droit et de Jurîsprudence, R. Pichon et R.
Durand-Auzias, 1959), p. 137.
ro. Weil, G. L., The European Convention on Human Rights:
Background, Development and Prospects (Leyden: A. W.
Sythoff, 1963), pp. 81-166, 194and 229-232.
11. Wright, Q., Mandates under the League of Nations (Chicago:
University of Chicago Press, 1930), p. 197.
IV. Articles
AUTHORS AND TITLES
Lagrange, M., "Chronique Européenne: Cour de Justice de la
Communauté Européenne du charbon et de l'acier", Revue du
Droit Publicetdela Science Politique en Franceet àl'Etranger,
No. 3 (Juillet-Septembre 1955), pp. 570-631, at pp. 583-593.
PART III: SECTION E
CHAPTERS I, II AND III
I. United Nations,
A. GENERAL AssEMBL Y
Resolutions
G.A., 0.R., Seventeenth Sess., Suppl. No. 17 (A/5217), p. 73.
B. SECURITY CouNCIL
r. U.N. Doc. S/5784 (29 June 1964), pp. 38 and 42.
2. U.N. Doc. S/5950 (ro Sep. 1964), paras. 3, 45-87, ro3-ro5 and
145-155.
C. EcoNOMIC AND SOCIAL COUNCIL
r. U.N. Doc. ST/TRI/SER.A/15/Vol. 3, Progress of the Non
Self-Governing Territories underthe Charter, Vol. 3, pp. 18
and 22.
2. U.N. Doc.E/3935 (7July 1964), p. 42.
D. TRUSTEESHIP COUNCIL
G.A., O.R.,Sixteenth Sess., Suppl. No. 4 (A/4818), pp. 29-30.
Il. Belgium
Ruanda-Urundi, Geography and History, Belgian Congo and
Ruanda-Urundi Public Relations Office (Brussels, 1960), p. 23.
III. Cyprus
Cyprus: A Handbook on the Island of Aphrodite, issued by the
Publication Department of the Greek Communal Chamber,
Cyprus (1964),p. 7. REJOINDER OF SOUTH AFRICA 435
IV. Federation of Rhodesia and Nyasaland
Debates of the Federal Assembly, Second Session, Second Parlia
ment, 28 Mar. to 19 July 1960, Cols. 362 and 887.
V. Republic of South Africa
Reports of Commissions
R.P. No. 12/1946, Report of the Commission of Enquiry into
South West A/rica·Atfairs r962-r963, pp. 81~rn7.
VI. United Kingdom
I. Cmnd. rn30, Historical Survey of the Origins and Growth of
Mau Mau (London: Her Majesty's Stationery Office, 1955),
pp. 39, 51 and 316.
2. Cmnd. n48, Report of the Advisory Commission on the Review
of the Constitution of Rhodesia and Nyasaland {London: Her
Majesty's Stationery Office, 1955), pp. 16-17.
3. Cmnd. 1899, Kenya, Report of the Regional Boundaries Com
mission {London: Her Majesty's Stationery Office, 1962), pp.
8, 9, rn and 14.
4. Colonial Office Report on Zanzibar for the Years I957 and r958
(London: Her Majesty's Stationery Office, 1959), p. I.
5. Cyprus: The Facts (London: The Central Office of Information),
p. 3.
6. Zanzibar (No. RF.P.5609, London: Reference Division Central
Office of Information, 1963), pp. 3-5 and 25-26.
7. Commentary /rom Britain: Why Britain is lntroducing Immigra
tion Rules (Issued by the United Kingdom Information Service,
22 Nov. 196!), pp. 42 and 47.
8. The Immigration Act, 19m (9-rn Edward VII, Chap. 27), as
amended in 1919 (9-rn George V, Chap. 25), sec. 38 (c).
VII. Books
A. AUTHORS AND TrTLES
I. Adam, T. R., Government and Polüics in Africa South of
the Sahara (1962), pp. I08-109.
2. Allighan, G., The Welensky Story (1962), pp. 231-232 and 259.
3. Awolowo, O., Path to Nigerian Freedom, London (1947),
pp. 48-50. 53-54.
4. Bascom, W. R. and Herskovits, M. J. (Eds.), Contimtity and
change i·nAfrican Cultures (Chicago, 1962). p. (vii).
5. Bourret, F. M., Ghana-The Road to Independence 19r9-r957
(London, 1960), pp. 8-9.
6. Bretton, H. L.,Power and Stability in Nigeria, The Politics
of Decolonization (New York, F. A. Praeger. 1962), pp. II2,
120, 122 and 127-129.
7. Buell, R. L., The Native Problem in Africa (New York, 1928),
Vol. I, pp. 788-789.
8. Cameron, J., The African Revolution (1961), pp. 231 and
233-234.
9. Carter, G. M. (Ed.), African One-Party States (1962), p. 450.
IO. Carter, G. M., (Ed.), Five African States: Responses to
Diversity (London and Dunmow, 1963), pp. 321, 323, 324,
332-333 and 338-339.436 SOUTH WEST AFRICA
II. Carter, G. M., Independence for Africa (London, 1961),
pp. 8 and 138. . . .
12. Carter, G. M. and Brown, W. O., Transition in Africa (1958),
pp. 58-59.
13. Callard, K., Pakistan: A PoliticalStudy (1957}, pp. 233,236.
14. Cowan, L. C., Local Government in West Africa (1959),
pp. 168 and 170-171. .
15. Duffy, J. and M:anners, R. A. (Eds.), Africa Speaks (1961),
pp. 28 and 128.
16. Elias, T. O., Government and Politics in Africa (1963), pp. 60,
6I and 64- ·
17. Franck, T. M., Race and Nationalism: The Struggle for Power
in Rhodesia~Nyasaland (1960), pp. 2, 62, 193-194, 236-247,
256-257 and 263.
18. Goldschmidt, W. (Ed.),The UnitedStatesandAfrica(London,
Frederick A. Praeger, 1963), p. 64-
19. Griffith, J. A. G., Henderson, J., Usborne, lL and Wood,
D., Coloured Immigrants in Britain (1960), pp. 21, 30, rn8,
145, 173 and 174.
20. Hodgkin, T., NationalisminColonialAfrica (1956),pp. 189-190.
zr. Hughes, A. J., East-Africa: The Search for Unity (1963),
pp. 123, 131-132 and 144.
22. Huxley, E. and Perham, M., Race and Potitics in Kenya
(1946}, pp. 252-253. .
23. Kirnble, G. H. T..TropicalAfrica (1960), Vol. li, pp. 242-243.
23(a). Kingsbury, R. C., An Atlas of Middle Eastern At}airs (1963),
p. 58. ..
24. Kitchen, H. {Ed.), A Handbook of African At}airs (1964),
p. 158.
25. Lomax, L. E., The Reluctant African (New York, 1960),
pp. 70 and 82-84-
26. Lord Altrincham, Kenya's Opportunity: Memories, Hopes
and Ideas (London, 1955), p. 59-
27. Lord Hailey, An African Survey: Revised 1956 (1957),
p. 307.
28. Macadam I. (Ed.), The Annual Register of World Events:
A Review of the Year 1963 (London, 1964}, pp. II0-II2,
128-129.
29. Mackenzie, W. J. M. and Robinson, K., Five Elections in
Africa (1960), pp. 95, 484 and 485. . . .·
30. Mair, L. P., Native Policies in Ajrica (1936); p. 181.
31. Mansell, G., Tragedy in Algeria, Institute of Race "Relations
(London, 1961), pp. 30-32.
32. Mellor, A., India since Partition (1951), pp. I,-8, II-12, 26,
37-38 and 45. ; ,
33. Munger, E. S., African Field Reports (1952-1961), Part I,
pp. 180-181. : '
34. Oduho,, J. and Deng; W., The problem of Southern Sudan
(1963), pp. 1-3 and 28-29.
35. Panikkar, K. M.·, Revolution in Africa. (London, 1961),
pp. 17-18 and 79-80. · · . · · ., .
36. Post, K. W.J., The Nigerian Federal Election of,r959 (1963},
pp. 13 and 14. REJOrNDER OF SOUTH AFRICA 437
37. Sampson, A., Common Sense About A/rica, Common Sense
Series No. 3 (Gollancz, London, 1960), p. 33.
·. 38. Segal, A., Massacre in Rwanda (1964), pp. 3, 4, 7-9, 10, 11, 13,
. 14-15, 16, 18and 19. ·
·39. Spyridakis, C., A Brù/ History of Cyprus (1964), pp. 66-67.
40. Steinberg.- S. H. (Ed.), Statesman's '/ear-Book r955, p. 341.
41. Steinberg, S. H. (Ed.), Statesman's Year-Book r963, pp. 513,
· 1044 and 1437. .
42. Welensky, Sir Roy, Welensky's 4000 Days (1964), pp. gS-99,
114-115, II8-II9, 121-123, 127-128, 308-309 and 324.
B. TITLES
1. Britannica Book of the Year r962· (London·: Encyclopedia
Britannica, Ltd., 1962). p. 55r.
2. The Eitropa Year Book r963 (London: Europa Publications
Limited), Vol. I, pp. 374-375.
'3. Keesing'.sContemporary Archives, 1 to 8 June 1963, p. 19449;
7 to i4 Dec. 1963, p. 19778; 28 Dec. 1963 to 4 Jan. 1964,
p. 19818; 14 ta 21 Mar. 1964, pp. 19951 and 19952 and 15 to
22 Aug. 1964, p. 20236. '
4. An Almanack: For the Year of Our Lord 1964. Established
1~68 by Joseph Whitaker (r963), p. _926.
VIII. Articles
A. AuTHO?S AND TITLES
I. Abernethy, D. B., "Nigeria ~r.eates a New Region", A/rica
·Report (Mar. 1964), pp. 8-10 ..
2. Apter, D. E., "The Role of Traditionalism in the Political
Modernization of Ghana and Uganda", World Politics,
, Vol. XIII, -No.1 (Oct. 1960), p: 65. ,
3. Ashford;·D. E., ''The Last Revolution:-Community and
· ..... Nation", The Annals of the Amer.ict1;nAcademy of Political
and Social Science, Vol. 354 (July 1964), p. 45.
·+ Bretton, H. L, "Political Problems of Polv-Ethnic Societies
in West Africa'.', addrcss delivered at "the Fi/th World
••J•Congress of the Intei-national Political Science Association,
Paris (26-30Sep. 1961), pp. 5, r5. .
5. Cox, I., "Tension in Tanganyika", New Airica, Apr. r964,
pp. 12-14.
6. Deakiri, ·N., "Residential Segregation in J3ritain; A Com
parative Note". Race, Vol. VI, No. I (July 1964), pp. r8, 19.
.. 7. Gyasi-Twum; K., "West Africa's Prospects for Demo
cratic Rule";· A/rica-Speciat Report, June r959, p. 12.
8. Hutchinson, E. C., "American Aïd to Africa", The Annals
of' the· American· Academy o/ 'Political ·and Social Science,
Vol. 354 (July 1964), p. 28. · · · ·
9. Kelly, E. F., "Preventing a ,Holocaust", Cyprus Bulletin,
7'July 1964. ,
10. Kenuing, J., "Nigcria's Politieke Problemen", A/rika
. ·Maandblad van het Afrika-Institimt (Dcc. 1962), p. 427.
11. Kilson, M. L., "Authoritarian and Single-Party Tendencies
.,''.in African Politics", World .Politics (Princeton, Jan. 1963),
p. 275. SOUTH WEST AFRICA
438
12. Lemarchand, René, American Political Science Review
(June 1962), pp. 404-405.
13. Makuei, L. D., "Southern Sudan, a test case in afro-arab
cooperation", New Africa, Apr. 1964, pp. II and 12.
14. Mazrui, Ali Al'amin, "Edmund Burke and Reflections on the
Revolution in the Congo", Comparative Studies in Society and
History (Jan. 1963), p. 124.
15. McAllister, B., "Tribal Challenge in the New Africa",
African World (Sep. 1963), p. 6.
16. Ogunsheyo, A., "Nigeria's Political Prospects" quoted in
Bulletin of the Africa fostitute, Vol. I,No. 13, 1 Sep. 1961,
pp. 4-5, from an article published in Ibadan, the Journal of
the University College of Ibadan.
17. Osinowo, T., "Essentials of African Unity", New Africa
(Apr. 1964), pp. 9-10.
r8. Richmond, A. H., "Recent Research on Racial Relations:
Britain", International Social Science Bulletin, Vol. X (1958),
Part I, pp. 36J and 363.
rg. Rivkin, A., "The Politics of Nation-Building: Prnblems and
Preconditions", Journal of International Aff airs, Vol. XVI,
No. 2, pp. 138 and 139.
20. Rotberg, R., "The Political Outlook in Zanzibar", Africa
Report, Oct. 1961, p. 5.
21. Rothchild, D. S., "The Politics of African Separatism",
Journal of International Affairs (Spring 1961), pp. 18, 25-26
and 58.
22. Sadikot, R., "Equal Rights for Asians", New Africa, Vol. 5,
No. 4 (London, Apr. 1963), p. 12.
23. Shils. E., "The Intellectuals in the Political Development of
the New States", World Politics (Apr. 1960), pp. 353-354.
24. Sutton, F. X., "Authority and Authoritarianism in the New
Africa", Journal of International Affairs (Spring 1961),
pp. 15-16.
B. TITLES
r. "After Terrorism, Peace for the Cameroun?", Africa r960,
6May 1960.
2. "Commentary by Onlooker", African World (July 1963),
p. 7.
3. "The Congo", Africa lnstitute Bulletin, Vol. Il, No. 17
(r Oct. 1962), pp. 496-503.
4. "Consolidation of the Dictatorship of Dr. Nkrumah in
Ghana", Africa lnstitute Bulletin, Vol. I, No. 17 (1 Nov.
1961), pp. 10,II and 13.
5. "Exodus of Europeans", Africa lnstitute Bulletin, Vol. II,
No. 17 (1 Oct. 1962), p. 503.
6. "Ghana", Africa Digest (Feb. 1964), p. 117.
7. "Ghana", The Atlantic Report on the World Today, Atlantic
(May r964), p. 28.
8. "Ghana Extends Preventive Detention", West Africa,
No. 2423 (9Nov. 1963), p. r275.
9. "Ghana: Nasionalisering van 'n Nuusblad", Africa Institute
Bulletin (1 Nov. 1962), p. 548. REJOINDER OF SOUTH AFRICA
439
ro. "Kenya", A/rica Digest (Oct. 1962), pp. 52-53 and (Aug.
1963), p. II.
11. "Nigeria's Population Explosion", West A/rica, 29 Feb. r964,
p. 226.
12. '\Nkrumah Tightens the Reins", Senior Scholastic, Vol. 84,
No. 8, 20 Mar. 1964, p. 34.
13. "The Opposition in Tropical Africa", Bulletin of the Inter
national Commission of ]urists, No. 14, Oct. 1962, p. 5.
r4. "Race Trouble in Birmingham, England, Too", U.5. News
and World Report, Vol.LVI, No. 12 (23Mar. 1964), pp. ro2-104.
15. "Revolt in the Sudan", America, 14. Dec. 1963. p. 758.
16. "Rwanda: The Tutsis Brood", The Economist, 28 Mar. 1964,
pp. n97-n9S.
17. "Secessionist Southern Sudan", A/rica I963, 18 Jan. 1963,
pp. 6-7.
18. "Soedan: Einde van die MilitêreDiktatuur", Africa Institute
Enlletin, Vol. IV, No. 12 (Dec. 1964), p. 334.
r9. "Somali Republic", Africa Digest (Oct. 1962), p. 57.
20. "Sudan", Africa Digest, Vol. XI, No. 3, Dec. 1963, p. 74.
21. "Sudan: Southern Strife", Quarterly Economie Review,
June 1964. p. ro.
22. "When Your Face is the Wrong Colour", 20th Century,
Vol. 172, No. IOI7 (Spring 1963), pp. 38-39.
23. "Zanzibar", Africa Digest. July/Aug. 1958.
24. "Zanzibar after the Coup", Ajrica Digest, 16 Mar. 1964,
p. 141.
25. "Zanzibar", Commonwealth Survey, 21 Jan. 1964, pp. 72-73.
26. "Zanzibar-Life Returning to Normal", Ajrica South of the
Sahara, 23 Jan. 1964, p. 16.
IX. Newspapers and Periodicals
1. The Atlantic Report, Apr. 1964, p. 14-
2. The Daily Herald, I May 1963, 29 June 1964.
3. Daily Telegraph, 31 May, r July 1963; 2 June, 30 June, 24 Aug.
and 28 Oct. 1964-
4. TheGuardian, 2 Oct. 1963.
5. Look, 2 June 1964, p. 37.
6. The ManchesterGuardian, 21 Jan. and 28 May 1964-
7. National Review, r8 Feb. 1964.
8. Neue Zürcher Zeitung (Evening Edition), No. 4676, 3 Nov. 1964.
9. New Daily, 23 Apr. 1964.
m. Newsweek, Vol. LXIV, No. 16, 19 Oct. 1964. p. 33.
II. The New York Times, 25 Mar., 2 Aug. and 5 Aug. 1964.
I2. The Observer, 21 July 1957.
13. The Pretoria News, 7 Dec. 1964.
14. Rand Daily Mail, 25 Aug. 1960; II Feb., 23 Apr., 24 July and
14 Dec. 1964.
15. Rhodesia Herald, 8 May 1964.
16. TheSaturday Evening Post, Vol. 234, No. 7, 18 Feb. 1961.
17. The Star, 29 May, 4 June, 25 June, 2 July, 3 July, II July,
26 July, 27 Aug., 30 Aug., 4 Sep. 1962; 16 July, 30 Sep., 30 Dec.
1963; 3 June, 17 Jnly, 20 July, 1 Oct., 9 Oct., II Nov., 17 Nov.,
23 Nov. and 30 Nov. 1964. SOUTH WEST AFRICA
18. The Sunday Times (Johannesburg), 8 and 15 Nov. and 6 Dec.
1964-
19. The Times, 18 Apr. 1962; 15 Apr., 24 Sep. and 1 Oct. 1963;
22 Jan., 28 May and 17 Sep. 196+
20. Die Transvaler, 27 July 1964.
21. The Tribune, 23 Oct. 1964.
22. The Sunday Times (London), 18 Aug. 1963.
23. Die Vaderland, 6 Oct. 1964-
24. West A/rica, 8 Feb. 1964.
25. Windhoek Advertiser, 8 June 1964.
X. Other
Africa Institute: Maps and Statistics, No. 1 (July 1962), p. 11.
CHAPTER IV
Republic of South •Africa
Report of Commission
R.P. No. 12/1964, Report of Commission of Enqtûry into South
West Africa Aflairs, I962-I963. ·
CHAPTER V
I. League of Nations_
Minutes of the Permanent Mandates Commission, Sess. II, p. 34;
VI, p. 126; IX, p. 140; X,· p. 95; XI, pp. 61-62; XIV, p. n7;
XIX, p. 131; XXI, p. 41; XXVI, p. 15.
Il. United Nations
A. GENERAL AssEMBLY .
C.A., O.R., Twel/th Sess., Suppl. No. 15 (A/3647), II, Report of
the Committee on In/orttiation /rom Non-Self-Governing Terri-
tories,p. 15 (para. 22). · • ·
B. EcoNOMIÇ AND SOCIAL CouNcrL
EcONOMIC COMMISSION FOR AFRICA
r. Doc. E/CN.14/168, Annual Report of the Economie Com
mission for Africa to the Economie and Social Council of ils
Fourth Session, para. 265.
2. Doc. E/CN .14/INR/I/Rev. l, lndustrial Growth in A/rica,
pp. 76-77- . .
Ill Union of South Africa and Republic of South Africa .
A. PARLIAMENTARY DEBATES
House of Assembly
Vol. 91 (1956), Col. 5297; Vol. i:or (1959), Col. 6021; Vol. 2
(1962), Cols. 87-89; Vol. 3 (1962}, Col. 5264: Vol. 5 (1963}.
Cols. 225, 228-230; Vol. 7 (1963), Col. 6930; \Veekly Edition
No. 15 (4 May to 8 o_fay1964), Cols. 5452, 5453, 5640, 5641,
.. 5642. . - .
B. REPORTS OF COMMISSIONS
U.G. 28-:r948, Report of the Native J,.,awsCommission I946-I948,
p. 19, para. 28. . · . . REJOINDER OF SOUTH AFRICA 441
U.G. 61-1955, Summary of the Report of the Commission for
the Socio-Economic Development of the Bantu Areas within
the Union of South Africa, pp. 10, 41-42,.103-105, u4, II],
178-179.
R.F. 12-1964, Report of the Commission of Enquiry into South
West Ajrica Aff airs I962-r963, pp. 3, 41, 81-I07, 123-205,
219-263, 267-3n, 315-489, 533, 535, 537, 539, 541, 543, 545,
547,549 and 551.
C. LEGISLATION
Statutès
Act No. 44 of 1950, Suppression of Communism Act, r950,
in Statutes of the Union of South Africa, I950.
Act No. 76 of r96z, General Law Amendment Act, I962, m
Statutes of the Republic of South Africa, Part II.
Act No. 37 of 1963, General Law Amendment Act, I963, in
Statutes of the Republic of South A/rica, I963, Part I.
Aét No. 48 of 1963, Transkei Constitution Act. I963, First
Scheditle, in Statutes of the Republic of South Africa, I963,
Part 1.
Ü. ÜTHER ÜFFICIAL PUBLICATIONS
1. Documents Relating To The Consideration By The United
Nations General Assembly Of The Statement By The Govern
m~nt Of The Union Of South Africa On The Oi.tcome Of
Their Consultations With The Peoples Of South West Africa
As To The Future Status Oj The Mandated Territory And The
Implementation Ta Be Given To The Wishes Thus Expressed,
p. 33. .
2. W.P. 3-'59, Memorandum exp!aining the Background and
Objectsof the Promotion of Bantu Selj.Government Bill of r959,
pp. 4-5.
IV. Transkei
r. Debates of the Transkei Legislative Assembly, 2nd Session, First
Assembly, 5 May to 19 June 1964, p. 67.
2. Transke~an Territorial Authority, Proceedings and Reports of
Select Committees at the Session of I962: Annual Reports and
Accounts for 1961 and Estimates of Revenue and Expenditure
for 1962-1963 (1962), p. lviii.
V. Un~tedKingdom '
Basutoland, Bechuanaland Protectorate·and Swaziland, Report of
an Economie Survey Mission (London, H.M.S.O., 1960), p. 12.
VI. United States of America
U.S. Department. of Commerce, "Basic Data on the Economy of
Liberia", 1959, p. +
VII. Books and Pamphlets
A. AUTHORS AND TITLES
I. Allott, A. N., Judicial and Legat System in Africa (1962),
pp. 83-84. . ·
.2. Berg, E. ,J..in The United States and Africa, Editor: Walter
Goldschmidt (revised edition, F. A. Praegcr, New York,
London,1963),p. 129.442 SOUTH WEST AFRICA
3. Epstein, A. L., Politics in an Urban A/rican Cornmunity
(London: Manchester University Press), p. 228.
4. Fraenkel, M., Tri be and Class in Monrovia (1964) (Oxford:
The Alden Press Ltd.), pp. 94-95.
5. Giniewski, P., Bantustans: A Trek towards the Future
(Cape Town: Human & Rousseau, r96r), pp. 120-121 and
148-151.
6. Goldschmidt, W. (Ed.), "The United States and Africa"
(New York and London, 1963), pp. 2I and 50.
7. Rance, vV. A., African Economie Development (1958),
p. 237.
8. Hill, C. R., Bantustans: The Fragmentation of South
Africa (Cape Town: Human & Rousseau, 1964), pp. 71-72.
9. Kimble, G. H. T., Tropical Africa, Vol. II (New York,
1960), p. 351.
ro. Lipsky, G. A., Ethiopia: Its People, Its Society, Its Culture
(New Haven: Hraf Press, 1962), pp. 34, 37-38, r70.
II. Luther, E. W., Ethiopia Today (1958) (California: Stanford
University Press, Stanford; London: Oxford University
Press),p. 42.
12. Mason, P., An Essay on Racial Tension (1954), p. 133.
13. Munger, E. S., A/rican Field Reports (1952-1961) (Cape
Town: C.Struik), p.ng.
14. Neame, L. E., White Man's Africa (1953), pp. 43-46.
B. TITLES
I. Information Please Almanac Atlas and Yearbook r964 (New
York: Simon and Schuster), pp. 615,676 and 745-747.
2. South African Institute of Race Relations, A Survey of Race
Relations in South A/rica r963 (r964) (compiled by Muriel
Horrell}, p. 96.
VIII. Articles
A. AUTHORS AND TITLES
r. Camell, F. G., "Political Implications of Federalism in
New States", in Federalism and Economie Growth in Under
developedCountries. A Symposium (London, George Allen &
Unwin Ltd., 1961), p. 59.
2. Fair, T.J. D. and Green, L. P., "Development of the Bantu
Homelands", Optima. Vol. 12, No. I (Mar. 1962), pp. 7-19.
3. Herskovits, M. J., "The Role of Culture-Pattern in the
African Acculturative Experience", in "Présence Africaine"
(Africa's Own Literary Rcvicw), Vols. 6/7, Nos. 34/35, p. 14.
4. McAllister, B., "Tribal Challenge in the New Africa: Re
sistance to Change Among Primitive Communities' ', African
World (Sep. 1963), p. 6.
5. Shils, E., "The Intellectuals in the Political Development
of the new States", in World Politics, Vol. XII, No. 3
(Apr. 1960), p. 349. .
6. Tumbull, C. M., "Tribalism and Social Evolution in Africa",
The Annals of the American Academy of Political and Social
Science, Vol. 354 (Philadelphia: James C. Charlesworth)
(July 1964), pp.22, 23 and 30. REJOINDER OF SOUTH AFRICA 443
B. TITLES
"Hatching Dr. Azikiwe's Egg", in West Africa, 30 May 1964
(London: Odhams Press Ltd.), p. 593.
IX. Petitions
Petition ta the Honorable Dr. H. F. Verwoerd dated 24 OctoberI964
/rom the Chiefs and Headmen of Ovamboland.
CHAPTER VI
1. Union of South Africa and Republic of South Africa
A. REPORTS OF COMMISSIONS
R.P. 51/1963, Report of the Commission appointed to inqiiire
into the Events on the 20th ta 22nd Novem6er, r962, at Paarl
and theCauses which gaverise thereto.
B. LEGISLATION
Act No. 49 of 1964, The Coloured Persans Representative Council
Act, r964.
C. (ENSUS AND STATISTICS
U.G. 62-1954, Union of South Africa: Population Census, 8th
May, r95r, Vol. III: Religions of the White Population of the
Union of South Africa, together with I946 Census Figures for
Alt Races of thePopulation, p. 66.
U.G. 38-1959, Union of South Africa: Population Census, 8th
May, I95I, Volume VII: MaritalStatus, Religions and Birth
places of Coloureds, Asialies and Natives,. 76.
Republic of South Africa: Bureau of Statistics, Population
Census, r960: Sample Tabulation, No. 6-Religion AU Races,
pp. 2, 16 and 29.
Il. Transkei
I. Transkeian Territorial Authority, Proceedings and Reports of
Select Committees at the Session of I96r: Annual Reports and
Accounts for 1960 and Estimates of Revenue and Expenditure
for 1961-196z (Umtata: 1961), p. 103.
2. Transkeian Territorial Authority: Proceedings and Reports of
Select Committees at the Session of r959: Annual Reports and
Accounts for 1958 and Estimates of Revenue and Expcnditure
for 1959-1960 (Umtata: 1959), pp. 30-31.
3. Transkei Government: Debates of the Transkei Legislative
Assembly, Second Session-First Assembly, 5th May to 19th
June, 1964, pp. 13 and 33.
III. Books and Pamphlets
A. AUTHORS AND TITLES
r. Bate, H. Maclear, South Africa without Prejudice (London:
Werner Laurie, 1956), pp. 122-123.
2. Carter, G. M., Five African States: Responses to Diversity
(London: Pal! Mall Press, 1963), p. 533.
3. Cawood, L., The Churches and Race Relations in South Africa
(Johannesburg: South African Institute of Race Relations,
1964), pp. 5and 40.444. SOUTH WEST AFRICA
4. Cronje, G., Regverdige Rasse-apartheid (Stellenbosch: Die
Christen-Studenteverenigingmaatskappy van Suid-Afrika,
1947},pp. 155-156.
5. Du Preez, A. B., Inside the South Ajrican Crucible {Kaapstad
-Pretoria: H.A.U.M., 1959), p. 221.
6. Du Plessis, H., 'n Nuwe Deurbraàk (Potchefstroom: Pro
Rege-Pers Beperk, 1963), pp. 26, 29 and 30.
7. Geyser, A. S. et al.,Detayed Action: An Ecumenical \Vitness
from the Afrikaans-speaking Church (Pretoria: Craft Press),
p. 68.
8. Hellmann, E. (Ed.), Handbook on Race Relations in South
Africa (London: Oxford University Press, 1949), pp. 526-527
and 653-655.
g. Holloway, J. E., Apartheid-A Challenge (Johannesburg:
Afrikaanse Pers-Boekhandel, 1964), pp. 28, 29 and 30.
ro. Marais, B., The two faces of A/rica (Pietermaritzburg:
Shuter and Shooter, 1964), pp. 34 and 6o-6r.
rr. Segal, R., Political A/rica: A Who's Who of Personalities
and Parties (London: Stevens and Sons Limited, 1961),
p. 69.
12. Steward, A., The Challenge of Change (Cape Town: Howard
Timmins, 1962), pp. 23-24, 43-44, 48, 73, 79 and Bo.
13. Van der Merwe, H. J. J. M., Segregeer of Ster/: 'n Diep
dringende Beligting van ons Blank- Nïe-blank-Verhoudinge
teen die Agtergrondsituasie van Kontak, Integrasie en/of
Segregasie van die Kleurgroepe (Johannesburg: Afrikaanse
Pers-Boekhandel, 1961), p. 149.
14. Visser 't Hooft, W. A., Visit to the Soitth African Churches:
A report to the Central Committee of the World Council
of Churches on a visit to the South African Churches in
Apriland May 1952 (New York; World CounciJ of Churches),
pp. 14, 17 and 18.
B. TrTLES
r. Cottesloe Consultation: The Report of the Consultation
among South African Member Churches of the Wodd
Council of Churches, 7-14 December 1960 at Cottesloe,
Johannesburg, pp. 23-24, 73, 79, Bo,Sr-82.
2. Die Naturel in die Sitid-Afrikaanse Landboù: Referate ge
lewer op die vyfde Jaarvergadering van die Suid-Afrikaanse
Euro vir Rasse-Aangeleenthede (SABRA) January 1954,
p.I08.
3. Go Forward in Faith: A statement of the fondamental
beliefsand attitudes of the South African Institute of Race
Relations. (Pamphlet issued by the South African Institute
of Race Relations.)
4. Handelinge (Acta) van die Vyf-en-Twintigste Sinode van die
Ned. Gere/. Ker_kvan Transvaal gehou te Pretoria op 5 April
I96I en volgendedae, pp. 350, 382-383.
5. Handelinge van die Vier-en-Dertigste Vergadering van die
Hoogeene:aardeSinode van die N ederduitse GereformeerdeKerk
in Suid-Afrika: Gehou in Kaapstad op Donderdag, 19
Oktober r96r en volgcnde dae, pp. 50-51. REJOINDER OF SOUTH AFRICA
445
6. Indian South Africans (Pretoria: Printed by Dagbreek
(H & G) on behalf of the Government Printer), p. 38.
7. lntegration or Separate Development ?: Issued by the South
African Bureau of Racial Affairs (SABRA) (Stellenbosch,
1952), pp. 18and 30.
8. Journal of Racial Afjairs, Vol. II, No. 4, July 1960 (Stellen
bosch: SABRA). p. 188.
9. Safeguarding Your Future: The Principles and Policies of the
Progressive Party of South Africa (Johannesburg: M. K.
Mitchell), pp. 5-13. .
IO. South .African Bureau of Racial Afjairs (SABRA): Aims,
Favourable Reception, etc.
rr. South African Institute of Race Relations (Inc.): 34thAnnual
Report 1962-1963, pp. 17 and 19.
12. State of South Africa: Economie, Financial and Statistical
Year-Book for the Republic of South Africa, 1962 (Johan
nesburg: Da Gama Publications Ltd.), pp. 43 and 46.
13. "Uit Een Bloed .. .": 'n Rapport aan en 'n besluit van Die
Algemene Sinode van die Gereformeerde Kerk in Suid
Afrika oor Rasseverhoudinge {Potchefstroom: Pro Rege
Pers Beperk, 1961), p. 74.
14. Volkskongress oor die Toekoms van die Bantoe: Referate en
Besluite: Volkskongres, Bloemfontein, 28-30 Junie 1956,
pp. 137-138.
IV. Articles
A. AUTHORS AND TITLES
I. Du Plessis, L. J., "The Case in Favour of Apartheid", in
Science and Freedom, No. IO, February 1958 (Apartheid
and the World's Universities: Report on a Meeting held in
London, November, 1957), pp. 32-40, at pp. 37-38.
2. Makapan, O. M., "Apartheid As I See It", South Africa,
The Road Ahead, Spottiswoode, H. (Ed.) (Cape Town:
Howard Timmins, 1960), pp. 120-122, at pp. 121-122.
3. Manning, C. A. W., "South Africa and the World: In
Defense of Apartheid", Foreign Aff airs: An American Quart
erly Review, Vol. 43, No. I (Oct. 1964), pp. 135-149, at p. 148.
4. Olivier, N. J. J., "Apartheid-A Slogan or a Solution",
Joitrnal of International Aff airs, Vol. VII, No. 2 (1953), p. 141.
5. Peacey, B. W., "Race Relations in South Africa: Principles
and Policies", Journal of Racial A!Jairs, Vol. 4, No. 3
(Apr. 1953), pp. r-17, at pp. 12 and 16.
6. Rodda, P., "The Africanists Cut Loose", in Africa South,
Vol. 3, No. 4, July-Sep. 1959, pp. 25 and 26.
7. Van Heerden, W., "Why Bantu States?", optima, Vol. 12,
No. 2 (June 1962), pp. 59-65, at pp. 59 and 64-65.
B. TITLES
1. "Message of Paramount Chief to Zulus". Bantu, No. 12
(Dec. 1959), pp. 12-13.
V. Newspapers and Periodicals
I. The Star (Johannesburg), 25 Nov. 1959.
2. The Star (Johannesburg), 27 July 1964. SOUTH WEST AFRICA
3. The Star (Johannesburg), 31 July 1964.
4. The Star (Johannesburg), 21 Sep. 1964.
5. The Star (Johannesburg), 22 Sep. 1964.
6. The Star (Johannesburg), 15 Oct. 1964.
7. The Star (Johannesburg), 3 Nov. rg64.
8. Die Transvaler (Johannesburg), 17 May 1963.
9. Die Transvaler (Johannesburg), 8 Oct. 1964.
ro. Die Transvaler (Johannesburg), 12 Nov. 1964.
rr. The Cape Times (Cape Town), 19 Feb. 1964-
12. The Cape Times (Cape Town), 29 Apr. 1964.
13. Die Banier (Cape Town, 2nd edit.), Sep. 1964.
14. Die Banier (Cape Town, 1st edit.), Oct. 1964.
15. South Ajrica Today (newsletter issued by the South African
Information Adviser, Ottawa), 31 Dec. 1957, p. ro.
16. Sunday Times (Johannesburg), 7 Apr. 1963.
17. Daily News (Durban), II Jan. 1964.
r8. Die Brug tussen Protestant en Katoliek, Jaargang 13, No. 4,
Apr. r964, pp. 4-5.
19. The Graphie (Durban), 21 Aug. 1964.
20. South African Digest, 18 Sep. 1964.
2r. Dagbreeken Sondagnuus (Johannesburg), 20 Sep. 1964.
22. Die Burger, 20 Oct. 1964-
VI. Unpublished Sources
Sobukwe, R., Unpublished manuscript, 1960, pp. r-8, at pp. 3, S
and 6. .
Landman, Rev. W. A., Address, pp. II-13.
Golding, G. J., President of the Coloured Peoples National Union:
Unpublished Statement dated 12 Nov. 1964.
Rivonia Judgment in the Supreme Court of South Africa (Trans
vaal Provincial Division), Unpublished, pp. 19 and 23-24.
VII. Letters
BookerLakey to Mayor and Town Council of Aberdeen.
CHAPTER VII
I. United Nations
A. GENERAL AssEMBLY
Plenary Meetings U.N. Doc. A/PV. 1215 (25 Sep. 1963),
Eighteenth Session, General Assembly, Provisional Verbatim
Record of the 1215th Plenary Meeting, pp. 23 and 26.
U.N. Doc. A/PV. 1236 (ro Oct. 1963), Eighteenth Session,
General Assembly, Provisional Verbatim Record of the 1236th
Plenary Meeting, p. II. .
B. SECURITY COUNCIL
U.N. Doc. S/5723 (28 May 1964). U.N. Doc. S/5658 (20 Apr.
1964), pp.rand 18.
Il. Books and Pamphlets
A. AUTHORS AND TITLES
r. Ravet, T. (Jr.), Africa and the United Nations (London:
Faber and Faber, 1963), p. 219. REJOINDER OF SOUTH AFRICA 447
2. Van Eeden, G., Die V1mr Brand Nader (Johannesburg:
Nasionale Boekhandel Beperk, 1964), pp. 140-141.
3. Jahn, H. E., Vom Kap Nach Kairo: Afrikas Weg In die
Weltpolitik (München: Gunter Olzog Verlag, 1963), p. 31.
4- Gijmink, G. J. H., Z6 zag ik Zuid A/rika!, Reisdagboek
van G. J.H. Gijmink, Herv. Fred. te Rotterdam-Grotekerk
wijkgemeente, Voorzitter N.Z.A.W., under Johannesburg,
13April (1964).'
B. TrTLES
Acts of the Reformed Ecumenical Synod I963, Grand Rapids,
.Michigan,U.S.A. (1963),p. 225.
III. Articles
A. AUTHORS AND TITLES
1. d'Archimbaud, D., ''l'Afrique du Sud devant !'Opinion",
La Revue Française, No. 139 (Apr. 1962), pp. 15-19, at p. 15.
2. Beilby, L., "Living with SouthAfrica",The DailyTelegraph
(London), 24 Nov. 1964-
3. Buckley, W. F. (Jr.), "South African Fortnight", National
Review, 15 Jan. 1963, pp. 17-23,at p. 23.
4. Den Hartog, A. l\I."Indrukken van een R.K. over Zuid
Afrika", NZAW-Kroniek, 1st Year, No. I (15Sep. 1964).
5. Gijmink, G. J. H., "Kerk en Zending in de Republiek van
Zuid-Afrika", De Rotterdamse Kerkbode, 9 Mar. 1963.
6. Hoogendijk, F. A., "De verdachtmaking en de werkelijk
heid", Elseviers Weekblad (Amsterdam) 4 Apr. 1964.
7. Huxley, E., "The face behind the mask: Sorne thoughts on
revolutions", Optima, Vol. 14, No. 2 (June 1964), pp. 59-67,
at pp. 63-64.
8. Lamberty, M., "Wat betekent pluralisme. (II)?" De Vlaamse
Gids, No. 12 (1963), pp. 798-812, at pp. 8u-812.
9. Manning, C. A. W., "South Africa and the World: In
Defense of Apartheid", Foreign Affairs, Vol. 43, No. 1
(Oct. 1964). pp. 135-136 and 137.
10. Molnar, T., "First Step in the Transkei", National Review,
25 Feb. 1964, pp. 155-156.
II. Shaw, S. N., "The Truth about South Africa", U.S. News
and World Report, 19 Nov. 1962, p. n4.
12. Smith, A., "The Truth About South Africa", The Peoples
Magazine, Vol. 43, No. 10-12 (Fourth Quarter 1964), p. 15.
13. Rôpke, W., "Südafrika: Versuch einer Würdigung", Schwei
zer Monatshefte, 44th Year, No. 2 (May 1964), pp. 97-112, at
pp. 103-104, 105, 106, 107 and 109.
B. TITLE
"Africa's finest Hour", Supplement with 'Ghana Today' of
]uly 29th, I964, Speech delivered by President Nkrumah at
the Conference of African Heads of State and Govemment
in Cairo on 19 July 1964, pp. 4 and 5.
IV. Newspapers
r.La Quotidienne d'Informations Politiques, EconomiquesetSociales,
Supplément de t"'Agence Quotidienne" (Paris), July 1964,pp. 4-5. SOUTH WEST AFRICA
2. The Star (Johannesburg), 25 Nov. 1964.
3. Haagsche Post (Amsterdam), 8 June 1963.
4. Sunday Express (Johannesburg), 20 Sep. 1964.
5. The Times (Late London Edition), 17 June 1964.
6. De Telegraaf (Amsterdam), 2 Mar. 1963.
7. Sunday Times (Johannesburg), 30 Sep. 1962.
8. The Star (Johannesburg), 25 June 1964.
9. The Times (London), 8 Oct. 1963.
ro. The Times (London), 24Sep. 1963.
11. The Times (London), 21 Sep. 1963.
12. The Yorkshire Post (Leeds), 16 Jan. 1964.
13. Sunday Times (Johannesburg), II Oct. 1964.
14. The Natal Mercury (Durban), ro Oct. 1962.
CHAPTERS VIII, IX AND X
I. Books and Pamphlets
AUTHORS AND TITLES
r. Abraham, W. E., The Mind of Africa (London: Weidenfeld
and Nicolson, 1962), p. rno.
2. Clark, K. B., Prejudice and Your Child (Boston: The Beacon
Press, 1955), pp. 19, 44-45, 47, 49, 50, 52 and 55.
3. Dunn, L. C. and Dobzhansky, Th., Heredity, Race and Society
(New York: The New American Library of World Literature,
Inc., 1959), pp. 14, 82-83, ro8 and 134.
4. Fairchild, H., Race and Nationality (1947), p. 4-
5. Hoebel, E. A., Man in the Primitive World (London: McGraw
Hill Book Company, Inc., 1958), p. n7.
6. Kluckhohn, C., Mirror for Man: The Relation of Anthro
pology to Modern Life (New York: McGraw-Hill Book
Company, Inc. 1949). pp. 124-125.
7. Leakey, L. S. B., The Progress and Evoltdion of Man in
Africa (London: Oxford University Press), p. 15.
8. Leiris, M., Race and Cttlture (Unesco: 1951), p. 16.
9. ?lfacCrone, I. D., Race Attiti,des in South Africa (Johannes
burg Witwatersrand University Press), p. 249.
IO. MacDougall, W., The Croup Mind (Cambridge University
Press, 1920), p. 5.
II. Maclver, R. M., The Web of Government (New York: The
Macmillan Company, 1947), pp. 428 and 429.
12. Morant, G. M., The Significance of Racial Ditferences (Unesco:
1952), pp. 45 and 46.
13. Myrdal, G., An American Dilemma: The Negro Problem
and Modern Democracy (New York: Harper and Brothers
PubHshers, 1944), p. 699.
14, Rife, D. C., Heredity and Human Nature (New York: Vantage
Press, 1959). pp. 218 and 248.
15. The Race Concept: Result of an Inquiry (Unesco: 1951),
pp. IO-II, 12,2I, 26, 32, 49-54, 57, 58, 61, 62, 64, 82 and 83.
16. Young, D., American Minority Peop!es (New York: Harper
and Brothers Publishers, 1932), p. 586. REJ OIN DER OF SOUTH AFRICA 449
Il. Articles
AUTHORS AND TITLES
r. Biesheuvel, S., ."Race, Culture and Personality", South African
Institute of Race Relations (1959), pp. 4-5.
2. Biesheuvel, S., "The Study of African Ability", African Studies,
Vol. II,No. 2 (June 1952), p. 55.
3. Cryns, A. G. J., "African Intelligence: A Critical Survey of
Cross-Cultural Intelligence Research in Africa South of the
Sahara", Journal of- Social Psychology, Vol. 57 (1962), pp.
292-293.
4. Diop, A., "American Society of African Culture", Pan African
ism Reconsidered (1962), p. 344.
5. Gregor, A. J., "The Dynamics of Prejudice", MankindQuarterly,
Vol. III, No. 2 (Oct.-Dec. 1962), pp. 80-82.
6. Gregor, A. J.,"The Law, Social Science, and School Segregation:
An. Assessment", Western Reserve Law Review, Vol. 14, No. 4
(1963), pp. 625-628.
7. Gregor, A. J., "Legal Testimony and Scientific Evidence:
A Contrast", Mankind Quarterly, Vol. IV, No. 2 (1963), p. ro8.
8. Gregor, A. J., "On the Nature of Prejudice", The Eugenics
Review, Vol. LII (Apr. 196o-Jan. r96r), pp. 218, 219, 220 and
222.
9. Gregor, A. J., "The Biosocial Nature of Prejudice", Genus,
:Vol. XVIII, No. r-4 (1962). pp. r3-r4.
ro. Haldane, J. B. S., "Comments", Current Anthropology (Oct.
1961), pp. 322-323. .
rr. lngle, J.,"Comments on the Teachings of Carleton Putnam",
The Mankind Quarterly, Vol. IV, No. 1 (1963), p. 29.
12. Lundberg, G. A., "Sorne Neglected Aspects of the 'Minorities'
Problem", Modern Age (1958). Reprint in!The Mankind Quar
ter/y, Vol. III, No. 4 (Apr.-June, 1963), pp. 212, 227.
13. Porteus, S.D. and Gregor,A.J., "Studiesin Intercultural Testing",
-Perceptual and Motor Skills, Vol. r6, No. 3 (1963), p. 722.
r4. Van den Haag, E., "Social Science Testimony in the De·
segregation Cases-A Reply to Professor Clark", Villanova
· Law Review, Vol. 6 (1960), p. 69.
III. Newspapers
The Times (London), r8 Apr. 1962.
CHAPTER XI
I. United Nations
Secretariat
Deplj,rtmen!of Economie and Social Afjairs
Demographic Yearbook r963 Special Topic: Population Census
Statistics Il, Fifteenth Issue (1964); pp. 3II, 313 and 317.
II. United States of America
,r. The Economie Situation of Negroes in the United States (United
States Department of Labor, W. Willard Wirtz, Secretary;
Washington D.C.: µ.S. ·G9vernment Printing Offic(,, Bulletin
S-3, Revised 1962), pp. i, r, 2, 4-5, 6 and 9. ·450 SOUTH WEST AFRICA
2. Civil Rights '63: 1963 Report of the United States Commission
on Civil Rights (Washington D.C.: U.S. Government Printing
Office), pp. 1-4, 13, 14-15, 16-26, 30, 53, 63, 68, 73, 90, 95,
96-101, II4and231.
3. Proposed Amendments to Constitution: Propositions and Pro
posed Laws together with Arguments-Tc be Submitted to the
Electors of the State of California at the General Election
Tuesday, Nov. 3, 196+ (Compiled by A. C.Morrison, Legislative
Counsel. Distributed by Frank l\f. Jordan, Secretary of State.)
Part I, p. 18 and PartII,p. 13.
+ Statc of California, Department of Justice, Constitutional
Rights Section, Equal Rights under the Law: Providing for Equal
Treatment for Ail Citizens Regardless of Race, Religion, Color,
National Origin or Ancestry (Published by Stanley Mosk,
Attorney-General and Howard H. Jewel, Assistant Attorney
Gcneral, 1964), Key Laws: Fepa, Fair Housing Act, Civil
Code, Education Code, Penal Code and Insurance Code.
5. I96I United States Commission on Civil Rights Report, 5Books,
(Washington D.C.: U.S. Government Printing Office), Book 1
(Voting). pp. 2-5, 6, 7-10, 12, 15-37, 73, 74, 75, 76-78, 79-100,
ru, II2, 136 and 195-196; Book 2 (Education), pp. 5, 7-10,
15-37, 39-63. 65-n5 and 173; Book 3 (Employment), pp. I,
2-3, 6-17, 19, 21-26, 108, 153, 155 and 159-161; Book 4 (Housing),
pp. I, 2, 16 and 144-145; Book 5 (Justice), pp. 29-41, 43, 44,
89, 92, 95, 103, 106, ro8, u5, u6, 135, 140-144 and 157.
III. Books
A. AUTHORS A:-.D TITLES
I. Allport, G. W., The Nature of Prejudice (Cambridge, Massa
chussetts: Addison-Wesley PublishingCompany Inc., 1954),
pp. 472and 473.
2. Becker, G. S., The Economies of Discrimination (Chicago:
University of Chicago Press, 1957), p. 123.
3. Berelson, B. and Steiner, G. A., Human Behavior: An
Inventory of Scientific Findings (New York: Harcourt,
Brace and World, Inc., 1964), pp. 515,575 and 613-614.
4. Clark, D., The Ghetto Game: Racial Conflicts in the City
(New York: Sheed and Ward, 1962), p. 43.
5. Cressey, D. R. Vide Sutherland, E. H., infra.
6. Dean, J. P. Vide Suchman, E. A., infra.
7. Dean, J. P. and Rosen, A., A Manual of Intergroup Relations
(Chicago: The University of Chicago Press, 1955), pp. 19,
21 and 88.
8. Frazier, E. F., The Negro in the United States (New York:
The Macmillan Company, 1957, Revised Edition), p. 689.
9. Gillin, J. L., Criminology and Penology (New York: D.
Appelton-Centurv Company Incorporated, 1945, Third
Edition), pp. 199-200.
ro. Gillin, J. L., Social Pathology (New York: D. Appelton
Century Company, Revised Edition, 1939), pp. 559-570 and
620.
11. Grigg, C. Vide Killian, L., infra.
12. KiIJian, L. and Grigg, C., Racial Crt"sisin America: Leader- REJOINDER OF SOUTH AFRICA 45r
ship in Conflict (New York: Prentice-Hall, Inc., Engle
wood Cliffs, N.J., r964). pp. rr2-rr3, r14, rr7, 128and130.
13. MacAdam, I. (Ed.), The Annual Register of World Events:
A Review of the Year r963 {London: Longmans, Green
and Co. Ltd., 1964), Vol. 205, pp. 181-182.
14. Myrdal, G., An American Dilemma: The Negro Problem
and Modern Democracy (New York: Harper and Brothers
Publishers, 1~}44),p. 52.
r5. Rosen, A. Vide Dean, J. P., supra.
r6. Putnam, C., Race and Reason: A Yankee View (Washington
D.C.: Public Affairs Press, 1961), p.9.
r7. Ryan, M. W. Vide Williams, R. M. (Jr.), infra.
18. Saenger, G., The Social Psychology of Prejudice: Achieving
Intercultural Understariding and Co-operation in a Demo
cracy (New York: Harper and Brothers Publishers, r953),
pp. 162 and 270.
19. Silberman, C. E., Crisis in Black and White (New York:
Random House, 1964), pp. 8, 41, 43, 289 and 290.
20. Suchman, E. A. et al., Desegregation: Sorne Propositions and
Research Suggestions (New York: Anti-Defamation League
of B'nai B'rith, 1958), pp. 5 and 57.
2r. Sutherland, E. H.. Princip/es of Criminology {New York:
J. B. Lippincott Company, Fifth Edition, 1955), p. 147.
22. Tumin, M. M., Desegregation: Resistance and Readiness
(Princetown: Princetown University Press, 1958), p. 84.
23. Vann Woodward, C., The Strange Career of Jim Crow (New
York: Oxford University Press, 1957), pp. 171-172.
24. Walter, P. A. F. (Jr.), Race and Culture Relations (New
York: McGraw-Hill Book Company, Inc., First Edition,
1952), pp. 55, 406, 408, 412, 435 and 440.
25. Weyl, N., The Negro in American Civilization (Washington
D.C.: Public Affairs Press, 1960), pp. 289, 290, 307 and 308.
26. Williams, R. M. (Jr.). Vide Suchman, E. A., supra.
27. Williams, R. M. (Jr.}, The Reduction of Intergroup Tensions:
A Survey of Research on Problems of Ethn:ic, Racial and
Religious Group Relations (New York: Social Science
Research Council, Bulletin 57, 1947). pp. 73-74.
28. Williams, R. M. (Jr.) and Ryan. M. \V.,Schoolsin Transition:
Community Experiences in Desegregation (Chapel Hill:
The University of North Carolina Press, 1954), p. 247.
IV. Articles
A. AUTHORS AND TITLES
r. Bickel, A. M., "The Decade of School desegregation",
Colitmbia Law Review, Vol. 64, No. 2 (Feb. 1964), pp. r93-
229, at p. 215.
2. Blumer, H., "Research on Racial Relations: United States
of America", International Social Science Bulletin, Vol. X,
No. 3 (1958), p. 433.
3. Clark, K. B. (Issue Author), "Desegregation: An Appraisal
of the Evidence", The Journal of Social Issues, Vol. IX,
No. 4 (1953), p. 72.452 SOUTH WEST AFRICA
4. Decter, M., "The Negro and The New York Schools",
Commentary, Vol. 38, No. 3 (Sep. 1964), pp. 25-34.
5. Deutsch, :llL,"Sorne Perspectives on Desegregation Re
search", The Role of the Social Sciences in Desegregation:
A Symposium, pp. 4-6, at p. 6.
6. Gregor, A. J., "On the Nature of Prejudice", Eugenics
Review, Vol. LII (Apr. 1960-Jan. 196!), pp. 217-224, at
p. 219.
7. Horne, F. S., "International Housing in the United States",
Phylon, Vol. XIX, No. 1 (Spring 1958), pp. 13-20, at p. 14.
8. Johnson, R.,. "Negro Reactions to Minority Group Status",
in Barron, :llL·(Ed.),American Minorities, 1957, pp. 192-212.
9. Lamberty, M., "\Vat betekent pluralisme?" De Vlaamse
Gids, No. 12 (Dec. 1963), pp. 798-812, at p.Sn.
IO. Lee, F. F., "The Race Relations Pattern by Areas of Be
havior in a Small New England Town", American Socio
logical Review,Vol. 19, No. r (Feb. 1954), pp. 138-143.
II. Purves, D., "The Evolutionary Basis of Race Consciousness",
Mankind Quarterly, Vol. I, No. 1 (July 1960), pp. 51-54, at
54.
B. TITLES
r. "One Plan to end Race Troubles: Pay People to move",
U.S. News and World Report, Vol. LVI, No: 13 (30 Mar.
1964). p. 37.
2. ·•crisis in Race Relations-How will it be met?", U.S. News
and World Report, Vol. LVII, No. 6 (ro Aug. 1964), pp.
26-32.
3. "Looting: The High Cost of Race Violence", U.S. News and
World Report, Vol. LVII, No. II (14 Sep. 1964), pp. 36-41.
V. Newspapers
r. The Star (Johannesburg), 13 Oct. r964.
2. The Times (Late London Edition), 7 Dec. 1962.
3. The Times (Late London Air Edition), 27Aug. 1963.
CHAPTER XII
League of Nations
Mandate for German South-West Africa.
ANNEXA TO VOL. I
I. Union of South Africa
Parliamentary Debates.
House of Assembly (1913), Col. 25r4.
II. United Kingdom
BRITISH BLUE BOOKS
Correspondence relative to assumption of Sovereignty over the
Territory between the Vaal and Orang6 Rivers (London: W.
Clowes and Sons, 1851), p. 82. REJOINDER OF SOUTH AFRICA 453
Further correspondence respecting the Affairs of South Africa
(London: George Edward Eyre and William Spottiswoode,
1881), C-2740, pp. 5 and 90.
.JII.Books
A. AUTHORS AND TITLES
l. Agar-Hamilton, J. A. I., The Native Policy of the Voor
trekkers(Cape Town: Maskew Miller Ltd., 1928), pp. 4and 18.
2. Barrow, J., Travels into the Interior of Southern Africa,
Vol. I (London: T. Cadell and W. Davies, 1806), p. 242.
3. Bryant, A. T., Olden Times in Zululand and Natal (Long
man's Green and Co., 1929), pp. 142-143 and 423.
4. Edwards, J.,Reminiscences of the Early Life and Missionary
Labours (London and Aylesbury: Hazell, Watson and
Viney, Ltd., 1886), p. 79.
5. Harris, W. C., The Wild Sports of Southern A/rica (Cape
Town: C. Struik, 1963), pp. 255-256.
6. Lichtenstein, H., Travels in Soitthern A/rica, translation
from the original German by Anne Plumptre (Cape Town,
Nasionale Pers, Beperk, Printers, 1930), Vol. II, pp. 64 and
242.
7. Long, B. K., In Smuts's Camp (Oxford University Press,
1945), p.!02.
8. Malan, J.H., Die Opkoms van 'n Republiek (Bloemfontein:
Nasionale Pers Bpk., 1929), p. 9.
9. Marais, J. S., The Cape ColouredPeople I652-I937 (Johannes
burg: Witwatersrand University Press, 1957), p. 5.
10. Nathan, M., The Voortrekkers of South Africa (London:
Gordon and Gotch, Ltd., 1937), p. 141.
11. Nathan, M., Paul Kruger His Life and Times (Durban:
The Knox Publishing Comp., 1946), p. 254.
12. Pellissier, S. H., Jean Pierre Pellissier van Bethulie (Pretoria:
J.L. van Schaik, Ltd., 1956), p. 162.
13. Schapera, I., The Khoisan Peoples of South A/rica (London:
Routledge and Kegan Paul Ltd., 1960), pp. 30, 38-41 and 46.
14. Stow, G. W., The Native Races of South Africa (London:
Swan Sonnenschein and Co., Limited, 1910), pp. 5-6, 236,
247, 309-310 and 460-471.
15. Theal, G. M., Basutoland Records, Vol. I (Cape Town:
W. A. Richards & Sons, 1883), pp. 2 and 4-6.
16. Theal, G. M., Basutoland Records, Vol. II (Cape Town:
W. A. Richards & Sons, 1883), p. 79.
17. Theal, G. M., Belangrijke Historische Dokumenten (Kaap
stad: Van de Sandt de Villiers & Co., Beperkt, 1896),
Vol. II, p. 64.
18. Theal, G. M., History of South Africa /rom I846 to r86o
(London: Swan Sonnenschein & Co., Ltd., 1904), pp. 6-7 and
96-97.
19. Theal, G. M., Belangrijke Historische Dokumenten over
Zuid-Afrika, Vol: III (London: William Clowes and Sons,
Ltd., 19n), p. 249.
20. Theal, G. M., Hi'story of South Africa: Vol. I (London:
Swan Sonnenschein &Co., Ltd., 1897), pp. 37 and 68. SOUTH WEST AFRICA
454
21. Theal, G. M., The Beginning of South A/rican History
(Cape Town: T. Maskew Miller, I902), pp. 14-15, 17 and 30.
22. Theal, G. l\L, History of South A/rica /rom I828 to I846
(London: Swan Sonnenschein and Co., Ltd., 1904), pp. 170,
268-269, 276, 281, 293, 316-3r8, 320, 331, 344-345d 363.
23. Theal, G. M., History and Ethnography of A/rica South
of the Zambesi (London: Swan Sonnenschein & Co., Ltd.,
1909), Vol. Il, pp. 126-127, 431-433 and 446.
24. Theal, G. l\I., History of South A/rica /rom I873 to I884
(London: George Allen & Unwin Ltd., 1919), Vol. I (Vol. X
of the Series), p. 52.
25. Theal, G. M., History and Ethnography of A/rica South of
the Zambesi (London: George Allen & Unwin Ltd., 1922),
Vol. III, pp. 192-193 and 281.
26. Thcal, G. M., History of South Africa (London: George
Allen & Unwin Ltd., 1919), Vol. IV (Vol. VIII of the
Serics), p. 197.
27. Theal, G. M., Ethnography and Condition of South A/rica
be/oreA.D. I505 (London: George Allen & Unwin Ltd.,
1922), pp. 47 and 88-89.
28. Theal, G. M.. History of A/rica South of theZambesi (London:
George Allen & Unwin Ltd., 1922), Vol. II (Vol. IIIof the
Serics), p. 156.
29. Theal, G. M., History of South A/rica (London: George
Allen and Unwin Ltd., 1926), Vol. II (Vol. VI of the Series),
pp. 86-9r, 150 and 320.
30. Theal,G. M., History of Africa South of the Zambesi (London:
George Allen & Unwin Ltd., 1927), Vol. I (Vol.II of the
Series), pp. 327-328.
31. Thea!, G. l\L. History of South A/rica (London: George
Allen & Unwin Ltd., 1927), Vol. I (Vol. V of the Series),
pp. 321,331 and 335-336.
32. Thompson, L. 1\1.The Unification of Soitth AfriI902-I9Io
(London: Oxford University Press. 1960), pp. 333-334.
33. Van der l\Ienve, P.J.,Die Noordwaartse Beweging van die
Boere voor die Groot Trek, Il70-z842(Den Haag: W. P.van
Stockum & Zoon, 1937), pp. rr7-126 and 140.
34. Voigt, J. C., Fifty years of the History of the Republic in
South A/rica (London: T. Fisher Unwin, 1899), Vol. I,
pp. 192 and 205.
35. Walker, E. A., The Great Trek (London: A. & C. Black,
Ltd., 1934), pp. 57-58.
36. Walker, E. A., A History of South Africa (London: Long.
mans, Green and Co., 1935) pp. 533-534.
37. Walker, E. A., A History of Southern Africa (London:
Longmans, Green and Co., 1957), pp. 33, 36, 4rg8 and 175.
B. TITLES
The Concise Oxford Dictionary of Current English, edited by
Fowler, H. W. and Fowler, F. G. based on The Oxford
Dictionary, Fourth Edition, revised by E. Mclntosh (Oxford:
Clarendon Press, 1956), p. 648. REJOINDER OF SOUTH AFRICA 455
IV. Articles
AUTHOHS AND TITLES
r. Collins, Col., "Journal of a Tour to the North Eastern Boun
dary, the Orange River, and the Storm l\fountains" in The
Record: or A Serics of Official Papers Relative to the Condition
and Treatment of the Native Tribes of South Africa, Part V,
No. 1 (1808-1819), compiled, translated and edited by Moodie.
D. (A. A. Balkema, Amsterdam/Cape Town, MDCCCCLX),
pp. 9 and 34-
2. Wilson, ill., "The Early History of the Transkei and Ciskei",
AfricanStudies, Vol. 18, No. 4 (1959), pp. 167-179.
V. Theses
I. Huyser, J. D., Die Natitrelle-Polt"tiek van die Suid-Afrikaanse
Repi,bliek, I838-I877 (Unpublished D.Litt. Thesis, University
of Pretoria, 1936), pp. 23, 24, 25-26 and 261.
2. Jordaan, .J.T., Die Ontwikkeling van die Sending van dù Neder
duits GereformeerdeKerk in Transvaal (Unpublished D.D. Thesis,
University of Pretoria, 1962), pp. 98-99.
3. Kotze, D. J., "Die Eerste Amerikaanse Sendelinge onder die
ilfatabeles", Archives Year Book for South African History
(Parow: Cape Times Ltd., 1950), Vol. 1, p. 199.
4- Le Roux, H. J., Die Toestand, Verspreiding en Verbrokkeling
van die Hottentotstamme in Sidd-Afrika, I652-I7I3 (Unpublished
~LA. Thesis, University of Stellenbosch, 1945), pp. 2, and
224-225.
5. Van Rooyen, T. S., "Die Verhouding tussen die Boerc en
Naturelle in die Geskiedenis van die Oos-Transvaal tot 1882",
Archives Year Book for South African History (Parow: Cape
Times Ltd., 1951), Vol. I, pp. 3-4 and 88.
VI. Unpublished Archivai Sources
A. CAPE ARCHIVES DEPOT
Company Records
C. 8: Resolutions, rr.10.1712, "Five thousand .Namaquas mur
der Bushmcn", p. 271.
C.310: Memorials and Reports, 7.5.1776. "Bushmen killed by
Natives and Hottentots", p. 129.
C.626: Day Journal, 31.10.1755. "Small-pox epidemic", pp.
208-209.
C.635: Day Journal, 5.12.1767. "Hottentots die of small-pox",
pp. 638-639 and 657.
C.680: Original Placaatbook, I652-I686, 14.10.1652. "How the
officials must treat the Hottentots", pp. 31-32.
C.680: Original Placaatbook, I652-I682, 24.II.1661. "Waar-
schouwinge van Jan van Riebeeck", p. 174.
C.681: Original Placaatbook, I652-I682, 7.9.1693, p. 182.
Colonial Office
C.O. 373: Letters Received, 24.3.1830. "Griquas exterminate
Bushmen and Bootchuvanas".
Verbatim Copies
V.C. r: Day Journal, 9.1.1653, pp. 362-363.
V.C. 4: Day Journal, 29.1u663, p. 494. SOUTH WEST AFRICA
V.C. 20: Day Journal, 19.5.1713, p. 129.
V.C. 20: Day Journal, 11.6.1713, p. 145.
B. TRANSVAAL ARCHIVES DEPOT
Archives of the State Secretary, Transvaal Republic
B.B. 657/1869: "Letter by M. W. Pretorius to Native Chief
Massouw, 24 July 1869", pp. 1-2.
B.B. 979/69: "Letter by M. W. Pretorjus to ]. Brooks, 19 Octo
ber 1869'',pp. 1-2.
B.B. 981/69: "Letter by M. W. Pretorius to Grutzner, 19
October 1869", pp. 1-2.
B.B. 13ro/69: "Letter by B. C.E. Proes to Landdrost, Bloem
hof,23 November 1869", p. r.
B.B. 1490/74: "Letter by State President to Paramount Chief
Moshette, 27 November 1874", p. r.
First Volksraad
E.V.R. 1: First Volksraad, "Minutes of the Council of Re
presentatives, 4 November 1847", pp. 103-ro+
State Archives
R. 519/53: Volume State Secretary No. 5. "Proclamation signed
by A. W. J. Pretorius on 22 April 1853", pp. 1-2.
VII. Other
Oberholster, J. J ., Streekopname van die Suidoos-Vrijstaat:Eerste
voorlopige verslag (unpublished manuscript}, p. II.
PART III: SECTIONF
I. Republic of South Africa
REPORT OF COMMISSION
R.P. No. 12/1964, Report of Commission of Enquiry into South
West Africa At}airs, I962-I963, pp. 61, Sr, 83, 85, 87, 93,
97, 99, n7-n9 and 259.
II. South West Africa
LEGISLATION
Proclamation
No. 56 of 1951, Natives (Urban Areas) Proclamation, I95I in
The Laws of South West Africa I951, Vol. XXX, pp. 90-170.
Ill. Books
TITLES
The Concise Oxford Dictionary of Current English, edited by
Fowler, H. W. and Fowler, F. G., based on The Oxford Dic
tionary, Fourth Edition, revised by E. Mclntosh (Oxford:
Clarendon Press, 1956}, p. 822.
PART III: SECTIONG
I.League of Nations
A. Minutes of the Permanent Mandates Commission, sess., II, 1922,
p. 50; IV, 1924,p. r84;XII, 1927,p. 181; XV, 1929,p.73; XVIII,
x930, pp. 137 and r38; XX, 1931, p. 25; XXII, 1932, p. 67; REJOINDER OF SOUTH AFRICA
457
XXVI, 1934, pp. 59 and u5; XXVIII,.1935, p. 64; XXXIV,
1938, pp. gr and.125; XXXVI, 1939, p. 38.
B. ÜTHER
Covenant of the League of Nations.
Mandate for German South-West Africa.
II. United Nations
A. GENERAL AssEMBL Y
I. Resolutions
324 (IV), 15 Nov. 1949 in U.N. Doc. A/1251, pp. 39-40.
445 (V), rz Dec. 1950 in G.A., O.R., Fi/th Sess., Suppl. No. 20
(A/1775), p.54. .
743 (VIII), 27 Nov. 1953 in G.A., O.R., Eighth Sess., Suppl.
No. 17 {A/2630), p. 24.
1514 (XV), 14 Dec. 1960 in C.A., O.R., FifteenthSess., Suppl.
No. 16 (A/4684), p. 66.
1698 (XVI), 19 Dec. r96r in C.A., O.R., Sixteenth Sess.,
Suppl. No. 17 {A/5100), p.37.
1850 (XVII), 19 Dec. 1962 in G.A., O.R., Seventeenth Sess.,
Suppl. No. 17 (A/5217), p. 43.
1904 (XVIII), 20 Nov. 1963 in C.A., O.R., Eighteenth Sess.,
Suppl. No. 15 (A/5515), p. 36.
2. Special Committee on the Policies oj Apartheid of the Govern
ment of the Republic of South Africa.
U.N. Doc. A/AC.u5/SR.2r, 21st Meeting, 22 Aug. 1963,
p. IO.
B. TRUSTEESHIP CüUNCIL
r. Reports· of the Committee on Information /rom Non-Selj
GoverningTerritories
C.A., O.R., Eleventh Sess., Suppl. No. 15 (A/3127), pp. 14,
22 and 23.
C.A., O.R., Tenth Sess., Suppl. No. 16 (A/2908), p. 30.
G.A., O.R., Fourteenth Sess., Suppl. No. 15 (A/4rn),
p. 16.
C.A., O.R., Fifteenth Sess., Suppl. No. 15 (A/4371), p. 51.
2. Reports of theCoimcil ·
G.A., O.R., Fi/th Sess., Suppl. No. 4 (A/1306), p. 80.
C.A., O.R., Sixth Sess., Suppl. No. 4 {A/1856), pp. Sr, 97 and
199·
C.A., O.R., Tenth Sess., Suppl. No. 4 (A/2933), pp. ro7,
140 and 142.
G.A., O.R., Eleventh Sess., Suppl. No. 4 (A/3170), pp. 33,
61, n2 and II5. · · :
C.A., 0.R., Twelfth Sess., Suppl. No. 4 (A/3595), pp. 50,
97 and 144.
C.A., 0.R., Thirteenth Sess., Suppl. No. 4 (A/3822), Vol. I,
p.I. .
C.A., O.R., Fourteenth Sess., Suppl. No. 4 (A/4roo), pp. 58
and 86.
C.A., O.R., Fifteenth Sess., Suppl. No. 4 (A/4404), pp. 86 and
145. SOUTH WEST AFRICA
G.A., 0.R., Seventeenth Sess., Suppl. No. 4 (A/5204), p. 27.
G.A., O.R., Eighteenth Sess., Suppl. No. 4 (A/5504), p. 22.
3. Other
U.N. Doc. A/1303/Add.r, 20 Sep. 1950, pp. 16, 17 and r8.
C. EcoNOMIC AND SocIAL CouNCIL
r. Economie Commission for Africa
U.N. Doc. E/CN.r4/r7r, Economie Butleti'n for Africa
(Addis Ababa, Ethiopia, June 1962), Vol. Il, No. 2,
pp. 92-93.
2. Commission on Human Rights
U.N. Doc. E/CN.4/Sub.2/181, 7 Nov. 1956, pp. 24, 56 and
58-59.
D. INTERGOVERNMENTAL AGENCIES REL.HED TO THE UNITED
N.o\TION'S
United Nations Edi,cational, ScientificandCultural Organization
African Languages and English in Education: A Re
port of a Meeting of Experts of the Use in Education
of African Languages in Relation to English, where
English is the Accepted Second Language, Held at
Jos, Nigeria, November 1952 (United Nations Educa
tional, Scientific and Cultural Organization, Education
Clearing House, Educational Studics and Documents,
June, 1953-No. II), p. 42.
Unesco ED/181, Conference of African States on the
Development of Education in Africa, Addis Ababa,
I5-25 May I96I, Final Report, pp. 6 and 36.
Unesco, Basic Facts and Figures r960, International
Statistics relating to Education, Culture and Mass
Communication (Paris: United Nations Educational,
Scientific and Cultural Organization, 1961), pp. 29,
30, 36, 38, 156. 157, 166-167 and 172.
The Use of Vernacular Languages 1n Education: Mono
graphs on Fundamental Education-VIII (Paris:
United Nations Educational, Scientific and Cultural
Organiza'tion, 1953), pp. 47-48, 49, 51, 52, 64-65,
66 and 69.
World Survey of Education-II: Primary Education
(Paris: United Nations Educational, Scientific and
Cultural Organization, 1958), p. 674.
Ill. France
Rapport Annuel Adressépar le Go1wernementFrançais au Conseil de
la Sociétédes Nations. Conformément à !'Article 22 du Pacte sur
l'Administration sous Mandat du Territoire du Togo, pour l'Année
I938 (Paris: Imprimerie Cogery, 1939), pp. I04 and 1n-rr3.
IV. Union of South Africa and Republic of South Africa
A. PARLIAMENTARY DEBATES
r. House of Assembly, Vol. 53 (1945), Col. 5517; Vol. 83 (1953),
Cols. 3575-3590; Vol. IOO (1959), Cols. 3246 and 3264;
Vol. 101 (1959), Cols. 6221 and 6223. REJOINDER OF SOUTH AFRICA 459
2. Senate, Vol. II (1954), Cols. 2595-2622; Vol. III (1955),
Cols. 4528, 4529, 4530 and 4531.
B. Reports presented by the Government of the Union of South
Ajrica to the Council of the League of Nations concerning the
administration ofSouth West Africa
1929: U.G. 23-1930, p. 51.
1930: U.G. 21-r93r, pp. 5r, 55 and 59-62.
1932: U.G. 16-1933, p. 144.
1933: U.G. 27-1934, p. 29.
1934: U.G. 26-1935, p. 41.
I93S: U.G. 25-1936, p. 39·
1936: U.G. 31-1937, p. 38.
C. REPORTS OF COMMISSI0:NS
U.G. 29-1936, Report of the lnterdepartmental Committee on
Native Education I935-I936, pp. 87-88, 89, 92, 93 and ro6.
U.G. 53-r95r, Report of the Commission on Native Education
I949-I95I, pp. 42-43, 12I-122, I28, 129, 130, 131, 132, I34,
146, 172 and 176.
R.P. 22/1963, Report of the Commission of lnquiry into the
Teaching of the Official Languages and the Use of the Mother
Tongue as Medium of Instruction in Transkeian Primary
Schools,pp. 5, 6,II, 14, 15, 16-17, 18 and 19.
R.P. 12/1964, Report of the Commission of Enquiry into South
West A/rica Atfairs r962-I963, pp. 175, 245, 259, z6x and 427.
V. South West Africa
A. REPORTS OF Cm.rMrssION
Unpublished
Report of the Commission of lnquiry into Non-European
Education in South West Africa, Part I, Native Education
(Nov. 1958), pp. 80, Sr and rr5-rr6.
B. LEGISLATION"
Proclamations
No. 55 of 1921, Education Proclamation, I92I in The Laws
of South West Africa r9r5-I922, Vol. I, pp. 632-683.
No. 16 of 1926, Education Proclamation, I926 in The Laws
of South West Africa r926, Vol. V, pp. 132-226.
No. ra of 1934, Education Proclamation Further Amendment
Proclamation, r934 in The Laws of South West Africa r934,
Vol. XIII, pp. 120-122.
VI. United Kingdom
L Report of the Commission on The Civil Services of Kenya, Tan
ganyika, Uganda & Zanzibar r947-48, Colonial No. 223 (London:
His Majesty's Stationery Office, 1948), pp. 27 and n9.
2. Report by His Mafesty's Government in the United Kingdom of
Great Britain and Ireland to the Council of the League of Nations
on the Administration of the Tanganyika Territory for the Year
I938 (London: His Majesty's Stationery Office, 1939), p. n9.
VII. Books and Pamphlets
A. AUTHORS AND TITLES
I. De Kiewiet, C. \V., Academic Freedom: The Second SOUTH WEST AFRICA
T. B. Davie Memorial Lecture delivered in the University
of Cape Town on 26 July 1960 (Cape Town: University
of Cape Town, 1961), p. 18. _ ·
2. De Kiewiet, C. W., The Anatomy of South African Misery
(London: Oxford University Press, 1956), pp. 54-55.
3. Hirschman, A. O., The Strategy..of Econor,iic Development
(New.Haven: Yale University- Press,.1960}. pp. 12 and 13.
+ Lipsky, G. A., Ethiopia: Its People, Its Society, Its Culture
(New Haven: Hraf Press, 1962), pp. 97-98.
5. Westermann, D., The African: To-day and To-morrow
(London: Oxford University Press, 1949), p. 65.
B. TITLES
Education for South Africa: The 1961 Education Panel First
Report (Johannesburg: "Witwatersrand University Press,
1963), pp. xiv, 54-55, 56, 57d 58.
VIII. Articles
AUTHORS AND TITLES
r. Gregor, A. J., "The Law, Social Science, and School Segre
gation: An Assessment": Reprinted from Western Reserve
Law Review, Vol. 14, No. 4, September 1963 (The Press of
Western Reserve University, 1963), pp. 621-636, at pp. 624,
625,626 and 632.
2. Macquarrie, J. W., "The New Order in Bantu Education",
Africa South, Vol. I, No. 1 (Oct.-Dec. 1956), pp. 32-42, at
pp. 40 and 41.
3. Sneesby, G. \V., "The Vemacular in Bantu Education in the
Union of South Africa", Oversea Education, Vol. XXXIII,
No. 2 (July 1961), pp. 75-83, at pp. 75 and 80.
4. Van den Haag, E., "Social Science Testimony in the Desegre
gation Cases-A Reply to Professor Kenneth Clark", Villa
nova Law Revie7fl,Vol. 6 (1960), pp. 69-79, at p. 69.
IX. Newspapers
r. Daily Dispatch (East London), 26 June 1964, p. rr.
2. The Star (Air Edition, Johannesburg), 27 Jan. 1962.
X. Other
Report of the Commonwealth Conference on the Teaching of English
as a Second Language, held at Makerere College, Uganda, r to 13
January 1g6r (Entebbe: Printed on behalf of the Commonwealth
Education Liaison Committee by the Government Printer,
Uganda), p. 23.
PART III: SECTION H
I. League of Nations
Minutes of the Permanent Mandates Commission, sess. -XIV, 1928,
p.II.
II. United Nations
A. GENERAL ASSEMBL y
Committee onSouth West Africa
C.A., 0.R., Twelfth Sess., Suppl. No. 12 (A/3626), p. 16. REJOINDEROFSOUTHAFRICA
C.A., O.R., Fifteenth Sess., Suppl. No. 12 (A/#64), pp. 7-8,
41 and 54.
B. TRUSTEESHIPCouNCIL
Committee on Information /rom Non-Self-Governing Territories
G.A., O.R., Ninth Sess., Suppl. No. 18 (A/2729), pp. 15
and 16.
G.A., O.R., Sixteenth Sess., Suppl. No. 15 (A/4785), p. 53.
C. EcoNoMrc ANDSocrAL CouNCrL
I. Council Document
Ecosoc. O.R., Sixteemh Sess., Suppl. No. 13, Report of the
Ad Hoc Committee on Forced Labour, pp. 72, 75, 76, 77
and 79-80. (This doCUIY!entis also No. 36 in the Studies
and Reports (New Series) of the International Labour
Office.)
U.N. Doc. E/1910/Add.1/Rev.1, ST/ECA/9/Add.1, Review
of Economie Conditions in Africa (1951), p. 74.
U.N. Doc. E/2670, ST/ECA/29, Processes and Problems of
Industrialization in Under-developed Countries (1955),
pp. 18,21, 22 and rr9.
U.N. Doc. E/3137, ST/ECA/57, Structure and Growth of
Selected African Economies (1958), pp. z, 3 and 73-74.
2. Economie Commission for Africa
U.N. Doc. E/CN.14/67, Economie Bulletin for Africa (Addis
Ababa, Ethiopia, Jan. 1961), Vol. I, No. 1, p. 87.
U.N. Doc. E/CN.14/132, Rev. r, Economie and Social
Consequencesof Raàal Discriminatory Practices (1963), p. 38.
U.N. Doc. E/CN .14/171, Economie Bulletin for Africa
(Addis Ababa, Ethiopia, June 1962), Vol. II, No. 2, pp. 7
and 17. ·
3. Social Commission
U.N. Doc. E/CN.5/324/Rev.r, ST/SOA/33, Report on the
World Social Situation (1957), p. 147. ··
U.N. Doc. E/CN.5/346/Rev.r, ST/SOA/42, Report on the
World Social Situation (1961), pp. 25 and 32.
D. INTERGOVERNMENTAA LGENCIES RELATEDTO TH'.EUNITED
NATIONS
l. International Labour Organisation
Afri'can Labour Survey (Geneva: 1958, Studies and Reports,
New Series, No. 48), pp. 15, 61, 130-131, 133 and 138.
Constiïution of the International Labour Organizati'on and
Standing Orders of the International Labour Conference
(Geneva: 1963 Edition), Annex, pp. 21-23.
Employment Objectives in Economie Development {Geneva:
Studies and Reports, New Series, No. 62, 1961), p. iii.
"Foreign Workers in Switzerland", International Labour
Review, Vol. LXXXVII, No. z (Feb. 1963), pp. 133-155,
at p. 133.
International Labour Conference, Thirty-Seventh Session,
1954, Fifth Item on the Agenda: Migrant Workers (Under- SOUTH WEST AFRICA
developed Countries), Report V (1) (Geneva: 1953),
pp. 44-45, 51, 55 and 57-58.
International Labour Conference, Forty-Eighth Session,
1964, Tenth Item on the Agenda: Proposed Declaration
conceming the Policy of "Apartheid" of the Republic of
South Ajrica, Report X (Geneva: 1964), pp. 7, 13 and 15.
International Labour Conventions: Chart of Ratifications,
1 June 1964, The Abolition of Penal Sanctions Con
vention, 1955 {No.ro4).
International Labour Review, Vol. LXXXVIII, No. 2
(Aug. 1963). p. 183.
International Migration I945-I957 (Geneva: Studies and
Reports, New Series, No. 54, 1959), pp. 153 and 154.
"Interracial Wage Structure in Certain Parts of Africa",
International Laboiir Review, Vol. LXXVIII, No. 1
(July 1958), pp. 20-55, at pp. 21, 23, 24,33, 35 ans+
"Inter-Territorial Migrations of Africans South of the
Sahara", International Labour Review, Vol. LXXVI, No. 3
(Sep. 1957), pp.292-3ro, at pp. 306 and 3rn.
"The Productivitv of African Labour", International
Labour Review, LXXII, Nos. 2 and 3 (Aug.-Sep. 1955),
pp. ug-137, at pp. 120 and r21.
Why Labour leaves the Land {Geneva: Studies and Reports,
New Series, No. 59, 196o), pp. 165, 170 and 179.
Yearbook of Labour Statistics I963 (Geneva: Twenty-Third
Issue, 1963), pp. 309-361 and 414-429.
2. lnternationalMonetary Fund
The Economy of Liberia (Prepared by the African Depart
ment and Exchange Restrictions Department, Feb. 1963),
,PP·10 and 11.
III. Commission for Technical Co-operation in Africa South of the Sahara
1. Migrant Labour in Ajrica South of the Sahara (Abidjan: C.C.T.A.
Publication, No. 79, 196!), p. 132.
2. "The Human Factors of Productivity in Africa: A Preliminary
Survey", lnter-Ajrican Labour lnstitute, znd ed. (1960), p. 93.
3. Watson, W., "Migrant Labour in Africa South of the Sahara-2.
Migrant Labour in Detribalization", Inter-Ajrican Labour
Institute Bulletin, Vol. VI, No. 2 (Mar. 1959), pp. 8-33.t p. 30.
4. Elkan, W., "Migrant Labour in Africa South of the Sahara-6.
The Persistence of Migrant Labour", Inter-African Labour
Institute Bulletin, Vol. VI, No. 5 (Sep. 1959), pp. 36-43, at p. 42.
5. "Migrant Labour in Africa South of the Sahara-XIII. Migrants
and Prolctarians", lnter-A/rican Labour Instititle Bulletin,
Vol. IX, No. 1 (Feb. 1962), pp. 58 and 60.
IV. Ethiopia
State Bank of Ethiopia Statistical Office, Money Supply, Cost of
Living and Related Matters (Sep. 1958), pp. 6-7.
V. Union of South Africa and Republic of South Africa
A. Parliamentary Debates
House ofAssembly
Vol. rn4 (1960).Col.2996. REJOINDER OF SOUTH AFRICA
·B. Annual Reports on South West Africa submitted to the Council of
the League of Nations
Reports of the Government of the Union of South Africa on South
West Africa
1926: U.G. 22-1927, p. 22.
C. Reports of Commissions
r. Published
U.G. 36-1949, Report of the Commission of Enquiry into
Riots in Durban, p. 15.
U.G. 53-1951, Report of the Commission on Native Education
I949-I95I. pp. 43 and rn4.
R.P. No. 12/1964, Report of the Commission of Enquiry into
South West Africa Atfairs r962-r963, pp. 29, 37, 39, 41,
69, 71, 81-rn7, ro9, rn, n7, 307-3rr, 315, 333, 335-343,
377, 379, 381, 429, 449-455, 457-459 and 513.
2. Unpublished
Report of the Committee re Foreign Bantu (Interdepartmental
Committee, Apr. 1962), pp. 142 and 164.
D. Legislation
Statutes
Act No. 15 of 19n, Native Labour Regulation Act, r9n in Sta
tutes of the Union of Soiith Africa I9ro-I9II,pp. 528-556.
Act No. 39 of 1930, MotorCarrier Transportation Act, I930 in
Stattttes of the Union of Soit!h Africa r930, pp. 460-482.
Act No. 30 of 1941, Workmen's Compensation Act, r94r in
Statutes of the Union of SouthAfrica r940-r94I, pp. 366-480.
Act No. 27 of 1951, Native Building Workers Act, r95I in
Statutes of the Union of Soitlh Africa r95I, pp. 106-152.
Act No. 48 of 1953, Native Labour (Settlement of Disputes)
Act, r953 in Statutes of the Union of Soidh Africa I953,
pp. 276-326.
Act No. 44 of 1955, Motor Carrier Transportation Amendment
Act, r955 in· Statutes of the Union of South Africa r955,
Part I (Nos. 1-55), pp. 422-466.
Act No. 59 of 1955, Native Labour (Settlement of Disputes)
Amendment Act, r955 in Statutes of the Union of South
A/rica r955, Part II (Nos. 56-70), pp. 1502-1508.
Act No. 60 of 1955, Native Buildin{!. Workers Amendment Act,
r955 in Statutes of the Union of South Africa r955, Part II
(Nos. 56-70), pp. 1508-1510.
Act No. 28 of 1956, lndustrial Conciliation Act, r956 in
Statutes of the Union of South A/rica r956, PartI (Nos. 1-47),
pp. 519-753. .
Act No. 53 of 1957, Native Transport Services Act, r957 in
Statutes of the Union of South Africa r957, Part II (Nos.
45-83), pp. 776-792.
Act No. 54 of 1957, Public Service Act, r957 in Statutes of the
Union of SouthAfricaI957, Part II (Nos. 45-83), pp. 794-859.
Act No. 22 of 1960, Railways and Harbours Service Act, r960
in Statutes of the Union of South Africa r960, pp. 151-213. SOUTH WEST AFRICA
Act No. 7 of 1961, Workmen's Compensat_ionAmendment Act,
r96r in Statu!es of the Republic of South Africr96:r, Part I
(Nos. 1-41), pp. 36-48.
Act No. 64 of 1962, Pneumoconiosis Compensation Act, r962 in
Statutes of the Republic of South AfricaI962, Vol. II (Nos.
59-93), pp. 1023-1183.
E. Other
1. Population Census, 1960: Sample Tabulation; No. 5-
lndustry Divisions, Age Groups, Major Occupation Groups
Bantu (Pretoria: Bureau of Census and Statistics; Govern
ment Prin ter, 1963),pp. 52-55 and 56.
2. Monthly Bttlletin of Statistics (Pretoria: Bureau of Census
and Statistics; Government Printer, 1964). Vol. XLIII,
No. 5, pp. 18, 20 and 26.
VI. South West Africa
A. REPORTS OF Cmn.ussroNs
Unpublished
Report of the Commission of Inquiry into Non-European
Education i'nSouth West Africa, Part I, Native Education
(Nov. 1958).
B. LEGISLATION
1. Ordinances
No. 12 of 1938, Apprenticeship Ordinance, r938 in The Laws
of South West Africa r938, Vol. XVII, pp. 214-234.
No. 15 of 1948, Apprenticeship Amendment Ordinance, r94B
in The Laws of South West Africa I948, Vol. XXVII,
pp. 224-226.
No. 25 of 1954, Natives (Urban Areas) Proclamation, I95I
Fiirther Amendment Ordinance, I954 in The Laws of Smith
West Africa I954, Vol. XXXIII (II), pp. 737-753.
No. 25 of 1957, Apprenticeship Amendment Ordinance, r957
in The Laws of South West Africa I957, Vol. XXXVI,
pp. 252-254.
No. 20 of 1959, Apprenticeship Amendment Ordinance, r959
in The Laws of South West Africa I959, Vol. XXXVIII,
pp. 520-524.
No. 2 of 1962, Social Pensions Amendment Ordinance, r962
in The Laws of South West Africa r962, Vol. XLI, pp. 5-21.
No. 13 of 1963, Municipal Ordinance. r963 in The Laws of
South West Africa, Vol. XLII (1),pp. 138-488.
2. Proclamations
No. 34 of 1920, Master and Servants Proclamation in The
Laws of South West Africa 1915-1922, Vol. I, pp. 336-366.
No. 27 of 1929, Ovamboland A[fairs Proclamation, I929 in
The Laws of South West A/rica r929, Vol. VIII, pp.
258-264.
No. 32 of 1937, Okavango Native Territory A[fairs Proclama
tion, r937 in The Laws of South West Africa I937, Vol.
XVI, pp. 306-312.
No. 56 of 1951, Natives (Urban Areas) Proclamation, I95I REJOINDER OF SOUTH AFRICA
in The Laws of South West Africa r95r, Vol. XXX,
pp. 90-170.
·3. Government Notices
No. 193 of 1952 in The Laws of South West Africa r952,
Vol. XXXI, pp. 850-852.
No. 33 of 1956 in The Laws of South West Africa.r956, Vol.
XXXV (II), pp. 499-723.
·vrr.United States of America
I. "Basic data on the Economy of Liberia", World Trade Informa
tion Service-Economie Reports (Washington: U.S. Government
Printing Office, Department of Commerce), Part I, No. 59-57,
pp. II-12. .
2. "Establishing a Business in Ethiopia", World Trade Information
Service-Economie Reports (Washington: U.S. Government
Printing Office, Department of Commerce), Part 1,No. 59-16,
pp. 6and 7.
3. Labor in Liberia (United States Department of Labor, Bureau
of Labor Statistics: Foreign Labor Information, May 1960),
pp. 6, 9,rnand II-I6.
4. U.S. Army Area Handbook for Ethiopia (Washington: U.S.
Govemment Printing Office, Department of the Army), 2nd
edition, Pamphlet No. 550-28 (June r964), p.225.
5. 86th Congress, 2nd Session-Serrate, Senate Committee on
Labor and Public Wclfare, Sub-Committee on Migratory Labor,
The Migrant Farm Worker in America {Printed for the use of the
Committee on Labor and Public Welfare-Committee Print,
1961), p. IO.
6. 88th Congress, rst Session-Serrate, A Report on United States
Foreign Operations in Africa by Honorable Allen J. Ellender,
United States Senator from the State of Louisiana (Washington:
U.S. Government Printing Office-Committee Print, r963),
pp. 13 and rzr.
VIII. Books and Pamphlets
A. AUTHORS AND TITLES
r. Anderson, R. E., Liberia: America's African Friend (Chape!
Hill: The University of North Carolina Press, 1952). p. 136.
2. Batten, T. R., Problems of African Development, 2 Parts
(London: Oxford University Press, 1954), Part I, Land and
Labour, p. 23.
3. Bauer, P. T. and Yamey, B. S., The Economies of Under
developed Countries (Cambridge: University Press, Digswell
Place, James Nisbet & Co. Ltd., 1960), p. 46.
4. Buchanan, N. S. and Ellis, H. S., Approaches to Economie
Development (New York: The Twentieth Century Fund,
1958), p. 407.
5. Carey Jones, N. S., The Pattern of a Dependent Economy,
The National Income of British Honduras {Cambridge
University Press, 1953), p.121.
6. Carter, G. M. (Ed.), African One Party States (New York:
Comell University Press, 1962), p. 378. SOUTH WEST AFRICA
7. Clark, C., Growthmanship (Published for the Institute oi
Economie Affairs by Barrie and Rockliff, 196!), p. 51.
8. De Kiewiet, C. W., The Anatomy of South African Misery
(London: Oxford University Press, 1956), pp. 49 and 54-55.
9. Enke, S., Economies for Development (Prentice Hall, Inc.:
Englewood Cliffs, N.J., 1963), p. 441.
10. Fagan, H. A., Our Responsibility: A Discussion of South
Africa's Racial Problems (Stellenbosch: Die Universiteits
Uitgewers en -Boekhandelaars Edms. Bpk., 1960), pp. 75-76.
II. Frankel, S. H., The Economie Impact on Under-deve!oped
Societies (Oxford: Basil Blackwell, 1953), p. 76.
12. Lord Hailey, An African Survey: Revised 1956 (London:
Oxford University Press, 1957), pp. 764, 1314, 1379, 1380,
1381 and 1387.
13. Hance, W. A., African Economie Deve!opment (New York:
Harper & Brothers, 1958), p. 238.
14. Hempstone, S., The New Africa (London: Faber and Faber,
1961), p. 457.
15. Hirschman, A. O., The Strategy of Economie Deve!opment
(New Haven: Yale University Press, 196o), pp. 183-184.
16. Hunter, G., The New Societies of Tropical Africa (London:
Oxford University Press, 1962), pp. 201 and 202.
17. Jesman, C., The Ethiopian Paradox (London: Oxford
University Press, 1963), p.+
18. Kimble, G. H. T., Tropical Africa, 2 Vols. (New York:
The Twentieth Century Fund, 1960), Vol. I, Land and
Livelihood,p. 600.
19. Lipsky, G. A., Ethiopia: Its People, Its Society, Its Culture
(New Haven: Hraf Press, 1962), pp. 270, 272-274 and 280.
20. Little, I. M. D., Aid to Africa [An Appraisal of U.K. Policy
for Aïd to Africa south of the Sahara] (Oxford: Pergamon
Press, 1964), p.-
21. Luther, E. W., Ethiopia Today (Stanford: Stanford Univer
sity Press, 1958), p. rr8.
22. Millikan, M. F. and Blackmer, D. L. M. (Eds.), The Emerg
ing Nations: Their Growth and United States Policy (Boston:
Little, Brown and Company. 1961), pp. 23, 98 and 142.
23. Smith, P. (Ed.), Africa in Transition (London: Staples
Printers Limited, 1958), p. 39.
24. Simpson, C. L., The Symbol of Liberia [The Memoirs of
C. L. Simpson, former Liberian Ambassador to Washington
and to the Court of St. James's] (London: The Diplomatie
Press and Publishing Company, 1961). p. 247.
25. Taylor, W. C., The Firestone Operations in Liberia [Fifth
Case Studv in an N.P.A. Series on United States Business
Performance Abroad] (Washington: National Planning
Association, 1956), pp. 35-36, 67and 68.
B. TrTLES
I. The Economie Development of Kenya, Report of a Mission
Organized by the International Bank for Reconstruction and
Development at the Request of the Govemments of Kenya
and the United Kingdom (Baltimore: The Johns Hopkins REJOINDER OF SOUTH AFRICA
Press, for The International Bank for Reconstruction and
Development, 1963), pp. 37 and 47.
2. The Economie Devdopment of Tanganyika, Report of a
Mission organized by the International Bank for Recon
struction and Development at the request of the Govern
ments of Tanganyika and the United Kingdom (Baltimore:
The Johns Hopkins Press, for The International Bank for
Reconstruction and Development, 1961), p. 347.
3. Economie Development of Uganda, Report of a Mission
Organized by the International Bank for Reconstruction
and Development at the Request of the Government of
Uganda (Baltimore: The Johns Hopkins Press, for the
International Bank for Reconstruction and Development,
1962), pp. 23-24 and 38.
4. Local Authoriïies and The State, Opening Speech delivered
by the Hon. Dr. H.F. Verwoerd, Minister of Native Affairs,
at the Fifth Annual Congress of the Administrators of
Non-European Affairs in Southern Africa on 17 September
1956 (Pretoria: The Government Printer, 1957), pp. 10-12.
5. The Shorter Oxford English Dictionary on Historical Princi
ples, Third Edition revised with Addenda, rev. and ed. by
C.T. Onions (Oxford: The Clarendon Press, 1959), p. 2243.
6. A Survey of Race Relations in South Africa I96r, compiled
by Muriel Horrell (Johannesburg: South African Institute
Of Race Relations, 1962), p. 219.
IX. Articles
A. AuTHoRs AND TrrLEs
r. Allen, V. L., "Trade Unionism in East Africa", Free Labour
World, No. 143 (May 1962), pp. 164-166, at p. 165.
2. Banghart, M. D., "South Africa Offers Great Opportunities",
Bantu, Vol. IX, No. 4 (Apr. 1962), pp. 225-230, at p. 227.
3. Barber, W. J., "Economie Rationality and Behavior Patterns
in an Underdeveloped Area: A Case Study of African
Economie Behavior in the Rhodesias", Economie Develop
ment and Cultural Change, Vol. VIII, No. 3 (Apr. 1960),
pp. 237-251, at p. 251.
4. Black, E. R., "How the World Bank is helping to develop
Africa", optima, Vol. VIII, No. 3 (Sep. 1958), pp. ro5-n2,
at p. 107.
5. d'Archimbaud, D., "L'Afrique du Sud devant l'Opinion",
La Revue Française, No. 139 (Apr. 1962), pp. 15-19 a1 p. 19.
6. Eiselen, W. W. M., "Harmonius multi-community develop
ment", Optima, Vol. 9, No. I (Mar. 1959), pp. r-15, at
pp. 8and IO.
7. Elkan, W., "Migrant Labour in Africa South of the Sahara
~6. The Persistence of Migrant Labour", Inter-African
Labour Institute Bulletin, Vol. VI, No. 5 (Sep. 1959), pp.
36-43, at p. 42.
8. Logan, R.F., A Study of Conditions inS.W.A. Relating to the
lndigenous Peoples (1962), pp. 12 and 22. (Unpublished.)
9. Louw, M. S. and Sadie, J. L., "The Dynamics of Separate
Development", South Africa, The Road Ahead, Spottiswoode, SOUTH WEST AFRICA
H. (Ed.) (Cape Town: Howard Timmins, Nov. 1960),
pp. 95-ro7, atpp. roo-102.
IO. Oblath, A., "International Migrations in Africa South of the
Sahara", Migration News, I2th Year, No. 6 (Nov./Dec.
1963), pp. 5-10, at pp. 8 and 9.
II. Randall, C., "South Africa needs Time", The Reader's
Digest, Vol. 83 (Oct. 1963), pp. 45-49, at p. 47.
12. Ropke, W., "Südafrika. Versuch einer Würdigung", Schwei
zer Monatshefte, No. 2, 44th Year (May 1964), pp. 97-n2,
at pp. 101 and 108.
13. Schneiter, E., "Foreign Labour in Switzerland", EFT A
Bulletin (Dec. 1963), pp. 8-12, ap. 8.
14. Salomon, M. D., "Education in Liberia", Science Education,
Vol. 43, No. 3 (Apr. 1959), pp. 221-227, at p. 222.
15. Steenkamp, W. F. ]., "Bantu Wages in South Africa",
The South African Journq,l of Economies, Vol. 30, No. 2
"(June 1962), pp. 93-n8, at pp. 96 and 100.
16. Stent, G. E., "Migrancy and Urbanization in the Union of
South Africa", Africa, Vol. XVIII, No. 3 (July 1948),
pp. 161-183, at p. 183. .
17. Van der Merwe, P. J., "Die Bantoe-Arbeidsmag in die
Republiek van Suid-Afrika", Bantu, Vol. I_X,No. 4 (Apr.
1962), pp. 2I0-2l8, at pp. 215-216. .
18. Watson, W., "Migrant Labour in Africa South of the Sahara
-2. Migrant Labour in Detribalization", Inter-African
Labour Institute Bulletin, Vol. VI, No. 2 (Mar. 1959), pp.
8-33, at p. 30.
B. TITLES
"In a Nut Shell", Bantu, Vol. VII, No. 8 (Aug. 1960), p. 482.
.X. Newspapers
I.Cape Argus, 12 Sep. 1958.
2. DagbreekenSondagnuus, 20 Sep. 1964.
3. Financial Mail, 13 Dec. 1963, Vol. X, No. 15, p. 887.
4. TheCerman Tribune (Third Year, No. 131), 3 Oct. 1964.
5. _TheNatal Mercury, 20 Aug. 1964.
6. Sunday Express, 15 Nov. rg64-
7. Die Transvaler, 28 Aug. 1961.
8. The Windhoek Advertiser, 5 July 1960.
PART III: SECTION I
I. League of Nations .
Minutes of the Permanent Mandates Commission, sess., III, 1923,
pp. rn5,'rn6 and 293; IV, 1924, pp. 62, 63, 64 and 154..
II. United Nations
A. GENERAL AssEMBLY
·CommitteeonSouth West Africa
C.A., 0.R., Ninth Sess., Suppl. No. 14 (À/2666), p. ·25.
C.A., O.R., Thirleenth Sess., Suppl. No. 12 (A/3906), pp. 22
and 23. REJOINDER OF SOUTH AFRICA
B. EcoNOMic AND SocIAL CouNCIL
I. Social Commission
U.N. Doc. E/CN.5/332, ST/SOA/39, International Survey
of Programmes of Social Development (1959), p. 170.
2. C ouncil Document
Ecosoc., 0.R., Sixteenth Sess., Suppl. No. 13, Report of
the Ad Hoc Committee on Forced Labour, pp. 140-143.
(This document is also No. 36 in the Studies and·Reports
(New Series) of the International Labour Office.)
III. Union of South Africa and Republic of South Africa
A. REPORTS OF COMMISSIONS
R.P. No. 12/1964, Report of Commission of Enquiry into South
West Africa Affairs I962-I963, pp. 79, 93, 95, 105, 109,
no and III.
B. LEGISLATION
Statutes
Act No. 67 of 1952, Natives (Abolition of Passes and Co
ordi'nationof Documents) Act, I952 in Statutes of the Union
of South Africa I952, pp. 10r3-103r.
IV. South West Africa
A. REPORTS OF COMMISSIONS
Report of the Native Reserves Commission (S.W.A.), 8 June
1921, p. 17 (unpublished).
B. LEGISLATION
I. Proclamations
No. 25 of 1920, Vagrancy Proclamation, I920 in .The Laws
of South West Africa I9I5-I922, Vol. I, pp. 280-286.
No. II of 1922, Native Administration Proclamation, I922
in The Laws of South West Africa I9I5-I922, Vol. I,
pp. 749-754.
No. 24 of 1935, ·Native Administration Amendment Procla
mation, I935 in The Laws of Soitth West Africa I9J5,
Vol. XIV, p. 140.
No. 56 of 1951, Natives (Urban Areas) Proclamation, I95I
in The Laws of South West Africa I95I, Vol. XXX, pp.
90-170.
2. Government Notices
No. 68 of 1924 in The Laws of South West Africa I924,
Vol. III, pp. 57-63.
No. 121 of 1952 in The Laws of South West Africa I952,
Vol. XXXI, pp. 834-836.
No. 65 of 1955 in The Laws of South West Africa r955,
Vol. XXXIV, pp. 750-788.
V. Books
A. AUTHORS AND TITLES
Lord Hailey, An African Survey: Revised 1956 (London:
Oxford University Press, 1957), pp. 764 and 1387. SOUTH WEST AFRICA
470
B. T!TLES
International Commission of Jurists, South A/rica and the Rule
of Law (Geneva, 1960), p. 31.
PART IV
1. League of Nations
A. Minides of the Permanent Mandates Commission, sess. III, 1923,
p. 196; IV, 1924, p. 68; VI, 1925, p. 9; IX, 1926, p. 147; XIV,
1928, pp. 127 and 149; XV, 1929, pp. no and 121; XVIII, 1930,
pp. 34 and 147-148; XIX, 1930, p. 27; XXII, 1932, pp. 133, 142
and 247; XXIV, 1933, p. 84; XXVII, 1935, p. 170; XXXI,
1937, p. 135; XXXV, 1938, p.6r.
B. ÜTHER
r. Covenant of the League of Nations.
2. British Mandate for East Africa (Tanganyika Territory).
3. Mandate for Palestine.
4. Mandate for Syria and the Lebanon.
Il. United Nations
GENERAL ASSEMBL Y
r.Resolutions
1702 (XVI), 19 December 1961 in G.A., O.R., Sixteenth
Sess., Suppl. No. 17 (A/5roo), pp. 39-40.
1703 (XVI), 19 December 1961 in G.A., O.R., Sixteenth
Sess., Suppl. No. 17 (A/5roo), pp. 40-41.
1805 (XVII), 14 December, 1962 in G.A., O.R., Seventeenth
Sess., Suppl. No. 17 (A/5217), pp. 38-39.
2. Plenary Meetings
G.A., 0.R., Sixteenth Sess., 1083rd Plenary Meeting, p. no6.
3. Fourth Committee Meetings
G.A., O.R., Sixteenth Sess., Fourth Comm., 1247th Meeting,
p.588; 1248th Meeting, p.591.
4. Committee on South West A/rica
G.A., O.R., F<mrteenthSess.,Suppl. No. 12 (A/4191), p. 12.
III. Books
AUTHORS AND TITLES
r. Baker, R. S., Woodrow Wilson and World Settlement, 3 Vols.
(London: William Heinemann Ltd., 1923), Vol. I, p. 429. .
2. Hall, H. D.. Mandates, Dependencies and Trusteeship (London:
Stevens and Sons, 1948), pp. 67, 71, 260 and 267-269.
3. Wright, Q., Mandates under the League of Nations (Chicago:
University of Chicago Press, 1930), p. 472.
PART V
I. League of Nations
A. Official] ournal, 1920 (No. 6), p. 337.
B. Mimites of the Permanent Mandates Commission, sess. II, 1922, REJOI:-;"I)ER OF SOUTH AFRICA
47 1
p. 86; III, 1923, pp. 22 and 222-223; V, 1924, p. 190; VII, 1925,
pp. 52-61; IX, 1926, p. 34; X, 1926, p. 22; XI, 1927, pp. 204 and
205; XXVI, 1934, pp. 50-51, 163, 164, 165 and 166; XXXVI,
1939, p. 281.
C. ÜTHER
Mandate for German South-West Africa.
II. United Nations
GENERAL ASSEMBLY
C ommittee on 5outh West Africa
C.A., O.R., EleventhSess., Suppl. No. 12 (A/3151), p. 11.
III. Union of South Africa and Republic of South Africa
A. REPORTS OF COMMISSIOXS
R.P. No. 12/1964, Report of the Commission of Enquiry into
South West Africa Aff airs r962-z963, pp. 57 and 61.
B. LEGISLATION
I. Statutes
Act No. 49 of 1919, Treaty of Peace and South West Africa
Mandate Act, I9I9 in The Laws of South West Africa
r9r5-r922, Vol. I, pp. ro-12.
Act No. 23 of 1949, South-West Africa Affairs Amendment
Act, I949 in Statutes of the Union of South Africa z949,
pp. 178-196.
Act No. 44 of 1949, South African Citizenship Act, r949 in
Statutes of the Union of South AfricaI949, pp. 414-452.
Act No. 56 of 1954, South West Africa Native Atfairs Ad
ministration Act, I954 in Statutes of the Union of South
Africa 1954, pp. 559-565.
2. Proclamations
No. 147 of 1939, Eastern Caprivi Zipjel Administration
Proclamation, 1939 in The Laws of South West Africa r939,
Vol. XVIII, pp. 28-30.
IV. Books
AUTHOR AND TITLE
r. Black, H. C., Black's Law Dictionary (St. Paul, Minn.: West
Publishing Co., 1951), p. 1568.
2. Wright, Q., Mandates under the League of Nations (Chicago:
University of Chicago Press, 1930), pp. 206-207.
V. Articles
AUTIIOR AND TrTLE
Evans, L.H., "The General Principles governing the Termination
of a i\Iandate", The American Journal of International Law,
Vol. 26, No. 4 (Oct. 1932), pp. 735-758, at pp. 739 and 749. TABLE OF CASES ClTED
1. PERMANENT COURT OF INTERNATIONAL JUSTICE
I. Mavrommatis Palestine Concessions, Judgment No. 2, I924,
P.C.!.]., Series A, No. 2,at pp. 17-r9.
2. Customs RégimebetweenGermany and Austria, Advisory Opinion,
I9JI, P.C.I.]., Series A/B, p. 37, at pp. 43 and 49-52.
3. Minority Schools in Albania, Advisory Opinion, I9J5, P.C.I.J.,
Series A/B, No. 64, pp. 17 and r9.
4. Diversion of Water /rom the Meuse, Judgment, I937, P.C.!.].,
Series A/B, No. 70.
JI, INTERNATIONAL COURT OF JUSTICE
I. International Status of South West Africa, Advisory Opinion,
I.C.]. Reports I950, p. 128, at pp. 133 and 165.
2. International Status of South West Africa, Pleadings, Oral
Argmnents, Documents, pp. 276-277.
3. Asylum, ]udgment, I.C.j. Reports I950, p. 266, at p. 320.
4. Fisheries, ]udgment, I.C.J. Reports I95I, p. n6, at p. 131.
5. Rights of Nationals of the United States of America in Morocco,
Judgment, I.C.j. Reports I952, p.176, at p. 189.
6. Minquiers and Ecrehos, ]udgment, I.C.J. Reports I953, p. 47, at
p. 91.
7. Certain Norwegian Loans, ]udgment, I.C.]. Reports I957, p. 9,
at p. 54.
8. Right of Passage over Indian Territory, Merits, Judgment, I.C.J.
Reports I960, p. 6, atp. 37.
9. Temple of Preah Vihear, Merits, Judgment, I.C.j. Reports I962,
p. 6, at pp. 40, 63-64 and 143.
IO. Certain Expenses of the United Nations (Article I7, paragraph 2,
of the Charter), Advisory Opinion. I.C.J. Reports I962, p. 151,
at pp. 159, 182, 184-185, 186-187 and 191.
11. South West Africa, Preliminary Objections, Judgment, I.C.].
Re.portsr962, p. 319, at pp. 329, 333, 338, 345, 468, 472, 528-529
and 555.
12. Northern Cameroons, Judgment, I.C.J. Reports r963, p. 15, at
pp. 38, 76-91, nr-II7, n9-127, 142-149, 152 and 157-162.
13. Barcelona Traction, Light and Power Company, Limited, Pre
liminary Objections, Judgment, l.C.J. Reports I964, p. 6, at pp.
37, 38-39, 65, 94-95, 96, 140 and 144-145.
III. AusTRALIA
Arthur Y ates and CotrtPany Proprietary Limited v. The Vegetable
SeedsCommittee andOthers, 1945-1946, 72 C.L.R. p. 37, at pp. 67-68, REJOINDER OF SOUTH AFRICA 473
IV. PALESTINE
Attorney-General v. Abraham Altschuler as quoted in McNair, A. D.
and Lauterpacht, H. (Eds.), Annual Digest of Public International
Law Cases, I927-I928 (1931), pp. 55-56.
V. UNION OF SOUTH AFRICA
r. Rex v. Christian, 1924 A.D. p.IOl etseq.
2. Van Ryn Wine and Spirit Co. v. Chandos Bar, 1928, T.P.D.
p. 417, at pp. 423-42+
3. Rex v. Magosane and Others, 1937 Griqualand West Local
Division, pp. 47ff.
+ Rex v. Blom, 1939 A.D. p. 188, at pp. 202-203.
5. Winter v. Minister of Dejence and Others, 1940 A.D. p. 194,
at pp. 197-198.
6. Du Plessis v. Minister of Justice, 1950 (3)S.A. pp. 579 ff.
7. Rex v. Ramakan, 1959 South African Law Reports, Part 4,
pp. 642 ff.
VI. UNITED KINGDOM
1. General Assembly of Free Church of Scotland and Others v. Lord
Overtoun and Others, 1904 A.C. p. 515, at p. 695.
2. Rex v. Brighton Corporation: Ex parte Shoosmith, 1907, Vol.
XCVI, L.T.R. p. 762, at p. 763.
3. Jerusalem-J atfa District Governor and Another v. Suleiman
Murra and Others, 1926 A.C. p. 321, at pp. 327 and 328.
VII. UNITED STATES OF AMERICA
Brown v. Board of Editcation of Topeka, 347 U.S. 493, in United
States Supreme Court Reports, Lawycrs' Edition, Book 98
(1954), pp. 880 ff.
Parts III-VI