Books V-VII | INTERNATIONAL COURT OF JUSTICE

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9273

Parent Document Number

9275

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9273.pdf

INTERNATIONAL COURT OF JUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

SOUTH WEST AFRICA CASES
(ETHIOPIv.SOUTH AFRICA;

LIBERIA v. SOUTH AFRIC~)

VOLUME III

1966

COUR INTERNATIONALE DE JUSTICE

MÉMOIRES, PLAIDOIRIES ET DOCUMENTS

AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIc.AFRIQUE DU SUD;

LIBÉRIAcAFRIQUE DU SUD)

VOLUME IIICounter-Memorial filed by the Government of the Republic of South Africa

LIST OF ABBREVIATIONS

A.D. Appellate Division of the Supreme Court
of South Africa
A.F.P. Agence France Presse
A.J.I.L. The American Journal of International
Law
A.M.I.C.E. Associate Member of the Institute of Civil
Engineers
A.P.S.R. The American Political Science Review
Bib. Un. Bibliothèque universelle et Revue de
Genève
B.Y.B.I.L. The British Year Book of International
Law
C. Blue Books: United Kingdom
The Cambridge Law Journal
C.L.R. Commonwealth (Australia) Law Reports

oc.. cubic
Degrees Centigrade
ft. feet
G.A. General Assembly
G.N. Government Notice
Grotius Soc. Transactions of the Grotius Society
Ha. Hectare(s)
H.M.S.O. Her/His Majesty's Stationery Office
I.L.A., Rep. International Law Association, Reports
I.L.O. International Labour Organisation
in. inches
K.B. King's Bench Division (England)
km. kilometre(s)
L. of N., Assembly, Rec. League of Nations, Assembly, Records
L. of N., Council,Min. League of Nations, Council, Minutes
L. of N. Doc. League of Nations Document
L. of N., 0.J. League of Nations, Official Journal
L. of N., 0.J., Spec. Sup. League of Nations, Official Journal,
Special Supplement
m. metre(s)
Mk. Mark (unit of currency)
mm.· millimetres
Archive of the Secretary ofNativeAffairs,
N.A.
Cape Colony ·
N.L.R. Natal Law Reports
O.R. Official Records
Ord. Ordinance
P.M.C., Min. Permanent Mandates Commission,
Minutes
Proc. Proclamation
Quellen Quellen zur Geschichte von Südwestafrika
R. Rand (unit of curency)R.D.L Revue de droit international et de légis.
Jation comparée
R. of S.A., ParL Deb., Republic of South Africa, Parliamentary
House of Assembly Debates, House of Assernbly
S.A. South Africa
S.A.L.J. The South African Law Journal
S.A.L.R. South African Law Reports
s.c. Security Council
sq. square
S.R. & O. Statutory Rules and Orders and Statu
tory Instruments
S.W.A. South West Africa
S.W.A. High Court of South West Africa (only in
Table of Cases Cited)
S.W.A.N,L.A. South West Africa Native Labour Asso
ciation
T.C. Trusteeship Council
T.P.D. Transvaal Provincial Division of the Su
preme Court of South Africa
U.N. United Nations
U.N.C.I.O. Untional Organizationence on Interna-
U.N. Doc. United Nations Document
U.N.P.C. United Nations Preparatory Commission
U. ofS.A., Par1. Deb., Union of South Africa, Parliarnentary
House of Assembly Debates, House of Assembly
U. of S.A., Pari. Deb., Union of South Africa, Parliamentary
House of Assembly/Senate Debates, House of Assembly/Senate
U. of S.A., Pari. Deb., Union of South Africa, Parliamentary
Senate Debates, SenateAli rights reserved by the
Internatiornµ Court of Justice

Tous droits réservés par la
Cour internationale de Justice Abbreviated reference:

I.C.]. Pleadings, South West Africa,
Vol. III

Référenceabrégée:
C.I.J. Mémoires,Sud-Ouest africain,
vol.III

SalesnllDlber
No de vente: 305 SOUTH WEST AFRICA CASES

(ETHIOPIA v. SOUTH AFRICA;
LIBERIA v.SOUTH AFRICA)

AFFAIRES DU SUD-OUEST AFRICAIN

(ÉTHIOPIE c.AFRIQUE Dû SUD;
LIBÉRIA c. AFRIQUE DU SUD) INTERNATIONAL COURT OF JUSTICE

PLEADINGS, ORAL ARGUMENTS, DOCUMENTS

SOUTH WEST AFRICA CASES

(ETHIOPIAvSOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)

VOLUME III

1966

COUR INTERNATIONALE DEJUSTICE

MÉMOIRES, PLAIDOIRIES ET DOCUMENTS

AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIEcAFRIQUE DU SUD;

LIBÉRIA c. AFRIQUE DU SUD)

VOLUME IIIPRINTED IN THE NETHERLANDS The present volume contains Books V to VII of the Counter
Memorial relating to the South West Africa cases. The proceedings
in these cases, which were entered on the Court's General List on
4 November 1960 under numbers 46 and 47, were joined by an
Ortler of the Court of 20 May 1961 (South West Africa, Order of
20 May 1961, l.C.]. Reports 1961, p. 13). Two Judgments have
been rendered, the first on 21 December 1962 (South West Africa,

Preliminary Objections,Judgment, I.C.]. Reports 1962, p. 319), and
the second on 18 July 1966 (South West Africa, Second Phase,
Judgment, l.C.]. Reports 1966, p. 6).
The page references originally appearing in the pleadings have
been altered to correspond with the pagination of the present
edition. Where the reference is to another volume of the present
edition, the volume is indicated by a roman numeral in bold type.

The Hague, 1966.

Le présent volume reproduit les livres V-VII du contre-mé
moire déposédans les affaires du Sud-Ouest africain. Ces affaires
ont étéinscrites au rôle généralde la Cour sous les n 0846 et 47 le
4 novembre 1960 et les deux instances ont étéjointes par ordon
nance de la Cour le 20 mai 1961 (Sud-Ouestafricain, ordonnancedi<
20 mai z96I, C.I.J. Recueil z96z, p. 13). Elles ont fait l'objet de
deux arrêtsrendus le 21 décembre 1962 (Sud-Ouest africain, excep
tions préliminaires,arrêt,C.I.]. Recueil 1962, p. 319) et le 18 juil
let 1966 (Sud-Ouest africain, deuxième phase, arrêt,C.l.]. Recueil

1966, 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 numérode ce volume.

La Haye, 1966. IX

CONTENTS - TABLE DES MATIÈRES

PART I. APPLICATIONS INSTITUTING PROCEEDINGS

AND PLEADJNGS

PREMIÈRE PARTIE. REQU:ËTES INTRODUCTIVES
D'INSTANCE ET MÉMOIRES

SECTION B. PLEADINGS (continued)
SECTION B. MÉMOIRES (sui~)

5. CountM-Memorial filedby the Govemment of the

Republic of South Africa (continued)

BOOK V

Page
Section A. Introductory . . . . . . . . . . . . . . . . . . . 1
Section B. Well-being, social progress and development in agricul-
ture . . . . . . . . . . . . . . . . . . . . . . . . 2

Chapter I. Introductory. . . . . . . . . . . . . . . . 2
Chapter II. Agriculture in the areas outside the police zone . 4
Chapter III. Agriculture in the police zon. . . . . . . . 10

Conclusion. . . . . . . . . . . . . . . . . . . . . . 19
Chapter IV. Respondent's reply to Applicants' allegations
(Memorials) . . . . . . . . . . . 22
Paragraph 16 of Chapter V . . . . 22
Paragraph 17 of Chapter V . . . . 23
Paragraph 18 of Chapter V . . . . 24
Paragraphs 19 and 28 of Chapter V. 24
Paragraph 20 of Chapter V . . . . 25
Paragraph 21 of Chapter V . . . . 25
Paragraph 22 of Chapter V . . . . 26
Paragraphs 23 and 24 of Chapter V . 28

Paragraph 25 of Chapter V . . . . 30
Paragraph 26 of Chapter V . . . 31
Paragraph 27 of Chapter V . . . 32
Paragraphs 29 to 32 of Chapter V 33
Paragraph 33 of Chapter V . . . 38
Chapter V. Conclusion. . . . . . . 39
SectionC. Well-being, social progress and development in industr40
Chapter I. Introduction . . . . . . . . . . . . . . . . . . 40 SOUTH WEST AFRICA
X
Page
Chapter II. The fishing industry. . . . . . . . . . . . . 42

Generai. . . . . . . . . . . . . . . . . . . . . . . 42
The fishing industry in South West Africa.. . . . . . . 42
Respondent's reply to Applicants' allegations (Memorials) . 44
Paragraphs 34 and 35 of Chapter V. 44
Paragraph 36 of Chapter V . . . . 45
Paragraph 77 of Chapter V . 46

Chapter III. Mining and minerais. 47
Introductory. . . . . . . . . 47
Mining in general. . . . . . . . . . . 48
Mining legislation in South West Africa . 49
Permission to prospect . . 50
Within the Police Zone . . . . . . . 50
Outside the Police Zone. . . . . . . 51

Provisions governing prospecting . . . . . . . . . . . . . 51
Special provisions regarding prospecting for and mining of
certain minerals . . . . . . . . . . . . . . . 54
Diamonds . . . . . . . . . . . . . . . . . . 54
Minerais used in the production of atornic energy 54
Employment within mining enterprises . . . . . . . . 55
Respondent's reply to Applicants allegations (Memorials) 57

Paragraph 37 of Chapter V 57
Paragraph 38 of Chapter V 57
Paragraph 39 of Chapter V 58
Paragraph 40 of Chapter V 59
Paragraph 41 of Chapter.V 59
Paragraph 42 of Chapter V . . . . 60
Paragraphs 43 and 44 of Chapter V. 60
Paragraph 45 of Chapter V . . . . 61
Paragraph 46 of Chapter V . . 62
Paragraph 47 of Chapter V . . 62
Paragraph 77 of Chapter V . . 63

Chapter IV. Railways and harbours. 64
Introductory. . . . . . . . . . 64
Contrai of railwaysnd harbours . . . . . . . . . . . 64
Policies applied inhe employment of railway personnel. 64
Respondent's reply to Applicants' allegations (Memorials) 66
Paragraph 48 of Chapter V 66
Paragraph 49 of Chapter V 68
Paragraph 77 of Chapter V 69

Chapter V. Labour recruitment. 70
Introductory. . . . . . . . . . 70
History of the recruitini, system . 70
Operation of the recruitmg system . 72
Advantages of the recruiting system. . . . . . . . . 74
Respondent's reply to Applicants' allegations (Memorials) 74

Paragraph 50 of Chapter V 74
Paragraph 51 of Chapter V . . . . . . . . . . . . 75
Paragraph 52 of Chapter V . . . . . . . . . . . . 76 CONTENTS XI
Page
Paragraph 53 of Chapter V 76
Paragraph 54 of Chapter V 76
Paragraph 55 of Chapter V 77
Paragraph 56 of Chapter V . 77
Paragraph 57 of Chapter V . . 77
Paragraph 77 (b)of Chapter V. 78

Chapter VI. Labour conditions within the police zone . 80
A. Introductory . . . . . . . . . . . . . . . . 80
B. The relationship between masters and servants . 8I
I. The scope of the master and servants proclamation . Sr
Il. Background to the master and servants proclamation 82
Ill. The penal provisions of the proclamation . . . . . 83
IV. Similar legislation in other countries. 86
Western Australia . 86
Southern Rhodesia. 86
Northem Rhodesia SS
Swaziland . . . . 88
Basutoland . . . . . . . 89
The former Belgian Congo 89
V. Conclusion . . . . . . 89
C. Leave of absence . . . . . . . . . 90
D. Pneumoconiosis compensation. . . . 9I
E. Collective bargaining and conciliation . . . . . . . . 91
F. Respondent's reply to Applicants' allegations (Memorials) 94
I. Paragraphs 65 to 7r of Chapter V 94

(a) Generai. . . . 94
(b)Paragraph 65 . 95
(c)Paragraph 66 . 95
{(e)Paragraph 68 . 997
(/) Paragraph 69 . 98
{g)Paragraph 70 . 98
{h) Paragraph 7r . 98

Il. Paragraph 77 of Chapter V. 99
Chapter VII. Conclusion. . . . . . roo
Section D. Briel account of the Native in commerce. ror
Introduction. . . . . . . . . . . 101
Northem areas. . . . . . . . . . ror
Reserves in the police zone . . . . 102
Native townships in urban areas . . ro2
Section E. Govemment and citizenship ro4

Chgovemment withine, the Native tribes and Native reservesnt, ro4

A. Introductory . . . . . . . . . . . . . . . . . . . . ro4
B. General policy. . . . . . . . . . . . . . . . . . . . ro5
C. Constitutional arrangements prior to r925 . . . . . . . ro7
E. General constitutional arrangements concemingn grthe indi. ro8
genous groups. . . . . . . . . . . . . . . . . . . . II2XII SOUTH WEST AFRICA

Page
F. Incligenous political institutions outside the police zone.II4
Ovamboland. . . . . . . . . u4

The Okavango Native territory II9
The Eastern Caprivi Zipfel. . . 120
The Kaokoveld. . . . . . . . 121
The Bushmen . . . . . . . . 124
G. Incligenous political institutions within the police zone .125

The development since 1920 . 126
The Herero . . . . . . . . 128
The Nama. . . . . . . . . 129
The Dama. . . . . . . . . 130
H. Future development . . . . 131
1. Respondent's reply to Applicants' allegations (Memorials) 131

Paragraphs 78-85 of Chapter V. . . . . . . . . . 131
Paragraphs 86 and 87 of Chapter V. . . . . . . . 132
Paragraphs rr4, rr5, 125, 126 and 127 of Chapter V 133
Paragraphs u6, u7 and rr8 of Chapter V. . . . . 133
Paragraph rr9 of Chapter V . . . . . 136
Paragraph 120 of Chapter V . . . . . 136
Paragraphs 121 and 122 of Chapter V. 136
Paragraph 123 of Chapter V . . . . . 137
Paragraph 124 of Chapter V . . . . . . . . . 137
Paragraph 128 (1), (2), (5) and (6) of Chapter V 138
Chapter Il. General administration (Civil Service). . 139

A. Introductory . . . . . . . . . . . . . . . . . 139
B. The position prier to the inception of the Mandate. 140
C. General policy. . . . . . . . . . . . . . . . . 140
D. The Public Service Act. . . . . . . . . . . . . 143
E. The Public Service Commission . . . . . . . . . . . . 143
F. Division of the public ·serviceunder the Public Service Act,
1957. . . . . . . . . . . . . 144
1.The administrative clivision 144
Il. Clerical division. . . . . 144

III. The professional clivision . . 145
IV. Technical division. . . . . 145
V. General divisions A and B . 145
VI. The services . . . . . . . 146
G. Early attempts by Respondent to introduce Natives into
the public service . . . . . . . . . . . . . . . . . . 146
H. Developments in certain specific branches of the public
service in general . r47
I. Native affairs. . . . . . . . . . . · . . . 147

~~Œ~.............. I~
(b) Administration outside the Police Zone 147
(c) Administration inside the Police Zone. 148
(i) In the Native reserves.. . 148
(li)Outside the Native reserves 148
(iii) In the urban areas 148

II. Department of information. 148 CONTENTS XIII

Page
III. The police force . . . . 148
IV. The prisons service. . . 152
V. The nursing profession . 152
VII. Interpreters. . . . . , . . • . 152
VIII. Other branches of the public service 152

1. Comparison with other territoinAfrica . . . . . . .155
J. Respondent's reply to Applicants' allegatîons (Memo163ls).
1.Paragraphs 88-105of Chapter V , . 163
(a) Paragraphs 88-93. 163
(b) Paragraph 94. . . 163
(c) Paragraph 95. . . 163
(d) Paragraph 96. . . 164
(e) Paragraphs 97-105 164
II. Paragraphs 128{3)and (6) and 190of Chapter V . 165
ChapterIII. Local govemment.. . . . • . . . . . . . 167
A. Introductory . . . . . . . . . . • . . . . . . . . . 167

B. ~~~Ja ~~:o.eian.dwe~o~~p.o~d~nt.~~~e ~~ h~168
C. General policy followed by Respondent ... 170
D. Local government of the•White inhabitants. 171
I. General.......... . 171
Il. Municipal councils. . . . . . . 171
III. Village management boards... 172
E. Centralized control of Native policy·. 173
F. Policy of separate development ... 174
G. Population mcrease in urban areas. . . . . . . 175
H. Provision of amenities in Native residential areas176
I. Non-White housing accommodation in urban area176
II. Financial assistance by the administration . 177
III. Contribution by employers . . . . . . . . . .178
IV. Layout of Native residential ar. . . . . . . 179
V. Tràding in location. . . . . . . . . . . . . 180
I. Management and control of locations and Native villages.
J. The objects and future of the Native advisory boards ..
K.Superv1sory control of Respondent over local authorities.
L. Local govemment outside the Police Zone ...... . 186
M. To sum up in regard to local govemme. . . . . . . 187
N. Respondent's reply to Applicants' allegations (Memorials).
I. Paragraphs 106 to n3 of Chapter V. 188
(a)Paragraph 106 188
(b)Paragraph 107 189
(c)Paragraph ro8 189
(d)Paragraph 109 . 190
(e)Paragraph no . . . . 191
(!)Paragraphs IIIand II2 191
(g)Paragraph II3 . . . . 191
Il. Paragraphs 128 (4)and (6) of Chapter V . .192
(a) Paragraph 128 (4). . . . . , , . ·· 192XIV SOUTH WEST AFRICA

Page
(b) Paragraph 128 (6) . . . 192

III. Paragraph 190 of Chapter V 193
Chapter IV. Conclusion . . . . . . . 194

BOOK VI
Chapter I. Introduction . . 195
Chapter II. Security of the person 196

A. Introductory . . . . . . . 196
B. Vagrancy . . . . . . . . 197
I. The vagrancy proclamation . . 197
II. The scope of the proclamation. . . . . . . 198
III. The historical background. . . . . . . . . . 199

IV. Legislation against vagrancy in other countries 201
The United Kingdom. 201
New Zealand . . . . 202
New South Wales . . 203
Western Australia . . 204
Canada. . . . . . . . . . . 204
The United States of America. 204
Ethiopia . . . . . . ., , 205

Liberia . . . . . . . . . 206
Egypt . . . .. . . . . 2o6
The former Belgian Congo 207
Southern Rhodesia. . . . 207
Northern Rhodesia. 208
Pakistan . . . 208
Kenya . . . . . . 208
Uganda. . . . . . 208
Bechuanaland . . . 208
Basutoland . . . . 209

V. The particular provisions of the proclamation . 209
(a) The power of arrest as such . . . . . . . . . . 210
(b) The alleged arbitrary or uncontrolled nature of the
power of arrest . . . . . . . . . . . . . . . 2rr
(c) The grant of the power of arrest to land owners
and occupiers . . . . . . . . . . . . . . . . 212

(d) The right of entry and search . . . . . . . . . 213
VI. The practical application of the proclamation . . . . 213
VII. The attitude of the permanent mandates commission. 213
VIII. Conclusion . . . . . . . . . . . . . 214
C. Idle persons in urban and proclaimed areas . . 214

I. The Natives (Urban Areas) Proclamation. 214
II. The scope of the proclamation . 216
III. The purpose of the proclamation . . 217

IV. Legislation in other countries. . . . 218
V. The applicability of the Prisons Act. 219
VI. Conclusion . . . . . . . 220
D. Idle persons in Native reserves . . . . . 220 CONTENTS XV
Page
E. Undesirable persons in Native reserves. . . . . . . . . 222
F. The deportation of undesirable persans from the territory 225
G. Infringements of the pass laws . . . . . . . . . . . . 228

H. Conclusion . . . . . . . . . 229
Chapter III. Rights of residence . 23I
A. Introductory . . . . . . . 23I
B. Respondent's reserve policy 232
I. General . . . . . . . 232
II. Reserves in South Africa. 234
(a) Cape province. . . . 234

(b) Natal province . . . 235
(c) Transvaal province . 236
III. Reserves in South West Africa 238
(a) Background to the establishment of the reserves 238
(b) The basic considerations of the reserve policy. 240
(i) The existence of the different groups. . . 241
(ii) The need to restore triblite. . . . . . . 242
(iii)Differences in systems of land tenure . . . . 243
(iv) The need to prevent alienation of non-White
land. . . . . . . . . 245
(c) The Native reserves . . . . . . . . . . . 246

(d) The Bushmen resêrve . . . . . . . . . . 252
(e) The Rehoboth Baster Gebiet . . . . . . . 252
(I) The area inhabited by the White population 253
IV. The attitude of the Permanent Mandates Commission. 254
C. Reserves in other parts of the world . 257
I. Introductory . 257
II. Basutoland . . . . 258
III. Bechuanaland 258
IV. Swaziland. . . . . 259
V. Southern Rhodesia. 260
VI. Northern Rhodesia. 261
VII. Kenya . . . . . . 262

VIII. Liberia . . . . . . 263
IX. Canada. . . . . . . . 263
X. The United States of America. 264
XI. Conclusion . . . . . . . . . 265
D. Reply to the Applicants' allegations . 266
I. General . . . . . . . . . . . . . . . 266
II. Rights of residence in the Native reserves 266
(a) The powers to set aside Native reserves 266
(b) The power to preserve and develop Native areas 268

III. Rights of residence in the Police Zone . . . . . . . 276
IV. Rights of residence in urban areas . . . . . . . . 277
(a) The background to the influx contrai provisions of
the Natives (Urban Areas) Proclamation. . . . . 277
(b) The basic considerations of influx contro]. . . . . 279
(c) The implementation of influx contrai. . . . . . . 288
(d) The establishment of Native urban residentiaI
areas . , , . . . . . . . . . . . . . . . . . 292XVI SOUTH WEST AFRICA
Page

E. Conclusion _. . . . . . . . . 297
Chapter IV. Freedom of movement . 298

A. Introductory . . . . . . . . 298
B. The pass system in South Africa 299
I. General . . . . . . . . . ·. . . . . . . . . . 299
IL The development of the pass system before union . 300
III. The development of the pass system after union . 302

C. The development of the pass or permit system in South West
Africa . . . . . . . . . . . . . . . . . . . . 3o6
I. The German pass system . . . . . . . . . . 300
II. The pass system during the period 1916-1920 . 307
III. The system introduced after 1920 . . . . . . 308

(a) Introductory . . . . . . . . . . . . . . . . 308
(b) Control of movement into and in the Native reserves 3o8
(c) Control of movement into and in the Rehoboth
Gebiet . . . . . . . . . . . . . . . . . . . . 310
(d) Control of movement into and in the area occupied
by the White group . . . . . . . . . . . . . . 310
(e) Control of movement into and in Native urban
residential areas . . . . . . . . . . . . . . . 311
(!) The attitude of the Permanent Mandates Commis-
sion . . . . . . . . . . 312

D. Reply to the Applicants' allegations . . . . . . . . . . . 314
I. General . . . . . . . . . . . . . . . . . . . . 314
II. The movement of Natives in the areas inhabited by the
White group . . . . . . . . . . . . . . . . . . 315
III. Egress from the Territory. . . . . . . . . . . . . 319
IV. Entry into the Territory . . . . . . . . . . . . . 321
V. The entry of northem Natives into the Police Zone. 322
VI. The entry of Natives into proclaimed areas . . . . . 324
VII. Curfew restrictions . . . . . . . . . . . . . . . 327
VIII. Reply to paragraph 153 of Chapter V of the Memorials 329

(a) Introductory . . . . . . . . . . . . . . . . 329
(b) Undesirable persons in reserves . . . . . . . . 330
( c) The removal of Natives within reserves. . . . . 330
(d) The movement of northem Nativesinto and in the
Police Zone . . . . . . . . . . . . . . 33I
(e) Entry into the Territory . . . . . . . . 331
(!) The entry of Natives into proclaimed areas 332
{g) Curfew restrictions . . . . . . . . . . . 332
(h) The removal of Natives from urban areas . 333
(i) Vagrancy ................ · . 333
(i) The movement of Natives in the area inhabited by
the White group . . . . . . . . . . . . . · . 334
(k) !die persons in proclaimed areas . . . . . . . . 334
(l) The deportation of undesirable persons from the

Territory . . . . . . . . . . . . . . . . . . 335
(m) Summary: the position of Natives in reserves in
the Police Zone . .. . .. .. . .. . . . . . . . . 336 CONTENTS XVII
Page
(n) Summary: the position of Natives in the northern
territories.. . . . . . . . . . . . . . . . . 336
(o) Summary: the position ofNatives in the rural areas
of the Police Zone . . . . . . . . . . . . . . 337
(P) Summary: the position of Natives in urban and
proclaimed areas. 337
E. Conclusion . . . 337
Chapter V. Conclusion . . 339

BOOK VII

Chapter I. Introduction to Book VII . .. . . . . . . . . . . . 341
Chapter II. The history of education in South West Africa before
the Mandate was conferred . . . . . . . . . 314
A. Establishment of mission schools for Natives 344
B. Subjects taught in Native mission schools 345
C. Teachers in Native mission schools. . . . . 345
E. Schools for Coloured persans . . . . . . . . . . . . . . 346
F. Schools for the White group . . . . . . . . . . . . . . 346
G. Factors in development of European education . . . . . . 346
H. Financing by the German Govemment ofEuropean education 348
I. The First World War . . . . . . . . . . . . . . . . . 348
J. The period of military occupation, 1915-1920 . . . . . . .349
K. The position at the time when the Mandate was conferred 349
Chapter III. The contrai and administration of education in South
West Africa after conferment ofhe Mandate . . . . . . . . 350
A. Legislative and administrative powers . . 350
B. Administration of education . . . . . . 350
Chapter IV. General policy . . . . . . . . . 353
A. Separate facilities for the various groups .
353
I. of separate facilities . . . . . . . . . . . . . . . .
353
(a) Varying stages of advancement of the different
(b) Different languages . . . . . . . . . . . . . 354
Mother-tongue education in South Africa. . . . . 356
Mother-tongue education in South West Africa .. 358
(c) Different syllabuses . . . . . . . . . . . . . . 363
Special syllabuses inntu schools in South Africa 364

%fri~'.l'.ll~b~s~~ ~a~v.e ~c~o~ls_in_S~u'h w~~ 366
(d) Different social entities and parent communiti.s 367
The system of community schools in South Africa 369
Community schools in South West Africa . . . . 371
. Il. The attitude of the League of Nations towards Res
pondent's policy of differentiati. . . . . . . . . 372
III. Separate educational facilities in other mandated terri-
tories . . . . . . . . . . . . . . . . . . . . . 374
(a) The Pacifie Islands-under Japanese Mandate . . 374XVIII SOUTH WEST AFRICA

Page
(b) New Guinea-under Australian Mandate 375
(c) Tanganyika-under British Mandate . . 375
IV. Retention of the system of separate education 375

B. Circumstances and considerations affecting the question of
expenditure on, and the provision of particular educational
facilities for, the various population groups . . . . 382
C. Compulsory education . . . . . . . . . . . . . 390
I. Compulsory education in South West Africa. . 390
II. Compulsory education in other States in Africa 395

(a) South Africa . . . 395
(b) Other African States 396
(i) Genera!ly . . . . 396
(ii) Particular territories 399
Chapter V. Native education. . . . . 407
A. Introductory . . . . . . . . . . . . . . . . . . . . . 407
B. Retarding circumstances and factors in the development of

Native education in South West Africa. . . . . . . . . . 407
I. Attitude of mind towards schools and European in
fluences . . . . . . . . . . . . . . . . . . . . . 407
II. Nomadic habits: scattered population . . . . . . . . 4u
III. Vastness of the territory and the low density of popula-
tion . . . . . . . . . . . . . . . . . . . . . . . 411
IV. Language difficulties . . . . . . . . . . . . . . . 414
V. Economie and financial difficulties . . . . . . . . . 416
VI. Shortage of teachers and difficulties encountered in
teacher training. . . . . . 417

(a) South West Africa. . . . . . 417
(b) Other African territories . . . . . . . 421
C. The role of the missions in education . . . . . 424
I. Mission schools in South West Africa, and their con-
version into government schooJs . . . . . . . 424
II. Mission schools in other African territories. . 427

D. Types of schools for Natives in South West Africa. 431
E. Officers and field staff for Native education. . . . . . . 433
F. Survey of Native schools, pupils and teachers within the
Police Zone. . . . . . . . . . . . . . . . . . . . 434
G. Conditions relating to education outside the Police Zone 438
Ovamboland . . 438
The Okavango . . . . . . . . . . . . . . . . . . 440
The Kaokove!d . . . . . . . . . . . . . . . . . . 440
H. Survey of Native Schools, pupilsand teachers in the northern
territories . . . . . . . . . . . . . . . . . . . . . . 441

I. School attendance . . . . . . . . . . . . . . . . . . . 443
I.Percentage of Native children attending school in
South West Africa. . . . . . . . . . . . . 443
II. School attendance in other African territories . 445
(a) Liberia . . . . . . . . . . . 445
(b) Ethiopia . . . . . . . . . . 445
(c) Generally in African territories 446 CONTENTS XIX

Page
J. Courses, syllabuses and examinations for Native pupils. 448
I. Primary schools . . . . . . . . . . . . . . . . 448

II. Secondary schools . . . . . . . . . . . . . . . 450
K. School buildings, equipment and books for Native pupils . 451
I. Government schools . . . . . . . . . . . . . . . 451
II. Mission schools . . . . . . . . . . . . . . . . . 452

L. Salaries and emoluments of Native teachers in South West
Africa . . . . . . . . . . 452
I. Salarv scales . . . . . 452
II. Cast-of-living allowance 456
Ill. Regional al!owance . . 456
IV. Principal's allowance . 457

M. Expenditure by the administration of South West Africa on
Native education . . . . . . . . . . . . . . . . 457
I. The Police Zone. . . . . . . . . . . . . . . . . . 457
II. The northern territories outside the Police Zone 458
III. Per capita expenditure on Native education in South
West Africa . . . . . . . . . . . . . . . . 459
N. Education of Natives in the Eastern Caprivi Zipfel . 459

Chapter VI. Vocational training, higher education and adult
education for Natives . 466
A. Vocational training . . . . 466

I. Schools . . . . . . . 466
II. Separate industrial schools . . . . 466
Ill. Industrial courses at the Augustineum. 466
IV. Teacher training schools . . . . . . . . . . . . . . 467
V. Facilities for vocational and technical training in South
Africa . . . . . . . . 468
VI. Nursing . . . . . . . 468
(a) Training of nurses. . 468
(b) Registration of nurses 470

B. Higher education . . . . . . 474
I. Facilities for higher education . . . 474
Il. Financial assistance for higher education . . . . . . 476
III. Separate universities for the different population
groups in South Africa. . . . . . . . 477
IV. Views on separate educational facilities 486

C. Aduit education. . . . . . 489
Chapter VII. European education . . . . . . . 492
A. Introductory . . . . . . . . . . . . . . . . . . . . . 492
B. General circumstances and factors affecting the education of
European children. . . . . . . . . . . . . 492

I. Centralization of European education . . 492
II. The different European language groups . 493
III. Medium of instruction . . . . . . . . . 494
C. Types of schools . . 496
D. Local contrai of schools . . 497 SOUTH WEST AFRICA
XX
Page
E. Officersand field staff . . . . . . . • • . . . . . • . . 498
F. Survey of schools, pupils and teachers • . . . • • • • • • 498
G. Enrolment of European pupils in government schools in
different standards . . . . . . . . . . • 500
H. Percentage of European children at school 500
I. Courses, syllabuses and examinations . . 501
I. Courses and syllabuses 501
II. Examinations . . . . 503
J. Salaries and emoluments . 503
I. Salaries . . . . • . • 503
II. Special allowance . . 5o6

K. European education . . . . . . . . . . . . . . . . . . So6
L. Vocational and technical training 507

I. Agricultural schools. 507
II. Schools . • . . . . 508
IV. Training of nurses. . 509

M. Higher education . • • • 509
N. Adult education. . . . • 510
Chapter VIII. Respondent's reply to the allegations in the Appli
cants' Memorials. . • . • . . . . . . . . . . . . • . • • 5:u 5. COUNTER-MEMORIAL FILED BV THE
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA (cont.)

BOOK V

SECTIONA

INTRODUCTORY

r. ln Book IV of this Counter-Memorial, the broad lines of Re

spondent's policy regarding the administration of South West Africa
were considered. The present Book deals in more detail with the aspects
of well-being, social progress and development relating to the economic
position of the inhabitants of the Territory 1, and to govemment and
citizenship 2.
The subject-matter of this Book is divided as follows:

Section A: Introductory (which is the present section).
Section B: Well-being, social progress and development in agri
culture (being a reply to Chapter V, paras. 16-33 of the
Memorials).
Section C: \Vell-being, social progrcss and development in industry

(being a reply to Chapter V, paras. 34-77 o[ the Memorials).
Section D: Brief account of the Native in commerce.
Section E: Well-being, social progress and development: govemment
and citizenship (being a reply to Chapter V, paras. 78-128
of the Memorials).

As will have been noted, Respondent does not propose dealing specifi
cally with paragraphs II to 15 of Chapter V of the Memorials 3, which
paragraphs contain certain background irâormation regarding the
cconomy of South West Africa. This information is basically correct
and no purpose would be served by devoting specific attention thereto
since the same field is in substance covered in sections B and C of this

Book.
2. In regard to the main aspects dealt with in this Book, Applicants
have formulated certain specific duties which they allege are included
within the ambit of Article 2 of the Mandate~- These duties have been
considered in an earlier part of this Counter-Memorial 5, to which

attention is invited. No further refercnce to this topic is therefore neces
sary at the present stage.

1 I, pp.IIO-I3r.
2 Ibid.,pp. IJI-143.
3 Ibid.,pp. II I·II2.
• Ibid.,pp. ro7-ro8, IIO-III and IJI.
5 Vide Book IV, Chap. II, paras. 24 to 28, of this Counter-Memorial. SECTIONB

WELL-BEING,SOCIALPROGRESSAND

DEVELOPMENTIN AGRICULTURE

CHAPTER I

INTRODUCTO YR

r. Applicants sum up their allegations contained in paragraphs 16
to 32 of Chapter V of the Memonals, as follows:
"By a deliberate, systematic and consistent course of conduct, the

Mandatory has discriminated against the 'Native' population of
South West Africain agriculture. In so doing, it has not only failed
ta promote to the utmost the well-being of the 'Native' population
engaged in agriculture, but in major respects it has reduced the
degree of their well-being. lt has not only failed to promote to the
utmost the social pn;.>gressof the 'Native' population engaged in
agriculture, but has reversed possibilities of social progress into a
steady regrcssion. It has not only failed to promote to the utmost the
deveJopment of agriculture forthe 'Native' population of theTerri
tory, but it has reversed that development into a process of de
teriorationand increasing insecurity, more particularly:
(i) The Mandatory has progressively reduced the proportion of farm
land available for cultivation or pastorause by the 'Native'
population, while it has progressively increased the proportion of
such farm land available to 'Europeans'. This has been carried
to the point where less than rz percent. of the population, being
'White', enjoys the use of some 45 percent. of the total land
area; while over 88 percent. of the population, being 'Native'
or 'Coioured', is confined to 27 per cent. Much of the remaining

land area is desert.
(ii) The Mandatory has denied the possibilities of individual owner
ship of land to the 'Native' population, and has confined these
rights to the 'White' population.
(iii) The Mandatory has limited the role of the 'Native' population in
agriculture to (a) subsistence farming within .'Native' reserves
and (b) employment as common laborers or domestics on 'Euro
pean' commercial farms. In consequence, the 'Native' population
has enjoyed almost insignificant participatioin the expanding
possibilities of commercial agriculture in the Territory.
(iv) The Mandatory has offered little hope to the 'Native' popu
lation, and little promise or possibility of future development.
(v) Even in connection with emergency relief made available in
time of drought, the Mandatory has used overwhelmingly the Jar,
ger part of relief funds for the assistance of the small 'European' COUNTER-MEMORIAL OF SOUTH AFRICA 3

proportion of the population, whilethe relief funds used to help the
large 'Native' population have been confined to a comparative
pittance 1."

For convenience, Respondent will deal separately with agricultural
conditions in the areas outside the Police Zone, and those inside.

1 1, pp. n7-n8. CHAPTER II

AGRICULTURE IN THE AREAS OUTSIDE THE POLICE ZONE

1. On the assumption of the Mandate, the traditional tribal economies
in the northern areas were virtually unaffected by contact with the
modern exchange economy. In common with subsistence economies
throughout the continent of Africa, specialization (except within the

family) was to ail intents and purposes unknown, and each kraal was a
self-sufficient economic unit, producing enough for ail the requirements
ofitsinhabitants. Contactswhîch had existed with theexchange economy
had been of limited extent and duration, such as the employment of
Ovambo migrant labourers in the Tsumeb mines and the Luderitzbucht
diamond fields 1, and had consequently not affected the traditional tribal
institutions to any appreciable degrce.

2. At the inception of the Mandate, Respondent's policy in regard to
economic, and, in particular, agricultural, activity in the areas outside
the Police Zone could conceivably have ta.ken the form of opening up
these areas to the forces of the modern exchange economy. This would
have entailed free access to the area by European businessmen, farmers,
etc.,and would in all probability have led to amuch more rapid economic
development of the area than bas in fact taken place.
On the other hand, the disadvantages attendant on such a course are
apparent. The subsistence economies of the tribes in the areas outside

the Police Zone did not constitute merely incidental features of the lives
of the people which could be destroyed without any danger to the fabric
?f society. On the contrary, economic activity formed one aspect of an
mdivisible total way of Jife which included social, political and religious
attitudes, beJiefs, and customs. Thus, for instance, the concept of indivi
dual ownership of land was unknown amongst the Ovambo~all land
vested in the Chiefs (or headmen) who were permitted to allot agricultural
land to individuals for their lifetimes 2_Agriculture was considered the
province of the women in the family, while the men and boys cared for

the stock, which were highly prized, and seldom parted with 3. It is clear
that this system, involving, as it did, inter alia,the position of the chief,
the role of women in a polygamous society, and the status derived from
possession of cattle, could not easily be converted to an economy which
was based on individual initiative and the desire for gain. In addition,
ea~h family being self-sufficient, no demand for any surplus production
ex1sted in the areas in which traditional agriculture was practised. And,
if such a surplus were to be produced, the nature and quality of the
products and the wasteful and uneconomic methods employed in their

production precluded successful competition in distant markets with
European farmers employing modern scientific methods.
Since the known resources of the area did not then (and, indeed, do
not at present) permit of any primary economic activity other than

1
2 Ibid.,para.48. Chap. II,para. 38.
3
Ibid., paras. 47 and 49. COUNTER-MEMORIAL OF SOUTH AFRIGA
5

agriculture, the only method by which Respondent could, in the absence
of any desire on the part of the local tribes to change their tribal system,
have rapidly introduced the exchange system into the northem areas,
would have been by a process of settlement of European farmers, either
by purchasing the necessary land from the tribes concemed, or dis

possessing them in some other way. Whereas this course would no doubt
have led to an improvement in the quantity and quality of agricultural
production in the area, it would at the same time have caused an erosion
of the traditional political and social systems of its inhabitants. The only
benefit to the Native peoples would have been the availability of employ
ment. And, if no restriction were placed on the acquisition of land or the
granting of credit by Europeans, the Natives would soon have been
reduced to a landless people, entirely dependent for a living on wage
earning, with a resultant destruction of their customary social, political

and religious institutions and restraints. To a considerable extent this
was the position in the Police Zone at the inception of the Mandate, and
the undesirable consequences thereof were obvious.
3. Rather than adopta policy of European settlement as set out in the
previous paragraph, it was, in Respondent's opinion, from every point
of view, desirable to maintain the traditional tribal institutions in the

areas where they were still functioning, and to promote further develop
ment on that basis. Although this policy necessarily entailed that econo
mic development (in the sense ofan increased total agricultural production)
would be slow 1,it was considered that such an approach would be most
conducive to the happiness and security of the population. As landless
labourers, the inhabitants of the northem areas might conceivably have
earned total annual wages which were higher than the value of their
agricultural production as subsistence farmers. There can be no question,
however, that the adoption of a policy resulting in such a situation

would have been to their moral and social detriment. And opportunities
for wage-earning were created for the inhabitants of the northern areas
as a result of the vigorous expansion of the exchange economy in the
Police Zone.
4. Reference had been made 2 to the attitude of the Permanent Man
dates Commission that tribal institutions should, where possible, be
preserved. Further examples of this attitude will be given below J_It is

submitted that Respondent's policy of preserving the traditional insti
tutions of the inhabitants of the northem areas, of which possession of
land by the various tribes formed an essential element, was a wise one,
and it was recognized as such by the Permanent Mandates Commission.
The merits of the general system of administration in the northern
areas were also considered in 1946 by Lord Hailey. He said (in so far as
his evaluation is relevant to the economic and social situation):

"That the present system is acceptable to the people there can be
no question. They have not failed to give open expression of their
contentment with it, and there can be no reason to doubt that this is
the spontaneous expression of a genuine feeling. If questioned, they
attribute their satisfaction to the fact that they are ruled by their own

l Vide Book IV, Chap. IV, paras. 32-34.
2 Ibid.,Chap. IV, para.40.
3 Vide Book VI, Chap. III, paras.7r-8r.6 SOUTH WEST AFRICA

tribal authorities, and that if disputes arise between thern, they are
decided according to the laws and the procedure to which they have

been accustomed. Bzetit is easy to see that they have other sources of
satisfaction. Unlike the people of the Police Zone, they have retdined
their lands intact. Their tribal communities have not beenbrokenup 1."
(ltalics added.)
5. A policy designed to protect the inhabitants of the northern areas

in their possession of their lands, could only be beneficial to them.
As far as land resources are concemed, the areas beyond the Police
Zone (and, in particular, Ovamboland, the Okavango territory and the
Eastern Caprivi) are situated in the most favoured part of the Territory.
It will be recalled that the most favoured dimatic region, frorn the point
of view of dry-land cropping, stock farming and tirnber exploitation,
as well as potential for irrigation, falls entirely within parts of Ovambo
land and the Okavango territory, and covers the whole of the Eastern
2
Caprivi •The rest of Ovamboland (with the exception of a portion to the
extreme west) and the Okavango territory fall within an area which is
also a favourable one as compared with the rest of the Territory 2• The
main concentrations of population are found in the former region, the
area bordering on the Police Zone being uninhabited, except possibly at
tunes by isolated groups of Bushmen.

6. Respondent's policy in regard to the agricultural development of
the northern areas has been to guide the population in the direction of
greater productivity by means of a graduai adaptation of their traditional
economic and social institutions, rather than by means of revolutionary
changes. Attention has bt>engiven in various ways to the improvement

in the quality of livestock. At fi.rst well-bred bulls were donated to the
tribes by the Administration, white others were purchased out of tribal
funds. This scheme did not provc a success, and selective breeding was
therefore substituted. The latter scheme has produced better results.
Various systems of crop rotation are experimented with in an attempt
to increase yields. Suitable crop varieties are tested, and selected seeds are
made available to the inhabitants. At Runtu a demonstration plot pro

duced a "muhango" (millet) variety which yielded considerably more
than the most prolific varieties known in the Territory. More demon
stration plots are being developed in order to suppl y sufli.cient seed, as the
improved variety is proving popular with the Native farmers.
7. The prevalence of lung-sickness (bovine pleuro-pneumonia) has in

the past militated against the export of livestock from the northern
territories. Measures have been taken by the agricultural division of the
South West African Administration in collaboration with the South
African Department of Technical Services (Veterinary Services) to
combat this, as well as other animal diseases in these areas. Thus, for
example, all the cattle in the Kaokoveld have been inoculated annually
against lung-sickness since 1955 and in Ovamboland since I957 3•Other

sporadic outbreaks of diseases, such as anthrax and quarter evil, have

1 Lord Hailey, A Survey of Native AUairs in South West Africa (1946) [unpub
lishedl, p. 119.
2 Vide Book IV, Chap. Ill, para. 2 (e),of thisCounter-Memorial.
3 Save for the years 1961 and 1962, when a serious foot-and-mouth epidemic
elsewhere prevented the taking of such measures. COUNTER-MEMORIAL OF SOUTH AFRICA 7

been checked by inoculation whenever they have occurred. In 1956 the
South African veterinary division successfully combated an outbreak of
foot-and-mouth disease in the Eastern Caprivi. Foot-and-mouth disease
broke out in 1958 in Ovamboland: all animais were inoculated, and the
spread of the disease was checked. In the same year trypanosomiasis and
anthrax caused cattle deaths in the Caprivi, and veterinary services·were
provided with good results. In 1960 and 1961, foot-and-mouth disease
again broke out in the Territory, and veterinary treatment was again

provided.
For the purposes of combating stock diseases in three of the northem
areas (viz., Ovamboland, the Okavango territory and the Kaokoveld),
Bantu assistant stock inspectors have been appointed wîth the intention
of training them so that they will eventually be able to take over full
responsibility for this work. In the meantime they are under the super
vision of a European stock inspector and veterinary offi.cer.
8. The opening-up in the northem areas of water, and the provision

of storage facilities, have also received the attention of the authorities.
Up to 1959 a total of 257 watering points (dams, boreholes, wells, etc.)
were constructed, and during the years 1955 to 1960, 62 boreholes were
sunk and ten dams built at a total cost of over R6oo,ooo {:f300,ooo).
During the years 1960 to 1963 approximately R94,ooo (f47,ooo) was
spent on the following projects to increase water supplies in the northem
areas:

Okavango 15 boreholes and a water scheme for
the administrative headquarters at
Runtu . . . . . . . . . . . . . R44,ooo ([22,000)
Kaokoveld Boreholes, pumps, reservoirs, etc. . Rro,ooo (f5,ooo}
Ovamboland Dam construction . . . . . . . . R40,ooo (f20,ooo)
In Ovamboland, one of the biggest projects for providing water is at
present under construction at an estimated cost of R238,ooo {fng,ooo).
A canal, which will eventually be Bomiles long, is being constructed from

Okatana in the direction of the Kunene River, together with the necessary
storage dams, filters, etc. This scheme will supply water to a tuberculosis
hospital. serve irrigation purposes and supply drinking water for humans
and livestock. A second canal known as the Itaka canal is also under
construction.
Watering points have, where possible, been sited so as to enable the
population in the said areas to be more evenly distributed.
9. Livestock figures in the northem areas show a general increase,

although there are marked fluctuations owing to droughts and epidemics.
The table on page 8 refl.ectsthe position.
IO. It appears that Ovamboland has always (or, at any rate, as far
back as population figures are available) been the most densely populated
area in the Territory, and, in view of its climatic superiority and the
settled nature of its people, this is hardly surprising.
In 1876 Palgrave estimated its population at 98,000 1,whereas in the

much larger areas, referred to by him as Damaraland and Great Nama
qualand (which together constitute roughly the present Police Zone),
there were, according to him, only 137,850 non-White people 2•

1 Vide Book Ill,Chap. Il, para. 33, of this Counter-Memorial.
1 Vide Book IV, Chap. IV, para. 18,of this Counter-Memorial,8 SOUTH WEST AFRICA

NUMBER OF LARGE srocK UNtrS IN NORTHERN AREAS 1

r9z5 r946 r956 r959
1 1 1 1
Ovaplboland. 73,500 2 l12,724. 6
1 1 1 414,343 ~ 363,325

Okavango . 18,000 J 1 31,307 • l__ 5,626 6 1 43,420 6
1
Kaokoveld. 1 not available 1 49,153 • 138,236 6 I I0,629 6
1 1

EasternCaprivi I not available 1 26,275 5 l not available 1 10,551 6

In 1921 the corresponding estimates were 90,000 (Ovamboland} 7

and under 84,000 (Police Zone) 8•At that stage, therefore, the population
of Ovamboland was larger than that of the whole Police Zone-a reflection

of the loss of life occasioned by the wars in the latter area.
It is probable that the 1921 figure for Ovamboland was an underesti
mate, since a census held towards the end of the 1920s, showed a total

population of 147,600 7•
By 1951, it had increased to 197,804 and by 1960 to 231,437 6 (ex

cluding Ovambos permanently resident outside Ovamboland but in
cluding members of other groups, e.g., Bushmen, in Ovamboland) 9•
This rapid increase of population, particularly during the period of

Respondent's administration of the Territory, points to the favourable
conditions under which the Ovambo have been living.

II. A similar picture appears from population statistics regarding the
inhabitants of the Okavango territory. In 1921 its population was esti
10
mated at 20,000 •This was probably an overestimate. In 1936 the esti
mate was 19,150 11•The census in 1951 showed a population of 21,873,
which increased to 29,102 by 1960 12•

12. The Kaokoveld has also witnessed a marked increase in population

in recent years. In 1945 its Native inhabitants numbered 5,994. By 1955
they had increased to 9,178, and by 1960 to 10,099 6•

1 Calculated on the basis that 6 head of srnall stock equal 1 large stock unit.
2 Rounded off, the actual figure being 73,410 calculated on the basis of the

estimated figures given in U.G. 26---'26, para. 57.
3 An estimate based on U.G. 26---'26, para. 62.
4 U.G. 49-'47, para. 217.
' Ibid. (Figure is for the year 1945.)

6 Departrnental information.
1 Vide Book III, Chap. II, para. 33, of this Counter-Memorial.
• Vide Book IV, Chap. IV, para. 18, of this Counter-Memorial.
9 As in the cases of the Okavango, Kaokoveld and Caprivi, to be dealt with later,

the population figures do not include the small nurnber of non-Natives resident in
this area.
10 Vide Book III, Chap. II, para. 22, of this Counter-Mernorial.
11 U.G. 31-'37, p.96.
12 Including non-Okavango Katives living in the area as well as 850 Okavango

ternporary migrant workers in the Police Zone. COUNTER-MEMORIAL OF SOUTH AFRICA 9

In the Caprivi, the population figures fluctuate a great deal, owing
largely to the tendency of the inhabttants to move to and fro across the
border. In 1909, the Native population was estimated at 9,000, and in

1921at 4,249 1. In 1951, the census figure was 15,488,andin 1960,15,840 •

1 Vidl Book III, Chap. Il, para. 9, of this Counter-Memorial. CHAPTER III

AGRICULTURE IN THE POLICE ZONE

r. Reference has been made to the circumstances which necess1tated
development of the Police Zone by encouraging European settlement
on the land 1• At the same time, Respondent embarked on a policy of
providing land for the Natives, who had been dispossessed and dispersed
during the German period. At the end of the German regime, only a

few Native communities were permitted by the authorities to occupy
specific areas of land 2• It will be recalled that in r9r3 approximately
80 percent. of the total non-White adult male population in the Police
Zone were employed as wage-earners 3•During the period of military
occupation, temporary reserves were created for some Natives 4•

2. On assumption of the Mandate, Respondent decided to extend the
reserve system. In contrast to the settlement scheme for Europeans,
the reasons for which were economic (i.e., to develop the agricultural
resources of the area in order to increase and stabilize incarne, exports,
and revenue), the reserve policy was to a large extent based on social
considerations. Itwas deemed necessary to restore, as far as was possible,
the tribal life and social organizations of the shattered tribes as a pre

requisite to the establishment of a settled and contented Native popu
lation. It was not expected that Native agriculture would, at any rate for
years to corne, play any significant role in the exchange economy of the
area. Itwas, indeed, the appreciation of this factor which was one of the
reasons for stimulating White immigration. On the other band, the
provision of land and stock was essential for the restoration of the social

organizations of the tribes, and could form the basis for the future
development of Native agriculture.
3. The basic considerations of Respondent's reserve policy will be
dealt with in more detail below 5• At this stage, two points require
emphasis, viz.,

(a) The restoration of tribal life could proceed only on the traditional
basis of common utilization of land since the concept of individual
titleto land was repugnant to the very basis of tribal society in
South West Africa. In addition, such concept was not understood by
the Native population, who consequently did not appreciate _the

necessity for capital improvements or the danger of overgrazmg.
Their traditional attitudes towards stock placed importance on
quantity rather than quality. lndividual tenure of land would
therefore not only have frustrated the whole social object of creating
reserves, but would have resulted in wasteful use of land 6•
(b) A reserve could only serve its purpose if the inhabitants thereof

1 Vide Book IV, Chap. IV, paras. 23-29, of this Counter-Memorial.
2 Vide Book VI, Chap. III, para. 30, of this Counter-Memorial.
3 Vide Book IV, Chap. IV, para. 14, of this Counter-Memorial.
• Vide Book VI, Chap. III, para. 55, of this Counter-Memorial.
' Vide Book VI, Chap. III, of this Counter-Memorial.
6 Book VI, Chap. III, paras. 44-50 of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA II

were prevented from alienating land falling within it 1. Those in
control of tribal lands had in the past succumbed to the temptation
of sellingsuchlands for their own benefit. Examples are given below
of this practice the deleterious effects of which on the social and

economic life of the tribes need hardly be mentioned.
The manner in which Respondent set about providing the landless
Native population with reserves for their exclusive occupation, and the
problems encountered in this regard, will be dealt with elsewhere in this
Counter-Memorial 2•

4. Although the reserves were specially set aside for Natives to enable
them to resumetheirtraditional agricultural activities, no limitation was
placed on their right to acquire land in the unreserved parts of the Police
Zone, and it has always been open to any Native to purchase land in the
so-called European fanning areas. Their failure to do so, or even to show

any interest in this possibility, confirms Respondent's view, to which
reference will be made later, that the Native population is on the whole
not yet ripe forindividual ownership of land.
5. The policy of European land settlement soon paid handsome divi
dends for the benefit of all the inhabitants of South West Africa.

The Territory shared in the world's short-lived prosperity between
1925 and 1929, and also suffered with the rest of the world during the
early thirties in the severest and longest depression ever experienced.
South West Africa prolonged its phase of prosperity to some extent,
however, by its high level of internai capital formation when the first
signs of the great depression were already evident in other countries.
Subsequently, however, it experienced a more severe and protracted

depression than was the case inmost other countries, due toits exceptional
vulnerability to changes in world trade conditions; the fact that South
Africa went off the gold standard a year alter Great Britain did, thereby
tuming the terms of trade heavily against South West Africa during
1931-1932; the occurrence of a very severe drought in the Police Zone,
which lasted until the end of 1933; and the limited nature of the steps

which could be taken to counter the effects of the depression. Thus the
total income of South West Africa dropped from R14 ({,7) million in
1929 to R4,2 ({,2.1) million in 1933, i.e., a decline of 70 percent. 3 This
figure is to be compared with a contraction of less than 40 per cent. in
the national income of the United States of America between the years
1929 and 1932 (the latter being the worst year for the American eco

nomy) •. In the Union of South Africa, which also experienced drought
conditions, thecorresponding contraction was only 20 percent., thanks to
the stabilizing influence of gold mining. Even in real terms the domestic
income of South West Africa declined by 60 percent. between 1929 and
1933 to a level equal to that obtained in 1921-1922. Compared with
other African Territories also largely dependent on the export of primary
products, South West Africa appears to have suffered most. Thus, the

decline in value of South West African exports between 1929 and the

1 Book VI, Chap. III, paras. 51-54, of this Counter-Memorial.
2 Ibid., paras. 55-65.
3 Krogh, D. C., "The National Income and Expenditure of South West Africa
(1920-1956)", in The South African Journal of Economies, l\far. 196o, table p. 8.
4 Lewis, \V. A., Economie Survey z9z9-z939 (1949), p. 52.12 SOUTH WEST AFRICA

worst of the subsequent five years was 68 percent.; that of Tanganyika,
56 per cent.; Sierra Leone, 53 percent.; Nigeria, 52 percent.; and Kenya,
Uganda and the Gold Coast, 39 per cent. The total recorded value of
world exports declined by 66 percent., and thatof Africa by 48 percent.,

in the period 1929-1934 1.

COMPARATIVE STATEMENT OF 1-IVESTOCK OWNED BY WHITES AND
NON-WHITES IN THE POUCE ZONE DURING THE PERIOD 1929-1939

Whites [ Non-Whites 1 Total

Year
Sstock I Lstock Sstock stock I .stock 1· .sJock

(ooos) (ooos) (ooos) (ooos) (0005) (ooos)

1929 J 1,980 1 630 667 161 1 2,647 - t====7-9_-I:~I
1
1930 J 1,9[9 1 610 541 1 I35 2,46o 745
~-1·- 2,I59 +1--6-17--+--·-5-0-l--+---12-4--+-2-,6-6-0--ll· -·-7-41-

-1-93_2_] 2,402 ! 688 509 136 2,91 [ 824

1933 1 1,798 1 591 1 413 1 127 1 2,211 718
1934 1 2,032 1 599 1___ 4_1_0--+-1-·1--19--+-'-2-.4-4-2-+---7-18-

__ 1~_2_,_53_6_-+l __ 6_30_...;_l_5_J_o_-+-l__ 14_4_-+l _3_,o_6_6_+- __ 7_74_

1936 1 2,933 / 668 611 158 1 3,544 1

1937 1 3,439 1 762 700 159 4,139 921

1938 1 3,699 1 86g i 805 1 168 1 4,504 1,037

1939 [--4,-o-40--l,---1-,oo-7-+-1--8-97-----;-l--1-8-3---+1--4,--.--1,-19-~- -

6. The severity and protraction of the depression could largely be
ascribed to conditions in the minin~ industry which was practically

closed down. In spite of great difficulties, livestock farming proved to be
compensatory to the complete failure of mining during the first half of
the 1930s. The severe drought conditions which lasted until the end of
1933, the outbreak of foot-and mouth disease during 1934-1935, and the
poor prices in the South African livestock market during the tirst half of

the 1930s, contributed to the depressed conditions in South West Africa,
but despite it all, the level of income originating in agriculture recovered
by 1934-1935 toits high level of R3.1 (f1.55) million in 1929.

7. While the contribution of mining to the total incarne of South
West Africa had been reduced to nil in 1933 and 1934, agriculture still
contributed 18 percent. of the total income of the Territory in the worst
year of the depression and drought, namely 1933,and became the main

contributor to the incarne of the Territory during the latter part of the

1
Hailey, An African Survey (1957), p.1268. COUNTER-MEMORIAL OF SOUTH AFRICA
13

decade. This rise in the importance of the contribution of agriculture to

the total domestic product of the Territory, was due partly to the slow
recovery in mining, but also to a significant improvement in annual
agricultural production, which included the rapid growth of the karakul
industry dunng the latter half of the 1930s. Thus the value of the inco~e
originating in agricultural production increased from Ro.7 (fo.35)

million in 1933 to R7 (f3.5) million by I\H9, being more than double the
highest figure reached previously, viz., m 1928. Livestock farming pro
gressed annually, except during the severest drought years, as appears
from the table on page 12 reflecting the growth of livestock herds dur
ing the period 1929 to 1939 1,

8. As appears from the table on the previous page, despite the sev
ere drought conditions in the Police Zone and low livestock prices
on the South African markets, small stock holdings increased by 34 per
cent. and large stock holdings by 47 per cent. during the 1930s. The

relatively large growth in small stock holdings, especially in the case of
those owned by Whites, is to be ascribed to the phenomenal increase
in the number of karakul sheep, which proved to be much more re
munerative than the previous breeds of woollen sheep, since the price
of Persian lamb pelts remained relatively stable throughout the 1930s

while that of wool was among those most affected. The karakul sheep

DEVELOPMENT OF KARAKUL l'ARMING DURING THE 1930s 2

Number of Perce.J_; . Perceµtace
Year Karakul sheep annual of total :
(ooos) increas~- small.slock. -

1930 290 +·25.6 1 I7
1 1 1
1931 + 40.1 14.9
>- -~06 1 1 ·-·
19}2 531 + 30.1 18. 2
) 1 1
1933 567 + 6.7 25.6
l
1934 801 + 41. 1 32.8
1
1935 r,126 + 53, 1 38.7
'
1936 I,511 + 23.2 42. I
1 1
1937 1,906 + 26. I 48.6
1 ! \
1938 2,146 + 12.6 47.7
l 1 !
1939 2,616 + 21.8 53· I
1 1 1

1Sources as follows: 1929: U.G. No. 23-1930, p. 33. 1930: U.G. ~o. 21-1931,
p. 35- 1931: U.G. No. 16-1933, p. 34. 1932: U.G. Xo. 16-1933, p.35. 1933: U.G.
No. 27-1934, p.17. 1934: U.G. No. 26-1935, p.24. 1935: U.G.No.31-1937, p.20 ·
1936: U.G. No. 31-1937, p. 21. 1937: U.G. No. 25-1938, pp.n-23. 1938: U.G. No.
20-1939, pp. 21-22. 1939: U.G. No. 30-1940, pp. 66-67.
2 Report of the Long-lerm Agricultural Policy Commission (1949), table VI.I4 SOUTH WEST AFRICA

is, moreover, a much hardier brecd and can resist almost all but the

worst drought conditions, and its introduction into the southern portion
of the Territory mcant a major revolution in the productivity of this
othcrwise scmi-arid and poor region. The table on page 13 indicates how
karakul sheep came to replace othcr breeds of small stock and, thereby,
added another stabilizing force to livestock fanning in the Territory.
It should, howcver, be appreciated that karakul farming requires the
vigilant and continuous application of highly scientific breeding mcthods,

and that it took several years of experimental work before it could be
established on any large scalc. This largely explains why, during the
1930s karakul farming was developed and almost exclusively under
taken by Europeans.
9. The following table indicates how the export of cattle contracted

reJatively to the total cattle population during the greater part of the
I93os, despite the increase in herds during the period as a whole. The
relatively low percentage exportcd during the first half of the thirties
was due to severe drought conditions and poor export prices, and in
the case of I934, by the embargo placed on exports as a result of an
outbreak of foot-and-mouth discase, while the high ratios for 1935 and
1936 are mainly to be ascribed to the lifting of the export embargo.

While these figures largely reflect the difficulties experienced during the
I93os to dispose of the cattle of European farmers, they also suggest
why the deveJopment of commerdalized farming among the non-Whites
was greatly retarded during this period.

PERCENTAGE OFCATTLEPOPULATION EXPORTEDANNUALLY1927, 1930-1939 1

Caltle Percentage
YeaY population expoyted
(ooos)

1927 546 10.0
1 1
1930 655 1 5.5
1
1931 645 1 7.4

1932 1 725 1 4.7

1933 1 629 1 6.7
62:z
1934 1 4.7
1935 666 19.3

1936 707 15.4

1937 807 5.4
1 l
1938 908 7.4
1 1
1939 1 1,053 1 6.7

1 Repoy/ of the Long-teYni Agricullural Policy Commission (1949), table VIII. COUNTER-MEMORIAL OF SOUTH AFRICA 15

IO. The growth of agriculture in the late 1930s was, on the whole,
despite periodic set-backs, continued and extended in the succeeding
decades. The table on page 16 gives the quantities and value of the

main agricultural products of the Territory in 1936, 1946, 1956, 1960
and 1962 respectively. As will be seen, karakul pelts and cattle together
account for the predominant part of agricultural production. The fluc
tuation in the production of these and other products was caused mainly
by epidemics, and the worst enemy of the farmer in South West Africa,
viz., drought.

II. Referring to stock Iosses caused by drought, the Long-tenn
Agricultural Poliey Commission said:
"These will fluctuate from time to time in accordance with vari
ation inthe prevalence of disease ·orin that of climatic conditions or
in depredations by carnivora or thieves or in that of other minor
agencies. In order to ascertain what significance such Josses have on

the economy of the country as a whole and especially on that of
the agricultural industry, a calculation was made on the basis of
retums submitted for the Census Year ended August 31st, 1946,
and average market values during that year. The Census Year 1946
fellin the then drought cycle but the crisis was not reached until the
1946-1947 Summer, when many farmers had already sold what stock
they could to avoid loss or had moved their stock to parts in South
West Africa where the drought was then less severe or to the Union

(actually 229,669head of small stock were moved to northern Karoo
districts},and 10,853head of cattle were slaughtered in that year at
Walvis Bay as a special relief measure. It can therefore not be held
that the Census Year 1946 fully reflected the average yearly Joss
from drought during the drought period ."
The results of the calculation referred to by the Commission were as
2
shown in the table on page 17 •
During the last Agricultural Census Year (1961-1962) large stock
numbering 192,252 (representing 8 percent. of the total cattle population)
and smallstock numbering 420,172 (representing 8 percent. of the popu
lation) died as a result of drought, disease, etc.
12. Reference has been made above to the contribution made by
3
agriculture to the total domesticjroduct during the 1930s •Until 1950
agriculture and fishing combine still contributed more than mining,
but as from 195r the position was reversed with the contribution of
mining increasmg steadily until in 1960 (which was, however, a bad year
for agriculture), the contribution of mining amounted to no less than
40 per cent. of the domestic product, whereas agriculture and fishing
together contributed only rn.8 percent.
However, the history of the 1930s and 1940s has not been forgotten,

and it is realized that the economy of the Territory is still to a large
extent dependent on agriculture.
13. The specialized nature of the main forrns of commercial agricultura
activity (viz., the production of karakul pelts and cattle for export), the
adverse climatic conditions in the Terri tory, and the backgrounds of the

1 Report of the Long-term Agricullural Policy Commissio(1949),para.268, p.31.
2 Ibid., table II, 33.
3 Vide para.. 7supra. VALUE OF THE MAIN AGRICULTURAL PRODUCTS PRODUCl1D rN SOUTH WEST AFRICA 1

Year I936 Year I946 1 Year I956 Year r960 Year I96z
Producls
Quanti/y I Value Quanlity I Value I Quantily Value I Quanlity Value I Quantity I Value

Karakul pelts 1 814,561] 1 ([794,197) 12,223,524 ([4, n7,080)0 I2,802,927 (.l5,605,354))_r,975,683 ([4,330,038) 12,345,563 ([6,333,020)

CaU/e: 1
Exported R886,ooo iR2,392,206 / R12,382,8ool IR16,316,240/ RS,500,000
ro8,990 1 (J:443,000) i47,538 j(L1,196,103)1 206,380 ([6,r91,400) 299,568 ([8,158,120)1 170,121 (.!4,250,000)
1-------'!---------....\----
Locally
consumed - 1 _ 24 531 R392,4961 38 221 IR1,r46,63oll 6o 215 R1,806,45ol 91 924 R3,200,ooo
' ([196,248) ' 1 (.[573,315) ' ([903,z25) 1 · (b,6oo,ooo)

Smalt stock :
Exported 112 887 1 R135,464 R11,2121 / R8,17,41ol 8 --/ R347,370! 68 s/ R.j10,ooo
' (i67,732) 3,771 ([5,6o6) 141,235 (L,123,705) ! 57, 95 ([173,685) ,35 ([205,000)
- --- ---------,-----;-----:
Locally
consumed _ 1 .,,i, R656,3961 8 8 R289,0981 1 R312,oooi' 8 1 R.j41,ooo
- 1_----=---i_:,799 ({328,198) 4 ,I 3 ([144,549) 52,000 ([156,000) 73,4 I1 ([220,500)

6 R918,oool 6 6 R246,7321 88 868 R2,948,ooo ;·1Rr~46o --~--- -~ R1 ,226,~
Butter-lb. 7,0 2,205 1 {[459,000) 43, 77 (J:123,366) 19,3 ' ([1,474,000) 4,539,900 (L730,ooo) 5,059,370 (.füq,ooo)
-- ·---------- -~·------· ~ -- ~-
Milk-gallons 8 1 R30,700 /r z oooo• R500,ooo r o o oooI R.J50,ooo I 2 ooo I R535,ooo
- / - 1 I ,J,20J (.[15,350) ' 5 : (_l250,ooo) ' ] ' ([225,000) ' 74' --, (~z67,500)

Ch~~se-lb. 227,953 1 ([22,790) 18,550 r· (J:18,550) 538,946 l ([68,ooo) 81,397 I (.!12,000) JO8,625 1 (.!17,000)

Maize-200 R120,712 17.339 1 R34,678 I S 8 1 R557,95411· . 1 R126,~:~r:·~i37~631
lb. bags 65,856 1 ([6o,356) 1 i ([r7,339) 1 5,9, 51 ([278,977) 42,J14 I {i(,3,410)1 5 ,3 (i118,815)

• Production for 1958.

1 Departmental information. COUNTER-MEMORlAL OF SOUTH AFRICA 17
STOCK LOSSES DURING CENSUS YEAR 1946

J(ind Cause 1 1Percentage IPercentage 1
of of Nuniber of , of total , Value

___ s_1o_____k ,___ 1o_s___s ;,.---- popula~\ __ io_s__s l,-_-----
Large
-D-is_e_a__s,e_6_9_,3_3_6_:1!-5_4~---3-9_._9_6__ ,__([554,688),3-7_6_
_
Drought 90,010 1· 6.71 51.89 R1,440,16o
1 ([720,080)

I_O_t_h_-e_r ,__ 14-.-.-3·8-1-7.~ --a:-;;- R226,208
1 1 (1113, 104)

TottJI -i-------1---;-73~ --;i:.-;;-- 100.00 Rz,775,744
1 ([1,387,Sr-1)
---·- ------·- ---"i-
Small l Disease 1 1I3,191 3.37 14.22 R452,764
([226,382)

lhl-_·1_585,~ ~ - 17.42 73.49 ([I,170,206)

Othet 97,927 \ 12.29 R391,7oS
([195,854)

Total --79-6,-2-2-,-,·--2-3-. 7-,--100.oo I R3, 184,884
([r,592,442)

Native inhabitants, have resulted in commercial farming being largely

limited to Europeans. Attempts have been made to encourage Natives
also to produce for the market, and some success bas been achieved as
will be shown in the succeeding paragraphs.
PROVISION OF WATER IN POLICE ZONE RESERVES AT END OP 1g62 1

Numbe, Number Number
Name of l'eseroe of dams of wells
of boreholes

Aminuis. 37 23
Berseba . 23 6 13
Bondels. 16 36
Eastern Res. 14
Epukiro ... 58 10 [2
Fransfontein 9 3 Il
Gibeon .. 5 4 4
Neuhof ... 6 2
Okombahe 6 13
Otjohorongo JI 13 16
Otjituo ... 65
Otjimbingwe 37 63
14 7
Ovitoto .•. I2 18 19
Soromas ..•........ 5 9
Tses ...... . JO Il 15
Warmbad ... . 3
Waterberg East 5 1 17
13_2_2 __ _
1··-· Total

1 Departmental information: successful as well as unsuccessful boreboles are
included in the numbers given.18 SOUTH WEST AFRICA

14. Considerable attention has been devoted to the provision of water
in the reserves. The previous table shows the number of boreholes, dams

and wells in rescrves in the Police Zone.
By devcloping the water supplies a better distribution of the livestock
in the reservcs was obtaincd, and consequently the relatively poor grazing
{Aristida types of grasses) could be better utilized, with the result that
animais are at prcscnt not so adversely affected by drought.

In addition, stock diseases have been combated, the Native farmer in
the Police Zone reserves receiving the same veterinary services as the
European farmcr.
These various factors have combined to produce a substantial increase

in the number of stock (with the normal fluctuations caused by drought,
etc.) in the reservcs, as wm appear from the table on page 20.
The quality of the stock has also been improved by selective breeding
and by the introduction of well-bred bulls and rams.

15. ln the result, the livestock industry has grown substantially in the
reserves. To assist the residents to obtain the highest prices for their
livestock, organized sales are held in the reserves. These sales yield a
1
substantial (if variable) income, as will appear from the following table .

YeaY Cal/le sold Smalt stock Jncome
1 sold
1 1 1
1
1954 7,763 630 R192,566 ({96,283)
1 ·-1 l

1955 12,651 10,020 R313, 190 (.f!56,595)
[
1 1

1956 17,195 3,627 R454,866 ({227,433)
1 l

1957 19,930 1 6,083 R500,036 ({250,018)
1 1

1958 21,224 6,945 R424,310 ({212,155)
1
1 1 1

1959 14,830 J0,706 R325,340 ({162,670)
1 1 1
1
196o 16,023 5,196 R334,059 ({167,029)
1 1 1

1961 8,270 5,467 R203,465 ({101,732)

l 1 1

1962 2 ,993 6,073 1 R97,01 l({48,505)
1 1

1 Departmental infohnation. COUNTER-MEMORIAL OF SOUTH AFIUCA 19

A large number of animais are still sold out of hand, but prices so

obtained are low in comparison with those obtaincd at auction sales.
During 1958, for example, 3,435 animais were sold out of hand for
R56,762 (f28,38r), i.e., an average of lü6.52 {f8 5s. 3d.), whcreas the

average price for cattle sold at auction sales amountcd to R22.62 (fn
~3~- .

16. Creameries were established in various parts of the country to
enable the Natives to dispose of surplus crcam and milk. Although
substantial amounts have been eamed in this way, production is very
1
uneven, as will appcar from the following table •

CREAM SOLO TO CREAMERIES BY NATIVES IN RESERVES 1N THE POLICE ZONE

1956-1959

1 Value of cream sold

Aminuis ..... 1 R36,5r4 1 R26,5r8 H.13,864 Rr,200 1 R4,500
-------+-(_[_1s_._25_1_l +_(_1,_r3,:.5_9J ({,6,932) (_{,6oo)__J__ (l2,25~
1
Epukiro
R28,246 1 R17, roo I R296 R1 ,374 1 R145
(_{,14,123) (/,8,555) (b48) (_{,687) (.l72)
----------+-----i-------'-------'--·---------1
Fransfontein. . 1 R5,320 \ R3,780 1 - 1 - 1 Rr,860
(_{,2,660) (_{,r,890) ~30)

Okombahe .... R4,572 Il Rr,860 - 1 - 1 -

________ (.;.....b_,l6;-_..)..---_--_-)-'- ___ ri ___ _
11
Otjohorongo. R.1,820 R3,034 - -
([910) ([1,517)

Otjituo .... ·1· Rn,512 \ R6,462 R850 \ R706 R751
(_{,5,756) 1 (_l3,231) (i425) ([353) ([375)

Otjimbingwe. , .
Rr,ooo j
([500) 1

Total ...... · l R88,984 1 R58,788 Rc5,010
([44-492) ([29,394) \ (i7,505)

(The dedine in production as from 1957-1958 was caused by a severe drought,
which was later followed by a foot-and-mouth epidemic.)

17. Karakul-pelt farming is a highly specialized undertaking, and the
Natives initially did not attempt it. Intime, however, they became more
conversant with this type of farming, particularly in the southern regions.

In 1959, for example, Natives sold pelts for more than R61.ooo (ùo,500).

Conclusion

r8. The above survey shows the succesg achieved by the policy of
developing the agricultural potential of the Police Zone by means of

1 Departmental information. STOCK NUMBERS IN THE RESERVES INSIDE TRI!: POLICE ZONE 1

Name of ,esene
Large stock Aminuis. Berseba. 2,398 Bondels. 544 Epukiro. 1 8,368 Fransfontein i Gibeon .. 873 Neuhof ... 150 Okombahe 1 2,339 Otjohorongo 8,094 Otjituo ... 8,334 Otimbingwe 1 4,033 Ovitoto •.. 9,774 Eastern Reserve not created then . . . ..
Soromas ... . . 264 Warmbad .. . . . .. not created then Waterberg East 24,ogo Tses. ...... 1 Total + ................. 1 2
r937 :1956 :1959 r96a
Small Large Small Large Small Large Small
stock stock stock stock stock stock stock
1 1 1 1 !
1
11,907 ' 17,876 30,618 1,678 37,43° 10,490 1 49,719 25,367
47,320 1 3,999 1 100,455 4,252 101,265 2,487 58,639
8,420 1,775 1 28,972 r,884 28,240 1,361 30,421
5,924 1 26,705 3,814 19,597 4,200 32,987 11,913
357 1 3,53{ 3,646 7,892 002 4,557 886 4,634
8,111 ! 1,012 / 13,331 784 6,353 300 3,980
1,248 240 3,907 264 1,629 278 1,092
25,113 i 12,239 28,102 1,019 9,285 8,010
! 773
45,283 1 31,432 50,698 1,861 24,748 2,561 29,894
6,805 16,439 i 3,598 23,752 3,6o3 31,846 5,330
22,796 9,209 14,821 1,480 4,171 r,379 6,306
22,531 1 12,377 13,120 7,365 5,385 7,478 5,142
not 6gI 108 2,972 628 5,225 3,177
created
then 1
4,894 1 240 5,066 209 2,455 150 2,382
not 227 4,970 219 3,07!1 :;:80 2,653
created ! 1
then 1 1
II,519 38,186 9,645 35,900 8,125 37,072 18,000
1,845 1 33,621 ' 3,408 52,030 2,435 1 29,614 1,400 20,743
1 1 1 1
'
83,370 1 264,992 1 192,443 342,207 1,p,025 1 247,826 176,182 237,683
1 1 1 1 1 1 1

1
Departmental information: except for data relating to 1937
2 U.G. 25-1938, para. 3u. COUNTER-MEMORIAL OF SOUTH AFRICA 2I

European farmers, while at the same time setting aside and developing
Native reserves.
The agriculture of the European farmer has at all times made a sub

stantial, and, during some periods, an indispensable contribution towards
the economy and revenue of the Territory. The development of agri
culture in the reserves was a slow process, as was to be expected, but there
bas been considerable progress.

The Long-term Agricultural Policy Commission found shortly after
the Second World War that European-owned cattle and sheep were of
exceptionally high quality, and this quality is continuously being im
proved as a result of the stimulus of competition in external markets.

Although the same high quality bas not in general been attained by the
Natives, there has been considerable improvement in the standard, and
continuing progress is being made as more and more of them are being
won over to using sires of a better quality.

As far as numbers of stock are concerned, South West Africa compares
very favourably with other countries in Africa. It ranks first as far as the
number of sheep per capita is concemed, and is surpassed only by its
neighbour Bechuanaland in the number of cattle pe, capita. The following

table shows the comparative position in this regard between South West
Africa and some other territories in Africa:

LlVESTOCK PER CAPITA IN SELECTED AFRlCAN COUNTRIES:
AVERAGE 1954-1955-1956-19;;7 l

Caltle Sheep Goals
1 1
South West Africa. 3.49 6.28 1 1. 01
1 -
Bechuanaland 3.52 0.47 ' 0.93
1 J 1
Swaziland 1.84 0.13 1 o.6r
1 1 1
Southern Rhodesia 1.28 0.10 0.16
. 1 1
-Kenya I.10
.. 1 0.44 1 0.63

South Afrir.a .. 1 0.84 ! 2.68 1 0.37
··-·
.Tanganyika 1 0.82 1 0.34 1 0.48
1
Basutoland . .. 1 0.64 1 2.li i 1.03

1 U.N. Doc. E C~. 14 28, tables 1-IX, p. 27-Livestock per capila. CHAPTER IV

RESPONDENT'SREPLY TO APPLICANTS'ALLEGATIONS

(MEMORIALS)
Paragraph 16 of Chapter V 1

r. It is admitted that the bulk of the Native population of the Territory
is to be found in the northern areas outside the Police Zone. According

to the 1960 census figures, the total Native population numbered 438,575
(inclucling 4,528 foreign migrant workers, mostly !rom Angola) of whom
257,855 lived in the northem sector, amounting therefore to approxi
mately 63percent. ofthe total. The reasons for the greater density ofpopu
lation in the northem areas are to be found inmorefavourable climaticcon
ditions, and in social, economic and historical circumstances, including,
in particular, the fact that the inhabitants of these areas have always
been agriculturists, and not pastoral nomads like the Native inhabitants
of the Police Zone, and that they were largely spared the exterminating

wars of the past.
2. It is admitted that the inhabitants of the northern territories are
far removed from the principal areas of modem economic development
and activity. This was the position when Respondent assumed the
Mandate, and this situation could have been altered in one of two ways,
viz., either by encouraging or forcing the people to leave their lands and

flock to the Police Zone, or, altematively, by a process of rapid develop
ment of the northern territories with the aid of European initiative and
capital. The latter alternative has been considered above, where it was
pointed out that the moral and social detriment which would have
flowed from such a course would, in Respondent's opinion, have out
weighed by far any conjectural material benefit which might have
accrued to the inhabitants 2•
The former alternative would have been even more impractical. Even
on economic grounds, i.e., apart from social factors, there can be no

reason for encouraging the inhabitants of the northern areas to leave
their lands in order to attempt to practise their traditional subsistence
agriculture in less favoured regions (where agriculture, as distinct from
pastoralism, is by and large impossible) for the purpose of selling agri
cultural products in the unlikely event of there being any surplus over
and above their own requirements.
3. It is to be noted that the complaint levelled by Applicants against

Respondent in respect of the northern areas (being, in effect, that
"modern economic development and activity" should have been stimu
Jated in the area) amounts to the exact converse of their complaint
relatingto the Police Zone. Such development and activity would neces
sarily have required exploitation by Europeans of the only available
natural resources of these areas (i.e., the agricultural potential), with a
resultant loss of land by the Natives. On the other hand, with respect to
the Police Zone, where the Natives are near "the principal areas of

1 1,p. 112.
2
Vide Chap. II, paras2-5, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 23

modem economic development and activity", Applicants apparently
complain that the daims of the Natives to the land in the Police Zone
were not met 1, a course which, if followed, would have prevented the

maintenance or creation of such "areas of development and activity".
4. The nature of the agricultural activities in the northem areas has
been described 2•The subsistence type of agriculture is not, as Applicants

would seem to suggest, forced on the population by the inaccessibility
of markets or by a "deliberate, systematic and consistent course of
conduct" by which Respondent has "discriminated against the 'Native'
population of South West Africa in agriculture" 3• On the contrary, it
represents an aspect of the traditional lives of these people, which they

lead out of preference, not necessity.
5. Furthermore, it is incorrect to suggest, as Applicants appear to do,
that the inhabitants of the northem territories merely "survive", or that

their agricultural activities only "keep [them] alive under normal con
ditions". The favourable living conditions in the northem areas are
reflected in the increases in population referred to above \ In addition,
there has been a steady rise in the general standard of living in these
areas, due in part to increased agricultural production, and in part to

wages eamed by Ovambo workers in the Police Zone. In the latter regard,
it is true that the inhabitants of the northern areas take part in the
modern monetary economy mainly by serving as labourers in ihe mines,
industries and on farms within the Police Zone. Labour is the normal
way in which underdeveloped peoples enter the money economy. The

labour coming from the northem territories is regulated in association
with the Native tribal authorities in those areas, in order to prevent the
social disruption of their tribes 5•

Paragraph17 of ChapterV 6

6. The land in Native reserves was never, as alleged by Applicants,
"the property of the Administration of South West Africa". On assump
tion of the Mandate, ail land which had previously vested in the German

Government passed to Respondent in its capacity as Mandatory, or
Trustee, with powers of management and administration 7• This included
(with the sole exception of the Berseba reserve) the land which had been,
or was still to be, set aside as reserves. The reserves consequently at ail
times vested in Respondent, and not in the Administration of South
8
West Africa, which, in any event, is nota legal persona •
Save for the aforesaid, paragraph 17 is admitted. The nature and
fondions of the South African Native Trust, and the reasons for vesting
the South West African reserves in such Trust, are dealt with full y below 9•

1 Memorials, Chap. V, paras. 23 and 24, 1,pp. II4-n5.
2 Vide Chap. II, supra.
3 1,p.117.
• Vide Chap. II, paras. 10-12,supra.

6 Vide sec. C, Chap. V, para. 14,in/Ya.
1 J,p. II2.
Vide Book VIII, sec. C, Chap. VII, paras. 11-17, of this Counter-Memorial.
8 Ibid.,para. 27.
9 Ibid.,paras. 18-25. SOUTH WEST AFRICA

As wil! be seen, such vesting operated, and operates, for the benefit of the
inhabitants of the reserves.

Paragraph18 of ChapterV 1

7. It is incorrect to suggest, as Applicants appear to do, that ail com
mercial farms in the Territory are owned by Europeans. The Rt;:hoboth

Gebiet is largely owned by the Rehoboth Burghers in individual title,
and Native labour is employed on farms in the area. In addition, there are
at least 14 farms in the Territory which are owned by Coloured persons.
Furthermore commercial farming is practised to some extent in the
reserves 2•
The work done by Natives employed on farms varies from completely
unskilled work to relatively responsible and skilled work, such as that of
3
farm foremen. Recruitment o{ labour is dea1t with elsewhere •
Save as aforestated, paragraph r8 is admitted.

Paragraphs 19 and 28 of ChapterV •

8. The basic situation in the Territory on the assumption of the
Mandate, and the consequences ftowing therefrom, have been dealt with
above 5• It will be recalled that on assumption of the Mandate, the
Police Zone was largely underpopulated, and its development required
an increase in the immigration of European farmers. ln addition, it was

necessary for the regeneration of the social and political institutions of
the scattered remnants of the Native tribes that their members wishing
to practise agriculture should be concentrated in units in which the
traditional order could, as far as possible, be restored.
It follows from the aforegoing that Respondent could not reasonably
have pursued a policy permitting individual Natives, or small groups of
Natives, to live on, or to roam over large tracts of potentially useful

land. As a result of the events of the past, many of these individuals or
groups were dependent for their livelihood on the hunt or on robbery
and it need hardly be stated that they, living in the main on the fringes of,
or outside, the law, constituted a real threat to peace and security. In the
interests of the Territory, itwas therefore necessary to settle them, either
in reserves where they could practise and develop their traditional agri
cultural systems in the company of their own k:ith and kin and under

control of Respondent and the renascent Native authorities, or else on
farms or in towns where they could earn their living, acquire knowledge
of modern farming, commercial and industrial methods, and depasture
such stock as they possessed on the farms of their employers, the town
commonages or nearby reserves,
Consequently it would, in Respondent's view, have been detrimental
to the interests of the Territory if the authorities were to have desisted

from allocating pieces of land as farms, or proclaiming them as reserves,

1), pp. 112-113.
i Vide Chap. Ill, paras. 13 to 17, above.
J Vide sec. C, Chap. V,infra.
41, pp. 113 and n6.
' Vide Book IV, Chap. IV, of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA 25

merely because individual Natives or small groups of Natives were
making use thereof in the manner aforestated.
9. In the result, Respondent did not so desist, and consequently any

Natives found in areas allotted as farms, or proclaimed as reserves,
either had to fall in with the new status of such areas, or to leave them.
This consequence flowed inevitably from such allotment or proclamation.
The terms of the standard lease referred to by Applicants 1 merely served
to explain the rights of the lessee in this respect.

In reserves, the specific choice of any Natives living on the land prior
to its proclamation, was either to be assimilated in the reserve com
munities, accepting their authority, or to depart. On farms, such Natives
could negotiate acceptable agreements 2 with the farmers, or seek more
congenial employment elsewhere, or move to the reserves. In addition,

there was no legal bar to prevent them acquiring land for themselves.
m. In Respondent's submission, the whole emphasis of Applicants'
complaint is misplaced. There can be no objection to granting a right to

a farmer to have persans removed from his land ifthey are not prepared
to work for him. The only possible objection relates to the fact that land
was granted to farmcrs despite the presence thereon of Natives. When
regard is had to the considerations set out in the previous paragraphs, it
will be apparent that such objection possesses no validity.

Paragraph 20 of Chapter V 3

II. The facts stated in this paragraph arc admitted. The reasons for

organizing reserves on the basis of common use of land, have been
mentioned above 4 with reference ta a more detailed exposition in
Respondent's reply to Applicants' complaints regarding ''Rights of
Residence" 5 •

Paragraph 21 of Chapter V 3

12. Before dealing with the detailed allegations in this paragraph, it
is necessary to point out that it forms part of a section under the heading
6
"Well-being, Social Progress and Development in Agriculture" • (Italics
added.) Rights of ownership in respect of non-agricultural land are
therefore not at present relevant 7•
Nevcrtheless, the whole emphasis of Applicants' complaint contained
in this paragraph is placed on restrictions on the owning of land in urban
8
areas •Thus they commence by quoting part of a statement (presumably

11,p.116.
2Regarding wages, conditions of employment, the provision of an area for
cultivation or depasturing of stock, etc.
3I, p. t13.
• Vide Chap. III, para. 3,_supra.
3 Vide Book VI, Chap. Ill, paras. 44-50, of this Counter-Mernorial.
6
7I, p. 112.
The nature of rights exercisable by Natives in towns is dealt with elsewhere in
this Counter-Memorial-vide Book V, sec. E, Chap. III.
8 It is hardly necessary to state that agricultural activities are not normally
carried on inside urban areas. SOUTH WEST AFRICA

with the intention of attempting to refute it) in which Respondent
rendered it quite clear that Natives were entitled to acquire and occupy
land outside urban areas. However, in their next subparagraph they
refer again to provisions relating to rights in respect of land "within an
1
urban area ora rural township" •(Italics added.)
13. Finally, in an attempt to prove that Natives are not entitled to
own agricultural land in the Territory, Applicants refer to a statement by

Respondent that "the Natives general]y have not yet reached the stage of
development where they would benefit from individual land ownership,
particularly of farms" 2•
Whereas Respondent believes this statement to be true, it hardly
serves as evidence that Natives are by law precluded from acquiring
3
agricultural land. In its context , this passage served as an explanation
why assistance under the land settlement laws had not been requested by,
or granted to, Natives. In addition, it affords an explanation why no
steps have been taken to subdivide the reserves into separate allotments.
By no process of reasoning, however, can this statement, in conjunction

w1th provisions regarding ownership of land in urban areas, give rise to
the inference "that no individual 'Natives' own land or can own land
anywhere within the Territory of South West Africa" 4•

4
Paragraph 22 of ChapterV

q. The Union of South Africa never "declared ail unallocated land

within the Territory to be govemment land" as alleged hy Applicants.
On assumption of the Mandate, all land which had previously vested in
the German authorities, passed to Respondent 5• Provision was made
for the manner of dealing with such land in two proclamations, viz., the
6
Land Settlement Proclamation, 1920 , and the Crown Land ])isposal
Proclamation, 1920 7• The Land Settlement Proclamation, which is the
relevant provision for present purposes, denned "Crown Land" as fo1lows:

"... ail unalienated land within the said Territory however acquired,
which was lately the property of the German Govemment, and such
further land as may be acquired by Govemment under the provisions
of the Land Settlement Act as amended 8".

The definition of Crown land in the Crown Land Disposai Proclama
tion is, up to the words "of the Gennan Government", identical to the
one quoted above, but in the last part there are some verbal differences
which do not, however, materially affect the meaning 9•

1 Sec.7 of the Natives (Urban Areas) Proclamation, 1951, referred to in 1, p. n3.
z I,p. n3.
3 Ibid.,pp. n5-1I6.
• Ibid.,p. u 4·
5 Vide para. 6, sup,-aand Book VIII, sec.C, Chap. VII, paras. u-17, of this
Counter-Memorial.

7 P,-oc.No. 14 of 1920 in The Laws of Soulh Wesl Africa 1:915-19:lll, pp. 219-223.
Pf'oc.No. 13 of 1920 in The Laws of Soulh West A/'l'ica 1:915-19:1:1,pp. 216-219.
1 Pf'oc.No. 14 of 1920, Sched. I, sec. 2, inThe Laws of Soulh West Aj,-ica 1915-
19:1:1,p. 220.
9 Proc. No. 13 of 1920, Sched. 1, sec.1,The Laws o/ South West AJ,ica1915-19zz,
p. 217. COUNTER-MEMORIAL OF SOUTE: AFRICA 27

The true position therefore is that, at the inception of the Mandate,
former German Government land passed to Respondent, and that
legislative provision was made for disposai and allotment of such land.

15. Applicants' allegations regarding authority over govemment land
are also either wron~ or misleading. Legislative powers over the Terri tory
were initially exerc1sed by the Governor-General of South Africa with
powers of delegation 1.In 1925 a South West African LegislativeAssem
bly was created by Act No. 42 of 1925 2• This Assembly was given certain

limited legislative powers. However, any enactment (called an Ordinance)
passed by the Assembly 1equired the assent of Respondent's represen
tative, the Administrator, acting subject to Respondent's instructions.
The Administrator was also entitled to reserve any draft Ordinance ''for
the signification of the pleasure of the Governor-General" 3 (Le., Respon

dent's government). In addition, the Governor-General retained his own
powers of legislating for the Territory on ail subjects, an exercise of which
was expressly stated to override anything to the contrary contained in
any Ordinance 4.

16. Not only were these limitations placed on the legislative powers of
the Assembly, but it was also at no stage, prior to 1949, given authority
in respect of the allotment of Crown land. Section 27 of the 1925 Act 5
provjded that legis)ative competence regarding "the allotment, sale,

lease or disposai of Government lands in the Territory" could in certain
drcumstances be granted to the Assemb~ by the Governor-General. In
fact this was not done, and only in 1949 did the Assembly obtain sucb
competence but even then still subject to the possibility of disallowance
by the Administrator or the Governor-General, and to the overriding

legislative competence of the South African Parliament.
17. Not only was the power of Iegislation in regard to the allocation
of Crown land refained by the Govemor-General (or his representative,
the Administrator) until 1949, but he (or his officers) retained control

over the actual processes of allotment. In tenns of the 1920 Land Settle
ment Proclamation, the allocation of Crown land was the function of the
South Afrkan Minister of Lands, and this function was exercised on the
advice of the Land Board, a statutory body appointed by the Governor
General (i.e., the South African Government) 7• By Administrator's

Proclamation No. 53 of 1920 8, the powers of the Minister and of the
Governor-General passed to the Administrator.
In 1927 the Governor-General by Proclamation amended and con
solidated the provisions regarding Land Settlement 9•This Proclamation

provided that the appointment of the Land Board, and the allotment of

1Act No. 49 of1919, sec.2, in The Laws of South West Ajrica z9z5-z9n, pp. 10-12.
1 Act No. 42 of 1925 in The Laws of South West AfYica I92.5,pp. 6o-92.
3 Act No. 42 of 1925, sec. 32, in The Laws of South West Ajrica z925, p. 69.
• Ibid.,sec.44. p. 72.
5 Ibid., sec.27, p. 68.
6
Pursuant to Act No.. 23 of 1949 in The Laws oj South West A/rica z949, pp.
170-186.
7 Vide Chaps. III and IV of Act No. 12 of 1912, which was with amendments
applied to the Territory by Proc. No. 14 of 1920 in The Laws of Soulh West Africa
z9z5.z922, pp. 219-223.
8 Proc. No. 53 of 1920 in The Laws of South West Af,ica z9z5-z922, pp. 428-429.
9Proc. No. 310 of 1927 (S.A.) in The Laws of South West Africa z937, pp. 22-82. SOUTH WEST AFRlCA

Government land, would remain in the hands of the Administrator. The
Proclamation is still in force 1•

18. lt is apparent !rom the foregoing that, up to 1949, all power of
legislation regarding allotment of Crown or Government land vested in
Respondent, and that the actual allocation of land was always performed
by an official appointed by Respondent and under its control. lt is there

fore incorrect to say that "thereafter (meaning in the context shortly
alter the assumption of the Mandate) the Union transferred authority
over Government or Crown land to the 'European' Legislative Assembly
of the Territory" •

3
Paragraphs 23 and 24 of ChapterV

19. In 1913 Europeans owned farrns comprising a total area of 133,936
sq. km. " This area dîd not include large estates in the possession of

companies su5h as the Liebig Company and the South African Terri tories
Company • Since the assumption of the Mandate and up to May 1961,
Respondent has given out 171,624 sq. km., consisting of land which had
previously belonged to the Gerrnan Govemment, as well as land pur

chased !rom the said companies and others. ln addition, as at the said
date, farms amounting to 8,976 sq. km. had been purchased by the
Administrator on behalf of White farmers while an additional 6,790 sq.
km. were leased also to White farmers 6, and 75,rr4 sq. km. of Govern

ment land were leased to White 7armers for emergency grazing for the
duration of the drought • The total area of the Territory (excluding
Walvis Bay) is 823,145 sq. km. 8 lt is consequently true that Respondent
has transferred a substantial portion of the land area of the Territory,
which had previously been govemment land, or land owned but not used

productively for permanent settlement by Europeans ..lt is also admitted
that in this regard Respondent continued a process which had been
begun by the German Colonial regime. As will be noted at a later stage,
Respondent reserved, during the same period, lands totalling 206,437

sq. km. for the Natives as well as recognizing the Rehoboth 9 Gebiet
(13,122 sq. km.) as the property of the Raster community •
20. It is admitted that on assumption of the Mandate, Respondent

did not confiscate farms held in private ownership and did not accede
to the land claims of the Native inhabitants of the Police Zone. The
reasons which induced Respondent to follow an active policy of European
land settlement have been set out above 10• These reasons argued against

1
Although amended in immaterial respects by Proc. No. 205 of 1932 (S.A.) in
The Laws of South West Africa r932, pp. 22-32, and Proc. No. 77 of 1936 (S.A.) in
The Laws of South West Africa r936, pp. 4-10, and by Ord. No. 6 of 1951 in The
Laws of South West Africa r95z, p. 196.
2I, p. 114.
3 Ibid.,pp. 114-u5.
""U.G. No. 25-'38, para. 576, pp. 89-90, and Lord Hailey, A Survey of Native
Aff airs in South West Africa (1946) (unpublished), p. 50.
3 P.M.C., Min., IV, p. 113.

1 Proc. JIO of 1927, sec.11, in The Laws of South West A/rica r9z7, pp. 28-30.
Since the drought has terminated, these farmers have evacuated the land.
' Vide Book III, Chap. I, para. 4, of this Counter-Memorial.
9 Vide Book VI, Chap. III, para. 62, of this Counter-Memorial.
10 Vide Book IV, Chap. ]V, paras. 23-29, of this Counter-Memorial. COUNTER·MEMORIAL OF SOUTH AFRICA 29

the confiscation of farms owned by Europeans, who were. on the whole,

experienced and progressive farmers. ln addition;such confiscation could
hardly have taken place without compensating the owners, who had
la.wfully ohtained the land and effected expensive capital improvements.
Applicants have not stated from which source the moncy for such com
pensation was to be derived, unless the suggestion is that, because the
German Government had initially "seized" certain lands, such lands
should in 1920 also have been "seized" without compensation from the
then owners, and "returned" to the Natives. Apart from the inequity of
this suggestion, some intricate practical problems would have arisen
in deterrnining which Natives were entitled to specific lands. This is
apparent particularly if regard is had to the nomadic ha.bits of the varions

tribes, their conflicting daims to land and the wars resulting therefrom
during the nineteenth century; and al<:.0to their defca.t and dispersal
during the German regime 1• ·
2r. Respondent admits allocating approximately 4,885,000 ha. of
land to Europeans during the first three years of the administration of
the Mandate. The policy of European settlement was vigorously applied
up to 1930. In 1931 it came to a.complete standstill, and was resumed in

1935. During the war it was again virtually suspended. but was resumed
after the war, mainly in favour of ex·scrvicemen.
The following figures indicate the number of farms allocated 2 :

Number of farms
Period allocaled
1
I,261
1920•1930 ... ·...... l
I93I·I935 Nil
------ l
I9Jfi·l9iO ~-:~.-. -1 385

1941·1950 563
··-
I95 I·l9fiO ~ 793

1961 ! II
--· 1962 6
l

22. Respondent is not aware of the source of Applicants' statement
that "by 1929, most of the available government land ... within the
Police Zone ha.d been distributed" 3•ln a United Nations document\ a
similar statement was made, also without reference to a source, but the
year given was 1939, not 1929. 1t is admitted, however, that land. was

purchased from compa.nies which had large holdings, for subdivision
and distribution among European farmers.

1 Vide Book III, Chaps. II and III, of this Counter·Memorial.
2 Departmental information.
' I, p. 114.
• U.N. Doc. A/AC. 73/L. 10 of 19/8/57,para.231.30 SOUTH \\'ESTAFHICA

Paragraph 25 of ChapterV 1

23. As notcd abovc, aftcr the end of the Second World War, further
land was allotted. It is admitted that the Police Zone boundary was
extcndcd in 1953, 1954 and 195G. lt is incorrect to assume, as Applicants
apparcntly do, that the whole of the arca beyond the Police Zone has
been rcscrved for occupation by Natives, or that the whole of it is so
occnpied. 1n fact, thcre has always been a substantial uninhabited area

adjoming the Zone. As has been noted, the Police Zone resulted from an
historie administrative division of the Terri tory 2 continued by Respon
dent, and it constitutes the area in whlch the Police normally operate.
The rcasons for extending the boundaries of the Zone are therefore to be
sought in administrative considerations. In some cases this arose from
the neccssity of providing police protection for new farms allotted in the
previously uninhabited areas in the northern part of the Territory. There

were, howevcr, other reasons, such as to bring newly dec1ared Native
areas within the limits of the Zone, and thus to enable the Police, inter
alia, to inspect sheep therein for scab.

24- The total area of the Territory is 823,145 sq. km. (excluding the
Port and Scttlcment of Walvis Bay) 3• As at May 1961, land reserved for
or belonging to non-Whitcs amounted to 219,559 sq. km. and land owned
by or Ieased to Europeans amounted to 389,650 sq. km. In fact, therefore,
as at 1961, European farm land represented more that 45 percent. of the

Territory whereas reservcs amounted to approximately 27 percent.
It is admitted that a large part of the area such as the Namib desert,
falling outside the reserves and the areas farmed by Europeans, is un
suitablc for agriculture.
Applicants statc that "some of these lands [i.e., European farms]
bordercd upon the northcrn 'Native' arcas outside the Police Zone" 1.
In fact this statement is incorrect, since there is an uninha.bited strip of

land of varying width running along the whole length between the
northern Native areas and the Police Zone. But in any event, Respondent
does not appreciate why Applicants should object to the mere fact of
European fanns bordering on the northern Native areas.

25. The occupation of such a large proportion of the Territory's land
by European farmers, arises from historical and economic circumstances.
The position of the northern areas has been considered above 5•In those
areas the concentration of a relatively large number of people in relatively
small areas arises from superior possibilities for agriculture, as well as

from historical and social circumstances. In respect of those areas,
Applicants' complaint is apparently not that too little land bas been
left for the Native inhabitants-indeed, no cncroachment on the tribal
areas in the north is, or can be, alleged-but rather that Respondent
failed to create "areas of modem economic development and activity"

1 1, p. 115.
z Vide Book IV, Chap. III, para. 2, of this Counter-Memorial.
3 Vide Book III, Chap. I, para. 4, of this Counter-Memorial.
• Excluding an area of 6,790 sq.km. which had been leased to Europeans for
emergency grazing, but was subsequently vacated ..
5 Vide Chap. II,supra. COUNTER-MEMORIAL OF SOUTH AFRICA

in these areas, or to make them "part of the modern monetary economy" 1.
As has been demonstrated above, this in effect amounts to a complaint

that Respondent failed to introducc European farmers into these areas.
26. In the Police Zone, the Natives were at the inception of the Man
date to a considerable extent landless, and the country was generally
underpopulated. Respondent embarked on a policy of encouragingWhite
immigration, while at the same time creating Native reserves. The reasons
2
for both policies are dealt with elsewhere in this Counter-Memorial •Two
points, however, require emphasis at this stage:
(a) The only way in which Respondent could have ensured the posses
sion of land by Natives, was by creating reserves. The necessity for
preventing the alienation ofland by Natives isdealt with in more detail
3
elsewhere •It is notable that outside the reserves in the Police Zone,
no Native has ever purchased land, despite the absence of any legal
impediment in that regard. Consequently, if Respondcnt wished
to ensure that a greater percentage of land area should be in the
possession of the Natives, it would have been necessary to create
more or larger reserves.

(b) The economic development of the Territory required the encour
agement of European farming. Proper administration of the
Territory, not to mention its development, would have been im
possible for Respondent in the absence of progressive commercial
farmers. The Natives were not in a position to supply such men.

27. The objectives of Respondent's policies were therefore of a conflic
ting nature. On the one hand, it was deemed necessary to provide inalien
able reserves for the Natives, where they would be protected from \Vhite
competition and from inducements to sell their land. No commercial
production or revenue could be expected from these lands for many years.
On the other hand there existed, and still exists, a need, both from the

commercial and the fiscal point of view, for the use of land for modern
productive farming. lt was Respondent's duty to strike a balance between
these conflicting considerations, and, bearing in mind that Natives are
entitled to purchase agricultural land in any part of the Police Zone, it is
submitted that the provisions that have been made, are not unreasonable.
In addition, it must be emphasized that the present extent of the reserves
need not remain unaltered. In the past, when the need arose for more land

for Natives, the reserves were extended or new ones created, often by the
purchase or expropriation of European-held farms ~-

Paragraph26 of ChapterV 5

28. Save as indicated below, this paragraph correctly reflects the main
conditions relating to allotment of land. There have, however, been
variations in the past. So, for instance, when allotment of land was
resumed in r935, Respondent pursued-

1 I,p. u2.
2 Vide Book IV, Chap. IV, paras. 23-29, and Book VI, Chap. III, paras. 14-54,
,ofthis Counter-Memorial.
3 Vide Book VI, Chap. III, paras. 51-54, of this Counter-Memorial.
4 Und., para. 62,of this Counter-Memorial.
' 1, p.05.32 SOUTH WEST AFRICA

"a policy of allotting farms for a probationary period of one year ...
the settler receiving the bare farm only, on which he has to work out
his own salvation. No financial assistance is extended in any shape
1
or form ... ".
It is not correct to state that the settler can "obtain title to the land
only if he was a national of the Union" 1•The relevant requirement îs
that in cases of allotments since 1947, grants are made only to "British
2
subjects" • The expression "British subject" means "a South African
citizen, a citizen of a Commonwealth country or a citizen of the Republic
of Ireland" 3•
The term "South African citizen" includes persons born in South West
Africa since 1926 4•

It is to be noted further that the necessity of being a "British subject"
obtains only at the stage when the full purchase price has been paid, and
the allottee desires to obtain a grant of the holding. Normally 30 years
or more would, at this stage, have elapsed since the initial allotment

of a lease in respect of the holding, so that any allottee would have had
ample time to become naturalized. In fact, special provision is made for
allotments to overseas applicants 5•
It is admitted, however, that most allotments were made to South

African citizens.
As was stated in 1935 by a Commission of enquiry:
"The Union Nationals did not corne into 'the Territory devoid of

means or fanning experience. We have been informed by the
Secretary for South West Africa that between 1920 and 1925 the
average iunount brought by each settler wasl'754 and between 1926
and r93i:, l,r,287. As regards experience the farmer from South
Africa is from his environment and training much better qualified

to undertake farming operations in South West Africa than those who
have received their training in densely populated countries where
agriculture is practised and ranching is practically unknown 6 ."

Paragraph 27 of Chapter V 7

29. The facts contained in this paragraph are admitted. The reasons

why Respondent formed the view that "the Natives generally have not
yet reached the stage of development where they would benefit from
individual land ownership, particularly of farms" appear from the limited
nature of their agricultural activities as described above 8• Indeed,
Respondent's attitude seems to have been shared by the United Nations

Committee on South West Africa with reference to a more advanced

1 U.G. 30---1940, para. 339, pp. 74-75.
z Pl'OC.No. 310 of 1927 (S.A.) in The Laws of South West Afl'ica z927, pp. 22-84;
sec. 43 (1) (d) inserted by Proc. No. 39 of 1947 (S.A.) in The Laws of South West
AfYica z947, p. 134.
3 Act No. 44 of 1949, sec. 38, in The Laws of South West Africa z949, p. 234.
• Ibid.,sec. 2,in The Laws of South West Africa z949, p. 2o6.
3 Proc. No. 310 of 1927 (S.A.), sec. 17, in The Laws of South West Africa z927,
p. 34·
' U.G. 16-1935, para. 253, p. 46.
1 1, pp. 115-116.

' Vide Chaps. li and III, supl'a. COUNTJ.;H-MEMORlAL Ol: SOUTH AFRlCA 33

group than the Natives, viz., the Rchoboth llasters. Thus the Committee
said, in relation to the RehobothGebiet:

"The application of apartheid to the Gebiet and the consequent
iorced removal of 'European' {sic] leasing fa.rms from Rehoboth
Jandowners automatically deprives the Rehoboth landowners of a
major source of incomc ."

And the Committee continuc<l to argue that this loss o[ income could
lead to the insolvency of Hchoboth landowners, and the conscquent
alienation of their lands 2•
Thus the Committcc appears to have acceptcd that the Rchoboth

Basters could best utilize their land by letting it to Europeans, ra.ther
than by practising agriculture thcmselves, and that European farmers
would be able to makc a profit ovcr and abovc the amount of the rent,
whereas Baster farmcrs would not evcn be able to raise a sum cquivalent
to such rcnt.

30. Rcspondent's vicw, rcferrcd to in the prcvious paragraph, cxplains
why the Land Settlement schcmc has up to the prescnt hcen apphcd only
with respect to White farmers. The difficulty of dcvcloping land in the
Territory. the nccessity for applying modern scicntific metho<ls of
farming, soil conservation and water utilization, and generally the

complexity of agriculture and marketing in the adverse conditions
existing in South West Africa, have causcd the Administration to look
to the White farmer to dcvclop the country. A ncccssary corollary to the
fact that Natives and Coloured persons an~regartled as on the who1enot
sufficiently advanced to mcct the rigorous rcquirements of commercial
farming in the Tcrritory, is that White farmers should not, at any rate
while ownership in the farms remains vested in the Administration, be

entitled to cedc or assign their leascs to non-Whites. However, once the
fanner becomes owner of the land, no rcstraint is placed on his right of
alienation.
The condition rcgarding miscegenation 3 in the probationary lease ~
cannot by itself be relevant to "well-hcing, social progrcssand develop
ment in agriculture'', cxcept to the extcnt that it indicatcs a contem
plation tha.t such ka.ses would, whilc the relevant regulations remain

unamendcd, be grantcd to Europe.ans only. That this has in<leed been the
contemplation. is admitted. When Respondent deems the Native popu
lation ripe for in<lividual land scttlemcnt, provision can be made therefor.

Paragraphs 29 to 32 of Chapter V 5

31. In these paragraphs, Applicants make certain factual allegations
relating to drought relief from which they draw the inference that Res
pondent "used overwhclrningly the Jarger part of relief funds for the assisT
tance of the small 'European' proportion of the population, while the

1 G.A ., O.R., Twelfth Sess.. Su).o.12 (A/3626), para. 85, p. 17.
z Ibid.,paras. 85 and 86, p. 17.
3 I,p. u6.
• Promulgated under G.N. ~o. 323 of 1948 (S.W.A.) as part of the Land Settle
ntent Regulations in The Laws of South West Africa I948, pp. 254-266.
, I,pp. 116-117. SOUTH WEST AFRICA
34

relief funds used to help the large 'Native' population have been confined
to a comparative pittance" 1.
As will be shown, the picture drawn by Applicants is misleading.
Iargely because they fail to distinguish between the types of "assistance"
given to the European population and the Native population respectively.
Applicants refer 2 to a sum of f2,6oo,ooo made available for drought

relief. They then procced:
"This aggregate included -f..rmillion made available through the
commercial banks, fr,200,000 to the Land Board and Land Bank oi
the Administration, f250,ooo to two farmer's co-operative societies
and the remaining f r50,ooo for unforseen emergency relief 3."

Save for the lastmentioned sum of f 150,000, the whole amount men·
tioned above was applied solely towards providing loans for farmers,
and not, a,;Applicants would seem to suggest, free grants. This appears
clearly from a resolution of the Executive Committee which preceded the
relevant vote of the Legislative Assembly. This resolution read as follows:
"r. That f400,ooo be made available to the Land Board for aid for
scttlers and landlcss farmers;

2. That [400,000 be made available to the Land Bank îor aid to
landowners;
3. That fr,000,000 be made available to commercial banks on
investment to enable them to grant greater credit facilities;
4. That {.200,000be made available to the Land Bank for advances
of froo,ooo each to the two co-operative societies for five years at
4% interest and against promissory notes. Anoth~r f5o,ooo to be
made available for a Joan to F.C.U..for ten years at 4% with fixed
property as security; : !

5. That a further :f4oo,ooo be made'available to thti:Land Bank for
ordinary loans ;
The aid mentioned in r and 2 to take the form of short-term loans,
that is for 5 years at 4% and only to be granted to active fanners
embarrassed as a result of drought."
These extra credit facilities were necessary to enable farmers to pay
pressing debts, mortgage instalments, etc. Respondent submits that,

regard being had to the financial position of the South West African
Administration, and the economic contribution of lthe agricultural
industry to the national product of the Terri tory as well as to the income
of the Administration, the sum of R4.9m (f2.45m) was neither an exces
sive nor even an exceptional contribution on the part of the Adminis·
tration to the available pool of credit which became necessary to tide the
agricultural industry over a very severe crisis.
In addition to the above provisions for credit, subsidized transport of
drought-stricken stock was provided, and a subsidy on maize was given,

amounting at first to 30 c. (3s.)per bag, and thereafterto Rr (ros.) perbag.
Finally, the crisis was met by the provision of emergency grazing on
vacant govemment land wherever practicable and by co-operation with
the authorities of the Republic of South Africa to ensure the marketing
of the largest possible number of stock before their condition deteriorated,

1 1, p.II8.
2 Ibid., para.29,p. n6.
3 Ibid., p.I 16. COUNTER-MEMORIAL OF S0UTli AFRlCA 35

subject to the limitations which wcre also imposed on the movcment of
stock as a result of an outbreak of foot-and-mouth disease.

32. As has been seen, the relief funds made available to Europeans
were utilized mainly by the provision of loans at a minimum rate of
interest of 4 per cent. per annum.
The pattern of assistance to Native farrners, who wcre in communal
occupation of land, and who in many cases did not yct fully participate
in the money economy of the Terri tory, naturally had to follow a diffcrcnt
course. In their case there was no question of thcir being forccd off the
land by rcason of failurc to pay intcrcst or capital instalments on mort~
gages, or inability to meet other obligations. Serious attempts wcre
made to influence the residents of the reserves in the Police Zone to sell
some of their stock in the carly stages of the drought to forestall heavy
losses, and the Departmcnt of Rantu Administration and Development
organized stock sales for this purposc. When it was found that the Natives
were not taking timeous advantagc of the mcans offercd to reduce the
large number of stock held by them, othcr steps were taken to assist
them to save thcir stock. In 1959 the grazing in the Eastern Native
Reserve was still good and an offerwas cxtended to the inhabitants of the

Ovitoto, Otjohorongo, Okombahe and Otjimhingwe Reserves to take
some of their cattle and smalt stock to that Reserve. Unfortunatdy, vcry
few responded to this offcr. Jn ail rcscrves large amounts werc spent
directly on augmenting water supplies, thus enabling the inhabitants to
move their stock to other availablc grazing, which being communally
used, did not involve the inhabitants in any financial outlay.
33. In addition to the aforesaid, drought relief took the form mainly
of direct personal assistance to thosc Natives who were in jeopardy of
losing their sustenance in the subsistcnce cconomy. The steps taken in
this regard are set out in the succccding paragraphs.

34. The following direct drought relief was granted:
(a) During the period October 1959 to March r96r 148,395 bags of
mealies and mealie-meal were distributed on aresale basis among the
inhabitants of Ovamboland. In those cases whcre inhabitants of the
drought-stricken area were not in a position to pay by reason of old
age or incapacity, they were supplicd with free issues.
(b) The Administration of South West Africa paid a subsidy of 30 cents
(3s.)per bagon the first 89,155 hagsand thereafter R1 (ros.) pcr bag on
the balance of 59,420 bags, the total expenditure being R85,986
(f42,9g3).
(c) In addition to (b) above the Administration also supplied food to
schools and hospitals in Ovamboland at acost of R20,328 (fro,164).
(d} On an average 400 labourers per month for a period of approxi
mately six months (October to March) in each ycar were employed on
relief works, such as repairing roads, making dams, etc., and the

expenditure so incurred amounted to R.22,000 (fn,ooo).
(e) In the Kaokoveld 1,700 bags of mealies were distributed among the
inhabitants, and, as in the case of Ovamboland, the Administration
paid a subsidy of RI (ros.) per bag.
{t) Seven additional 3-5 ton trucks with their drivers were made avail
able by the government garage for use in distributing the food in
Ovamboland. The total number of miles donc by these additional
trucks came to 86,000. SOUTH WEST AFRICA

(g) Financial assistànce by way of a subsidy on rail and road motor
transport was granted by the South African Govemment. The
subsidy amounted to R9,906 (f4,953).
(h} Special efforts were made by the South African Railways and
Harbours to transport the mealies and mealie-meal from the rail-
heads at Tsumeb and Grootfontein to Ovamboland by means of
railway buses, and at times no less than ten 10-ton buses were in
operation. The officiais of the Department of Bantu Administration
and Development and of the South African Railways and Harbours
worked day and night to ensure that an adequate supply of mealies
was available for distribution.

35. The distribution of maize was restricted to the northem Native
territories of Ovamboland and the Kaokoveld. The residents of the
reservcs in the Police Zone also suffered heavy stock losses as a result of
the drought. In those cases where they were unable to work on account of
old age, disability or infirmity, they were entitled to apply for free issues
of pauper rations. Many applications were received and rations to the
value of just on R30,080 (f15,040) were issued.

36. The following is a summary of the expenditure r_eferred to in
paragraphs 34 and 35:
(i) Subsidy on mealies and mealie-meal dis-
tributed in Ovamboland . . . . . . . . R85,986.oo (f42,993)
(ii) Food supplied to schools and hospitals in
Ovambo1and . . . . . . . . . . . . . 20,328.00 ([10,164}
(iii) Subsidy on mealies and mealie-meal dis-
tributed in Kaokoveld . . . . . . . . 1,700.00 (f850)
(iv) Wagcs to labourers on relief works . . . 22,000.00 (fn,ooo)
(v) Subsidy on rail and road motor transport 9,906.00 (!4,953)
{vi) Pauper relief . . . . . . . . . . . 30,080.00 (f15,040)

Total . . R170,ooo.oo (f85,ooo)

37. Loan facifüieshavealso now been created for Natives who suffered
stock lossesas a result of the drought and the foot-and-mouth epidemic.
Loans totalling R120,500 (!60,250) were granted by the Administration
of South West Africa to tribal funds to be used to enable Native owners
who had lost stock in consequence of the drought and foot-and-mouth
disease to replace such stock. This amount, made available in 1962, was
interest free fora period oftwo yearsnd thereafter bore interest at the rate
of 2 pcr cent. per annum 1•

38. The general attitude adopted by the South West African Adminis
tration in conncction with drought assistance was summarized by the
Administrator in his reply to the 1961 Budget debate in the following
terms:
"Regarding the Native farmers in the Reserves, I have prevîously
indicated that assistance with a view to their economîc rehabilitation
will be considered after the drought has been broken and the extent
of assistance that is required, can be determined with reasonable
accuracy.

Honourable Members will realise that the assistance given in

1 Departmental information. COUNTER-M:EMORIAL OF SOUTH AFRICA
37

connection with the drought, mainly worked to the advantage of
white farmers for the simple reasonthat the obligations in connection
with which the important forms of relief were granted, do not rest
upon the Native farmers. Sp, for instance, would the suspension of
payments of interest and capital not be applicable to the Bantu
because they have no loan debts: In respect ofloans for the payment
of pressing debts, the same argument applies because the Bantu
could not be summonsed for such paltry debts as they may have.
The measures for saving the livestock were available to the Native
farmers just as much as to the white farmers. The subsidy of maize
at Rr.oo per bag assisted the Bantu, not only to save his cattle, but

also to the extent that it supplied them with a cheaper staple
food.
Regarding measures with a view to economic recovery, it stands to
reason that a distinction will have to be drawn between the whlte and
native farmer on account of the different systems of land tenure.
In respect of the white farmer, steps will be taken in every
individual case to ensure the r~rayment of the loan. In the case of
the Nativefanner, a system of loans is impossible on account of the:îr
traditional and customary farming system and consequently a
system will have to be applied by way of careful consultation, which
will ensure assistance where it is necessary, but which will exclude
the mis-use of public funds as far as possible. ·
The first task will be to detennine the extent of the need. As
Honourable Members know, the rains came late and it is necessary
to see to what extent the grazing is restored. Reports have reached

me that nearly all the Reserves had reasonable rains and that the
grazing has recovered well, and we can now proceed with a vîew to
assistance.
The extent of the assistance that is necessary and the manner in
which it can be furnished are matters now enjor.ïng consideration
and to the extent that co-operation of the tnbal authorities is
obtained, measures will be designed and applied in thîs con
nection."
The provision of loans of R120,500 (f6o,250), referred to above, was
one of the outcomes of this policy.

39. During 1962 the further need for emergency grazing for stock
belonging to non-Euroreans arase and the Administration was able to
consider favourably al applications made by Native farmers for such
grazing. Ample provision was immediately made in the Grootfontein
district for drought-stricken animais. The Administration opened up
water there at its own expense.
Applications for emergency grazing, mainly for small stock and to a
lesser extent for cattle, were also received from Coloured farmers in the
districts of Keetmanshoop, Gobabis and Otjiwarongo. The Adminis
tration was in a position to meet these applications by setting aside
grazing in the Gibeon, Gobabis and Grootfontein districts.
In these cases, i.e., of Coloured and Native farmers, emergency
grazing was granted under conditions similar to those applicable to
1
Europeans •

l Departmental information. SOUTH WEST AFRICA

Paragraph 33 of ChapterV 1

40. Respondent's reply to Applicants' contentions in this par~graph
appears from the preceding paragraphs. In respect of the specific allega
tions contained in subparagraphs (i) to (v),Respondent states as follows:

(a) Subparagraph (i)

Ail agricultural land in the Territory, save for the Native reserves and
govemment land, may be acquired by any person, European or Native.
In addition, Respondent has set aside substantial reserves for the Natives
who, in the Police Zone, were to a considerable extent landless at the
inception of the Mandate. To protect the position of the Natives, these
reserves cannot be alienated by them.
It is consequently entirely incorrect to say that Respondent has "pro
gressively reduced the proportion of farm land available for cultivation
or pastoral use by the 'Native' population, while it has progressively
increased the proportion of such farm land available to 'Europeans' " 2•

{b) Subparagraph (ii)
Natives are, as has been said repeatedly, entitled to acquire individual
ownership;of agricultural land in any part of the Police Zone, excluding
the reservès. The reasons why the reserves are farmed on a communal
basis, are ;sét out elsewhere in this Counter-Memorial 3, and it is not
necessary to repeat them here.

(c)Subparagraph (iii)

Whereas the role of the Native population in agriculture is, to a large
extent, still limited to subsistence farming within the reserves, and em
ployment as labourers (although not necessarily "common" labourers)
on European commercial fanns, it is, for the reasons set out above,
completely false to say that Respondent has caused this situation. On the
contrary, Respondent's efforts have been directed towards improving
the possibilities of Native agriculture, as appears from the foregoing.

{d) Subparagraph (iv)
No factual allegations are made to support this contention, and
Respondent therefore cannot deal with it. In fact, the developments
which have taken place, and others which are at present under considera
tion, open up ever-increasing opportunities of progress for the Natives
in agricu]ture.

(e) Subparagraph (v)
In connection with emergency relief made available in tunes of drought,
Respondent has used the larger part of relief funds directly expended as

irrecoverable state aid, for the Native population, and has confined the
use of relief funds for the assistance of the White population mainly to
arrangements for, or granting of, loans repayable with interest.

1 I, pp.117-IIS.
z Ibid., p118.
3 Vide Book VI, Chap. III, paras. 44-50, of this Counter-Memorial. CHAPTER V

CONCLUSION

r. In paragraph 190 of Chapter V of the Memorials, under the heading
''LegalConclusions" 1,Applicants allege that Respondent "has violated,
and continues to violate itsobligations as stated in the second paragraph
of Article 2 of the Mandate and Article 22 of the Covenant" in a number
2
of respects. As regards agriculture, Applicants repeat , almost verbatim
the charges contained in paragraph 33 of Chapter V of the Memorials 3•
2. Respondent has dealt with these charges in the preceding pa.ra
~aphs, and it is consequently unnecessary to deal again with the relevant
'LegalConclusions". It issufficient to reiterate that the said charges, and

therefore also the said conclusions, are unfounded and without substance.

1 I, pp.162 ff.
~ Ibid.,para. 190 (i) (a) (b) (c} (d) and (1),pp. 16:i-163.
' Ibid.,pp. 117-118. SECTIONC

WELL-BEING,SOCIALPROGRESSAND
DEVELOPMENTIN INDUSTRY

CHAPTER I

INTRODUCTION

1. Applicants' charges relative to "the well-being, social progress and
development in industry" are summarized as follows in paragraph 77
of Chapter V of the Memorials:
"In the industrialphases of the economic lifeof the Territory, in
the agricultural aspects of the economic life of the Territory, the
Mandatory has failed to promote to the utmost the well-being, the
social progress and the development of the larger part of the popu
lation. It has not even made any substantial effort to do so..To the
contrary, by law and by practice, the Mandatory has engaged in a
consistent course of positive action which inhibits the well-being
and prevents the social progress and the development of the larger
part of the population. As the data exhibited in the foregoing
paragraphs make clear, the record of the Mandatory's behavior
toward the 'Native' population of the Territory has been a bleak and
consistent record of negation, frustration, constraint and unfair
discrimination. More particularly, as demonstrated in detail in the
preceding paragraphs:
(1) The Mandatory bas denied and continues to deny to the 'Natives'
of the Territory opportunity to take part in mining and other in
dustries as a prospector, entrepreneur, operator, or owner.
{2) The Mandatory bas denied and continues to deny to the 'Native'
population opportunity to take part in executive, managerial,
professional or technical posts in mining and other industries.
(3) The Mandatory bas unfairly prohibited and continues to prohibit
'Natives' from taking part in the processes of collective bargaining
and conciliation and arbitration of disputes.
(4) The Mandatory bas confmed the participation of the 'Native' popu
lation in the industrial economy, for ail practical purposes, to the role
of unskilled laborer.
(5) for the 'Native' population into a pattern of constraint and comr
pulsion that consistently subordinates the interests of the 'Native'
Jaborers to the interests of their 'European' employers.
(6) The Mandatory has so drastically curtailed and circumscribed the
possibilities of choice for 'Native' laborers as to leave them, foall
practical purposes, very little freedom of choice with respect to place
of employment, type of employment, identity or character of em
ployer,or conditions of employment. COUNTER-MEMORIAL OF SOUTH AFRICA

(7) The Mandatory has denied to 'Native' laborers equal legislative
protection in the form of rrovisions for holidays, sick pay, and
compensation in the event o illness or injury caused by employment
1
which are made available to 'White' employees ."
2. The so-called "data" on which the aforegoing complaints are based,
are contained in paragraphs 34 to 76 of Chapter V of the Memorials 2
which said paragraphs are devoted to a treatment of the following
subjects:

(a) The fishing industry.
(b) Mining and minerals.
(c) Railways and harbours.
(d) Labour recruitment.

(e) Labour conditions within the Police Zone.
3. The said subjects are dealt with separately in Chapters II to VI
below.

1 I, pp.130-131.
2 Ibid., pp.117-130. CHAPTER II

THE FISHINGINDUSTRY

General

r. After stating vert briefly certain facts relative to the fishing industry
in South West Africa , the Applicants allege as follows:

"The enterprises in the industry are essentially 'European' owned
and operated. White more than 3,500 'non-Europeans' are employed
in the fishing industry, the role of the 'Natives' is substantially
confined to unskilled labor 2;''

2. In paragraph 77 of Chapter V of the Memorials the following charges
are, inter alia, made relative to industries in general:
"(r) The Mandatory has denied and continues to deny to the
'Natives of the Territory -opportunity to take part in mining and

other industries as a prospector, entrepreneur, operator, or owner.
(2) The Mandatory has denied and continues to deny to the
'Native' population opportunity to take part in executive, mana
gerial, professional or technical posts in mining and other industries.

(4) The Mandatory has confined the participation of the 'Native'
population in the industrial economy, for ail practical purposes, to
the ro1e of unskilled laborer ."

3. Before dealing with the Applicants' charges, it will be convenient
to give a brief account of the fishing industry in the Territory and its
development. ·

The Fishing lndustryin South West Africa

4. The fishing industry in South West Africa is virtually limited to
off-shore sea fishing along the Atlantic Coast 4•
The coastline is fringed by the barren and inhospitable Namib desert 5,
with the result that there is exceedingly limited huma.n habitation along
the coast. The only coastal towns are Walvis Bay 6, Luderitz, Swakop

mund and Oranjemund, and only the first-mentioned two have harbours.
These topographical features, and the rough seas along the coast,
militated against any form of sea fishing by the indigenous peoples of
the Territory. ,
Fishing as an industry was not exploited to any notable extent until

1 I, paras. 34 a.nd 35, p. u8.
i Ibid.,pp. u8-n9. ·
' Ibid.,pp. 130-131. i
• In some of the rivers bordering the territory, such as ~he Oka.vango and the
Za.mbesi, fish are ca.ught by the Natives, a.nd form part of their normal diet, but
are otherwise of little economic importance. '
s Vide Book III,Cha.p. I, para. 6.
6 Which is not pa.rt of the Territory of South West Africa, ibid., para.. 4. COUNTER-MEMORIAL OF SOUTH AFRICA
43

after the Second World War, when South African companies commenced
fishing operations from Walvis Bay,
5. As the Territory itself offered no substantial markets for fish, the
industry was dependent on foreign markets, which necessitated the

establishment of factories for the canning and processing of fish and
fish products for export to world markets.
These enterprises called not only for considerable capital investments,
but also for technical knowledge and experience. It is therefore only
natural that the fishing industry in South West Africa should have been
established and developed primarily by companies operating as sub
sidiaries or associates of companies already established in the industry
in South Africa.

6. The industry in the Territory is centred around the harbour towns
of Walvis Bay and Luderitz, and is based mainly on the catching and
processing of pilchards and rock lobsters.
At present there are nine factories at Walvis Bay, ail concerned with
the processing of fish and fish products. Six factories at Luderitz process
and pack frozen rock lobsters.
7. The South West African Administration e:xercisescontrol over the
industry in the Territory, and, to conserve the fishing assets off the coast,
it limits the tonnage of fish which may annually be processed by each
factory, and also the tonnage of every fishing vesse! serving the said

factones.
The Administration has employed marine biological research teams
to explore the off-shore marine resources in order to contrai the industry
properly and to apply effective conservation methods. Such research
has also promoted the economical development of the industry.
In 1953 the South African Bureau of Standards took over the technical
f;Uidanceof the industry in ail aspects of processing and packaging, and
1t has since been the main source of technical advice to the South West
African Administration and the industry.

8. Since the Second World War the quantities of fish caught off the
coast of South West Africa have increased considerably over the years.
The total catch increased from ?,:130 tons in :1948to 26o,056 tons in
r958, and to 325,000 tons in 1961 .
For the year 1961 the total value of the prnducts of the industry in the
Territory exceeded R22 million {fII million), the total, in round figures,
being made upas follows 2:
Canned fish . . . R14szo,ooo (l7,26o,ooo)
Frozen and canned
rock lobster 2,300,000 (lx.150,000)

Fish oil . I,590,000 (l795,oool
Fish meal .. . 4,200,000 {J),I00,000
Cured fish .. . :140,000 (f.70,000
(lu,375,000) 3
R22,750,ooo

' Slate of SoutA/f'ica-Year Book (1963),p. 429.
2 Ibid.,p. 509.
' White Pape,. on the Actiuilies of the Difjerent Brançhes of the Administration of
South West A/rica for the Book Year r96r-I96z, a.t p.13. SOUTH WEST AFRICA
44

9. The "United Nations Economie Survey of Africa since 1950",
published in 1959, points to the great potentialities for the development
of fishing and fish products in Africa, and states that-

"In Africa south of the Sahara, the greatest expansion took place
in Angola, the Union of South Africa and South West Africa, which
are the three largest producers in Africa since 1948-1952 ."

According to the said Survey the total average quantity of fish landings
for South West Africa during the years 1955-1957 was 240,500 tons. Com
parative figures in the same years were: South Africa, 322,600 tons, and
Angola, 368,800 tons 2•

ro. The success of the industry in South West Africa, and its develop
ment, required technical knowledge and research, wise conservation and
control measures, experience in catching the fish, in processing the catch
and in marketing the products of the industry, and entailed considerable
capital investments.

The indigenous peoples of the Territory had no knowledge of, or
experience in, the activities aforestated, and were therefore unable to
contribute to the establishment and development of the industry other
wise than in an unskilled capacity. Through European enterprise, the
industry has offered a new field of employment to the non-White peo:ples
of the Territory, which contributes not only to their economic well-being,
but also to their experience in a new sphere of economic endeavour. The

1960 census revealed that 1,317 non-Europeans were employed in the
fishing industry. In the food manufacturing industry, which is closely
allied, no less than 3,655 non-Europeans were employed in that year 3•
The industry furthermore contributes substantially to the revenue of
the Territory, which is employed in the advancement of the well-being
and progress of all its inhabitants.

Respondent's Reply to Applicants' Allegations (Memorials)

PARAGRAPHS 34 AND 35 OF CHAPTER V 4

II. The allegations in these paragraphs are admitted.
As to the annual value of fish and fish products produced in South
West Africa, Respondent refers to what has been stated in paragraph
8 above. The financial support contributed by the South West African
Administration with regard to research and development for improve
ment of the industry, as dealt with in paragraph 7 above, has been not
only for the benefit of the industry as such, but also for the benefit of the
Territory and all its inhabitants. Not only does the industry contribute

substantially to the revenue of the Territory, but, particularly in so far
as the non-White population is concerned, it has offered a new field of
remunerative employment to a substantial number of the inhabitants
of the Territory.

1Economie Survey of Africa sin<:e 1950, U.N. Doc. E/CN-14/28, p. 105.
z Ibid.p. 30.
lDepartmental information.
• I,p.u8. CO\JNTER-MEMORlAL OF SOUTH AFRICA 45

PARAGRAPH 36 OF CHAPTER V 1

12. It is correct, as the Applicants allege, that the enterprises in the
industry arc cssentially Europeail owned and operated. lt is also correct
that the role of the Natives employed in the industry is substantially
that of unskilled workers.
lt is only natural that Europeans, who possessed the initiative and the

neccssary knowledge and technical experience, should have established
and developed the enterprises in the industry. It is likewise only natural
that the Native inhabitants of the Territory, who had no knowlcdge or
experience of, or training in, 5uch enterprises, should, at least in the
early years of the industry, have been unable to contribute toits estab
lishment or development otherwise than as employees in an unskilled

capacity. With the passage of time, however, many of them have been
trained to do a variety of skilled or semi-skilled work, such as the opera
tion of cutting, se~arating, vacuum, seamer and labelling machines;
operating water punfying plant, driving tow motors, etc.
There is nothing in law which prevents Natives from being employed
in any capacity in the industry, and the fact that their role therem is at

present substa.ntially that of unskillcd labourers, is due to their general
lack of educational qualifications, technical skill and experience. It is
expected that in the course of time more Native employees will qualify
themselves for appointment to skilled and more responsible positions in
the industry.

PARAGRAPH 77 OF CHAPTER V 2

13. Whereas in paragraph 36 of Chapter V of the Memorials it is
alleged that the role of the Natives in the fishing industry is "substanti
ally confined to unskilled labor" 3.the Applicants in paragraph 77 charge

Respondent, inter alia, with having denied, and denying, the Natives of
the Territory the opportunity to take part in "mining and other industries
as a prospector, entrepreneur, operator or owner" or in "executive,
managerial, professional or techn1cal posts in mining and other indus
tries''~-
The fishing industry is not mentioned in paragraph 77, and indeed

there are no factual allegations in the Memorials which could in the least
support a charge that Respondent has in any way denied the Natives
the opportunity to take part in the aforementioned capacities and posts
in the fishing industry.
The same position obtaîns with regard to the allegation that "The
Mandatory has confmed the participation of the 'Native' population in

the industrial economy, for ail practical purposes, to the role of unskilled
laborer" 5•
As bas been stated 6,there is nothing in law whlch prevents Natives
from being employed in any capacity in the fishing industry. And nothing

1 I, pp. ll8-u9.
1 Ibid.,pp. 130-r3t.
3 Ibid., p.1r9.
• Ibid.,p. I30.
5 1/yid.p. 131.
6 Vide para. 12,sup,n SOUTH WEST AFRICA

prevents them fromtaking part in the industry as entrepreneurs, operators
or owners.
On analysis, therefore, there is no factual basis upon which the charges
made in paragraph 77 of Chapter V of the Memorials can be regarded as
applicable to the fishing industry.
Should Applicants nevertheless have intended that such charges should
be read as being applicable to the fishing industry, then each and every

one thereof is denied, and it is generally denied that Respondent has in
respect of the said industry failed to observe its duties under the Mandate
or has. as alleged by Applicants. '.'engagedin a consistent course of
positive action which inhibits the well-being and prevents the 1ocial
progress and the development of the [Native] population" •

1 I, p.130. CHAPTER III

MININGAND MINERALS

Introductory

I. The Applicants' charges in Chapter V of the Memorials relative to
the mining industry in South West Africa I are basically twofold, and
concern the opportunities permitted to Natives to take part in mining
as prospectors, entrepreneurs, operators and owners, and the oppor
tumties allowed to them as employees in the industry.

2. In respect of opportunities of the first-mentioned kind Applicants
allege that there is a "pattern of systematic discrimination against
'Natives' ... in the mining industry" 2,and they say that-
"While under the applicable law there is a technical possibility
that prospecting by 'Natives' may take place within the 'Native'

reserves, the technical possibility can hardly be realized. The
numerous conditions prescribed, including particularly the financial
conditions and requirements, taken together with the unfettered
discretion of the Administrator and the several spccial Boards,
permit and indeed require an inference that for ail practical purposes
'Natives' are barred from any such activity ."

In paragraph 77 of Chapter V of the Memorials 1the charges in this
respect are fonnulated more specifically as follows:
"The Manda tory has denied and continues to deny to the 'Natives'
of the Territory opportunity to take part in mining ... as a pros

pector, entrepreneur, operator, or owner."
3. With regard to opportunities permitted to Natives as employees in
the industry, Applicants say that "it is plain that the role of the 'Native'
is confined to that of unskilled laborer" 4.
This charge is forrnulated more specifically in paragraph 77 of Chapter

V of the Mernorials as follows:
"The Mandatory has denied and continues to deny to the 'Native'
population opportunity to take part in executive, managerial,
professional or technical posts in Mining and other industries"

and
"The Mandatory has confined the participation of the 'Native'
population in the industrial economy, for ail practical purposes, to
the role of unskilled laborer 5."

4. For a proper appreciation of Respondent's policies and adminis
trative measures with regard to mining in South West Africa, an account
is given in the next succeeding paragraphs of the mining operations

1 1, pp. 119-122.
2 Ibid.,para. 45. p.121.
3 Ibid., para.77, p.130.
• ibid.,para. 46, p.121.
' Ibid.,para. 77. pp. 130-131. SOUTH WEST AFRICA

carricd on m the Tcrritory, the place of the mmmg industry in the
cconomy of the Territory, and the particular circumstances and con
ditions which bcar upon the application of measures designed for the
control of the industry and of persans engaged thereitL

Mining in General

5. In South West Africa mining is the only sector of economic activity
entirely within the money economy. It is also the most highly organized
and capitalizcd sector of the Territory's economy, established primarily
with a view to largc-scale production for export, and, as is the case in
practically evcry country in Africa, it is to a large extent controlled by

foreign financial interests.
With regard to foreign financial intcrests in mining enterprises in
Africa, the United Nations Economie Survey of Africa since I950 stated as
follows:
"More so than any othcr sector of the money economy in Africa,

mining has been organized chiefly with foreign capital, entrepreneur
ship, and skill: only in the Union of South Africa is a significant
proportion of mining capital owned by residents 1."
6. Although South West Africa has a great variety of minera] deposits,
only a few thereof have proved of real economic importance. Apart from

concentrated occurrences of diamonds, Jead/zinc, copper and salt deposits,
the Territory's mineral resources are characterized by rich samples from
small quantities widely dispersed over the country 2•Diamond mining is
largcly concentratcd in the Southern Namib area in the vicinity of
Oranjcinund 3; at prcsent dredging for diamonds is taking place in the
coastal waters of the Territory 3•Large-scale mining also takes place at
Tsumeb, wherc lead, copper and zinc are mined 3• There are no known

coal or natural oil resources worth exploiting 4. with the result that
practica11y all fuel requirements have to be irnported. This tact, together
with the peculiar geological structures in the Territory, have made mining
a highly organized and capitalized activity, demanding skilled managerial
and technical organization.

7. With the exception of salt, all minerais and precious stones mined
in the Territory are destined for export. An analysis of the post-war
figures reveals that diamonds and Iead/zinc alone account for more than
90 percent. of minerai exports. During 1961 the value of minerai sales
from the Territory totalled f26,550,ooo (R53,roo,ooo), of which diamond
sales amounted to fr7,468,ooo (R34,936,ooo), and sales of lead/zinc to

fl,453,000 (R14,906,ooo). The value of other minerais produced in the
said year was: manganese f591 ,ooo (Rr,182,000); copper f235,500
(R47r,ooo); tin [196,000 (R392,ooo} and sait [108,500 (R217,ooo} •
8. Although the value of minerai exports has since the Second World
War constituted well over 50 percent. of the Territory's total exports, it

1 U.N. Doc. E/CN.14/28, p. 6r.
z Vide Book III, Chap. I. para. 34, of this Counter-Memorial.

' Ibid., para. 35.
5 Ibid., para. 37.
Slale of Sl114lhAfrica:Economie, Financial and Statistical Year Book for the
Republic of South Africa, 1963, pp. 509-510. COUNTER·MEMORIAL OF SOUTH AFRICA 49

amounted to less than 15 percent. in the years immediatcly prcceding the
war. This instability in the relative share of mining pro<lucts in the
exports of the economy of the Territory must be attributed to the narrow
base of minera! exploitation in the Territory and the sensitivity of the
industry to overseas price changes. Diamonds figure promîuently in the
total export value of mining products, accounting for more tha.n 50 per
cent. of the latter during the post-war pcriod.

9. Asmuchas 96 pcr cent. of the mining output in South West Africa
is controlled by two companies. This statc of affairs is ascrihable to the
nature of local minerai deposits and the high cost of exploitation resulting
from poor, or a lack of. water supplies, lack of fuel and transport diflicul
ties. These factors necessitate Iarge-scale operationsrequiring the employ
ment of qualified and experienced technical personnel, and substantial
capital funds.

IO. Despite its importance as a forcign exchange camer, the mining
industry as a whole employs only about 10 percent. of ail males employcd
in the Terri tory. During 1960 the industry employed 1,78g White persons,
the majority of whom came from outside the Territory, and 9,534 non
White employees, of whom the majority were temporary workers from
areas outside the Police Zone

Mining Legislation in South West Africa

II. For the proper operation and development of the mining industry
within the economy of the Territory, measures of regulation and contrai
were an absolute necessity.
By reason of its own experience in regulating a diverse and complex
minmg industry in South Africa, which had grown over the years to
assume vast proportions, Respondent was able ta direct and guide the
legislation in South West Africa on lines best suited to encourage mining
enterprise and ta allow it to develop in a manner calculated to bring

about the maximum economic advantage to the Territory.
12. When Respondent assumed the Mandate, mining in South West
Africa was governed by the German Imperia! Mining Ordinance of 1905 1•
In terrns of the Ordinance the right ta prospect and mine for minerais in
the Territory was vested in the Government, and any persan wishing ta
prospect or mine was required to obtain a licence from the Government.

13. Not only had vested mining rights accrued under the system in
operation during the German regime, but the system itsclf, under which
minerai rights were vested in the Government, appeared frorn an adminis·
trative point of view tobe sound and to afford the best method of regula
ting and controlling the exploitation of the minera} resources of the
Terri tory.
Ownership and contrai of minerai rights by the Government, instead
of priva te ownership and control, could ensure not only better regulation

of mining operations in general, but also that the minerai resources would

1 Die deutsche Kofonial-Gesetzgebung, Sammlung der auf die deutschen Schutz·
gebiete bez!lglichen Gesetze, Verordnungen,Erlasse und internationalen Verein·
barungen mit Anmerkungen, Sachregister,Neunter Band (Jahrgang 1905), pp.
221-241.50 SOUTH WEST AFRICA

primarily be exploited in the interests of the Territory as a whole rather

than in the interests of certain individuals only.
The system in operation at the inception of the Mandate was therefore
retained, and the legislation at present goveming the industry, viz., the
Mines, Works and Minerais Ordinance of r954 1, provides that:

"The right of mining for and disposing of precious and base
minerais in the Territory, including the Territorial waters is vested
in the Administration and no precious or base minerais shail be
searched for or won save in accordance with the provisions of this
2
Ordinance .''
r4. In tcrms of the said Ordinance the supervision and control of the
mining industry in the Terri tory, and the exercise of all rights and powers
vested in the Administration in regard to mines and minerais, are
3
entrusted to the Mines Division ,which is subject to the direction and
authority of the Administrator 4•
The staff of the Mines Division consists of six officiais. The three senior
posts, i.e., Inspector of Mines, Assistant Inspecter of Mines, and Mining
Commissioner, are filled by tcchnically qualified and experienced officers

on secondment from the Mines Department of South Africa.

Permission to Prospect

WITHIN THE PoLICE ZoNE

r5. Within the Police Zone no person may prospect for minerais except
under the authority of a prospecting licence 5, and in terms of the
Ordinance a prospecting licence may not be issued to any person other
than:

"(a) a European of the age of rS years or more,
(b) a company registered under the provisions of the Companies
Ordinance, 1928 (Ordinance No. 19 of r928), as amended,

(c) a foreign company which has complied with the requirements
of the Companies Ordinance, 1928 (as amended) 6".
With regard to the Rehoboth Gebiet and the Native reserves in the
Po]ice Zone, however, the foUowing provision is made:

"In the Rehoboth Gebiet, Burgers of the Rehoboth Baster Corn•
munity, and in the Native reserves, Natives Iawfully resident there
in, shall possess the same rights to hold prospecting licences and be
7
subject to the same obligations as Europeans ."
It is also provided that:
"No person rnay prospect or mine in ... any Native reserve other

than a Native lawfully resident therein ... unless he is the holder of
a special permit issued on the instructions of the Administrator

1
Ord. No. 26 of 1954 (S.W.A.), sec. 1,in The Laws of Soul/, West Africa (1954),
pp. 753-853.
2 Ibid., sec.1, p. 753.
3 Ibid., sec. 5 (2)p. 765.
• Ibid., sec.5 (1), p. 765.
5 Ord. No. 26 of rg54 (S.W.A.), op. cil., sec. 1(1),p. 777.
s Ibid., sec.22 (1),p. 781.
7 Ibid., sec.22 (1) (c) (fü),p. 783. COUNTER-MEMORIAL OF SOUTH AFRICA 51

under such conditions or circumstances as the Administrator may
direct 1.''
16. The effect of the above provisions may be summarized as follows:

(a} in respect of the area within the Police Zone, excluding the Native
reserves and the Rehoboth Gebi'et,a prospecting licence may be
issued only to a European or to a company;
(b) in a Native reserve in the Police Zone no pcrson, other than a Native
lawfully residcnt thercin, may prospect or mine unless he isthe holder
of a special permit issued on the instructions of the Administrator.
1.7. The above distinction as to the areas in which members of the

different population groups may carry on prospecting operations, is ~h
conformity with Respondent's policy that, as far as is practicable, right?
of priority should be reserved to particular groups in separate parts of tliê
Territory. Thus, prospecting outside the rescrves is pcrmittcd only to
Europeans, while a similar position obtains for the differcnt Native
groups in their own reserves. Although the Administrator is allowcd the
discretionary power to grant special permission for a European to prospect
within a Native reserve or for a Native to prospect in a reserve in which
he is not resident, such permission is, as a matter of policy, not grantcd.
The right to grant such permission was intended to be exercised only in

exceptional circumstances, for example, where the inhabitants of a
reserve are unable or unwilling to prospect for and mine minerais in the
reserve, the exploitation of which would be to the advantage of such
reserve and of the Territory as a whole.
When in an exceptional case such permission is granted, conditions can
be imposed in protection of the rights of the inhabitants of the reserve
concerned.

ÛUTSIDE THE POLICE ZoNE
18. In terras of section 61 of the-Ordinance, no person may prospect
in the area beyond the Police Zone-

"... unless he is the holder of a special permit issued on the in
structions of the Administrator under such conditions or circum
stances as the Administrator may direct 1".
Although in terms of the said section a European may obtain special
permission to prospect in the area beyond the Police Zone, such per

mission will only be granted under very special circumstanŒs, such as
those mentioned in paragraph 17 above.

Provisions governing Prospecting

19. Apart from the distinction made in the Ordinance with regard to
the area in respect of which a prospecting licence or special permit may
be issued to a member of a particular group, there is no diflerence between
the rights of the White inhabitants and the non-White inhabitants of the

Territory in respect of prospecting, the pegging of daims or the con
ducting of mining operations.
20. Licences for prospecting within the Police Zone are issued by the
Inspector of Mines 2,and remain valid for a period not exceeding 12

1 Ord. No. 26 of 1954 (S.W.A.),op. citsec. 61 (1)p. 817.
z Ibid., sec21 (1),p.781,52 SOUTH WEST AFRICA

months 1•The fee payable for such a licence is an amount of five shillings
for each month for which the licence is granted 2•

21. ln order to safeguard the rights of the owners or occupiers of
land on which prospecting is carried on, the Ordinance provides that no
prospecting licence sha}l be issued until the applicant has made a cash

deposit or given a bank guarantee to the Inspector of Mines for an
amount of not less than [,50 (Rrno) "as a guarantce for the restoration
to a safe condition of the surface of any property which may be rendered
unsafe by prospecting or development operations carried out by the

prospector or in his name" l.
In exceptional circumstances the Inspector may, in his discretion,
require a higher amount to be deposited or guaranteed, but in practice
this rarely happens in the case of individual prospectors. 1n the case of

companies which intend to prospect on an extensive scale, however,
a deposit or guarantec in a higher amount is often required.
22. It is the duty of every holder of a prospecting licence to maintain

his workings in a safc condition, and to rcpair or rnake safe, to the satis~
faction of the Inspcctor, any land which has bŒn rendered unsafe by
prospecting or development operations 4• If the licence holder complies
with this obligation to the satisfaction of the Inspector, he is entitled

to a refond of the amount deposited by him 5• If,howcver, he fails so to
comply, the Inspector of Mines may utilize the amount deposited or
guaranteed in order to repair any surface damage resulting from the
prospecting operations 6•

23. The Ordinance also provides that no prospector shall remove
from the site of his prospecting operations any minerais recovered by
him in the course of such operations, or dispose of such minerais, without

the written permission of the Inspector 7•A mine owner may not dispose
of any minerals recovcred by him during his mining opcrations except
with the written permission of the Inspector 8•
These provisions serve to keep the Mines Division informed of minerais

recovered in prospecting and mining operations, and are necessary to
regulate the disposai of minerais recovered in such operations.
24. For the proper administration of activities in the mining industry,

section 105 of the Ordinance empowers the Administrator to make
regulations in respect of the following matters:

" (a) the pegging of claims;
(b) the survey of mining areas and any matter appertaining to
the surveying, charting and registration of mining areas;
(c) prospecting and mining in native reserves, after consultation
9
with the Minister ;

1 Ord. No. 26 of 1954 (S.W.A.), op. cil., sec.21 (3), p. 781.
2 Ibid., sec.21 (4), p. 781.
3 Ibid., sec.2 I(5), p. 78I.
• Ibid., sec. 32 (1), p. 791.

' Tbid., sec. 36,p. 793.
6 Tbid., sec.32 (2), p. 791.
1 Tbid., sec. 37 (1), p. 793.
• Ibid., sec. 41 (2),p. 797.
9 As amended by Ord. No. 4 of 1955. In terms of sec. 1 thereof, "Minister" means
Minister of Native Affairs-now designated the Minister of Bantu Administration
and Development. COUNTER-MEMORIAL OF SOUTH AFRICA 53

(d) the protection and preservation of the surface of mines or works
and of buildings, roads, railways, and other structures and
enclosures on or above the surface of the ground, and the
conditions under whlch any such buildings, roads, railways,
structures and enclosures may be undermined;
(e) the making and keeping of mine plans and the depositing of
copies with the Mines Division;
(f) the making of statistical and other reports relating to mines,
works and machinery;

(g) the duties and responsibilities of owners, managers, overseers,
and other persans engaged in or about mines, works and
machinery;
(h) the storage, receipt, distribution, transport and use of explosives
in mines;
(i) the manner of holding inquiries at or in connection with any

mine or works, the procedure to be followed at any such inquiry
and the mode of securing ihe attendance of witnesses thereat;
(j) the provision of ambulances and medical aid in case of accident;
(k} the conditions upon which machinery may be erected or used;
(l) the fees which shall be payable for any inspection under this

Ordinance; ,
{m) prohibition or restrictions in relation to the making or use of
roads or railways or other travelling ways over, or the erection
or use of buildings or other abjects on areas which have been
undennined;
(n) the safety and health of persans employed in or about mines and
works, and generally of persans, property and public traffic;

(o) the procedure to be followed in connection with trials by an
inspector under this Ordinance;
(P) the grant, cancellation and suspension of certificates of compe
tency to-
(1) mine managers,
(2) mine overseers,
(3) mine surveyors,

(4) mechanical engineers,
(S) engine drivers,
(6) miners entitled to blast,
(7) such other classes of persans employed in, at or about mines,
works and machinery as the Administrator may from time
to time deem it expedient to require to be in possession of
certificates of competency;
(q) the fees to be l?ayable by persans applying for any of the
certificates ment10ned jn paragraph (P) or on their admission to
an examination for any such certificate;

(r) thelimitingofthedaysand hours ofworkupon anymineorworks;
(s) the conditions governing the grant of paid leave of absence by
owners of mines or works to their employees or to various
categories of their employees;
(t) and generally for ensuring the proper working and management54 SOUTH WEST AFRICA

of all mines, works and machinery, and for better carrying out
the objects and purposes of this Ordinance 1.''

Special Provisions regarding Prospecting for and Mining of Certain
Minerais

ÜIAMONDS

25. By reason of the paramount importance of diamond mining as a
source of public revenue, and of special conditions surrounding the
mining and marketing of diamonds, it was considered expedient to make
special legislative provision for this section of the mining industry in
South West Africa.

26. The regulation and control of the mining and marketing of
diamonds present extremely complex problems. In the course of its
experience in South Africa Respondent has evolved a system of control
which is generally recognized throughout the world as being both wise
and effective, designed to promote the short and long-term economic
interests of the country and its people.
2
The Diamond Industry Protection Proclamation, 1939 , as amended,
which regulates and controls the development and protection of the
diamond industry in South West Africa, is based on the knowledge and
experience gained by Respondent in this sphere in South Africa.
27. The establishment in terrns of this proclamation of a Diamond

Board for South West Africa contributes towards the orderly marketing
of diamonds.
The Board is a body corporate and represents the Administrator and
the producers in the industry 3•
In addition to advising the Administrator on all questions relating to
the diamond industry, the Board, inter alia, supervises the carrying eut of
interproducers' and sales agreements and al! sales of diamonds; arranges

the allocation of quotas of diamonds for sale; attends to the receipt,
valuation, transport, insurance and assortment of diamonds, and delivery
to purchasers of diamonds sold; collects and receives from purchasers the
records of sales and the moneys due thereunder, and arranges the distribu
tion thereof 4.

MINERALS USED IN THE PRODUCTION OF ATOMIC ENERGY

28. Respondent has also deemed it expedient, in the public interest, to
enact special measures for the control of prospecting for, and mining of,
certain minerais employed in the production and use of atomic energy
and radio-active isotopes.
The Atomic Energy Act, No. 35 of 1948, bas therefore been made
applicable also to South West Africa. In terms of the said Act, the right
to prospect for, or to mine, certain minerais, such as uranium and thorium,

1 Ord. No. 4 of 1955, sec. 105 (1)pp. 849-853.
2 Proc.No. 17 ofI939 (S.W.A.)inTheLawsof South West Ajrica (1939),pp.168-198.
3 Ibid., sec. 3 (1p. 170.
• Ibid., sec. 4pp. 172-r74. COUNTER·MEMORIAL OF SOUTH AFRICA SS

is vested in the State 1•Prospecting for, and mining of, such minerais are
prohibited except upon authority of the Mmister of Mines 2•

The Act also provides for the establishment of an Atomic Energy
Board. The Board isempowered to undertake prospecting for, and mining
of, the minerals aforestated, to process the same, and generally to dispose
thereof or to deal therewith, and to advise the Minister on any matter

which he may refer to the Board.

EmploymentwithinMiningEnterprises

29. The Mining Regulations, promulgated in Government Notice No.

33 of 1956, provide that in the case of a mine or works owned by a Euro
pean, persons employed in the following posts shall be Europeans:
(a) the manager 3;

(b) every assistant, sectional or underground manager•;
(c) the mine overseer s;
(d) the shift boss 6;
(e) the ganger 7;
8
(/) the engineer ;
(g) the person in charge of boilers, engines and other machinery 9 ;
(h) the surveyor 10•

30. The reasons underlying the above provisions flow from the tradi
tional relationship between the European and Native population groups
of the Territory. 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. These factors are accentuated by the fact
that the members of the European group have traditionally occupied a
position of 1'01ardianshipin respect of the indigenous groups, and that in

the econom1c field the relationship between Europeans and Natives has
generally been limited to that of employers and employees. In this factual
situation, most Europeans would refuse to serve in positions where
Natives might be placed in authority over them. Although very few, if

any, Natives in the Territory would at present be able to hold any of the
posts mentioned in the aforegoing paragraph, Respondent was neverthe
less obliged to take cognizance of the factual situation, and, for the con
siderations aforestated, to adopt measures which would prevent Natives

employed in European-owned mining enterprises from being appointed
totechnical and responsible posts in which they would exercise authority
over European co-employees.

1 Act No. 35 of r948, sec. 2, in The Laws of South West Africa (r948), p.20.
2 Ibid., sec3 (r), p.20.
3
G.N. No. 33 of 1956, Reg. 55 (1) (a}, io. The Laws of South Wesl Africa (1956),
p. 541.
• Ibid., Reg. 56 (4), p. 543·
s Ibid., Reg. 58 (3),p. 549.
6 Ibid., Reg. 59 (3), p. 55L
' Ibid., Reg. 6r (2), p. 553.
8 Ibid., Reg. 64 (3), p. 557.
9 Ibid., Reg. 64 (4) ao.d (5), pp. 557-558.
10 Ibid., Reg. 65 (2), p. 561.56 SOUTH WEST AFRICA

1
The provisions constitute one of the "unpopular control methods"
which are considered desirable in the phase of transition from guardian
ship ta separate self-realization, and which are destined ta fall away when
developments in the latter respect remove the reason for them. A major
and harmful degree of tension and friction could result from situations
in which European employees in the mining industry could be placed by
their employers before the choice ofeither serving under the authority of a
Native or relinquishing their employment. The provisions are therefore
designed ta contribute ta good group relations and to the smooth evoJu

tion towards separate self-realization for Natives in homelands of their
own.
31. The contrary position, viz., Europeans being employed in positions
of authority over Native co-employees in Native mining enterprises, has
not called for similar legislative provisions. As stated below, the Natives
in the Territory have not developed ta the stage where they conduct their
own mining enterprises; and, in any event, Respondent believes that even
when such enterprises have been established, Native entrepreneurs will,

by reason of a Jack of the necessary qualifications and experience on the
part of Natives in the mining industry, have to rely on European techni
cal and higher qualified staff for some time to corne.
When Native enterprises are established and protection is required for
Native employees insuch enterprises, proper legislative measures can and
will be taken.
32. The present raie of the Native in the mining industry is, however,

not confined to that of unskilled Jabourers. Many of !hem are trained
to perform, and do perform. skilled work in the mines. Such workef5:
include:
operators of boiler plants, locomotive engines and stationary engines;
excavator and earthmoving machine operators;
power station artisans;
lorry drivers;
hostel supervisors;

hospital assistants;
dressers, supervisors and men cooks;
artisans on the screen and recovery plants in the diamond industry;
blasters.
33. The mining regulations contain no restrictions with regard to the
posts which may be held by Natives in Native mining enterprises.
However, despite the fact !hat prospecting and mining in the Native

reserves have to all intents and purposes been reserved to them, the
Native population of the Territory have thus far generally shown a Jack
of interest in mining activities. This is probably only natural when regard
is had to their background and traditionaJ subsistence economy. It is for
this reason that the Mines, Works and Minerais Ordinance has Jeft a
discretion to the Administrator in certain exceptional circumstances to
allow Europeans to prospect in Native reserves 2•As has been pointed
out, however, this discrehon will be exercised only in circumstances where
the general welfare of the Territory so demands 2.With regard ta the
promotion of the interests of the Native groups in, interalia, the mining

1 Vide Book IV, Chap. VII, para. 17, supra.
2 Vide para. 17, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 57

industry, Respondent refers to what has already been stated generally 1
relative to the preference, encouragement and protection consistently
gîven to members of the said groups in their own areas. In this respect

attention is drawn to the fact that the Commission appointed to investi
gate the condition of the inhabitants of South West Africa, and par
ticularly the non-White inhabitants, and to make recommendations in
respect of their further advancement 2,has been specially directed, inter
alia, to consider how further provision should be made for the develop
ment of mining in the Native areas.

It is hoped that the Natives will in time show increased interest in the
mining industry, and establish mining enterprises which will accommo
date such Natives as aspire to the technical and higher posts in the
industry.

34. The present position of the Natives in the mining industry in South
West Africa, it may be pointed out, is very much the same as that found
elsewhere in Africa.
Thus it has been stated:

"The African population is involved in mining mainly as a reser
voir of semi-skilled and unskilled labour, complementing pre
dominantly Non-African managerial, supervising and technical
manpower. Mining provides full-time employment throughout
Africa for about one million persans, of whom 90 per cent. or more
are Africans 3."

Respondent's Reply to AppJicants' Allegations (Memorials)

PARAGRAPH 37 OF CHAPTER V t

35. lt is admitted that the mining industry plays an important role in
the economy of South West Africa. Not only does the Administration
derive considerable revenue from the industry, but the industry also
offers employment opportunities to a number of people in the Territory 5•

Although a variety of minerals have been discovered in the Territory,
at present 96 percent. of the value of the total mining output is in dia
monds, lead, copper and zinc 6.

PARAGRAPH 38 OF CKAPTER V 4

36. The allegations in this paragraph are admitted. The fact that so

few companies control a relatively large share of the mining production
is ascribable to the nature of the minerai deposits in the Territory and
to the high cost of exploitation, which necessitate large-scale operations
and substantial capital investments 7•

1 Vide Book IV, Chap. VII, paras. 33-34, supra.
z Ibid., para. 35.
' U.N. Doc. E/CN.14/28, p. 61.
t 1, p.[19,
' Vide para. ro, supra.
6 Vide Book III, Chap. I, para. 34.
7 Vide para. 9, suprrJ. SOUTH WEST AFRlCA

PARAGRAPH 39 OF CHAPTER V 1

37. Respondent admits that the right of mining for, and disposing of,
precious and base minerais in South West Africa is, in terms of Ordinance
No. 26 of 1954, vested in the Administration 2• Prospecting for minerals
3
is regulated and controlled by the Administration •
38. A similar system was in operation in the Territory before the
assumption of the Mandate • and, not only had vested mining rights
accrued under the said system prior to the assomption of the Mandate,
but the system as such appeared from an administrative point of view

to be sound and to afford the best method of regulating and controlling
the exploitation of the minerai resources of the Territory 4. The system
was accordingly retained and still operates under Ordinance No. 26 of
1954.
The Administrator, acting as Respondent's representative, controls
the mining industry through the Mines Division, which has on its staff

technically qualified and experienced officiais 4.
39. The principle of vesting minerai rights in the government of a
country, so as to allow it to control all aspects of the exploitation of the
country's minerai weaith for the benefit of all the inhabitants, is not

peculiar to South West Africa, but is also applied in many other countries.
In this respect Hailey says the following with regard to the position
in certain African Territories:

(a) The Belgian Congo.
"... concessions for prospecting or the extraction of minerais [in the
Belgian Congo)can be obtained only from the State, and its practice

has been to retain a substantial holding in the share capital of the
companies to which it has granted concessions 5".
{b) The Former Mandated Territory Ruanda-Urundi.
6
"In Ruanda Urundi minerai rights are also reserved totheState .''
(c) Portuguese Terrirories in Africa.

"In the Portuguese territories rights to minerais are reserved to
the State." The State in its discretion, grants prospecting concessions
to individuals or companies 6•
(d) Liberia.

"In Liberia the govemment reserves to itself the sole right to grant
prospecting and other concessions 6_''
(e) Certain OtherAfrican Territories.

In Basutoland, Kenya, Uganda, Tanganyika and Nigeria the
minerai rights vest in the govemments of the territories concemed,
and they control all prospecting for and exploitation of these
minerais 7•

1 Vide para. 9, supra.
i Vide para. 13, supra.
' Vide para. 14, supra.
• Vide para. 12, supra.
s Lord Hailey, An African Survey: Revised 1956, p. 1514.
' Ibid.,p. 1523.
"'1Ibid.,pp. 1520-1522. COUNTER-MEMORIAL OF SOUTH AFRICA 59

PARAGRAPH 40 OF CHAPTER V 1

40. As will appear ftom paragraphs 1.5to r8 above, the Applicants'
allegations in this paragraph are not quite correct.
Within the area of the Police Zone, excluding the Native reserves and
the Rehoboth Gebiet, licences to prospect for minerals may be issued
only to Europeans and comparues.
In a Native reserve in the Police Zone no person, other than a Native
lawfully resident therein, may prospect or mine unless be is the holder
of a specialpermit issued on the instructions ofthe Administrator.
41. Although the possibility exists that a special permit may begranted
to a European to prospect in a Native reserve. the policy isnot to grant
such a permit save under very special circumstances •
In the area outside the Police Zone, no person-White or non-White
may prospect or mine, unless he is the holder of a special permit issued
on the instructions of the Administrator under such conditions or cir
cumstances as he may direct :J.

42. The effect of the provisions of Ordinance No. 26 of 1.954 isthat,
in so far as is practicable, priority rights in the mining industry are
created for the different population groups in separate areas in the
Territory.
The system can, however, not be a rigid one, in that due regard must
be had to the fact that the Native population bas as yet not acquired the
experience, and generally does notas yet have the initiative orthe means,
to undertake prospecting and mining operations, which, for reasons
already stated 4,must usually be on a large scale to render them profit
able.
To meet the eventuality of there being mineral deposits in a reserve
which can be exploited for the benefit of the Territory, but whicb would
otherwise remain unexploited, by reason of lack of enterprise or funds
on the part of the inhabitants of such reserve, the Ordinance makes

provision for prospecting and mining in the Nati2e reserves also by
Europeans actmg under special permission •

PARAGRAPH 41 OF CHAPTER V s

43. Respondent has dealt with the provisions of Ordinance No. 26 of
1954referred to in this paragraph 6•
The said provisions are necessary, inter atia, to safeguard the rights of
owners and occupiers of land agamst surface damage to such land, or
against the creation thereon ofunsafe conditions as a result ofprospecting

operations.
In the interests of the community, prospecting and mining cannot be
pennitted without such protective measures.
44. The provisions of the Ordinance which prohibit the remo~ by a

1 I, pp.119-120.
: Viù pa.ra. 17supra.
' Vide para.18, sup,a.
4 Vide para.9, supf'a.
J I, p1:20.
6 Vida paras.19-23,suJwa. 60 SOUTH WEST AFRICA

prospector of minerais recovered in prospecting operations without the
permission of the Inspector of Mines, and similar provisions pertaining

to minerals recovered in mining operations, exist for the :properregulation
of the disposa! of such minerals in the interests of the mdustry and the
State 1.

PARAGRAPH 42 OF CHAPTER V 2

45. It is correct, as Applicants state, that the Ordinance empowers the
Administrator to make regulations "in respect of or in connection with
an extensive variety of matters enurnerated in Section 105 ... 2".
As will appear from paragraph 24 above, the matters enumerated in the
section are all concerned with the propcr regulation of the mining industry.
The section authorizes regulations to be made for the control of methods

of prospecting and mining; for the protection of the safety and health of
persans employed in the industry; for their conditions of employment;
for the protection and p~servation of the surface of mines, works, build
ings, roads, railways, etc., and generally for ensuring the proper working
and management of all mines.

46. Such regulations are necessary to ensure order, good management
and control, in the interests not only of the industry as such and of the
persans engaged therein, but also of those members of the community
who may be affected thereby, and of the State.

47. OrdinanceNo.4oh955 amended section 105 of Ordinance No. 20
of 1954 so as to provide that the Administrator rnay make regulations in
connection with prospecting and mining in Native reserves only after
consultation with the Minister of Bantu Administration and Develop
ment. This provision was a necessary corollary to the change brought
about by the South West Africa Native Affairs Administration Act
(No. 56 of 1954), in tenus of which the administration of Native Affairs in

South West Africa was transferred to the Minister of Bantu adminis
tration and Development 3.

P ARAGRAPHS 43 AND 44 OF CHAPTER V 4

48. The Iegislation referred to by Applicants in these paragraphs has
been dealt with above s. Ithas been shown that good reasons exist for the
specific measures, which are intended to control the prospecting for, and

themininganddisposal of, diamondsandminerals or materials employed
in the production and use of atomic energy.

49. The provisions of the Diamond Industry Protection Proclamation
of 1939, and of the Atomic Energy Act of 1948,and the Boards established
in terms of the said Acts, operate and fonction not only in the interests
of the sections of the mining industry affected thereby, but also in the
interests of the whole community and of the State.

1 Vide para. 23,supra.
z I, p.120
' Vide Book VIII, sec. C, Chap. VII,infra.
4 I,pp. 120-121.
5 Vide paras. 25-28. COUNTER-MEMORIAL OF SOUTH AFRICA 61

PARAGRAPH 45 OF CHAPTER V 1

50. In this paragraph Applicants allege, with reference to what they

state in paragraphs 37 to 44 of Chapter V of the Memorials, that there is
a "pattern of systematic discrimination against 'Natives' ... in the
mining industry".
Responden t denies that the laws and regulations applicable to the mining
industry justify the conclusion that there is a "pattern of systematic
discrimination against 'Natives' ".
In all the laws and regulations mentioned by Applicants there is,

except in the respects to be mentioned hereinafter, no distinction whatso
ever between Natives and Europeans.
51. The measures of control and regulation to which the Applicants
refer, apply to all sections of the community and make no distinction
between persans on the ground of race or colour.

Ordinance No. 26 of 1954 does draw a distinction between Natives and
Europeans with regard to the areas in which they may respectively pros
pect and mine. As has been explained, however, good reasons exist for
such distinction 2,and the provisions in question are not intended to, and
do not, discriminate against Natives in the sense in which that expression
is used in the Memorials.

52. Applicants say further:
"While under the applicable law there is a technical possibility
that prospecting, by Natives may take place within the Native
reserves, the technical possibility ca'n hardly be realized. The
nume:rous conditions prescribed, including particularly the fmancial

conditions and requirements, taken together with the unfettered
discretion of the Administrator and the several special Boards,
permit and indeed require an infercnce that for all practical purposes,
'Natives' are barred from any such activity ."
Respondcnt says that the charge in this respect is without foundation.

As has already been explained 3,the conditions prescribed in Ordinance
No. 26 of 1954 and other relevant legislation, exist for the proper regu
lation and control of the mining industry, and it would be impossible to
have such control without the provisions in question.
53. Applicants' suggestion that the said provisions must be seen as part
of a "pattern of systematic discrimination against 'Natives' "is entirely

unfounded.
It is of course true that, in terms of the said measures, persons who wish
to engage in prospecting and mining operations must comply with certain
requirements, and are rendered subject to certain obligations, but that is
so for everybody engaged in the industry, irrespective of the group to
which he belongs.

54. Prospecting licences have been issued to Natives for prospecting
in their reserves, and in the Rehoboth Gebiet five residents have held
prospecting licences for some considerable time and hold daims within
the area. That there are at present few Natives engaged in mining opera-

1 1,p. 12[.
2 Vide paras. 15-18,supra.
3 Vide paras.19-28,supra.62 SOUTH WEST AFRICA

tîons, is to be ascribcd to the fact that as yet few Natives have the neces
sary knowledge, cxpcricnce or the substantial means required for such

operations.
55. In Respondcnt's submission it is ludicrous fo stiggest, as Applicant~
seem to do, that more Natives would be drawn into the industry ~
entrepreneurs mcrcly by doing away with, or relaxing, the legislativ~

measures designed for protection and control of the industry. -

p ARAGRAPH 46 OF CHAPTER V 1

56. Applicants refcr to the mining regulations promulgated in Goverq,.
ment Notice No. 33 of r956, and state: "It is plain that the role of tq~
1
Native is confined to that of unskilled bborer ." Again Respondeqt
denies the Applicants' charge.
57. In the case of a mine or works owned by a Native, as is permitteg

in the reserves, there is no limitation whatsocver as to the position which
a Native employee may occupy.
Moreover, in mines and works owned by Europeans the role of th~
Native is not confined to that of "unskilled laborcr", Many Natives
employed on mines perform skilled and semi-skilled work 2•

58. lt is truc that in terms of the mining regulations certain posts in.'
mines and works owncd by Europeans may only be filled by Europeaq
employees. The reasons for the exfatence of such provisions have already
been explained 3•
It has also been shown that even if there were no such regulations
1
very few, if any, Natives could at present be considered for appointment
to the higher posts in question, the reason being that as yet the Native§
generally lack the necessary educational qualifications and experience \

PARAGRAPH 47 OF CHAPTER V 5

59. Applicants' allegation in this paragraph is that the Pneumoconiosis

Act, No. 57 of 1956, which is alleged to be applicable to South West
Africa, defines a miner as a male person of European descent, whereàs
Natives and Coloured persons working in mines are classified by the
statute as labourers.
The said Act bas been repealed by the Pneumoconiosis Compensation

Act, No. 64 of 1962, and was, in any event, not applicable to mines in
South West Afnca. It was a South African Act, designed to regulate
certain matters concerning the mining industry in South Africa. Certain
sections of the Act referred to South West Africa, but only in so far as
they affected, inter alia, medical or post-mortem examinations of persons
in South West Africa who had contracted pneumoconiosis in mines in

South Africa_ There was no provision for applying the Act ta mines in
South West Africa, and the definitions referred to by Applicants were
therefore in no way relevant to mine workers within the Territory. The

l 1, p.I2I.
~ Vide para. 32,supt'a.
3 Vidf! paras30-31.
4 Vide para.31, supra.
' I, pp.121-122. COUNTER-MEMOR[AL OF SOUTH AFRICA 63

sa.meposition obtains under the new Act. It is consequently unnecessary
Jor Respondent to deal with the 1956Act or with the newAct of1962.

PARAGRAPH 77 OF CHAPTER V 1

6o. Applicants' charges in this paragraph constitute a mere repetition
.of the allegations made in paragraphs 37 to 47 of Chapter V of the
Memorials whichhave been dealt with above.

· It isaccordinglyunnec~ to dealwiththe chargesmadein paragraph
77. save to say that they are denied.

1
2 I.pp.130-131.
Yuü paras. Jand 3,&UpA. CHAPTEI{ IV

RAILWAYS AND HARBOURS

lntroductory

r. ln paragraph 77 of Chapter V of the Memorials the Applicants
charge Rcspondcnt with having "... confined the participation of the
'Native' population in the industrial economy, for ail practical purposes,
to the rolc of unskillccl laborer" 1.
In support of this charge the Applicants refer, inter alia, to conditions

of employmcnt in the l{ailways and Harbours Administration, with
regard whcreto they state as follows:
"Ali graded posts in the Railways and Harbors Administration are
rescrved to 'Europeans', subject to temporary exceptions which are
made whcn a shortage of 'European' employees is so acute as to
makc it nccessary to relax the bar 2."

2. Beforc dcaling with the said charges, Respondent will give a brie!
account of the control of the railways and harbours in South West Africa,
and of certain policics which are applied with regard to the employment
of personnel in the Railways and Harbours Administration.

Control of Railways and Harbours

3. The railways and harbours of South West Africa are operated by the

Soutl} African Railways and Harbours Administration, which is a depart
ment of the Government of South Africa.
Control of the railways and harbours is exercised through the Minister
of Transport who is advised by a board, known as the Railways and
Harbours Board. The board is composed of three Commissioners, with
the Minister as chairman.

4. Although it is a department of State, the Railways and Harbours
Administration has a separate financial budget, and seeks to operate as
far as possible on ordinary business principles, due regard being had to
the agricultural and industrial development of the country.

1
Policies Applied in the Employment of Railway Personnel

5. The policies applied in thé employment of members of the \"arious
population groups in South Africa in the Railways and Harbours Ad
ministration must be viewed against the background of the history of
social and economic conditions in South Africa.

Elsewhere in this Counter-Memorial reference is made to the social
and economic considerations which have led to the adoption of basically
similar policies in regard to the employment of members of the different

1
2 Ibid.,para.(48,p.1122. COUNTER-MEMORIAL OF SOUTH AFRICA 65

population groups in particular industrial enterprises 1 and in other
econornic spheres 2•
As sirnilar considerations arise with regard to the ernployment of
mernbers of the different population groups in the Railways and Harbours
Administration, it is not necessary to deal fully with the toric here, and
Respondent will for convenience merely restate the basic considerations
underlying such policies.

6. Throughout South Africa's history there has been social separation
between the rnembers of the Whlte group and the rnembers of the non
Wlùte groups; the rnembers of each group preferring to associate with
members of their own group, and avoiding contact in spheres where
friction cuuld be created. ·
By reason of the difference in their stages of general development, the
relationship in the economic field between members of the White group
and the members of the non-White groups has in the past generally been
that of employers and employees. In this factual situation many Euro
peans, in all probability the vast rnajority, are not prepared to accepta
relationship in which non-Whites could be in positions of authority over
them.

7. In the adoption of policies regarding the employment of members
of the diflerent population groups in the same enterprises, and also in
the various government departments, Respondent was obliged to take
cognizance of the factual situation described above. This was particularly
necessary in view of the ever higher level of developrnent being attained
by members of the non-White population groups, and of their aspirations
to avenues of employment not formerly sought by them.
The problem that arose was one of finding the best means whereby

members of the non-White groups co,.ild enjoy proper opportunities for
advancement in higher spheres of employment, and thus a proper outlet
for their abilities and qualifications. A laissez /aire policy, leaving the
non-Whites to fend for themselves in competition with White persans, in
an effort at bringing about a complete integration between White and
non-White in the economic sphere, would in Re;;pondent's experience and
considered opinion have led to the most deleterious consequences for ail
concerned. On the one hand there was the danger of estrangement of
members of the White group from fields of employment which required
their services. On the other band there was the prospect that in many
avenues non-Europeans would find progress almost completely barred
through superior qualifications, abîlity or experience on the part of White

competitors, or through prejudicial reaction on the part of employers, or
through a combinàtion of these-whereby thev would increasingly ex
perience disillusionment and frustration. Goodwill and good relations
across group and racial borders, would suffer imrneasurably.
8. In the circumstances the only solution was to create, and to en
courage members of the non-\Vhlte groups to seek, opportunities of
employment where they could serve their own people and where separ
ation of employment opportunities for the members of the different
groups wouHavoid possible friction and fear of competition.

This policy has therefore been applied also in the Railways and

1 Vide Chap. 1II, paras. 29-3supra.
2 Vide Book VII, Chap. VIII. paras.20 ff.i"jra. SOUTH WEST Al.-RICA
66

Harhours Administration, where ever increasing opportunities in ernploy
ment have becn, and are being, creatcd for the members of the non-\Vhite
groups.

With the devclopment of separate homelands in South Africa for the
Bantu people, cmployrncnt possibilities for them will accordingly be
acŒleratcd.
In the rneantimc, however, while in the transitional stage, it jsneces
sary to regulate employrnent, with due consideration of the aspirations
and desire for security of all the population groups, and to avoid dis
ruption of essential services.

Such a policy, as will be appreciated, involves rcgulation of a delicate,
intricate and sometimcs unpopular nature, and the actual measures and
practices adoptcd in this regard require review and revision from time to
timc in the light of experience and developments.
9. Inasmuch as the social and economic relationship between the
diffcrent population groups in South West Africa is basically the same as

that which pertains in South Africa, the application of a similar policy
in the Tcrritory, with adaptation where necessary, is only natural.
For reasons stated elsewhere in tlùs Counter-Memorial 1,it is expected,
however, that progress in the separate development of the Native groups
in South West Africa wîll be slower than in South Africa.

IO. It is against the above background that Respondent's policies with
regard to the employment of members of the different population groups
in the Railways and Harbours Administration must be viewed.

Respondent's Reply to Applicants' Allegations (Memorials)

PARAGRAPH 48 OF CHAPTER V 2

II. Applicants' allegation that
"AUgraded posts in the Railways and Harbors Administration are
rescrved to 'Europeans', subject to temporary exceptions which are
made whcn a shortage of 'European' employees in so acute as to
make it necessary to relax the bar.",

is made in the light of a statemcnt by the Minjster of Transport in the
South African House of Assemblv in March 1956 3•
The l\finistcr, in the part of hÎs speech here in issue, was replying to a
member who had "advocated the promotion of non-Europeans to ail
gradcd posts" on the railways 4, and he said that that was not govern
mcnt policy.

He pointed out that certain posts, terrned "graded posts", were "tra
ditionally European posts", that they were reserved to Europeans, and
that the non-Europeans then occupying such posts were doing so on a
temporary basis.
12. Wlùle it is true that all "graded posts" on the railways are reserved

to Europeans, it is not correct, as Applicants say, that Respondent bas
"confined the participation of the 'Native' population. , . [in employment

1 Vide Book IV, Chap. VII, paras. 34 ff.supra.
2 1,p. u2.
3 U. ofS.A., Parl. Deb., House ofAssembly, Vol. 90 (1956), Cols. 2133-2138.
• Ibid.,Col.2135. COUNTER-MEMORIAL OF SOUTH AFRICA

on the railways], for all practical purposes, to the role of unskilled
laborer" 1• The term "gra.ded post" is one which is used in the Railway
Administration to denote any post held by a European, other than that
of ordinary railworker {labourer), for which provision is made in the pay
schedules published in conjunction with railway staff regulations. The
term has no significance outside this context.
The Minister did not say that non-Europcans wcre, or would be,
linrited only to unskilled work. He stated that where they occupied posts

of a rank higher than that of an ordinary railworker (labourer), they
were doing so in circumstances where they served their own people, and
he referrea to instances where they in fact held such positions. Such
positions, it should be pointed out, are not called "graded posts", even
where they involve the same duties as those performed by Europeans in
"graded posts". In the case of non-European employees the corres
ponding name usually employed is "better class work positions". In 1951,
it may be pointed out, there were n6 such "better class work positions",
and in 1961, 134 (with 6,706 incumbents).

13. In the course of the debate in Parliament an opposition member,
referring to the stated policy of the Administration "to allow non
Euror,eans to serve their own people in graded positions as far as pos
sible ", sa.id that it must be the logical policy also to employ Natives
on trains for Natives 3.
It was in reply to this suggestion that the Minister made the statement
quoted by Applicants 4.and which is repeated here for convenience,
viz.,

"We only employ Natives to serve their own people where it is
practicable, and whcre it is acceptable to the rest of the staff. But it
will certainly not be acceptable to the staff or the public that Natives
should be employed, even on Native trains, as firemen, conductors, or
guards. That is not my policy, and it will not happen."

14. From the above statement it is clear that the Minister confirmed
that the policy was to employ Natives to serve their own people, but
that he emphasized that it would be applied only where it was "practi
cable", and where it was "acceptable to the rest of the staff".
The Minister explained that the employment of Natives on Native
trains, as firemen, conductors and guards, would not be "acceptable
to the staff or the public".
The Minister's explanation must be viewed in the light of the con
siderations mentioned in paragraphs 5 to 10 above. LJisplacement of
European employees in graded posts hy Native employees, on Native

trains, would, as the Minister saw it, and as matters then stood, have
caused grave dissatisfaction amongst European employees and the
public. This was the more so inasmuch as even trains carrying only
Natives did not operate separately from the rest of the service in the
sense of being located in a different area.
Since the Minister spoke in 1956, separate development of the Native
population groups has advanced at an increased tempo, and ever in-

1 I,para. 77 (4}p. t31.
~ U. ofS.A., Pafl. Deb., Houseof Assembly,Vol. 90 (1956), Col. 2161.
s Ibid.,Col.2182.
• I, para. 48, p122.68 SOUTH WEST AFRICA

creasing opportunities of performing "better class work" on the railways

are being offcred to Native employecs. So, for example, they are now
employed in clcrical positions {in ticket offices) and in operative positions
on a much larger scale than beforc.
As the Natives become better qualified, educationally and technically,
they will be able to pcrform more and more services for themselves,
and it is hopcd that they will cventually be able to occupy the highest
posts in their own arcas.

15. In South West Africa the position is generally that the Native
population has not yet reached the same level of development as the
Bantu population in South Africa. The work performed by them on the
railways and in the harbours is largcly of an unskilled kind, owing to the
fact that their general state of advancement does not, at the· present
stage, generally qualify them for posts of a skilled, or semi-skilled, kind.
Progress bas nevertheless been made, and the following positions,

involving the performance of what is known as "better class work'",
are open to them: boiler attendant, boss boy (overscer), cook, campman,
messenger, station porter, berthing and shore hand, engine attendant
(locomotive under steam), stoker (harbour craft), pumpcr, police and
commissionairc {at stations, or as assistants to European guards or
examincrs on trains).
The practice is to add to such positions from time to time when pre
scribed standards can be met by a sufficient number of candidates.

PARAGRAPH 49 OF CHAPTER V 1

16. The cxtract from the report of the Permanent Mandates Com
mission on South West Africa to which Applicants refer, does not pre
sent a full and accurate account.
The only discussion of the matter before the Commission is recorded
at page 106 of the Minutes 2 as follows:

"Mr. Grimshaw, turning to the question of white workers, asked
whether the Colour-bar Act was applicd in South West Africa.
Mr. Werth replied that the Administration applied the Act toits
own workers who were employed on responsible jobs, such as motor
driving and, he thought, on the railways."

This brief discussion followed shortly after the Chainnan of the
Commission had "requested al! members, in view of the lateness of the
hour. to make their questions ançl observations as brief as possible" 3•
17. After the report of the Commission had been drafted, the Com
mission having adjournetl on 13 November 1928, Mr. Werth, the ac

crcdited reprcscntative for South Africa, wrote a letter dated 19 Nov
ember 1928 to the Commission in the following terms:
"I should like to thank you for kindly submitting to me, for any
comments I may wish to make. an advance copy of the observations
of the Permanent Mandates Commission. Availing myself of the
privilege thus graciously accorded me, I wish to draw attention to

1 1, p.I22.
2 P.M.C., Min., XIV, p. 106.
l Ibid., p. w5. COUNTER-MEMORIAL OF SOUTH AFRICA 69

the Commission's observations on the Colour Bar Act (page 8) and

to make the following comments:
When the question about the application of a colour bar in South
West Africa was put to me by a member of the Commission, the
Chairman indicateô tome in no mistakable way that the Commission
was sorely pressed for time and that a full statement was not wanted.
I concluded from this that no important principle was involved and
therefore briefly replied that a colour bar was being observed, but
only with regard to work done by the Administration and the Rail
way Department. I now fmd that this brevity has led to a mis

understancling which I feel it my duty to correct.
The true position is as follows:
The Colour Bar Act of the Union is not in force in South-West
Africa. There is therefore no statutory colour bar. Owing, however,
to the present low state of civilisation among the natives, no native
is at present employed either by the Administration or by the Rail
way Department on work involving the risk of human life, such as

driving a motor-car or working an engine. A certain colour bar is
therefore being observed in practice, but it is certainly not a statu
tory enactment and is purely temporary, that is. until such time as
the native is sufficiently advanced to be able to undertake this
responsible work.
I hope that this explanation will satisfy the Commission and
remove all ground for the observation which it has made on page 8 1."

The matter was not referred to again by the Permanent Mandates
Commission.
18. The Act referred to as the "Colour Bar Act" in the extracts above
was the Mines and Works Act 19n, Amendment Act (Act No. 25 of
1926). It did not apply to Railways-Mr. Werth was wrong in thinking
that it did-and it did not apply to South West Africa.

2
P ARAGRAPH 7J OF CHAPTER V

19. For the reasons aforestated Respondent denies the Applicants'
allegations in paragraph 77 of the Memorials relative to conditions of
employment in the Railways and Harbours Administration.

1 P.M.C., Min., XIV, p. 278.
2 1,pp.130-131. CHAPTER V

LABOUR RECRUITMENT

lntroductory

r. ln paragraphs 50 to 57 of Chapter V of the Memorials 1 the Appli
cants deal with the subject of labour recruitment in OvamboJand and in
the Okavango territory. Apparently the Applicants do not object to
the recruitment of labour as such. They say that the "process by whiè~
labor is recruited is of particular interest" 2,and, although it is not spëd~
fically so stated, it would appear that their complaints in this regard~

those summarized in paragraph 77 (6) of Chapter V ôf the Memorials,
which reads as follows:
"The Mandatory has so drastically curtailed and dtcumscrib~tl the
possibilities of choice for 'Native' laborers as to lèavèthem; for all
practical purposes, very little freedom of choice with respect to

place of employment, type of employment, identity or character of
employer, or conditions of employment 3.-''
2. Before dealing with the Applicants' specific allegations in the para
graphs referred to above, Respondertt proposes to give a brief survey of
·the history of the recruitment systerri; of its operation in practice, and of

its advantages for Natives who seek employrttent.

History of the Reèntiting System

3. Even before Respondent assumed the Mandate, a large part of the
Native labourers employed within the Police Zone came from the

northern areas beyond the borders of the Zone. In 1912, e.g., there were
about 6,600 adult male Natives from these areas iricluded in the total of
approximately 25,000 adult male Natives employed within the Police
Zone\ By 1919 there were 10,537 migrant Ovambo workers in the
Police Zone •

4. Development in the Police Zone after the inception of the Mandate
created an ever bigger demand for labour, and, at the same time, provided
ever-increasing opportunities of wage employment for the Native in
habitants of the Territory. Such employment has at ail times been keenly
sought by large numbers of the inhabitants of Ovamboland and the
Okavango territory and also by Natives beyond the border of the
Territory.

5. At the inception of the Mandate it was dedded to restrict the entry
of Europeans into the northern Native areas, and private recruitment
of Native labourers by European employers was accordingly not allowed.

1 I, pp.122-12-4.
z Ibid., Chap.V, para. 51,p. 123.

J Ibid., para.77 (6),p.131.
• Die deutschen Schulzgebiele in Afrika und der Südsee-I9I:1/I9IJ,-Amtliche
Jahresberichte,Statistischer Teil, p. 57.
' Officia/ Yearbook of the Union of South Africa, No. 3, p. 883. COUNTER-MEMORIAL OF SOUTH AFRICA 71

Since transportation difficulties and the long distances involved would
have made it impossible for ail but a few Natives, ifleft to their own
resources, to obtain work in the Police Zone, the South West African
Administration itself initially undertook the task of recruiting labour in
the northern areas, and by Proclamation No. II of 1922 1 no person
or organization was pennitted to recruit labour in those areas save
upon appointment by the Administrator.

6. The labourers recruited by the Administration were largely em
ployed in the diamond mines in the southern, and the copper mines in
the northern parts of the Police Zone, but large numbers of workers
also found employment on European farms and in the urban areas of
that Zone.
7. In 1925 the Administration considered it advisable to aliow repre

sentatives of the employers of workers recruited in the northern territories
to take over the recruitment of such labour from the Administration,
and in December 1925 a confercnce was called by the Administration
of representatives of the two biggest groups of mining companies, viz.,
the diamond mines in the south, and the copper mines in the north, to
discuss the question of recruitment of Native labour. This conference
decided that two recruiting organizations be formed, viz., the Southern
Recruiting Organization, designed primarily to serve the interests of the

diamond mines in the south, and the Northern Recruiting Organization,
designed primarily to serve the interests of the copper mines in the north.
Provision was also made for other large employers of Native labour to
become members of these two organizations 2•
8. These organizations did ail recruitment of labour in the northern
areas until 1943, when the South West Africa Native Labour Association

{Proprietary) Limited (usually referred to as S.W.A.N.L.A.) was formed
to take over their fonctions.
S.W.A.N.L.A. was registered with a share capital of [19,500 (R39,ooo),
the principal shareholdeI"S being the Consolidated Diamond Mines of
S.W.A. Limited and the Northern Labour Organization Ltd.
S.W.A.N.L.A. is run on public utility lines. Article II (a) of its Articles
of Association provides that the profits of the Company-

"... shall not be distributed by way of dividend, but a Reserve
Fund shaU be established and the Company shall in each year take
from its profits an amount equal to at least ten per cent of the nett
profits in that year for the purpose of fonning therewith the afore
said Reserve Fund",
and Article 14 thereof provides that on dissolution of the Company

"... the share capital ... shall be re-paid to thé shareholders ...
any balance of funds remaining thereafter shall be disposed of by
the Company in the interests of the Territory, due regard being had
to the interests of the Natives in the recruiting areas operated by
the Company 3".

9. In 1952 an organization, called the Society of South West African

1 Vide sec.19 of Proc. Xo. II of 192z (S.W.A.),inThe Lawsof South West Af,ica
r9r5-r922, p.753.
i U.G. 22-1927, para. 52, p. 36.
3A,-ticles of Associatio,1 of New South Wesl Africa Native Labou,- Association
(Proprieta,y) Limited, pp. 6-7. SOUTH WEST AFRICA

Farmer-Employers of Contracted Natives, was formed, and this society
was given representation on the board of management of S.W.A.N.L.A.
The Company's name was then changed to New South Wes, Africa
Native Labour Association (Proprietary) Limited-Nuwe S.W.A.N.L.A.
(usually referred to simply as New or Nuwe S.W.A.N.L.A.), and the

management board was mcreased from its original two to five members.
Two of these members represent the original shareholders, and two the
aforementioned Society of Farmer-Employers, whilst the fifth represents
the interests of the employers of contracted extra-territorial or northem
Natives other than those engaged in farming or mining 1•Pending the
formation of a society of such last-mentioned employers, the fifth
member of the board is appointed by the other four members thereof or,
failing agreement between them, by the Administrator z.

Operation of the Recruiting System

10. New S.W.A.N.L.A.'s recruiting officesin t~e-northern areas are at
Ondangua, in Ovamboland, and at Runtu, in the Okavango territory.
Although recruiting tours are undertaken, most Natives are aware of
the existence of the recruiting centres and generally present themselves
there of their own accord. On occasion also, when particularly large
numbers of recruits are required, messages to that; effect are sent to chiefs
and headmen, who thereupon inform their people. Volunteers are then
picked up by the recruiting agents or make their own way to the re
cruiting centres ta seek inclusion in the group to be emp1oyed.

n. Prospective employees who present themselves at the recruîting
centres are first cursorily examined by company officiaisand their Native
assistants with a view to eliminating those men who are obviously
medically unfit and thereafter recruits are medically examined to deter
mine their physical fitness for the kinds of employment offered.

12. Having passed their medical examination, recruits who have
offered themselves, and have been accepted, for employment with large
mining concerns, such as the Consolidated Diamond Mines or the Tsumeb
Corporation, forthwith enter into contracts with their prospective em
ployers, such employers being represented by the recruiting agency. The
terms of their contracts, which are in writing and of standard form, are
carefully explained to the recruits, and, after they have expressed their
satisfaction therewith to the Bantu Affairs Commissioner, or his assistant,
the official concerned attests the agreement.
In the case of other types of work, e.g., in industry, on farms, or as
dom~stic workers in urban areas, it is practically impossible to specify the

particular employer at the time when the prospective employee is
recruited in the northern areas. In such cases a recroit enters into a
preliminary agreement with the recruiting agency to take up work of an
agreed type, at not less than a specified wage, with an employer to be
named at Grootfontein, where the agency's main office is situated. The
preliminary agreement is fully explained to the recruit by the Bantu
Affairs Commissioner, or his assistant, and if the recruit is dissatisfied

1 .OrdNo. 48 of 1952, inTht Laws of South Wut Afri,a r952, pp.794-804.
2 Ibid., sec8,pp. 800-802. COUNTER-MEMORIAL OF SOUTH AFRlCA
73

with the type of work or with the wage offered, he has every opportunity
of refusing to take such work. At Grootfontein the recruit is infonned of
the identity and address of his prospective employer, and the terms of the
proposed contract of service are fully explained to him by the Bantu
Affairs Commissioner, or his assistant, who attests the agreement if the
recruit is satisfied therewith.
Ail contracts entered into by recruits are in writing, and, to protect

the interests of recruits, the conditions of service specified in such
contracts are prescribed by the Administration.
Every effort is made to -place recruits in the service of employers of
their choice. it also being m the interests of the recruiting agency to
doso.
13. Recruits travel from the recruiting centres to Grootfontein, within
the Police Zone, by road motor transport. provided by the South African

Railways from Ovamboland and by New S.W.A.N. L.A. itself from
Runtu over routes equipped with the necessary rest camps. At Groot
fontein they are housed by New S.W.A.N.L.A., and issued with food and
clothing. · ·
Frorn Grootfontein the recruits proceed to their respective places of
employment. Those going to the diamond mines in the south are generally
conveyed by air, whereas the others proêeedby rail to the station or
railway hait nearest their place of employment, where they are met by
New S.W.A.N.L.A.'s agents or their employers.
1
Copies of contracts of service serve as sufficient identification passes
for employees in urban areas within the Police Zone 2•
14. The tribal authorities in the northern territories have insisted
that service contracts entered into with their people should be for a
limited period only, and that on expiration of that period the employee
should retum to his tribal area and stay there for at least three months
before seeking re-employment. Employers in the Police Zone have often

requested that an employee's family should be allowed to accompany
him to his place of employment, but the tribal authorities have always
stemly opposed such suggestions. By limiting the period of employment
outside the tribal areas, the tribal authorities seek to maintain trad1tional
ties and tribal relationships and to ensure that the workers do not fail in
their obligation to support their families.
15. Prior to 1949 the maximum period of service to which the tribal

authorities would agree was one year, but this was subsequently extended
to 18 months with the consent of the chiefs and headmen in Ovambo
land and the Okavango territory, At their request, however, the period
was again reduced to one year as from 1 July 1961. Farm labourers,
however, are allowed to contract for a period of r8 months if a higher
wage than the minimum is agreed to, and all contracts, whether for 12 or
18 months, may be extended up to a maximum of two years in the case
of married men, and to two and a half years in the case of umnarried
men.

The govemment authorities have provided a central registry at Groot
fontein to keep a record of all recruited workers, and to ensure that they
return to their homes at the end of their contract periods.

1 Vidl para. IZ,supra.
2 Proc.No. l33 of 1961 (S.A.), The Laws of South West Africa z96I, p546-552. SOUTH WEST AFRICA
74

Advantages of the RecruitingSystem

16. The recruiting system, as described, above, has decided advantages
for those Natives of the northern areas who seek to take up emp1oyment
in the Police Zone. Briefly put, it provides them, free of charge, with an

avenue through which they can find employment which, if left to their
own resources, comparatively few would be able to obtain. South West
Africa with its low population density and vast distances presents an
intricate problem in regard to the efficient distribution of labour. The
few industrial and mining centres, viz., Tsumeb, Walvis Bay, Oranje
mund and Luderitz, are far removed from the northern territories,
varying from about 250 miles in the case of Tsumeb to about 1,000 miles
in the case of Oranjemund. Many farms again are situated miles from
the nearest urban centres. A large proportion of the men who present

themselves at the recruiting çentres are illiterate and unacquainted with
conditions outside their own areas, and for them the recruiting agency,
by making ail the necessary arrangements for obtaining ernployment,
eliminates difficulties which might otherwise prove insuperal>Je. Few of
these work-seekers have the necessary means to travel over long distances
to, and within, the Police Zone to search for work. Under the existing
system all are assured of employment. and made fully acquainted with
their conditions of service, before they leave their homes, and transport

to their place of employment, and back again after their period of service,
is arranged for them.

Respondent's Reply to Applicants' Allegations (Memo~s)
PARAGRA:PH 50 OF CHAPTER V l

17. In regard to Applicants' allegation as to the ''chief em_pJqyersof
labor in the Territory" 2,employment figures for the year 1900 may be

taken to illustrate the true position. Of the 65,9g8 adult male Natives
employed within the Police Zone in that year, 7,47I (i.e., abçiut .n per
cent.) wereemployedinmiqes and factories; 3,582 (i.e., about5.5 percent.)
by the Railways and the Administration; and 25,087 (i.e., ~bout 38 per
cent.) by farmers. The remaining 29,858-the ]argest group, vjz., about
45 per cent.-were employecl by a variety of employers witbin tbt urban
areas in the Police Zone.
It is correct to say, as AppJicants do, that the "bulk of the l~bor fore~
1
is made up of 'Native' labo)"" , but this is no more than naî:t!ral when
regard is had to the fact that the Natives also constitute the "bulk" of
the population of the Territgry, and to the fact that, at their st~e of
general development, their co11tribution to the economy of the Terntory
is mainly in the form of u~_skilledlabour. It is incorrect, qowever, to
say that such Native labour "cornes in the main from the Ovamboland
Native Reserve and the Ok~vipgo Reserve" 3•For instance, of the 65,9g8
adult male Natives employed in the Police Zone in I960, 27,77I came

from Ovamboland, and 850 fr.qm the Okavango territory-i.e., 4 approxi
mately 41 per cent. of the tot~f labour force in the Police Zone •

1 I, pp.I22-l2J.
2 Ibid.p. I22.
3 Ibid.p. 123.
• In that year a further 4,528 N"atives came from beyond the borders of South COUNTER-MEMORIAL OF SOUTH AFRICA 75

!_8.The Applicants' general aHegation, stated to have been previously
"ijxplained" , that "the 'Native' labor force is overwb.elmingly an un
s.killedlabor force", ancl that "it is deliberately kept in that status by the
law, policy and practice of the Territorial Administration and the Union

Government", is dealt with in Respondent's replies to the specific alle
gations made by Applicants in this regard 2•While the Native workers
are, on the whole, not sufficiently qualified or experienŒd for employ
ment in skilled occupations, there are, in the case of the northern Natives,
additional reaSQn_w s hy the.y do not acquire greater skillthan they actually
do. Th,::ser~o~, lie mainly in the shortness of their period of contract

service, in_the difficulties which they experience in adapting themselves
to form!; <;\fwork which are strange to them, and in the ti;rn:\encyon the
part o( many of them, when they return to the Police Zone for a second or
furthQr-period of service, to explore new avenues of employment rather
that\, 1;Qrnturn to their former field of work. These factors naturally
mili.\ate against acquiring any considerable degree of skill in any par

tiq~la.r-occupation.

PA~AGRAPH 51 OF CHAPTER V 1

i9. Pa.rticulars have been given of the number of northem Natives
e-~proved in the Police Zone 3•
The' recruiting system in the northem areas has already been de~
!f.çribed •lthough Applicants' further allegations in this paragraph are
suhstantially correct, it is pointed out that recruited labour is employed
on t\\e mines, in industry, on farms, iriµrban a.reas,and by the Territorial
Administration 3,

20. As to the Applicants' allegation that "recruiting agents keep in
regular contact witq the chiefs, headmen and sub-headmen witpin the
'Native' reserves", Respondent does not know whether it is intended to

convey a suggesticin that such "contact" is iq any way improper. If so,
the suggestion i§ qenied. It has already beeq ;,hown 5 tha.t due regard
îs had to the wtstws of the tribal authorities as to the period oliabsence of
their peop\~ ho!ll their territories, and that the authorities co-operate
with the recrJ.\iting agents 6• 1t is obviously in the interests. of ail con

cerned thit 'friendly relationships should be maintained between the
recruit~iifag~·!.lCY and the tribal authorities.
21. That r~cruiting systems elsewhere in Africa also operate with the

co-o~ra.tion c;iftribal authorities, is illustratec;l by the case of Liberia.
Reg.~!ding th,eposition in Liberia, W.C. Taylor-sa.ys:
i•. • •Firestone soon discovered that, th9µgh Liberians might be

attracted to work on the plantations, they often could not leave

\Ve~t Africa, giving a total of 33,I49northern and extra-territorial Natives-Le.,
allrrgxima~ely 50 per cent, of the total labour force in the Police :Z:one.
· ,. p. !23,
~ Vide Chëps. Il, IIIand IV, supra.
l Vid11pa,ra,17, supra.
• Vide pa,ras.10-15, supra.
' Vide paras. 14-15, supra.
' Vide para. 10, supra. SOUTH WEST AFRICA

their native villages without the prior permission of their town, clan,
or tribal chiefs. The chiefs were reluctant to consent because they
did not wish to lose the unpaid labor and other services which each
able-bodied male owed by immemorial tribal custom. Thus, Fire
stone wasforced to develop asystem ofcompensating the chiefs forlost

labor and services.
At present, each paramount chief receives 15c per man per month
during the rice-growing season from January through June, and 1oc
per man per month from July through December, or a total of
$r.50 per man per year. In 1955, the total of such payments to the
chiefs was over $90,000. ln addition, a regular scale of nonmonetary

gifts from Firestone to the paramount, clan, and occasionally town
chiefs has also evolved. This 'Paramount Chiefs Assistance Plan',
as it is called, was developed with the full knowledge and consent
of the Liberian government, and has also been adopted by other
foreign companies operating in the country ...
A Firestone recruiting agent makes regular trips through the

tribal areas negotiating quotas with and making payments to the
chiefs 1."

PARAGRAPH 52 OF CHAPTER V 2

22. Reference bas already been made to the initial selection of recruits

by officiais of the recruitmg agency, and of the subsequent medical
examinatiion of recruits 3•
Itis correct that recruits are "classified according to physical fitness for
various occupations", as is alleged by Applicants. It is in the interests of
both employers and employees, that the latter should not take up
employment for which they are not physically suitable, and the classi

fication is intended to serve that purpose.
Applicants' allegation regarding the issue of identification passes is
correct, save that, as stated above 4, copies of service contracts serve as
identificatïon passes in urban areas within the Police Zone.

PARAGRAPH 53 OF CHAPTER V 2

23. The allegations in this paragraph are correct, save that recruits
who have entered into employment with the diamond mines in the south
are generaL\y conveyed by air 4•

PARAGRAPH 54 OF CHAPTER V 2

24. The allegation that labourers "are provided to the respective
employers in accordance with the terms of contracts entered into between
the employer., and Nuwe SWANLA" is not correct. As bas already been
shown , recn1its enter into contracts with their employers at the recruiting

1 Taylor, W. C., The Fireslone Opu-,tions in Liberia [Fifth Case Study in an NPA
Series on Unite4 States Business Performance Abroad] (1959). p. 67.
z I, p.123.
s Vide para.1'r, supra.
• Vide para. 13, sup1'ti.
5 Vide para. 1 2,supra. COUNTEk-MEMORIAL OF SOUTH AFRICA 77

centres in the northern areas or at Grootfontein in the Police Zone.
New (Nuwe) S.W.A.N.L.A. acts as the representative of employcrs in
the case of contracts concluded in the northern areas, and is itself party
to contracts only in the case of preliminary agreements 1.
The other allegations in this paragraph are correct. Regarding the

allegation that certain bus fares were paid by recruits prior to 1948,
it is pointed out that it was agreed in advance by a recroit, it being a
term of his contract, that such payment would be made by him through
deduction from his first and last months' wages. As from 1948the position
is as stated by Applicants.

PARAGRAPH 55 OF CllAPTER V 2

25. The allegations in this paragraph are correct. As already pointed
out 3. contract periods have been limited at the request of the tribal
authorities in the northern territories who wish to preserve traditional
tics and tribal relationships. The retum of the Native worker also ensures

that he observes his obligations towards his family.

PARAGRAPH 56 OF CHAPTER V 2

26. This paragraph is admitted. The constitution of the Board of

Management of New S.W.A.N.L.A. is dealt with in paragraph 9, supra.

PARAGRAPH 57 OF CHAPTER V 2

27. As pointed out 4, representation on the Board of Management
of New (Nuwe) S.W.A.N.L.A. is regulated by the provisions oE the
Societies of Employers of Contracted Natives Ordinance, 1952 5•
As New (Nuwe) S.W.A.N.L.A. is a limited Iiability company, the
4
Society of Farmer-Employers was required to purchase 19,500 shares
in the company for f19,500 before obtaining representation of two mem
bers on the Board 6. The Territorial Administration also purchased
9,750 shares for [9,750 to obtain representation of one member on the
Board of the Company , but it was further provided that the Adminîs

trator would delegate his right to nominate the fifth member of the
Board to the other four members, and that he would nominate such
member only in the event of the other members failing to do so 4• Such
member would represent the interests of "employers of contracted
extra-territorial or northem Natives other than those engaged in farming
4
or mining" •
28. It was contemplated that such last-mentioned employers would
eventually be united in a society of their own, and that in the meantime.

the Administrator would buy and hold the 9,750 shares for and on behalf
of the proposed society. AUemployers of contracted labour, other than

' Vide para. 12,su/)rfl.
z I, p. 124.
3 Vide paras. 14 and 15, sufJ""·
• Vide para. 9, supya.
5 O,d. No. 48 of 1952 (S.W .•\.), iThe Laws of South W11s1Africa r952, p. 794.
6
Ibid., sec6, p. 800.
1 Ibid., sec8, pp.800-802. SOUTH WEST AFRICA

bona fide farmcrs, mining companies, and the various departments of
the Territorial Administration or the South African Government, in
cluding the Railways an<l Harbours Administration, were required to

paya sum of -[2 to the Receivcr of Revenue before or when making an
initial application to the company for contracted labour 1•The amounts
so pai<lwould be held in trust by the Administration for the socicty to be
formcd 2,and would conccivably go towards payment of the 9,750 shares
which the Administration would sell to the new society 3• Once this
society is cstablished, it will nominate the fifth representative on the
Board to represent the interests of employers other than farmers and

mining companies. The fifth representativc is, in practice, nominated
by the othcr four members of the Board, with the result that the Adminis
tration does not actua1Jy partkipatc in the management of the Company.
The Applicants' allegation that "such other employers are required to
pay two pounds per annum to the Administration' is not correct. An
amount of two pounds is paid by the employer when making an initial

application for contracted labour, and there is no recurrent obligation.
The said amount is not paid to the Administration in recognition of any
representation, nor, in fact, is the Administration represented on the
Board at al!. The reason for requiring such payment is as stated above.

PARAGRAPH 77 (B) OF CHAPTER V 4

29. Respondent denies the allegation that the system of recruitment of
labour so curtails "the possibilities of choice for 'Native' laborers as to

1eave them, for all practical purposes, very 1ittle freedom of choice with
respect to place of employment, type of employment, identity or charac
ter of employer, or conditions of employment" 4.
It is emphasized, in the first place, that the tenns of al! contracts are
explained to prospective employees, and that no recruit need enter into
any agreement ifhe does not wish to do so 5•
Secondly, a recroit who enters into a final contract at the recroiting

centres in the northern areas is informed, before doing so, of the identity
of his employer, bis place of employment, the type of work he will be
required to do, and of all the conditions of service. A recroit who enters
into a preliminary contract at these centres and then proceeds to Groot~
fontein, is there fully informed of these particulars before he concludes his
final contract 5•

It is true that a recruit is not, at the time when he enters into a contract,
aware of the "character" of his employer, but it is submitted that this
fact has little, if any, practical significance in the case where the employer
is a company conducting mining or industrial operations. In other
cases, i.e., where a recruit is employed by a private person, he is in much
the same position as a work-seeker who enters into the service of a person
whom he sees for the first time. Employees, it may be noted, are at all

times protected against misconduct on the part of their employers by the

1Om. No. 48 of r952 (S.W.A.), op.cit.,sec. 13 (1) and (3), p. 802.
i Ibid., sec13 (2),p. 802.
3 Ibid., sec12, p.802.
• I, p. 13r.
5 Vide para. 12,sU'jwa, COUNTER-MEMORlAL OF SOUTH AFRlCA 79

provisions of the Master and Servants Proclamation 1, and also by the
common law relating to contracts of service. It is submitted, furthermore,
that such minor disadvantages as there may be in individual cases, are

far outweighed by the advantages of the recruiting system generally for
the Native inhabitants of the northem areas 2•

1 Proc. No. 34 of 19:zo (S.W.A.), in The Law$ of Soulh West Africa z9z5.z9aa,
pp. 336-366.
2 Vide para. r6,supra. CHAPTER VI

LABOUR CONDITIONSWITHIN THE POLICE ZONE

A. Introductory

1
I. In paragraphs 58 to 76 of Chapter V of the Memorials the Appli
cants refer to a number of statutory provisions which allegedly control
"The entire 'Native' Jabor force within the Police Zone" 2 •The Applicants
dassify these provisions into two categories, viz., provisions relating to

" 'Native' labor as such", and provisions relating to "Natives generally",
but af:fecting "the conditions of 'Nabve' Jabor" 2• As regards the latter
category, most of the provisions in question are also referred to by
Applicants in other parts ofthe Memorials, and are dealt with by Respond

ent in its replies to such other parts. Respondent will, therefore, in the
present context merely refer, where necessary, to other sections of the
Counter-Memorial where the said provisions are dealt with.

2. The provisions falling within the first category are those relating to:
(a) the relationship between masters and servants 3;

(b) leave of absence 4;
(c) pneumoconiosis compensation 5;
(d) collective bargaining and conciliation 6•

3. In their summary of the charges relating to these provisions, the
Applicants state:
(a) that Respondent "has unfairly prohibited and continues to prohibit

'Natives' from taking part in the processes of collective bargaining
and concîiiation and arbitration of disputes" 7 ;
(b) that Respondent "has shaped the circumstances and conditions
of labor for the 'Native' population into a pattern of constraint

and compulsion that consistently subordinates the interests of the
'Native' laborers to the interests of their 'European' employers" 8;
(c) that Respondent "has denied to 'Native' laborers equal legislative
protection in the form of provisions for holidays, sick pay, and

compensation in the event of illness or injury caused by employ
ment which are made available to '\Vhite' employees" 9•

4. In the paragraphs below, Respondent will first deal with those
provisions referred to by Applicants which directly relate to labour
conditions. They will be dealt with in the order of the matters specified
in paragraph 2 above. Thereafter Respondent will dèal-in some cases.

1 I, pp. r24-r30.
z Ibid., para. 58, p. r24.
' Ibid., paras. 6o-64, pp. 124-126.

• Ibid., paras. 72 and 73, p. 128.
5 Ibid., para. 74, pp. 128-129.
6 Ibid., paras. 75 and 76, pp. r29-130.
1 Ibid., para. 77 (3), p. 130.
8 Ibid., para. 77 (5). p. 131.
9 Ibid., para. 77 (7), p. 13r. COU'NTER-MEMOR[AL OF SOUTH AFRICA 81

merely by reference -with those provisions which allegedly affect labour
conditions indirectly.

B. The Relationship between Masters and Servants

I. THE ScoPE OF THE MASTER AND SERVANTS PROCLAMATION

5. In paragraphs 60 to 63 of Chapter V of the Memorials 2 reference
is made by the Applicants to some of the provisions of the Master and
Servants Proclamation of 1920 3• By enumerating the circumstances
under which "a 'Native' is made guilty of a criminal offense" in terms of
4
the Proclamation ;by stating that-
"If any 'Native' employee or apprentice 'is charged with having
without lawful cause deserted from his master's service it shall be
lawful. for any Magistrate to issue his warrant for the apprehension

of such servant or apprentice without any previous waming or
sommons' 5",
and by alleging that-

"Any 'Native' laborer who has been sentcnced to imprisonment
for any of the foregoing offenses must, upon the completion of his
term of imprisonment 'retum to his master immediately ... ' 6",

the Applicants create the impression that the relevant provisions of the
Proclamation apply only to Natives. As will be shown, this is not the
case, since these provisions are also applicable to \Vhite and Coloured
persons.

6. Section 2 of the Proclamation, as originally enacted, defined
"Servant" as-
''every person employed for hire, wages or other remuneration to

perform handicraft or other bodily labour in agriculture, manu
factures, industries or in domestic service or as a boatman, porter or
other occupation of a like nature ... ".
For reasons that will be set out hereinafter 7,the definition of "Servant"

was amended in 1923. The only material alteration in the present con
text was the addition of the following category of employees:
"any native employed for hire, wages, or other remuneration on any

description of work by or on behalf of-
(r) the Administration of South West Africa;
(2) the Railways and Harbours Administmtion of the Union of
South Africa;

(3) any Local Authority;
(4) any person engaged under contract in çonstructing any line of
railway or harbour works 8".
-----
1 Vide para. 1, supra.
z1, pp. I24-I26.
3Proc. No. 34 of 1920 (S.\V.A.), inThe Laws ofSouth West Africa z9z5.z9z2, pp.
336-366.
• 1, para. 6l, p. 125.
' Ibid., para. 62, p. 125.
6 Ibid., para. 63, p. I25.
7 Vsdepara.tt,in/ra.
• Proc. No. 19 of 1923 (S.,V.A.),sec. 2(b), inThtLawsof South WesJAfrù:az9z3,
p. 40. SOUTH WEST AFRICA

7. It will be seen that basically the Proclamation is applicable to all
persons. It isonly in certain spheres of employment that the Proclamation
applies to Natives only.

8. In paragraph 60 of Chapter V of the Memorials 1 the Applicants
allege that the cffccts of the Proclamation must be appraised in con
junction with those of Proclamation No. 3 of 1917. The latter Proclama
tion, which makes provision for the control and treatment of Natives
employed on mines and works in the Territory, is apparently referred to
only as regards the circumstancés under which "a 'Native' is made
2
~ilty of a cmninal offense" •Since, however, the definition of "Servant"
tn the Mastcr.and Servants Proclamation includes all labourers on mines
and works, a,ndsince the penal provisions of this Proclamation cover all
conduct whiêh constitutes offences under Proclamation No. 3 of 1917,
it follows that White and Coloured labourers on mines and works are in
fact in the same position as Native labourers on mines and works. Pro
clamation No. 3 of 1917 therefore has no practical significance in the
present context.

JI. BACKGROUND TO THE MASTER AND SERVANTS PROCLAMATION

9. In order to appreciate the necessity for the penal provisions of this

Proclamation, regard must be had to the conditions which existed in
South West Africa at the inception of the Mandate and which, to a large
extent, still exist today.
On the whole the labour classes were poorly educated and had very
little, if any, knowledge of legal principles goveming contractual relation
ships. This was especially true of the indigenous labour class which had
had very little expcrience of employment in a modern economy.
In this regard reference may be made to a statement by Mr. Smit, the
South African representative, during the Ninth Session of the Permanent
Mandates Commission in 1926, in which he described the attitude of the

Native to regular work in the following terms:
"He entered into a contract with an employer, but such a contract
rarely conveyed anything to him, and he was liable at any moment to
break it and either not present himself for work or move off and
find a ncw employer 3.''

ro. In such circumstances economic growth and orderly development
dernanded that workers shou1d be impressed with the necessitv of observ
ing their contractual obligations towards their employers. This could not
be attained ~y merely leaving an aggrieved employer to a daim for
damages agamst a defaulting employee. More often than not the labour
classes had verylittle means, with the result that an ordinarvcivil action
for damages ,vas generally an illusory remedy. The enforcement of
conditions of employment in favour of employees could likewise not be

left solely to civil processes, since comparatively few employees had the
know!edge or funds to institute legal proceedings against employers.
It was consequently considered to be in the interests of masters and
servants and of the general economy of the Territory that penal sanctions

11, pp. 124-125.
2Ibid., para.61, p.125.
' P.M.C., Mi11., IX,p.36. COUNTER-MEMORIAL OF SOUTH AFRlCA

should be provided for certain categories of breach of contract. Such
sanctions, 1t was believed, would also foster better labour relations by
discouraging both masters and servants from takîng the law into therr
own hands in the event of misconduct, breaches of contract, etc.
II. Reference has already been made 1to the I923 amendment of the

Master and Servants Proclamation, by which the term "Servant" was
given an extended meaning. This amendrnent was at the time motivated
by the Secretary for South West Africain the following terms:
"Since the starting of the construction works on the Windhoek
Gobabis railway considerable difficulty bas been experienced with
contracto_rs employed by the Railway Administration who fail to

pay the w:i.gesdue to their natives and there is no means of dealing
with such cases except by Civil process which the native labourer is
unable or unwilling to initiate. Discontent follows and the labour
supply is affected. On the other band no criminal penalty exists for
desertion as a native working on a railway does not fall within the
meaning of the Masters and Servants Proclamation.
This also has a bad effect on recruiting as natives soon learn that
2
they can break their contracts with impunity ."
It is consequently clear that the amendment was not motivated by any
intention of discriminating against Native employees. While the amend
ment operated for the benefit of employers, it also served the interests of
Native employees in the categories mentioned in the amending section
referred to in paragraph 6, supra, in that their employers were made

subject to the penal provisions of the Proclamation applicable to em
ployers.

111. TltE PENAL PROVISIONS OF TltE PROCLAMATION

12. In paragraph 61 of Chapter V of the Memorials the Applicants
set out the circumstances under which "a 'Native' is made guilty of a.
criminal offense" 3• As has been shown \ these circumstances, wbich are
instances of breach of contract, apply to all persons falling within the
defi.nition of "servant", and not only to Natives.
13. The Applicants fail to refer to any of the circumstances under

which an employer commits an offence under the Proclamation. These
are:
(a) Withholding the wages of any servant without his consent and
without reasonable and probable cause for believing that such wages
are not due.s

(b) Failure to pay a servant damages suffered by reason of unlawful
dismissal s.
(c) Failure to supply, on demand of a servant, the food, clothing,
bedding, lodging or other articles stipulated for in a written contract
of service 6.

1 Para. 6, supra.
1 Part I of File No. A.50/35 in the Archives of South WesAfTica.
J J, p.125.
• Supra, paras. 5-7.
' P,oc. No. 34 o1920 (S.W.A.), sec. 65, in The Laws o/South West AfricaI9I5-x9:1a,
p. 359·
6 Ibid.,sec. 68, p. 36o. SOUTH WEST AFRICA

(d) Withholding a servant's cattle, or other animais, without reasonable
and probable cause for believing that the same are Iawfully detained 1•
(e) Making a deposition against a servant maliciously, and without
2
reasonable or probable cause for believing the same to be true •
14. There are other provisions of the Proclamation which also enure

for the bcncfit of servants, inter alia, the following:

(a) No oral contract of service is binding for a longer period than one
year, and no such contract is valid unless it is stipulated that the
servant must commence his service within one month from the date
of the contract 3_

(b) No writtcn contract is valid unless it is executed before a magistrate
or other officer, who has to satisfy himself that the contract was
entered into by the servant voluntarily, and with a clear under
standing of its meaning and effect \

(c) In ail contracts in which it is stipulated that the servant shall reside
on the premiscs of his master, the latter shall be deemed-in
the absence of an express stipulation to the contrary-to have
engaged to provide the servant with lodging and sufficient food of

good and wholesome quality 5•
(d) ln the absence of any express pro\·ision to the contrary, a servant
who is incapacitated by any sickness or accident, not occasioned by

his own fault,is entitled to his full wagcsduringthefirst month ofsuch
incapacity 6.
(e) A contract of service may be cancelled by the court, at the instance
of a servant, if an~·charge brought against him by his master fails to

result in a conviction; or if his master is convicted of assaulting him,
or if such contract is not faithfully or fairly performed by the
mastcr 7•
(/) A servant is entitled to leave bis place of service at any time for

the purpose of lodging a cornplaint against his master, if leave for
that purpose is unreasonably refused 8•
{g) If a master is charged with withholding wages from, or failing to
pay damages to, a servant, and the court finds that such wages or

damages are due, it must give judgment for the sum due and for
costs in favour of the servant, whethcr or not the charge results in a
conviction 9•

(h) If a master is convicted of withholding his servant's animais, the
court must give judgment in favour of the serYant for the delivery
of such animals and for costs 10•
(i) If a master appeals against a judgment in favour of his servant, the

1 Proc. No. 3i of 1920 (S.'\V.A.), sec. 67, in The Laws of South West Africa I9r5-
I920, pp. 359-36o.
2
3 Ibid., sec. 73,pp. 361-362.
Ibid .. sec. 5p. 338.
• Ibid., sec. 6, p. 338.
5 Ibid., sec. r8, p. 341.
6 Ibid., sec. 19,pp. 341-312.
7 Ibid., secs. 57, 58 and 69, pp. 356-357 and 36o.
8 Ibid., sec. 63, p. 358.
9 Ibid., sec. 66, p.359.
10
Ibid., sec. 67,pp. 359-36o. COUNTER-MEMORIAL OF SOUTH AFR!CA
85

public prosecutor is enjoined to appear for, and to conduct the case of
such servant free of charge 1•

r5. In paragraph 62 of Chapter V of the Memorials 2 the Applicants
refer to section 74 of the Proclamation, in terms of which a magistrate
is empowered to issue a warrant for the apprehension of a servant charged

with having deserted from bis master's service.
This provision was designed for cases in which a servant, who bas
deserted bis master's service, has no fixed place of abode and is con
sequently difficult to trace, and also likely to disappear after service on
him of a summons to appear in court at a future date. It was therefore

necessary to provide for the issue of a warrant of apprehension in order
to obviate dclay and expense.
16. A magistrate will obviously issue such a warrant only if he is

convinced that such a course is really necessary. As bas already been
stated 3,a master commits an offence if, in lodging a complaint against
a servant, he makes a deposition without reasonable and probable ground
for believing the same to be truc. Jt may also be pointed out that in
terms of section 70 of the Proclamation 4a master is guilty of an offence
if he charges his servant with desertion of service and it is found at the

trial that such desertion was occasioned by the master's ill-treatment of
the servant. There are consequently ample safeguards to prevent a
warrant for the apprehension of a servant being issued on false infor
mation supplied to a magistrate.

r7. In paragraph 63 of Chapter V of the Memorials s the Applicants
refer to section 53 of the Proclamation, in terms of which a servant,
who bas been sentenced to imprisonment for an offence under the Procla
mation, must retum to bis master on completion of bis term of im

prisonment, unless the contract of service has been cancelled. Should he
neglect to do so, be may be sentenced to successive periods of further
imprisonment, provided that no servant may be imprisoned continuously
for longer than six months in all.
The underlying reasons for these provisions are the same as in the case

of the provisions in favour ofservants, relating to the entering ofjudgment
for wages, damages, etc. 6
AUthese provisions were designed to ensure that masters and servants
fulfil their respective contractual obligations, since, as bas been shown 7,
ordinary civil remedies are largely ineffective for this purpose.

-i8. As regards the number of convictions mentioned in paragraph 64
ot Chapter V of the Memorials 8,it may be pointed out that sentences
for offences under the Proclamation are usually extremely light-very

often no more than a reprimand.

1 Proc. No. 34 of 1920 (S.W.A.), sec. 71-,op. cil., p. 361.
21, p. 125.
' Para. 13 (e),sup,-a.
• As amended by P,-oc.No. 22 of 1938 (S.W.A.), in The Laws of South Wçst Africa
7938, p. 140.
5 I, pp. 125-126.
6 Vide para. 14, supr(J,
1Para. 10,supra.
1
I, p.126.86 SOUTH WES1.: AFRICA

IV. SIMILAR LEGISLATION IN ÜTHER CouNTRIES

19. In other countries of the world conditions basically similar to those

in South West Africa gave rise to legislation providing for penal sanctions
in cases of breaches of service contracts. The following examples may be
mentioned:

Western Australia
1
20. Section 4 of Act No. 28 of 1892 provides :
"4. Whenever the employer or employed shall neglect or refuse
to fulfil any contract of service, or the employed shall neglect or
refuse to enter upon or commence his service according to the con
tract, or shall absent himself from his service, or whenever any
dispute, question, or difference shall arise as to the rights or liabilities
of either of the parties, or touching any misusage, misconduct,

ill-treatment or injury to the person or property of either of
the parties under any contract of service, or touching the loss
or destruction of such property, the party feeling aggrieved may
lay an information or complaint in writing before a Justice of the
Peace ... " ·
In terms of section 7 of the Act, the Justice of the Peace may upon the
hearing of a complaint as aforestated, inter alia, impose a fine not

exceeding f20.
Southern Rhodesia

21. The Masters and Servants Ordinance of r899, as amended, closely
resembles the Master and Servants Proclamation of South West Africa.
Sections 47 (1},49 and 60 of this Act provide 2:

"47. (1) If any servant or apprentice-
(a) after having entered into a contract or written undertaking,
fails or refuses, without lawful cause, to commence his service
at the time stipulated therein;
(b) without leave or other lawful cause, absents himself from his
master's house or premises or other place proper and appointed

for the performance of his work;
(c) during working hours, or at any time if resident on his master's
premises, becomes or is intoxicated;
(d) neglects to perform any work which it was his duty to have
performed, or carelessly or improperlyperforms any work which
from its nature it was his duty, under the contract. to have
performed carefully and properly;
(e) without leave and for his own purposes, makes use of any horse,
vehicle,or other property belonging to or in the lawful possession

of his mas ter;
(/) refuses to obey any command of his master, or of any other
person lawfully placed by his master in authority over him,
which command it was his duty to obey;

1 Act Xo. z8 of 189z in The Statutes of Western Australia,r883-r892, Vol. II,
55° Victoriae, p. 617.
2 Chapter 231 in theStatute Law of Southern Rhodesia r93Vol. V, pp.12-13 and
16-17. COUNTER-MEMORIAL OF SOUTH AFRICA

(g) makes any brawl or disturbance in or at his master's dwelling
house or other premises, or on bis master's farm, and after
being by his master, or other person placed by his master in
authority over him, desired to desist, continues to make such
brawl or disturbance;
(h) is abusive or insulting, either by language or conduct, to his
master or his master's wife or children, or to any person lawfully
placed by his master in authority over him;

(i) by wilful breach of duty or by neglect of duty, or through
drunkenness. does any act tending to the immediate loss,
damage, or serions risk of any property placed by his master in
his charge, or placed by any other person in his charge for
delivery to or on account of his master;
(f) by wilful breach of duty or by neglect of duty, or through
dnmkenness, refuses or omits to do any lawful act proper and
requisite to be done by him for forwarding in safety any pro
perty placed by bis master in his charge for delivery to or on
account of bis master;

(k) being employed as a herdsman, fails to report to bis master the
death or loss of any animals placed in his charge, which he
alleges to have <lied,or been lost, on the earliest opportunity for
so doing after be has discovered, or in the course of his duty was
bound to have discovered, such death or loss, or fails to preserve
for bis master's use or inspection any part or parts of any such
animal as he alleges to have died. which part or parts he bas by
his master been directed to preserve, unless he proves to the
satisfaction of the court the death of such animais; or if it is
made by bis master to appear that any such animal or animals
alleged by him to have strayed away or otherwise become
irrecoverably lost, could not, under the circumstances of the
case, have become irrecoverably lost without his act or default;
or

(l) without lawful cause, departs from bis master's service with
intent not to retum thereto; he shall be guilty of an offence ... "

"49. No fine paid, or period of imprisonment undergone, under
this Act, by a servant or apprentice, shall have the e:ffectof cancelling
the contract of service or apprenticeship, and the servant or ap
prentice shaU be bound to return to his master immediately a{ter
having complied with the tenus of bis punishment, in order to serve
the unexpired period of his service."

"60. A master, or person placed by him in lawful authority as
aforesaid, lodging any complaint against any servant or apprentice
for any offence under this Act may make a deposition on oath before
a magistrate or justice of the peace to the effect that be believes
(stating the grounds of bis belief) that the apprehension of such
servant or apprentice is necessary in order to secure his appearance
before the magistrate having jurisdiction in the matter, whereupon

it shall be Iawful for the magistrate to issue his warrant for the
apprehension of such servant or apprentice without any previous
warning or summons ... "88 SOUTH WEST AFRICA

Northern Rhodesia
22. Sections 74 and 80 of the Employment of Natives Ordinance of
1929 provide 1:

Sec. 74: "Any serv:..nt may be punished with a fine not exceeding
hall the amount of the monthly wages payable to such
servant and in default of payment of such fine with
imprisonment with or without hard labour for a term not
exceeding one month in case he should be convicted of any
of the following acts:

(r) If he shall, after having entered into a contract, fail or refuse
without lawful cause to commence the service at the stipulated
time.
(2) If he shall during working hours unfit himself for the proper
performance of his work by becoming or being intoxicated.
(3) If he shall without leave, and for his own purposes, make use of

any horse, vehicle or other property belonging to his employer.
(4) Ifon entering into or for the purpose of obtaining a contract of
service he shall give a false name and address.
(5) If he shall make any brawl or disturbance in or at his employer's
dwelling-house, location or other premises or on his employer's
farm and after being by his employer desired to desist shall
notwithstanding continue making such brawl or disturbance."

"80. Any servant who receives from his employer any wages in
advance and who without good reason quits the service of such
employer before such advance is fully repaid or worked off, shall be
guilty of an offence and shall be liable to imprisonment with or
without hard labour for a term not exceeding three months."

Swaziland

23. Section 42 (1) of the African Labour Proclamation of 1954 pro
vided 2 :
"Any African-

(a) who having entered into a contract for employment and signed
such contract as provided in section twenty-eight without
lawful cause deserts from his place of employment or fails to
enter upon or carry out the terms of his contract of employrnent;
or
(b) who after having in Swaziland entered into a contract of service

whether oral or in writing with a labour agent or other person
and after having received an advance inrespect thereof accepts
another advance frorn another labour agent or other person in
consideration of entering upon any other contract or service
before he has completed his term or service under the first
mentioned contract;

1 Laws of Northern Rhodesia, 196o Edition, Vol V, Chap. 171, pp. 27, 29.
2 Proc.No. 45 of 1954. Section 42 (1)of the Proclamation has been replaced by
the African Labour (Amendment) Proclamation of 196o (Proc. No. 58 of 196o, in
Official GazeJJe of IM High Commissionu /or Basutoland, JM Bediuanaiand Pro
t~ctorate and SwazilandVol. CCXXIII. No. 3200 (r r Nov.196o), p.800). COUNTER-MEMORlAL OF SOUTH AFRICA
8g

shall be guilty of an offence and shall be liable on conviction to a fine
not exceeding ten pounds, or in default to imprisonment with or

without hard labour for a period not exceeding two months. ''

Basutoland

24. Cape Act No. 15 of 1856, as amended by Act No. r8 of
1873, applies in Basutoland 1. The provisions of this Act do not
materially <lifter from the Master and Servants Proclamation of South
West Africa.

The Former Belgian Congo

25. Reference may also be made to the following description of the
masters and servants legislation that existed in the former Belgian Congo
· until 1958:

"The protection and control of native labor in the Congo is based
upon a number of legislative provisions, the principal one of which

is the decree of March 16, 1922 ... From the employer's standpoint,
there are great advantages in having a laborer signa contract for a
definite time. Before its expiration, it is illegal for the native to
terminate his employment. The penalty for violating the contract or
desertion is a fine of fifty francs or two months' imprisonment, or
both. The imprisonment may be increased ta three months if the

laborer has received advances from the employer, or if he is a porter.
This penalty is much less severe than in British East Africa where
desertion is liable to be punished by six months' imprisonment. The
Congo law is also more liberal than the Tanganyika and Uganda law
in that desertion is not an offence cognizable to the police. Article 48
of the Decree of March 16, 1922, provides that prosecutions for

infractions under these articles 'may take place only on the complaint
of the employer' 2."

V. CoscLUSION

26. From what has been stated above it is clear that the provisions
of the Master and Servants Proclamation of South West Afnca do not

support the Applicants' charge that Respondent-
"has shaped the circumstances and conditions of labor for the
'Native' population into a pattern of constraint and compulsion that
consistently subordinates the interests of tl;ie 'N'ative' laborers to the
3
interests of their 'European' employers ".
These provisions apply to ail employees falling within the definition
of servant, and also to ail employers, irrespective of race or colour, and
serve the interests of both employers and employees.

1 Act. No. r5 of r856 (Cape of Good Hope) in Cape of Good Hope Statutes r652-
r895, Vol.I, pp.570-590, as amended by Act. No. 18of 1873 (Cape of Good Hope) in
Cape of Good Hope Statutes r652-r895, Vol. li,pp. 1293-1301, made applicable to
Basotuland by Proc. No. 2B of 1884. asamended by Proc. No. 50 of 1919, inLaws
of Basotula;1d,Vol. I, TitleIII, Chap. 26, pp. 408<p1.
1 Bueil, R. L., The Native Problem in A frica (1928),Vol. II, p. 553·

j I, para. 77 (5), p131.90 SOUTH WEST AFRICA

C. Leave of Absence

27. ln paragraph 72 of Chapter V of the Memorials 1 the Applicants
refer to Regulation 282 of the Regulations issued under Ordinance No.
26 of 1954 (S.W.A.) 1,in terms of which an employer is required to grant
24 days leave of absence on full pay to every European employee "in

respect of each period of 310 ordinary working shifts of employment
with him".
Such 310 ordinary working shifts normally comprise a full year's
employment, so that a European mine employee becomes entitled to
statutory leave only after a year's employment.
There is no similar provision for leave in the case of Native mine
employees. The distinction in this regard between European and Native

employees arises from the fact that the vast majority of Natives employed
in the mining industry are migrant workers ordinarily resident in the
northem territories or beyond the borders of South West Africa. These
Natives are recruited for initial contract periods not exceeding 12
months, which may, with mutual consent, be extended for two further
periods of six months each 3•InasmuchastheNative employees from the
northem areas enter into initial contracts for one year only, and return

home after this period, unless they elect to have their contracts extended,
no statutory provision has been made for annual leave for them.
As pointed out, the number of Natives of the Police Zone employed
in the mining industry is insignificant. When their number increases,
consideration will be given to the extension of statutory annual leave
provisions also to them,
That there bas been no intention to discriminate against Natives as
such as far as the requirements relating to leave of absence are concerned,

is illustratedby the statutory provisions which are dealt with in the next
succeeding paragraph.
28. In paragraph 73 of Chapter V of the Memorials • the Applicants
refer to section 21 of the Factories, Machinery and Building Work
Ordinance of 1952 (S.W.A.) s in terms of which every employer must

grant to every factory employee leave of absence on full pay for not less
than two consecutive weeks in respect of each period of 12 months'
employment. Applicants draw attention to the fact that, in computing
the period of employment for the purpose of determining the amount
of leave to which the employee is entitled, a period of absence owing to
illness shall be deemed to be employment. They then state that the said
provisions for leave are specifically made inapplicable 6 to employers

"in respect of extra-territorial and northern 'Natives' ... who are em
ployed in or in connection with their factories under valid contracts of
service".
Applicants' allegations in this regard are correct. The reason why no
statutory provision is made for annual leave in the case of northem

1 l,para. 77 (5),p.128.
2 By virtue ofG.N. No. 33 of 1956 (S.W.A.), inThe Laws ofSouth West Africa
.r956, Part II, p499-723.
3 Vide Chap. V, para. 15,supra.
4 I, p. 128.
' Ord.No. 34 of 1952 {S.W.A.), iThe Laws ofSouth West Afri.ca r95z, p405-465.
t By G.N. 257 of 1953 (S.W.A.), iThe Laws of South West A/rica r953, p. 599. COUNTER-MEMORIAL OF SOUTH AFRICA
91

and extra-territorial Natives has been set out in paragraph 27 above.
Inasmuch as there is no such statutory provision for leave for such

Natives, the method of calculating the period of employment for the
purpose of detennining the amount of leave does not apply in their case.
Under the Factories, Machinery and Building Work Ordinance the
provisions relative ta annual leave apply in the case of Natives of the
Police Zone, of whom there are a considerable number permanently

employed in factories.
29. In the premises Respondent submits that good reasons exist for
the present distinction in regard ta leave as between European and Native
employees in mines, and as between extra-territorial and northern

Natives employed in factories, on the one hand, and Europeans and
Police Zone Natives employed in factories, on the other. Respondent
accordingly denies the Applicants' allegation of "unfair discrimination" 1
against Natives in, inter alia, legislative provisions for holidays 2•

D. Pneumoconiosis Compensation
3
30. ln paragraph 74 of Chapter V of the Memorials reference is made
by Applicants to a number of provisions of the Pneumoconiosis Act
of 1956 (S.A.) 4, which Act, according to the Applicants, has been made
applicable to South West Africa by Proclamation No. 156 of 1956.
As has been pointed out 5, the said Act, which has been repealed, did

not apply ta mines in South West Africa. While it is true that certain
sections of the Act, relating to medical and post-mortem examinations,
referred to the Territory, none of the provisions mentioned by the Appli~
cants in the paragraph under consideration applied ta South West Africa.
The position is the same under the Pneumoconiosis Compensation Act
6
of 1962 ,which repealed the 1956 Act. lt is accordingly unnecessary ta
deal with Applicants' allegations regarding the provisions of the Pneu
moconiosis Act of 1956.
31. In the premises Respondent says that the Applicants' allegations
7
in paragraph 77 of the Memorials ,in so far as they are based on the
provisions of the Pneumoconiasis Act, and particularly those allegations
relating to sick pay and compensation in the event of illness or injury
caused by employrnent , are unfounded.

E. Collective Bargaining and Conciliation

32. In paragraphs 75 and 76 of Chapter V of the Memorials s reierence
is made by Applicants to some of the provisions of the Wage and
Industrial Conciliation Ordinance of 1952 (S.W.A.) 9 concerning

tJ, para. 77, p. r30.
2 Ibid.,para. 77 (7}.p.131.
' Ibid., pp.128-129.
• Act No. 57 of 1956 (S.A.), in Statutes of the Union of South Africa, 1956Part
Il, pp. 1369-1509.
' Vide Chap. III, para. 59, supra.
6 Act No. 64 of 1962 (S.A.). inSJatutes of the Republic of South Ajrica 19Part II,
pp. 102J·1J83.
7 I, PP· 130-131.
9 Ibid., pp. 129-130.
9 Ord. No. 35 of 1952 (S.W.A.), in The Laws of South West Africa 1952, pp. 465-
SU· . SOUTH WEST AFRICA
92

the registration of trade unions, and conciliation of industrial disputes.
Applicants draw attention to the fact that the definition of "employee"
does not, for the purpose of Chapter II of the Ordinance, include a
Native, the effect whereof is that there is no provision for the registration
of Native trade unions and no provision for conciliation of disputes in

terms of the said Chapter in so far as Native employees are concerned.
These allegations are correct.
33. Prior to r August 1953, when the Ordinance came into force,
there were, as far as Respondent is aware, no trade unions in South West
Africa. At present there are only four such unions in the Territory, all
of which are registered under the Ordinance, and the members of which

are Europeans, viz.,
(a) the South African Typographical Union (72 members};
(b) the Artisan Staff Association (327 members);
(c) the South West African Mine Workers Union (420 members);
(d) the Association of Municipal Employees (426 members) 1.

34. The Native employees of the Territory have notas yet displayed
any real interest in trade unionism. This is in keeping with conditions
elsewhere in Africa, as appears from the following statement in the
International Labour Review of September, 1957:
"The progress of Native trade union organization has been slow

also in territories where no legal obstacles stand in its way and even
where policies have favoured their development. This is due in part
to the negative attitude of Africans towards impersonal social
groups. While co-operation and social responsibility are highly
developed within the tribal society, there is no tradition among
Africans that would lead them to identify their interests with those
of a wider secondary group created for exclusively economic
motives 2."

35. There are no statutory provisions which prevent the formation of
Native trade unions in South West Africa. There are, however, no such
trade unions.
The reasons why Native trade unions are not recognized by the
Ordinance for the purposes of Chapter II thereof, which Chapter deals
with the registration of trade unions and with the settlement of industrial
disputes, may briefly be summarized as follows:

(a) In Respondent's view it would not be in the best interests of the
Native employees of the Territory to participate in trade unions
at their present stage of development. A high percentage of Native
employees are migrant workers from a traditional subsistence
society who have no experience of an industrial economy, and a
large proportion of all Native employees are illiterate or semi
literatewith no understanding of the economic fonctions of trade
unionism. In present circumstances there would be a very real

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 inr'ividuals.

1 Departmental information.
2 "Inter- Territorial Migrations of Africans South of the Sahara", in International
Lab014rReview, Sep. 1957, p. 308, COUNTER-MEMORIAL OF SOUTH AFlUCA
93

(b} The Native employees of the Territory have generaliy not yet
reached a stage where they can partake in collective bargaining
on an equal footing with their employers. It is consequently in

their own intercsts that they should, where necessary, be repre
sented by government officiais at meetings of Conciliation Boards,
to which teference is made hereina[ter 1•
36. It appears to have been the experience elsewhere in Africa. that
lack of educational standards and of understanding of economic principles
has obstructed the proper working of trade unions. ln this connection

it is stated in the 1960 report of the International Labour Organisation:
''Indeed, one of the most serious obstacles to effective collective
bargaining in Africa lies in the limitations which are often discernible
among trade union leaders. As alrcady indicated this arises partly
from the inability of many unions to employ persans of the highest
calibre. Other factors are deficienciesin general education and lack of

understanding of economic principles and practi'ce,as wetl as in
experience in the art of collective bargaining. The result is that, as
managements often claim, a large number of union officiais tend to
be unrealistic in their demands, and this makes collective bargaining
un<luly trying of tempers and prccipitates extravagance of language
and unhelpful attitudes on both sides 2." (Italics added.)

37. Although Native trade unions are not recognized in South West
Africa,section 37 (12) of the Wage and lndustrial Conciliation Ordinance
provides that an inspector (who is a government official) may attend any
meeting of a Conciliation Board and may take part in the proceedings
whenever the interests of persons engaged or employed in the trade con
cerned, who are not employees represented on the Board, are under
discussion.

38. With regard to wages, the Ordinance makes provision for the
establishment of a Wage Board for the purpose of investigating matters
relating to wages 3•The Administrator has a wide discretion in regard to
the matters which he may refer to the board for investigation and report.
He may direct, inter alia, that the investigation shall be in respect of em
ployees, or of any one or more classes o{employees, in any trade in any

area, but "shall not differentiate or discriminate on the basis of race or
colour" 4•
39. In practice, disputes involving Native employees, which have
arisen since the passing of the Ordinance, have been satisfactorily settled
by administrative action. The following are exarnples:

(a) In 1954 a dispute occurred at the Lorelei Copper Mine in the district
of Luderitz, where Ovambo labourers went on strike. An inspector of
Labour investigated the matter, found that both employers and
employees had been at fault in certain respects, and settled the
dispute.
(b) Another dispute arose in 1954 at Tsumeb as a result of Police

investigations regarding possession by Ovambo workers of illicit
liquor. The Ovambo labourers went on strike, whereupon officiais of

1 Videpara. 37, infra.
2 Report HI of the LL.O., African Regional Conference, Geneva 1960, p. 6o.
3 Üf'd.No. 35 of 1952 (S.W.A.}, sec. 3, in Tlu Lawsof South Wt:5tAfrica p.5468.
• Ibid., sec. 5, p468. SOUTH WEST AFRICA
94

the Administration negotiatcd with !hem and settlcd the dispute
alter one <lay.
(c) Smaller disputes involving strikes occurred at Walvis Bay as a

result of the fact that various employers applicd <lifferentwage rates
and that extra-territorial and northern Natives gained the impression
that thcy were regar<lcdas Jessimportant and Jessvaluable labourers
!han local workers !rom the Police Zone. Officiaisof the Department
of Native Affairs investigated the complaints and approached
employers, with the result that an emplovers' association was fonned
and uniform wage scales recommended. ~

(d) In 1956 there was one case of a serious labour disturbance amongst
N:ltive labourers at the Brandberg West Mine. An inspecter of
Native Labour enquired and asccrtaincd that therc had been some
dissatisfaction amongst the labourers as a result of wages and
conditions in the compound. Recommendations to overcome the
causes of dissatisfaction were made, accepted and implemented,
with satisfactory results.
{e) A dispute involving contracted extra-territorial and northern

Native labourers at the Otjisondu Mine in the Okahandja district
towards the end of 1956 over the re-introduction of a six-day
working week, was also speedily terminated to everybody's satis
faction by an inspector of Native Labour.
40. In the premiscs it is suhmitted that the Applicants' charge that

"The Mandatory has unfairly prohibited and continues to prolÙbit
'Natives' !rom taking part in the processes of collective bargaining
and conciliation and arbitration of disputes 1",
is unwarranted.

And it is denied that there is "unfairdiscrimination"·2on Respondent's
part as against Native labourers in the Territory relative to processes of
collective bargaining and arbitration of disputes.

F. Respondent's Reply to Applicants' Allegations (Memorials)

1. PARAGRAPHS 65 TO 71 OF CHAPTER V

(a) General
41. In the above paragraphs of the Memorials 3 the Applicants refer
to a number of statutory provisions which allegedly "powerfully affect

the conditions of 'Native' labor" 4.
In the summary of thcir charges relating to, inter alia, labour con
ditions, the Applicants allege:
"The Mandatory has so drastically curtailed and circurnscribed the
possibilities of choice for 'Native' !aborers as to leave them, for ail
practical purposes, very little freedom of choice with respect to

place of employment, type of employment, id5ntity or character of
employer, or conditions of employment ."

1 1, para. 77(3)p. '130.
2 Ibid., para77, p.130.
' Ibid., pp.126-128.
4 Ibid., para58, p.1:24.
' Ibid., para77 (6),p.131. COUNTER·MEMORIAL OF SOUTH AFRICA
95

This charge was apparently formulated on the strength also of the
allegations contained in the paragraphs of the M.emoria\s here under
consideration, although in the case of some of the provisions in question
it îs difficult to see how they bear on labour conditions and relations.

42. As has been pointed out, most of these provisions are also referred
to by the Applicants in othcr parts of the Memoria.ls, and have been, or
will be, dealt with in Respondent's replies thereto. Herc only brief replies
are given with reference to more detailed answers givcn elsewhere in
this Counter-Memorial.

(b) Paragraph 65 1

43. As will be shown 2in the replies to paragraphs 140 and 149 of
Chapter V of the Memorials 3, the provisions of Proclamation No. :29 of
1935 (S.W.A.), which require northem Natives to be in possession of
identification passes whcn in the Police Zone, and which restrict the
period of employment ofsuch Natives in that Zone, were designed-

(a) to protect the Natives in the Police Zone-who are more dependent
upon wage employment than northern Natives-against unfair
competition from the latter; and
(b) to protect and preserve the social life and tribal organization of
the northem Natives, whose tribal authorities requested that the
period of employment of such Natives in the Police Zone be limited.

44. In the first sentence of this paragraph the Applicants, without
quoting any authority, allege that in rural areas "ail male 'Natives' over
the age of 18 years who reside on a fann belonging to a 'European' must
be in the employ of the farmer".
This allegation is presumably bascd on section 13of Proclamation No. II

of 1922 (S.W.A.}, which makes it an offence for the person having the
control of any farm to allow, without the permission of the magistrate
of the district, any male Native over 18 years of age who is not in his
employ, to i:eside on such fann.
The said allegation is not correct since-
(a) the section applies to all persons in control of fam1s, and not only

to Europeans;
(b) the persons concerned can obtain permission to allow such Natives
to rcside on the farm ; and
(c) the section is primarily concemed with persons in control of farms
-it doesnot make it an offence for a Native who is unemployed to
reside on a farm.

45. The purpose of the said section was explained as follows in Respon
dent' s 1937 annual report to the League of Nations:
"It has been found that a certain class of fanner is anxious to
encourage native families to squat on his property with their families
and stock on a rental basis or subject to grazing fees. When the

periodical droughts occur as they do in a country like South West

1 I, para.77 (6), p. 126.
2 Vide Book V1, Chap. llI, paras. r48-156, and Cbap. IV, paras. 85-90 of this
Counter-Memorial.
• 1, pp.147 and 149.96 SOUTH WEST AFRICA

Africa and the owner finds bis grazing reduced the natives are given
notice to quit and are thrown on the hands of the Government. It
is then practically impossible for them to move their stock and

heavy lasses follow. Cases have occurred where the natives have even
lost their entire flocks. The residence of natives on fanns is therefore
strictly curtailed 1."

46. In this respect, reference may also be made to the following extract
!rom the minutes of the Ninth Session of the Permanent Mandates Com
mission in 1926 2:

"Sir F. Lugard asked:

(2) Whether the policy of the Administration was opposed to

native squatters on European estates.
Mr. Smit replied:

(2) Native squatters on white estates were generally discouraged.

The Administration desired above ail thingsto avoid overcrowding on
estates, for this would mean trouble in the future. At present there
was enough grazing for both the white man and the native squatter,
but in five or six years this might not prove to be the case, which

would mean that the native would suffer."
It is clear, therefore, that section 13 of the Proclamation was designed
primarily to promote the interests of Natives.

47. In the second sentence of paragraph 66 of Chapter V of the
Memorials 3, the Applicants repeat' the allegation that a EUiopean
fanner may, under certain circumstances, require a Native who resides

on hls farm either to become his employee or to be removed from his
property.
As has been pointed out 5 in the reply to paragraphs 19 and 28 of
Chapter V of the Memorials 6, there can be no objection to granting a
right to a fanner to require persons to whom he owes no contractual

obligation, to remove from his land. The provision in question merely
confirms a right which any owner has under the common law.

48. Although the provisions referred to by the Applicants in the para
graph under consideration can have a bearing on the choice of residence
of Natives, it is submitted that they do not affect conditions of labour.

(d) Paragraph 67 1

49. The reference in this paragraph is presumably to 7the powers
conferred on the Administrator (now the State President) by section
22 (1) (e) of Proclamation No. 56 of 1951 (S.W.A.). In terms of this
subsection the Administrator may make regulations requiring any unem-

1 U.G. 25-1938, para. 288, p.46.
2P.M.C., Min., IX, p. 45.
3l, p. 126.
4 Ibid.,paras. 19 and 28, pp. 113 and 116.
3 Vide sec. B, Chap. IV, paras. 8-10,supra.
6I, pp. u3 and u6.
1 Vide Act. No. 56 of 1954 (S.A.), in Statutes of theUnion of South Africa I954,
pp. 559-565. COUNTER·MEMORIAL OF SOUTH AFRICA 97

ployed Native in a proclaimed area to report to a prescribed ofücer and
to reside at a place to be indicated by that officer until he has found
employment, and, if he fails to find employment within a period of r4
days, to depart Cromsuch area.
In terms of the proviso to the subsection, Natives bom and perma

nently residing in a proclaimed area may not be require<l to comply with
the provisions of the subsection unlcss the approval of the Adminis·
trator (now the State President) has been obtained. lt is not the Minister
of Native Affairs whose approval is necessary, as is alleged by the Appli
cants.

50. Pursuant to the powers conferred by section 22 (r) (e) the following
regulation was made:
Regulation I2:

"Every male native in the proclaimed area othcr than a native
lx.lm and permanently residing therein or ... (an cxcmpte<l Na.
tive} ... shall, if he rcmains therein without entering into cmploy
ment after the termination of a contract of employmcnt or after
discharge from imprisonment within one day after such tcrmination

of a contract of service or after such discharge ... report to the regis
tering officer and shall thereupon bccome subject to the provisions of
regulation 2 in the sami.: manner as a native who entcrs the pro·
claimed arca 1."

Reference to l<.egulation 2, mentioned in the regulation quote<l abovc,
is made in paragtaphs 71 and 144 of Chaptcr V of the Mcmorials 2, and
will be dealt with in H.espondent's reply to the latter paragraph 3• ln
brief, the Regulation provi<les that uncxempte<l male Natives who enter
a proclaimed arca for the purpose of fmding cmploymcnt, and who do not

succeed in obtaining employment within a period of r4 days, must leave
such area.
In the rcply to paragraph 144 of Ckipter V of the Mcmorials ~Respon
dent will show that Regulation 2 is one of a num ber of provisions designcd
to implement its influx contrai policy-a policy inten<led to prcvent

urban and prodaime<l arcas from bccoming overcrowdcd with unemployed
Natives.
Regulation r2, which is applicable only to uncxempted male Natives
not born andpermanentlyresidingin aproclaimcd area,is complementary
to Regulation 2, and serves the same purposc. The wholc policy of influx

control could be ren<lercd nugatory if a Native, who had obtained per·
mission to rernain in a prodaime<l arca a{ter he had found employment,
could at any time thereafter terminate his employment and continue to
reside in the area without being cmploycd.

(e) Paragraph 68 5

51. Although the allegations in this paragraph are substantiallycorrect,
it is to be observed that an authoriz.ed offi.cermay arrest an idle Native

1 Regulation 12 of the Regulations for Proclaimed Areas, contained in G.N.
No. 65 of 1955 (S.W.A.), in The Laws of South West Africa I955, sec.12, pp. 768-770.
2 l,pp. 128 and r48.
3 Vide Book VI, Chap. III, paras. 157 ff., and especiallyparas.190-192, of this
Counter-Memorial.

• I, p. 148.
s Ibid., pp. 126·127.98 SOUTH WEST AFRICA

only if he has reason to believe that such a Native is habitually un
employed and (not or, as is alleged by the Applicants) that he has no
suffi.cient means of livelihood 1• •
As will be pointed out in Respondent's reply to paragraph r34 of
2
Chapter V of the Memorials , the provisions of section 26 of the Natives
(Urban Areas) Proclamation are complementary to those of the Vagrancy
Proclamation, and were designed to combat a similar evil. These pro
visions, which apply only to towns in the Police Zone, were also designed

to promote the interests of the Native residents of proclaimed areas by
preventing such areas from becoming overcrowded by unemployed
Natives. For this reason an idle Native, who is not prepared to work and
so mend his ways, may be removed from such an area 3•

(f) Paragraph 69 4

52. In its reply to paragraph 130 of Chapter V of the Memorials 5
Respondent will show that the impression created by the Applicants,
viz., that the Vagrancy Proclamation applies only to Natives, is not

correct 6 •
Respondent is again at a Joss to understand how it can be said that the
provisions of the Proclamation affect labour conditions 7•

(g) Paragraph 70 8

53. As will be shown in Respondent's reply to paragraph 131 of
Chapter V of the Memorials 5,there can be no valid objection to com
pelling an habitually idle and unemployed resident of a Native reserve
within the Police Zone to take up employment rather than to be sentenced

as a criminal offender to imprisonment under the provisions of the
Vagrancy Proclamation 9• Idle White and Coloured persans are, in a
sense, in a worse position than idle Natives in such reserves, since they
can only be dealt with as criminal offenders under the said Proclamation.

Although the regulation in question can be said to affect "freedom"
to lead an idle existence, it has no bearing on labour conditions 1•

(h) Paragraph 7r 10
54. As has already been mentioned !1,Regulation 2 of the Regulations

for Proclaimed Areas, which requires unexempted male Natives entering
such areas to register, is one of a number of provisions designed to
implement Respondent's influx control policy.

The Applicants' allegations concerning the payment of fees and reten
tion in reception def?.ts are not entirely correct, as will be shown in
Respondent's reply 1 to paragraph 144 of Chapter V of the Memorials 13•

1
Vide Book VI, Chap. II, para. 66, of this Counter-Memorial.
' 1, p. 145.
3 Vide Book VI, Chap. II, para. 71, of this Counter-Memorial.
• I, p. rz7.
~ Ibid., p. 144.
6 Vide Book VI, Cha p. II, para. 10, of this Counter-Memorial.
1 J, para. 77 (6),p. 13r.
a Ibid., pp. 127·I 28.
9 Vide Book VI, Chap. II, para. 91, of this Counter-Memorial.
10 I,p. 128.

11 Para. 50, supra.
12 Vide Book VI, Chap. III, para. 192, of this Counter-Memorial.
n I, p.148. COUNTEft-MEMORIAL OF SOUTH AFRICA 99

II. PAMGRAPll 77 OF CHAPTER V 1

55. Respondent has dealt with the specific charges in paragraph 77
of the Mernorials in so far as such charges can be identified with the

particular labour conditions referred to by the Applicants. In conclusion
Respondent denies the general allegations by the Applicants that it has,
with regard to labour conditions, "engaged in a consistent course of
positive action which inhibits the well-being and prevents the social
progress and the development of the larger part of the population", and
further denies the allegation that "the record of the Mandatory's behavi9r

toward the 'Native' population of the Territory has been a bleà.k àrid
consistent record of negation, frustration, constraint and unfair dis
crimination" 2•

1 I,pp. 130-131.
2 Ibid., p.130. CHAPTER VII

CONCLUSION

r. In paragraph 190 of Chapter V of the Memorials, under the heading
"Legal Conclusions" 1, Applicants allege that Respondent "has violated,

and continues to violate its obligations as stated in the second paragraph
of Article 2 of the Mandate and Article 22 of the Covenant" in a number
of respects. As regards industry, industria1 employment and labour
relations, Applicants repeat 2 the charges contained in paragraph 77
of Chapter V of the Memorials 3•

2. Respondent has dealt with these charges in the preceding Chapters
and it is consequently unnecessary to deal with the relevant "Legal
Conclusions". lt is sufficient to reiterate that the said charges, and there

fore also the said conclusions, are unfounded and without substance.

1 I, pp. 162 ff.
2 Ibid.,para. 190 (i) (/),(g), (h), (i), (;),(A) and (l).
3 Ibid., p.163. SECTIOND

BRIEF ACCOUNTOF THE NATIVEIN

COMMERCE

Introduction

:r. In section Cabove, in dealing with Applicants' allegations in regard
to the role of the Natives in certain industries, Respondent pointed out,
inter alia,that, when regard is had to the background and traditional

economy of the Native groups, it is only natural that the Natives' role
in industry shou]d at present still be largely limited to that of unskilled
workers in enterprises established by European initiative.
The same socio-economic factors which have served to retard the
advancement of the Natives in the industrial field, have also operated
to retard their development in the field of commerce and, more par
ticularly, as independent traders or businessmen.

2. While advancement on the part of the Natives in the field of com
merce has accordingly been slow, good progress has nevertheless been
made in recent years, particularly as a result of Respondent's policy of
encouraging Natives to serve their own people and of affording them
protection against competition by Europeans in areas inhabited by or
reserved to Natives 1•
In the paragi-aphs below a brief account is given of progress made in
this regard in Native reserves and in Native townships in urban areas.

NorthernAreas

3. To stimulate Native trading enterprises in the northern areas, the
Administration decided in 1952to permit Ovambo to open small businesses
without payment of the prescribed licence fee, and without complying
with specifications laid down for shop buildings. It was not until 1954,
however, that the :lirst Ovambo started trading. Since then the position
has improved rapidly: in 1956 there were 28 Native general dealers in
Ovamboland; in 1957 there were 49, and in 1960, 60. In 196o there were

also 20 Ovambo traders in patent medicines, 14 restaurant-keepers and
two hawkers.
In 1960 the aforementioned concession in regard to licences was with
drawn, and Ovambo traders have since that date, like all others, paid
licence fees. These fees go into the trust fund of the tribal area in wbich
the particular business is conducted.
To assist Native traders, the method of obtaining licences in reserves
is simpler and less expensive than in the rest of the Territory 2•

1 Vide Book IV. Chap. VII, para. 33.
2 Ord. No. 13 of 1935 (S.W.A.}. sec. 14 The Laws of South West Afrï.ta I935,
p. 700 and the regulationframed thereunder. I02 SOUTH WEST AFRICA

4. The number of trading licences approved for 1961, 1962 and 1963
for Native businesses in the northern areas were as follows:

r96r r962
General dealers . . . . . . . . . . . I03 16!
Restaurant keepers and tobacco dealers 14 23 20
Hawkers and others . . . . . . . . . 8 34 _J.Z
218

Reserves in the Police Zone
5. To encourage trading by Natives, and to protect Native traders

against competition by Europeans, it is the Administration's policy to
refuse ail applications by European traders to trade in the Police Zone
reserves, unless no Native is prepared to open a busfoess in an area where
there is a need for such business, or unless the residents of a reserve
request (as happened years ago in the Waterberg East Reserve) that a
particular European be allowed ta open a business.
6. Respondent's policy in this regard has brought about a steady

increase in the number ofNative-held businessesin the Police Zone reserves.
At the end of 1945 there were live Native general dealers in the reserves;
in r950, II; and in 196o, 36. In 1960 there were also 25 licensed hawkers
operating in the reserves, five restaurant-keepers, one butcher and one
baker.
The figures for 1962 and 1963 are as follows:

r962 r963
General dealers . 29 29
Baker . l l
Patent medicines . 8 8
Tobacco/restaurant 5 5
Butcher . l l
Hawkers 25 23
Others. _:i_ ___±

E E.
The slight reduction in the number of General Dealers' licences between
1960 and 1963 is attributable to the generally depressed state of economic
activity during the severe drought and the foot-and-mouth epidemic in
those years.

Native Townships in Urban Areas
7. Business and trading rights in Native townshlps in urban areas have,
since 1951, been reserved by law exclusively for Natives. In terms of the
1
Native (Urban Areas) Proclamation of 195r ,an urban local authority
''may let sites within the location or native village for trading or business
purposes" 2,and such sites may be let only to Natives 3•
To promote trade in the townships, Native dealers in several urban
areas are exempted from observing the ordinary shop hours.
8. Traders operating in the townships in 1960 (with figures for 1950

1
PYoc. No. 56 of 1951 (S.W.A.), in The Laws of South West A/rica .:c95r, pp.
90-170.
3 Ibid., sec. 3(a),p. 152.
Ibid., sec. 3(c)(i), p. 154. COUNTER-MEMORIAL OF SOUTH AFRICA 103

in brackets) were: general dealers, 62 (18); restaurant-kee~rs, 64 (31};
tobacconists, 6o (16); hawkers, l3 (S); greengrocers, 13 (3); butchers,
9 (1); firewood dealers, ro (o); bakers, 2 (1); patent medicine dealers, 8
{o); minerai water dealers, 2 (o),and service station proprietors, 2 (o).
In respect of 1962 and 1963, the following trading licences were issued
to Natives in urban areas:

Type of business
General dealers .
Restaurant . . .
Tobacco ....

Patent medicine 12
Fresh produce IO 10
Minera! water 2 2
Wood ... 14 7
Hawkers 7 6
Speculators. I 2
Butchers. 8 8
Cobblers. 13
Barbers .
3
Baker .. l I
Carpenter I
Ballroom. I
Dry cleaner
Garages .. I
220

In the urban areas, as in the case of the reserves, some businesses were
apparently unable to survive the unfavourable trade conditions in the
past few years, but, with conditions improving again, there is no doubt
that the number and size of businesses held by Natives will continue to
increase. SECTIONE

GOVERNMENTAND CITIZENSHIP

CHAPTER I

SUFFRAGE, PARTICIPATIONIN TERRITORIAL GOVERNMENT,
GOVERNMENTWITHIN THE NATIVE TRIBES AND NATIVE

RESERVES

A. Introductory

I. In paragraphs 78 to 127 of Chapter V of the Memorials 1,under the
general heading "Govemment and Citizenship", the App1icants refer to
certain aspects of tlie political and administrative institutions of South
West Africa. They subdivide the subject under the headings "Background

Information", ''Suffrage", "Participation in the Territorial Government",
"General Administration (Civil Service)", "Local Government", and
"Government Within the Native Tribes and Native Reserves".
For reasons that will become apparent, it is more convenient to deal in
separate succeeding chapters with the allegations contained in the sections
"General Administration (Civil Service)" and "Local Government", and

to consider collectively, in the present chaptèr, the data supplied and
allegations made under the other headings mentioned above.
2. Applicants charge Respondent with-
2
(a) completely denying the right of suffrage to the Native population ;
(b) denying the Native population participation at the politica1 level
of the Government of the Territory, including the Administrator,
the Legislative Assembly, and the Executive Committee, "although
[the Native population] constitutes overwhelmingly the larger part
3
of the total population of the Territory" :
(c) applying, in the administration of the Native reserves, a policy
which involves discrimination, negation and frustration for the
Natives concerned, in that-
"The only semblance of participation by the 'Native' population is

to be found in the rudimentary functions of the 'Native' headmen
and the 'Native' members of the Native Reserve Boards in regard to
the Native Reserves within the Police Zone, and in the elements of
traditional tribal administration under tribal laws and customs still
permitted to the 'Natives' in the Native Reserves outside the Police
Zone",

and that "... this shadowy participation is kept subject to complete,
comprehensive and pervasive control by 'Europeans' " 4•

1 I, pp. I3I-142.
2 Ibid.,para. 128 (1),p. 142.
3 Ibid.,para. 128 (2),p. 142.
• Ibid.,para. 128 (5),p. 143. COUNTER-MEMORIAL OF S0UTl1 AFRICA 105

3. The gravamen of Applicants' charge is contained in paragraph

1:28(6)of Chapter Vof the Memorials, where they allege that-
. "In sum, by law and by deliberate and consistent practice, the
Mandatory has failed to promote to the utmost the development of
the preponderant part of the population of the Territory in regard to
suffrage or participation in any aspect of governmenL It has not
only failed to promote such development to the utmost, it has made
no notable effort to do sa. Ta the contrary, the Mandatory has

pursued a systematic and active program which prevents the possi
bility of progress by the 'Native' population towards self-respect, re
sponsibility or skill in any aspect of citizenship or government ... 1"
4. In paragraph 190 of Chapter V of the Memorials 2 this charge is
carried further by the allegations that Respondent has "... deliberately,
systematically and consistently ... discriminated against the 'Native'
population of South West Africa ... "; that Respondent "... bas thwarted

the well-being. the social progress and the development of the people of
South West Africa throughout varied aspects of their lives ... "; and that
"The grim past and present reality in the condition of the 'Natives' is
unrelieved by promise of future amelioration''. It is finally alleged in the
said paragraph that Respondent "... offers no horizon of hope to the
'Native' population".
5. Respondent's policies, as has been indicated befon.:, indeed involve

differentiation between the various population groups of the Territory
in relation, inter alia, to participation in political institutions and the
measure and manner of self-government applying to them. To say,
however, that these policies are "arbitrary" or "discriminatory" withm
the meaning apparently assigned to these terms in the Memorials, is un
founded. Respondent denies that it has subjected the interests of the
Native inhabitants of the Territory to those of the European inhabitants;
that it has failed to promote the political advancement of the indigenous

population groups, or the development of self-government and advance
ment towards free political institutions on their part; that it has in
relation to political rights of the Native inhabitants "followed a system
atic course of positive action" which "thwarts (their) well-being, inhibits
(their) social progress and frustrates (their) development"; and that with
reference ta the future its policies in this regard "... offer no horizon of
hope to the 'Native' population".

B. General Policy

6. Before dealing with Applîcants' allegations, some reference is
necessary to the unexpressed premise from which they appear to emanate.
The premise seems to_be that in the political sphere, as well as in other
respects, there ought to be no distinction or differentiation between
various inhabitants of the Territory, and that the whole population is to
be treated as an integrated unit, with identical rights and facilities for all.
Applicants, apart from vague generalities, do not attempt to substanti
atethepremise, or to relate it to the basic circumstances or attributes of
the indigenous peoples of South West Africa, which the founders of the

1 I, para.I:28(6), p. 143.
z Ibid., para.190,p. 162.106 SOUTH WEST AFRICA

mandate system saw fitto classify as a C Mandated Territory. Nor do
Applicants deal with the effect which such a premÎse, if adopted by the
Mandatory, could potentially have upon the future well-being and
progress of the inhabitants.

7. Respondent has already demonstrated, particularly in Book IV
of this Counter-Memorial, that this premise on Applicants' part is wholly
unfounded, in fact and in law.
At no time prior to, at or since the assumption of the Mandate by
Respondent, has the population of the Territory in fact formed an
integrated, homogeneous society. On the contrary there has at all times
existed a wide diversity of population groups, several of which have
always been confmed in their habitation to defined and, in some instances,
relatively isolated regions or areas within the Territory. There have at

ail times been wide differences between the groups-in levels of develop
ment, modes of living, outlook and aspirations-and in the not too distant
past conflicts of interests resulted in almost incessant warfare between
some of them.
This factual backgropnd, which has been fully dealt with, formed part
of the foundation of the provisions of the mandate system which,
expressly and by the clearest implication, prescribed and envisaged
differential treatment of various peoples and communities, according to
their stage of development and other relevant circumstances. The legal

provisions in question have also been fully dealt with.
8. The factual and legal background aforestated formed the basis
also of Respondent's policies in South West Africa after assumptionof
the Mandate. Differentiation between groups, inter alia, in regard to
participation in political institutions and processes of government, was
regarded as not only natural but as the only appropriate method of
advancing towards achievement of the ideals of the mandate system

in the particular circumstances. Respondent's approach and practices in
this regard were in keeping with the conceptions of the times, and
accorded with the views of the Powers who conferred the Mandate 1,the
Permanent Mandates Commission 2, and policies applied elsewhere in
Africa 3•
Applicants have not endeavoured to show at what stage and for what
reason, juridical or factual, there has occurred a reversai of the approach
to be considered appropriate and best for achievement of the objectives
of the Mandate.

9. Respondent has already indicated the broad !ines of the policies
which, in keeping with the aforestated considerations, it regarded as
best with reference to the government of the various population groups
in the Territory and their participation in political activity. Its approach
involved recognition of the White population group as one that could
appropriately enjoy a measure of self-government and participation in
processes of central government, subject, inter alia, to control of Native

affairs being the responsibility of the Mandatory itself. The approach
further involved recognition of the separate identity, politically as in
other respects, of each of the non-White groups, and according to each

1
Vide Book IV, Chap. IV, paras. 36-39, of this Counter-1lernorial.
i Ibid., para40.
3 Ibid., Chap. VI, paras2-20. COUNTER-ME!>IORIAL OF SOUTH AFRICA 107

an opportunity of developing on the basis of its own institutions and
culture. In regard to the indigenous groups, the process of adaptation
to modern conditions was foreseen as one that would necessarily have to
be slow, and which could not be divorccd from other facets of advance
ment and progress.
Respondent has also indicated why, and in what manner, the prindples

and practices which have thus been tried and tested, should in its view
serve as the basis for an accelerated programme, adapted to present day
circumstances, and designed to bring the varions groups nearer to self
realization also in the political sphere-according to the particular
circumstances of the different groups and their varying stages of advance
ment, and with a view to achieving justice and equity for a1lof them.

ro. Bearing in mind the above basic principles, the development of
political institutions and participation in political activity for the different
population groups will hereunder be examined in more detail.

C. Constitutional Arrangements Prior to 1.925
II. During the German regime only Europeans participated in the

Territorial Govemment, and after the 1904-1907 wars the administration
of the Police Zone, save for the Berseba reserve and the Rehoboth Gebiet,
was·entirely in the hands of German district officers 1.
The German author1t1es did not exercise any real control over the
northern territories, and the inhabitants of these areas maintained thelr
systems of tribal government.

12. From 1915 to 1920 South \Vest Africa was govemed as a protec
torate under martial law. From 9 July 1915 to 30 October 1915, the
govemment of the Territory was entrusted to a military governor and a
chief civil secretary. On 30 October 1915 both these officeswere abolîshed

and the office of Administrator was constituted. The Administratorwas
to be under the control of, and directly responsible to, the South African
Government 2•
13. In September 1919 the South African Parliament enacted the
Treatv of Peace and South West Africa Mandate Act 3, which vested in

the Governor -General the necessary powers for giving effect to the
Mandate in respect of the Territory, when granted.
Section 2 of the Act authorized the Govemor-General to legislate in
respect of the Territory by proclamation and also empowered him to
delegate his authority to "such officer in the said territory as he may
designate to act under his instructions". Ali proclamations made under

the Act were to be laid before the South African Parliament 4.
14. By Proclamation No. 1 of 1921, the Govemor-General delegated
his powers under the Act to the Administrator of the Territory, as the
agent of the Union Govemment, and subject to "such instructions as
5
may from time to time be issued for his guidance by proper authority" •

1 Evans, J. E., Native Po/icy in Soutl,ern Africa(r934),p. 138.
2 Froc. of 28 Oct. 1915 and gazetted on 15 Xov. 1915, at pp. 30,31 ofTheLawsof
South West Africa r9r5-r922.
3 Act No. 49 of 1919 (S.A.), inThe Laws of South West Africa r9r5-r9n, pp. 10-12.
• Ibid.,sec. 2, p.1 t.
5 Proc. No. r of r921 (S.A.), iThe Laws of South West Africa r9r5-r922, pp. 44-46.I08 SOUTH WEST AFRICA

15. -By Proclamation No. I of 192I, as amended by Proclamation
No. 51 of 1921, the Administrator appointed an Advisory Council, which
consisted of nine appointed members, whose functions were to advise the
Administrator in regard to:

(a) the raising of revenue within the Territory;
(b) the appropriation of monies for the public services of the Territory
and the allocation of expenditure;
(c) matters of general policy in relation to the legislation and ad

ministration of the Territory, apart from routine matters of ad
ministration;
(d) any other matter upon which its advice might be requested by the
Administrator 1•

One of the members of the Advisory Council was to be a person specially
qualifi.ed to advise on all matters concerning the Native races of South
West Africa 2•

16. During the period 1921-I925 the administrative and legislative
powers in respect of the Territory remained vested in the Administrator
as Respondent's representative. Duting this period, therefore, apart from
the Advisory Council, the European inhabitants had no representative
political institutions of the nature to which they had been accustomed.

D. Political Institutions of the White Population Group

17. In March 1921 a commission, which had been appointed in the
previous year to enquire as to the future govemment of the Territory,
recommended in respect of the European population the adoption of a

"form of government ... at present prevailing in the four Provinces
of the Union, giving the population full representation in a Provincial
Council and in the Union Parliament, ... but subject always to the
3
conditions of the Mandate ".
18. General Smuts, in a speech at Windhoek in September 1920 had
already predicted developments along the lines envisaged by the com
mission when he stated :

"South-West Africa would always be a separate unit as a large
country, but it was impossible to run it as a province at the present
time, though later, no doubt, it would become one, with a Provincial
Council and members in the House of Assembly, but first other

stages would have to be passed through. The first would probably be
an Advisory Council to be appointed to advise the Administrator.
Not long after that, the Council would become an elected Council,
and in due course there would be a full Parliamentary system ."
5
19. In December 1922 the Advisory Council unanimously adopted a
resolution urging that the European inhabHants should be given a share
in the govemmeri.t of the Territory, and also recommended that steps be
taken to enact legislation for the automatic naturalization of the German

1
Proc. No. 1 of 1921 (S.W.A.), in The Laws of Somh West Africa r9r5-r922,
pp. 493-495, as amended by Proc.No. 51 of 1921 (S.W.A.), ibid., p.626.
2 U.G. 26---1921,p. 4.
3 U.G. 24-1921, para. 7, p. 4.
4 P.M.C., Min. II, p. 92.
5 Vide para. 15,supra. COUNTER-MEMORJAL OF SOUTH AFRICA 109

inhabitants. A similar recommendation bad been made by the aforesaid
Commission of Enquiry 1,because it was of opinion that there was no

way in which aliens permanently residing in South West Africa could
acquire the right to take part in the administration of their country of
adoption other than by becoming citizens of the State which, under the
Mandate, was charged with the administration of the Territory.
20. After negotiation with the German Govemment, the Council of

the League of Nations was approached in order to seek its endorsement
of the proposed naturalization of the German inhabitants. The League
Council, in a resolution of 23 April 1923, resolved that it had no objection
to such naturaliz.ation 2•
2r. In 1924 there was enacted the South West Africa Naturaliza.tion

of Aliens Act 3, which provided that nationals of ex-enemy countries
resident in the Territory on 1 January 1924, and also those who took
up residence in the Territory before 15 September 1924,would be deemed
to be British subjects. The persons concemed could, however, renounce
British nationality.

22. The way had now been cleared, with full knowledge and endorse
ment of the League of Nations, for the creation of political institutions
in which the Wfiite population group could participate and exercise a
measure of self-government.
23. With the enactment of the South West Africa Constitution Act,

-:r9254, a form of government, basicaUy similar to the South African
Parliamentary system, was introduced for the White group in the
Tcrritory. The Act, which came into force in 1926, made provision for the
establishment of a Legislative Assembly, an Executive Committee and
an Advisory Council.

24. The Legislative Assembly consisted of 18 members, one-third of
whom w~re ~ottjinatcd by the Administrator fr~m voters resident in
the Temtory] s~bject to the approval of the Umon Govemment. The
other membel'swere elected by direct vote of those adult male European
inhabitants of the Territory who were British subjects 5•
The Legislative Assembly was empowered to enact ordinances in
regard to all matters save the following, in respect of which it could
6
legislate only with the prior consent of the Govemor-General :
(a) Native affairs or any matters specially affecting Natives, including
the imposition of taxation upon the persons, land, habitations or
eamings of Natives;
(b) mines and minerais;

1 Vide U.G. 24-1921.
z L. of N., O.j. 1923 (No.6),pp. 6o3 and 659; vide also Gen. Smuts' letter to the
Council, portion of which is citedin Book IV, Chap. V, para. 6, of this Counter•
Memorial.
' Act No. 30 of 1924 in The Laws of South West Af,,ica 19a4, pp. 82-85.
• Act No. 42 of 1925 in The Laws of South West Af,-iŒ I9z5, pp. 6o-92.
' Ibid., sec. 13 and Part I, sec1, of the Schedule to the Act.
6 Ibid., sec. 26.I.IO SOUTH WEST AFRICA

{I) the administration, management and working of the postal, tele
graph and telephone services;
(g) military organization;
(h) movement and operation of the Defence Force of the Union of
South Africa;
(i) immigration;
(j) customs and excise;
(k) currency and banking.

The Assembly was also precluded from legislating in regard to police,
civil aviation, education, land or agricultural banks, and the allotment,
sale or disposa! of government lands, except with the Governor-General's
prior consent; but after the expiration of a period of three years from the
date of its first sitting, it could be given a general power to make ordi
nances in respect of any of the above subjects 1•
25. Full powers of administration and legislation were, however,

reserved to the Governor-General, and the provisions of the Treaty of
Peace and South West Africa Mandate Act 2remained of full force and
effect J.
Furthermore, Respondent retained direct control over the legislation
of the Assembly by reserving to the Governor-General full powers of
disallowance ~.
26. The Executive Committee consisted of the Administrator, as chair

man, and four members chosen by the Assembly on the basis of pro
portional representation.
The Admmistrator in Executive Committee was empowered to carry
on the administration of those matters in respect of which the Assembly
was competent to make ordinances s.
27. The Advisory Council, constituted by section 7 of the Act, con
sisted of the Administrator, as chainnan, the four members of the
Executive Committee, and three members nominated by the Adminis

trator, subject ta the approval of the Governor-General.
The duties and functions of the Council were to advise the Adminis
trator in regard to, inter alia-
(a) those matters in respect of which the Assembly was not competent
to make Ordinances, including matters of general policy and ad
ministration; and
(b) his assent to an Ordinance passed by the Assembly, or its reservation
6
for the signification of the pleasurc of the Governor-General •
One of the appointed members of the Council was required to be an
official selected mainly on the ground of his thorough acquaintance with,
and experience of, the reasonable wants and wishes of the non-European
races of the Territory 1.

28. To sum up, the position was that the Administrator was assisted
by an Execùtive Committee, consisting of four members elected by the

1 Act No. 42 of 1925 in The Laws of South West Africa i-9z5, sec. 27.
2 Vide para. r3, supra.
' Act No. 42 of 1925 in The Laws of South West Africa i-9:15,sec. 44,pp. 60-92.
• Ibid., secs. 32 and33.
5 Ibid.,sec. 3.
6 Ibid., sec9.
1 Ibid., sec. 7. COUNTER-MEMORIAL OF SOUTH AFRICA lll

Legislative Assembly, in dealing with matters on which the Assembly
was competent to enact ordinances, while mattcrs outsidc the province

of the Assembly, e.g., Native affairs, fell to be dealt with by the Ad
ministrator, as agent of the Union Government, to which alone be was
responsible.

29. In ·1949 the 1925 Act was amended by the South West Africa
Affairs Amendment Act , in, inter alia, the following material respects:
(a) The Legislative Assembly became fully elcctive 2•

{b) The·Territory was granted representation in the Union House of
Assembly by six mcmbers to be clcctcd by the duly registered voters
of the Territory 3,and in the Union Senate by four senators-two
elected and two nominated by the Govemor-General +.One of the

latter was to be selected mainly on the ground of bisJhorough ac
quaintance, by rcason of his officialexperience or otherwisc, with the
reasonable wants and wishes of the Coloured races of the Territory 5•
{c) In terms of section 26 of the South West Africa Constitution Act,

'1925,the Legislativc Assembly had been permanently, and in terms
of section 27 temporarily, precluded from enacting Ordinances on
certain matters 6• The effect of the amendments conta.incd in sections
16 and 17 of the new Act was-

(i) to remove the legislative restrictions imposed on the Assembly
by the said sections in respect of: mines, minerais, minerai oils,
precious stones, etc. ; primary or secondary education in schools
supported or aided from the revenues of the Territory; the estab

lishment, management or control of any land or agricultural
bank in the Territory; and the allotment, sale or disposa} of
government lands in the Territory;

and
(ii) to include the police force and civil aviation amongst the matters
permanently reserved from the legislative competence of the
Assembly.

(d) The Advisory Council was abolished and its functions transferred
to the Executive Committee 7•

(e) Provision was made s for the abrogation, from a date to be pro
claimed, of the powers of legislation granted to the Govemor-General
under the provisions of the Treaty of Peace and South West Africa
Mandate Act, 1919, with the consequent lapsing of the delegation of
those powers to the Administrator 9. The date for the changes was

later proclaimed as 17 October 1951 10.
Provision was made that from the said date only Parliament should

1 Act No. 23 oi 1949 in The Laws of South West Africa 1949, pp. 170-187.
2 Ibid., sec8.
3 Ibid.,secs. 27 and 28.
• Ibid.,sec. 30 (1).

6 Ibid.,sec. 30 (2).
Vide para. 24, supra.
7 Act No. 23 of 1949, sec. 5, iThe Laws of South West Africa 1949, pp. 170-187.
9 lbid.,sec.22.
9 Vide para. 14, sufwa
10 Proc. No. 235 of 1951 (S.A.), in The Laws of Sowh West A/rica 195I, p. 10.II2 SOUTH WEST AFRICA

have the power to legislate for the Territory in regard to those matters
on which the Lcgislative Assembly was not compctent to legislate. The
only exception to this would be the right of the Legislative Assembly
to makc an ordinancc on a permanently reserved matter, with the prior
1
consent of the Govcrnor-Gencral •
Dcspite the changes brought about by the aforcstatcd amcndments,
full powcrs of Icgislation and administration remaincd vcsted in Respon
dent 2• Furthcrmore, Respondent retained its direct control over the
legislation of the Assembly by reserving full powcrs of disallowance in
3
respect of ail Ordinanccs •
30. It is dcar, therefore, that though the White population group
bas been cndowcd with a measure of self-government and participation

in central government, powers of legislation rclating to Native affairs
have never bccn confcrrcd on the South West African Legislative As
sembly, such powcrs having bcen retained by Respondent.

E. General Constitutional Arrangements conceming the Indigenous

Groups

31. During the period 1921 to 1925 the powers of administration
and legislation in respect of Native affairs vestcd in the Administrator,
as Respondent's representative, to whom the Governor-General had
delewated such powers 4. The Advisory Council, as has been pointed

out , advised the Administrator, inter alia, in regard to matters of
general policy, including Native affairs, and one of the members of the
Council was rcquired to be a persan specially qualified to advise on all
matters concerning the Native races of South West Africa.

32. Under the South West Africa Constitution Act-of 1925, the powers
of lcgislation and administration in respect of Native affairs rcmained
vested in the Administrator. The new Advisory Council had as one of
its members an official selected mainly for his knowledge o{ the reason
6
able wants and wishes of the Nath·c population of the Terri tory .
33. In 1949 the Advisory Council was abolished and its functions
transferred to the Exccutivc Committee, which advised the Admini
7
strator in carrying out his administrative duties • For the proper
furtherancc of the intefests of the indigenous population, the Secretary
for South \Vcst Africa, in his capacity as Chief Native Commissioner,
attended meetings of the Executive Committce whenever matters of
policy or administration conceming non-\Vhites were considered by the

ExecutiYe Committee.
34. As bas been pointed out 7, the South West Afriea Affairs Amend

ment Act of 1949 made provision for the abrogation of the powers of

1 See now, however, para. 3-1, iujra.
2 As regards lcgislative and administrative po,vers pertaining to th.e Ea<;tern
Caprivi Zipfel,vide Book VIII. sec. C, Chap. VI, paras. 16, 17, 20 and 21, of this
Counter-Memorial. ·
3 Act No. 23 of 1949, sec.22, inThe Laws of South H'estAfrica r949, pp. 170-187.
• Vide para. 14, supra.
5 Para. 15,supra.
6 Para. 27, supra.

7 Para. 29, supra. COUNTER-MEMORIAL OF SOUTlt AFRICA II3

legislation granted to the Govemor-General in 1919, and delegated by
him to the Administrator in 1921.
After the adoption of the 1949 Act it wa.sfelt, however, that the power
of the Govemor-General to legislate by way of proclamation for the
Territory should be retained. Accordingly, the South West Africa Affairs
Amendment Act, 1951, provided that the Governor-General could

legislate by proclamation in relation to any matter in regard to which
the Assembly was not competent to make ordinances. This power was
conferred on the Govemor-General as from 17 October 1951, which was
the date that had been fixed for the lapse of his previous powers in this
regard 1.

35. As from r April 1955 the administration of Native affairs was
transferred to Respondent's Minister of Native Affairs (now designated
the Minister of Bantu Administration and Development) 2,who functions
under the control and direction of the Govemor-General in Council. The
effect of this Act was, therefore, to transfer the administration of Native
affairs in the Territory from one organ of the South African Government

{the Administrator) to another (the Minister of Native Affairs).
From the same date the Administrator became a member of the Native
Affairs Commission. The Minister of Native Affairs possesses authority
to delegate any of his powers and duties to the Administrator in his
capacity as a member of this Commission, and he has in fact exercised
the authority in respect of certain fonctions and duties.

The aims and effect of this transfer of administration of Native affairs
are dealt with elsewhere in this Counter-Memorial 3•
36. It is clear, therefore, that Respondent has at ail times retained
full and direct control over legislation on and administration of Native

affairs in the Territory, and that the indigenous inhabitants of the
Territory have not been subjected to the control of the European in
habitants.
37. To enable Respondent to be at all times fully acquainted with the
desires of each group and to enable such population groups to be ac

quaintcd with Rcspondent's views, Respondcnt has built up certain
channels of communication. The office of Chief Bantu Affairs Com
missioner and his staff i constitutes the main link with the indigenous
population groups. ln each of the tribal areas beyond the Police Zone,
and in each district and in each of the larger Native rescrves within the
Police Zone, the Chief Bantu Affairs Commissioner has a representative;

either a Bantu Aflairs Commissioner, a Superintendent or an Administra
tive officer, who is in close contact with the members of the indigenous
group within his area.
The fonction of these officials is largcly confined to one of assistance
and guidance, through which they have been able to play their part in the
development of the indigenous political institutions of the various popu
lation groups, which are described below.

1 Act No. 55 of t95i: (S.A.}, sec2,in Statu.tes of the Union of Sou.th Africa r95r,
p. 404.
2 Vide Act No. 56 of 1954 (S.A.); inStatu.tes of the Union oS011thAfrica r954,
pp. 559-565.
3 Vide Book VIII, sec. C, Chap. VII, paras. 5-8, of this Counter-Memorbl.
4 The Head Office of which is at Windhoek.II4 SOUTH WEST AFRICA

F. lndigenous PoliticalInstitutions outside the Police Zone

38. As has already been pointed out , a policy of employing tradition al
institutions for purposes of government of the groups concerned, admitted
of fairly easy application in those territories outside the Police Zone
viz., Ovamboland, the Okavango Native Territory and the Caprivi

Zipfel-where tribal organizations had remained intact and were in
operation when the Mandate was assumed. For reasons that willbecome
apparent, however, the application of a system of indirect rule to the
Kaokoveld presented more difficulties, while the habits of the Bushmen
have thus far made it well-nigh impossible to create for them some form
of political organization or representation.

39. Respondent bas already dealt with the social and political organi
zations of the varions indigenous groups which were in existence prior
to the assumption of the Mandate 2• In what follows, a brief account will
be given of the development of indigenous political institutions in the
northem areas subsequent to 1920, and of the problems encountered
by Respondent in endeavouring to assist such development 3•

ÜVAMBOLAND

40. As stated prevfous]y 4.the various Ovambo tribes have for a very
long time functioned as separate political entities, each with its own
system of rule. The German Government in South West Africa never
exercised any authority over these tribes, and had no resident officiais
in Ovamboland.

41. After the Police Zone had been occupied by the Union forces in
1915, and pursuant to messages and invitations received from the tribal
rulers of Ovamboland, Respondent considered it advisable to station
representatives in this territory under its control.
When officiais sent by Respondent to investigate conditions in Ovambo
land arrived there, they found the otherwise relatively peaceful territory
in a state bordering on chaos. Firstly, a very severe famine was raging
and was taking a heavy toi! of life amongst the Natives. Secondly, raiding
and plundering on the part of certain armed sections had become the

order of the day. Thirdly, the Portuguese Government had sent a strong
punitive expeditionary force~for alleged raiding-against Chief Man
dume of the Kuanyama tribe, whose tribal area was eut in two by the
border line between Angola and South West Africa.
42. Under these circumstances there was initially no clearly defi.ned
policy with regard to Ovamboland. With the very limited staff of adminis

trative officiais available for the whole territory and without any police
force, it would have been quite impossible to apply to the Ovambo a
completely new political and legal system. The action taken by Respond
ent consequently amounted to controlling the Natives more and more

1 Vide Book IV, Chap. V, para. 8, of this Counter-Memorial.
2 Vide Book III, Chap. II, of this Counter-Memorial.
lIt willbe observed that hardly any reference is made to published sources in
respect of information supplied. The information bas been obtained !rom ~espon
dent's officiais and ethnologists and can be supported by oral evidence if necessary.
• Vide Book III, Chap. II, para. 40, of this Counter-Memorial. COUNTER-MEMORJAL OF SOUTH AFRICA IIS

through their own tribal leaders. This system was commenced in the
Kuanyama area.

43. After the death of Chief Mandume at the beginning of 1917,
ail the senior headmen who had served under him were encouraged to
corne together as a council and to hold regular meetings to deal with the
affairs of the tribe. Attention was given to tribal laws and every effort
was made by the officiais to gain the complete confidence of ail the
traditional headmen-councillors. Gradually the first foundation of a
type of indirect rule was l.aidin this strongest and most important of all
the Ovambo tribes.
For a time the Kuanyama area was the only one of the tribaj areas
to wh~ch the above procedure applied. The principal headmen as :wellas
scores of sub-headmen were gradually educated to follow the adv1ce an9-
methods of government recommended by the administrative officials
in charge. The utmost care was taken to allow them to apply their own
laws which were studied, recognized and maintained. Such laws and
usages as were contrary to natural justice or public policy were gradually
eliminated, but refonns were introduced only after careful discussions
with tribal elders and with the approval of each ot;.the authorities
concerned.

The Kuanyarna had in the past been ruled by a strong and autocratie
chief and when suddenly they were deprived of his rule and leadership.
one of the greatest difficulties the officiais had to contend with was to
get headmen to step into the shoes of their former chief, i.e., to exercise
full authority and to take the lead and show initiative in their respective
areas. Patience and care were required to make them realize their respon
sibilities,ut in time one after the other fell into line.
44. The system inaugurated amongst the Kuanyama was gradually
introduced into three of the other tribal areas-those of the Mbalantu,
Nkolonkati and Eunda tribes-where there were no chiefs, but where
headmen were found to control separate districts within their tribes.
These headmen had never before corne together to sit as a body, but

under proper guidance they began to appredate the advantage of sharing
the responsibility and control of the tribe as a whole, and were persuaded
to adopt the example set by the Kuanyama.
45. The remaining four tribes were ruled by traditional tribal chiefs.
Like Mandume, the chiefs were very autocratie, and although each had
advisers, being a few elders, they rarely, if ever, consulted them. Itwas
one of the most difficult tasks of officiais to persuade these chiefs to
adopt a more just and democratic form of government, including the
use of these eiders or headmen as counsellors. With the passing of time,
however, Natives from tribes ruied by chiefs were able to appreciate the
advantages of the good order and justice prevailing in other tribal areas,
controlled by headmen, particularly in Kuanyama. The chiefs, too, began
to realize that they could obtain sound advice from older headmen and
that unless they paid more atte.ntion to the rights of the individual they
might lose their positions.

46. Serions difficulties ofthe kind mentioned were indeed experienced
in the case of Chief Ipumbu of the Kuambi tribe. Some of his ·senior
headmen and tribesmen developed very decided feelings against his
despotic rule and appealed to officiais for assistance. To counter these
feelings lpumbu applied his harsh methods more strictly than ever,u6 SOUTH WEST AFRICA

paying little regard to human life. This eventually compeiled the Ad
ministration to take action against him, and in 1932he was deposed 1•From
the date of his deposal the Kuambi tri behas been controlled by a council of

four headmen and order and discipline are satisfactorily maintained.
47. As a result of the aforestated developments there are at present
two systems of government in operation in Ovamboland, viz.:
(a) In the tribal areas of Kuanyama. Kuambi, Mbalantu, Eunda, and
Nkolonkati, where there are no chiefs, councils of headmen have been
set up to deal with ail matters affecting their tribes. These councils
consist of tribal leaders, known as headmen, each of whom is in control

of a portion of the tribal area. They meet regularly to discuss admin
istrative and political matters amongst themselves and, ifnecessary,
with the White officiais, and also to sit as a court of appeal to hear
cases (under Native law and custom), which sub-headmen and
individual headmen have been unable to settle to the satisfaction of
the parties concerned.
(b) ln the other tribal areas in Ovamboland, i.e., Ndonga, Ngandjera
and Kualuthi, where chiefs are in control, such chiefs are in the
governme1l,i of their tribes aided by councils of their leading men
whom they have placed in charge of particular portions of their
domains. The councils act as advisers to their chicfs and assist them
in carrying out thcir executive, administrative and judicial functions.

48. The chiefs and headmen in Ovamboland, as also in the other tribal
areas outside the Police Zone, are not chosen by the Government.
\Vhenever a vacancy occurs on account of death or incapacity of an in
cumbent or for any other reason, the tribe concerned decides for itself
who is to be its nominee. After arriving at a decision they inform the au
thorities of their choice and request approval thereof. It must be empha
sized that such approval is a formality and that, as far as is known, no
such tribal request has evcr been refuscd.

49. The chiefs and the council of hcadmen have full civil and criminal
jurisdiction over membcrs of their own tribes, except in respect of the
crimes of murder, rape, high treason, and severc cases of assault with
intent to do serious bodily harm, which are dealt with by the South
West Africa Division of the Supreme Court of South Africa.
50. Each tribe in Ovamboland has its own tribal officewith a secretary,
and in some cases assistant-secretaries, appointcd by the tribe and paid
out of tribal funds. The Kuanyama tri be, for instance, has three assistant

secretaries, two of \\,.homare in charge of outlying sub-offices.
The secretary, who is a member of the tribe concerned, is responsible
for all records, correspondence, the collection of tribal levies împosed by
the tribe on its membcrs, and for sceing that the tribal administration and
the devclopment of the tribal area are carried out as directcd by the chief
or council of headmen. The secretary is also the contact between the tribe,
the tribal office and the Bantu Affairs Commissioner.
51. The Kuanyama tribe, although further ad,·anced !han the other
tribes, may be taken as an example to illustrate the system at present in ·

operation in the tribal areas without chiefs in Ovamboland.
For the purpose of political, judicial and administratiYe organization
the tribal area of Kuanyama is divided into eight districts, each of which
1
Vide U.G. 16-1933, paras.319-320, pp. 52-57. COUNTER-MEMORIAL OF SOUTH AFRlCA II1

is under the charge of a headman-councillor, chosen by the people and
appointed by Respondent. The tribal council consists of these eight head
men-the omalenga-under the guidance of a Bantu Affairs Commis
sioner in charge of this tribe. This council is also the central authority
of the tribe. It directs the affairs of the tribe through the tribal secretaries.
Each of these districts is divided into sub-districts (omikunda} which
have fixed boundaries and are in turn each administered by a sub
headman, who is responsible to the headman-councillor of his district.
There are three types of courts functioning in Kuanyama. These are
the distTict courts, the tribal court and the court of appeal. The Bantu

Affairs Commissioner, who is also additional magistrate of Ovamboland,
attends the court of appeal in an advisory capacity.
A district court has only civil jurisdiction. lt fonctions within one
district, and there are therefore eight of these courts. All civil cases are
initially heard by these courts, in each instance in the court of the district
where the defendant resides. The district court is composed of all the
sub-headmen in that district. A unique characteristic is that the headman
of the district does not participate in the proceedings. In fact, hemay not
even be seen near the precincts of the court. The court appoints its own
"chairman" and meets in a section of the kraal of the headman. The
jurisdiction of the court is not final.If either party is dissatisfied with the
decision, the case must go before the headmen of the district, whence

an appeal lies to the tribal court.
The tribal courts consist of the eight headmen constituting the council
of headmen. Apart from functioning on appeal in civil cases emanating
from the district courts, it is a criminal court of first instance. Sub
headmen may attend meetings of the court and even participate in the
proceedings with a view to gaining experience, but they have no say in
the ultimate judgment or the sentence passed. Three of the eight head
men absent themselves by rotation in order to be able to sit on the court
of appeal, when necessary.
The tribal court meets once every month at the tribal officesat Ohan
guena. The procedure here, although much more formal, follows the
general lines of the district courts, with the exception that the tribal
secretary may act as prosecutor in criminal cases.
Appeal from the tribal court lies to the court of appeal. The court

of appeal consists of three members. They are headmeri who serve in
rotation on appeal, not having satin the tribal court when the case was
heard there. The court of appeal is also attended by the Bantu Affairs
Commissioner for the purpose of giving advice, if necessary. The court
has its sessions at the administrative headquarters at Oshikango.
52. In the tribal areas under the control of chiefs, civil and criminal
jurisdiction is vested in the tribal headmen and sub-headmen in charge
of omikmzda. Appeals lie to the chief. assisted by some of his counsellors
and, if necessary. by the Bantu Affairs Commissioner.

53. In 1929 the Ovamboland Affairs Proclamation 1 was passed with
the approval of the tribal leaders concerned. The Proclamation provided,
inter alia,for the setting aside of Ovamboland as a Native reserve for the
sole use and occupation of the Ovambo 2 ;for the creation of trust funds

1 Proc. No. 27 of 1929 (S.W.A.), in The Laws of South West Africa I929, pp.
258-262.
i Ibid., sec1,p. 258.II8 SOUTH WEST AFRICA

for each of the tribes in Ovamboland; for the payment of levies by
members of the tribes to those funds; and for the moneys in the funds to
be expended as directed by the Administrator (now the Minister of 13antu
Administration and Development) 1,after consultation with the chiefs
or headmen, "upon objects which in the opinion of the Administrator
are in the interest and calculated to promote the welfare of" the tribes 2.

54. The tribal leaders have been regularly consulted as regards the
manner in which the money in their funds should be spent, and this has
led to members of the tribes being encouraged to participate under their
leaders in the management of their own affairs. They have consequently
developed a habit of discussing possible items of expenditure amongst
themselves, and of then submitting those which they support for inclusion
in the draft estimates presented to the Minister for his formai approval.

55. The tribal institutions, as described above, have a very definite
democratic character, the headmen being chosen by the tribe, and it is
Respondent's policy to see not only that this character remains unim
paired, but also that these institutions be developed and extended to
enable more members of the tribes to take part in them.

56. It will be seen that in Ovamboland, as in the other tribal areas
beyond the Police Zone, the Native inhabitants to ail intents and purposes
govem themselves through their chiefs and headmen according to their
own laws and customs. Although, in theory, many of the laws cnacted
for South West Africa apply also to Ovamboland and the other Native
areas beyond the Police Zone (other than the Caprivi), few, if any, of the
provisions thereof are enforced in those areas. So, also, in the judicial
sphere the courts of South West Africa concern themselves only with

serious crimes in respect of which capital punishment or a long term of
imprisonment may be justified, and for the rest justice is administered by
tribal tribunals according to Native law and custom. Even in financial
matters, although any expenditure from their trust funds requires to be
authorized by the Minister, such items of expenditure as are recommended
by the l\'ative Authorities are always authorized if funds permit.

57. Taking the position as a whole it can be said that the Ovambo,
because of the satisfactory methods of government evolved by themselves
with the assistance and guidance of White officiais, have become a well
ordered, happy and exceedingly loyal community of Natives, and no
more than a few White officiais are needed there to guide them and to
exercise a good influence over them. ·
The South West Africa Commission of 1936 stated in this regard:

"On the evidence taken by us and from what we saw in travelling
through the country and visiting the different places we could not
help coming to the definite conclusion that the Ovambos are not only
satisfied with the form and administration of Government which
they have had since the Union Govemment took control of Ovambo
land, but that they are also as a people contented and happy and
think themselves much oetter off than they were under the Govern-

1 Vide A•:t::,..6of I954 inStatutes of the Union of South .4/rica z95559-565
and Proc. Xo. 1r9 of 1958 in The Laws of South West Africa r958, pp. 133-r41.
2 Proc. No. 27 of 1929 (S.W.A.), sec. 3, iThe Laws of South West Africa r929,
pp. 258-262. COUN'fER-MEMORIAL OF SOUTH AFRICA II9

ment of their own Chiefs without the supervision of Union Govem
ment offidals 1,"

THE ÛK.-\V.-\NGO NATIVE TERRITORY

58. The five tribes of the Okavango territory were, at the inception of
the Mandate, all under the control of hereditary chiefs. Sorne of these

chiefs were rather weak and inefficient, and to strengthen their position
and to ensure peace and stability, a Native Affairs officer was stationed
in the territory to advise chiefs in the administration of tribal affairs.
The chiefs leaned more and more upon the said official to support and
maintain their authority over their people 2•

59. Fearing for their position, the chiefs were initially loath to have
councils of headmen, but they were gradually persuaded to appoint
councils, consisting of leading men of their respective tribes, to assist
them in their functions, and in time the councils became firmly es
tablished. The councils advise the chiefs and assist them in carrying out
executive, administrative and judicial fonctions. Each councillor is in

charge of a particular portion of the tribal territory.
60. The chiefs, assisted by their councils, retain full political power
as long as they do not countenance laws or customs contrary to public
policy or natural justice, and they retain their full judical authority

under Native law except the right to adjudicate in respect of capital and
other serious crimes, which are reserved to be dealt with by the Supreme
Court.
Complaints are taken in the first instance to the kraal head and, if the
matter is not settled there, the case is tried by the headmen or by the
chief, according to its importance. Appeals lie from the headmen to the
chief and from the chief to the Bantu Affairs Commissioner.

61. In 1937 a proclamation of that year 3 provided for the setting
aside of the Okavango Native Territory as a Native reserve for the ~ole
use and occupation of Natives and for the establishment of one or more
trust funds for the tribes of that Territory. the moneys of which were

to be used "upon objects ... in the interest and calculated to promote
the welfare of the tribes", but only "as directed by the Administrator
(now the l\linister of Bantu Administration and Development) 4.after
consultation with the chief or chiefs" s.

62. In practice the provision providing for consultation has been
used, also in the case of the Okavango Territory, to encourage the mem
bers of the tribes to participate in the management of their affairs. They
are invited to submit suggestions as to how their trust fund moneys
should be expended, and their suggestions have, as far as has been
practicable, been given effect to.

1 U.G. 26-1936, para. 69,p. 19.
2 U.G. 33-1925, paras. 113 and JI6, pp. 30-31.
3 Proc. No. 32 of 1937 (S.W.A.), in The Laws of Soi.th West Africa r937, pp.
306-312.
• Vide Act Xo. 56 of 1954 inStatutes of the Union of South Africa r954, 559-565
and Proc. No. II9 of 1958 in The Laws of South West A/rica r958, pp. 133-141.
5 Proc. No. 32 of r937 (S.W ..-\.), sec. 3 (4), The Laws of South West .-i/rica
r937, p. 308.120 SOUTH WEST AFRICA

63. It follows that for ail practical purposes each tribe is governing
itse1f through its own appointed chief assisted by a council of headmen.
The main function of the Native Affairs official is to guide and assist
them in ail matters in which they need guidance. In so far as the 'State
President is their supreme chief 1, he holds this power as Respondent's

represen ta tive.
64. These chiefs are not appointed by Respondent mero motu. The
tribe itself elects its chief, usually on a hereditary basis. The State
President is then notified of the tribe's choice and he is asked for his

approval which is given by him in his capacity as the tribe's supreme
chief. Again, as far as is known, no such request has ever been refused.

2
THE EASTERN CAPRIVI ZIPFEL

65. In terms of a proclamation of the Governor-Gcneral of 1922 3,

the Caprivi Zipfel was administered, up to 1929, by tl~e British High
Commissioner of South Africa, as if it were a portion of the Bechuanaland
Protectorate. From 1929'to 1939 it was administered by the Adminis
trator of South West Africa 4. From 1939 onwards, the terri tory has been
administered by the Minister of Native Affairs 5 (now Ban tu Adminis-

stration and Development). •
66. Respondent has already described 6 the system of tribal rule
which was in operation in the Caprivi Zipfel at the inception of the
Mandate. This system has continued to operate, and the hereditary

chiefs, assisted by their councils (Kuta), have retained full power to
govern their people, subject to Respondent's control.
The main functions of the Kuta include the following:
(a) to try minor crimina1 and all civil cases;

(b) to settle domestic and matrimonial disputes;
(c) to allocate lands;
(d) oto administer tribal funds; and
(e) to administer other tribal affairs.

Fines imposed by the Kuta are paid into tribal funds and used for
tribal purposes.
Cases not triable by the Kuta are heard by the Bantu Affairs Com
missioncr, who also sits on appeals from decisions of the Kuta.
For better controI, the territory has been divided into 15 wards or

areas, with a govemment-paid police guard in each to assist the tribal
authorities in preventing breaches of the law. The attempts of the
Commissioner to influence the chiefs and other leaders to rule along
sound lines, have at times been impeded by the practice on their part to

\ Vide Book VI, Chap. Il[, para. 131, read with para. 121 of this Counter
l\Iemoria 1.
1 Hereinafter referred to as the Caprivi Zipfel.
3Proc. Xo. 12 of 1922 (S.A.), in The Laws of South West Africa 1.91.5-1.922,
pp. 52-53.
• In terms of Proc. No. 196 of1929 (S.A.). in The Laws of South West Ajrica 1.929,
pp. 126-128.
3
In terms of Proc. Xo. 147 of 1939 (S.A.), in The Laws of South West Africa 1939,
pp. 28-30.
6 Vide Book III, Chap. II, paras. 14-15, of this Counter-:.\lemorial. COUNTER-MEMORIAL OF SOUTH AFRICA I2I

keep in touch with, and be influenced by, the Rotse court across the

river in Northern Rhodesia.
67. In 1930 a Proclamation\ containing provisions similar to those
of the Ovamboland Affairs Proclamation 2, was promulgated, which,
inter alia, gave the Administrator authority to establish one or more
trust funds for the tribes in the Caprivi Zipfel. As in the case of Ovambo 4
3
land and the Okavango Native Terrîtory \ the provisions of the
Proclamation relating to consultation with the chiefs have been used to
encourage the members of the tribes concenied to participate in the
management of their affairs.

THE KAOKOVELD

68. What is now the Kaokoveld reserve, measuring over five and a
half million hectares, was, at the inception of the Mandate, populated by
Himba, Tjimba and Herero-all Herero-speaking Natives. At that time
they must have numbered approximately 1,500, for in 1925 they totalled
2,000 5,and there had been no large exodus of inhabitants in the interim.

69. In 1915, on hearing that the Union troops were about to occupy
Windhoek, a group of Herero who had, during the German regime, fled
to Angola, crossed the KWlene river and invaded the Kaokoveld, ousted
the Himba and Tjimba from places wlùch the latter had occupied for
6
generations, and took full possession thereof •
As a result there was little love lost between these groups. In addition,
the Herero were divided into two camps and only a loose system of control
was exercised by leaders such as Chief Oorlog. ·

70. In the 1927 annual report the position in the Kaokoveld was
described as follows; · · ·
"Chief Oorlog. Affairs in this Chief's reserve have been quiet on the
whole, although largely influenced by some of his headmen, he does
not always exercise strict justice, but rules rather with cunning, and
it isoften the weaker who suffer at his hands. Because ofthis he has lost

several of his wild Ovahimba and Ovashimba subjects who have left
his reserve ta take up their abode with Muhona Katiti or elsewhere
where they are out of his reach. It is unfortunate that Oorlog is
surrounded by such a mixed lot of followers amongst whom there
is constant and keen rivalry for seniority and headmanshlp. Being a
blood relative of many of these, Oorlog finds it very difficult to follow
the straight road of justice. To add to this the Hereros are divided

into two camps, viz., that of the Okahandja tribal section and that
of the Omaruru, and it is here that he finds it most difficult to keep
his people together. Oorlog personally is a native of outstanding
intelligence and personality, and if it were not that his subjects are

1 Proc. No. 27 of 1930 (S.W.A.), in The Laws of South West Ajri&a 1930, pp.
144-146.
2 Proc. No. 27 of 1929 (S.W.A.), in The Laws of South West Africa I9Jl9, pp.
258-26-1.Vide para. 53, sup,,a.
3 Vide para. 53, su/]f'a,
• Vide para. 62, supra.
' Vide U.G. 22-1927, p. 22.
6 U.N. Doc. T/175, p. 151.122 SOUTH WEST AFRICA

comprised of much mixed sections, causing many complications,
he would make an ideal native ruler.
Chief Muhona Katiti. This old chief possesses little force of cha
racter,and not being of royal line he does not enjoy much authority
over his nomadic Ovahimbas and Ovashimbas. These people are
undoubtedly the wildest of South-West Africa and it is at times most
difficult to get into touch with them.
With frequent visits and police patrols to their little colonies in the
backblocks of the Kaokoveld, however, the Native Affairs officer is
getting more and more into touch with them and their affairs. They
are nomads in the truest sense of the word and move with the
seasons always in search of new pastures for their herds and flocks.

This often makes H weJJnigh impossible to keep a strict control and
check on all cattle movements. The Police at Tshimhaka have
nevertheless done excellent work during this year.
Chlef Kasupi of Ombepera is, like Muhona Katiti, an Ovahimba.
Conditions in his reserve are similar to those of Muhona Katiti 1."
7I. The inhabitants of the Kaokoveld were scattered over a very large
area, much of which is mountainous and which was, at the inception of the
Mandate, served by no roads. It was, therefore, extremely difficult even
for Native leaders to keep in contact with their people. For European
officiaisit was well nigh impossible. There was consequently no alter

native but to allow the very loose system of control exercised by the
Chiefs to continue for a while.
72. The first step taken by Respondent was to establish on the Kunene
River a police post to prevent clashes between the varions groups, to
maintain law and order and to obtain the co-operation of the people
through their chiefs and other leaders in preventing stock movements
from and to Angola.
The whole area was also placed under the jurisdiction of the Native
Commissioner of Ovamboland who paid visits to it and made contact

with its leaders and people. With the opening up of roads under his
directions, the mountainous north-western regions became moreaccessible,
and made it possible for the said Native Commissioner to maintain
regular contact with, and to bring his influence to bear on, the tribes.
73. By 1931 a better understanding had developed between the two
sections of the Herero, but the Tjimba in the extreme northwest had at
their own request been divided into three sections after a dispute had
arisen. and difficulties of controI were not lessened. This will appear
more fully from the following extracts from the 1931 annual report:

"334. The Kaokoveld bas been much more quiet than last year.
There now appears to be a better understanding between the two
sections of the Herero people, viz. the Maherero and the Manasse.
Last year they were constantly at loggerheads, but since they were
brought together by Chief Oorlog for the Native Commissioner to
listen to their grievances they have abided by the settlements arrived
at. Whether this peaceful state of affairs will last, tune aloni!wîll tell.
335. The Maherero Herero is a keen politician and is not happy
unless he can suppress or rule over a different section. As mentioned
in previous reports Chief Oorlog has a very difficult role in the

1Ù.G. 31-1928, p.45. COUNTER-MEMORIAL OF SOUTH AFRICA 123

Kaokoveld. The Maherero leaders, who number some very intelligent
natives among them, are constantly scheming to break away from
ÜoI"log'srule. The I"elationshipbetween Chief Oorlog and the old chief
Muhona Katiti until the latter's death in October was very friendly.
A much better understanding existed between them and they settled
their respective troubles much more amicably.
336. The Ovatjimba Hereros in the extreme North Western
Kaokoveld, who formerly belonged ta the old chief Muhona Kasupi

and lateI" to his son Kahewanawa, were at their own request placed
under the temporary leadership of his nephew Karuho Kahewanawa
and Kasupi's brother Ueripaka. Some dispute had arisen between
the last two mentioned and as the split was widening the respective
followers requested to be divided into three sections until such time
as they can be caHed together to choose a single leader. These
natives live in the wildest parts of South West Africa ."

74. During 1936 the Administrator visited the Kaokoveld and held a
representative meeting to discuss ways and means whereby the leaders
could co-operate better and also exercise more efficient control over the
tribesmen. After the AdministratoI" had spoken at length and had
appealed to the leaders to settle their differences and to co-operate, the
meeting resolved to set up for the Kaokoveld a council of headmen similar

to those existing in some of the tribal areas of Ovamboland. It was not
to be expected that everything would run smoothly from the beginning,
but a defi.nite attempt was made by the Native Commissioner to
oveI"comethe difficulties.
75. With the death of Chief Oorlog during 1937, the way was finally

opened for the creation of a tribal council to take control of the Herero,
and this step was duly taken 2•In the 1938 annual report it was stated:
"Since the death of Chief Oorlog as reported in para. 395 of last
year's Report, the HeŒro sections have been controlled by a Tribal
Council, the members of which have been chosen by their own people.
The Council meets regularly, about once a month, at Okorosave mat

some other appointed place where .cases and disputes are attended
to3." ·
76. The following year a Native Affairs officer was appointed as
Respondent's representative in the Kaokoveld. His main fonction was
to act in an advisory capacity to the chiefs and other leaders. His presence
immediately achieved good results. He discovered, for instance, that

Herern headmen had been inclined to deal with cases and disputes
without referènce to the council of headmen and that cases had occurred
in which favouritism and the social position and wealth of the parties
had inftuenced the council'sdecisions. Heused his influence with success
to have such malpractices discontinued.
The new official also found that many of the Himba were under no
control whatsoever. They lived in family units, had never submitted to

tribal rule and were scattered over a large area where control was still
abnost impossible.
77. As a result of the influence of the new official the Himba started

2 U.G. 17-1932, paras.334-336, p.53·
3 U.G. 25-1938, para. 395, p.66.
U.G. 20--1939, para. 410, p.55.124 SOUTH WEST AFRICA

attending the Herero tribal meetings in increasing numbers, and sub
mitted their disputes to the council of headmen.
Since 1941 the said council has controlled the affairs of ail three groups
-the Herero, Himba and Tjimba-with the assistance and advice of the
Native Affairs (later Bantu Affairs) officer. At times this control has not
been completely satisfactory, but, all in ail, the present system has been a

distinct improvement on those previously in operation.
78. In 1953, on the recommendation of the counci1, a government
notice 1 was issued providing for the payment of an annual rate by the
residents of the Kaokoveld to the Kaokoveld trust fund. Such revenue
as is collected, is expended only in consultation with the council which
is thereby afforded experience in the handling of its own affairs.

79. Today the position is that there are no chiefs in the Kaokoveld.
A council of headmen has taken the place of chiefs, and deals with all
matters affecting the tribes. This council consists of tribal leaders who
are each in control of a portion of the tribal area. They meet regularly to
discuss administrative and political matters with the Bantu Affairs
official,and often thereafter sit as a court of appeal to hear cases under
Native law and custom which individual headmen have been unable to
settle to the satisfaction of the parties concerned.
The headmen are elected by the members of the tribe concemed,

usualiy on an hereditary basis. The names of the elected headmen are
then forwarded to the officiais for approval by their supreme chief,
the State President. To date, the nominees of the tribes concerned have
always been approved of, as far as can be ascertained.
80. It will be seen from the above that the tribes of the Kaokoveld
to a large extent govern themselves through their tribal counc:il, and that
the Bantu Affairs official merely assists and guides them in this task.

THE BUSHMEN

81. Among the Bushmen no tribal authority has ever been recognized 2•
There is no question of submitting to majority opinion, nor is a test of
such opinion ever made. Consequently the Bushmen have not developed
a political structure. Their lack of recognition of authority presents a
difficult problem that will still take a great deal of time to overcome.

82. Respondent has from the outset made every effort to secure the
confidence of the Bushmen, e.g.. by placing reliable Natives at waterholes
where Bushmen were in the habit of congregating for a part of the year,
with a view to keeping contact with them. These experiments, however,
achieved only limited success.
83. During 1950 Respondent appointed a commission to enquire into
3
the whole matter • One of its recommendations was that a Bushman
Commissioner be appointed, and this has been given effect to. One of
the duties of the Commissioner is to attempt to ~et the Bushmen to
participate in the management of their own affairs through selec!ed
leaders instead of continuing to fonction as independent famlly umts.

1 G.N. No. 335 of 1953 (S.W.A.), in n~ Laws of South. West Africa r953, PP·
619-621.
2 Vide Book III. Chap. II, pata. 57, of this Counter-Memorial.
' Vide Book VI, Cbap. III, para. 6,J, of this Counter-Memorial. COUNTER-MEMOR[AL OF SOUTH AFRlCA 125

Sorne success has already attended his efforts in these directions and,
as more Bush people join those settled near his headquarters {at Tsumkwe
north-east of the Epukiro Native reserve), he will extend the form of
control through leaders selected by the people themselves. It is ho_ped
that in due course a representative council can be formed on the hnes
of the councîls which have been set up for other indigenous inhabitants
without hereditary leaders, to regulate their affairs under the guidance of

the Commissioner.

G. lndigenous Political Institutions within the Police Zone

84, As a result of the disruptive effect of certain historical events, to
which reference bas already been made 1, the Herero, Nama and Dama
were scattered ail over the Police Zone when the Mandate was assumed.
Their tribal füe and institutions had brnken down and no group organi
zations existed. The only Native leaders in control of certain factions at
the time were a Dama chief in the Okombahe reserve who continued to
administer the reserve with Government recognition, Chief Goliath of
the Berseba Nama and the Kaptein of the Bondelswarts.

85. In a later chapter 2 Respondent will deal with its policy regarding
reserves, in implementation of which reserves have been set aside for
the sole use and occupation of the indigenous groups. One of the main
considerations of this policy was the need to bring the dispersed remuants
of the various groups together and to re-establish their tribal organi
zations.

86. The process of sorting out the scattered Natives was indeed an
enormous task. Members of the varions groups were widely and hap
hazardly spread out. So, for instance, Herero had been forced by cir
cumstances to take up work as labourers in areas formerly occupied by
Nama, and vice versa, with the result that members of the same tribes,
clans and farnilies were located at different ends of the Territory.
In settling the Natives in reserves, care had to be taken to bring
together members of particular groups, or even sections of groups, in so
far as it was practicable to do so. Instances of such sections were to be
found among the Herero, who had, inter alia, a Manasse section and a

Maherero section, which in the olden days functioned as independent
units, and amongst the Nama who were divided into a number of tribes
and clans.
At the same time, and in order to cause a minimum of inconvenience,
rernovals from one part of the Territory to another werc not enforced,
and in consequence members of more than one group were admitted to
some reserves.

87. The position is, therefore, that even up to the present time, it has
not been possible to settle only homogenous groups in particular reserves
in the Police Zone, although thcre are some reserves which are almost
exclusively inhabited by members of particular groups. In order to
facilitate the further development of the political institutions of the
Natives, attention is being given to the creation of consolidated home
lands for the various groups 3•

1 Vide Book III. Chap. III, of this Counter-Memorial.
i Vide Book VI, Chap. lll, of this Counter-Memorial.
3 Vide Book IV, Chap. VII, paras. 32 and 35, of this Counter-Memorial.126 SOUTH WEST AFRICA

88. In the following sections Respondent will first deal with the general
development of indigenous political institutions in the reserves in the
Police Zone since the inception of the Mandate, and then revert to the

particular institutions of the different groups.

THE DEV.ELOPMENT SrncE 1920

89. Even before the first reserves were set aside by Respondent, pro
vision was made for the appointment of headmen for Natives who had
no tribal leaders, as appears from the fol1owing extract from the 1922
annual report:

"As the connecting link between the European officials and the
natives, headmen, elected by the people, are appointed by the
Government and receive a small salary. They are responsible for the
good behaviour of the people, settle civil disputes amongst them,

represent any grievances they may have and are, in fact, the
substitute for the old native chiefs. As a rule they are assisted by a
council of the leading natives ... In the urban locations which are
under the control of the municipalities, superintendents and headmen

are appointed and paid by the municipality concerned, subject to
the approval of the Administrator 1."
go. Subsequent to the setting aside of the first reserves, regulations for
their control were issued 2• In terms of Regulation I of these regulations

a magistrate has general control of the Native reserves in his district,
and possesses ail the powers and may perfonn ail the duties of a super
intendent. Regulation 2 makes provision for each reserve to be divided
into wards, if necessary, and for each such ward to be placed under the

contrai of a headman, who in turn falls under the control of a super
intendent, where one has been appointed, or of the magistrate of the
district 3• These headmen are chosen by the residents of their reserves,
or of their particular wards in cases where reserves have been divided
into wards, at representative meetings. Although the election of any head

man must be approved by the Minister of Bantu Administration and
Development 4, such approval is generally a formality.
The superintendent of a reserve is required to keep a register of all
Natives residing in or entering the reserve, and of the huts and the stock

of the occupants; to make allotments of land; to collect taxes and fees,
issue passes, supervise sanitation, brand stock, and generally to control
the reserve •
The headmen are required generally to assist the superintendent in the
carrying out of his duties in the control of the reserve 6• The Bantu

1 U.G. 21-1923, p. 9.
~ G.N. No. 68 of 1924 (S.W.A.), in The Laws of South West A/rica I924, pp. 57-63.
' Ibid., p.57.
4 Vide sec. 1 (a) of Proc. No. 15 of 1928 (S.W.A.), in The Laws of South West
Afrfoa I928, p. 58 read with Act No. 56 of 1954 (S.A.), inStatules ofthe Union of
South A/rica I954, pp. 559-565 and Proc. No. II9 of 1958 (S.A.), in The Laws of
S01dh West A/rica I958, pp. 133-141.
5G.N. No. 68 of 1924 (S.W.A.), Regs. 3 and 4, in The Laws of South West A/rica
I924, pp. 57-58.
6 Ibid., Regs. 6, 9, 19, 23, 24 and 29 (2), pp. 58-62. The duties and privilegesof

chiefs and headmen are also defined inG.N. No. 6o of 1930 in The Laws of South
West Africa I930, pp .•pS-424. COUNTER-MEMORIAL OF SOUTH AFRICA 127

Affairs Commissioner concerned may, after consultation with the superin
tendent, appoint any elected member or members of a Reserve Board 1
to assist any headman, either specially or generally, in the execution of
2
his duties •
91. For each proclaimed reserve in the Police Zone a Reserve Board
has beenestablished, which consists of the Bantu Affairs Commissioner of

the district, or the superintendent or welfare officer of the reserve, who is
chairman of the Board, the duly appointed headmen of the reserve, and
not more than six adult Native males elected by the adult Native males
·resident, or possessing substantial interests, in the reserve, from amongst

themselves. Such election takes place at a representative meeting
convened, after adequate notice thereof. at the instance of the Bantu
Affairs Commissioner or the superintendent 3•
This Board assists the superintendent generally in the development of
the reserve and, as already mentioned, any elected member may be

.appointed to assjst a headman in the execution of his duties.
The Board also discusses the question of the items to be included in the
Reserve trust fund draft estimates to be submitted to the Minister of
Bantu Administration and Development for his approval.

Under this system not only tht leaders, but also the ordinary tribesrnen,
are given an opportunity of participating in the management of their own
affairs.

92. During 1939 there was passed, with the approval of representatives
of the Herero group, the Natives Trust Funds Proclamation 4, which
established the Herero Tribal Trust Fund and authorized the Adminis
trator to establish the Dama, Nama and miscellaneous Native Tribal
5
Trust Funds by notice in the Gazette • The Proclamation also made
provision for the imposition of a levy on rnembers of a tribe, for payment
of the levy into the relative tribal trust fund, and for the rnoneys in the
fund to be expended "upon objects. whlch in the opinion of the Adminis.
trator 6 are in the interest, and calculated to promote the welfare, of the
7
tribe" • Provision was also made for the Administrator to summon from
time to tirne a council of the tribe consisting, inter alia, of nominated
chlefs, headmen, and elected representatives of Reserve and Location
Advisory Boards, to advise on the administration of the tribal fond or on
8
any other matter concerning the tribe or Native affairs generally •
93. To sum up, the steps taken to enable the Natives in the reserves in

1 Constituted by sec. 4 of Proc. No. 9 of 1924 (S.W.A.), in The Laws of South
West Africa r9z4, p. 41.
i Reg. 2 (b) of G.N. 68 of 1924 (S.W.A.), in The Laws of South West Africa r9z4,
1957 as amended by G.N. 198 of 1938 (S.W.A.), in The Laws of South West Africa

r938, p. 392.
1 Proc. No. 9 of 1924 (S.W.A.), in The Laws of South West Ajrica I924, p. 41.
• Proc. No. 23 of 1939 (S.W.A.), in The Laws oj South West Africa r939, pp.
222-232.
' Ibid., sec. 1 (r) and (2)pp. 222-224.
6 Now the Minister o{ Bantu Administration and Development, vide Act No. 56 of
1954 (S.A.), in Statutes of the Union of South Africa r954, pp. 559-56.5, and Proc.
No. n9 of 1958 (S.A.), in The Laws of South West Africa r958, pp. 133-141.
1 Prnc. No. 23 of 1939 (S.W.A.). sec. r (3) and (4), in The Laws of South West
Africa r939, p. 224.
' Ibid., sec.2, p.224.128 SOUTH WEST AFR{CA

the Police Zone to participate in the management of their own affairs are
the following-:

(a) For each proclaimcd rcserve headmen, duly elected by the residents
at a rcprescntative meeting, are appointecl to control the reserve
under the supervision of the supcrintendcnt.
(b) For cach such reserve a Reserve Board has bccn constituted which
consists of the Bantu Affairs Commissioner or the superintendent of
the rcscrvc, the duly appointed hcadmen and not more than six
electcd adult male Natives. This Board, apart from assisting in the

administration of the trust fund, assists the superintendent generally
in the dcvclopment of the reserve.
(c} In cach reserve an annual general meeting is convened to enable the
Bantu Affairs Commissioner to render an account of the administra
tion of the trust fund of the rescrve for the prcceding 12 months, and
to discuss better methods of carrying out the objects of the Fund.
(d) The practicc was initiatcd of holding scparate meetings annually,

undcr the chairmanship of the Chief Bantu Affairs Commissioner,
with nominated and elected reprcsentatives of the Herero, Dama and
Nama tribes 1, to givc advice on the administration of their tribal
funds, ifany, and to discuss and deal with any other matters con
cerning such tribes or Native affairs gencrally.
94. In addition, quarterly meetings are held rcgularly by Ban tu Affairs

Commissioners for the purposes of bringing to the notice of residents
details of the latest legislation, to give them a chance to discuss their
grievanccs and difficulties, and to provide for mutual consultation on
mattcrs concerning the inhabitants of reserves. For the last-mentioned
purpose annual meetings are also held by the Chief Bantu Affairs Com
missioner or his representative. Moreover, the Admin"istrator of the
Terri tory at various times visits the res~rves and holds mèetings with the

residents. In this way every effort has be,enmade to afford{the inhabitants
of the reserves ample opportunity of bringing requests, ,:omplaints and
difficulties to the notice of Respondent, j
95. The political institutions created for the groups concerned have
been designed so as to recognize their traditional outlook and at the same
time to meet their new needs. These institutions are consequently very

flexible in order to allow the groups sufficient scope to assume more and
more responsibility for their own affairs. ,

THE HERERO
2
g6. The 1904-1907 wars left the Herero landiess and without stock •
The effect wlùch the breaking up of the tribes had in the political sphere,
included not only the loss of tribal systems of government, but also of
most of their former leaders and sub-leaders. Apart from direct war
casualties, a large number fled the country, mainly to Bechuanaland, and
later <lied in exile: these latter included the paramount chief, Samuel
Maharero 3•

1 In the case of the Herero and Dama their representatives are the members of
the Tribal Councils constituted interms of Froc.No. 23 of 1939 (S.W.A.), in The
Laws of South West Africa I939, pp. 222-232.
2 Vide Book III, Chap. III, para. 84, of this Counter-Memorial.
3 VideWagner, G., "Sorne Economie Aspects of Herero Life", in A/rican Studies,
Vol. 13, No. 3·4 (r954), p.n8. COUNTER-MEMORIAL OF SOUTH AFRICA

It follows that when Respondent began to apply its policy of endea

vouring to restore tribal life under tribal leaders for the Herero, it was
severely handicapped and had virtually to start building up anew from
the very foundations.
97. The first step taken by Respondent, after appointing a few of the
leaders such as Hosea Kutako as headmen to maintain control and to

act as spokesmen for their people, and after collecting members of the
various tribes together, was to establish new reserves and to rnake pro
vision for the Herero in eight of these reserves, viz., Aminuis and Epukiro
in the Gobabis district; Waterberg East in the Otjiwarongo district;
ûtjituo in the Grootfontein district; Otjohorongo in the Omaruru district;
Ovitoto in the Okahandja district; together with Dama in Otjimbingwe
in the Karibib district, and with Dama and Nama in Tses in the Keet

manshoop district. Subsequently the Eastern reserve in the district of
Gobabis was set aside principally for Herero.
98. The establishment of these reserves gave the Herero places where
they could pursue their pastoral way of life with a minimum of ad
justment to changed conditions. Each of these reserves was placed
under the control of one or more headmen, assisted by a ReserYe Board

consisting of not more than six members elected by the residents. A
superintendent was appointed to each reserve to guide and support the
headmen and the Board in the execution of their duties, and to e:xercise
direct control in a number of matters where control by the headmen and
the Board could not be enforced.

99. The headmen are not vested with any powers under Native law and
custom. Respondent has intimated that it will take the necessary steps
to confer such powers on the headmen if the tribes concerned should so
wish, but although their leaders have repeatedly expressed the desire that
the management of tribal affairs should be placed more fully in their
bands, Respondent has been unable to inducc them to furnish details of
any schemc they may have in mind.

THE NA~A

100. After the 1904-1907 hostilitics some of the Nama tribes were stiU
permitted to use certain defined picces of land 1, but these were limited
and somewhat dispersed. At the inception of the Mandate the only Kama
permitted to occupy land were the Berseba, under Chief Goliath, and
the Bondelswarts under a Kaptein (Captain). Subsequently the rights of
Nama clans to the Soromas, Franzfontein and Zessfontein reserves were
2
recognized , while other Nama were accommodated in the Neuhof,
Tses, Gibeon (Kranzplatz} and Warmbad reserves.
In ail these reserves headrnen, elected by the residents, were appointed,
and subsequently Reserve Boards were set up.
ror. According to the annual reports for 1935 3. 1936 \ 1937 5 an·d
1938 6, the Chief of the Nama in the Berseba reserve proved to be un-

1
Book III, Chap. III, para.85,of this Counter-Memorial.
2 U.G. 'ZI-1924, p. 12.
1 U.G. 25-1936, paras.258-260, p. 44.
• U.G. 31-1937, para. 256,p. 43.
U.G. 25-1938, para. 320, p. 55.
U.G. 20-1939, para. 343,p. 50.I30 SOUTH WEST AFRICA

suitable and, in the interests and with the concurrence of the members
of the tribe, he was deposed. At the request of the residents he was
replaced by two headmen elected by them.

I02. Provision was made in the Natives Trust Funds Proclamation of
1939 1 for the creation of a Nama Tribal Trust Fund. The rnembers of
the group have, however, thus far been opposed to its creation, and
consequently a Nama Tribal Council cannot be convened under the pro
visions of the Proclamation. Informai meetings have nevertheless been

held with representatives of the group, and have served to teach the
representatives the principles of the functioning of a representative
body and to keep the authorities informed of the wishes of the group as
a whole. .

THE DAMA

103. Dama factions were occupying the Okombahe reserve under
the leadership of a chief, when Respondent took over the administration

of the Territory.
This position was left unchanged, but subsequently a Reserve Board
consisting of six members was appointed to assist the superintendent.
When other reserves were set aside, members of the Dama group took
up residence in the Neuhof, Tses, Franzfontein, Gibeon (Kranzplatz)
and Eastern reserves, and were given representation on the Reserve
Boards. Furthermore, a portion of Otjimbingwe in the Karibib district

was set aside for other Dama, and they have since then had their own
headman and three representatives on the Reserve Board to look after
their interests.
At a later stage the Aukeigas reserve was set aside for Dama, but it
was subsequently found to be too smalI for their needs and otherwise
unsuitable, and with their concurrence the residents were moved to an
extension of the Okombahe reserve. One member of the Board of Okom

bahe has been appointed to represent their interests.
I04. In an effort to build up a tribal community from a number of
disjointed units, and at the unanimous request of the Dama in the
reserves, a new leader with the official title ofOpperlioof (Supreme Chief)
was appointed a few years ago. The incumbent has since proved active in

working in the interests of the Dama and in developing a tribal spirit
amongst them.
105. Provision was made in the Natives Trust Funds Proclamation of
1939 2 for the creation of a Dama tribal trust fund, and the necessary
3
government notice to this end was issued some years ago •Even before
that time, meetings had been held regularly with representatives of this
group as if they constituted the Dama Tribal Council in tenns of the
proclamation, and since, meetings have been held with the properly
constituted council.

1Proc. No. 23 of 1939 (S.W.A.), in The Laws of S0utl1 West A/Yica I939, pp.
222-232.
2 Vide para. 92supYa.
3G.N. No. 1828 of 1958 (S.A.), iGovernnunt Gazette (S.A.), Vol. CXCIV, No.
6148, 5 Dec. 1958,p. 26. COUNTER-MEMORIAL OF SOUTH AFR1CA

H. Future Development

106. Respondent has given an acc1unt of the basic aspects and aims
of its policies in South West Africa • More specifically with reference to
political development, Respondent contemplates an evolutionary
growth of the traditional institutions of the various groups in a manner
which would permit each to develop towards possible self-determination
without, in the process, preventing self-deterrnination by others.
The success of Bantu authorities in South Africa has suggested that a

similar system may fruitfully be applied in the Territory-naturally
with the adaptations necessary to render it best suited to the peculiar
circumstances and conditions of the Territory and its peoples. Conse
quential amendments in the system pertaining to the White group may
also be neccssary, in order to avoid overlapping in what can now become
more strictly parallel processes of development. All these matters form

part of the topics under consideration by the Odendaal Commission,
which was appointed precisely because Respondent considers the tirne
to be ripe for accelerated advancement in these spheres 2• As soon as
the Commission's report is available, Respondent will give immediate
further attention to the matter, and will 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.

I. Respondent's Reply to Applicants' Allegations (Memorials)

107. In the succeeding paragraphs Respondent will deal with the
allegations contained in paragraphs 78 to 87 and n4 to 127 of Chapter
V of the Memorials 3 under the headings ''Background Information",
"Suffrage", "Participation in the Territorial Government", and "Govern
ment within the Native Tribes and Native Reserves", as well as with
the charges formulated on the strength of such allegations in paragraph
4
128 (1),(2), (5) and (6) of the same Chapter •

PARAGRAPHS 78-85 OF CHAPTER V~

108. Save for certain errors dealt with bclow, Respondent does not
dispute the background information tendered by Applicants in these
paragraphs. Respondent, however, states that this information is wholly

inadequate for the purpose of considering the situation with regard to
suffrage and participation in government in the Territory in proper
perspective. Information relevant to this purpose has been adduced by
Respondent in the foregoing parts of this Chapter and in earlier Chapters
to which reference has been made therein, and the specificallegations of
Applicants should be read against the background of the factual informa

tion supplied by Respondent.
109. In paragraph 84 Applicants allege that legislative powers which.

1 Vide Book IV, Chaps. IV to VII, of tbis Counter-Memorial.
2 Ibid.Chap. VII, para. 35, of this Counter-Mernorial.
'l, pp. 131-135and 139-142.
• Ibid.pp. 142-143.
' Ibid.pp. 131-134.
6Ibid.,p. r33. SOUTH WEST AFRICA
132

wcrc withdrawn from the Governor-General and the Administrator
in r949 were "restored" by the South West Africa Affairs Amendment
1
Act, 1951 • The impression created is not correct. Such lcgislative
powers, which were abrogatcd by Act No. 23 of 1949 from a date to be
prodaimed, lapscd on 17 October 1951 2.On the same day, however,
the Governor-Gencral was vested with powers to legislate hy pro
clamation by Act No. 55 of 1951 2,and there was therefore no break in
the existence of the powers and no restoration in such sense.

ln the samc paragraph, when dcaling with the allegcd '·highly sig
nificant" transfer of administration of Native Affairs, Applicants state
that the control over such administration "passed from the Adminis
trator to the Union Minister of Native Affairs (and the Governor
Gencral)" 3•And in paragraph 85, Applicants statc that "powers origi
nally held by the Administrator were passcd on to the Govemor-General

of the Union ... ""'·
These statcments tend to create a wrong impression. The adminis
tration of Native Affairs has at ail times been undcr the direct control
of Rcspondent's Government, the power of administration having been
vcsted in the Governor-General, who delegated such powers to the
Administrator as a representative of Respondent's Government, and
3
acting under the latter's instructions • Therc was no question of powers
"originally held" by the Administrator being "passed on" to the Gover
nor-Gencral. The effect of the transfer was merelv this: whcreas before
1955 the Governor-Gencral-in-Council controlléd and directed the
administration of Native Affairs through its representative, the Adminis
trator, the Governor-General-in-Council after 1955 controlled and

directed such administration through anothcr representative, the
Minister of Native Affairs (now designated the Minister of Bantu Ad
ministration and Developrnent) 6•

PARAGRAPHS 86 AND 87 OF CHAPTER V 7

IIO. In paragraph 86 Applicants deal with the rights of suffrage

within the Territory. The materia1 point emphasized by Applicants
in the paragraph is that only White persans are allowed to vote at an
election of members of the Legislative Assembly. And in paragraph 87
Applicants allege that non-Whites are excluded by law from serving as
members of the Legislative Assembly, the Executive Committee or of
the South African Parliament and excludcd by practice from being ap

pointcd as Administrator of the Territory.
Rcspondent does not dispute the allegations in the paragraphs under
consideration, but wishes to point out that these allegations concern
only political institutions devised and intended solely for the White
population group. As has been pointed out, the various population
groups were and are at different stages of development, and justice can

1
2 Act No. 55 of 1951 inStatutes of the Union of Soilth Africa 195pp. 404-408.
3 Vide para. 34, supra.
4 l,pp. 133-134.
Ibid., p.l34.
5 Videpara. 14, supra.
6 Vide para. 35, supra.
1 I, pp. 134-135. COUNTER-MEMORlAL OF SOUTH AFRICA l33

not be done to the legitimate aspirations of the various gTOUps,inter alia,
in the governmental sphere, by ignoring these differences. Provision has
therefore been made for the development of indigenous political institu

tions along lines familiar to the gTOupsconcerned and rooted in their
traditions and culture 1, while members of the White group participate
in a form of government which is in keeping with their political and
cultural backgTound and experience. Thus the threat of domination of

some by others is obviated, and the way is paved for further separate
development towards possible self-determination for each.

PARAGRAPHS u4, n5, 125, 126 AND 127 OF CHAPTER V

III. In these paragraphs 2 the Applicants set out the links that have
been established between the indigenous groups and the legislative and
administrative organs of Respondent. These allegations are not disputed,
but reference should .be made to the above description 1 of the develop

ment that has taken place in the field of government of the indigenous
gTOUps.

PARAGRAPH S n6, u7 AND nS OF CHAPTER V

3
n2. In paragraph n6 of Chapter V of the Memorials the Applicants
refer to some of the Po:wersconferred on the Administrator under section
1of the Native Admmistration Proclamation of r928 (S.W.A.) 4•In terms
of this section, in so far as it is relevant, the Administrator 5 is em

powered;
(a) to recognize or appoint any persan as a chief or headman in charge
of a tribe, etc. ;
(b) to remove any chief or headman found guilty of a political offence

or for incompetency or for other just cause, and to order his removal
to some other part of the Territory;
(c) to define the boundaries of the area of any tribe or of a location;
(d) to <livide existing tribes into two or more parts or amalgamate

tribes or parts of tribes into one tribe or constitute anew tribe;
(e) to order the removal of any Native tribe or individual from any
place to any other place in the Territory, whenever he deems it
expedient in the general public interest; and
(/) to exercise all political power and authority which, according to

Native law and custom, are held by a supreme or paramount Native
chief.
n3. The powers set out in (c), (d) and (e) above, are again referred
6
to by the Applicants in paragraph 139 of the Memorials , and will be
dealt with in Respondent's reply to the said paragraph 7•It will be shown
that these powers, as also the other powers conferred by section 1 of the

1 Vide paras. 38 ffsupra.
2 I, pp. 139, 141 and 142.
3 Ibid.,pp. 139-140.
• Pro&. No. 15 of 192S (S.W.A.} in The Laws oSouth West Afyiça r928. pp. 58-85.
' Now the State President: videAct No. 56 of 1954 inStatutes of The Union of
South ,!fricar954, pp. 559-565.
6 1, ~p. i46-i47.
7 Vi. 'e B, )k VI, Chap. III, paras. I ff., of this Counter-Memorial. SOUTH WEST AFlUC.-\
134

Proclamation, correspond to those enjoyed by any Native chief in South
Africa or South West Africa, by virtue of Native law and custom, in
relation to hcadmen and tribesmen subservfont to him, and that it. was
necessary for the system of tribal government under the control of a
modern head of State to recognize a supreme chief in charge of al! chiefs
1
and headmen, and to confer such powers upon him •
n4. As regards the powers set out in (a) and (b) above, it was neces~
sary, in the interests of the preservation and development of indigenous
political institutions, to make provision not only for the appointment,
but also for the deposition and removal, of chiefs and headmen.
As already stated 2,hereditary chiefs wcre in control of certain tribes
in the Territory when Respondent took over the administration of the

Territory. Most of these chiefs had had very little contact with modern
civilization, and were actîvely encouraging practices such as witchcraft,
child marriage, etc., which Respondent was obliged to eliminate in tenns
of the provisions of the Mandate.
It was moreover foreseen that some chiefs and headmen----especially
those in the remoter regions of the Territory, who had not previously
been subject to any control-might resent Respondcnt's control as
Mandatory and might become involved in seditious conduct. It was
consequently necessary to confer on the Administrator the power to

depose and remove chiefs found guilty of political offences.
n5. The necessity of providing for the powers under consideration,
is illustrated by the following instances in which they have been invoked:
(a) During 1934 there were complaints by the Tjimba in the Kaokoveld
that one of the Herero headmen had treated them harshly and

unjustly. After a full investigation, at which the complaints were
clearly proved, it came to light that the headman's actions had even
caused friction among the Herero themselves. The Administrator
was consequently obliged to remove him. This brought about a
considerable improvement in inter-tribal relations, as will appear
from the following extract from the 1935 annual report:
"314. There has been considerable improvement since the removal

of Headman Thomas .Mutate, whose harsh and unjust treatment of
the Ovatjimba gave constant rise for complaint on the part of the
·latter and at the same time caused friction between the Hereros
themselves 3."
(b) In 1938 ît became necessary to depose Chief S. Mamili of the Eastern
Caprivi Zipfel for the reasons set out in the 1938 annual report:

"He had been warned on several occasions against practising
witchcraft, but he ignored all these warnings. In many other ways
too he had proved himself quite unfitted to rule the tribe. As there
is no suitable person to take his place as Chief, the Administration
has decided to substitute a board of six headmen, and nominations
for the filling of these posts are now under consideration 4."

ln 1939 the chief was re-instated at the request of some of the
headmen and members of his tribe.

1 Vide Book VI, Chap. III, para. I33, of this Counter-Memorial.
2 Vide paras. 40 ff.supra.
3 U.G. 25-1936, para. 314,p. 47.
• U.G. 20----1939para. 420, p.57. COUNTER-MEMORlAL OF SOUTH AFRlCA 135

by Clùefl pumbu ofOvamboland, which compelled the Administrator
to depose him in 1932. The effect of his removal was thus statcd in
the 1932 annual report; "Since the removal of Ipumbu an atmos
phere of peace prevails throughout Ovamboland 2."
(d) Reference has also been made 3 to the circumstances under which

the clùef of the Nama in the Berseba reserve was deposed w.ith the
concurrence of members of his tribe.
(e) In 1933 it was discovered that a chieftainess of the Okavango Native
Territory had been aware of cases of child marriage in her tribe,
and had actually condoned this practice. Although she was not
deposed, she was punished by having payment of her stipend 4

stopped for six months. and this action had a salutary effect.
II6. The case of Chief Ipumbu 5 mar also be used to illustrate the
necessity of providing for the removal o a deposed chief from the tribal
area. Rad lpumbu been allowed to remain in his tribal area, there would

have been divided loyalty in the tribe-because of his being of "royal"
blood-and clashes would in all probability have occurred. In this regard
the Native saying "you cannot have two bulls in one kraal" is apposite.
n7. The powers under section I of the Proclamation as regards chiefs
are now vested in the State President, while those in respect of headmen
6
are vested in the Minister of Ban tu Administration and Development •
n8. As has been pointed out , ail headmen are elected by the residents
of their reserves, and their appointment is usually a mere formality.
In terms of the provisions of the regulations framed under the Procla
6
mation a public enquiry before some senior official is always ordered
if charges are made against a headman. At such enquiry the headman is
told that he is at liberty to cross-examine all witnesses testifying against
him, to give evidence himself and to bring supporting evidence in his
defence. The matter is, therefore, not disposed of summarily, but only

after careful investigation and with the support of the majority of the
members of the reserve.
As far as can be established, the power to order the removal of a
deposed headman has never been exercised. Not possessing any support
from a hereditary point of view, such a deposed headman is not likely, by
his presence, to be a danger to peace and good order in the reserve.

n9. The fact that decisions under this Proclamation are taken at the
highest level and only after careful investigation, consultation and con
sideration, aflords substantial protection against arbitral')' action and
abuse of the powers conferred by the Proclamation. It is, therefore, not

surprising that no instances of abuse of the powers conferred or of

1 Vide para. 46,supra.
l U.G. 16---1933, para. 417, p.75,
s Vide para. 101,supra.
4 Stipends were at that time pa.id to chiefs in the Okavango. Subsequently the
practice was discontinued with the concurrence of t]le chiefs.
' Vide para. ns (c), supm.
6 Act No. 56 of 1954 inStatu/es of the Union of South Africa r954, pp. 559.565

and Proc. No. u9 of 1958 in The Laws of South West A/Yica 1958, pp. 133.141.
8 Vide paras. 48 and 90,supra.
By virtue of G.N. No. 6o of 1930 (S.W.A.), in The Laws of Soulh West A/rica
r930, PP· 4r8-425.136 SOUTH WEST AFRICA

arbitrary action have ever occurred, or that the Applicants have been
unable to refer to a single instance of this nature. ·
120. ln paragraph u7 of Chapter V of the Memorials 1the Appijcants

refer to section 2of the Proclamation in terms of which the Administrator
{nowthe State President) is not subject to acourt of law for or by reason
of, inter alia, any exercise of the powers conferred by section I.Section 2
is again referred to by the Applicants in paragraph 139 of Chapter V
of the Memorials 2 and will be dealt with in Respondent's reply to the
3
said paragra ph •
121. In paragraph u8 of Chapter V of the Memorials the Applicants
create the impression that the Administrator may delegate his powers
to Native commissioners and magistrates. This is not the case, as section

3 of the Proclamation merely provides that the "orders and directions"
of the Administrator "may be carried into execution by or under the
supervision" of the officiaisnamed by the Applicants.

PARAGRAPH u9 OF CHAPTER V

122. The powers mentioned in this paragraph 1 are again referred to
in paragraph 138of Chapter V of the Memorials i, ln replying to the latter
paragraph Respondent will show that these powers were conferred in the
5
interests of the Natives •

PARAGRAPH I20 OF CHAPTER V

1
123. The allegations contained in this paragraph are not disputed,
although it may be pointed out that there are actually r8 magisterial
districts in the Police Zone. In I7 of these distrkts the magistrate serves
ex otJicioas Bantu Affairs Commissioner, and in the 18th district, Groot
fontein, because of the importance of Native administration in that

district, a full-time Bantu Affairs Commissioner undertakes the adminis
tration of Native Affairs.
The aspect of the control of Native administration within urban areas
will be dea]t with in Respondent's rep7 to the Applicants' allegations
under the heading "Local Government" .

PARAGRAPH!S 21 AND!22 OF CHAPTER V

124. The statements in these paragraphs 7 are correct, save that all

posts of welfare officershave been converted into those ofsuperintendents,
and that the headman is always, and not ordinarily, as stated by the
Applicants, a Native. The whole system of indigenous political insti
tutions has been set out above 8, and the statements in the paragraphs

l 1,p. 140.
2 Ibid., pp.146-147.
3 Vide Book VI, Chap. III, paras. 140-145, of this Counter-Memorial.

• Ibid.,p. 146.
s Vide Book VI, Chap. III, paras. I 15-120,of this Counter-Memorial.
' Vide Chap. III, infra.
7 1, pp.140 and 141.
a Vide paras. 38 fi.supra. COUNTER-MEMORIAL OF SOUTH AFRICA I37

under consideration should be read in the light of the background

sketched and the fuller information there fumished.
I25. As regards the power to dissolve a Reserve Board and to dismiss
its members, it bas been conferred for similar reasons as in the case of
the powers to depose Native chiefs and headmen 1• To date no Reserve
Board has e•,er been dissolved, and it is unlikely that the power will be

invoked in the future unless a Board refuses to fonction at ail. The power
to dismiss a member has been made use of very sparingly, and only
after the receipt of complaints from the residents of a reserve followed
by a public enquiry held by an official.

PARAGRAPH 123 OF CHAPTER V

126. The allegations contained in this paragraph 2 are disputed, since
the headmen and the members of the Native Reserve Boards do not in

fact represent the sole participation of Natives in the administration of
the reserves, nor are they "wholly under the control of the 'European'
officials".
I27. Ashas been explained 3,the o.rdinary tribesmen are encouraged to
participa te in the management of their own affairs by being given every

opportunity to speak at meetings in the reserves and to discuss and make
suggestions for the inclusion of items in the draft estimates of their
reserve trust funds. Then, too, the practice was initiated of holding
separate annual meetings of the representatives of the Herero, Dama and
Nama.
Although it is correct that magistrates 4have general control of the

Native reserves, these officialshave consistently encouraged the headmen
and the residents to assume full responsibility for the propcr control of
their reserves, and where such responsibility has been assumed, the
superintendent concerned rnerely supervises their actions.

PARAGRAPH 124 OF CHAPTER V

128. The füst sentence of this paragraph 2 refers, inter alia, to the
guidance, supervision and control exercised in respect of the functioning

of indigenous political institutions in the reserves outside the Police Zone.
As has been explained 5, the officiais appointed by Respondent in the
northern areas fonction largely in an advisory capacity, and for ail prac
tical purposes the tribes concemed govem themselves, at least intemally.
129. The latter portion of the paragraph under consideration merely

contains a repetition of certain provisions of section 1.of the Native
Administration Proclamation, whtch are also set out in paragraph u6 of
Chapter V of the Memorials, and which have been dealt with in Respon
dent's reply to that paragraph 6.

1 Vide para. I r4, supra.
2 I,p. r4r.
3 Vide paras. 84 ff., supra.
• In the district of Grootfontein the full-time Bantu Affairs Commissioner.•
5 Vide, e.g., paras56 and 57, supra.
6 Vide para. u2, supra. SOUTH WEST AFRICA

P.o\RAGRAPH r28 (r), (2),(5) AND (6) OF CHAPTER V

130. The charges contained in these sub-paragraphs 1 have been set out
in paragraphs 2 and 3 of this Chapter, and need not be repeated.
The charges emanate in part from the premise that the whole popu
lation is to be treated as an integrated unit, with identical rights for all,
in the sphere of political activity. Respondent has demonstrated that this
premise is wholly unfounded, in fact and in law 2, and that Applicants

have made no attempt to substantiate or even explain it with reference
to the classification of South West Africa as a ''C"Mandate, the diversity,
stages of development and other factual conditions pertaining to its
peoples, or the likely effeétof such an approach, if adopted, on the well
being and progress of such peoples 2 •
In part the charges proceed from ignoring, or failing to appreciate, the

significance of the manner in which systems of self-government amongst
the indigenous groups, rooted in their traditions and culture, have been
fostered, shaped and developed, so as to form an appropriate basis for
adaptation to further development towards possible self-detennination
for each group.
Upon removal of these fondamental errors in the approach adopted by
Applicants, it will be perceived that no basis remains for the crucial
charge that Respondent deliberately and in bad faith "prevents the

possibility of progress by the 'Native' population toward self-respect,
responsibility or skill in any aspect of citizenship or govemment" 3•
Respondent n;spectfully submits that its exposition of the policies
applied in South West Africa, of the political institutions of the various
groups, and of the policy and steps under way for further development
towards appropriate self-realization, with justice for all, in the political

sphere, amply demonstrates that the above charges on Applicants' part
areunfounded and without substance, and that the same applies to the
further assertion that Respondent "offers no horizon of hope to the
'Native' population" 4.

1 I, pp. 142-143.
: Vide paras. 7 and 8, supra, and earlier passages there referred to.
3 1, para. 128 (6), p,143.
" Ibid., para.190, p. 162. CHAPTER II

GENERAL ADMINISTRATION(CIVIL SERVICE)

A. Introductory

1. Applicants' charge in tlùs regard is that "At the administrative
levels of the Government of the Territorv, in the Public Service, the
participation of the 'Natives' is minimal. \Vith few exceptions, 'Natives'
are confined to the lowest levels of employmcnt, involving neither skill
nor responsibility" 1• Applicants allege that:

systcmatic and active program which prevents the possibility of
progrcss by the 'Native' population toward self-respect, responsi
bility or skill in any aspect of citizenship or government, whether
Territorial or local or tribal ."

2. Applicants further allege that Respondent has "deliberately, sys-
tematically and consistently, ... discriminated against the 'Native'
population of South West Africa ... "; that Respondent "has thwarted
the well-being, the social progress and the development of the people
of South West Africa throughout varied aspects of their lives ... " in
cluding territorial government at the administrative levels; that "The

grimlast and present reality in the condition of the 'Natives' is unre~
lieve by promise of future amelioration", and that Respondent "offers
no horizon of hope to the 'Native' population" 3.
3. In dealing with the factual basis on which these conclusions are
sought to be founded, Applicants allege 4 that the general administration

of the Territory is governed by the Public Service and Pensions Act,
1923 5, as applied to the Territory. They point out that the public service
of the Territory and that of South Africa constitute a single integrated
service, but that the salaries and allowances of those officiais assigned
to duty witlùn the Territory, are paid by the Territory 4•

4. Applicants stàte· that the public service includes "ail persans in
the employment of the Government of the Union ... or of the mandated
territorv" and that it is divided into five main divisions, which are set
out 6•TheMemorialsproceed that "the Public Service, in the strict sense,
does not include the Administrator of the Territory, persons employed

in the Railway Administration, teachers serving under the Adminis-

1 1,para. 128 (3).p. 142.
2 Ibid.,para. 128 (6),p. 143.
' Ibid., para. 190, p. 162.
• Ibid., para. 88. p. 135.
' _\et No. 27 of 1923, in Statu/es of the Union of South Africar9z3, pp. 256-309.
6 l, para. 89,p. 135. SOUTH WEST .-\FRICA

tration of the Territory, part-time or temporary employees, or any
other persan whose post may be excluded by the direction of the Gov
1
ernor-General" • (Italics added.)
5. Applicants allege that, in terms of the Public Service and Pensions
Act, 1923, only a South African citizen, a citizen of a Commonwealth
country or a citizen of the Republic of Ireland, are qualified for ap
pointment to the public service, and then only after three years' residence
2
in South Africa or in the Terri tory •After stating that in practice parti
cipation by Natives in the gcneral administration does not appear to
be excluded, they allege that "With few exceptions, however, their
participation appears to be confined to the lowest and Ieast skilled
categories" 3• With reference to the territorial budgets for 1946-1954,
Applicants allege that the extracts given by them are a "fair sample"
of what they call a "... practice of 'job-reservation' for Natives" in the
3
various departments. branches and divisions of the public service •
Then follows a list of such extracts relative to the following departments
of the Public Service:
(a) Agriculture;
(b) Customs and Excise;

(c) Works, Buildings Branch;
(d) Justice-three branches of this department;
(e) Lands, Deeds and Surveys; and
(/) Posts and Telegraphs 4•
6. With a view to proper perspective, certain background and sup

plementary. information requires to be fumished prior to specific replies
being givcn. to the various allegations.

Bi The Position Prior to the lnception of the Mandate

7. Under the German colonial regime the government of the Territory
was entirely in the hands of White German offi.cials,except for a minimal
employment of Natives in the police force and as messengers and labour
ers in various other departments.
The Native population was almost entirely illiterate and, by reason
of outlook resulting from traditional systems of government, unsuited
for employment in the civil service of the Territory. When Respondent

assumed the Mandate, the Native population therefore formed no part
of, and had no training or experience in, any of the branches of the
public service.

C. General Policy

8. The general administration or civil service is a sphere in which
particular significance attaches to the contemplation of the Covenant
that the Territory "... can be best administered under the laws of the
Mandatory as integral portions of its territory" 5, and to th!i corres-

1 I,para. 94, p. 136.
2 Ibid.,para. 95.p. 136.
' Ibid., para.96. p.136.
• Ibid., paras.97-105, pp. 136-137.
5 Art. 22 (6) of the Covenant. COUNTER-MEMORIAL OF SOUTH AFRICA
141

ponding provision of the Mandate that the Mandatory "... may apply
the laws of the Union of South Africa to the territory, ,;ubject to such
local modifications as circumstances may require" 1•

9. On assuming the Mandate Respondent sought to carry out its
obligations to promote to the utmost the material and moral well-being
and social progress of the inhabitants of the Territory through a system
of indirect rule, as far as this was practicable, in regard to the indigenous
inhabitants. This policy entailed recognition of the traditional systems
of government of the various groups. And where the traditional systems
of government had been impaired-and often completely destroyed
prior to Respondent's assumption of the Mandate, Respondent sought,
in the first place,to re-establish such governmental institutions.

At the same time Respondent sought to encourage members of the
non-White population groups to enter the civil service and to acquire
the educational standards required for advancement in the service
particularly in those aspects of the service in which such persons could
play a useful and even leading part in the development, progress and
advancement of their own population groups. At first progress was,
inevitably, slow, but already the efforts of Respondent in the past are
beginning to bear fruit, and, as will be shown later on, ever-increasing
numbers of non-Whites are being absorbed in varions branches of the

Service. The fact that today practically ail of the most senior posts
in the Service are still occupied by White officiais, docs not, as will be
shown, reflect a policy of suppression of, or unfair discrimination against,
the Native peoples, but is due to the historiai factors to be dealt with
below.
10. ln view of the differences between the varions population groups,
and their past history, it has not been practicable to treat the înhabitants

as one integrated nation for administrative purposcs. As Lord Hailey
has stated:
"At the inception of the Mandatory system the position of the
native peoples presented problems which were peculiar to the t~rri
tory, and for which it would not be easy to find a parallel in; the
other Mandated territories in Africa.... They are diffcrences due
not only to the character and traditions of the native peoples, '.but
to the physical conditions which must determine their econqmic

development 2." .
IL Respondent, therefore, considered it to be in the best interests
of all the inhabitants of the Territory to treat each groupas a separate
entity for administrative purposes as far as this appeared to be feasible.
ln the case of the White group, this meant offering them opportunities of
employment in a civil service as known to them in their countries of

origin. In the case of the Native peoples, to whom such a service was an
unknown thing, it meant beginning with due recognition of their tra
ditional systems of govemment, guided and assisted where necessary by
White officiais, and to promote suitable development as from that
starting point.
The guidance of such White officials in the Native Reserves has been

1
Art. 2of the Mandate for German South West Africa.
lished], p. 3.y. A Survey of Native AOairs in South West Ajrica (r946) [unpub142 SOUTH WEST AFRICA

directed primarily towards the modification and adaptation of the
traditional systems of government, where necessary or desirable, to
meet the exigencies of a modern and changing world. The role of such
offi.cials is purely of a transitional character and Respondent hopes
that it wil! be possible to dispense progressively with these White offi
cials in the administration of the Native areas, until they are replaced
altogether by members of the groups concerned.
12. This policy was stressed, with particular reference to the public
service, by Respondent's Minister of Bantu Administration and Develop

ment in a dcbate in the House of Assembly during 1961. Although he was
referring to Rcspondent's policy in the Republic of South Africa, this
coïncides in the respect under consideration with Respondent's policy
in South West Africa. The Minister said:
"... we wish to guide these vaiious national groups as rapidly as
possible towards managing their own affairs ... I should like to see
!hem building up their own public service as rapidly as possible so
that the varions aspects of their national lite can be handed over to
them so that theycan control them themselves '."

13. When Respondent assumed the Mandate, there were very few
Native inhabitants of the Territory who could participate effectively
in the general administration of the Territory. Their stage of develop,.
ment was not such that they could qualify to fil! any of the responsible
posts in the public service, and consequently White officiais had to be
usoo.
In order, however, to encourage the Native people to paiticipate ln
the administration of the Territory, and more particular!y to progr~ss
more rapidly towards the eventual management of their own affairs,
Respondent adopted the policy adumbrated above.. Not only did this

policy have the effect of giving preference to members of a particular
group when it came to appointments to posts designoo to serve that
group, but it also served to minimize racial or group prejudice and fric~
tion which tend to arise in certain situations where members of one group
exercise authority over members of another.
Moreover, if this policy had not been pursued, non-White candidates
would probably not have qua!ified for appointment to most of the
public service posts in the Terri tory.
14. In order to maintain an efficient civil service adequately to serve

the needs of the inhabitants, a certain educational standard must be
required of a civil servant, and such standards have in fact been laid
down, as will appear hereafter. One of the factors which, in the past,
has made it difficult for Respondent to absorb more Natives izito the
public service of the Territory, has been the Jack of proper educational
qualifications among prospective candidates. In order to overcome this
difficulty Respondent encourages Native students to acquire the requisite
qualifications, as will appear more fully in that portion of this Counter
Memorial dealing with education. Respondent has also, as will be shown,
set a lower standard of educational requirements for Natives in certain
instances so as to encourage and enable them to enter the public service.

15. The basic outlook on life arising from traditional and customaiy
modes of living, has made it difficult for the Native peoples readily to

1 U. ofS.A., Pari. Deb., HousofAssembly, Vol. 1 (1961)Col.7995. COUNTER-MEMOR[AL OF SOUTH AFRICA I43

adjust themselves to the exigencies of an efficient civil service designed

to meet the needs of a progressive modern society. The transition from
the erstwhile African way of life to the present form of society, inevitably
involves a considerable problem of personality adjustment for the Natîves
concerned-a problem which has exercised Respondent's mind in the
past an~ which will ~ontinue to require careful thought. and experimen
tation, as well as co-operation between Respondent and Native leaders.

Respondent hopes that an educative process on a broad scale will
contribute largely to a gradual solution of this problern.

i D. The Public Service Act

16. The Public Service and Pensions Act, 1923, referrcd to by Appli

cants in their Memorials has been repealed and superscded by the
Public Service Act, 1957 1• This Act does not govern "... ail persons
in the employment of the Government of the Union ... or of the man
dated territory" as alleged 2, inasmuch as there are large numbers of
public servants appointed by the South West Africa Administration and
paid from administration funds who do not fall under the Public Service
Act. That part of the public service of the Territory, however, which is

subject to the Public Service Act, 1957, does form an integral part of the
public service of the Republic of South Africa, despite the fact that, while
serving within the Temtory, the salaries of the public servants concerned
are paid by the Territory. Those public servants who do not fall under
the Public Service Act do not form an integral part of the public service
of the Republic of South Africa. They nevertheless require to be taken

into account relative to Applicants' charges that Respondent is deliber
ately thwarting progress on the part of the Native inhabitants at the
administrative levels of the Govemment of the Territory 3•

E. The Public Service Commission

17. Section II (3)of the Public Service Act, 1957, provides that:
"In the fillingof any post or the making of any appointment in the
public service, due regard shall be had to the qualifications, relative
merit, efficiency and suitability of the persons who are eligible for

promotion, transfer or appointment •."
18. These injunctions fall to be carried out by a body known as the
Public Service Commission, which is an independent body created by
the Act and primarily responsible for maintaining the high standard of
proficiency required for the proper working of an efficient civil service 5•
The Commission, inter alia, makes recommendations regardîng the

establishment or abolition of departments in the service; the number
and grading of posts on the fixed establishment; and the scales of salaries,
wages and allowances of the various classes and grades of officers and

1
Act No. 54 of 1957, in Statutes of lhe Union of South Africa r957Part II (Nos.
45283), pp. 794-859.
3 1, para. 89, p. 135.
Vide paras. 1-2, supra.
• Act No. 54 of 1957, sec. II (3), iSlatules of lht Union of Soulh Africa 1957,
Part Il, pp. 820-822.
' Ibid., sec. 4p. 802.144 SOUTH WEST AFRICA

employees. It also recommcnds particular people for appointment or
promotion to posts in the civil service 1• The actual appointment or
promotion is, howcver, decided upon by the Minister of the depa':rtment
concemed or by the Administrator 2, but subject to such conditions as
3
the Public Service Commission may prescribe •

F. Division of the Public Service under the Public Service Act, 1957

19. The "public service", which is governed by the Public Service
Act, 1957, is divided, in terms of the Act, into the following seven
4
divisions : i
(a) Administrative Division;
(b) Clerical Division;

(g) The Services.
Certain qualific;itions have been laid down by the Public Service
Commission for appointment to posts .10 :the various divisions, and

thcse requirements are generally insisted upon, save that Respondent
has, in certain cases, reduced the necessary qualifications in order to
appoint certain Native officers to particular posts. Such cases will be
dealt ,\ith more fully hereafter and the reasons for Respondent's actions
will be explaincd.

1. THE ADMINISTRATIVE DIVISION

20. The Administrative Division comprises the senior administrative

posts in the public service, and posts in this division can only be fi!Ied
by promotion from the clerical grades. Normally from 10 to 15 years
must be scrved in such clerical grades before an officer is promoted to the
Administrative Division

li. CLERICAL DIVISION

21. Candidates for appointment as clerks in the Clerical Division
must have passed the Matriculation examination of the Joint Matricu
lation Board or an examination which is of a standard equivalent to
or higher than the Matriculation examination 5• Female typists in the

clerical division are required to be in possession of a Junior--or equiva
lent-Certificate 6,in addition to the Public Service Appointment
Certificate in Typewriting or an equivalent typing qualification, i.e., a
qualification requiring a standard of at least 35 words per minute.

1
Act No. 54 of 1957, sec. II (3), in Statutes oj the Union oj Sou.th Africa r957,
Part II,pp. 808.812,
2 Ibid., sec10, p. 820.
l Ibid .. se11, p. 820.
• Act No. 54 of 1957, op. cit.sec. 3 (1}, p.800.
5 This is the final schooJ.Jcaving examination in South Africa and South West
Africa.
6 An examination two years below the Matriculation examination, also known as
Standard VIH. COUNTER-MEMORIAL OF SOUTH AFRtCA 145

Ill. THE PROFESSION AL DIVISION

22. The Professional Division, as its name implies requires pro
fessional qualifications for appointment to its ranks. So, for example,
a candidate is required to have at least a B.Sc. degrec, with at least one
major subject in the direction in which he seeks employment, before
qualifying for entry into posts such as Assistant Profcssional Officer in

Animal Husbandry, Biochemical Research, Dairying, Extern.ion,
Fisheries, Home Economies, Marine Research or Pastures and Soil
Chemistry. A candidate for appointment as an Engineer, Grade III
(Civil or Mec'hanical), must have a recognized University degree in the
appropriate direction or be an A.M.I.C.E. 1 So too, candidates wîshing
to enter the public service as architects or quantity surveyors arc rc

quired to be in possession of a University degree, and to be rcgistcred
with their respective Institute or Chapter.

IV. TEcHNtCAL D1v1s10N

23. The Technical Division of the public service consists of tech
nically trained officials who do not qualify for the profcssional group.

It includes both skilled and semi-skilled workers. Candidates for entry
into this Division require certain technical qualifications in the direction
in which they seck employment. For example, a draughtsman (carto
graphie, civil or mechanical engineering, architectural or telecommuni
cations) or a computer, requires a diploma (or equivalent qualification)
in the appropriate field. Candidates in possession of a Matriculation

certificate which includes mathematics and certain scicntific subjects,
can acquire the necessary qualifications for a permanent appointment
by the successful completion of a four-year course of in-service training
as a pupil technician.

V. GENERAL DIVISIONS A AND B

24. AU posts not dassified under the other divisions of the public
service mentioned above, or under the services 2,fall into what is known
as the General Division, which is itself divided into an A Division and a
B Division. The main distinction between the two is that the holder of a.
post in the General B Division may be discharged from the service upon
the recommendation of the Public Service Commission simply by the
giving of a prescribed term of notice varying with the length of service,

whereas an official in the General A Division may only be discharged
for certain specified reasons or after an adverse findmg at a departmental
enquiry 3• ., • ?
25. The Public Service Commission determines which posts shall fall
in the Generat A and which in the General B Division 4, and does so

on consideratiori of the nature of the work to be done and of factors
of expediency regarding the method of discharging the incumbents. So,

1 Associate Membérof the Institute of CivilEngineers.
2 Vid1 para. 26, infra.
5 Act No. 54 of 1957, sec. 14 (9), iStaluleso/ theUnion of Sowth Africar957,
Part Il, pp. 830-832.
• Act No. 54 of 1957,op. cil.sec. 3(2),p. 800. SOUTH WEST AFRICA

for examp1e, principals of Bantu Youth camps, fingerprint officers, and
labour officers are classified under the General A Division, while building

clerks, cooks and fire officers fall under the General B Division.

VI. THE SERVICES

26. The Services consist of the Permanent Defence Force, the Police
Force and the Prisons Service. The Prisons Service in South West Africa,
however, does not fall under the Public Service Act, 1957, but directly
under the South West Africa Administration.

The normal requirements for a candidate seeking appointment in this
branch of the Public Service are that he should be at least 16 years old
and in possession of at least the Junior Certificate or its equivalent.

G. Early Attempts by Respondent to Introduce Natives into the Public
Service

27. The ear1y attempts by Respondent to introduce Natives into the
civil service generally, and the difficulties encountered in the process,
are reflected in Respondent's annual reports to the League of Nations
and in discussions of the Permanent Mandates Commission.
28. In 1925 Respondent reported that:

"Natives are employed in the Public Service as Interpreters and
Messengers, but they are not suffi.cientlyeducated for employment in
clerical posts. They are also employed in the Police 1."
29. In 1928 Respondent stated:

"Certain posts in the public service are open to natives. They are
enrolled as members of the South West Africa Police Force, are em
ployed as warders in the prisons branch, and as native hos.Pital assist~
ants and posts as interpreters are filled by them. Native mterpreters
in magistrates offices usually perform minor clerical duties, but no
natives occupy administrative posts in the public service 2."

30. At a meeting of the Permanent Mandates Commission in r935 it
is recorded that Lord Lugard asked-
"whether any of the more intelligent natives in South West Africa
knew Afrikaans or English and could qualify for subordinate posts

under the Govemment; he noted that the magistrates had to use an
interpreter". ·
Replying to the question Dr. Conradie, the then Administrator of South
West Africa, said:

''... some ofthe natives knew some English or Afrikaans or German;
but they were not prepared to venture on a speech. Most of the
magistrates did not know enough of the local language to converse
with the natives in their district, and, in the case of s~ech, they
found it best ... to employ the services of an interpreter ."

31. Again in 1937 at a meeting of the Commission, M. van Asbeck
asked whether there were any educated Natives occupying higher posts.

1 U.G. 26--1926, p. 104.
z U.G. 22-1929. p. 7.
3 P.M.C., Min., XXVII, pp. 170-171. COUNTER-MEMORIAL OF SOUTH AFRICA 147

Mr. Courtney Clarke, Respondent's accredited representative, replied in

the negative, and went on to say that "There was a difficulty in obtaining
educated natives even for such posts as interpreters and teachers" 1•
32. The League of Nations was, therefore, kept informed of the
difficulties with which Respondent had to contend in regard to in

troducing Natives into the general administration of the Territory.
Despite these difficulties, however, Respondent has persisted in its
efforts, and today a considerable improvement in the position exists,
not only in thenumber of Natives in the public service, but also in the
standard of their qualifications and consequent advancement in the

service. Examples of such improvement are given below.

H. Developments in Certain Specific Branches of the Public Service in
General

l. NATIVE AFFAlRS

(a) General

33. On assumption of the Mandate Respondent excrcised its adminis
trative functions in respect of Native Affairs through the Administrator
of the Territory, assisted by an Advisory Council 2•When the Legislative
Assembly of the Territory was called into being 3,the adnùnistration of

Native Affairs was expressly excluded from its powers 4• Respondent
continued to exercise control in this regard through the Administrator
acting as Respondent's representative and subject to Respondent's
instructions. As from I April 1955 Respondent exercised this control
mainly through its Minister of Native Affairs, now designated as the

Minister of Bantu Administration and Development '· and consequently
the Chief Bantu Affairs Commissioner, stationed at Windhoek, and ail
the officers employed by Respondent in the administration of Native
Affairs, now fall under the direct control of the Secretary for Bantu
Administration and Development in Pretoria.

(b) Administration Outside thePoliceZone

34. Outside the Police Zone, where the traditional institutions and
forms of government of the various Native peoples were still intact at

the commencement of the Mandate, Respondent SL·ught to govern
through these institutions, with the guidance of individual Native Com
missioners. No more than 17 White officiais (four Native Commissioners,
three Administrative officers, eight clerks and two Agricultural personnel}
are employed by Respondent in the area outside the Police Zone. In this

1 P.M.C., Min., XXXI, p. 118.
2 Proc. No. 1 of 1921 (S.W.A.), in The Laws of South West Africa r9r5-r922.
pp. 493-495.
l Act No. 42 of 1925, sec. 1 (1), iThe Laws of South West AMca, Vol. 11 (1923-
1927), p. 2. •
4 Ibid.,secs. 25-26,pp. 14-16.
5 Act No. 56of 1954, in Statutesofthe Union of South Africa 1954, pP. 559-565,
and Proc. No. II9 of 1958 (S.A.), in The Laws of South West Africa r958, Vol
XXXVII, pp. 133-141. SOUTH WEST AFRJCA

area Respondent employs 483 Native officiais, and recognizes a further
81 who act as chlefs, headmen or tribal councillors 1•
35. Details of the policy adopted by Respondent in the areas outside

the Police Zone were conveyed to the League of Nations in more than
one of Respondent's annual reports. The following extract may be
referred to in the annual report for 1928:
"In Ovamboland and on the Okavango River native chiefs and

headmen control the natives under the guidance of the Native Affairs
Officersof the Administration. Tribal law and custom are followed 2."
36. In the discussion of this report at a meeting of the Permanent

Mandates Commission, Mr. Werth, the then Administrator of South
West Africa, in rcplying to a question from Lord Lugard concerning
the staff of the Administration employed outside the Police Zone, saîd:

"The Commission would therefore see that the policy followed in
Ovamboland at the moment was one of indirect government. The
Administration employed there a few responsible men to advise the
chlefs and to maîntain their authoritv as the head of the tribe. The
3
Officer-in-charge had about 50 natives on his staff to assist him ."
37. As has hecn shown above 4, the number of Natives employed by
Respondent in the administration of thesc areas-including the ad
ministration of the tribal trust funds-has increased considerably since

1928.
38. As recently as 1956 Lord Hailey referred to Respondent's system
of administration of these areas, as follows;

"There is nowhere in the Union where the African is more self
sufficient in his way of life and less affected by contact with Euro
peans. The only lands held by Europeans are those occupied by

missions; the number of European shops is reduccd to a minimum.
There is no poli tax .... Looking at the situation of these terri tories
as a whole, the Native Commissioners appear to have achieved
with success an unobtrusive system of persona! rule 5."

(i) fo the Native Reserves

39. The system of indirect rule applied by Respondent to the Native

areas outside the Police Zone, was also extcnded to the Native reserves
within the Police Zone, as far as circumstances would permit of its
practical application. This general policy was descrîbed to the League
of Nations in Respondent's 1937 annual report, as follows:

1 The officiais mentioned are divided as follows: Amongst the Bushmen I White
and 3 Natives; amongst the Ovambo 7 Whites and ro7 Natives (including 3 chiefs

and 18 hcadmen); in the Okavango 3 \\'hites and 366 Natives (including5 chiefs
and 2 headmen); in the Kaokoveld 3 \Vhites and 37 Natives (including 25headmen);
in the Eastern Caprivi 3 \Vhites and 51 Natives (including 2 chiefs and 26 council-
lors). ·
2 U.G. 22-1929, p. 7.
3 P.M.C., Min., XIV, pp. 84-85.
4 Vide para. 34, supra.
5 Lord Hailey, An Africa11 Sun:ey: Revised 1956 (1957), p. 43ï· COUNTER-MEMORIAL OF SOUTH AFRICA

"The objective of the native affairs officers of the Administration
in South West Africa has been as far as possible not to interfere with
native organization or customs as far as they were not in conflict with
good government, and to allow the native people to develop gradu

ally. adopting European custorns and methods in place of such
of their own customs and habits as they are brought to realise from
time to time are unsuitable to the changed conditions of life 1."
40. Referring particularly to the conditions and administration of the

Native reserves within the Police Zone, the same report said that:
"Inside the Police Zone, native affairs are administered by the
Native Commissioners in each district and where therc are native
reserves in the district, aWelfare Officeris stationed ineach reserve....

These latter officers are provided with official motor transport and
assisted by native interpreters and police. They fumish monthly re
ports to the Chief Native Commissioner through the local Native
Commissioners ... In the larger reserves they are assisted by Euro
pean handymen paid out of the Tnist Funds 2."

41. Since 1937 the White handymen referred to in the report have
been replaced by trained Native handymen, and additional Native arti
sans--e.g., masons, motor vehide drivers, cooks and dinical assistants
-have been added to the reserve staffs within the Police Zone.

At present Respondent employs 14 White officiais, who act as super
intendents of the various reserves, and whereas in 1937 there were
II2 Native officials (who, however, included 30 headmen and 66 reserve
board members) there are now 238 Native officiais (who include 3I
headmen and 74 reserve board members) 3• ln addition fi.ve White
agricultural officers and five White superintendents of works attached

to the office of the Chief Bantu Affairs Commissioner in Windhoek, are
continuously employed to assist the Native peoples bath within and
outside the Police Zone.

42. In pursuance of Respondent's policy of treating the varions
groups as separate entities for administrative purposes as far as this
proves practically feasible 4,preference is given to members of the par
ticular group when it cornes to an appointment to a Post designed to
serve that group. Thus Herero are given preference in appointments to
posts in the Herero reserves, Dama to those in the Dama reserves and

Nama to those in the Nama reserves.
43. This policy is designed to enable each group as far as possible
to administer its own affairs, and necessarily entf,lils that the number
of White officiais must be progressively reduced as more and more

1
U.G. 2.5-1938, para. 303, p. 50.
i Ibid., paras.283-284, p.46.
' These officiais are divided up as follows:
In In In In
Herero l)amara Nama Mixed Totals
Reserves Reserves Reserves Reserves
White Officiais 2 3 14
Native Offici,i.ls II 18 17 133
Headmen 3 4 9 31
Reserve Board
Members ll 2I
4 Vidt paras.u-13, supra. 35 7 74 SOUTH WEST AFRICA

Native candidates become available to fillthese posts. Furthennore, as
the various groups progress economically, more administrative and
technical posts will have to be created, which will likewise be·made
available to members of the respective groups intended to be served
thereby.

(ii)Outside the Native Reserves

44. Within the Police Zone and outside the Native reserves the
magistrates of I7 magisterial districts act ex offtcioas Bantu Affairs
Commissioners, and there is at least one post on the staff of each of these
rnagistrates designed to deal exclusively with Native affairs. These posts
are available to, and willbe filled by, properly qualified Natives as and
when they become available. In the aistrict of Grootfontein a Bantu
Affairs Commissioner has been appointed and he bas a staff of seven, of
whom three are Natives.
So too, in Windhoek, where an Assistant Bantu Affairs Commissioner
functions in addition to the magistrate, a staff of eight deals exclusively
with Native affairs; and of thern five are Native and three White officiais.

(iii)In the Urban Areas

45. In the administration of Native affairs within the urban areas
of the Territory, where such administration falls within the purview of
the urban local authorities 1, progressively more and more Natives are
being appointed to posts invo1ving ever-focreasing responsibility. At
present such urban authorities employ 66 White officiais in the Native
urban residential areas throughout the Territory and 358 Native officiais.
Of these latter, many are employed as municipal policemen-II sergeants
and 74 constables-office clerks, location foremen, location inspectors,
social workers, nurses and drivers of municipal motor vehicles.
46. In an the instances mentioned above the number of Natives em
ployed has increased considerably during the years, and so too bas the
standard of the posts occupied by Natives-posts fonnerly held by
White officiais.The reason for not employing even more Nahves in the
administration of their own affairs is a lack of suitably qualified persons.

Il. DEPARTMENT OF lNFORMATlON

47. The Department of Information, which also falls directly under
the control of Respondent, employs seven information officers within
the Territory, of whom four are White and three non-White.

III. THE POLICE FORCÉ

48. One of the methods adopted by Respondent to encourage the
Native population to participate more fully in the public service of the
Territory, and thereby to gain experience for the eventual administra
tion of their own areas, was to encourage men to join the Police Force.
Respondent considered that the experience gained in this field would
serve also to assist the Native peoples in adapting themselves to the

1 Vide Chap. III.infra. COUNTER-MEMORIAL OF SOUTH AFRICA 151

changing circumstances of their society by acquainting them with the
legal standards of modern civilizatîon.

49. In practice, however, Respondent was faced with the problem
mentioned in paragraphs 14 and 15 above, viz., a lack of adequate
educational qualifications among prospective recruits. This, however,
Respondent regarded as one of the instances where it would be possible
to lower the educational qualifications demanded for entry, and to rely
on in-service training to a considerable extent, without incurring a risk

of serions diffictùties arising from such a course.
The minimum qualifications for all Native recruits in the Territory
were therefore set at Standard II 1.instead of Standard VIII which
applied in the case of European recruits. The standard of promotion
examinations was also reduced-and in certain cases dispensed with
altogether-so as to enable Native oflicers to advance to higher ranks.
Despite these measures, the posts of chief sergeant and senior ser
geant 2 can still not be filled by Native officers, because of the lack of
qualifications rendering them suitable for such posts.

50. The position of the Police Force in the Territory in 1937 was
referred to in the discussions of the Permanent Mandates Commission
during that year. The relevant extract from the minutes of the meeting
reads as follows:

"M. Sakenobe [asked] ... Were the police mainly European?
Mr. Courtney Clarke replied tbat they were mainly European; but
there were native constables, corporals and sergeants, by whom
European police oflicers were commonly accompanied in the
performance of their officialduties 3."

51. Since 1937 the number of Native policemen has increased con
siderably. In that year Respondent employed 371 police officers inside
the Police Zone, of whom 205 were White and 166 non-White. At present
the Police Force inside the Police Zone consists of 594 officers, of whom
323 are White and 271 non-White. Outside the Police Zone four police
stations have recently been established and these stations are manned
by 24 police officers of whom 12 are White and I2 non-White.

52. Respondent continues to encourage the Native inhabitants of the
Territory to join the Police Force by making the conditions of employ
ment more attractive. It also seeks to encourage members of the force
to improve their educational standards so as to qualify for promotion
to the higher ranks. Whereas forrnerly recruits in South West Africa
did a three-months' initial training course at their district headquarters,
after which they were enrolled as constables, they are now trained at
institutions in South Africa where they undergo the same training as
that which is prescribed for the South African recruits.

The first promotion examination-that from constable to sergeant
may be taken after three years' service. Further promotion examinations
may be taken at two-yearly intervals. All recruits are encouraged to
study, and are given weekly lectures in an effort to improve their educa
tional qualifications.

1 I.e., the fourth schoot year.
2 A police sergeant is often the senior officer in charge of a police post.
' P.M.C., Min., XXXI, p. 134. SOUTH WEST AFRICA
152

IV. THE PRISONS SERVICE

53. Natives are also employed as warders in the Prisons Service in
the Territory. New recruits receive in-service basic training from non
White instructors under the supervision of Wlùte commissioned officers.

They are trained in all aspects of prison administration.
54. Out of a total complement of 108 employees in the Prisons Service
in the Territory 61 are non-White. Ail these non-White persans are
employed as warders of varying ranks. Provision exists for a non-White
warder to rise to the rank of senior chief warder, but as yet no suitably
qualified candidates for this rank are available and the highest rank held
by a non-White employee is that of chie! warder.

V. THE NURSING PROFESSION

55. In the nursing profession, too, considerable difficulty has been
experienced in obtaining sufficiently interested and qualified Native
women to enter the profession. Respondent has been compelled ta
appoint non-White nurses !rom South Africa to posts in South West
Africa, and many White nurses have still to serve the non-White groups
in the Territory.

56. The Permanent Mandates Commission discussed the nursing pro
fession in 1923 and the foUowing rernarksappear in the relative report:
"Sir F. Lugard asked whether any natives were employed as
hospital assistants.
Major Herbst replied that a number were employed in the govem
ment hospitals, though not as trained assistants. The natives were
not sufficiently advanced to be capable of receiving professional
1
instruction ."
57. ln certain instances the difficulties experienced by Respondent in
its endeavours to educate the indigenous peoples to an acceptance of
the need for adequate health services went deeper than appeared !rom
the above-mentioned discussion in 1923, and are reflected in Respon
dent's annual report to the League for 1927 where Respondent stated
as follows:

"The question of supplementing the European medical service
among the native population by means of trained native assistants is
one of considerable difficulty toward the. solution of which a great
deal of thought and attention have been directed for some years.
The main obstacle to progress in this direction is the attachment to
custom and tradition which at present remains as strong among the
detribalized as among the rest of the nati"e population. Experience
in the various parts of the Territory has shown that, in spite of the
facilities for treatment offered at the varions Government and other

institutions, native methods are alrnost invariably resorted to in the
first instance in nearJy all cases of sickness and m matemity work.
Treatment in such cases is carried out by the older members of the
group or family against the wisdom of whom the methods and
experience of younger members trained under European supervision
are not tolerated for a single moment. When the customary

1 P.M.C., Min., III,p.Il t. COUNTER-MEMORJAL OF SOUTH AFRJCA 153

measures fail or when complications arise·it is time enough to seek
European advice. The result is that the more intelligent young men
and women, apart from preferring the comparatively free and easy
life offeredby domestic and other service, are disinclined to seek
employment which may possibly bring them in conflict with family
tradition 1."
2
58. As stated elsewhere in this Counter-Memorial , a scheme for the
training of non-European auxiliary nurses was introduced in the Terri
tory in 1959, when training schools for such nurses were established at
the state hospitals at Windhoek, Grootfontein, Otjiwarongo, Gobabis,
Walvis Bay, Keetmanshoop and Luderitz.
The minimum scholastic qualification originally laid down for non
European girls to train as auxiliary nurses was Standard IV'· as against
Standard VIII as a pre-requisite for training as general nurses. It was
soon found, however, that girls with only a Standard IV certificate
could not cope with the theoretical part of the training, and the mini
mum requirement for admission to the course was accordingly raised
in 1961 to Standard VI.
59. Despite the low qualifications required, and despite the reduction
of the duration of the course froro a period of three years as originally
fuced, to 18 months, the response has been poor. In 1959, for example,
there were only 29 applicants for 64 posts for non-European auxiliary

nurses at the Windhoek State Hospital, and nearly one-third of the
applicants were from South Africa.
Since the inception of the course 97 non-European girls have qualified
as auxiliary nurses in South West Africa. While there are at present 196
posts for non-European auxi.liary nurses at state hospitals in the Police
Zone, and many more will be created when the new state hospital in
Okatana in Ovamboland, which is now in the course of construction, has
been completed, there are only 69 pupil nurses from the Territory in
training as auxiliary nurses at state hospitals.
60. Outside the Police Zone Respondent has not been successful in
directly assisting Native women to become trained nurses, by reason
of their lack of educational qualifications, but for the last 30 years
the Finnish Mission in Ovamboland, assisted by subsidies granted by
Respondent, has been training Ovambo women at the Mission Hospital
at Onandjokwe to become assistant nurses. This hospital was approved
as a training school for auxiliary nurses by the Nursing Council in 1961.
At present there are 27 auxiliary nurses in training at this centre.
Respondent's scheme of subsidizing such mission training centres outside
the Police Zone has been extended to other mission hospitals as well.

61. The small number of non-European girls with the necessary
qualification. (Standard VIII) and who are interested in nursing as a
profession does not as yet justify the establishment of facilities for the
training of non-European generalnurses in the Territory. For those who
are desirous of following such a course of training, there are ample
facilities in South Africa 4•

l U.G. 31-1928, para. zz7, pp.IOI•IOZ,
2 Vide Book VII, Chap. VI, paras. 6-8, of this Cou-nter-Memorîal.
, The certificate obtained after completion of the sixth school year.
4 Vide Book VII, Chap. VI, para. 9, of this Counter-Memorial. SOUTH WEST AFRICA
I54

VI. THE TEACHING PROFESSION

62. As indicated elsewhere in this Counter-Memorial 1 the teaching
profession affords yet another example of insufficient Native candidates
with the minimum educational qualifications available to enter the pro
fession. To stimulate interestin this respect and encourage more entrants
and thereby to promote the education of the indigenuos peoples as much
as possible through members of their own group, who would be best able
to understand and appreciate the child's cultural background, Respon
dent was obliged for many years to allow admission to teacher training
courses to Native students who had only a Standard Il certificate (i.e.,
completion of the first four years of the primary school course). In I947
the minimum requirement for admission to the training school at the
Augustineurn was raised to Standard III. By 1952 the position had im
proved to such an extent that the minimum requirement could be raised
to Standard VI in the Police Zone, and, by 1961, also outside the Police
Zone. As more Natives ohtain higher educational qualifications it is
hoped that the standard will eventually be raised until it is the same as
that for the White pupil teachers, who usually proceed to training schools
or Universities in South Africa after obtaining a matriculation certificate
(i.e., Standard X).
63. These measures have resultcd in the nurnber of non-White teach
ers increasing insidethe Police Z1Jnefrom 44 in 1922, to 135 in1940, and
to 385 in 1961. Outside the Police Zone there were 294 non-White
teachers in 1924, mostly untrained, whereas in 1961 there were 644
trained non-White teachers.

VH. lNTERPRETERS

64. By reason of the number of different groups to which the non
White inhabitants of the Territory belong, and the diversity of lan
guages spoken by them, much use is made of Native interpreters through
out all branches of the civil service. These interpreters are permanently
employed in the civil service and are graded into varions grades accord
ing to their educational qualifications and general experience.

VIII. ÛTHER BRANCHES OF THE PUBLIC SERVICE

65. Natives are also employed to a greater or lesser extent in other
branches of the civil service, but, owing to the prevailing lack of proper
educational qualifications, without attaining any great advancement.
The nature of the responsibility involved in these branches has mostly
made it impracticable for Respondent to lower the minimum qualifi
cations for entry as it has done in other branches.
Respondent, however, continues to encourage the Native peoples to
raise their educational standards, and, as and when they do achieve
the requisite degree of education, their horizon for absorption and ad
vancement in the civil service must expand considerably. That Respon
dent's policy is not one of inhibitionlf.orsuppression in this regard, can
be demonstrated by the wider field ot opportunity which is open to the
Natives in the Republic of South Africa, where the standards that have

1 Book VII, Chap. V, paras. 23 to 29, of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA 155

been achieved in regard to development of the indigenous peoples ate,
for various reasons, considerably in advance of those in South West
Africa. Not only are there Bantu Professors and lecturcrs at the Bantu
University Colleges, but in the schools Bantu inspectors and supervisors

are appointed, Bantu matrons and Bantu nursing sisters serve in hospitals
and Bantu magistrates and postmasterS are also appointed in Bantu
areas. In the urban areas within the Republic, local authorities employ
Bantu technicians and senior Bantu administrative clerks. Respondent s
policy envisages similar development in South West Africa, but at
present Respondent is still seriously hampered by the dearth of educa
tionally qualifi.edcandidates for appointment to such posts.

I. Comparison with Other Territories in Africa

66. Up to the close of the Second World War the higher range of
public service posts~and also, to a very large extent, the medium range
of posts-in the administrative services of most African countries

administered by European powers, were staffed by Eurorean officials.
This was due not to any policy of repressing or neglecting the legitimate
aspirations of the indigenous Native groups, but rather to the lack of
indigenous candidates with the necessarY. education, experience and
outlook to perform such duties satisfactonly.
67. The above was the conclusion reached by, and stated in the report
of, a commission a:ppointed by the British Colonial Office in 1947 to
enquire into the civil services of Keriya, Tanganyika, Uganda and
Zanzibar. Dealing with a contention advanced in evidence before it,
"directed towards the breakdown of what is called racial discrimination

and introduction of a system whereby ail posts in the seryiçes are thrown
open to competition, thesuccessful candidates receiving the same salary,
irrespective of race or colour"-a system usually referred to as "equal
pay for equal work" -'--theCommission reported as follows:
"79. , .. the doctrine of equal pay for equal work loses any validity
it may otherwise possess unless the words 'equal work' are construed
as meaning work of equal quality. On such a construction, in the
field with which we are concerned, the doctrine fallsto the ground.
Taking first the African vis-à-visthe Asian, it would be true to say

that, subject to individual exceptions, the African is at the present
time markedly inferior to the Asian of the same educational qualifi
cations in such matters as sense of responsibility, judgement, appli
cation to duty and output of work.
8o. This statement is no mere expression oi opinion unsupported
by evidence or argument. On the contrary, the view which we have
expressed has received the overwhelming endorsement of our witnes
ses on this matter, not least of those who are most anxious to further
the advancement of the i\.frican. Apart from this, its truth is es
tablished beyond question by hard facts. Big business concems in
East Africa employ larg~ numbers of Asian clerks. Someofthemalso

employ relatively few African clerks at salaries wb.ich,though by no
means niggardly when judged by {~~ general wage-earning capacity

1 Repm of theCommission on theCivil Services of Kenya. Tanganyika, Uganda
and Zan.tibar z947-48Colonial No.223,para. 74, p. 24. SOUTH WEST AFRICA

of Africans, are very much lower than those paid to Asians. Com
panies such as these, being concems conducted for profit, may be
presumed to be unlikely to squander money on the overpayment of
their employees. The question, therefore, to which those who may
challenge the truth of our assertion must find an answer is 'Why, if
the average African clerk is as competent as the average Asian, do
not commercial and industrial firms displace the Asian by the African
since it would be greatly to their financial advantage to do so?'

81. Comparisons of this sort are invidious and distasteful, but
they must be made if only to bring home to the African the fact that
the discrimination of which he complains rests not on racial but on
other and more fundamental grounds, and to show him why we are
unable to accept hisplea for 'equal pay for equal work' as a sound
foundation on which to build a salary structure.
82. In making these observations, nothing could be further from
our thought or our intention than any belittlement of the extent of
the African's achievement up to the present time. It has to be re
membered that the indigenous peoples of the three mainland terri
tories are removed by little more than fifty years from a state of

society far more primitive than that of Britain at the beginning of
the Cluistian era-a society which was completely illiterate and
necessarily so, since no alphabet existed, a society with few, if any,
exceptions, ignorant of the wheel, the plough and the loom, a
society in which the only rule was the rule of the spear or of the
sorcerer.
83. With such antecedents it would be idle to expect to find in the
African of today those qualities of mind and character which go to
the making of a good civil servant developed in any marked degree.
· Indeed, it seems tous a matter for remark that in half a century the
African who cornes within our purview as an actual or potential civil
servant bas advanced as far as he has rather than a matter for
adverse comment that he has not advanced further. How such
further advancement is to be achieved, whether by insistence in the

field of education on the development of character rather than on
the acquisition of a school certificate, by greater stress being placed
on technical education as opposed to an education which produces
a much large number of aspirants for 'white collar' jobs than for the
technical posts, or by the further development of native councils
with the encouragement which they provide to the African to take
an interest in community problems, is a matter of speculation which
far transcends our terms of reference. But achieved it must be if the
African's own aspirations are to be realized and the declared policy of
the Colonial Office as enunciated in Colonial No. 197 fully imple
mented, without detriment to the efficient administration of the
several services 1."

68. It was, however, generally recognized in these non-selfgoverning
territories-as it was in South Africa and in South West Afric~that
it was desirable, from a practical as well as from an ethnical point of view,
to employ as many educated Natives as possible in the service of their

1 Report of the Commission on the Civil Services of Kenya, Tanganyika, Uganda and
Zan.ribarI947-48,op. cit., paras. 79-83, p24-25. COUNTER-MEMORIAL OF SOUTH AFRICA 1 57

own groups. Efforts were accordingly made in most of these countries
to open as many avenues of employment in the public service to these
groups as was practicably possible. The limiting factors in what must
necessarilybeaslowprocess, if administrative efficiency and the interests
of the population generally are not to suffer unduly, were the shortage of
suitably qualified candidates. The following remarks by Lord Hailey

exemplify this:
''It was stated in 1955that theGovernment of Northern Rhodesia
had proposed to create posts for Africans in the Administrative
Services, but that no candidate had as yet came forward with the
nccessary qualifications 1."

69. In this regard reference may also be made to a 1963 report on
the economic development of Kenya by a mission organized by the
International Bank for Reconstruction and Development at the request
of the Governments of Kenya and the United Kingdom. In the course
of the report the Mission says:

"The availability of an adequate supply of human skills in Ken:•a
willdepend at least for a number of years not only on education,
but also on the presence of non-Africans, both in the civil service
and in private activity. Most of the technical and professional ser
vices ... are now proviçled almost exclusively by them. They are the
main source of experience for the management of organized industry

and the government services. For the expansion of education,
reliance must be placeo primarily on non-Africans for sorne years to
corne ."
70. As further indications of this lack of adequately qualifi.ed per
sonnel in various territories in Africa, which necessarily reduces the
rate at which the people as a whole can progress, the following may be

cited:
(a) The 1958 Official Report on Swaziland contains, inter alia, the
following information:

"There are no Universities in Swaziland nor, because of the size
of the Territory and its small population, can any developments in
this direction be contemplated.
Seven Swazi students are studying at Pius XII University College
at Roma in Basutoland, one has begun bis medical course at the
Durban Medical School, and two are enrolled at the Goromonzi
High School in Southern Rhodesia where they will follow a Cam
bridge Higher Certificate Course with a view to entering the Univer
3
sity College of Rhodesia and Nyasaland ."
(b) The I957 Official Report on the Bechuanaland Protectorate, whlch
borders on South West Africa, states that "... only I3 students
obtained the Prirnary Lower Certificate" during that year \

71. Respondent bas sought to increase the facilities for education
and vocational training for the indigenous peoples of South West Africa,
and, as has been shown, Respondent has been able in recent years to
raise the standard of qualifications in the teaching profession and also

l Hailey, An African Survey (1957), p. 368.
2 The Economie Developmenl of Kenya (1963), p. 37,
3 Swaziland: Report for the Year 1958 {1959), p. 33.
• Beû1"4ru1.la11ProkctoriJle: Report for the Year 1957 (1958), p. 46. SOUTH WEST AFRICA

in othcr branches of the civil service. 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-incrcasing. share in the

public administration of the Territory. lt is also the avowed policy of
Respondcnt to encourage the Native peoples so to qualify themselves
as to bring about full participation in all aspects of the public service
designed to serve their particular groups.
72. Progress towar<lsthis ideal is, however, slow by reason of the
practical obstacles already refcrred to, and also experienced by other
colonial administrations in Africa. In the light of the diversity of popu
lation groups in the Territory, and the various stages of development
at whichthey stand, Respondent has considcred it not to be in the general
interest of the inhabitants of the Territory to seek to ''Africanize" those
sections of the civil service serving the Native population at the same
tempo as has been attempted in certain other territories in Africa.
Respondent rather seeks to absorb gradually more and more of the
indigenous people into the civil service, and to encourage therh to·take
over antl control all aspects of their national lifc as soon as possible,
without scrious disruption in the efficient functioning of the Service. ·
73. That the wisdom of such a policy was also recognized·by other
administering Powers before the pressure of African nationalism dictated
other courses appcars, e.g., from the writings of George H. Kimblè in
Tropical A/rica. After dealing specifically with the progress of "African
ization" in Nigeria, he goes on to say:

"Elsewhere in British Africa progress has been much slower. This
we may take it, is partly because the demand for Africanization has
been weaker, and partly because the British-i;eafarers that they
are-helieveaconvoycansafelyproceedonlyatthespeedoftheslowest
unit, and in such tetritories as British Somaliland, Bechuanaland,
Tanganyika, the Rhodesias and Nyasaland some of the units are
barely under way. But not many African leaders are greatly inter
ested in safety; they wouldn't be leaders for long ifthey were.
The other admimstering powers have tended to take the view that
the cost of too hasty Africanization in inefficiency, inequity, and in
creaseà taxation is one that no colonial territory should be called on
to bear; that their job, firstand last, it to run a 'tight ship'. To
them, this bas meant manning it with the best-qualified people, irtes
pective of race 1.''
74. The dangers inherent in a policy of premature Africanization
were foreseen by the Commissioners enquiring into the civil services of
Kenya, Tanganyika, Uganda and Zanzibar, referred to above 2• In the
course of their report they sound the following,waming:
"We sense a danger that in a laudable désireto enable Africans to
participate to a greater extent than at present in the public services,
governments may be tempted to seek to replace Europeans by Afri
cans with inferior professional or technical qualifications. Nothlng, in
our view, could be more inimical to the future interests of the terri-

1 Kimble, G. H. T., Tropical Africa{196o),Vol. II, Society and Polüyp.356.
2 Vide para.67, supra. ! COUNTER-MEMORIAL OF SOUTH AFRICA I59

tories or, indeed, taking a long view, to the interests of the Africans
themselves 1,"
75. In 1956 Lord Hailey also recognized the fact that:

"Whatever may be the merits of a policy which has in recent years
conceded so large a measure of political advance to the British
dependencies in Africa, it is obvious that the transfer of power is
finding some of them without an indigenous machinery which is
adequately equipped for their administration. This may prove to be
a very serious obstacle to the smooth working of the new consti
tutions 2."

76. An example of the consequences of indiscriminate Africanization
and the dangerous implications involved for the welfare of the popula
tion in general, can be derived from the following recent statement
by the Minister of Law of the Federation of Rhodesia and Nyasaland
regarding the administration of justice in the self-governing colony of
Nyasaland:
"Up to now people with little if any legal training or experience

have been appointed to the bench. A law school has, however, been
established for the purpose of giving a 'crash' training of three
months to prospective judicial oflicers ... Following the pre-existing
practice in Native Authority Courts, legal practitioners were not to
be given the right of audience in cases between Africans. When the
Bill was before the Legislative Assembly Dr. Banda said that in
cases where the jurisdiction of the courts was extended to Europeans
they would be allowed the privilege of having the services of their
legal advisers if they chose to do so. He warned them, however, that

if a European exercised this right he would be assumed by Africans
to be guilty.
In July this Ordinance has been amended so as to extend its appli
cation generally to Europeans. At the same time the opportnnity was
taken to deprive them of the right to the assistance of their legal
advisers unless the Minister of Justice sees fit to order otherwise. In
the course of the debate on the Bill Dr. Banda stated that if lawyers,
magistrates and judges were allowed to ron courts according to the
European idea, then justice would not be seen to be clone in this
country 3."

77. A further warning against over~hasty Africanization is contained
in an article br a Nigerian Chief, H. O. Davies, Q.C., a graduate of the
London Schoo of Economies, now practising law in Lagos, Nigeria, and
former President of the West African Students Union, entiUed "The
New African Profile". In this article he says, inter alia:

"There is an ever-present danger of overdoing 'ization' of the
administrative service. Where this has happened, and there has been
a breakdown in efficiency, the new State has had to rehire expatriates
on much less favourable terms than were available initially 4."

1 RepOYtof th8 Commissiun o,athe Civil Services oKenya, Tanganyika, Uganda
and Zannba,. r947-48, Colonial No. 223, para. gr, p. 27.
~ HaHey, An Af~ican Sun,ey(1957), pp. 289-290.
3 Federal G01!e1'nmenPt,.ess Statement 726/63/DER(30 July 1963), pp. S-g.
• Davies, H. O., "The New African Profile"', in Foreign AUafrs (U.S.), Vol. 40,
No. 2 (Jan. 1962), p. 300. SOUTH WEST AFIUCA
16o

78. Reviewing the progress made during the decade 1947-1957, a
United Nations publication entitled Progress of the Non-selfgoverning
Territories states, inter alia:

"At the beginning of the period under review, the broad employ
ment structure of the public services in many Territories, particu
larly in Africa, was one in which European officers occupied the
senior positions, Europcans and, in some African Territories, Asians,
largcly or wholly manned the middlc grades of tcchnical and clericaJ
appointments, and indigenous persons occupied the subordinate and

unskilled posts.
In some of these Territories, separate sections of the public service
with distinct wage and salary scalcs and other conditions of employ
mcnt existe<l for diffcrent classes of employees on the basis of race,
cven though admission to senior posts was open to persons of all
races. In other Territories, where the principie of non-discrimination
in public cmployment was not only accepted but generally applied,

there was a preponderance of officers recruited from abroad in the
senior ranks of the services, owing to the lack of qualified indigenous
candidates. In the past few years more specific recommendations and
programmes have been adopted in a number of Territories in order
to increase facilities for training and higher education, to establish
unified public services and to bring about full participation by the
local inhabitants in the public services ."

79. Despite these increased educational faci\ities and despite the vast
sums of money spent on the training of prospective civil servants in a
delibcrate high-priority policy of Africanization, even at the cost of
efficiency, most African States still rely heavily on European civil ser
vants to maintain the structure of their administration. In Senegal,

the most advanced territory in the former French West Africa, the
following was stated as in 1962: "In the secondary schools, for example,
only 17 out of 253 teachers are African. This situation in Senegal is not
uhusual; it exists in all African countries 2."
80. In Tanganyika the staff list of officers in the civil service in 1954
3
cont~ined only five Natives • The subsequent resu1t of a· deliberate
polîcf of Africanization of this service a:ppearsfrom the following extracts
from Afriéan One-Party States referred to above:
"In the 1950swhen the Tanganyika govemment finally opened the
upper ranks in the administration to Africans, it had difficulty in
finding personnel; few Tanganyika Africans possessed the required

university education. Although this requirement was subsequently
modified and training grades were introduced, the entry of Africans
was not rapid enough for local opinion. After 1957 in particular,
Africanizat10n of the administrative service becarne a major rallying
cry for TANU, and public opinion pressed especially for African
ization in the posts most exposed to contact with the public ... The
number of Africans in senior posts increased from II2 in 1956 to

453 in 1960 out of a total senior service of approximately 3,000

' U.N. Doc. ST/TRI/SER. A/15/Vol. 3,pp. 23-24.
2 Carter, G. M. (ed.)Ajrican One-Party States (1962),p.132.
3 The Economie Development ofTanganyika (1961),p. 348. COUNTER-MfsMORIAL OF SOUTH AFR[CA 161

persons. In the district administration upcountry, howcver, there
1
were in 196o only 15 Africans in senior posts ."
"In practice, it seems generally admitted that Africanization has
affected the efficiency of the Tanganyika civil service, though to what
extent remains a malter of debate 2."
81. Lord Hailey also says:

"In the Gold Coast the numher of Africans holding posts -in a
variety of Civil Services which wcre formerly classified as 'senior'and
were held by Europeans, rose from 171 in 1949 to 916 in 1954, but
as the total number of posts had increased, the percentage of Afri
cans had risen only from IO to 36 3."

The Gold Coast (now known as Ghana) becamc independent in 1957,
but in June 1959 therc were stiH more than 900 expatriatcs in the
Ghanaian Civil Service, and in addition several expatriatcs were em
ployed as engineers, architects, and technologists of all kinds in "devclop
ment posts" ~.

82. Nigeria is usually regarded as an exception to the criticism that
the Native peoples of the former British, French and Belgia.n colonial
territories have not been adequately prcpared for the administrative
responsibilities thrust upon thcm as a result of recent developments.
Lord Hailey, however, wrote in 1956:
"Already there are beginning to appear signs of a serious danger to
the efficiency of the Administration as a whole owing to the growing

insistencc, especially in the Eastern Region, on a rapid process of
Africanization of the superior administrative and departmental
posts. This was a not unnatural outcome of the campaign for self~
~overnment; but it is clear that there is at the present time no
mdigenous personnel available to replace the former occupants of
these offices 5,"
"... In Nigeria, although the Constitution of 1951 brought

Higher Civil Service appointments under Federal control, the
Western Region Govemment attempted to exercise a veto on
appointments of Europeans by refusing to authorize the payment of
the expatriation allowance which European officers rece1ve in addi
tion to the salary of the post. ln Eastern Nigeria a subsequent effort
of the sante kind led to a minor constitutional crisîs in 1955 when the
Govemor used his 'reserve' powers to 'certify' a budget grant for
certain expatriate officers whose posts the Regional Government

was seeking to retrench ...
The 'Nigerianîzation' of the Public Service had been the settled
policy of the Administration for several years. It was, however, em
barrassed by the fact that there were still an inadequate number of
qualified Nigerians to fill posts on the senior staff. ln the middle of
1954 there were only 824 Nigerians on the senior staff out of an
establishment of 5,127 (exclusive of the Railways). That there were
even so many Nigerians qualified for this grade of service is largely

1 Carter.op. cit., p46r.
% Ibid., p. 463.
3 Hailey, An A/rican Suroey (1957), p. 368.
• Kimble, op, cit., p356.
5 Hailey, An A/rican Suro~y (1957), p.314. SOUTH WEST AFRICA

due to the award of 385 scholarships by the Nigerian Govemment
during 1948 and the following years and to the measures taken to
raise the College at Ibadan to the status of a University College.

There werc at the same date 2,389 pensionable Overseas Officers
serving in 'Senior Service' grades, of whom 25 per cent. were on con
tract, and it is relevant that the Mission of the International Bank
reported in 1954 that 2,000 additional recruits from overseas were re
quired to implement the Territory's DeveJopment. plans. There
were 1,028 vacancies which Nigerians were either unwilling or lacked
the qualifications to fil1."

83. The First Progress Report to the Secretary-General of the United
Nations from the Special Representative in the Congo, Ambassador
Rajeshwar Dayal, dated 21 September 1960, reflects the position in
the former Belgian Congo shortiy after it had attained independence.
The Ambassador wrote as follows:
"At the time of independence there were only 17 Congoleseuniver
sity graduates. not one doctor, no engineers, professors, architects,

etc., and few, if any, qualified lawyers. If there is to be a large-scale
program of feJlowship awards, and paralle1 programs of in-service
training, one must find people with suffi.cient educational pre
requisites to qualify for this training. In the field of health the
ONUC [Operations of the United Nations in the Congo] Senior
Consultant has estimated that it will take some 22 years before the
Congo can produce enough of its own doctors to staff even a reduced
schedule of heaith services. Recently, a government offered to train
a substantial number of Congolese technicians in the much-needed
skills of weather forecasting. So far, only six Congolese have been

found who qualify for these awards ... It is apparent that, for a
long while to corne, the Congo will have to depend on large numbers
of technicians from abroad, and in fact ONUC has already been
approached to use its machinery to recroit teachers, doctors, labor
inspectors, administrators and other specialists who would become
..;mployees of the Government. The United Nations Educational,
Scientific and Cultural Organization has been asked to undertake
the task of finding over 1,000 teachers to staff, for the most part,
the secondary schools. Effective recruitment is found difficult,

however, because of the prevailing political conditions in the country.
Less than 50 of the 400 hospitals operating throughout the country
have doctors, most of them provided by the Red Cross and bilateral
aid teams. Many of these teams will have to retum home within the
next few months, and it will be diffi.cultto find replacements 2."
84. The tact, therefore, that the Native inhabitants do not occupy
any of the higher posts in the civil service in South West Africa, does

not justify an inference that they are intentionally "confined to the
lowest levels of employment" so as to prevent them from acq_uiring
posts for which they are qualified, but is in truth due rather to therr lack
of educational qualifications for the posts, despite the considerable

1 Hailey,An A/YicanSurvey (r957),pp.370-371.
2 Dayal, R., "First Progress Report to the Secretary-General from his Special
Representative in the Congo", in United Nations Revsew,Vol. 7, No. 5 (Nov. 196o),
p.22. COUNTER-MEMORIAL OF SOUTH AFRICA

progress they have made in acquiring skill and qualifications in other
directions under Respondent's guidance.
Respondent has, as stated, not considercd it to be in the general
interests of the population of the Territory to cmbark on an indiscri
minate programme of Africanization of the civil service in South West
Africa, but has rather striven to lay a sure foundation of education

and experience in the machinery of govemment, before entrusting high
responsibility to indigenous civil servants. As and when they do acquiîe
such education and knowledge, Respondent's policy contemplates their
advancement to the higher ranks of the civil service in those branches
where they will be able to serve their own people efficiently and re
sponsibly.

J. Respondent's Reply to Applicants' Allegations (Memorials)

1
l. PARAGRAPHS 88-105 OF CHAPTER V

(a) Paragraphs88-93 2
85. The Public Service and Pensions Act, :1923, referred to by Appli
cants, bas been repealed and superseded by the Public Service Act,

1957, which, in terms of the first section of that Act, is also made applic
able to South West Africa 3, Applicants' further allegations are dea.lt
with in paragraphs 16 to 26 above.

(b) Paragraph94 4

In addition to the list of persons mentioned by Applicants in this
paragraph who do not form part of the "public service" as defmed
by the Public Service Act, 1957, can be mentioned nurses in the Terri
torial Administration's Hospitals, members of the Prisons Service in
the Territory, and certain officials employed in the administration of

Native Affrurs. who are appointed by certain Native groups, and paid
from tribal trust funds.

The Public Service Act, 1957, provides that no J>ersonshall be appoin
ted permanently to the public service, as defined by that Act, unless
he is a South African citizen 5•As the South African Citizenship Act,
1949 6, as amended 7, bas extended South African citizenship to all

1I, pp. 135-137.
2Ibid., pp. 135-136.
1 Act No. 54 of 1957,sec. I,in Statutes of the Union of South Africa z:957,Part II.
pp. 794-798.
4 1, p.136.
1 Act No. 54 of 1957, sec. II (2), in Slalut,of lh6 Union ofSouth A/ma z:957.
Part II, p.820. •
6 Act No. 44 of 1949, in The Laws of South Wast Af,ica z:949, VoL XXVIII.
pp. 204-239.
7 Act No. 64 of 1961, in TM Laws of South West AJ,;ca z96r. Vol. XL, Part I.
pp. 508-533. SOUTH WEST AFRICA

persons born and residing in the Territory 1,this qualification does not
in any way constitute a limitation on the inhabitants of the Territory.

(d) Paragraph 96 2

Neither in practice, nor in theory, are Natives excluded from partici
pation in the general administration of the Territory. Respondent's

policy is one which envisages advancement of Native officiais to positions
of responsibility in the lùgher categories of the public service in those
areas and departments designed to serve the ethnie group of which the
official concerned is a member. It is true that there are as yet relatively
few Natives in the higher posts, but this is due to the serious lack of

adequately qualified candidates for employment in these posts, and not
to a deliberate policy of repression or what is termed "job-reservation"
by the Applicants. Those posts designed to serve any particular Native
group, which are presently occupied by White officiais, will, in the ful
filment of Respondent's declared policy, be made available for Natives

of that group as and when they achieve the qualifications required to
fill them. In tact, from a practical point of view, the most important
form of "joh-reservation" presently applying in the public service of
South West Africa, is one which reserves certain posts for Natives of

the ethnie group wlùch the post is designed to serve, in the sense that
preference is given to a member of the group concemed in filling such
a post. This policy has had the effect of Respondent having to refuse
White candidates' applications for certain posts.

3
(e) Paragraphs 97-Io5

The Territorial Budgets for the years r946-r954 in fact reflect, inter
alia, what Applicants set out in these paragraphs. Respondent, however,
submits that by the selection of these six departments ~ Applicants

do not present a true picture of the civil service as a whole. In treating
of this subject, Respondent has indicated to what extent Natives have
been incorporated and do participate in branches such as the police
force 5, nursing services 6 and the teaching profession 7• Natives also
participate to a considerable extent and in important respects in the
9
Department of Information 8, the prisons service and the adminis
tration of Natjve Affairs 1o; and they further play an important role as
interpreters in ail branches of the civil service 11•
Moreover, the limitation by Applicants of the period of the extracts

1 Act No. 44 of 1949, secs. I and 2, in The Laws of South West AfYica I949, Vol.
XXVIII, pp. 204-206, and Act No. 64 of 196r, sec. 2, in The Laws of South West
A/Yica z96z, Vol. XL, pp. 508-510.
2I, p. 136.
1 Ibid.,pp. 136-r37.
• Vide para. 5, supya,
l Vide paras. 48-52, supra.

6 Vide paras. 55-6r, su(»'a.
7 Vide paras. 62-63, su(»'a.
• Vide para. 47. sup,a.
9 Vide paras. 53-54, sup,a.
·,o Vide paras. 33-46, supra.
11 Vide para. 64, supra. COUN1"ER-MEMORIAL OF S0U1"H AFRICA

to the years 1946 to 1954, also detracts from the true position to-day
and, for that matter, as in 1961 when Applicants' Memorials were pre
sented. Respondent h.as already indicated that its long-term policy of
education and training of the Native peoples is now rapidly bearing
fruit and more and more Natives are qualifying for and obtaining respon

sible posts in the civil service each year. Even in those branches of the
service which Applicants have selectedsignificant changes have occurred
since 1954. As an example reference may be made to the Department of
Posts, Telegraphs and Telephones. In this department provision is now
made for a postmaster at Katutura, near Windhoek and four Native
postal assistants and four senior Native postal assistants in other parts

of the Territory. The qualifications for these posts have, in pursuance of
Respondent's policy of encouraging Natives to participate in the civil
service, been reduced for Native candidates to a Standard VII certificate.
Ail these posts are at present filled by Natives.
ln the Department of Agriculture 1 Natives are employed in the
northern areas as assistant stock inspectors, and are being trained by
White stock inspectors and veterinary officers to combat stock diseases

such as lung-sickness, anthrax, and foot-and-mouth disease. It is hoped
that with suffi.dent training Natives will be able eventually to take over
full responsibility in this field.
ln the Works and Buildings Branch of the public service, to which
Applicants also refer in their Memorials , Natives are presently em
ployed as skilledmasons, plasterers and painters and as skilled artisans.

Lack of adequate educational qualifications prevents their employment
in such fields as plumbing and electrical installation, but when Natives
do obtain such qualifications these fields will also be open to them.
Natives further occupy positions in Native hospitals as laboratory
assistants and darkroom assistants, and the training of Natives as
artisans in the Roads Department is also at present being undertaken.
Out of a total of 9,918 persons employed in the public service in

South West Africain 1959, 4,048 were White and 5,870 non-White.

3
Il. PARAGRAPHS 128 (3) AND (6) AND 190 OF CHAPTER V

86. Respondent denies the allegations contained in paragraphs 128
(3) and (6) and 190 (ii) (c), and says in particular that the charge of

deliberately and consistently pursuing a policy which prevents the
possibility of progress of the Native population towards self-respect,
responsibility or skill in the public service of the Territory 4, is without
substance.
The above survey indicates what Respondent's policy has in fact
been in this regard, as well as the considerable progress made desP.ite

the serious problems similar to those experienced all over Africa. Like
wise, therefore, the similar allegations m the introductory portion of
paragraph 190 5 are devoid of substance, as well as the assertions that

1 I,para. 97,p. J36.
i Ibid .• para. 99, p. 136.
' Ibid., pp.142-143, 162,
4 Ibid.,para.128 (3),p. 142.
~ Ibid .p.16z.166 SOUTH WEST AFRICA

Respondent offers the Native population no "promise of future amelio
ration" and "no horizon of hope" 1•
The horizons of progress become ever wider and nearer toward~ ful

filmentas the Native population avails itself of the opportunities offered .
to secure the necessary qualifications.

1I. p. 162. CHAPTER III

LOCALGOVERNMENT

A. Introductory

I. Applicants charge Respondent with having "ahnost entirely" ex
cluded the Native population from "participation or even any semblance
of participation" in the government of the established local units within
the Territory, i.e., the muoicipalities and village management board
areas. They go on to allege that-
"The sole faint approximation of any kmd of participation is to be
found in the limited advisory role of the Native Advisory Boards
with respect to the 'locations, 'Native villages' and 'Native hostels'
and even tlûs minimal role is carried out under the firm control of
the 'white' local authorities and the Administrator (after I April
1955, the Minister of Native Affairs and currently the Minister of
Bantu Administration and Development) 1."·
2. The gravamen of their charge is set out in paragraph 128 (6) of
Chapter V of the Memorials where they allege that-

"ln sum, by law and by deliberate and consistent practice, the
Mandatory has failed to promote to the utmost the development
ofthepreponderantpartof the population of the Territory iaregard
to ... participation in any aspect of government. It has not only
failed to promote such development to the utmost, it 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, responsi
bility or skill in any asp,ect of citizenship or government, whether
Territorial or local. . . . "
3. In paragraph 190 of Chapter V of the Memorials 3 this charge is
carried further by the allegahons that Respondent has "deliberately,
systematically and consistently ... discriminated against the 'Native'
population of South West Africa, , .. "; that Respondent "... has
thwarted the well-being, the social progress and the development of the
people ofSouth West Africa throughout varied aspects of their lives; ... ";
and that "The grim/ast and present reality in the condition of the
'Natives' is unrelieve by promise of future amelioration". It is finally
allegedin the said paragraph that Respondent "... offers no horizon of
hope to the 'Native' population".

4. In support of these allegations Applicants treat very briefly of
the "two principal types of local govemmental units" within the Terri
tory, viz.,municipalities and village management board areas, and of

1 I, para. 128(4),p.142.
z Ibid., p143.
s Ibid.,p.162.168 SOUTH WEST AFRICA

the Orclinances of 1949 and 1937 respectively, which it is alleged govern
them 1•
Applicants allege that the municipal councils and village management
boards, which consist of White persons only,
1
'• • •exercise control over the administration of 'Native' affairs
within the municipalities and Village Management ·Board Areas,
subject to the general authority of the Union Minister of Native
Affairs .. .'"

They point out that a Native Advisory Board has been established
within each of such areas, to advise the urban local authority on "... any
regulation affecting a location, 'Native' village, or 'Native' hostel which
the local authority proposes to issue", and to "... recommend to the

local authority the adoption of any re~ation which the Board deems de
sirable in the interests of the 'Natives in the particular urban area''.
Applicants then add:
"The power of decision, however, rests firmly within the exclusive

sphere of the local authority and the Administrato3 (alter 1 April
1955, the Union Minister of Native Affairs) ."
5. In dealing with these allegations, Respondent will endeavour to
show that the present position of the indigenous population in regard

to local government is due to historical and other reasons, and that, far
from Respondent seeking to exclude them from participation in the
institutions of local government, Respondent has sought systematically
to guide developments so that they may fitly be included in such local
government. Respondent will show that it has not in any way sought
to prevent the "possibility of progress by the 'Native' population", as

alleged by the Applicants •, but has in fact sought to guide them towards
"progressively increasing participation in the processes of government"
under consideration 5•

B. The Position Before and When Respondent Assumed the Mandate

6. When Respondent took over control of the Territory it found that

most of the towns and villages which exist today had already been
established, and a form of local government had already been instituted.
These towns and villages had been founded by the early European
pioneers as areas for their own communal habitation. They were never
intended for the communal settlement of any of the indigenous inhabi
tants of the Territory, and indeed such towns were something foreign

and unknown to the Native population. Hence there was initially no
planned provision for having any non-White inhabitants in or about
the towns, and in these circumstances it was not only natural but almost
inevitable that municipal organization and government was confined to
the White population: Non-participation by the indigenous population

of the Terri tory, to whom towns and their government were strange and
unknown, could not possibly, in these circumstances, have been felt to
be a deprivation.

• 1, paras. 1o6-1og, pp. 137-138.
2Ibid.,para. 110, p. 138.
3Ibid.,para. n3, p. 139.
4Ibid., para. 128 (6), p143.
5 Ibid., para. 190 (ii), p. 163. COUNTER•MEMORIAL OF SOUTH AFRICA 169

7. As a result of the internecine tribal wars among the indîgenous
people within the Police Zone, and events such as the Herero and Nama
rebellions between the years 1904 and 1907 1, the tribal organizations
of a considerable portion of the indigenous population of the Police
Zone were seriously impaired, as well as the social and economic pattern

of their traditional existence.
8. The towns and villages which had been established within the
Police Zone tended inevitably to attract members of the distressed
Native population by the offer of remunerative employment in commer
cial and domestic undertakings. These people came not because of any
need or desire for the type of residential facilities of a European town,
but specifically to seek and find remunerative employment in the White

man's monetary economy. Their sojourn in the urban areas was mostly
of a temporary nature, and ther, of their own acco1d, chose to live apart
from the White inhabitants o the towns in separate residential areas
adjacent to the European areas. This development is referred to by
Dr. N. Mossolowin an article entitled "Eingeborene in Windhoek" in the
following words :

"Since the foundation stone of the Windhoek Feste (fort) was laid
in 1890 and thereby the establishment of the town of Windhoek set
on foot, Whites and Natives are living peacefully side by side. When
the soldiers who were engaged in the construction of the Feste (fort)
saw the workseeking Natives, they noticed how these of their own
accord, settled at a certain distance from the Whites and built their
round huts of cow-dung and clay .'' (Translation.)

9. This development was perhaps inevitable, not only by reason of
the fact that the Natives concerned were members of different races, '.
but primarily by reason of the vast difference between their ways and
standards of livmg, and those of the European populatiqn. In addition
because of the differences i'ntersemembers of the varions ethnie groups
coming to live adjacent to the European urban areas, also tended to live
apart from each other. Thus Dr. Mossolow, in the same article referred
to in paragraph 8 above, says:

"They weresurprised to notice that the Bergdama did not want to
have anything to do with the Hottentots, and the Herero in turn did
not wish to associate with either of the other two tribal groups, nor
to eat with them from the same pot 3,''(Translation.)

10. Only at this stage of development did the indigenous peoples for
the first time begin to corne into contact with the organization and
workings of towns and villages; and thus participation on their part
in the European forms of municipal government would have been
anomalous and strange rather than the opposite. Such Natives as were
in the domestic service of the European villagers, frequently resided on
their employers' premises in the village, but took no part in the govem
ment of the community.

II. The legislation relating to local government was included in the

1
1 Mossolow, N. "Eingeborene oin Windhoek", in DerJ{reis, Heft12 (Nov, 1959),

p.3-Mossolow, N., op.cil.170 SOUTH WEST AFRICA

Ordinance of the Imperia! Chancellor, dated 28 January 1909 1,relatitig

to the government of German South West Africa. The relative clauses of
the ordinance made provision for a Gemeinderat elected by the German
inhabitants of the town.
The interests of the non-White population whlch had settled in locations
in the immediate vicinity of the White townships, were represented
by Native Commissioners appointed by the Governor, or in certain
instances, by the Gemeinderat with the approval of the Governor. The
locations were occupied exclusively by non-Whites, and were under the
supervision ofEuropean officialswho were responsible for law and order.

C. General Policy Followed by Respondent

12. As has already been stated the different population groups of
South West Africa have never fonned a homogeneous or integrated
community. For reasons which have also been explained Respondent
considered it inadvisable, and not in the best interests of the government
of the Territory as a whole, to treat the inhabitants as if they were an
integrated Society; and thus Respondent applied a policy designed to
encourage the development of the various groups on the basis of their

own respective cultures. Reference has also been made to the fact that
the Allied and Associated Powers were, at the time of confennent of
the Mandate, aware of the trends of a similar policy applied in the
Union of South Africa, and, that in considering that South West Africa
"can be best administered under the laws of the Mandatory as [an]
integral [portion] of its territory''2,they contemplated, inter alia, exten
sion of such a policy to the Territory 3.

13. More particularly in the sphere of government, Respondent
applied to the various Native groups, where possible, a system of indirect
rule, the nature and implications of which have also been considered
above •. Where the White inhabitants of the Territory had already
congregated in the established towns and villages and on the fanns
within the Police Zone, Respondent accepted this position as it found
it,and allowed the White group to develop culturally and economically
in thls area. Respondent also allowed the non-Whites in this area to

remain and to pursue the economic advantages which they had corne
to seek.
·14. Because of the largely unorganized and haphazard manner in
which the non-White settlements· had occurred on the outskirts of the
White towns, a primary concern of the Mandatory Govemment, arising
from this phase of deveiopment, was to see toit that the White municipal
authorities and the employers of non-White labour in the towns played
their part in providing these peri-urban communities with proper

housing and attendant municipal facilities such as roads, water, lighting,
sanitation, etc.,-things which the Natives concerned could hardly have

• Vide D;e deutscke Kokmial-Gesdzgebun~. Sammlung der auf die tJeutschen
Schutzgebiete bezüglichen Gesetze, Verordnungen, Erlasse und intemationalen
Vereinbarungen mit Anmerkungen und Sachregister, DreizehnterBand (Jahrga.ng
1909), pp. 19-34.
2 Article22 (6) of the C-Ovenant.
, VideBook IV, Chap. IV, paras. 36-38, of this C-Ounter-Memorial.
• Ibid., Chap. V, para. 7. COUNTER-MEMORIAL OF SOUTH AFRICA
171

acquired if left to fend for themselves. As the ultimate responsibility
rested with Respondent as Mandatory to protect and promote the well~

being of the inhabitants of the Territory, it retained sole control of the
determination of policy and the final say in its administration, and also
establishéd rnachinery to keep itself fùlly informed on all aspects of
developrrient. '
:r5. It was only after the gaining of a basic degree of knowledge and

experience of the organization and machinery of urban and peri-urban
society, as known to the European inhabitants, that the mdigenous
people could be introduced to some constructive role in the municipal
government thereof. In treating of this problern Respondent will en~
deavour to show how the intermediate stage was sought to be bridged
by a system of Advisory Boards, which were intended, inter aUa, as a

training ground for wider responsibilities.

D. Local Goverrunent of the White lnhabitants

I. GÉNERAL

16. Under the German occupation of South West Africa the Euro~
pean inhabitailts of the Territciry established towns and villages within
the Police Zone, but not beyond it. Since Respondent took over the

Mandate this has remained the position, and aU the White communities
which maintain any form of local govemment exist only within the
Police Zone.
17. Two forms of local government have been devised and are recog~

nized by Respondent for, the management of such towns and villages,
viz., municipal coundls an<Jvillage management boards.

II. MUNICIPAL COUNCILS

18. Municipal councils govem the lars-er White urban areas, which
are known as municipalities. The councils act under the provisions of
the Municipal Ordinance, 1963 (Ordinance No. 13 of 1963 (S.W.A.)),
which supersedéd Ordinance No. 3 of 1949 (S.W.A.). Such councils

consist of at least seven councillors elected by the White inhabitants of
the municipality who conform to prescribed residential and fixed pr~
perty qualifications 1•The councillors in tum elect a mayor and a deputy
mayor from among their number 2•
19. Apart from its rights and duties in respect of the non-White

inhabitants of its area, which will be dealt with in detail hereafter, the
most important rights and duties of a municipal council are to provide
and maintain streets, roads and public places in its area 3,to provide
and supply water • and electricity 5 for domestic and other use; to
establisl! and maintain cemeteries 6 ;to establish and conduct markets 7;

1 Ord.'No. r3 of 1963 (S.W.A.), sec. 29, iOfficial Gazette Extrao'làinary of South
West :A./ri&aNo. 2489 (79 June. 1963), pp. 847-848.
i Ibid.,sec. 147 {2} (a) {ii)p. 872.
3 Ibid., sec.177, pp.899-900.
4
Ibid.,sec. 210,pp. 909-910.
6 Ibid.,sec. 234,pp. 923-924.
1 Ibid.,sec. 219,pp. 911-912.
Ibid., sec. 226p. 914. SOUTH WEST AFRICA

1
to establish and carry out housing schemes ; and generally to petfonn
auxiliary and incidental functions with the approval of the Administra
tor 2•
A council may make regulations on the above matters falling witlùn
its powers and duties 3, but again subject to the approval of the Ad

ministrator. Proposed regulations must be advertised and any persan,
whether he be a voter or not, who considers that lûs or the general ·
public's interests will be adversely affected by the proposed regulation,
is given an opportunity to make representations prior to final decision
by the Administrator 4•

20. Generally speaking, as will have been observed, municipal coun
cils are subject to the overriding control of the Adrninistrator, and prac
tically all their powers are exercised subject. to his approval. The Ad
ministrator may even frame "model regulations" which he may impose
5
on a municipality either in whole or in part •He controis the appoint
ment and conditions of service of certain senior municipal officiais 6,
and all rates and taxes levied by the municipal council 7, as well as the
council's annual estimates of incarne and expenditure, are subject to his
approval 8• The same applies to the purchase, exchange or hire of any

immovable property by the Council 9•

Ill. VILLAGE MANAGEMENT BOARDS

2I. Village management boards are controlled by the Village Manage

ment Boards Ordinance, 1963 (Ordinance No. 14 of 1963), which super
seded Ordinance No. I6 of 1937.
Any area situated outside a municipal area may be proclaimed a
village management board area by the Administrator in his discretion 10,
and he may then appoint a villagemanagement board for that area 11•

The board consists of the magistrate of the district, ex offtcio,"or any
other person whom the Administrator at his pleasure may appoint'.
who shall be chairman and treasurer, "and, in the discretion of the
Administrator, not less than two and not more than four other members
appointed by the Administrator" 12.

22. The rights and duties of a village management board are, generally
speaking, similar to those of a municipality, viz., to provide and maintain
streets and public places in its area, provide and supply water and
electricity for the inhabitants of ïts area, and generally to provide for

101'd. No. 13 of 1963 (S.W.A.), sec. 233, in Of/Kial Gazette ExtraOl'dinary of
South West Africa, No. 2489 (29 June 1963), pp. 921-923.
2 Ibid.,sec. 241 (6), p.929.
3 Ibid.,sec. 242, pp. 930-940.
• Ibid.,sec. 243, pp. 940-941.
' Ibid., secs.244 and 274, pp. 941, 946.

1 Ibid., sec.148 (1), p. 874.
Ibid.,sec. 166, pp. 887-889.
• Ibid., sec. 159, pp. 880-881.
9 Ibid., sec.174 (2), p. 896.
1001'd. No. 14 of 1963 (S.W.A.), sec. 3, in Otficial Gazette Ext,-ao,dinary of Sowh
West Africa, No. 2490 (29 June 1963), pp. 958-959.
11 lbid., sec.8, pp. 959-96o.
u Ibid.,sec. 8 (1),p. 959.- -- .--- --· --------------

COUNTER-MEMORIAL OF SOUTH AFRTCA 173

"the maintenance of good rule and government and the health, con
venience, comfort, protection and safety of the inhabitants" .
The village management boards in exercising their powers are sub
jected even more strictly to the control of the Administrator than the
municipalities. Not only are the boards themselves appointed by the
Administrator, but the appointment of any employees of a board re

ceiving a salary of more than R40 ([20) per month must be approved
by him 2, and he may discharge any employee without being moved
thereto in the first instance by the Board 3• In other respects the situa
tion regarding approval or control are Jargely the same as for municipal
councils--e.g., regarding the purchase, acquisition or hiring of fi.xed

property by the Board\ the estimates of annual expenditure 5, and the
making of regulations 6•
23. Thus, in both forms of local government, the Administrator,
who is Respondent's representative in the Tcrritory, exerciscs a very

real control over the actions of every local authority, and canto a very
large extent influence the policy of such authority should he consider
it desirable or advisable to do so.

E. Centralized Control of Native Policy

24. Since the establishment of the Union of South Africa in May
1910, the control and administration of Native Affairs throughout South

Africa vested in the Governor-General-in-Council. The provincial
councils had no authori.ty in matters of policy affecting Native Affairs,
and local authorities, such as municipal councils and village management
boards, similarly possessed no right to initiate Native policy. Local
authorities do, however, assist in the application of policy in that regard,

but this is due to the demands of expediency and not to any legislative
enactment 7•
25. In seeking to carry out its Mandate in South West Africa Res
pondent adopted the same approach in this regard, and looked upon

the administration and control of Native Affairs as being its own re
sponsibility to the exclusion of local authorities in the Territory-at
any rate as far as the formulation of policy was concerned. It discharged
such responsibility through the Administrator of the Territory, and,
since 1 April 1955, through Respondent's owri Minister of Native Affairs,
8
now designated Minister of Bantu Administration and Development •
26. In 1956 the then Minister of Native Affairs in the South African
Government {now the Prime Minister) expressed this policy in his
address to the Fifth Annual Congress of the Institute of Administrators

of Non-European Affairs, in the following words:

1 Ord. No. 14 of 1963 (S.W.A.), sec. 13 (1) (x), inOfficial Gazette Extraordinary
of South Wesl Africa, No. 2490 (29 June 1963), p. 966,
1 Ibid., sec. ro(2), p.961.
l Ibid.,sec.10 (4),p.961.
• Ibid., sec. ll (1),p.961
j Ibid., sec. 23 (3),pp. 972-973.
6 Ibid., secs. 14 (1), 15 and 16, pp. 966-968.
7 Davis, G., Melunsky, L, and du Randt, F. B., Urban Native Law (1959). p. 11.
8 Vide Act No. 56 of 1954, sec. z, in Statutes of the Union of South Africa 1954,
p. 559.174 SOUTH WEST AFRICA

"The true position is that there is only one source of policy in con
nection wüh Native Affairs in the country, and that is the State
itself. Altthe towns are solely concerned with executive activities. The
task of the Urban A uthorities is to carry the policy of the country into
eOect, not to create basic Policy for themselves or for the country. Ji is
a very clear basis, laid down in our legislation /rom the oiûset, that
it would only create confusion and disorder in the country if Native
AfJairs became subfect to a diversity of policies ... The founders of
our State realized this very well and that is why ever since those

days it has been laid down very clearly ... that the source of policy
in connection with Native Affairs in all spheres, is the State, that is
to say, the Govcrnment of the Union 1."

F. Policy of Separate Development

27. The general policy which Respondent has sought to apply in
South West Africa ever since it acquired the Mandate over the Territory,
with adaptations from time to time in the light of changing circum
stances, is one in which it seeks to encourage the various population

groups to develop culturally and otherwise in separate areas-in ac
cordance with the preferences shown by the groups themselves in this
_regard. Respondent realizes, however, that it is neither possible nor
desirable to prevent all fonns of contact between the vanous groups,
but that, on the contrary, a large measure of economic inter-dependence
is inevitable, and that co-operation between the groups, inter alta, in this
sphere, is highly desirable.
28. It will be recalled that in his statement of the broad lines of such
a policy, as set out earli~r in this Counter-Memoriar2 the late General

(later Field-Marshal) J. C. Smuts mentioned certain qualifications, inter
alia, in these words:
"Instead of mixing black and white in the old haphazdl'd way, ...
we are now trying to lay down a policy of keeping them apart as
muchas possible in our institutions . ... The natives will, of course, be
free to go and to work in the white areas, but as far as possible the
administration of white and black areas will be separated ... 3"
(ltalics added.}

29. The address by Respondent's Minister of Native Affairs (now
the Prime Minister) on 17 September 1956 ~ contained, i'nter alt"a, the
following passage regarding the basic policy and its qualifications, seen
in the light of developments up to that stage:
"The quintessence of the matter is that while the European

enjoys all his rights and privileges in one part of the country, namely
in what we call White South Africa, the Native has similar rights and
privileges, but can in turn only exercise them within the Native
Ar,as, i.e. in the Reserves-whether tribal territory or areas sub-

1 Local Authorities 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
(1929}, p. 7.
Vide Book IV, Chap. IV, para. 36, of this Counter-Memorial.
s Smuts, J.C., Toward a BetterWorld (1944), pp. 12-13.
• Vilh para. 26. supra. COUNTER-MEMORIAL OF SOUTII AFRICA 175

sequently purchased .... In these territories the EuroPean has no
claim to property and certain civil rights. There he is the temporary
inhabi'tant who hdps with the development of those areas, but they

belong to the Natives. The rights of the Natives are bound up with this
fact ... Just the opposite is the case in the European areas. There is
the home of the European's rights and there the Native is the temporary
resident and the guest, for whatever purpose he may bethere 1."

30. In its report delivered in 1922, the Transvaal Local Government
Commission-also known as the Stallard Commission-urged the
central govemment of the Union to contrai more effectively.the adminis
tration of Native Affairs in the urban areas, and at the same time to

impose a statutory duty on municipal bodies to provide adequate
housing accommodation for ail Natives within these areas 2, including
rest houses and reception houses to accommodate Natives entering such
areas for the purpose of seeking employrnent therein 3• It also urged
the central government to place adequate tracts of land at the disposai

of the municipalities to carry out the housing schemes envisaged •, and
to establish within such Native villages Native advisory boards on which
the inhabitants of such villages could be represented 5, and through
which they could express their wishes and carry out such duties as might
be imposed upon them by law.

3I. These recommendations of the Stallard Commission were given
effect to by the adoption of the Natives (Urban Areas) Act, 1923 (Act
No. 21 of 1923) 6, which Act, with certain modifications, was applied
also to South West Africa by Proclamation No. 34 of I924 (S.W.A.) 7

-subsequently superseded by Proclamation No. 56 of 1951 (S.W.A.) 8•
The 1924 proclamation was an important initial step in the application
of Respondent's aforementioned policy, and in promoting the well
being of the urban and peri-urban Native communities in question.

Further dcvelopments in these respects, are dealt with in succeeding
portions of this Chapter.

G. Population lncrease in Urban Areas

32. When Respondent assumed the Mandate, the Territory had a
White population of approximately 19,000, and a non-White population
of approximately 200,000 9 comprising various ethnie and linguistic

groups. Of the latter it is difficult to say with any degree of certainty
how many resided within the Police Zone and how many outside; and
of those witbin the Police Zone, how many resided in the Reserves
within the Zone and how many in the towns and on the farms.

1Local A uthorities and the Stat(1959), p.8.
2 T.P. 1-192i, para. 270, p. 48.
3 Ibid., paras. 276-277, p. 49·
• Ibid., Appendix VII, para. ro, p. 96.
5 Ibid., para. 295,p. 52.
6 Act No. 21 of 1923, in Stalutes of the Union of South A/ricar9a3, pp. 140-197.
1 Proc, No. 34 of 1924 (S.W.A.), in The Laws of South West Africa z924, pp.
178-190.
8 Proc. No. 56 of 1951 (S.W.A.), in The Laws of Soulh West Africa .r95.r, Vol.
XXX, pp. go-171.
9 Vide Book III, Chap. II, of this Counter-Memorial.176 SOUTH WEST Al'RICA

lly 1939 however, therc were 19,000 non-Whites living in urban areas
within the Police Zone 1•This figure increased to 41,482 in 195r 2, and
to 69,677 in 1960 3• The considerable increase in recent years is most

probably due to the economic progress which has bccn made by and
through the entcrprise of the White inhabitants of the Tcrritory, whereby
greater opportunities were created for the economic advancement also
of the non-White inhabitants.

33. A portion of the said non-White urban population consists of
p<,ople from outside the Police Zone who spend a year or two away
from their homes in employment within the Zone. Those ethnie groups
whose homelands are outside the Police Zone, have insisted that their

members who take up employment in the Police Zone return to their
family units after an absence of two and a hait years at the most.
Othcr urban non-Whites included in the above-mcntioned figures
normally reside in the reserves within the Police Zone, but at times
work in the White urban areas on comparatively short-tenn contracts.

H. Provision of Amenities in Native ResidentiaJAreas

I. NoN-WHITE HouslNG AccoM.MODATION IN URBAN AREAS

34. Proclamation No. 34 of 1924 (S.W.A.) placed a statutory responsi
bility on urban local authorities to provide adequate housing and
accommodation facilities for non-Whltes in their areas. The same duty
is now provided for in Proclamation No. 56 of 1951 (S.W.A.) which
superseded the former Proclamation. Section 233 of the Municipal

Ordinance, 1963 \ and section 28 of the Village Management Boards
Ordinance, 1963 5,authorize municipal councils and village management
boards respectively to establish and carry out housing schemcs. ln
addition, as pointed out in the Memorials 6,Proclamation No. 56 of 1951
(S.W.A.) authorizes an urban local authority-i.e., a municipal council or

village management board-subject to the approval of the Minister of
Bantu Administration and Development, to set aside and lay out "one
or more areas of land for the occupation, residence and other reasonable
requirements of natives" 7• Such an area is referred to in the proclama·
tion as a "location".

The proclamation also authorizes a portion of a location to be set
aside for what it terms a "Native village", in which Natives are allowed
to acquire the lease of lots for the erection of bouses or huts for their
own occupation 8•

1 U.G. 30-1940, p. 213.
2 Vide South West A/rica Populalù.m Census, 8 May r95r, p. 8.
s 1960 Population Census (unpublished).
4 Ord. No. 13 of 1963 (S.W.A.), sec. 233,in Official Gazelle ExtTacwdinary of South
West Afri,a, No. 2489 (29 June 1963), pp. 921-9l3. Ord. No. 13 of 1963 (S.W.A.)
replaced Ord. No. 3 of 1949 (S.W.A.) as from 1 Joly 1963.
' Ord. No. 14 of r963 (S.W.A.), sec.28, in Official Gazette Extraordinary of South
West A/rica, No. 2490 (29 June r963), pp. 976-978. This Ordinance came into
operation on 29 June 1963.
6
I, para.HI, p. r38.
' Proc. No. 56 of 1951 (S.W.A.), sec. 2 (1)(a), in The Law:;of South West Africa
1951, Vol. XXX, p. 94.
• Ibid.,sec. 2 (1) (b)and (e),p. 94. COUNTER-MEMORIAL OF SOUTH AFRICA 177

The urban authority is, furthermore, authorized to provide buildings
or huts, known as "Native hostels", within a location or Native village,
for the accommodation of Natives not living under conditions of family
life 1,and to provide other buildings or huts for the accommodation of
Native families 2•

ll. FlNANClAL ASSISTANCE BY TltE ADMINISTRATION

35. To enable local authorities to provide the necessary housing for
the Native people in their areas, loan funds have been provided by
the South West Africa Administration 3• Such loans are granted at the
rate of r per cent. interest per annum and are rcpayable over a period

of 30 years.
36. During 1957 the Administration grantcd such a loan to the
Municipality of Windhoek for an amount of H.1,500,000 (f750,ooo),
increased to R1,800,ooo (f900,ooo) <luring 1960, to be uscd for the
establishment of a new Native township called Katutura. The schemc

includes provision for some 2,000 houses, hostels for single men, schools,
crèches, health clinics, churches, and business premises. The houses
are provided with modem facilities, including electricity, water supply
and a sewerage system.
ln addition to the above-mentioned scheme a new Ovambo hostel bas
been erected at Katutura for the housing of some 6,000 Ovambos

employed in Windhoek on short-term contracts. This hostel, which cost
approximately R300,ooo (fr50,ooo), was financed from the accumulated
surplus funds of a pre-existing Ovaml10 compound, which funds were
contributed by the employers of the Ovambos, and were suhsequently
transferred to the Native Revenue Account of the Municipality.

37. During the period 1952 to 1960 the following further loans were
made, on the terms set out above. to the local authorities mentioned
below for the carrying out of .similar housing schemes for Natives, or
for the provision of additional amcnities for existing housing schemes,
viz.:

Walvis Bay 4• • Rr,195,854 (f597.927)
Keetmanshoop. 284,800 {142,400)
Outjo .... 86,400 (43,200)
Grootfontein 171,044 (85,522)
Karasburg . 12,000 (6,000}

Okahandja . 92,174 (46,o87)
Swakopmund 230,670 (rr5,335)
Usakos . I.14,528 (57,264)
Tsumeb .. . 78,000 (39,000)
Karibib .. . 50,000 {25,000)

1
Proc. No. 56 of 1951 (S.W.A.), sec. 2 (1){c),in The Laws of South West Afri,a
r95r, Vol. XXX, p. 94.
2 Ibid., sec2 (1) (d),p. 94.
3 Ibid., sec.14 (t)(b). p. 114.
4 As has been mentioned, Walvis Bay, although part o{ the Republic of South
Africa, is for administrativpurposes treated as iit were a portion of the Territory
of South West Africa. The housing here referred to was in any event provided for
Natives derived largely ftom the Territory and employed temporarily at Walvis
Bay. SOUTH WEST AFRICA

Otjiwaron~o. R54,800 ([27,400)
Welwitsch1a . 8,000 (4,000)
Lüderitz . . 8,000 (4,000)
l\faltahi:ihe . 8oo (400)
Mariental . . 4,000 (2,000)

38. A further amount of R.492,622 (f246,3n) was spent on Native
housing during that period by the following seven municipalities viz.,
Windhoek (R275,642-[137,821), Walvis Bay (R138,926-{69,463),
Karasburg (!41,ooo-[20,500), Okahandja (R24,128-[I2,o64}, Swak
opmund (R6,764-f3,382), Usakos (R4,030-f2,015), Otjiwarongo
(R2,132-[I,066).

39. During the period mentioned above, therefore, an amount of
R4,683,692 ([2,341,846) has been spent on Native housing by local
autho1ities in the Territory. Funds continue to be made available for
this purpose and in 196r-r962 an amount of Rx,297,500 ([648,750)
was advanced to local authorities.

In the case of six urban non-White residential areas where the local
authorities concerned were not in a financial position to meet the cost
of providing water and sanitation, the Administration has itself, in
terms of section 2 (r) of Ordinance No. 13 of 1944 (S.W.A.) 1, spent a
further R13,451 ([6,725) from its Territorial Development and Reserve
Fund to.J!rovide these facilities, viz., R2,374 ([1,187) at Stampriet:

R1,650 (l825) at Maltahôhe; Rr,ooo ([500) at Karasburg; R2,656
(f1,328) at Bethanie: R2,250 ([1,125) at Aus; and R3,520 (fr,760) at.
Otavi.

III. CoNTRIB.UTION BY EMPLOYERS

40. The Native Housing Levy Ordinance, 1961 {Ordinance No. 33
of 196! (S.W.A.)) , was designed to provide for contributions by em

ployers towards the cost involved in the :provision of housing for their
Native employees living in the urban locations.
In terms of this ordinance the Administrator may declare any area
to be a declared housing area ·3.that is, an area in which every perso~
who employs one or more adult male Natives shall paya contribution
to the urban local authority concerned for the benefit of a Native housing
levy fund 4• The contribution is calculated according to the number of
4
weeks duringwhich a Native is employed •
It is not payable where a private householder provides a domestic
servant with approved accommodation 5,nor where an employer other
wise provides approved accommodation free of charge 6•
The contribution may not be deducted from the employee's wages,
nor may his services be terminated on account of the contribution
7
having to be paid •

1 Ord. No. I3 of1944 (S.W.A.), sec. 2(1),in The Laws of South Wed Af,ica I944•
Vol. XXIII, p. 806.
2 Ord. No. 33 of196I (S.W.A.), in The Laws of South West Afl'il;aI96I, Vol. XL.
pp. 1308-1317.
3 Ibid.,~ec.2,p. 1310.
4 Ibid.,sec.3 (1),p. 1310.
' Ibid.,sec.3 (2) (a},p. 1312.
6 Ibid.,sec.3 (2) (b}, p. 1312.
1 Ibid.,sec. 4p. 1312. COUNTER-MEMORIAL OF SOUTH AFRICA I79

41. Apart from the cost of administering the ordinance, the Native
housing levy fund may only be used to defray approved expenditure
incurred by the urban local a.uthority in providing housing in Native

residential areas under its control, or to make a contribution to the
Native revenue account of an urban location for the purpose of rcducing
interest and redemption charges payable frorn such account in respect
of loans taken up to provide housing in a Native residential area 1•
42. The Native housing levy fund has made it possible for a Native

to lease a bouse for such a nominal rentai as R2.50 ([.I 5s.) per month
-an am!)unt whîch hardly covers the cost of the services connected with
such a house.

IV. LA YOUT OF NATIVE RES1DENTIAL AREAS

43. The Native urban residential areas have been developed on
modern town planning principles in accordance with which every faci
lity available in White townships, e.g., social welfare and sports centres,
hospitals, cinemas and playgrounds for children, have been provided.
ln addition to the hospitals established for non-Whitcs in the urban
areas by the South West African Administration, urban local authoritie~
also establish clinics in the non-White residential areas, where the local

authorities' rnedical officers of health are in regular attendance. The
.clinics remain open during the day when the district nurses attend to
rninor ailments and to pre-natal and post-natal treatment of wornen,
and arrange for the admission of patients to hospital. The above-rnen
tioned services are rendered free of charge as a social service.
44. Because of the preference shown by the various Native groups
2
to live apart from other groups , Respondent has sought to give effect
ta such preference and to provide, as far as is practicable, separate
residential areas and other facilities for the various groups living in urban
areas. Reference to this policy was made in Respondent's annual report
to the League of Nations in 1927, in which it was stated:

"The different tribes [in urban areas] do not live under tribal
conditions, although cohesion amongst rnembers is still evident
socially. In the allocation of sites in the Municipal Locations at
Usakos and Karibib thîs factor is observed as far as is practicable 3."
45. This tendency was again referred to in the annual report sub
mitted by Respondent to the League of Nations in 1939, in whîch,

referring to non-White farm employees, the following remarks appear:
"In the matter of living they tend to group themselves according
to the tribe to which they belong, ifmernbers of more than one tribe
are employed. This is accounted for by the fact that each tribe has
its prejudices. For instance, the Hereros as a rule look down on the
Darnaras or Klip Kaflirs whom they regard as their inferiors. This has

corne about as a result of the subservient position held by the latter
tribe when regular tribal life was in existence. On some farms only
members of one tribe will be found. In these cases the owners of

1 Ord. No. 33 of 1961 (S.W.A.), sec. 6, inThe Laws of South West Africa r96r,
Vol. XL, pp. 1312-1314.
2 Vi<k para. 9,sup,,a..
., U.G.31-1928, para. 47,p. 35.180 SOUTH WEST AFRICA

the farms have a preference foi members of a particular tribe as
servants. Where Ovambos and Okavangos are employed as well as
Police Zone natives they will also group themselves separately from
1
the others ."
46. Prior to the proclamation in 1925 of the first location at Wind
hoek, members of various groups were, of their own free will, living
scattered in ethnie groupings of their own on the outskirts of Windhoek.
With the proclamation of the said location the non-European advisory

board. consisting of representatives of each of the ethnie groups con
cerned, requested that the location be planned according to the separate
requîrements of the various groups.
The various groups prefer to have their own separate schools, clubs,
churches, sportsgrounds and other arnenities, and intermarriage be
tween the different ethnie groups is a very rare occurrence. During 1960
the Ovambos residing in the new township of Katutura near Windhoek
requested the executive committee of the Territory to be provided with

a separate school for their children in that township. When this request
was acceded to, representatives of the urban Ovambo community called
at the office of the Chief Bantu Affairs Commissioner to express their
appreciation, and when the school was opened leaders from Ovamboland
also publidy expressed their gratitude.

47. ln the light therefore of these clear preferences of the groups
themselves, and of the state of affairs pertaining when the Mandate
was assumed, it was natural for Respondent to act in accordance with
this tendcncy in the provision of proper housing and municipal facilities
for the various non-White groups. In Respondent's own view it appeared
to be in the general interest of the population that this tendency should
be respected and given effect to. Furthermore the provision of separate

residential areas and other facilities for the different groups, served to
facilitate the administration of urban communities. Not only did it
afford a familiar community Jife to those non-Whites who came into
the generally unfamiliar White urban areas, but it also made it casier
for Respondent to provide adequate educational facilities where the
young children could be educated in their own tongue by teachers of
their own group. So too, a homogeneous community, with its own
artisans, tradesmen and government servants, could be encouraged to

develop in a particular area.

V. TRADING IN LOCATIONS

48. In terms of section 31 of Proclamation No. 56 of r95r (S.W.A.)
an urban local authority "may let sites within the location or native
village for trading or business purposes" 2, but-)uch ..~,i.tescan only be
let to Natives, and no person who is not a Native ma"y be employed
on any site so Jet • Business and trading rights in the locations and
Native villages are therefore reserved exclusively for Natives. Refer
ence has elsewhere been made to the Native businesses which have in

1 U.G. 30-1940, para.830, p. 142.
2Proc. No. 56 of 1951 (S.W.A.), sec.31 (a), in The l.aws of South West A/rica
I95z, Vol. XXX, p. 152.
3Ibid.,sec.31 (c) (i),p.154. COUNTER·MEMORIAL OF SOUTH AFRlCA 181

the result in fact become established in such urban areas in the Terri

tory 1.

I. Management and Control of Locations and Native Villages

49. The regulation, control and management of urban locations vest
in the ftrst place in the urban local authorities in whose area ofjurisdiction
2
they fall , but, as will be shown, this control is exercised subject to
overricling supervision on Respondent's own part, because of itsultirnate
responsibility for the well-being and development of the Natives con
cerned.
Section 32 (2) of Proclamation No. 56 of 1951 (S.W.A.) provides
that an urban local authority may make regulations as to various mat

ters pertaining to locations, Native villages and Native hostels, e.g., the
terms and conditions of residence in them; their management, contrai,
and the maintenance of good order, health and sanitation in them;
the employment of officers and oth1;:t·persons for purposes of manage
ment and control; the mode of election or selection of members of
Native Advisory Boards, the procedure of such Boards, the period and
conditions of office, and the definition of the duties and fonctions of
3
the members thereof •
50. Section 20 (1) of the said Proclamation (replacing a similar section
9 (1) of Proclamation No. 34 of 1924 (S.W.A.)) makes it imperative
for a Native advisory board to be established for every location and
Native village _under the control of an urban local authority. Such a

board consists of not less than three Native residents of the area con
cerned, in addition to a chairman who may be a White person \ In
practice every urban local authority seems to have appointed the
principal administrative officer of the particular location or his deputy
as chairman of such a board.

51. The section then goes on to outline the functions of a Native
advisory board, and provides that such a board shall consider and report
on-
(a) "any regulations which the urban local authority proposes to
make or adopt ... " and which affect Natives in the locations,

(b) "any matter referred to it by the Administrator or the urban
local authority", and
(c) "any matter specially affecting the interests of natives in the
urban area upon which the board may consider it useful or
desirable to report, ... 5"

Such report of the board must be submitted either to the urban local
authority or to the Administrator as the circumstances may require ~.
A Native advisory board may also recommend to the urban local
authority the making or adoption of regulations which it considers

1 Vide Book V, sec. D, of this Counter-Memorial.
2 Proc. No. 56 of 1951 (S.W.A.), sec. 14. in The Laws of South West Africa I95I,
Vol. XXX, pp. II4-rr6.
! Ibid., sec. 32 (2)pp. r5t:,-16z.
• Ibid.,sec.20 (1),p. 126.
' Ibid.,sec. 20 (2) (a), p. 126.r8z SOUTH WEST AFRICA

necessary or desirable in the interests of the Natives in the urban areas 1•
52. Every local authority wlùch administers or controls any location,
Native village, or Native hostel is required to keep a separate account,

to be known as a Native revenue account, from which appropriations
are made from time to time for the rendering of services to such Native
residential areas, or for expenditure for the benefit or the welfare of the
residents of such areas 2•Such appropriation is made by the urban local
authority concerned, and is subject to the written approval of the
3
Administrator before it can be given effect to • The proclamation,
however, requires the urban local authority to refer the draft estimates
for such appropriation toits Native advisory board for considerati~n and
report thereon before passing the estimates itself 3•

53. The urban local authorities in the Territory, exercising their
prerogabve in terms of section 32 (2) of the proclamation to make
regulations concerning the mode of election or selection of members
of the Native advisory boards, have, in most cases, made regulations
providing for members to be elected and selected for appointment in

equal numbers. The regulations for the Windhoek urban location 4, as
well as those for Walvis Bay 5,:provide for not more than three members
to be appointed by the Municipal Council and for the other members
to consîst of one elected representatîve for each of the wards înto whîch
the location shall be divided for this purpose. The regulations provide

for the elected rnembers to be nominated in writing by the registered
occupiers, and where the number of such nominations exceeds the num
ber of vacancies, a proper poil is to be held at which the registered occu
piers, record their votes in secret, and the candidates receiving the highest
number of votes are declared to be duly elected to the board. The
regulations of a few of the authorities provide only for appointed rnem

bers, but these are selected from the ranks of the recognized headmen
who are chosen by the people 6•

J. The Objects and Future of the Native Advisory Boards

54. The Native advisory boards were intended not only as media
of contact between the urban local authorities and the inhabitants of
the non-White residential areas, but also as a means of assisting the
Natives concemed to adjust themselves to the needs of a new social
and economic order. The system had inherent in itself obvious advan

tages as a training ground for wider responsibilities, and, in fact, one
of its avowed airns was to teach the non-White inhabitants the spirit
and technique of local government in a democracy.
55. Unfortunately the advisory boards failed to measure up to the

expectations entertained for them. Various reasons have been advanced

1 Proc. No. 56 of 1951 (S.W.A.), op. cit., sec. 20 (2) (bp.126.
2 Ibid., sec. 17 (and (2),p. 118.
3 Ibid., sec. 17 (4p. 120.
4
Issued under G.N. No. 16 of 1962 (S.W.A.), in Official Gazelle Ext;,aordinary
of South West Africa, No. 2369 (1 Feb. 1962), pp. 54-103.
5 Issued under G.N, No. 243 of 1g6o (S.W.A.), in Official Gazette Ext;,aordinary
of South West Africa, No. 2287 (14 Dec. 196o), pp. u79-1227.
6 Vide, e.g., G.N. No. 25 of 1949 (S.W.,A..),Yt Karasburg, in Official Gazette of
South West Africa, No. 1406 (r Feb. 1949), pp. 2008-2013. COUNTER-MEMORIAL OF SOUTH AFRICA

for tlus failure. In his address to the Congress of the Institute of Admin
istra tors of Non-European Affairs, referred to above 1, Respondent's
Minister of Native Affairs (now the Prime Minister) expressed the fol
lowing views:

"... I do not consider the system of Native Advisory Boards a suc
cessful system. Any advisory body which bears no resPonsibility,
necessarily becomes a body which comes forward with all kinds of
demands and requests and expectations. In fact, the greater the de
mands advanced by such bodies, the greater chance the members
have of being re-elected .... For this reason I am not in favour of the

continuance of the advisory council system. I believe that eventually
the Native inhabitants should have a certain measur~ of joint res
ponsibility in the regulation of the affairs of their own residential
area by means of representatives, that they ought to receive a certain
administratz°1Jeresponsibility. (Italics added.) In other contexts it has
been experienced that when the energies of the Native are enlisted to
exercise a certain measure of control over his own people, then a

greater sense of responsibility is displayed and a much better dis
position develops, so that the work of administrative officialsis made
much easier. There/ore, I believethat we must eventually arrive at a
system of urban Bantu authorities ... 2" (Italics added.)

56. The first step towards the attainment of this end in South Africa
itself was in the Promotion of Bantu Self-Government Act, 1959 (Act
No. 46 of 1959). The Act enumerates the various broad general national
or ethnie units wlùch comprise the Bantu population of South Africa 3.
and goes on to provide that the territorial authority-i.e., the body
having jurisdiction or responsibility in the traditional homelands of such

national or ethnie units-shall, in consultation with the Minister of
Bantu Administration and Development, and with the approval of the
Governor,General, nominate a Bantu persan to represent that authority
in the areas of one or more White urban local authorities with regard
to the Bantu community in such area belonging to the national unit
concerned 4•
The Act further provides that this representative must represent the

territorial authority in such urban area, look after the interests of the
members of the national unit concemed in such area, and advise the
territorial authority he represents on matters concerning the general
interests of the national unit in that particular area 5•

57. This Act was followed up by the Urban Bantu Councils Act,
196I (Act No. 79 of 1961, as amended by sections 26-29 of Act No. 76 of
1963), which provided (again in South Africa itself) for the substitution
of Urban Bantu Councils for the former Native advisory boards 6• Such
Councils consist of not less than six mernbers, of whom half are elected
by the residents of the area concerned and the other half selected, after

t Videpara. 26, supra.
2 Local Authorilies and lhe Stale(1957), p. 19.
1Act No. 46 of 1959, sec. 2 (1), in Statutts of the Union of South Africa z959,
Part t(Nos. 1-6o), p. 514.
4 Act No. 46 of 1959,op. cit.sec. 4p. 518.
' Ibid.,sec. 5,p. 518.
6 Act No. 79 of 1961, secs. 2 and 9, in Stalutes of the Republic of South Africa
x96I (Nos. 42-Br), pp. u66-1268, 1276-1278; and Act No. 76 of 196~, sec. 26. SOUTH WEST AFRICA

their candidature has been approved by the Minister of Bantu Adminis

tration and Development and by the urban local authority, from amongst
the representatives of the recognized Bantu chlefs 1•ln this way official
recognition is given in the urban areas to the traditional forms of Bantu
government. Although the Council itself cannot be described as a tra
ditfonal organ of government, nevertheless it derives additional efficacy

by recognizing the authority of the traditional institutions of Bantu
government, in combination with an equal elective element constituted
on democratic principles.
In addition to taking over the powers and duties of the Native ad
visory board, the Council will also exercise such powers and perform
such duties of an urban local authority in connection with the Bantu,

as the urban local authority may assign to it, with the concurrence
of, and subject to such conditions as may be determined by, .the Minister
of Bantu Administration and Development. The matters in respect
of which such powers and duties may be assigned to the Council are,
inter alia:

(a) the layout of the area;
(b) the accommodation of Bantu not living under conditions of
family life;
(c) the management and control of the area and the maintenance

of good order therein;
(d) the prohibition, regulation or restriction of the keeping of
animais and the grazing on any commonage of stock belonging
to persons living in the area;
(e) the provision of sanitary, health and medical services; and
(/) the moral and social welfare of persans living in the area 2.

The Council is also enjoined to consider and report to the Chief Bantu
Affairs Commissioner or any other Bantu Affairs Commissioner on any
matter referred to it by such Commissioner or on which it deems it
desirable to report 3•

58. The Act also makes provision for the establishment of a com
munity guard, for the maintenance of law and order and for the pre
vention of crime within the area 4. This community guard is subject
to the control and management of the Council. The Minister is further

more empowered to confer on a Bantu designated by the Council, and
who is a member of such Council or the recognized representative of a
chief, the same civil and criminal jurisdiction to try cases as may be
conferred on a Bantu chief, i.e., jurisdiction to try civil daims arising
out of Native law and custom brought by a Native against a Native
(other than matrimonial matters), and jurisdiction to try lesser criminal
5
offences whether under the common law or under Native law and custom .
Provision is aJso made for the assignment of further fonctions to a
Council by the Minister, and for auxiliary and incidental powers 6•
59. As yet the above provisions have not been extended to South

1 Act No. 79 of 1961, sec. 3, inStatules of the Republic of South Africa 196t
(Nos. 42-81), pp. 1268-r270; and Act No. 76 of 1963, sec. 27.
2 Ibid., sec4 (2) (a), p.1270.
3
Ibid., sec. 4 (2) (cp. 1272.
• Ibid., sec. 7p. 1274.
s Ibid.,sec.5, p. 1274.
6 Ibid., sec4 (2) (a) and (/), p. 1272. COUNTER-MEMORIAL OF SOUTH AFRICA

West Africa, and the system of Native advisory boards under Procla
mation No. 56 of 1951 (S.W.A.) is still in force in the Territory. In
conjunction however with the projected establishment in South West
Africa of a system similar to that of Bantu Territorial Authorities in

South Africa, Respondent envisages the early establishment in the Ter
ritory also of a system similar to that described above relative to the
local government of Natives in urban areas. Experience now being
gained in South Africa regarding the practical opera.tion of such a system
will no doubt enable Respondent to rnake such adaptations as may be

necessary with a view to a system best suited to the needs, well-being
and progress of the Native peoples of South West Africa.

K. Supervisory Control of Respondent over Local Authorities

60. As has been indicated above, Respondent sought to promote to
the utmost the material and moral well-being and social progress of the
indigenous inhabitants of the Territory by a system of indirect govern
ment, as far as this proved feasible. Respondent, therefore, proclairned
its representative, the Administrator of the Territory, to be vested

with a1lthose powers, which, under Native law and custom, were vested
in a supreme or paramount chief 1• Native affairs and matters specially
affecting Natives were expressly excluded from the ordinary powers
conferred on the Legislative Assembly of the Territory 2,and remained
vested in Respondent itself.

6r. Considerations of practical expediency led Respondent 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 consti
tuting such authorities Respondent's agents in this regard 3•Respondent

has, however, reserved to itself certain powers whereby it can exercise
strict contrai over the activities of the local authorities, more particularly
in the respects set out hereunder.
The powers of a local authority to lay out Native residential areas
and to build Native hostels or houses, have been made subject to the

af proval of the Administrator • (since 1 April 1955, of the Minister
o Bantu Administration and Development) 5• Where inadequate or un
suitable accommodation is provided for Natives in an urban area, the
Minister (formerly the Administrator) may, after an en1uiry held. in
public, require the local authority to remedy its default and, faihng

compliance, the Minister (formerly the Admmistrator) is authorized to
do all such things himself as may be necessary to give effect to his

1 P,-oc.No. r5 of r928 (S.W.A.), sec. r, in The Laws of South West Africa 19z8,
pp. 58-6o.
z Act No. 42 of 1925, sec. 26,in Statutes of the Union of South Af,-ica 1925, pp.
752-754.
3
P,-oc. No. 34 of 19z4 (S.W.A.), superseded by Proc. No. 56 of 1951 (S.W.A.).
• P,-oc.~o. 34 of r924 (S.W.A.), sec. 1, in The Laws of South West Africa 1924,
p. 178, and Proc. No. 56 of 1951 (S.W.A.), sec.2, inThe Laws of South West A fl'ica
r95r, Vol. XXX. pp. 94-96.
' Act No. 56 of 1954, sec. 2 (b), in Statutes of the Union of South Ajrica 1954,
p. 559.
6 P,-oc. No. 34 of 1924 (S.W.A.), sec. 2,in The Laws of South West Af,-fra :r924,
pp. 178-179, and Pl'oc.No. 56 of r951 (S.W.A.) y.c. 3, in The Laws of South West
Africa :r95r,Vol. XXX, p. 96.I86 soum WEST AFRICA

requirements, and may recover the expenditure so incurred from the
local authority 1•
62. Similar wide powers are conferred on the Minister where a local

.authority neglects to perform any act which the proclamation requires
it to perform, or if it performs such act in such a manner that, in the
opinion of the Minister, effect is not given to the objects and purposes
of the proclamation. Here, too, the Minister may require the local
authority to comply with his requirements and, on default, remedy
2
the situation himself at the expense of the local authority •
The Minister also bas supervisory powers in respect of the establish
ment, maintenance 3, removal, curtailment, or abolition of Native resi
dential areas or hostels 4, and he may take over a location, Native village
or Native hostel at the request of the local authority if such a course
is desirable in the public interest 5• He supervises payments out of the

Native revenue account referred to in paragraph 52 above 6,approves
.and licenses officersassigned by the urban local authority to the manage
ment of a Native residential area 7,and has the final approval also of
the termination of the services of such officersor the reduction of their
emoluments 8•

63. To keep the Minister advised of the position in ail urban areas,
the proclamation provides for the appointment by him of offi.cersknown
asUrban AreasCommissionersor Inspectors 9• SuchInspectorsarerequired
to keep a watch on the well-being and welfare of the Natives concemed

and are for this purpose given powers of access to the books and accounts
of the urban local authorities 9• Every Native Commissioner is deemed
to have been appointed such an offi.cerfor the area of his jurisdiction 9•
When necessary. such offi.cersreport in writing to the Minister.
In many of the urban areas the Native Commissioner attends the

meetings of the Native advisory board, and reports to the Chief Bantu
Affairs Commissioner on the proceedings whenever be considers this
to be necessary. Copies of the minutes of the meetings of the board
.are, in any case, submitted to the office of the Chief Bantu Affairs
Commissioner for scrutiny and, if necessary, a report thereon to the
.Minister 10•

L. LocalGovemm.ent Outsidethe PoliceZone

64. Ashas already been stated, there are no settled White communities
outside the Police Zone. There are aJso no established non-White towns
or villages, in the sense understood in modem civilizations. Every kraal

1 Pl'oc.No. 34 of1924 (S.W.A.J, sec. 3,p. 179, and Proc. No. 56 of 1951 (S.W.A.),
sec. 4,pp. g6-g8.
2 P,-oc.No. 56 of 1951 (S.W.A.), sec. 34,p. 164.
' Ibid., sec.14, pp. II4-n6.
4 P,-oc. No. 56 of 1951 (S.W.A.), sec. 3 (2),p. 96.
5 Proc. No. 34 of 1924 (S.W.A.), sec. 4, pp. 179-zSo, and Proc. No. "56 of 1951
(S.W.A.), sec. 5, p. 98.
• P,-oc.No. 56 of 1951 (S.W.A.), sec. 17,pp. nS-122.
1 Ibid., sec.21, p. 128.
1 Ibid., sec.21 (1)and (2), p. 128.

1' Ibid., sec.21 (3). p. 128.
0 Ibid., sec.20, p. 126. COUNTER-MEMORIAL OF SOUTH AFRlCA

is an independent entity in itself-economically and otherwise-and
is controlled according to the laws and customs of the particular Native
group concerned, e.g., by a headman, sub-headman, family head, or the
lik.eConsequently local government, in the sense as used in the Memorials,

is asyet non-existent in these communities.

M. To Sum Up in Regard to Local Government

65. The towns and villages within the Police Zone were originally
established as centres for White communal settlement, and were not
designed or intended to accommodate non-White inhabitants, who were
then living in their traditional tribal association.

"The non-Whites, who entered the White man's •.. urban areas,
came solely to seek employment, safety, health, education, all of
which was provided freely by the white man, not knowing of and
not expecting and not even tlùnking of political rights 1."
66. These non-Whites settled in separate areas in the vicinity of

the established towns without having any participation in the commu
nal life of the towns or in their local govemment. This was the position
when Respondent assumed the Mandate-one which was common
enough in all parts of central and southem Africa where White com
munities became established.
On the assumption of the Mandate, Respondent adopted a policy of
goveming the non-White peoples indirectly, and to this end sought to
build up the impaired tribal organizations in the Police Zone, and to
strengthen those outside that Zone. Itdid not, however, seek to rernove
those non-Whites who were living in or adjacent ta the White urban

areas, since it recognized.that from an uonomic point of view-
"it [was] not possible ta regard the European and native spheres of
interest as entirely separable, though they [might] for some purposes
be distinguishable 2".
Respondent realized the desirability of co-operation between the White

and non-White inhabitants of the Temtory in the economic sphere,
for the mutual benefit of all groups.
67. In the settled urban areas within the Police Zone Respondent
fonnd the non-White peoples living haphazardly on the outskirts of the
towns, and Respondent's prime concern then was to provide some
machinery whereby the basic facilities requisite for urban and peri
urban existence could be made available ta these people. The most

obvious and practical way of attending to this need was to make the
White urban authorities responsible for carrying out Respondent's
general policy in this regard. The historical reason, therefore, for the
measure of local govemmental power given to the White municipal
councils and village management boards, subject to central control,
in respect of non-White urban and peri-urban communities, was the
inability of ~the indigenous population, by reason of their complete

1 Live andLei Lfoe, Fact Paper 91 (Apr. 1961), p. (Address delivered by the
Prime Minister,Dr. H. F. Verwoerd, befoi:e. the SoutAfrica. Club, London.in
1961.)
2 Lord Halley, A Su-rvey of Native Affair$ in South Wesl Africa(1946) (un
publishcd), p1.188 SOUTH WEST AFRICA

lack of knowledge and experience, to undertake such local govemment
themselves. Although Respondent, therefore, did not accord the non•
White peoples the franchise in the local govemment of the White areas
in which they were living, it did seek to promote their interests and
general welfare by itself retaining direct responsibility for their separate
development and progress within such urban areas.
68. The representative institutions of the White inhabitants of muni
cipalitiesand village management board areas are subject to the strict

control of the Administrator, who is Respondent's representative in the
Territory, and although certain powers in respect of the general welfare
of non-White inhabitants of the urban areas are delepted to local
authorities, Respondent not only controls the manner m which such
local authorities carry out their duties, but also makes considerable
sums of money available to the local authorities for the adequate pro
vision of housing and general amenities in the non-White residential
areas. Employers of Native labour are also compelled to contribute to
such fonds for the provision of adequate housing and attendant amenities.

69. In order to encourage the non-White urban population to take
an interest in the machinery of local government, and to acquaint itself
with the needs of an urban community, Respondent introduced the sys
tem of Native advisory boards. These boards were designed to convey
the wishes and desires of the Native inhabitants to the local authorities
and to advise them on the needs of the Natives, and at the same time
to serve as a training ground for the Natives to gain experience of the
machinery of local government and the responsibility attaching to it.
The results of this experiment did not measure up to Respondent's
hopes, but it did serve to acquaint the non-White urban dwellers with
the concept of urban local government. A new system is now being
devised whereby greater responsibility for the administration of their

own affairs will be accorded to urban Native councils, fashioned basically
on the model of the Urban Bantu Councils introduced in South Africa by
Act 79 of r96r. These councils will seek to incorporate some of the
authority of the traditional institutions, which still play such an impor
tant part in the lives of the indigenous peop1es of the Territory, and to
combine it with modern democratic elements.
The urban Native councils will give to the indigenous people a greater
measure of responsibility in the regulation of theit own affairs in the
urban areas, although developments in that regard will necessarily
proceed within the framework of Respondent's policy that political
rights and power are to be exercisable by the Native groups within their
own respective homelands and not within the area of the White group as
such.

N. Respondent's Reply to Applicants' Allegations (Memorials)

1. PARAGRAPHS 106 TO II3 OF CHAPTER V 1

{a) Paragraph I06 2

70. Respondent agrees that a structure of local govemment has been
established within the Territory comprising the two principal types of

1 I,pp. 137-139.
2 Ibicl., p. 137. - -----------------

COUNTER•MEMORIAL OF SOUTH AfRICA 18g

governmental units mentioned, viz., municipalities and village manage
ment board areas. These units, however, were provided and intended
only for the local government of the White communities settled in the
towns and villages of the Police Zone. The towns and villages were
themselves established by the White population for their own communal

settlement, and were not originally intended to cater for non-White
inhabitants as well. To the indigenous inhabitants the towns and villages
were strange and unknown concepts and a fortiori the same applied to
local government thereof. Today there are still no non-White towns or
villages outside the Police Zone, and the only non-White urban dwellers
in the Territory are those living in the Native residential areas attached
to municipalities or village management board areas. Those non-White

communities outside the Police Zone have their own traditional form of
government under chiefs, headmen, or sub-headmen.

(b) Paragraph ro7 1

At the close of 1959 there were 17 municipalities within the Territory,
and 12 village management board areas.

The Municipal Ordinance, 1949 (Ordinance No. 3 of 1949), has been
repealed, and the composition and powers of municipal councils are
now governed by the Municipal Ordinance, 1963 (Ordinance No. 13 of
1963). This ordinance also provides that a Councillor must be, interalia,
a European in order to qualify for election to the Council i_
In order to qualify as a voter, a person must be a European who is
either:

(i) a South African citizen over the age of 18 years and who has
resided in the municipal area for at least two months prior to
the last day of August of the year in which his name is to be
registered on the voters' roll, or who has owned immovable
property within the municipal area of a value of at least Rr,ooo
(f500) for at least that penod; or

{ii} a person over the age of 18 years who was domiciled in the
Territory on the date of the commencement of the Ordinance
and has since retained such domicile, and who has owned
immovable property within the municipal area of a value of at
least Rr,ooo (i,500), or occupied such îmmovable property of
a value of at least R2,ooo (f1,ooo) for a period of at least two
months immediately prior to the last day of August of the year
in which his name 1sto be registered on the voters' roll 3•

Every registered Company, association·, society, parlnership or club,
which is the owner of immovable property within the municipal area
of a value of at least Rro,ooo (f5,ooo), and was the owner for at least
the period mentioned in (i)and (ii) above, is also entitled to be enrolled
as a voter on the voters' roll \

i I, p.137
2 Ord. No. 13 of 1963 (S.W.A.), sec. r.~ (1)in Official Gazette Extraordinarof
South Wesl Af1ica, No. 24$<) (29 June 1963). pp. 842-843.
l Ord. No. r3 of 1963 (S.W.A.), op. cit., sec29 {1),pp. 847-848.
4 Ibid,,sec.29 (2),p. 848. SOUTH WEST AFRICA

The members of the Council elect a mayor and a deputy mayor 1, as
well as a management committee 2•

(d} ParagraphI09 3

The Village Management Boards Ordinance, 1937 (Orclinance No. 16
of 1937), has bccn repealed and supersedcd by the Village Management
Boards Ordinance, 1963 (Ordinance No. 14 of 1963). This Orclinance
provides that-

"A Board shall consist of the magistrate of the district concerned
ex otficioor any other person whom the Administrator at his pleasure
may appoint {whoshall be Chairman and Treasurer) and, in the dis
cretion of the Administrator, not less than two and not more than
four other members appointed by the Administrator 4."

Such members are appointed triennially 5, and before making any
such appointment the Administrator is obliged to consult a list of narnes
which may be submitted to him by a nomination meeting 6 of owners
of immovable property and residents of the board area over the age of
18 years 7•
At present all the magistrates holding office in the Territory are
Europeans, for the reasons more fully set out in the section of thi!>

Counter-Memorial dealing with the civil service.
Respondent denies that in the selection of members of the village
management boards the Administrator "follows the consistent pattern
and the dominant philosophy of 'apartheid'" in the sense in which
Applicants use that word in their Memoria1s It is true that in all the
village management boards at present in existence the Administrator
has nominated only White persons to membership, J;,utthis is due to
the fact that such boards fonction primarily in respect of White urban

communities, as has been explained above. There has, in Respondent's
view, never been any valid reason why the non-White communities
housed in and around the European towns, should have, or share in,
municipal governmental powers in respect of the European towns them
selves-towns established specifically by Europeans for their communal
living, the concept of which was initially completely strange to the
indigenous people, and of which they still in fact fonn no real part.

In sofar as the boards were given certain powers also in respect ol the
Native communities attached to their areas 9, subject to stringent
central control 1°, this was necessary for the promotion of the welfare
of such communities. When it was considered tbat they had çained the
necessary knowledge and experience, the Native commuruties were
allowed, inter alia, through the advisory board system, to share in the

1Ord. No. 13 of 1963 (S.W.A.), op. eil.sec. 147 (2),p. 872.
2 Ibid.,secs. 6 (r)and 147 (2), pp. 840, 872.
5 1, p.138.
4 Ord. No. 14 of 1963 (S.W.A.), sec. 8 (1) (a), in Olfieial Giuetu E;drruwdi,sary
of South West Afriea, No. 2490 (29 Jane 1963), p. 959.
5 Ibid., sec.8 (1) (b),p. 959.
6 Ibid., sec.8 (s) (a),p. 96o.
' Ibid., sec.s (s)(b), p. 900.
1 I, para. 109,p. 138
• Vide para. 40,sufwa.
• Vide para.26, sufwa. COUNTER-MEMORlAL OF SOUTH AFRICA

responsibility for the local government in the areas occupied by them.
The contemplated urban Native councils will aim at according them
a progressive measure of participation in the local government of such
areas.

(e) Paragraph no 2.

The administration and control of Native Affairs in the Territory
is primarily the concern of Respondent itself, and the general policy in
this regard is laid down by Respondent. Practical considerations of
expediency, however, have made it desirable that local authorities assist
in the administration of Respondent's policy, subject always to Respon
dent's overriding supervision and control. Sµch supervision and control
vests ultimately in Respondent's Minist~r ~f Bantu Administration and
Development, and machinery bas been constituted whereby the Minister
is kept fully informed of all the local authorities' actions in the carrying
out of their functions in this regard 3•

The powers and duties of the local authorities in regard to the rele
vant aspects of the administration of Native affairs are :erincipally set
out in the Natives (Urban Areas) Proclamation, 1951 (Proclamation
No. 56 of 1951).

(f) Paragraphs III and rra 4 ·

These paragraphs are admitted 5.

(g) Paragrapk II3 6

It is imperative for a Native advisory board to be established for
every Native residentJal area subject to the control of a municipal
council or village management board. The proclamation provides that
such a board shall consist of not less than three Natives resîdent within
the area of jurisdiction of the urban local authority, who may be either
elected or selected as determined by the urban local authority. In
practice an equal number of the members are elected and selected to
most of the boards in the Territory, and in the few instances where the
regulations provide only for selection by the local authority. such
se!ection is from the ranks of the recognized headmen chosen by the
people 7•
The proclamation provides that the chairman of the board may be
a European. In practlce the principal administrative officerof the parti
cular location or his deputy is usually appointed chairman of the board.
The powers and duties of a board as set out in the proclamation
include those mentioned by the Applicants in their Memorials, and

also înclude, inter alia,the right to consider and comment on the urban
local authority's proposed estimates of expenditure out of the Native

l Vide para. 72.,sup,a.
1 1, p. 138.
I Vide para. 87, supY1:1.
4I, pp. 138-139.
• Vide para.43, sup,a.
6 1, p.139.
1 Vide para. 64, sup,a. SOUTH WEST AFRICA

revenue account. The powers and duties of the boards are more fully
dcalt with in paragraphs 51 to 53, supra.
Rcspondcnt docs not reg-.rrdthese boards to have been an unqualified
success, and considers that a representative body with a greater measure
of administrative responsibility for the administration and regulation
of their own affairs should be created for the Native residents in urban
areas. The early establishment of urban Native councils, as explained
in paragraphs 59 and 69, supra, is therefore contemplated, so that a
growing measure of participation may be rendered possible for the
various Native groups in the local government of their urban residential
communities.

Il. PARAGRAPHS 128 (4)AND (6)OF CHAPTER V 1

(a) Paragraph I28 (4)

71. As has becn shown above, there can benosuggestion that Respond
ent bas in any way excluded the Native population of the Territory
from participation in the localgovernment of the municipalities or village
management board areas. For historical reasons the Native population
in fact did not form part of the towns and villages in the Territory, and
thus fell out of consideration for participation in the local government
thereof. In the course of time groups of Natives, attracted to the towns
for Jargely economic reasons, formed communities on the outskirts of
such towns. Urban communal living was unknown and alien to them, and
Respondent's primary task was to improve their material well-being, and
to secure the provision to them ofproper housing and attendant municipal
facilities such as roads, water, Iightmg. sanitation, social amenities and
the _Iike.This was a~c.omplishedlargely thro~gh t~e agency ~f adjoini!lg
White local authonties under Respondent s control and 1ts fmanc1al
assistance.
· The system of Native advisory boards was not established to provide
a "faint approximation" ofsome form of participation in the established
forms of local government, but rather to introduce the Natives to the
processes of local government of tkeirown urban communities so as to Jead
to increasing participation by them in that sphere, as in fact envisaged
for them in the contempla~ed system of urban Native councils.

{b) Paragraph I28 (6)

It is, for the reasons aiorestated, wholly unfounded to suggest, as
Applicants do, that Respondent has "pursued a systematic and active
program which prevents the possibility of progress by the Native popu
lation toward self-respect, responsibility or skill" in the sphere of local
government, and that "by law and by deliberate and çonsistent prac~~ce,
[Respondent] bas failed to promote to the utmost the development of
the Native population in th1srespect, and "made no notable effort to do
so". On the contrary, as has been shown, Respondent bas directed special
efforts towards improving the material and moral well-bein~ and social
progress of the urban and peri-urban Native communities m question,
towards acquainting them with the form and machinery of communal

1
(,pp. 142,143. COUNTElt-MEMORIAL OF SOUTH AFRICA 193

living in towns and villages and with the working of the machincry of
local government, in order thereby to equip them for the assumption of
greater responsibility in the local government of their own constitutive

groups. Thereby Respondent bas systematically, and with considerable
success, promoted, not prevented, progress by the Native population and
achievement of the objectives of the Mandate in these respects.

III. PARAGRAPH 190 OF CHAPTER V 1

72. The allegations contained in this paragraph, in so far as they
relate to local government are largely identical with those in paragraph
1:28(4) and (6) of Chapter V of the Memorials and have thus been dealt
with above. In the light of what has already been said, the allegations

that "the Mandatory offers no horizon of hope to the 'Native' population",
and that "the condition of the 'Natives' is unrelieved by promise of
future amclioration" 2 are likewise devoid of substance, and are denied.

1 Introductory portion is at 1, p. 162 and sub-pa.ra: (ii)(d) at p. I6.Jof the

Memorials.
21, p. 162, CHAPTER IV

CONCLUSION

1
In paragraph 190 of Chapter V of the Memorials ,under the heading
"Legal Conclusions", the Applicants merely repeat the charges fonnu
lated in paragraph 128 of the same Chayter 2, on the strength of the alle
gations connùned in the various sections grouped together under the
general headirig "Govemment and Citizenship".
In the preceding chapters Respondent has dealt with ail these charges,
and has demonstrated that they are without substance. It isconsequently

unnecessary to deal further wtth the said legal conclusions.

11, pp. 162 fi.
1 Jbid., pp. I.f2,I.f3, BOOK VI

CHAPTER I

INTRODUCTION

J.With reference to "security of the person, rights of residence and

freedom of movement", the Applicants allege that, in accordance with
the "legal norrns" formulated by them 1,
"•.. the Mandatory's duties to safeguard and promote the 'material
and moral well-being', the 'social progress' and the 'developmerit'
of the people of the Territory must reasonably be construed to
include:

(4) Security of such persons a.nd their protection against arbitrary
mistreatment and abuse;
(5) Equal rights and opportunities for such persons in respect of
home and residence, and their iust and non-discriminatory
treatment;

(6) Protection of basic human rights and fondamental freedoms of
such persans;

(8) Social development of such persans, based upon self-respect and
civillzed recognition of their worth and dignity as human
beings 2.''

2. As has already been stated 3, Respondent is in general agreement
that these "norms" can, on the whole, be said to be matters to which
regard ought to be had in the exercise of the Mandate, but as ultimate
objectives and notas concepts to be isolated from their context. It has
further been indicated that in Respondent's view the ideal of "e9.ual
rights and opportunities" is not to be regarded as meaning "identical
rights and opportunities", since that would, in circumstances like those
_ofSouth West Africa, tend to defeat rather than to promote this ideal.

And, as bas also been shown, the best and probably the only method of
achieving the ideals envisaged in the "V'arious"norms", is by a policy
which involves differentiation-as was indeed contemplated by the
founders of the mandate system-with a view to striking a fair and
equitable balance betWef!n the legîtimate aspirations of all the peoples
of the Territory.
3. In the following chapters Respondent will reply to the Applicants'

alle~ations under the headings "Security of the Person", "Rights of
Res1dence" and "Freedom of Movement", with a view to showing that
the charges of violations of Article 2 of the Manda.te in these respects
are unfounded.

1 I, pp.107.108,
2 Ibid., p143.
' Vide Book lV, Cbap. II, of this Counter-:Mem.orial. CHAPTER II

SECURITYOF THE PERSON

A. Introductory

r. In paragraph 129 of Chapter V of the Memorials I the Applicants

aver that the Native population of South West Africa is affected by
certain statutory provisions which create "a pattern of comprehensive,
pervasive and tight control" over their lives, inter alia, with regard to
their persona! security, and in paragraphs 130 to 137 2 the Applicants

purport to substantiate their al!egation in this respect.
2. Having alleged that in terms of the statutory provisions in question
Natives within the Territory "are subject to arbitrary arrest, often

without any warrant", in a "variety of situations and under a variety
of circumstances" 3. and that the "powers to make arrests may be
exercised by designated persans at their Iargely uncontiolled discre~
tion" 4, the Applicants conclude:

"In sum, in the entire complex of provisions for the arbitrary
arrest of 'Natives' ... the Mandatory has given consideration solely
to the convenience or advantage of the Mandatory govemment and

of the 'European' citizens and residents of the Territory. The
Mandatory has uniformly failed to promote the material and moral
well-being, the social progress and the development of overwhelm
ingly the lar er part of the inhabitants of the Territory of South
West Africa m tenns of security for their persans ... On the con

trary, by law and by practice, the Mandatory has followed a system
atic course of positive action which thwarts the well-being, inhibits
the social progress and frustrates the development of the great
majority of the population of the Territory in vital and fundamental
5
aspects of their lives ."
3. The provisions on which the Applicants rely are those relating to 6 :
7
(a) Vagrancy •
(b) ldle persans in urban or proclaimed areas 8•
(c) ldle persons in reserves 9•
(d) Undesirable persons in reserves 10•
11
(e) The deportation of persans from the Territory •
(!) Infringement of the pass laws 12•

i I,p. 144.
2 Ibid.,pp. 144-146.
l Ibid,,para. 154 (1), p. 151.
• Ibid,,para. 154 (2}, p. 151.
5 Ibid.,para. 154 (5), pp. 151-152.
' For reasons of convenience Respondent does not strictly follow the sequencc
of the Memorials.

1 Vide I, para. 130, p. 144.
9 Ibid.,paras. 134-135, pp. 145-146.
10 Ibid.,para. 131, p. 144.
Ibid.,para. 132, p. 145.
H Ibid.,paras. 136-137, p. 146.
11 Ibid.,para. 133, p. 145. COUNTER-:MEMORIAL OF SOUTH AFRICA 197

4. Sorne of these provisions are also referred to in the preceding
paragraphs of Chapter V of the Memorials, and are in the context under
consideration apparently relied upon only in so far as they provide for
powers of arrest or similar authoritative action in prescribed circum
stances. Since, however, it is not feasible to deal separately with the
substantive portions of such provisions and with the portions pertaining

to arrests or like actions, it will be necessary to set out hereinafter the
background to, and the reasons for, the enactment of these provisions.
5. Although Respondent does not dispute that Natives within the
Territory may under certain circumstances be arrested without a warrant
by designated persans, itdenies that this applies to Natives only, and
moreover denies that any person in the Territory is subject to arbitrary
arrest.
6. In replying to the Applicants' allegations Respondent will demon
strate that all the above provisions-some of which are incorrectly
quoted or quoted out of context by the Applicants-were enacted in
order to safeguard and promote the material and moral well-beinç-,the
social progress and the development of the inhabitants of the Temtoiy,
and that it is in this spirit that they have always been applied. It will
also be shown that provisions sirnilar to a number of those on which
the Applicants rely, exist in other countries, and that the Permanent
Mandates Commission, although fully aware of such of the above pro
visions as were enacted during the existence of the League of Nations,
never objected to thern.

7. In the result it will become apparent that the Applicants' con
clusions that Respondent has authorized arbitrary interference with
personal liberty, that it has given consideration·solely to the convenience
or advantage of itself and of the European inhabitants of the Territory,
and that it bas followed "a systematic course of positive action which
thwarts the well-being, inhibits the social progress and frustrates the
development" 1 of the Natives of the Territory, are without substance.

B. Vagrancy

l. THE V AGRANCY PROCLAMATION

8. The allegations in paragraph 130 read with paragraph 69 of
Chapter V of the Memorials 2 are based on the ofiences created by
sections 1 and 3 of the Vagrancy Proclamation, 1920. These sections,
in so far as they are relevant, read:
"x. Any persanfound wandering abroad and having no visible
lawful means, or insufficient lawful means of support, who, being
thereunto required by any magistrate, police officer,policeconstable,
superintendent of native locations, or owner or occupier of land, or
who having been duly summoned for such purpose, or brought before
a magistrate in pursuance of this Proclamation shall not give a good
and satisfactory account of himself, shall be deemed and taken to

be an idle and disorderly person, and on conviction thereof shall be
liable to be imprisoned, with or without hard labour, and with or

1 1,para.154 (5),p. 152.
2 llnd.pp. 144 and J27.198 SOUTH WEST AFRICA

without spare diet, and with or without solitary confinement or
any of them, for any period not exceeding twelve months ... 1
3 (r) Every persan found without the permission of the owner

(the proof of which permission shall lie on such person) wand.ering
over any farm, in or loitering near any dwelling-house, shop, store,
stable, outhouse, garden, vineyard, kraal or other enclosed place,
shall be deemed and taken to be an idle and disorderly person; and
on conviction thereof shall be liable to a fine not exceeding one

hundred pounds or, in default of payment, to imprisonment with
or without hard labour, and with or without spare diet, and with
or without solitary confinement, or any of them, for a period not
exceeding twelve months ...
(2) Every person shall be deemed to be an idle and disorderly

person within the meaning of and for ail the purposes of this Procla~
mation, and shall upon conviction be liable to the penalties provided
by subsection 1 of this section, who shall be found without the
permission of the owner of any farm (the proof of which permission
shall be on such persan)

(a) loitering upon any road crossing such farm, or
(b) in or loitering at or near any hut, house or other building upon
any fann, whether such but, house or otber building shall or
shall not be in the possession or occupation of any servant or

apprentice of the owner of such fann, or in the possession or
occupation of any squatter 2." (Italics added.)
9. In the above sections "wandering" means moving about without
any definite abject, and "loitering" bas a corresponding meaning 3•

II. THE ScoPE OF THE PROCLAMATION

10. By paraphrasing the above provisions of the Proclamation in
such a way as to refer to "any 'Native'" instead of "any persan" 4;

by referr1ng to "the precarious sltuation of any 'Native' under the
Vagrancy Proclamation" 5 ;by concluding that "in the entire complex
of provisions for the arbitrary arrest of 'Natives' ... the Mandatory has
~ven consideration solely to the convenience or advantage ... of the
European' citizens and residents of the Territory" 6,and by failing to

mention the fact that the said provisions are applicable also to persans
other than Natives, the Applicants create the impression that the Pro~
clamation applies only to Natives. This is obviously not the case-it
applies to all persons irrespective of race or colour. It consequently does
not discriminate against Natives or, for that matter, against any partie.

1 Sec. 1 as well as sec. 3(1)contains the proviso that no person shall be liable to

be sentenced to undergo spare diet or solitary confinement except dnring the first
three months of any sentence of imprisonment imposed upon him.
iProc. No. 25 of 1920 (S.W.A.), in The Laws of So1'th West Africa r9:c5-:c9u.
p. 280, as amended by Pt'oc. No. 32 of 1927 (S.W.A.), in The Laws of SO'UtliWest
Africta z9a7,pp. 244, 246.
3 Rex v. David Mathifs and GeYtChristian, 1925 S.W.A. 98; Rex v. Haraib Jan.,
1937 S.W.A. 7.
4 I, paras.6g and 130, pp. n7 and 144.
' Ibid., para.130,p. 144.
6 Ibid., para. I54 (5), p. 1I. COUNTER-MEMORIAL OF SOUTH AFRICA 199

ular group or person. The problem of vagrancy has in fact in the past
manifested itself more amongst the indigenous than amongst the Col

oured or White groups, but has by no means been confined to the
Natives, and the effect of the Proclamation has in no way been dis
criminatory.
n. The Applicants appear to object to the above provisions only
upon the erroneous premise that they discriminate against Natives. In
the succeeding paragraphs Respondent will, however, deal with these

provisions on the basis that the Applicants' objection is directed to the
Proclamation as such.

III. THE HISTORICAL BACKGROUND

12. The Proclamation states its purpose to be "to suppress trespass,
idleness and vagrancy" 1•It is submitted that such a purpose in no way

conflicts with the duties imposed by the Mandate. On the contrary the
promotion of the material and moral well-being and social progress ot
the inhabitants of the Territory required and still requires that there
should be a law against idleness and vagabondage. Such a law is required
in the interests of the idle person and the vagrant as well as in the interests
of the other members of the community.

13. The conditions that prevailed in the Territory in 1920 were such
that a law of tlùs nature was imperative to ensure some degree of social
and economic stability in the Territory. ldleness and vagrancy were
then rampant and retarded economic progress in general. Many indivi
duals were roaming about the southem part of the Territory without
any family or connections. Most of these persans had no desire to earn
a living.

This state of affairs was partly due to the disruptive effects of certain
hlstorical events 2and partly to the way of life of some of the indigenous
groups in the Police Zone.
1.4.In this regard it must be kept in mind tbat the indigenous in
habitants of portions of the Territory later comprised in the Police
Zone-i.e., the Herero, the Nama, the Bergdama and the Bushmen

were traditionally nomads who moved about from place to place in
search of new pastures or hunting grounds 3•
15. In their traditional mode of life the Bushmen depended on the
yield of the bush or the hunt for satisfying their daily needs. Production
was alien to their nomadic mode of existence, and when physical de

mands had been satisfied the necessity for such spasmodic labour as was
required to satisfy immediate necessities ceased •.
1.6. The traditions and customs of the Bergdama were originally
similar to those of the Bushmen. At the time they were brought into
contact with a Western type of economy, however, the Bergdama had
to a great extent been enslaved by the Herero and the Nama, and had

ceased to operate in their traditional units. Having been thus enslaved,

1 Proc. No. 25 of 1920 (S.W.A.). Preamble, in The Laws of South Wtst Africa
I9I5·I9ZZ, p. 280.
i Vide Book III, Chap. III, of this Counter-Memoria.l.
3 Ibid.,Chap. II.
• Ibid.,para. 6o.200 SOUTH WEST AFRlCA

they had no experience of labour in a free market, and no real notion
of persona] possessions acquired through organized labour •
17. The Herero and the Nama were traditionally stock fanners, and
any form of organized labour, other than that connected with the care
of stock and the satisfaction of daily needs, was alien to thern. Since

they had no demarcated farms, their stock-farming was of a carefree
nature, herds being mostly tended by children or slaves 2•There was,
furthermore, a marked division of such labour as was necessary, which
left most of the work, even the milking of cattle, in the hands of the
women. In this regard the following extract from a memorandum sub
mitted to the Permanent Mandates Commission by one of its Members,
M. Freire d'Andrade is apposite:

"In native societies, by far the heavier share of the essential work
of the family is generally done by the woman; over and above her
housework, she has to work in the fields, while the man undertakes
the lighter work which Ieaves a large part of his time free for talking,
singing and drinking 3.''

18. lt is consequently clear that for the original adult male inhabitants
of the Police Zone work in an organized sense as in a Western economic
society was largely unknown. It is, therefore, not surprising that while
the Germans brought with them economic activities which created
opportunities for work in the Police Zone, there was relatively little

response from the indigenous inhabitants. In this respect a.considerable
difference in outlook manifested itself as between the Europeans and
most of the members of the indigenous groups.
19. While there was ample opportunity for work, numerous Natives
continued to wander idly from place to place. These vagrants, as time

went on, constituted a grave threat to the settled and law-abiding
Natives as well as to the European community, ma.ny of whom were
spread over a vast area living on isolated farms far removed from police
stations. Being without means of subsistence, these vagrants were
naturally bound to steal from others who, under the most adverse con·
<litions, were struggling to develop and built up their lands and to

increase their stock.
20. The rebellion of r904-1907 4contributed further to the destruction
of the family and communal life of the groups that were involved,
especially the Herero and Nama, resulting in their case in even more
vagrancy. After the rebellion the German authorities prohibited the
Hereros from owning land and stock 5.This measure tended to increase

the numbers of those who wandered about subsisting on what they
could take from others.
21. Respondent does not wish to convey the impression that vagrancy
manifested itself only amongst the indigenous groups of the Territory.

White and Coloured fortune·hunters, and eventually the 1915 campaign,
further aggravated the position, with the result that when the Mandate
was assumed in 1920 it was incumbent upon Respondent forthwith to

1Vid, Book III, para. 70, of this Counter-Memorial.
~ Ibid.paras. 76 and go,
!P.M.C., Min., VII. p. 203.
4 Vide Book Ill,Chap. III, paras. 76-81, of this Counter-Memorial.
5 Ibid.para. 84. COUNTER-MEMORIAL OF SOUTH AFRICA 20I

legislate against this menace. To this end there was passed the Vagrancf
Proclamation, based on Act No. 23 of 1879 (Cape of Good Hope) ,
which was the first vagrancy law passed in South Africa. This Jaw had
been enacted to combat a similar problem and had been found ta work
well in practice, It consequently served as a natural basis for legislation

against vagrancy in South West Africa.
22. The procJamation is in practice not being applied to the northem
areas because the problem of vagrancy does not present itself there to

any appreciable extent. ln this regard it must be kept in mind that
owing to relatively tittle upheaval in these areas prior ta 1920, tribal
life was still intact when Respondent assumed the Màndate, and dis
cipline could consequently be exercised through the traditional authori
ties. Moreover the economy of the groups concerned was of a subsistence

nature, and generally the problem did not exist of disorganized wanderers
with no means of subsistence 2•
23. In the case of the Rehoboth Basters, their Raad later specifically
asked that the proclamation be applied to the Rehoboth Geb-ietand th1s
3
was done hy means of Proclamation No. 7 of 1939 (S.W.A.) •

IV. LEG1SLATION AGAINST V AGRANCY lN ÜTHER COUNTRIES

24. Respondent may point out that legislation of the kind in question
is not something peculiar to South West Africa. Many other civilized

countries have similar statutory provisions aimed at combating idleness
and vagrancy; e.g., the United Kingdom, New Zealand, New South
Wales, Western Australia, Canada, the United States of America,
Ethiopia, Liberia, Egypt and the former Belgian Congo.

The United Kingdom

25. In 1920 the Vagrancy Act of 1824 was still in force in the United
Kingdom, the relevant sections of which read:

"3 ... Every persan being able wholly or in part to maintain himself
or herself, or his or her family, by work or by other means, and
wilfully refusing or neglecting to do sa ... sha.11be deemed an idle
and d1sorderly person within the true intent and meaning of this
Act; and itshall be lawful for any justice of the peace to commit

such offender (being thereof convicted before him by his O\VIlview,
or by the confession of such offender, or by the evidence on oath
of one or more credible witness or witnesses) to the bouse of correc
tion, there to be kept to hard labour for any time not exceeding
one calendar month.

1 Vide Stalutesof the Cape of Good Hope passed by the Sixlh Pa,liament during
lhe SessiQfls r879-r883(I884), pp. 54-6o. This Act wa.sa.mended by Act No. 27 of
1889 (Cape of Good Hope), in Statutes of the Cape of Good Hope passed by the Eighth
Parliament during the SessionsI889-r893 {1894), pp. 46-47.
: Vide Book HI, Cbap. Il, para. 38,of this. Counter-MemoriaL
' Proc. No. 7 of 1939 (S.W.A.), in The Laws of Soulh West Africa I939, Vol.
XVIII, pp. 150, 152.The Vagrancy Proclamation is seldom, if ever, appliein the

Native Reserves within the Police Zone where idleness, etc., aredealt with under
sec.20 of Proc.No. IJ of 1922 (S.W.A.), in TheLaws of South West Africa19r5-i:922,
p. 754, which willbe dealt with more fully hereinafter. Vide para. 89, infra. SOUTH WEST AFRlCA
202

4 . . . every person wandering abroad and lodging in any barn or
outhouse, or in any deserted or unoccupied building, or in the open
air, or under a tent, or in any cart or wagon, not having any visible
means of subsistence, and not giving a good account of himself or
herself ... every person being found in or upon any dwelling bouse,

warehouse, coach-house, stable or outhouse, or in any inclosed
yard, garden, or area, for any unlawful purpose ... shall be deemed
a rogue and vagabond, within the true intent and meaning of this
Act; and it shall be Iawful for any justice of the peace to commit
such offender (being thereof convicted before him by the confession
of such offen"'tlero,r by the evidence on oath of one or more credible
witness or witnesses) to the bouse of correction, there to be kept to
hard labour for any time not exceeding three calendar months ... 1"

26. This Act was amended by the Vagrancy Act, 1935, section I (3)
of which added the following proviso to section 4 of the former Act:
"A person wandering abroad and lodging as aforesaid shall not
be deemèd bv virtue of the said enactment a rogue and vagabond
within the m·eaningof the said Act unless it is proved either-

(a) that, in relation to the occasion on which he lodged as afore
said, be had been directed to a reasonably accessible place
of shelter and failed to apply for, or refused, accommodation
there;
(b) that he is a person who persistently wanders abroad and,
notwithstanding that a place of shelter is reasonably acces
sible, lodges or attempts to lodge as aforesaid; or

(c) that by. or in the course of, lodging as aforesaid, he caused
damage to property, infection with vermin, or other offensive
consequence, or that he lodged as aforesaid in such circum
stances as to appear to be likely so to do.
In this sub-section the expression 'aplace ofshelter' means a place
where provision is regularly made for giving (free of charge) ac
commodation for the night to such persons as apply therefor 2.''

27. Section 3 of the 1824 Act was partially repealed by the National
Assistance Act, 1948 3, and by the Criminal Justice Act, 1948 4, but
section 4 remained as amended by the Vagrancy Act, r935.

New Zealanà

28. Section 49 of the Police Offences Act of 1927 provides:
"Every person shall be deemed an idle and disorderly person
within the meaning of this Act, and be liable to imprisonment for
any term not exceeding three months-

1 5 Geo. 4. c. 83, secs. 3 an4,in The CompleltJStatuttJsof England, classiptld and
annotated in continuation of Halsbu,y's Laws of EnglandVol. 12(1930), pp,913-916.
z 25 & 26 Geo. 5. c. 20, sec. 1 (3), iThe StaJuttJsRtJVised(3rd ed.), Vol.XXII
(1950),pp. 33-34
3 11 & 12 Geo. 6. c. 29, sec. 62 (3) and Seventh Schedule (EnactmentRepealed),
in The Public General Acis and the Chul'&hAssembly Measures of x948, Vol. 1, pp.
282, 304.
4 11 & 12 Geo. 6. c. 58, sec. 1 (2),The Slatutes Revised (3rd ed.), Vol. XXXII
(1950), p. 72. COUNTER-MEMORIAL OF sounr AFRICA 203

''(1) Where any constable has reasonable cause to believe that
any persan has no lawful means of support or has insu:fficient lawful
means of support he may arrest such person, either with or without
warrant, and bring him before any Justice.
·(2) If such person fails to prove to the satisfaction of the Justice
that he has sufficient lawful means of support or that such means
of support as he has are lawful, he shall be deeme<Uo be an idle and
disorderly person within the meaning of this ~. and shall be
liable to imprisonment for a term of three months.

(3) The fact that any person charged under this section can pro
duce or prove that he possesses money or property shall not be
taken into account in deciding such charge unless he shows by bis
own or other evidence that he honestly obtained such money or
property. · ·
(4)This section shall be deemed to form part of the last preceding
section 2."

30. Section 52 {1) contains ten categories of persons who shall be
deemed rogues and vagabonds and be liable to imprisonment with bard
labour for a term not exceeding one year 3• One of these categories
comprises any person-
"Who is found by night without Jawful excuse (the proof of which

excuse shall be on hlm) in or on any building or in any enclosed yard,
garden, or area, or in or on board any ship, launch, dredger, yacht,
boat, or other vessel 4."

NC'liS,outh Wales

31. The relevant subsections of section 4 of the Fourth Vagrancy Act
of 1902 read as follows:

"(1) Whosoever-
(a) having no visible lawful means of support, or insufficient
lawful means, does not, on being required by or summoned
to appear or brought before a justice in pursuance of the
provisions of this Act, give a good account of his means of

support to the satisfaction of the justice ...
shall, on conviction before any justice, by h.is own view or other
wise, be liable to imprisonment with hard labour for a term not
exceeding six months.
(2) Whosoever-
...........

(i) having any unlawful purpose is found in any dwelling-house,
warehouse, coach-bouse, stable, or outhouse, or in any en-

1
Act No. 35 of 1927 (New Zealand), sec. 49, in The Statutes of New Zealand
· I255(1956), Vol. Ilp. 1781.
3Act No. 35 of 1927 (New Zealand), sec. 50, pp.1781-1782.
Ibid.,sec, 52 (1), pp. 1782-1783.
• Ibid.,sec. 52(1)(i), p. 1783. 204 SOUTH WEST AFRICA

closed yard, garden, or area, or on board any shlp or vessel in

any port, harbour, or place withln New South Wales ...
shall, on. conviction before any justice, be liable to imprisonment
with bard labour for a term not exceeding six months ... 1."

Western Australia

32. Section 65 of the Police Act 1892-1952, provides, inter alia:

"Every person who shall commit any of the next following offences
shall be deemed an idle and disorderly person within the meaning
of this Act.. nd shall on conviction be liable to imprisonment for
any terrn not exceeding six calendar months with or without hard

labour:
(1) Every person having no visible lawful means of support or
insufficient lawful means of support, who being thereto required
by any Justice, or who having been duly summoned for such

purpose, or brought before any Justice, shall not give a good
account of his means of support to the satisfaction of such
Justice 2."

Canada

33. Section 162 of the Criminal Code provides:
"Every one who, without Jawful excuse, the proof of which lies

upon hlm, loiters or prowls at night upon the property of another
person near a dwelling bouse situated on that property is guilty of
an offence punishabie on summary conviction 3."

34. Section 164 reads:
(1) Every one commits vagrancy who-

(a) not having any apparent means of support is found wandering
abroad or trespassing and does not, when required, justify his
presence in the place where he is found;

~ ' . . .
(2) Every one who commits vagrancy is guilty of an offence
punishable on summary conviction 4."

The United States of America

35. There exist in the United States approximately 50 vagrancy laws
which are included in the Penal or Criminal Code of each of the mdivi
dual states. The rules governing vagrancy in ail the states are sub
stantially similar, and have been summarized as follows:

"State legislatures and municipal governing bodies, acting under
delegated authority, may within certain limitations imposed by the
organic law of the State, define vagrancy and impose punishment for

1
Act No. 74 of 1902 (New South Wales), sec. 4 (1) (a) and 4 (2) (i), The Stalutes
of New South Wales (Public and Private) /1903),pp. 541-543.
255° Victoriae No. 27, sec. 65, in TheRep,inted Acis ofthe Parliament of Western
Australia (1954), Vol. 6,p. 29.
3 Chap. 51, 2-3 Eli2:abeth II, 1953-54 (Canada), sec. 162, in C,iminal Code and
Selected Statutes(1954),p. 52.
• Ibid.,sec.164, pp. 52-53. COUNTER-ME?-!OR\AL OF SOUTH AFRlCA 205

the offence of vagrancy. The validity of such statutes has been
upheld against objections that they were in violation of the State
or Federal Constitutions. Statutes whlch have been upheld define
as vagrants, inter alia, able-bodied persans who habitually loaf,
loiter and idle in public places for the larger portion of their time
without regular employment, without visible means of support,
persans known to be pickpockets, thieves or burglars, persans who
may be found loitering around houses of iIIfame, gambling bouses
or places where liquor is sold to drink, persans tramping or wandering
around from place to place without visible rneans of support ...
Punishrnent provided by statutes conceming vaooincy is gencrally

a fine or a gaol sentence with or without hard labour, usually up to
six rnonths, or one year, or three years, according to the laws of the
different States ."

Ethiopia
36. Article 471 (1) of the new Penal Code for the Ethiopian Empire
reads as follows:

"He who has neither domicile nor regular work nor specified or
apparent means of subsistence and who, whilst in good health,
ordinarily and deliberately leads a life of vagrancy, misconduct,
expediency or beggary whilst refusing to accept honest and re
munerative work which he would be capable of doing and thereby
shows himself to be dangerous to public safety, is liable to be sen
tenced to compulsory labour with restriction of liberty (Article 103)
or imprisonment for a period up to six months 2." (Translated from
the French.)

37. In term.s of Article 471 (3) protective measurcs restricting his
freedom may be imposed on a convicted person over and above the sen
tences prov1ded for in Article 471 (1). These measures are contained,
inter alia,in Articles 149, 150 and 151 of the Penal Code which provide:
"Art. 149 .•. 1°. The judge has the power to impose on the con
victed, over and above the penalty, a restriction on the access to or

frequenting of such places as have contributed to the perpetration
of offences or may enable him to offend anew, particularly bars,
amusement halls, markets or other public places.
2°. In his judgment the judgeshallstipulatethelimitsandduration
of the prohibition, which shall vary between three months to one
year."
"Art. 150 ... 10. The prohibition may for similar reasons be
imposed in cases where prevention appears necessary, and entails a
prohibition of establishment or entry in a town, village or deter
mined area.
2°. The prohibition may be temporary or permanent, depending
on the gravity of the offence, the character of the offender and

general circumstances ...
The judge shall stipulate in his motivation the territorial limits
and duration of the prohibition."
1
Report of the Ad Hoc Committee on Forced Labour, Ecosoc. O.R., I6th Sess.,
Su2. No. 13,p. 004.
Le Code Pénal de l'Empire d'Ethiopie du ZJ fui/let I9(1959), Art. 471 (1p.
134.206 SOUTH WEST AFRICA

"Art. 151 ... 1°. The judge may also, for determined and justified
reasons, particularly when the offender has revealed himself, as a
troubler-maker and his presence entails probable risks of vengeance,

or new offences, order compulsory residence in a determined region
or place. ·
20. The judge shall stipulate the limits, the place and duration of
the order of restricted residence, which may not be shorter than one
year and not longer than five years.
30.When the preventative measure, on condition of good conduct,
(Article 139) appears sufficient, taking into account the character

of the delin~ent and yeneral circumstances, the judge may limit
the application thereof ." (Translated from the French.)

Liberia

38. Under section 346 (b) of the Penal Law of Liberia any ablé
bodied persan who lives idly without any visible business, employment,

means of living or support, and who is offered employment and refuses
to be employed or to work, may be convicted and sentenced as a vagrant.
Moreover, any sheriff, constable or policeman apprehending a vagrant
is entitled to a monetary reward if the vagrant is convicted 2•

Egypt

39. Decree No. 98 on Vagrants and Suspect Persons of 4 October 1945
provides, inter alia:
"r. A persan is considered as a vagrant in terms of this Law
decree, when he has no legitimate means of suppqrt.-Excluded are
those who have a profession or a trade but who find themselves
momentarily without work.-However, those who practice ç-aines

of chance, quackery, the profession of fortunetelling and ail stmilar
practices, are not considered as having legitimate means ùf existence.
2. Those accused ofvagrancy shall be placed under the surveillance
of the police for a period of six months to five years.-In case of
recidivism the sentence shall be imprisonment and once again surveil
lance by the police for a period of one year to five years.
3. Instead of inflicting on a vagrant the sentence as set out in the

first part of the preceding article, the judge may formally caution
him to take steps to modify his irregular state of existence which
constitutes a state of vagrancy. Against this judgment no claim
whatsoever to appeal will lie.-Should the condemned resort to
vagrancy within three years after having been cautioned the penalty
fixed in the first part of the preceding article will be applied obliga
torily 3." (Translated from the French.)

1 Le Code pénal, op. dt.,p. 70.
zTille :17, LibeYian Code of Laws, z956, as cited in Report of the Commission
appointed under Artiûe 26 of the Constitutioofthe Inlernatit:mal Lah01,trOrganisation
lo examine the Complaint filed bythe Governme1't of Portugal cqncerning the Obset-.
vance by the Govemment of Liberia of the Forced Labour Convention, z930 (No. :19)
(1963), para. 143,p. 115.
• Dlcrel-lbi n. 9sur les vagaJxmdsel les personnes suspe&Jes,+ octobre J9.f5, in
Répertoire Permanent de Législation Egyptienne (1952), Vagabondage, p. 1I. COUNTER•MEMORIAL OF SOUTH AFRICA 207

The Forme, Belgian Congo

40. The Royal Decree of 23 May 1896 modified by the Decree of
u J uly 1923 provides:

"1 ••. AU persons of colour found in a state of vagrancy or
beggary willbe arrested and will be brought before the competent
court.
2. The court will as far as possible asccrtain the identity, the age,
the physical condition, the mental condition and the way of life
of the individual broug);lt before the court for vagrancy or beggary.

3. The court will hand over to the Govemment to be imprisoned
in one of the establishments as laid down in article 6, for a period
not less than one year and not more than scven years, those persons
who exploit charity as professional qeggars, and those who by
idleness, habitual drunkenness or dissolute moraJs, lead a life of
habitua] vagrancy.
4. Persons found leading a life of vagrancy or beggary, under

circumstances not laid down in the preceding article, will also be
handed to the govemment to be imprisoned for not more than one
year.
5. The Governor-General may at all times conduct to the frontier
those adult and able-bodied persons of foreign nationality who are
found begging or leading a Iife of vagrancy or who have been sen
tenced to imprisonment.
6. Those persons who have been sentenced as vagrants and handed
1
to the govemment will be imprisoned in work-houses or -shops ... "
(Translated from the French.)

41. Further examples are:

Southern Rhodésia

Act No. 23 of 1879 (Cape of Good Hope) 2 was made applicable to
Southern Rhodesia {then known as Mashonaland) in 1891 3• The pro
visions of this Act are almost identical with those of the Vagrancy Pro
clamation of South West Africa. The Act was in force in Southern

Rhodesia for approximately 70 years before its repeal by the Vagrancy
Act, I960 •.
Section 2 of the latter act defines a vagrant, inter alia, as
"(a) any beggar;
(b) any persan wandering about and unable to show that he bas
employment or visible and sufficient means of subsistence;

1Strouvens, L. and Piron, P., CodeetLois du Cot1goBelge (6th ed.), pp827-828.
These decrees were amended by a decree of June 1958 (Bulletin officiel, Jilly
1958), leaving the detention of vagrants to the discretion of the courts and intro
ducing equality of treatment as between indigenous and non-indigenous vagrants.
Vide U.N. Yea~book on Human Rig/us fo,,1958 (196o),p. 287.
z Viù para. 21, supra.
3Vide The Slatute üt,w of Southern Rhoùsia in force on thIst Day of Janua,y,
1939, Revised Edition (1939),Vol. I, Chap. 45, pp. 605-6o8.
• Act No. 40 of 1960 (Southern Rhodesia), in The Statute Law of Southern Rhodesia
1960 (1961), pp. 321-329. SOUTH WEST AFRICA
208

(e) any person who is unable to show that he is living by honest
1
means and has a scttled way of honest living ."

Northem Rhodesia

Section 158 of the Penal Code of 1931 provides, inter alia, that every

suspected person who has no visible means of subsistence and cannot
give a good account of himself, and every persan found wandering in or
upon or ncar any road or highway or any place adjacent thereto or in
any public place at such time and under such circumstances as to lead

to the conclusion that such persan is there for an illegal or disorderly
purpose, shall be deemed to be a rogue and vagabond, and shall be guilty
of a misdemeanour 3•

Pakistan

In tenns of section 55 (i) of Act V of 1898 any officer in charge of a
police station may, without a warrant, arrest or cause to be arrested
any persan within the limits of such station who has no ostensible means

of subsistence, or who cannot give a satisfactory account of himself 4.

Kenya

ln terms of Ordinance No. 9 of 1920 (Kenya) vagrancy is an offence
and "a vagrant" includes any person wandering about and unable to
show that he has employment or visible and sufficient means of sub
sistence 5•

Uganda

Vagrancy is punishable with imprisonment for three months. A
··vagrant" means any persan found asking for alms or wandering about

without employment or visible means of subsisten~e. and includes any
Native of the Protectorate found without employment and fixed abode
and unable to render a satisfactory account of himself, at such a distance
from his ordinary place of abode as to make it impossible for him to
6
proceed there without assistance •

Bechuanaland

Act 23 of 1879 (Cape of Good Hope), on which the Vagrancy Pro-

1 Act No. 40 of 196o (Southern Rhodesia}, in The Stalute Law of Southern Rho-
desiai-960 (1961). sec.2, p. 322.
2 Laws of Northun Rhodesia, 1963 Edition, Vol. I. Chap. 6, p. 74.
l For a first offence the maximum punishment is imprisonment for three months,
and for every subsequent offence imprisonment for one year.
4 Chapter V of the Code of Criminal Procedure, 1898 [Pakistan] (Act V of 1898),
sec.55 (i},as cited in "Freedom from Arbitrary Arrest, Detention and Exile", in

U.N. Yearbook on Human Rights: First Suppletne11tary Volume (1959),p. 178.
j Ord. No. 9 of 1920 (Kenya), as amended, in The Laws of Kenya in force on the
2ISI Day of September, z948, Revised Edition, Vol. I, Chap. 59,p. 76g.
6 01'd. No. 2 of 1909 (Uganda), as amended, sec. 2, in The Laws of lhe Uganda
Protutorate in force on thISt Day of January, z95z, Revised Edition, Vol. II, Chap.
47, p. 787. COUN1'ER-MEMORIAL OF SOUTH AFRICA
209

clamation of South West Afrièais based, is still in force in the Bechuana
land Protectorate 1•

Basutoland

Chapter 31 of the Laws of ilasutoland provides that every person
found loitering near any dwelling, house, hut, store, etc., without lawful
excuse or reason, shall be deemed to be an idle and disorderly per.,;on

and upon conviction liable to a fine not exceeding five pounds or to im
prisonment with or without hard labour for a period not exceeding three
months 2•Furthermore, Act No. 23 of 1879 (Cape of Good Hope) is still
in force in the Territory 3.

V. THE PARTICULAR PROVISIONS OF THE PROCLAMATION

42. In paragraph 130 of Chapter V of the Mcmorials ~ the Applicants
appear to lay particular emphasis on those portions of sections 1 and 3
of the Proclamation which are concerned with the arrest of suspected

offenders and matters attendant thereon. Thus they set out that under
the proclamation an offender may be arrested, with or without a warrant,
not only br any magistrate or police officer, but also by any owner or
occupier o land upon which the offender may be found, and that in
addition every owner of a farm may enter without a warrant into any
hut, etc., upon such farm for the purpose of scarching for any idle and

disorderly person.
43. ln the ultimate summary of the charges under consideration the
Applicants furthermore complain that Natives are subjcct to "arbitrary
arrest, often without any warrant", and that the "powcrs to make

arrests may be exercised by designated persons at their largely uncon
trolled discretion" 5.Although not stated in so many words, it therefore
seems that the Applicants' complaints regarding the provisions of the
Vagrancy Proclamation comprise one or more or all of the following:

(a) that the power o[ arrest, with or without a warrant, is given at all;
{b) that such power of arrest is an arbitrary one, or is excrcised at the
uncontrolled discretion of the persons upon whom it is conferred;
{c) that such power of arrest is extendcd to owners or occupiers of land
on which an idle and disorderly persan is found;

(d} that an owner of a farm is empowered to enter and search any hut,
etc., on his land.
In the succeeding paragraphs Respondent deals seriatim with these
aspects.

1 Vide Froc. 1'0.36 of 1909 (Bechuanaland), 22 December 1909, in The Laws
of thi Bichua11aland Protectomte, containing the Ordet's-in-Council, Proclamations
and Notices made thereunder, in force on the 1st Day of January, 1948, Revised
Edition, Vol. I, Title IV, Chap.27, p. 251.
2 Revised Edition ofthe Laws of .Basutoland in force011lht ni Day of January,
r949 (1950), Vol. III, Chap. 31, pp. 22 r-221.

' Vilk Proc. No. 2B of 1884 (Basutoland), as amended, sec. 2, in Revised Edition
of the Laws of Basutoland in force on theTStDay of January, 1949, Vol. 1, Title Ill,
Chap. 26,p. 408.
• l,p. 144.
, Ibid .para. 154 (1) and (2),p. 15r.2IO SOUTH WEST AFRICA

(a) The Power of Arrest As Such 1

44. Had the Proclamation provided that a va~ant should not be·
arrested but summoned to appear before the court, 1twould have meant,
in given situations, that the owner of a fann would fi.rst have to travel
to the nearest police station, which might be up to 150 miles away, to
lodge a complaint. Thereupon the police oflicer wouid have to travel

to the farm, probably a few days later, to serve the summons. Bearing
in mind the probable character of the person concerned, it may safely
be assumed that he would no longer be on the farm on the arrivai of
the police offi.cer, or even if still there, that he would not obey the
summons and attend court. If a warrant for his arrest were then to be
issued, he would in ail probability have disappeared by the time of

attempted service of such a warrant. To a lesser extent the same prob
lems would be encountered in urban areas. The vagrant apprehended
by a police officer in a city would obviously not wait for the latter to
return with a warrant for his arrcst, and probably having no fixed abode,
would not easily be found.

45. It follows that not only would the alternative course cast an
onerous financia] burden upon the inhabitants, but it would be completely
impracticable in its application, thus frustrating the object of the
Proclamation by rendering it ineffective to combat the very evil it was

designed to remedy.
46. In most countries which have legislated against vagrancy it was
realized that the evil could not effectively be combated unless the power

of summary arrest was given. The following statutory provisions in
certain countries are in point:
(i) The United Kingdom

"It shall be lawful for any person whatsoever to apprehend any
person who shall be found offending against this Act, and forth
with to take and convey him or her before some justice of the

peace . . . or to deliver him or her to any constable or other
peace officer ... 2"
{ii) New South Wales

"Any person found offending against this Act may be appre
hended by a constable or other person ... 3"

(iii) Western Australia

"Any person found committing any offence punishable in a
summary manner 4 may be taken into custody without a warrant
by any officer or constable of the Police Force, or may be appre
hended by the owner of the property on or with respect to which
the offence shall be committed ... 5"

1 Vide para. 43 fa), sup,-a.
2 5Geo. 4. c. 83, sec. 6,The Compltte Statuteof England, Vol. 12 (1930)p. 918.
3 Act No. 74 of 1902 (New South Wales), sec. 9 (1), iThe Statutes ofNew South
Waks (Public and Private) (1903),p.544.
4 Vagrancy is such an offence.
5
55° Victoriae No. 27, sec. 49,The Re,PYinledActs of the Parlia-nt ofWestern
Àustralia(1954), Vol. 6, p. 23. COUNTER·MEMORIAL OF SOUTH AFR!CA 2II

(iv) Canada
"Any one may arrest without a warrant a persan whom be fmds
1
committing an mdictable offence ."
{v) Southern Rhodesia

"A police officer may arrest without warrant any persan wbo
appears to be a vagrant ... 2"

47. As bas already been pointed out 3. Act No. 23 of 1879 (Cape of
Good Hope) is still m force in Basutoland and Bechuanaland, and the
power of arrest in these countries is therefore identica1 with those in

South West Africa. The power of arrest (without a warrant) is, to men
tion only a few more countries, also given in New Zealand \ Uganda ~.
Kenya 6, Pakistan 3,and the former Belgian Congo ln Liberia provision
is moreover made for the payment of a monetary reward, on conviction
of any vagrant, to the police officer who apprehcnded him 8•

48. Quite evidently, therefore, it has been widely accepted that the
conferment of a rower of arrest is expedient and desirable for the success
ful combating o vagrancy.

(b) The AllegedArbitrary or UncontrolledNature of the Power of Arrest 9

49. Any power of arrest without a warrant necessarily confers a
certain discretion. But the Vagrancy Proclamation of South West Africa

no more authorizes an arbitrary arrest, or the exercise of a discretion in
an uncontrolledmanner, than does the legislation of any of the other
countries referred to above.

50. No proof is furnished by Applicants to show that the power
of arrest under the Proclamat10n is in practice exercised in an arbi
trary manner, and Rcspondent is not aware of any case in whlch it has
been so exercised. In any event, should this happen the arrested person

would be able to avail himself of his civil remedy-a daim for dam
ages-on the same grounds as any other persan who has been unlaw
fully arrested.

5r. The inhabitants of South West Africa are further protected by

1 Chap. 51, 2-3 Elizabeth II, 1953-1954 (Canada}, sec. -43-4,in Ct<imittal Gode and
Selected Statutes (1954), p. 144. Vagra.ncy is an indictable offcnce.
1 Act No. 40 of 196o (Southern Rhodesia.), sec. 3 (r), in Thr Stalute Law of Southern
Rhod.esia 1960 {1961),p. 322. Up to 196o, when Act No. 23 of 1879 (Cape of Good
Hope) wa.s repealed'by Act No. 40 of 196o (Southern Rhodesia), sec. 17, the power
of arrest was identical with that in South West Africa. Vide para. 41, supra.
3 Vide para. 41, suprca.
4 At::t No. 35 of 1927 (New Zealand), sec. 50 (r), in The Statutes of New Zealand
I955 (1956), Vol.II,p. 1781.
' Vide Ord. No. 2 of1909 (Uga.nda), as amended, sec. 3, in The Laws of the Uganda
Protectorate in force on the zst Day of January, r95r, Revised Edition, Vol. ll, Chap.

'46,p. 787.
Vide Ord. No. 9 of 1920 (Kenya), as amended, sec. 3, in The Laws of !<enya in
/~u on the arst Day of Septembu, r9.,S, Vol. 1,Chap. 59, p. 709.
1 Vide para. 40, supra.
1 Vide para. 38, supra.
' Vide para. 43 (b), supra.212 SOUTH WEST AFRICA

1
section IS of the Proclamation, which makes it an offence on the part
of a person 2:
"... who shaJI, under colour of this Proclamation, wrongfully and
maliciously, or without probable cause, arrest, or cause to be arrested,
3"
any person... .
52. It should be noted that any person arrested without a warrant
must, in terms of section 33 of the Criminal Procedure and Evidence

Proclamation, 1935 4.as soon as possible be brought to a police station
or charge office and detained until a warrant is obtained for his further
detention upon a charge of an offence, and he should as soon as possible
be brought before a judicial officer upon such charge. Such person may
not be so detained for a longer period than is reasonably necessary to

obtain a warrant for his further detention, and in any event such period
shaJI not exceed seven days. .
53. These safeguards against abuse of the power of arrest under the
Proclamation therefore again refute the suggested "arbitrary" or "un

controlled" nature of the power.

5
(c) The Gra1tlof the Power of Arrest to Land Owners and Occupiers

54. For obvious reasons the power of arrest is in other countries also

extended to persons other than officiais, as will be observed, e.g., from
the extracts of the relevant legislation of the United Kingdom, New
South Wales, Western Australia and Canada quoted above 6•
55. If the right of arrest were to be confined in South West Africa to

officiais, the Proclamation would to a large extent be rendered nugatory
for the reason that most farmers are too far removed from the police
or other officiais. And as has already been pointed out 7,a vagrant found
by the owner or occupier of land-be it in a rural or urban area-would
obviously not wait for such owner or occupier to return with an official

who has the power of arrest.
56. In the result this aspect, too, does not afford any support for the
Applicants' averments.

1 Punishable with a fine not exceeding /,5 or in default of payment, imprisonment
not exceeding three months.
2 Although such a person is also Hable to pay the arrested person such amount,
not exceeding the sum of {.5as and for damages, as the magistrate before whom such
arrested person is brought for trial may award, the section does not deprive an
aggrieved person of bis civil remedies. .
' Proc. No. 25 of 1920 (S.W.A.), sec. 15,in The Laws of Soutll West Africa 1915-
1922, pp. 284-285.
• Proc. No. 30 of 1935 (S.W.A.), sec. 33, in The Laws of SouJ/1 West Africa 1935.
Vol. XIV, pp. 174, 176.
' Vide para. 43 (c), supra.
6
Vide para. 46, supra. Reference may also be made to sec. 437 of the Canadian
Criminal Code (Chap. 51, 2-3 Elizabeth II, 1953-1954, p. 145) which provides in
general terms that the owner or persan in Jawful possession of property may anest
without warrant a persan whom he finds committing a criminal offence on or in re
lationto that property.
7 Vide para. 44, supra. COUNTER-MEMORO IAFSOUT}A {FRICA 213

(d) The Righi of Entry and Search 1

57. The right conferred upon an owner of a farm to enter without a
warrant any hut, house or other building upon such farm "for the purpose
of searching for any idleand disorderly persan", is a natural corollary of
the right of arrest, and if not given, could largely frustrate the latter
right.In any event, the right of reasonable entry into premises on his
land is possessed by any owner under common Law.

VI. THE PRACTICAA LPPLICATION OF HIE PROCLAMATION

58. In recent years there have been relatively few prosecutions under
the Proclamation, and the indications are that the legislation has had
a salutary effect. In cases where imprisonment was imposed, the period
rarely exceeded 14 days. Spare diet and solitary confinement are not
nowadays imposed for contraventions of the Proclamation.

59. The following table shows the number of com•ictions under
sections 1 and 3 of the Proclamation during the period 1959 to 1962 2:
1959 1960 1961 1962

Section 1 98 82 56 50
Section 3 30 35 46 18

VII. TaE ATIITUPE oF THEPERMANENT MANDATEC S0MM1ssI0N

60. The Permanent Mandates Commission was fully aware of the
provisions of sections r and 3 of the Vagrancy Proclamation, which
were referred to and summarized in the annual reports submitted by
Respondent to the League of Nàtions.

6r. In the 1920 annual report it was stated that "the offences of
trespass, idleness and vagrancy were dealt with in Proclamation No. 25,
on the lines of the Cape Vagrancy Laws" 3•In the 1921 report reference
was made 4to the enforcement of the laws against vagrancy in order to
combat idleness, and in the 1922 report full details were given 5of the

provisions of sections I and 3 of the Proclamation.
62. While the Permanent Mandates Commission never obiected to
the provisions of these sections, inclividual members of the Commission
in fact spoke out strongly in favour of the vagrancy legislation. So, for
instance, during the Fourth Session of the Commission in 1924 M. Freire
d'Andrade is reported to have said:

"ln civilised countries the law punished both vagrants and those
who could not show that they worked for their living, and it was
only right that the same principle should apply to natives who
refused to work.
Civilisedsociety only allowed those to livein idleness who possessed
the means of subsistence, property or capital ... 6"

1 Vide para.43 (d)supra.
i Departmenui.l information.
' U.G.2~1921, p.2.
' U.G. 32-1922, p.u.
' U.G.21-1923, p. 10,
6 P,M.C., Mfo., IVp. 116.214 SOUTH WEST AFRICA

63. In a memorandum submitted to the Commission M. Freire
d'Andrade further said:
"At the six.th meeting of the first session of our Commission;I had

an opportunity of expressing my view on the labour question {see
pages 30 and 31 of the Minutes), and I insisted upon it throughout
our proceedings. If forced labour is to be absolutely forbidden,
except when imposed by courts of law, natives must not have the
right to do no work, unless they have means which enable them to

live and to contribute towards the development of the country
otherwise than by their labour.
If vagrancy is punished in our civilised societies, it cannot be
permitted in Africa either for the natives or other inhabitants 1.''

VIII. CONCLUSION

64. In the result it is submitted that the relevant provisions of the
Proclamation in no way afford support for the Applicants' charges,
particularly in that-

(aJ these provisions apply to all persons and not only to Natives 2 ;
(b) persons falling within the ambit of these provisions are not
subject to arbitrary arrest 3; and
(c) it is not correct that powers to make an-est may be exercised by

designated persons at their largely uncontrolled discretion 4.
On the contrary, the Proclamation constitutes a positive step to pro
mote the material and moral well-being and social progress of the
inhabitants of South West Africa.

C. Id.lePersons in Urban and Proclaimed Areas

1. THE NATIVES (URBAN AREAS) PROCLAMATION

65. The exposition in par~aph 134 read with paragraph 68 of Chap
ter V of the Memorials 5 is, m certain respects, to be indicated below,
not an accurate and full reflection of the relevant purport of section 26
of the Natives (Urban Areas) Proclamation 1951 6, which has been
amended by Ordinance No. 25 of 1954 {S.W.A.) 7• In terms of the

amended section-in so far as it is relevant-an authorized officer may,
whenever he has reason to believe that any Natîve within an urban or a
procJaimed area 8 is an idle person within the meaning of paragraph (a)

1 P.M.C., Min., VII, p. 203.
2 Vide l,para. 154 (5), pp. 151-152 and para. 10,supra.
3 Ibid.para. 154 (1), p. 151 and paras. 49-52,supm.
4 Ibid.,para. 154 (2), p. 151 and paras. 49-52supra.
5I, pp. 145 and 126-127.
6Proc. No. 56 of 1951 (S.\V.A.),sec. 26, inThe Laws ofSaulh West Africa 195r,

Vol. XXX, pp. 144-146.
' Ord. No. 25 of 1954 (S.W.A.), sec. 10, inThe Laws a/ South West Africa 1954,
Vol. XXXIII, pp. 745-751.
1 In terms of sec. 22 (1), as amended by Ord. 25 of 1954(S.W.A.),sec.9,pro
claimed areas are urban or otber a.reas in which there is a large number of Natives
and which have been declared such by the Govemor-General (now the State Presi
dent) by notice in the Official Gazette. COUNTER-MEMORIAL OF SOUTH AFRICA 215

of sub-section (1),without warrant arrest that Native and cause him to
be brought before a Native commissioner or magistrate who shall require
the Native to give a good and satisfactory account of himself. If any
Native who has been so required to give a good and satisfactory account
of himself faits to do so, the Native commissioner or magistrate enquiring
into the matter shall declare lùm to be an idle person 1•

66. According to section 26 (1) (a) a Native is an idle person if:
"(i) he is habitually unemployed and has no sufficient honest means
of livelihood; or

(ii)because of his own misconduct or default {whichshall be taken
to include the squandering of his means by betting, gambling or
otherwise) he fails to provide for his own support or for that of
any dependant whom he is legally liable to maintain; or
(iii)he is addicted to drink or drugs, in consequence of which he is
unable to provide for his own support or is unable or neglects

to provide for the support of any dependant whom he is legally
liable to maintain; or
(iv) he habitually begs for money or goods or induces others to beg
for money or goods on his behalf 2."
67. If a Native commissioner or magistrate declares any Native to

be an idle person he shall:
"(a} by warrant addressed to any police officer order that such
native be removed from the urban or proclaimed area and
sent ta hls home or to a place indicated by such native com

missioner or magistrate, and that he be detained in custody
pending his removal; or
(b) if such native agrees to enter and enters into a contract of
employment with such an employer and for such a period as
that native commissioner or magistrate roay approve, order

that such native enter into employment in accordance with
the terms of that contract 3." (Italics added.)
68. It will be noticed that the words-

''... or has without leave or other lawful cause habitually absented
hirnself during working hours from his emplor,er's premises or other
place proper for the performance of his work '
which appear in paragraph 134 of Chapter V of the Memorials +, and
5
which originally formed part of section 26 (1) (h) , have fallen awar.,
having been repealed by Ordinance No. 25 of 1954 (S.W.A.) 6• It will
further be noted that while the Applicants state that a Native who bas
been declared an idle persan may be "ordered into employment" 7,they

1 Sec. 26 (2),in The Laws of South West Africa I954, Vol. XXXIII. p. 749. Since
the Applicants do not refer to the power of a magistra.te or a native commissioner
to declare a Native an undesirable person within the meaning of para. (b) of sec.
26 (1), Respondent does not propose to deal specifically with such power.
l Vida The Laws of South Wut Africa 1954, Vol. XXXIII, p. 745·
3Sec. 26 (3}. Vide The Laws of South West Afrita I954, Vol. XXXIII, p. 749.
41, p. 145.
5 Proc. No. 56 of 1951 (S.W.A.). sec.26 (1){h), in The Laws of South West Africa
z95z, Vol. XXX, p. 144.
6Ord. No. 25 of 1954 (S.W.A.). sec. zo, in The Laws of South West Africa z954,
Vol. XXXIII, pp. 745.751.
1I, paras. 68 and 134, pp. 127 and 145.216 SOUTH WEST AFRICA

do not mention that such an order can be made only if the Native

concemed had previously agreed to enter into a contract of employment.
69. It may in addition be relevant to point out that in térms of

section 26 (S) of the Proclamation, as amended,
"Any native comrnissioner or magistrate having jurisdiction in
the area in question may suspend the execution of any warrant or

order issued in tenus of sub-section (3) for any period and on any
conditions determined by him 1."

II. THE ScoPE OF THE PROCLAMATION

70. The provisions of section 26 of the Proclamation, which apply
only to Natives in urban and proclaimed areas in the Police Zone,
cover for such Natives largely the same ground as the Vagrancy Pro
2
clamation , which applies to persans of all groups throughout the
Police Zone. In broad substance the situation in both instances is the
same as regards powers of arrest and enquiry into each case by appro
priate authority. Consequently, what has been said above regarding
these aspects 3,applies here also.

71. The difference in substance between the two Proclamations lies
in the treatment of the vagrant or id.leperson after he has through due
enquiry been found to be such. Under the Vagrancy Proclamation he is
dealt with as a criminal offender and on conviction he is liable to a sen
2
tence of imprisonment wlth or w:ithout attendant punishment • Under
section 26 of the Natives (Urban Areas) Proclamation, however, the
Native concerned is not treated as a criminal at ail. He is merely declared
to be an idle person 4,and the consequences are:

(a) if be is prepared to mend his ways and to agree to enter into
suitabie employrnent, he may be allowed to do so, failing which
(b) he is removed from the urban or proclaimed area, either to his
home or to sorne other suitable place amongst his own people S.

72. If the area to which an id.leNative has been removed is a reserve
in the Police Zone, and he remains idle there, he can then be forced
to take up employment on essential public works 6• If, however, such
area is situated in the northern territories, he can be dealt with by his

tribal authorities under Native law and custom.
73. It is true that the Proclamation is so worded that an idle Native
may be removed either to his home "or to a place indicated by ... [the]
5
... magistrate or native commissioner" , but the power concerned is
of a judicial nature, and not intended to be exercised arbitrarily. In the
exerdse of discretionary powers of such a kind, judicial and quas1-judicial
tribunals are in South African law enjoined to have due regard to the

1 Vide The Laws of South West Africa r954, Vol. XXXIII, p. 749.
z Vide para. 8,supra.
• Vide paras. 44-53,supra.
4 Vide para. 65,supra.
~ Vide para. 67. supra.
6 Vide paras. 89,et seq., infra. COUNTER-MEMORIAL OF SOUTH AFRICA 217

policy underlying the legislative provision in question 1, which in this
case is clearly to secure the return of the idle Native to his home or to
some other suitable place amongst his own people, where that should be
practicable. Provision had, however, to be made for contingencies which
could render section 26 nugatory-e.g., cases in which the home of such
a Native could not be established and he himself refused to supply the
necessary information.

III. THE PuRPOSE of 1'HE PROCLAMATION

74. Section 26 of the Natives (Urban Areas} Proclamation should not
be considered in vacuo, as it were, but should be read together with the
other sections of the Proclamation relating to the control of the influx
of Natives into urban and proclaimed areas.
75. In another chapter Respondent will deal fully with the basic
considerations of its influx control policy 1• It will be shown that the
main consideration underlying this policy has been the necessity to
prevent urban and proclaimed areas from being overcrowded with
unemployed Natives with the inevitable consequences of Lowerwage
rates, slum areas, and the spread of crime, drunkenness and disease.

76.. lt stands to reason that idle persons in thickly populated areas
create problems which tend towards the growth of sium conditions, and
thus impede the task of the authorities to provide proper housing
facilities for the inhabitants of such areas. As early as 1924 the problem
of idle Natives in urban areas was emphasized in the annual report on
South West Africa for that year, a relevant extract from which reads
as follows:
"Experience has shown that there is a strong tendency for natives,
both men and women, to drift into urban locations where in many

cases they neither want nor seek employment. As they simply loaf
and do not earn money honestly they resort to illicit liquor selling,
prostitution, gambling and other means to obtain it and generally
degenerate 3."
77. ln Respondent's view it would be rnost unfair ta the law-abiding
Native inhabitants of urban and proclaimed areas, and to Natives wbo
wish to enter such areas for the purpose of procuring employment. ta
allow idle Natives to.remain in these areas unless they are prepared to
mend their ways.

78. Asalready pointed out~. idle Natives are not under the Proclama
tion treated as criminals, since punishment as for a criminal offence
could on the one band be inappropriate as far as particular offenders
are concemed, and would on the other hand not be as effective a protec·
tion for others in these areas as their removal to their rural homes where
the discipline of reserve regulations and/or traditional tribal systems
serve to nùnimize the hann they could occasion to others. Thus it will

lReference may be made, for example, to the judgment of Chief Justice Water
(1) S.A. L.R. 447, especially at p. 461.e and 0'11ersv. Wslson and o,Jurs, 1950
i Vide Chap. III,paras. 163-183,infra.
J U.G. 33-1925, para.98, p.27.
4 Vide pa.ra. 71, sujwa.218 SOUTH WEST AFRICA

be evident that the special treatment of such Natives by the provisions

of this Proclamation, as distinct from the Vagrancy Proclamation, in
the first place operates in their favour in rendering unnecessary their
treatment as criminal ofienders. Secondly, this special treatment is, by
reason of the basic factual situation, apJ>ropriate for Natives only. For
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. Theseconsiderations do not apply to White or Coloured persons
whose only real home may be in urban and proclaimed areas.

IV. LEGISLATION IN ÛTHER COUNTRIES

79. Reference has already been made· to vagrancy laws of other
countries 1•In the present context Respondent wishes to point out that
legislation in terms of which idle persans may be removed from urban
areas, instead of being treàted as criminals, is not peculiar to South

West Africa.
80. In terms of the Voluntarily Unemployed Persons (Provision of
Employment) Ordinance, 1949, of Kenya, ail unexempted unemployed
persons within any declared area have to report to a labour exchange
within such area within seven days of arriving in such area, or within
2
seven days of becoming unemployed therein • Should such unemployed
person then refuse to accept an ofier of employment, and should the
-0fficerin charge of the labour exchange be of the opinion that he is a
voluntarily unemployed person-defined in section 2 as an unemployed
person who is not genuinely seeking employment. 3-such officer shall
order such unemployed person to report to the committee for the de
clared area in which such labour exchange is situated 4. If he fails to
do so, he is liable to arrest without a warrant 5• Where any adult male

appears, or is brought, before the committee, he may be required to
show cause why he should not be declared to be a voluntarily unem
ployed person 6• If he fails to do so, the committee may declare him to
be a voluntarily unemployed/erson 7, and if he has a regular place of
residence outside the declare area, and if he is not domiciled within
such area, and if he has refused or failed to engage in employment
approved by the committee, the committee may then direct him to be

repatriated to bis regular place of residence and order him to remain
-0utside the particular prescribed area or any other such area 8•
8r. During 1950 1,382 Natives in Nairobi were either registered as
voluntarily unemployed persans or arrested by the police and taken
before the committee. Of this number 321 were either repatriated or
9
permitted to return to their homes •
1 Vide paras. 24-41, supl'a.
2 O,-d.No. 39 of 1949 (Kenya), sec. 6, in Colony and P,oùeüwaù of K,nya, Ordi-
nances ffladeà during the y,a,. I949, Vol. XXVIII (New Series), p. r6g.
1 Ibid., sec2, p. 168.
4
• Ibid., sec8,7p.p170.
6 Ibid., sec11, p. 170.
1 Ibid., sec13, p. 171.
5
9 Vid, Re,Porl of the Ad Ho, CommWu on Fort:ed Labou,-, E,osoc, O.R., Sixtunlh

Sess.,Sup. No. 13, p. 54r. COUNTER-MEMORIAL OF SOUTH AFRICA 219

82, Regulation No. 24 of 1957 applicable to the Trust Territory of
New Guinea provides that-,-
''A native who is absent from his tribal area and is without
adequate means of support, may ... be ordered by a Court for

Native Affairs to return to his tribal area. Failure to comply with
an order, entails a penalty of three months' imprisonment .• , . A
similar provision exists in Papua ."
83. As regards Liberia, J. Gus. Liebenow, associate professer of

Govemment at Indiana University, bas commented as follows:
"The drift of tribal people to Monrovia and other urban centres
has been met by the city courts, which have taken drastic steps to
remove tribal vagrant~ to the hinterland 2.''

V. THE APPLICABILITY OF THE PRISONS ACT

84. In paragraph 135 of Chapter V of the Memorials 3 the Applicants
refer to Proclamation No. 271 of 1959 (S.A.) in tenus of which the South
African Prisons Act, 1959 ', was made applicable to South West Africa.
By then alleging that under section 20 of the Act-

'.'tlteMinister of Justice of the Union 'may by notice in the Gazette,
establish prisons ... (e) of the type known as farm colonies to
whlch persons declared to be idle persons may be sent to learn habits
of industry and labour' 5",

the Applicants create the impression that persans declared în South
West Africa to be idle persans under section 26 of the Natives (Urban
Areas) Proclamation, 1951, may be sent to farm colonies. This impres
sion is incorrect, as will appear, although Respondent must confess to

being uriable to see anything wrong in the idea of sending confirmed
idle persons to institutions where they can learn habits of industry and
labour.
85. Section 20 of the South African Prisons Act in fact empowers

the Minister of Justice to establish farm colonies-
"to which persons declared to be idle persons in ter,ns of the Natives
(Urban Areas) Consolidation Act, 1945 (Act No. 25 of 1945), may be
sent to learn habits of industry and labour 6 ". {Itallcs added.}

86. Since the Natives (Urban Areas) Consolidation Act, 1945, does
not apply to South West Africa, it follows that idle persons in the Terri
tory-whether declared to be such under section 26 of the Natives
(Urban Areas) Proclamation, 1951, or under any other statutory provi
sion applicable to the Territory-are not included in the provisions
7
relative to farm colonies •

1 Vide U.N. Yearbook on Human Righls f(lf'I957 (1959),p. 27J.

a Carter, G. M. (ed.), À,,-ican One-Parly State(1962),p. 334.
4 I, p.145. ·
Act No. 8 of 1959, in Slalul11sof 1h11Union of S01'th Africa :c959, Part I, Nos.
l-6o, pp. 16-106.
' I,pp. 145-146.
6 Act No. 8 of 1959, sec.20, in Statut11sof the Union of S01'thAfricaI959Part I.
p. 34. 1
1 In any event no fan:n colonybas a.syet been establisbed in South West Africa. 220 SOUTH WEST AFRICA

VI. CONCLUSION

87. In the result it is submitted that the provisions of section 26 of
the Natives (Urban Areas) Proclamation, 1951, in no way afford support
for the Applicants' charge since:

(a) although these provisions apply to Natives only, the distinction is
one operating for the benefit of the Natives concerned, and for the
reasons indicated above 1, the provisions are appropriate to Natives
only;

(b) persons falling within the ambit of these provisions are not subject
to arbitra,y arrest, nor may the powers to make arrests be exerc1sed
by designated persons at their largely uncontrolled discretion 2•
88. As a result of the deterrent effect of section 26 of the Proclama

tion, it has not been necessary to apply its provisions at all in recent
years.

D. ldle Persons in Native Reserves

3
89. The allegations in paragraph 131 of Chapter V of the Memorials
are based upon regulation 27(bis) of the regulations issued under sec-
tion 20 of the Native Administration Proclamation, 1922 4• •
90. As part of a general scheme for dealing constructively with id.le

Natives so as to obviate sending them to gaol as criminal offenders,
the regulation empowers a superintendent of a Native reserve in the
Police Zone who, alter investigation, is satisfied that a male resident of
such a reserve has no regular and sufficient lawful means of support, or
leads an id.le existence, to order such person to take up employment

on essential public works or services at a sufficient wage to be deter
mined by the superintendent.
91. It is submitted that no objection can be raised against the habi
tually idle and unemployed res1dent of a Native reserve within the

Police Zone bein~ compelled to take up employment in lieu of being
sentenced as a cnminal offender to imprisonment under the provisions
of the Vagrancy Proclamation. This is in his own interests as well as
in the interests of his community, which require the construction of
essential publk works such as the erection of fences, the building of

dams and roads, etc.
92. Regulation 27(bis) forms part of the regulations 5 pertaining to
Native reserves within the Police Zone, and thus inevitably applies to

Natives only. Idle Whlte and Coloured persons are in a sense in a worse
position than idle Natives in such reserves, since they can only be dealt
with as criminal offenders under the Vagrancy Proclamation, 1920 •

1 Vida para. 78, supra.
2 Para. 70 read with paras. 44-53, supra; and vide I, para.154 (1)and (2),p. 151.
3 1, P·144. · 0
4 P,oe. No. II of 1922 (S.W.A.). The regulation which is coneetly quoted in
para. 70 <>Chap. V of the Memorials, was added by G.N. No. 121 of 1952 (S.W.A.),
in Tu Laws of South Wesl Afnca .1952, Vol. XXXI, pp. 834-836.
5
Issued under sec. 20 of Proc. No. u of 1922 (S.W.A.), by virtue of G.N. No.
68 of 1924 (S.W.A.), in The Laws of South Wesl A/nca .1924,pp. 57-63.
~ Vid,i para. 8, supra. • COUNTER-MEMORIAL OF SOUTH AFRICA 221

93. It seems, however, as though Applicants' attack against the regu~
lation is, in relation to security of the person, more specifically con
cerned with the discretionary powers conferred upon the superintendent.
It will be observed that these powers are not unlimited or uncontrolled,
The power to make an order as envisaged is a quasi-judicial one, and

must be exercised in a bona fide manner, only after the matter has been
investigated and the evidence has satisfied the superintendent that the
"... resident of a Reserve has no regular and sufücient lawful means of
support, or leads an idle existence ... " 1• At this investigation the resi
dent must be given a fair hearing and all the rules of natural justice

must be observed. If the superintendent should act irregulatly, e.g., if he
should act arbitrarily, or without due enquiry, or if he should beactuated
by malice or ulterior motives, his order may, under common law, be set
aside on review hy the Supreme Court 2•

94. In addition, regulation 33 expressly provides that:

"Every resident in a Reserve shall have the right to appeal to the
Magistrate against any ... order of the Superintendent ... and
after due inquiry the Magistrate shall make such order as he may
deem fit 3• "

Applicants make no mention of regulation 33, although regulation
27(bis) (2). which is cited in part by Applicants ~. expressly refers

inter alia, to "any order of the Magistrate on appeal".
In the circumstances the charge of "arbitrary" and "largely uncon
trolled", in relation to the superintendent's powers in question, is not
understood.

95. It may further be pointed out that the work to be done in terms
of an order made by the superintendent, is work primarily in the reserve
itself ~-and not for the benefit of the superintendent or of any White
person or White community. In practice action is never taken under

the regulation without the headman and the members of the Reserve
Board first being consulted by the superintendent 6•

96. In the result the charge that the Respondent has in this respect
"given consideration solely to the convenience or advantage of the
Mandatory government and of the 'European' citizens and residents of
the Territory" 7, will be seen to be as unwarra.nted as that pertaining
to "arbitrary arrest" and "largely uncontrolled" discretion 8•

1 Regulation 27(bis) (1),G.N. No.. 121 of 1952 (S.W.A.), in The Laws of South
West Africa I95a, Vol. XXXI, p. 834.
z Vide Uniqn Government (Minister of Mines and Industries) v. The Union Steel
Corporation (S.A.), Ltd., 1928 A.D. 220, at p.236; Hlongwane v. Rqux and van Gass,

N.O3, 1948 (1) S.A. L.R. 62.
G.N. No. 68 of 1924 (S.W.A.), in Th(:Laws of South West Africa I924, p. 62.
• I,Chap. V, paras. 70 and 131, pp. 127-128 and 144.
5 Although the superintendent isempowered to order an idle person to take up
employment on public works.and services outside the reserve--obviously in order
to provide for cases in which no such em.ployment may be available in the reserve
at a given time--Respondent is not aware that this power ha.s ever been exercised.
6 The mere existence of the regulation has helped materially to elirninate idleness
in the reserves, and ithas lately not been necessary to apply iŒ provisions.
7 1, Chap. V, para. 154 {5). p. 151.
• Ibid.,para. 154 (i) and (2),p. 151. 222 SOUTH WEST AFRICA

E. Undesirable Persons in Native Reserves

97. In paragraph 132 of Chapter V of the Memorials 1 reference is
made to regulation 27 of the regulations issued under the Native Ad
2
ministration Proclamation, 1922 •This regulation reads, inter alia:
"ln the,interests of order and good fovernment the Magistrate with
the approval of the Administrator may order any resident of a
Reserve or person thcrein who shall in the opinion of such Magistrate

be an undesirable person to leave such Reserve within a time to be
specificd in such order; provided that an opportunity shall first
have been given to such person to show cause why he should not be
so ordercd to leave 4." (ltalics added.)

98. For reasons that will become apparent, the regulation does not
apply to the Kaokoveld Native Reserve s, the Ovamboland Reserve.s,
the Okavango Native Territory 5, the Zessfontein Reserve 5, the Berseba
Hottentot Territory 6 and the Bondcls Reserve 6, and consequently
affects only a minor percentage of Natives living in reserves, i.e., in some

reserves in the Police Zone.
99. The creation of further reserves after the assumption of the Man
date was part of'the task undertaken by Respondent of rehabilitating
the scattered remnants of the various Native tribes 7 and settling them

under the guidance and supervision of trained experts who would help
them to reorganize their disrupted tribal life.
100. Respondent believed that the programme of rehabilitation could
best be carried out, inter alia, by restoring tribal authority in the reserves.

It was foreseen, however, that this would be no easy matter because:
(a) tribal control had in-some instances broken do~ completely as a
result of the events described above: and
(b) it was not always practically possible to confine occupation of a

particular reserve to members of a particular Native group only.
IOI. Experience showed that, especially in the circumstances just
described, there could be persons who by persistent action attempt to

thwart, or induce others to thwart, constructive steps to develop the
reserves, sometimes for no other reason than that such measures would
be foreign to unprogressive aspects of their prevfous mode of living.
Since the peace in a particular area might be seriously threatened by
the activihes of one or more mischief-makers, it was considered necessary
to provide for their removal. The regulation was consequently introduced

to promote order and good govemment in certain reserves in which
there would irtltially be little social cohesion and discipline. ·

t 1, Chap. V., para..154 (5), p145.
2 Proc. No. II of 1922 (S.W.A.). . ·
s Now the Minister of Bantu Administration and Development; vide Act No;
56 of 1954 and Proc. No. II9 of 1958 (S.A.).
• G.N. No. 68 of 1924 (S.W.A.), in The Laws of South West A/rica I9a4, p. 6r.
s Vide G.N. No. 29 of 1941 (S.W.A.), in The Laws ofSouth West Af,'ica I94I,
Vol. XX, pp. 374, 376.
• Vide G.N. No. 238 of 1930 (S.W.A.), in The Laws of SO'UlhWest Africa I930,
p. 458.
7 Vide para. 13, supra. COUNTER-MEMORlAL OF SOUTH AFRlCA 223

102. lt rnay be pointed out that the rcgulation merely confirrns prin
-ciples of Native custornary law. In Mokhatle & Others v. Union Govern
ment (Ministe1 of Native Afjairs) 1 the South African Appeal Court
held, inter alia, that a Native chief can, according to Native law and
·Custorn, rernove a recalcitrant or rebellious Nativc frorn his tribe or

the tribal property.
lo3. As this regulation was designed to overcome a problern which
would exist only in certain Native arcas, it would obviously not be
appropriate for White or Coloured persons 2•

104. The magistrate's power to order a persan to leave a reserve
is by no rneans unlimited or uncontrolled. He may only issue such an
order if, having heard ail the evidence, he is of the bona fide opinion that
such a persan is an "undesirable person" frorn the point of view of order

and good govemrnent. Should he exercise hls discretîon in an improper
manner, his decision rnay be set aside on review by the Supreme Court.
The order can moreover only be issued with the approval of the Ad
rninistrator 3,whose duty it is to satisfy himself that the evidence justifies
suth an order. Apart from these safeguards against the possible abuse

of the power, action against a person in pursuanŒ thereof is, in any event,
in practice only taken at the request of the Headrnan and the Reserve
Board.
105. Similar legislation exists in other countries, e.g., in Northem
4
Rhodesia. Section 34 (3) of the Penal Code reads:
"Where it is shown on oath to the satisfaction of the High Court
that any person is conducting himself so as to be dangerous to peace
and good order in any part of the Territory or is endeavouring to

excite enmity between any section of the people of the Territory and
Her Majesty, or between any section of the people of the Territory
andany other section of the same, or is intriguing against constituted
power and authority in the Territory, or has been convicted in any
court of competent jurisdiction within or without the Territory of any
offence which would be likely to excite enrnity between any section

of the people of the Territory and any other section of the same or
by any section of the people against such person, the High Court
may recommend to the Governor that an order be made for his
deportation to such part of the Territory as may be specified in
such order 5•'

106. Section 43 (t} of the Northern Rhodesia Order in Council, 1924,
provided:
"(a) Exceptas provided by sub-paragraph (b) of this paragraph no

native shall be removed from any kraal, or from land ass1gned

i Mokhalle ê- Others v. Union Government (Minisler of Native Affai,s), 19;16
A.D. 71. Vide also Chap. III, para. 144, infra.
J White (and non-White) foreigners who cause trouble inthe Territory, may be
temoved from South West Africa in tenns of sec. 1 (1) of Proc. No. 50 of 19:1,0
{S.W.A.), in Thl' Laws of South West A/rica I9r5-r9aa, p. 424. Vide paras. no et
t.eq.,infra.
3 Now Minister--vide footnote 3, p.222, sufm:i.
• Laws of Northern Rhodesia, r963 Edition, Vol. I, Chap. 6, p. 28.
~Subordinate courts have the same powers as the High Court, but any exercise of
such powet'S is subject to revisionby the High Court (sec. 34 (,m.224 SOUTH WEST Al'IUCA

to him under native customary law for occupation, except
after full inquiry by, and by order of, the Governor.

(b) 1t shall be lawful for a Superior Native Authority, without
reference to the Governor and for good cause shown, to order
the removal of a native from any kraal or land assigned to
him under native customary law for occupation which is
within the area of jurisdiction of such Superior Native
Authority:

Providcd tha t
(i) no such ordcr of removal shall take effect until full inquiry
has been made and the order or removal has been confirmed

by the District Commissioner of the District within which
the kraal or land is situate;
(ii) any person aggrievcd by such order of removal may appeal
to the Provincial Commissioner of the Province within which
the kraal or land is situate.

(c) Notwithstandingtheprovisionsof sub-paragraphs (a) and rbJ
of this paragraph, where a native is to be removed from a
Native Reserve into land not forming part of a Native Reserve,
otherwise than in execution of the process of a competent
Court, the approval of the Secretary of State shall fi.rstbe
obtained 1."

107. As a result of the better group relations and tribal discipline
which have corne into being under Respondent's administration, and of
the deterrent effect of the regulation, it bas not been found necessary
to make use of its provisions for a considerable periç>dof time.

108. Although reference was made in the 1924 annual report to the
regulations issued under section 20 of Proclamation No. II of 1922
(S.W.A.) 2, the Permanent Mandates Commission never objected to
Regulation 27 or, for that matter, to any of the said regulations.

109. Having regard to the purpose and limits of the regulation, the
safeguards a~ainst abuse and the practical mode of application, as dealt
with above, 1t will be evident that the Applicants' charges contained in
paragraph 154 (1) and (2) of Chapter V of the Memorials 3 are in this
respect also unfounded: the power and its exercise are neither "arbitrary"

nor "largely uncontrolled". And since the regulation was, for reasons
explained, rendered applicable only to certain Native reserves in the
Police Zone, and directed to specific circumstances in those reserves and
to the well-being of their inhabitants, there is no substance in the allega
tion that in enacting the regulation Respondent gave consideration solely
to "the convenience or advantage of the Mandatory government and of
the 'European' citizens and residents of the Territory "\

1 The Ncwthern Rhodesia Orde,s in Council r924-1960,in Appendix 2 tothe Laws,
1961 Edition, pp.15-16. The above-quoted provisions were revoked by sec. 3 of
the NortMrn Rhodesia (Constitution) Order in Council, 1962, in Appendix J to the
Laws, 1963 Edition, pp. 1-5; vide The Laws ofNorthern Rhodesia, Vol. VIII.
2 U.G. 33-1925, para. 100,p. 27.
3 I, p. 151.
• Ibid., para. 151 (5), 151. COUNTER-MEMORIAL OF SOUTH AFRICA 225

F. The Deportation of Undesirable Persons from the Territory

1
IIO. In paragraph 136 of Chapter V of the Memorials reference is
made to the provisions of section I (1) of the Undesirables Removal
Proclamation, 1920. This sub-section, as amended, reads:
"It shall be lawful for the Administrator-

(a) ifhe is satisfied that any person within this Territory is danger
ous to the peace, order or good govermnent of the terri toryifhe
remain therein ; or
(b} if he is satisfied that any :i,:iersonhas directly or indirectly in
flicted or threatened to inflict upon any person any harm, hurt
or loss, whether to his person, property, reputation or feelings,

or bas directly or indirectly done or threatened to do anything
to the disadvantage of any person, with the object of compelling
or inducing that person or any other person to abstain from
doing any act which he has a legal right to do or to do any
act which he has a legal right to abstain from doing, or because
that person or any other person has abstained from doing or
has done any such act; or

(c) ifhe is satisfied that any person who is nota British subject has
engaged actively in political propaganda in the Territory; or
(d) on the conviction of any person of any offence under section
three,/our or fiveof the South West Africa Affairs Proclamation,
1937:

to direct the Secretary for the Territory to issue an order to such
persan to leave the Territory within such time after service of such
order as may be stated therein.
Any such persan found within the Territory after the expiry of
such time shall be guilty of an offence and shall upon conviction be
liable to imprisonment with or without hard labour for a period
not exceeding twelve months, and shall further be liable at or before

the expiry of such imprisonment to be removed from the Territory
by warrant under the hand of the Secretary for the Territory 2."
III. ln·term.s of section 3 of Ordinance No. 4 of 1955 (S.W.A.) 3, the
provisions of the Proclamation are administered by the Minister for

Native Affairs ~ in respect of all persons in Native reserves and all
Natives outside the Reserves, and in these cases reference to the Admin
istrator and the Secretary for the Territory must be read as beîng to
the Minîster and Secretary for Native Affairs respectively. As regards
persons other than Natives outside the Reserves the Proclamation is
still administered by the Administrator and the Secretary for the Terri
tory. The Proclamation therefore applies to any person falling withln
its ambit, irrespective of race or colour.

II2. If regard be had ta the principlcs of municipal and international

1
2 1,p. 146.
Proc. No. 50 of 1920 (S.W.A.), sec. 1 (1),in The Laws of S<>UthWest A/rica
z9z5-z9:n, pp. 424-426, as amended by Proc. No. 51 of 1937 (S.A.), sec.7,in Th#
La.ws of Soidh w.,stAfrica r937, Vol. XVI. p. 66.
3Ord. No. 4 of 1955 (S.W.A.), sec. 3, in TM Laws of S<>UthWest Africa z955.
Vol. XXXIV, p. 530.
4 Now designa.ted the_Minister of B.uitu Administration and Development. SOUTH WEST AFRICA

law that a State cannot, in general, expel its own natjonals 1;to the fact

that the Proclamation bas in practice never been enforced against per
sons other than foreigners, and to the surrounding circumstances indi
cated below, especially with reference to the 1937 amendment of the
Proclamation 2, it is clear that it was never intended that the Proclama
tion should be applicable to permanent inhabitants of the Territory.

n3. Since the terms of the Mandate are concerned only with the in
terests of the inhabitants of the Territory, it is really unnecessary to
explain the background to and the reasons for the enactment of the
Proclamation in its present form. In view, however, of Applicants'
references to the legislative history, Respondent will briefly explain the

position in that regard.
n+ Before the 1937 amendment the Proclamation made provision
for the deportation of a pcrson on one ground only, viz., if such person
"... is dangerous to the peace, order or good govemment of the terri
3
tory if he remain therein ... " •
n5. The promotion of the material and moral well-being and the
social progress of the inhabitants of the Territory required that they
should be protected against foreign agitators and trouble-makers. Most,

if not ail, civilized countries have similar statutory provisions which
authorize officiais to deport foreigners. So, e.g., the Secretary of State
in the United Kingdom may make a deportation order if he "deems it
to be conducive to the publlc good" to do so 4•
5
rr6. The amendment of the Proclamation in 1937 was induced by
the serious situation created by German agitators in the Territory in
the circumstances prevailing shortly prior to the Second World War.
The further grounds for deportation contained in section (r) (b), (c) and
(d) were then added especially with a view to meeting this new situation.

n7. A description of the situation in question was given in para
graphs I06 and 108 of the annual report on South West Africa for 1939 6•
According to the former paragraph the Government-
"... has been brought under the impression that a considerable part

of the German section of the population, whether Union nationals or
not, is, either by conviction or through moral pressure, intimidation
or infringements upon the liberty of the individual, grouped in a
separate political organization in which those who wish to use it as
a means of creating and maintaining a state of affairs favourable

to a retum of the Territory to Germany hold sway. The right of
free speech has a]most ceased to bxist among[s]t the German popula
tion and every member of the organization is bound to fall into
line with the hints or orders of the head of the organization on pain
of moral or material injury. The root principles of the organization
to which each member must subscribe are thus in direct conflict

1 Vide \Veis, P., Nationalilyand Statelessness in InternationalLaw (l956), p. 50.
2 Vide paras. rr6 and II]. infra.
3 Froc, No. 50 of 1920 (S.W.A.). sec. r (I)(a), in The Laws of South West Africa
I9I5·I922, p. 424.
4
Sec. 12 (6) (c) of The Aliens Ortler No. 448 of 1920, quoted by Fraser, C. F.,
Control of Aliens in the British Commonwealth of Nations (1940), App. 4, p. 254.
' By Proc. No. 5r of 1937 (S.A.).
6 U.G. 30-1940. COUNTER-MEMORIAL OF SOUTH AFRICA 227

with the democratic principles on which the participation of the
population in the administration of the 1\fandated Territory rests.
Persans who are not Union nationills and who do not wi'shto become
such, have a preponderant influence in shaping the policy of the
organization ... Union nationals, therefore, are bound to exerdse
political rights, accorded to them as Union nationals, in conformity

with the instructions of an alien, who himself has no such rights and,
moreover, owes imPhàt obedience to the Head oj a foreign State \,"
(Italics added.)
II8. The amendments were therefore aimed at meeting the excep
tional cii:cumstances which existed in the Tcrritory immediately before

and during the Second World War, when foreign subversive elcments
among the German population of the Territory were working for the
retum of the Territory to Germany.
IIg. In paragraphs 136 and 137 of Chapter V of the Memorials 2
the Applicants abject ta the "unbridled discretion" and the "uncon

trolled scope" of the power of the Administrator under the Proclamation.
ln this regard reference is made to section l (r} (3}, as amended by
section 7 (2) of Proclamation No. 51 of 1937 (S.A.), which provides:
"No court shall have jurisdiction in respect of any direction 1ssued by
the Administrator or in respect of any order ... "

120. Prior to the 1937 amendment, section I (1) (3) merely providcd
that "No appeal shall lie to any court in respect of any [deportation]
order .•. " The position then was that the A<lministrator could act only
if it was shown to his satisfaction that there were reasonable grounds
for believing that a particular persan was dangerous to the peace, order
or good govemment of the Territory 4•

121. Despite the fact that there was no appeal to the courts, the deci
sion of the Administrator could be set aside on review by the Supreme
Court if there were no reasonable grounds for believing that the persan
concerned endangered the peace or if the Administrator was actuated
by ulterior motives. The result was that any person affected could
virtually force the Administrator to disclose in court the grounds on
5
which he had based rus decision and the source thereof • The inhabitants,
however, were living in fear on account of intimidation by foreign
subversive elements, and it was impossible to obtain information about
the trouble-makers unless there was a guarantee that the identity of the
infonnants would not be disclosed. Moreover, tlùs mo\·cment could best
be opposed if the information concerning it was not clisclosed. It was
with these considerations in view that the provisions of the Proclamation

were amended as above indicated.
122. ltshould be painted out, however, that although the jurisdiction
of the courts is restncted, it is by no means completely ousted. Notwith
standing the wording of section 1 (1) (3) of the Proclamation the courts

1 U.G. 30-1940, pp. 23-24.
z I,p. 146.
s Pror;.No. 50 of 1920 (S.W.A.), sec.1 (1} (:,in The Laws of South West Afmu.

r9r5-19za, p..425, as amended by Pmc. No. 51 of 1937 (S.A.), sec. 7 (2), in The LaUJS
of4Souû, West Africa r937, Vol. XVI, p. 66.
Sec. 1 before the 1937 amendment.
' Vide, e.g., Kellermann v. Minisl.er of the lnl.erior, 1945 T.P.D. 179.228 SOUTH WEST AFRICA

willnevertheless interveneif it isshown that the action taken is manifestly
outside the power conferred, or if fraud or a similar element has been
present 1• The effect of the sub-section is therefore that a court of law
cannot interfere with any bonafi.de act of the Administrator (or Minister)
falling withln hls jurisdiction.

123. The situation in this regard is similar to that obtaining in the
United Kingdom relative to the power of the Secretary of State referred
to above 2, to make a deportation order against an alien "if (he) deems
it to be conducive to the public good". This discretion cannot, in general,
be interfered with by the courts, the Secretary's acts under the Allens
3
Ortler being regarded as executive and not judicial •
124. It is submitted that the fact that since the end of the Second
World War no deporta tion order has been issuedunder the Proclamation 4,
further evidences the special circumstances which existed when its more

stringent provisions were added by the 1937 amendment.
125. In conclusion it may be pointed out that the Permanent Man
dates Commission did not object to the provisions of sections 1 and 3 of
the Proclamation, either in their original or amended form, although the
Commission was fully aware of the existence of these provisions. In the

1920 annual report attention was drawn to the provision made by
the Proclamation "for the removal of undesirables on the lines in force in
the Union" 5, and during the 34th Session of the Commission in_1938 6
M. Palacios pointed out that Respondent had communicated the Official
Gazette, No. 707 of 1937, containing Union Proclamation No. 51 of 1937
(S.A.) 7•

G. Infringem.ents of the Pass Laws

126. In paragraph 133of Chapter Vof the Memorials reliance is placed
on section 10 of the Native Administration Proclamation (Proclamation
No. II of 1922) B.Tlùs section is only one of several sections of the Pro
clamation relating to the carrying of passes or certificates of exemption

by Natives. Sorne of the other sections are referred to in the Memorials
under the head of "Freedom of Movement", and it will consequently be
more convenient to deal with section 10 in the reply to the allegations
made under the said head 9•

1Vide Union Governmenl v, Fakir, 1923 A.D. 466, at pp. 46g-470; Narainsamy
v. Principal Immigration Officer, 1923 A.D. 673, at p. 675.
2 Vide para. I15, supra.
3 Vide The King v. Inspeclor of Leman Street Police Station, E:x parle Venicoff,
1920 3KB. 72.
• Deportation orders have, however, been issued under P,0ç. No. 267 of 1954
(S.A.),in The Laws of South West A/rica r954. Vol. XXXIII, pp. 66-71 (now Proc.
No. 148 of 1962 (S.A.), in Governmenl Gaeette (S.A.), Vol. IV, No. 283 (29 June
1962), pp. 1-3), which provides for the removal or deportation on a number of
grounds of persons born in the Republic ofSouth Africa.
1 U.G. 26--1921, p. 3.
&P.M.C., Min., XXXIV, p. 74.
7Which amended secs. 1 and 3 of Proc. No. 50 of 1920 (S.W.A.); vide footnote
3, p.227, supra.
1 1, p.145.
' Vide Chap. IV, paras. 68-70, in/ra. COUNTER-MEMORJAL OF SOUTH AFRICA 229

H. Conclusion

127. ln the preceding sections Respondent has endeavoured to indi
cate the histoncal, ethnological and socio-economic factors which gave

rise to the provisions complained about in paragraphs 130 to 137 of
Chapter V of the Memorials. It is submitted that when the said pro
visions are viewed against this background, they afford no support
whatsoever for the charges that Respondent legislated with the

intention of oppressing or subjugating a section of the population of the
Territory 1•
128. As has been shown 2, the relevant provisions of the Vagrancy
3
Proclamation, 1920 , and the Undesirables Removal Proclamation,
1920 4,apply to ail persons falling within their ambit, irrespective of race
or colour. while the provisions of the Latter Proclamation moreover apply
to foreigners only 5• Regulations 27(bis} 6 and 27 7 of the regulations

issued under section 20 of Proclamation No. II of 1922 (S.W.A.) pertain
only to certain Native reserves in the Police Zone, because of circumstan
ces peculiar to them 8 ,and thus inevitably apply ta Natives only, while
section 26 of the Natives (Urban Areas) Proclamation 9 is specifically

directed towards circumstances peculiar to Natives in urban and pro
claimed areas 10,and thus again inevitably applies to Natives only. In
all these circumstances of provisions applying to Natives only, the persons
and communities primarily benefiting therefrom are Natives 11•

129. It is consequently submitted that there is no substance in the
Applicants' charges that in enacting these provisions Respondent-

..... has given consideration solely to the convenience or advantage
of the Mandatory government and of the 'European' citizens and
residents of the Territory n ''.

130. As re~ards the Applicants' allegations contained in paragraphs
154 (1) and (2) of Chapter V of the Memorials 13,only the Vagrancy
Proclamation, 1920, and section 26 of the Natives (Urban Areas) Pro
clamation, 1951, confer powers of arrest 4,and as has been pointed out 15,

persons falling within the ambit of these laws are not subject to arbitrary
arrest. Moreover, in none of the instances dealt with above can it be
said that any of the powers concerned are exercisable at the largely
uncontrolled discretion of the designated persons.

1 l,para. 154 (5},p. 152.
2 Vide paras. 10 and 11,supra.
3 Vide para. 8 supra, and 1,para. 130, p. 144.
• Vide para. 110 supra. and 1, paras. 136-137, p. 146.
5 Vide para. II2, sup,,a,
6 Vide para. 89, sup,,a,and I, para. 131, p. 144.
1
Vide para. 97, supra. and l, para. 132, p. 145.
• Vide paras. 92 and 98, supra.
' Vide para. 65, supra, and 1, para. 134. p. 145.
10 Vide paras. 74-78, supra.
n Vide particularly paras. 71-72, 74-78, 95 and 99-101, supra.
u 1, para. 154 (5). p. 151.
13 Ibid.,p. 151.
u As already stated (para. 126, supra), Respondent will deal in another Chapter
with sec. rn of Proc. No. 11 of 1922 (S.W.A.) .

.., Vide paras. 49-53 and 70, supra.230 SOUTH WEST AFRICA

r3r. In the result it is submitted that the Applicants' charges relating
to "Security of the Person" are unfounded. On the contrary the provi
sions on which the Applicants rely, demonstrate Respondent's bona fide
endeavours to promote the material and moral well-being and ·social
progress of allthe inhabitants of the Territory. CHAPTER III

RIGBTSOF RESIDENCE

A. Introductory

I. The allegations contained in paragraphs r38 to r45 of Chapter V of
the Memorials 1 are summarized by the Applicants as follows:
" 'Natives' are not allowed even a faint approximation of the
degree of freedom of choice permitted to 'Europeans' concerning
where they may reside within the Territory. On the contrary,
'N~tives'are confined within sharply defined areas and places under
prescribed conditions. The pattern of restrictions upon the residence
of 'Natives' is uniformly arbitrary and discriminatory; it is con
ceived and executed to give increasingly intensive effect to the
dominating principle of aparthçid 2."

Applicants seek to substantiate these allegations by reference to cer
tain laws relating to rights of residence in (i)the Native reserves, (ü) the
Police Zone generally, and (iii)urban areas in the Police Zone.
2. After dealing with the said laws, Applicants conclude:
"In sum, in the entire complex of ... tight restrictions upon ...
[the] ... residence ... (of Natives] ... , the Mandatory has given
consideration solelyto the convenienceoradvantage ofthe Mandatory
government and of the 'European' citizens and residents of the Ter
ritory. The Mandatory bas uniformly failed to promote the material
and moral well-being, the social progress and the development of
overwhehningly the larger part of the inhabitants of the Territory of
South West Africain tenns of ... their rights and opportunities of

residence ... On the contrary, by law and by practlce, the Man
datory has followed a systematic course of positive action which
thwarts the well-being, inhibits the social progress and frustrates
the development of the great majority of the population of the
Territory in vital and fundamental aspects of their lives 3.''
3. Respondent does not dispute that it applies a policy involving
differentiation between the varions population groups of the Territory
in relation, inter alio.,to their rights of residence. Respondent emphati
cally denies, however, that this policy is "arbitary" or "discriminatory"
witlùn the meaning of the Memorials; that in applying this policy it has
given consideration solely to its own convenience or advantage or to that
of the European citizens and residents of the Territory; that it has failed
to promote the material and moral well-being, the social progress and
the development of the Native inhabitants of the Territory in terms of
their rights and opportunities of residence; and denies especially that it
has in relation to the rights of residence of the Native inhabitants "fol
lowed a systematic course of positive action'' which "thwarts [their]

1 J,pp. 146-148.
2 Ibid., para.154 (3)p. 151.
3 Ibid., para.154 (.S),pp151-152. 232 SOUTH WEST AFRICA

well-being, inhibits [their} social progress and frustrates [their] develop
ment". On the contrary, each of the laws referred to by the Applicants
was enacted in the light of historical and socio-economic circumst~ces
to meet a particular situation that was either found in the Territory by

Respondent when it assumed the Mandate, or that arose subseqnently.
4. The laws on which the AppJicants rely all fall within the framework
of Respondent's policy of making provision for the separate development
of the various population groups, conceived by Respondent as Hie best
and probably the only effective method of achieving the ideals of the
Mandate in the peculiar circumstances of South West Africa. Before
dealing with the specific laws objected to, it will therefore be n~essary

to outline this policy with reference to the rights of residence of the
varions groups in the Territory.

B. Respondent'sReservePolicy

I. GENERAL

5. History shows that peoples or groups who share common cultural
and other interests are inclined to group themselves together and, in
doing so, to confine themselves to an area where the individual feels
himself secure amongst his fellow men.
In this respect the history of South West Africa constitutes no excep
tion. For many years before Respondent assumed the Mandate, each
·of the varions population fP'Onpshad been living-or was at least try
ing to live-in an area of 1ts own. This is illustrated by the numerous
clashes between some of the groups, one of the main causes of which

was the encroachment by one group on what another group regarded
as its territorial area. When Respondent assumed the Mandate, it was
consequently only logical to reserve, as far as practicable, to the varions
groups areas in which their members could live, to the exclusion of
members of other groups.
6. In the northern areas beyond the Police Zone the reserves accorded
with the areas traditionally, and more or less undisturbedly, occupied

by the groups concerned since long before the establishment of European
control over South West Africa. By and large, the said areas, owing to
relatively favourable natural conditions 1, were also suffi.dent for the
residential and subsistence needs of these groups.
7. In the Police Zone different considerations applied. Even before
the coming of the White man there had been no clear-cut division of
land for occupation by the varions groups. Most of them led a nomadic

existence. Moreover, factions of the Herero and the Nama were almost
continually involved in clashes as a result of conflicting daims to occupa
tion of land 2•
Duting the German occupation further disintegration followed as a
result of the r904-1907 wars, leaving a scattered Herero population of
about 20,000, and not much less scattered factions of Nama, totalling
about r5,ooo 3.

1 Vide Book III. Chap. I, para. 31 of this Counter-Memorial.
2 Ibid., Chap. IJI. of this Counter-Memorial.
3 Ibid., Chap. III, paras. 84-85. COUNTER~MEMORIAL OF SOUTH AFRICA 233

8. îhere had meanwhile been acquisitions of land rights by Europeans
throu~h purchase, occupation of vacant land and, in sorne instances,
punitive confiscations. For reasons already explained, Respondent's
policy involved the encouragement of further settlement of White persons
in the Police Zone, wîth a view particularly to the economic development
of the Territory as a whole. The indigenous population would benefit
frorn such development in two respects. In the first place, they would
have the opportunity of obtaining rernunerative employment in the
White man's rnonetary economy, and thus alsogradually becomeeducated
general economic development of the Territory, which could be brought
about by the enterprise of the European population group, could in the
long run provide fonds for the further uplift, development and advance
ment of the indigenous peoples and the1r territories to standards which
would otherwise not have been possible.

9. By reason of these considerations the reserves, as initially set aside
in the Police Zone, were not consolidated homelands for the various
intended primarily forsections ofthe various groups that were congregated
in a particular region.
In the rest of the Police Zone White enterprise was to be permitted
and, indeed, encouraged, with the contemplation that large numbers of
the indigenous people would be employed in the economy thus estab
lished,and often housed, for the duration of their employment, at or
near their places of employment.

non-White reserves have in effect become an area in which memberside the
of the White group enjoy certain priority rights, especially with regard
to rights of residence in urban areas, This does not comprise the whole
area of the Police Zone outside the non-White reserves. Large portions,
more or less desert areas, have been set aside as Diamond Areas, to
which access is forbidden to everyone save those concemed with the
diamond industry. Other large tracts are unalienated state lands which
have as yet not been allocated for occupation by any population group.
An important distinction between the area occupied by the White
group and the non-White reserves is not to be overlooked. As a general
rule White persans are not allowed to enter a non-White reserve for
the purpose of performing activities for their own gain-the protection
given to the residents of the reserves is in this respect absolute. In the
case of the area occupied by the White group, large numbers of non
Whites are in such area for remunerative employment, and are accommo
dated in it for such purpose. This does not, however, detract from the
fondamental situation that Respondent has treated varions parts of the
Territory as areas in which particular population groups are to have
certain priority rights of use and occupation, and that its policy in that
regard, far from being "arbitrary", is based on what Respondent con
siders to be a necessity inh~rent in the socio-economic situation in the
Territory; and, far from being "discriminator.y", attempts at achieving
a fair balance between the legitimate aspirations of the varions groups.
II. Althougb Respondent's policy of reserves was conceived and ap
plied with reference to circumstances prevailing in South West Africa,
it was, at the same time, influenced by Respondent's experience of234 SOUTH WEST AFRICA

government and administration of different population groups in South
Africa for more than a century. Respondent therefore proposes first
to deal briefly with the development of the reserve policy in South
Africa.

Il. RESERVES IN SOUTH AFRICA

12. The reservation of Native areas in South Africa emerged as a
result of wars, treaties and other historical developments. At a very early
stage it was realized by the then governing powers that reservation of
land for the varions groups was necessary to eliminate friction, and as a
result of this realization the areas of.the Native groups have over the
years not only been preserved, but have also been enlarged substantially
by the addition of Crown land and land purchased from White persons

with funds provided by Parliament.
13. It is unnecessary to trace in detail the history in South Africa of
the respective population movements of the Europeans from the south
to the north and east, and of the Natives from the north to the south
and west, with resultant tensions and conflicts. Suffice it to point out
that during the early part of the nineteenth century the Native popula

tions were decimated as a result of internecine wars, and that for greater
protection and defence the survivors tended to congregate together in
more-or-less confined areas, which were naturally considerably smaller
than those originally inhabited by the varions tribes or communities.
In this regard it may be mentioned that whereas Natal proper had an
estimated Native population of 100,000 before the regime of Tshaka and
Dingaan 1, the number had dwindled to approxirnately IO,ooo at the
time of the arrivai of the Voortrekkers 2 circa 1838 3•

14. As the Europeans moved eastwards and northwards, clashes oc
curred between them and the Natives who were advancing in the opposite
directions. There followed a period of intermittent warfare between
the two sections, as well as treaties and negotiations over land rights
and annexations of land by the government of the day, which resulted
over many decades in the weaving of a pattern of land adjustments.

15. The more important facets of the historical background to the
reserve policy in South Africa may be summarized as follows:
(a) CapeProvince

(i) After hostilities during the years 1850 to 1853, an area known as
British Kaffraria was treated as a conquered tetritory under military
occupation. In a despatch dated 13 September 1853, the then Gover
nor, Sir George Cathcart, laid down in regard to the govemment of
this territory that the "colonists must be restricted to their present
well-defined limits o·nthe one hand, and the Kaffirs ... be allowed

to be governed, as to their interior discipline, by their own chiefs,
according to their existing laws ... " •

1 Kings of the Zulu nation.
2 Europeans who had trekked from the Eastern Cape to the interior of South
Africa.
3 South A/l'ican Native AOail's Commission :r903-5(1904-1905),Vol. I, Report of
the Commission, para. 23,p. 5.
• Vide Furlhel' Pape,s l'e/ative to the Str.ithefKa"{firTl'ibe(1855),p. 16, in COUNTER-MEMORIAL OF SOUTH AFRICA 235

(ü) In tenns of Act No. 3 of 1865 (Cape of Good Hope) this territory
was incorporated within the Cape Colony, and after the 1877-1878

war land adjustments and moilifications were made and Native
Locations were demarcated, more or less as they appear in the
Schedule to the Natives Land Act of 1913 2•
(üi) Following on a series ofwars during the second half of the nineteenth
century, the territory known as the Transkei was annexed to the
Cape Province by a number of proclamations 3• The members of

the White group were, however, not allowed to enter and settle in
this area. As H. Rogers puts it:
"Thus, while annexation was necessary, there was no intention of
depriving the Natives of their land and for the most part what was

Native territory prior to annexation remained such after annexation,
the areas concerned being administered as Native dependencies
rather than as integral portions of the Cape Colony 4."
(iv) Under similar circumstances other territories were annexed to the

Cape Province, and Act No. 41 of 1895 (Cape 9f Good Hope)-by
which the territory previously known as British Bechuanaland was
annexed-specifically provided that no lands reserved by any law
for the use of Natives in the said territory were to be alienated
or in any way diverted from the purposes for which they had
been set apart, otherwise than in accordance with an Act of

Parliament ~.
(b) Natal Province

(i) Shortly, a.fter Natal was brought under British sovereignty in 1843,
a commission was appojnted to demarcate areas for the Natives, and
reservations of land-:totalling altogether approximately a million
acres--were made 6• •

(ü) By Royal Letters Patent, dated 27 April 1864, the Natal Native
Trust was constituted, and the bulk of the Natal Native Locations
were then conveyed to the Trust. The trustees were required "to
grant, sell, lease or otherwise dispose of the land ... for the support,
advantage or well-being of the said Natives ... " 7•
(iii) Under a Deed of Grant, dated 6 April 1909, :z:rreserves. set aside as

a result of the recommendations ofa specially appointed commission,

Parlianumtary Papers [Great Britain), Kaffir'Wa,s, State of the Kaffir Tribes :r85:r-
1865.
1 Act No. 3 of 1865 (Cape oi Good Hope). in Statuùs of the Cape of Goad Hopi,
passed by thl Third Parliam,nt du,ing th, Sissions :r864-:r868 (1868), pp. 127-137,
2 Vide para. 18, infra.
3 Vid« Cape of Good Hope P,ocs. Nos. 110 of 1879, 229 of 1883, and 53 of 1891,
in Th, Cape o/ ~ood Hop« G'?f111'n~fGazetù, Nos. 5,950 (16 Sep. 1879) pp. 7-8;
6,436 (14 Dec. 1883), p. 1291; and 7,267 (13 Feb. 1891), p.270.
• Rogers, H., Natiua Administration in the Union of South Africa, 2nd ed. (rev.)
by P. A. Linington (1949),p. 100. · · ,
' Act Xo. 41 of 1895 (Cape of Good Hope}, sec. 17, in Slalules of IM Cape of

Good Hope, 1652-r905, Vol. III (~894-1905) (1906], p. 3575.
e Vide U.G. 61-1955, para. 12, p. +3 and Walker, E. A.,A History of Southe,n
Afr7ca (3rd ed.), p.273. .
Vide U.G. 61-1955, para. _12,p. 43 and Report of theCommission for thl.Socio
Econo'?'icDevelopment of the Bpntu Areas wilhin the Uni,:mof South A/rica, 17 Vols.,
Vol. 4, Cha p. 11,para. 91, p. 26(U.G. 61-1955 is asummary of the longer report). SOUTH WEST AFRICA

vested in the Zululand Native Trust for the use and benefit of the
indigenous inhabitants of the territory 1•
(iv) By Union Act No. 1 of 1912 2 the administration of the Natal and
Zululand~Native Trusts was delegated to the Minister of Native

Aflairs, and in 1936 these trusts became vested in the South African
Native Trust by virtue of the Native Trust and Land Act 3•
(c) Transvaal Province

(i) Under a Volksraad Resolution of November 1853, Commandants
of the Republic were instructed to grant land for occupation by
Natives.

(ii) Subsequently a commission was appointed for the purpose of
assigning areas of land to Natives, but before the commission could
complete its work, the Anglo-Boer War (1899-1902) broke out.
(iii) After the war another commission was appointed in 1905. This
commission's report was duly accepted, and, with srnall modifica

tions, the Native locations set aside as a result of the recommenda
tions of the two Commissions referred to, are still in existence
today 4.
5
16. From the above it appears that the Provinces before Union
took concrete steps to provide for the Native groups and tribes protected
possession of lands of their own. Before Union 9,976,290 morgen 6 had
been set aside in South Africa for the exclusive use of Natives. At that
tirne the Native population of the Union was estimated to be about

4,017,000, of whom 508,000 were living in urban areas, and 3,508,000 in
rural areas, mostly under tribal authority 1.
17. In 1903 a Native Affairs Commission was appointed by the

British Govemment to consider the policy to be applied to Natives
throughout South Africa. This Commission, after careful consideration,
strong1y advocated the princip1e of territorial segregation, or separation
of land rights between the European and Native races in South Africa.
The Commission also indicated that, in view of the fact that members

of the White group were not entitled to purchase land in Native areas,
indiscriminate purchasing of land by Natives outside their own areas
should be stopped. It stated:

"There will be many administrative and social difficulties created
by the multiplication of a number of Native units scattered through
out a white population ... Such a situation cannot /ail to accentuate
f edings of race prejudice and animosity with unhappy results 8",
(italics added)

and recommended that the purchase and leasing of land be limited-

1 U.G. 61-1955, para. 18, p. 43.
2 Act No. 1of 1912, in StaJutes of the Union of South Africa r9n, pp. 2-4.
3 Act No. 18 of 1936, sec. 5 in Statutes of the Union of5014thAfrica r936, p. 92.
Vide para. '2'2infra.
4 U.G. 61-1955, paras. 24-26, p. 44.
5 The area comprising tht,present Province of the Orange Free Statc had not,
within record, been inhabited to any apprec:.iable extent by important Bantu tribes.
There are consequently only three small reserves in this Province.
6 1.1675 morgen= 1 hectare.
1 U. of S.A., Parl. Deb., Bouse of Assembly (1913), Col. 2273.

• 5014thAfrican Native A/Jairs Commission r903-5, Vol. 1, para. 192, p. 35. COUNTER-MEMORIAL OF SOUTH AFRICA 237

"... to areas within which the privilege may be exercised by them
without bringing them into conflict with European land-owners, and
of the extension of this privilege by the creation of such areas in ail
Colonies and Possessions where this can be conveniently done 1".
18. Effect was given to the recommendations of the Commission in
the Natives Land Act of 1913 2,which was the initial legislation in the

Union of South Africa embodying the principle of territorial segregation
and separation of land rights between Natives and non-Natives.
19: The following are extracts from speeches made in the Union
Parliament in 1913 which emphasized the advisability for the Native
groups to have separate areas in which they could progressively attain

a measure of self-government:
(i) "If there was one thing the European must keep before him
it was the improvement and development of these people.
Let the native people keep their traditions and let them build
themselves up along those lines. On that ground they must not
try and make white men of these people, which would be a

mistake. lt would not be good for the white man, and it would
not be good for the native .... [N)atives, when separated from
the whites, should have a measure of self-government under
white supervision. They would be able to tax themselves, and
govern themselves under the control of the white man. If that
was done, ... satisfaction would ensue 3."
{ii) "When they placed the native in a separate territory they gave
him an opportunity of developing, and his position would be

corne stronger and stronger, and he would be able even to have
a continually growing measure of self-government within that
terri tory •."
(iii) "... the bulk of the two races, the European and the natîve,
should live in the main in separate areas ... that was, that
they should occupy and acquire land in separate areas 5".

20. The Schedule to the Natives Land Act contained descriptions of
areas known as Scheduled Native Areas. These areas comprised the then
existing Native Reserves and Locations, toe;ether with certain land
held by Native tribes, communities and indiv1duals.
In implementation of the policy enunciated b}'the Act the provisions
thereof prohibited, without the consent of the Governor-General being
obtained, the acquisition by any persan other than a Native of any land
or interest in land in a Scheduled Native Area, and conversely they

prohibited, without such consent, the acquisition by a Native of any
land or interest in land outside a Scheduled Native Area from a person
other than a Native.
2r. This Act was a preliminary measure and made specifi.cprovision
for the appointment of a commission whose fonctions would be to
lay down permanent lines of territorial segregation, i.e., permanent

1 South Afl'ican Native .A.Oail'sCommissiü11 :1903-5, Vol. I, para. 195, pp. 35-36.
z Act No. 27 of 1913, in Statutes of the Union of South Africa r9r3, PP· 436-475.
3 U. of S.A., Pal'l. Deb., House of Assenrh(1913),Cols. 2515, 2518. (The Prime
Mînister, Gen.Louis Botha.)
• Ibid., Col. 2501. (GeneraJ.B. M. Herbog.}
' Jmd., Col. 2270. (The Minister of Native Affairs, MJ. W. Sauer.)238 SOUTH WEST AFRICA

Native areas, and, as a necessary corollary, permanent non-Native areas.

22. This was the stage of development reached at the time when the
Mandate was confcrred upon Respondent. The reports of the Native
Lands Commission-.1ppoi11ted in terms of the Natives Land Act-and
of five Local Committees 1 later culminated in the passing of the Native
Trust and Land Act of 1936 2,the object of which was-

"... to providc further areas where the natives can maintain a
rcasonable standard of life and develop their own institutions, and
secure a bet ter adjustmen t ofthe relations between whlte and black 3".
In implemcntation of this object, the Act created the South African

Native Trust, a corporate body to be administered for the settlement,
support, benc1it and moral and material welfare of the Natives of South
Africa. The Trust has consistently worked towards this end and, during
the period 3r August 1936, to 31 llfarch r953, acquired further areas to
the extent of 4,12 I ,020morgen for the sole use and occupation of Natives.

Considcrably more land has since been acquired 4.
23. It is clear from the above historical exposition that, after a con
siderablc pcriod in which a policy of territorial segregation had been
applied in South Africa, the statutory foundations of Respondent's re

serve policy had already been laid, and given much publicity, by the
time the Mandate was assumed.
As has"already been shown, one of the grounds on which Respondent
founded its daim to South West Africa at the Peace Conference was that
it would be to the advantagc of the indigenous population if Respondent
applied its Native policy to the Terri tory. It must be assumed, therefore,

that it was within the contemplation of ail parties concerned that,
having regard to the circumstances prevailing in South West Africa,
Respondent was Iikely to apply to the Territory a policy basically simi]ar
toits South African reserve policy.

III. RESERVES IN SOUTH WEST AFRICA

(a) Background to the Establishment of the Reserves

24. When Respondent assumed the Mandate it found in South West
Africa a population consisting of nine main ethnie and linguistic groups 5•
The history of these groups has already been dealt with, and it has been
shown that conflicting daims to land led to severe conflicts between the
various groups in the area later known as the Police Zone 6• These con
flicts not only Ieft bitter feelings among the groups, but also left detribal

ized persans scattered all over the Police Zone.
25. Reference has been made to the near extermination of the Bush-

1Appointed on a regional basis, to revise the recommendationof the Commission.
2 Act No. 18 of 1936.
3 U. of S.A., Parl. Deb., House of Assernbly, Vol. 26 (1936), Col. z747. (The
Minister of Native Affairs, Mr. P. G. W. Grobler.)
4 The Act prescribes a large number of areas defined in detail in the First Schedule
thereto and called "Released Areas". These areas were released from the restrictive
provisions of Act No. z7 of 1913 for acquisitioby Natives and the Trust.
' Vide Book III, Chap. Il, para. z, of this Counter-Memoria!.
~ Ibid.,Cbap. IIJ. COUNTER-MEMORlAL OF SOUTH AFRICA
239

men, the enslavement of the Bergdama, the decades of almost perpetual
war between the Hottentots and the Herero, and the 1904-1907 wars,

one of the causes of which was discontent and unrest with regard to
land rights as a result of transactions with Native chiefs 1•
26. As a result of the wars there was considerable confiscation of

tribal lands of indigenous groups which had risen against the German
authorities. A Decree by the German Kaiser, dated 26 December 1905 2,
made provision for the confiscation of the property of those Natives who
had taken warlike or hostile action, or who had assisted with such

action, directly or indirectly. Property which could be confiscated in
cluded the Native reserves which had been created by a Decree of
10 April 18g8.

27. On 23 March 1906 von Lindequist, the Governor of South West
Africa, issued a statement 3,which was confirmed by a further statement
made on 8 August 1906 4.to the effect that, subject to certain conditions,
all movable and immovable property of the Herero north of the Tropic

of Capricorn, as well as that of the Swartbooi Hottentots of Franzfontein
and the Topnaar Hottentots of Zessfontein, would be confiscated.
28. On 8 May 1907 von Lindequist issued an additional statement 5,
6
wlùch was confirmed by a further statement on II September 1907 ,
in terms of which the movable and ïmmovable property of the Witbooi,
Bethanie, Fransman and Veldskoendraer Hottentots, as well as that
of the Red Nation of Hoachanas and of the Bondelswarts, including
the Swartmodder Hottentots, was confiscated 7•

29. The Rehoboth Basters and the Berseba Hottentots, who had taken
no part in the wars, retained their rights to the land which they were
occupying in terms of previous treaties with the Germans, while the
8
Bergdarna were given the Okombahe reserve •
30. When Respondent took over the administration of the Territory,
the following areas in the Police Zone either had already been set aside

by the Gennans for occupation by Natives or were areas which Natives
were permitted to occupy under treaties:
(i) The area belonging to the Berseba Hottentot tribe, some 575,000

hectares in extent, being portion of the area described in the treaty
of 28 July 1885 between the German Government and Jacobus
Isaak 9, and a later treaty of 7 July 1894, between the German
Govemment and Dietrich Goliath 10•

1Vide Book III, Chap. III, para.. 75, of this Counter-Memodal.
2 Vide Die deutsche Kolo-nial-Gesetzgebung, Sammlung der auf die deutschen
Schutzgebiete bezilglichen Gesetze, Vernrdnungen, Erlasse und intematio11alen

Vereinbarungen mit Anmerkungen, Sachregister, Neunter Band (Jahrgang 1905),
pp. 28.4-"286.
3 Ibid.,Zehnter Band (Jahrgang 1906), pp. 142-143.
• Ibid.,p. 298.
s Ibid.,Elfter Band {Jahrgang 1907}, pp. 233-234.
6 Ibid.,pp. 370-371.
7 In the case of the Bondelswarts the property and the rights referred to in the
treaty of surrender of 23 December 19o6 were excluded.
8 Vide Deutsches Kolonialblatt: Amtsblatt für die Schutzgebiete in Afrika und in
der Südsee, XVII Jahrgang, No. 19 (1 Oct. 1906), p. 643.
~ Hesse, H. Die Schutzve,trage fo Südwestaf,ilia (1905), p. n..
10
Ibid.,p.25. SOUTH WEST AFRICA

(ü) The area occupied by the Bondelswarts tribe, in extent some

174,505 hectares, which had been excluded from confiscation because
of the pcace treaty of 23 December 1906 •
(iii)The Okombahe Rèserve for the Bergdama, in extent 172,780
hectares 2•
(iv) The farm Zessfontein in the Outjo district, 31,416 hectares in ex
tent, which had been assigned for the use of the Topnaar Hotten
3
tots •
(v) The farm Franzfontein in the Outjo district, 36,188 hectares in
extent, assigned for the use of the Swartbooi Hottentots 3•
(vi) The farm Soromas in the Bethanie district, 8,212 hectares in ex
tent, assigned for the use of the Bethanie Hottentots 3•

If the Rehciboth Gebiet (1,750,000 hectares) is included. areas amounting
to 2,748,101 hectares had been made available in the Police Zone for
occupation by the non-Whites.
31. According to Halley 4,there were, in 1913, 1,255 White farms in

private hands, comprising a totaJ area of 13,393,6o6 hectares. The same
authority states that the Police Zone, excluding the Namib Desert area
(7,164,800 hectares), was then approximately 45,025,000 hectares in ex
tent. There remained, therefore, some 28.75 million hectares of unallo
cated land in the Police Zone.

32. Faced with the intricate problems created by the ~xistence in the
Territory of various groups with opposing interests and a heritage of
conflict productive of group animosities, Respondent immediately
appointed a commission of experts to inquire into the situation existing
in the Territory, and to advise Respondent as to its future policy in
regard to the various groups, with a view to the most effective imple

menta tion of the Mandates. This Commission recommended a policy
of setting aside separate areas for the indigenous population, broadly
in accordance with Respondent's South African reserve policy and with
the authoritative findings of the Native Affairs Commissir,n of 1903-
1905 6.

33. In these circumstances, and especially for reasons that will be
detailed hereunder; Respondent considered that the objectives of the
Mandate could best be promoted by applying to South West Africa a
policy of setting aside, as far as was practicable, separate, protected
areas for the different population groups.

(b) The Basic Considerationsof the ReservePolicy

34. The basic considerations of Respondent's reserve policy in South
West Africa, which will be dealt with briefly in tum, have been:
(i) The existence of different ~pulation groups in the Territory;

(ii) the need to restore tribal hfe;
1
Vide Die deutsche Kolonial-Gesetzgebung, Elfter Band (Jahrgang 1907), pp.
2 33- 34·
i Vide para. 29,supra.
3 U.G. 21-1924, p.u.
4 Lord Hailey, A Survey of Native Affairs in South West Ajriça (1946) [unpub
lished], p. 50.
s Vide para. 55, infra.
6 Ibid., para. 17, sup,-a. COONTER-MEMORIAL OF SOUTH AFRICA

(iii)the difference in the systems of land tenure of the various groups;
(iv) the need to prevent alienation of non-White land.

{i)The Existence of n,·geren C roups

35. The White population of South West Africa in I92I numbered
19,432, of whom 7,855 were German nationals. The number of non
Whites in the Police Zone-including temporary migrant workers-was

approxirnately 84,000, while the total number of non-Wlùtes, including
those resident in areas falling outside the Police Zone, was slightly
more than 200,000 i.
36. The existence of widely differing groups, particularly in the Police
Zone, presented problems which were peculiar to the Territory and for
which 1twould not have been easy to find a parallel in the other mandated
territories in Africa, or elsewhere. If it is further taken into account that
the various groups made conflicting daims to land, it follows that justice

could not be done to the legitimate aspirations of the various groups by
pursuing a land policy which completely ignored these differences. On
the contrary, the obligation imposed on Respondent to "promote to the
utmost the material and moral well-being and social progress of the
inhabitants of the territory", compelled Respondent to recognize the
existence of group conflicts and tensions in the Territory and to give
full considera tion thereto; a modus vivendi had consequently to be found
for the peoples of the Territory which would prevent a resumption- of
traditional feuds and hostilities.

37. The problems confronting Respondent were complicated by fac
tors peculiarly concerned with the Herero. In this regard Hailey re
marks:
"The campaign [of 1915] raised hopes among the Hereros, some
at least of which were doomed to disappointment. They seem to have
misinterpreted the declarations made by the Union Government and
in particular those. of Lord Bwdon as Governor-General. They

believed that the end of German rule would see the Territory
partitioned between themselves and the Hottentots and in this
belief they set themselves to collect cattle, while some of the smaller
Chiefs began to rekindle the Roly Fires. There was a swing back
from Mission influences. Nor indeed does it seem that their change
of religion had been effective in giving them a new code of morals
which provided a substitute for the old tribal restraints, for all
observers were impressed with the Lackof moral discipline among
the men, and of a promiscuity among the women which appeared
to affect their fertifity. The new Administration therefore encoun~

tered in the Hereros a people disaffected, brooding over its losses,
and lacking the initiative or even, as it then seemed, the capacity
to recreate itself 2."
38. The concept of what land traditionally "belonged" to the Herero
or, for that matter, to any of the indigenous groups in the Police Zone
is a vague one, as is illustrated by the following extract from Hailey:

''It was not easy to say at any one time how far these vacant

1 U.G. 32-192:z, pp. 5, I2.
1 Hailey, A Suroey of Na.live Afja.i<itSouth. West AfYita. {1946), p. 45. SOUTH WEST AFRICA

lands could be said to have been occupied by natives, or by wha t
particular natives, since the continua! warfare between the Hereros
and Hottentots had made it difficult to determine what were the
recognized limits of Herero and Hottentot grazing 1.''

39. A further indication of the difficulty ôf achieving equity in regard
to land daims, is afforded by the conduct of a group of Herero who had
fled to Angola during the German regime. In 1915, on hearing that the
Union troops were about to occupy Windhoek, they crossed the Kunene
river and invaded the Kaokoveld, ousted the Himbas and Tjimbas from

places which the latter had occupied for generations, and took full pos
session thereof 2•
40. In these circumstances Respondent considered it highly desirable

to establish separate areas, as far as practicable, for the sole use and
occupation of each group, thereby also protecting the weaker groups
against the stronger or more aggressive ones.

(ii)The Need to Restore Tribal Li/e

41. The severe disruption of tribal life in the Police Zone prior to the
assumption of the Mandate led to the disappearance of tribal discipline,
3
and to social disorganization and moral decay • Reference has been
made to the problems of vagrancy and idleness brought about by this
disruption \
Respondent foresaw that the rehabilitation of the disrupted tribes
would take years to accomplish, but believed that their material and
moral well-being and social progress required first of all that their shat

tered tribal life should be restored in order to fonn the basis for their
future development. This could best be done by setting aside areas in
which the dispersed remnants of such trfües couJd re-assemble and re
establish their traditional communal life with its undoubted material,
moral and social advantages.

42. This object of Respondent's. reserve policy was clearly stated in
the annual report on South West Africa for the year 1925, which con
tained the following:
"The natives, however, will in future have centres where they can

develop on their own lines, from which they can go freely in search
of work in European centres and to which they can return to their
families. At the same time the foundation bas been laid for the
building of self-contained native communities developing on their own
Unes under the supervision of selected Native Affairs officiais ... 5"
(Italics added.)

43. From this point of view the reserve policy has always had the
approval of the majority of the non-Whites in the Territory, For ex
ample, in a memorandum which the Herero submitted to the Admini~

1 Hailey, Su,vey of Native AOairs in South West Africa (1946),p. 48.
2 Vide U.N. Dac. T/175, in T.C., O.R., Third Sess., Sup.pp. 51-152; at p. 151.
3 Vide Hailey, A Sut=y of Natfoe A!Jai,s in South West A/rica (1946}, pp.25,
29 and 45.
• Vide Chap. II, paras. 13-20,supra.
~ U.G. 26-1926, pp. 109-110. COUNîER-MEIIIORIAL OF SOUTH AFRICA 243

stration in 1948 the principal request was that they should be re-united
and the tribal organization re-establishcd 1•

(ili) Differencesin Systems of Land Tenure

44. Each Native group in the Territory had its own laws and cus
toms-in many cases differing inter se-regulating the acquisition and

disposai of, and succession to, rights relating to the occupation and use
of land 2•The White group was accustomed to ind.ividual or private
ownership on the same basis as that applying in South Africa and in
Germany. This system of land tenure was foreign to the Native groups,
to whom the dominant conception was that of communal, not individual,
rights to land.

45. Communal tenure is not peculiar to the Natives of South West
Africa. Hailey remaI"ks in this regard:
"To the African the dominant conception is that of communal,
not of individual, rights over land. By traditional African custom the

individual and his family can daim an undisturbed tenure of a hold
ing so long as they need to use it but, when they cease to do so, it
reverts to the community and may be apportioned to others.
Where the usual practice is that of shifting cultivation, every mem
ber of the group can claim by right the use of the necessary portion
of the unoccupied waste; but the land remains {rom first to last the
land of the community ."

The Native Affairs Commission of 1903-1905 {reported:
"It will be seen that in all the Colonies and Possessions tracts of
land have been recognised, set aside and reserved to Natives for

communal occupation. History and tradition bear eloqucnt testi
mony to the fact that this form of tenure was admirahly suited to
the needs and habits of the aboriginal races; indeed, it was originally
the only possible form. It constituted a portion of the great tribal
system under which the land was administered by the Chief and
his Councillors foI"the people 5."

46. It follows that Respondent had to take account of the traditional
communal or tribal system of land tenure found among the varions
indigenous groups of the Territory, and that it was impossible to treat
all the. groups alike.
It would have been disastrous for the non-Whites ifa system of in

dividual rights to Jand-which they would not have understood-had
been imposed upon them and compulsion used to secure subdivision and
individual holding of land set apart for communal occupation. Few
would have been able to support themselves and their families on the
land allotted to them, with the result that most would soon have parted
with their individual allotrnents. Such alienations had actually occurred
in the case of the Basters of Rehoboth, the Bondclswarts and the Herero
6
during the German regime, as will be shown more fully hereunder •

1 Departmental information.
:z Vide Book III, Chap. Il, of this Counter.Memorial.
' Lord Hailey, An African Survey: Revised 1956, p. 685.
4 Reference to thisCommission ha,; been made in para. 17, supra.
5 5014thAfrican Native Affairs Commission. Vol. I, para. r43, p.26.
" Vide paras. 5r-52, infra.244 SOUTH WEST AFRICA

47. Benefits of the system of communal tenure for the Natives of

Africa are still recognized today, and were stressed as follows in a report
of the Food and Agricultural Organization of the United Nations:
"Indeed it can be said with confidence that in a free society it
would be impossible to effect an alteration in the form of land

tenure which ran directly contrary to cunent social and religious
ideas....
. . . Ifsuch a system [of communal land tenure] can still survive,
where the circumstances render it desirable, in a country with as
high a level of civilization as Switzerland, there is no reason for
supposing that it will necessarily disappear in Africa and other areas
of more primitive culture, as civilization advances 1."

"From the social point of view it must be emphasized that any
system of communal land tenure having the general characteristics
set out above has great value, since it is a strong force knitting
together the community which practices it. ...
The preliminary judgment therefore, is that on social grounds the
system should be preserved, unless on economic and agricultural
grounds it is inevitably condemned 2."

48. It should, however, not be supposed that Respondent is irrevo
cably opposed to individual land tenure for Natives . In the course of
time changed economic attitudes may result in the replacement of com
munal by individual ownership, and this could, if introduced with the
necessary circumspection, be to the advantage of the Territory. Re
spondent will, therefore, favourably consider the introduction of in

dividual tenure wherever circumstances may favour such a course: but
this implies, inter alia, that Respondent will act only in accordarice with
the wishes of the tribal authorities concemed, and in any event only
where and when Natives exhibit in sufficient numbers a desire to secure,
and a capacity to hold and enjoy, individual rights to farms and residential
sites on the land in question.

49. It is Respondent's policy that the Natives must be allowed natu
rally and gradually to develop and change their traditional concepts in
regard to land, and that this should form part of their general economic
advancement from a subsistence economy to an exchange economy.
A similar view was expressed in 1960 by Bauer and Yamey:

"A premature policy will arouse fears with little advantage; there
is no economic merit per se in a change from communal to individual
tenure, since the advantages depend on individuals willing and
able to apply new methods 4."
50. The above views correspond also with the following conclusion
arrived at in 1959 by the Third Inter-African Soils Conference of the

Commission for Technical Co-operation in Africa South of the Sahara:

1
Communal Land Tenure: An F.A.O. Land Tenure Study (F.A.O. Agricultural
St2dies,No. 17) [March 1953], p.2.
3 Ibid.• pp.26-27.
Act No. 49 of1919, sec.4 (3)(in The Laws oj South West Africa I9I5·I922, p12)
authorizes the Governor-General (now the State President) to make land in individ
ual ownership available to Natives in the reserves.
• Bauer, P. T. and Yamey, B. S., The Economies of Under-Developed Countrù.s
(196o),p. 174. COUNTER•?,ŒMORIAL OF SOUTH AFRICA 245

"Premature introduction of individual ownershlp may have un
desirable consequences in cases where the necessary conditions oi
economic organisation, social progress and moral development

have not been achieved. In particular, the farmer is exposed to the
risk of land speculation wlùch leads to the development of a rural
proletariat and to unsound utilisation of the soil ."
The Confetence accordingly recommended that govemments should

avoid the premature· introduction of individual ownership and should
take appropriate measures, such as prohibiting the sale of land, so long
as the de~ee of evolution of agricultural populations, or the lack of
funds available to them, leave the way open to such dangers 2•

(iv} The Need to Pnvent Alienation of Non-White Land

51. During the German regime, and particularly before 1904, many
non-Whites had lost their land as the result of sales or similar trans
actions between their chiefs and White men. So, for instance, Chief

Samuel Maherero of the Herero, who was in need of money, solda number
of farms to Whites, secretly informing dissatisf:ted tribesmen that he
would bring back ail the ceded territory into the possession of his people 3•
So, tao, the Humpata Boers~ in 1884 bought from Chief Kambonde of
the 'Ndonga tribe of Ovamboland a tract of land extending from west

of the Naidaus and Nunab ranges to the Great Omuramba in the east
an area by and large corresponding with the present Grootfontein district
-for 25 muskets, one horse and one cask of brandy 5• And in 1883 the
Luderitz Company of Bremen bought a coastal stri]? of land, stretching
over ISO miles from the Orange River to the 26° S hne of latitude, from
6
Josef Fredericks for 60 guns and {,500 •
52. With reference to thé Rehoboth Basters, Mr. Justice de Villiers,
chainnan of the Rehoboth Commission of 1926, stated that in bis
opinion-

".. , there [was] no doubt whatever that liberty to alienate land to
Europeans would inevitably result in the Burghers losing the greater
portion, if not the whole, of their land withln a comparatively short
period of time 7".

This opinion was based on fact, for during the period 1898 to 1905 the
Basters disposed of 250,000 hectares of theit land to Europeans 8, and
up to 1923 they had in ail disposed of approximately 450,000 hectares,
or more than one-quarter of the total area of the Rehoboth Gebiet 9•

1 Thfrd Inte,,.A/rican Soils Con/erenceDalaba, 1959 (Publication No. 50), Vol. I,
para. 3, p. 73.
2 Ibid.,pp. 89--90.
l Vedder, H., The Htrero in The Native TYibes o/ South West Africa (1928), p. 161.

• The Humpata Boers took 11art in the great tt"ek whîch left Transvaalin 1875.
They made their way to Humpata in Angola before returning to South West Africa.
' KOhler, O., A Study o/ G,ootfontein District (South West Africa), Ethnologîcal
Publications, No. 45 (l9S9), para. 54, pp. 19-20.
6 Hesse, H., Die Landfrage und die Frage de, Rechtsgülligtrei, der Kon.:essionen in
St2dwestafriAa: Ein Beitrag zur wirtschaftlichen und finan:ziellen Entwickelung des
Schutzgebietes (1906), 11. Teil. p. 199.
1 U.G. 41-1926, p. 63.
1 Ibid., p.186.
9 Ibid., p. 64. SOUTH WEST AFRICA

53. It was consequently realized from the outset by Respondent that
it was necessary to set aside land permanently for the sole use and occu
pation of the non-White groups and to prevent such land from. being
alienated, except under very special circumstances. For this reason
section 4 (3)of Act No. 49 of 1919 prohibited the alienation of land
set apart as reserves for Natives or Coloured persons save under the
authority of Parliament 1•
54. To protect the Natives from losing their land and to enable Re
spondent to develop the reserves for the benefit of the respective groups,
it has been necessary for Respondent to retain contrai over the Native

reserves. These reserves were consequently not transferred to the re
spective groups but, as in South Afr1ca pnor to 1936, remained vested
in the Administration until Act No. 56 of 1954 was passed. This Act
provided for the vesting of all Native reserves in the South African
Native Trust 2, thus equating in this respect the position in South West
Africa with that in South Africa 3,
It is foreseen that in time the land in the reserves will be transferred
to the authorities of the respective groups, but in the present stage of
economîc development of the indigenous groups it would be to their
detriment to do so without qualification.

55. It will be recalled that when Respondent assumed the Mandate,
areas amounting to 2,748,101 hectares-Le., if the Rehoboth Gebiet of

1,750,000 hectares is includ4d-had already been made available for
occupation by non-Whites • During the period of martial law Respon
dent made a few farms available as temporary reserves. In 1920, how
ever, the Administrator of the Territory appointed a commiss1on--con
sisting of Mr. H. Drew, a Magistrate, and Colonel Kruger-ta report,
inter alia, on "... the general administration of native locations and
reserves in the Territory, their size and conditions prevailing therein"
and ". . . the availability of native labour in such locations and
reserves" '.
56. After the Commission'sreport was received, additional members 6
were appointed in June 1921 under the chairmanship of Mr. Drew, to

discuss the recommendations of the first Commission and particularly
to advise as to the allotment of suitable areas for permanent Native
reserves.
In August r92r the en]arged Commission made the following recom
mendations:
(i) Reserves were to be created for the accommodation of Natives
hitherto unprovided for, and Natives removed from areas recom
mended for closure.

1 Act No. 49 of 1919, sec. 4 (3), in The Laws of South West Africa I915·I9212.p.
2 Vide Act No. 56 of 1954, sec. 4 in Stalutes of the Union of Soutli Ajrica I954,
pp. 561-563; and parr. 22,supra.
3 Vide Book VIII, sec. C, Chap. VII, paras. 18-25 of this Counter-Memorial.
• Vide para. 30, supra.
5 U.G. 26-1921, p.13.
6 Colonel de Jager, Major Manning (Commissioner for Native Af!airs), Mr.
Schneider (Senior Officer, Lands Branch), and Mr. Landsberg (Surveyor-General). COUNTER-MEMORJAL OF SOUTH AFRlCA
247

(ii~The temporary reserves were to be closed.
(iii The reserves occupied under treaties were to remain as before.
(iv Land was to be earmarked for future extension of reserves or as
alternative reserves in case the proposed new reserves should prove
to be unsuitable 2•
57. Pursuant to instructions, the Commission also considered the
feasibility of setting aside, on Iines similar to those adopted in the South
Afri.can Natives Land Act 3, a "Native area" in which Natives might at
some future time be permitted to purchase or otherwise obtain land if

they should wish to do so. An extensive area on the eastern side of the
Gobabis and Waterberg districts and abutting on the Bechuanaland
border was recommended for this purpose.
The following table contains the main details of the above recom
mendations:
Hectares
(i)Proposed reserves . . . . . . . . . . . . . 794,938
(ii)Less reserves to be closed . • . . . . . . 139,288

(iii) Land eannarked for reserves in case of extension

in future or of the unsuitability of proposed reserves 636,88.1
(iv) Land held by Natives under German treaties and
agreements • . . . . . . . . . . . . . . . • . . . . . 945,343

Total . . . 2,237,874

58. The Commission also considered the need for providing reserves
in the Kaokoveld, and recommended that Major Manning, who had
made previous tours of that area, should prepare a detailed statement.
As a result, it was proposed that Zessfontein reserve should remain
undisturbed while the following further reserves were to be set aside
in that area •:

(i} Ombepera for Chiei Kasupi's people, roughly 1o6,500 hectares in
extent.
(ii)Otjijanja-semo and Hondoto for Chief Oorlog's and Chief Muhona
Katiti's tribes, 257,000 hectares; and
(ili) Owaruthe, in extent 55,000 hectares, for Herero factions 5•

Ovamboland and the Okavango Native Territory, being purely Native
areas beyond the Police Zone, were not cliscussed by the Commission.
59. The recommendations of the enlarged Commission were generally
accepted as the basis upon which the reserves should be set aside. In
the 1922 annual report the Administrator stated:
"I had no difficulty in clisceming that to get the Natives quite
contented and to revive in them an attachment to the land and an
interest in their future, it was necessary to proceed as quickly as
possible with the selection of large areas to be set aside as reserves

1 Vide para. 55, sup,.a.
z U.G. 32-1922, pp. 13-14.
l Vide para.. 18,supra.
' U.G.r32-1922.le p.14.veld was reserved--vide para.. 62in/J>a. SOUTH WEST AFRICA

which would for ail tune, subject to good behaviour, of course, re

main assigned to them ...
The Reserves will be of course set aside entirely for native occupa
tion, churches and schools may be erected there and dipping tanks
constructed. Title will not be issued but, as provided in Act 48 of
1919 of the Union, the Natives cannot in future be deprived of the
land without consent of the Union Parliament ...
That the final determination of these reserves and their actual

occupation have done much to allay the undoubted unrest which
existed among the Natives is proved beyond a doubt ...
The areas have been selected with every care and consideration
so as to obviate, so far as human agency can prevent, the occupants
being disturbed even intimes of the most severe drought. Grazmg is
good, water is sufficient, but no expense will be spared to make every
provision by boring for necessary expansion 1."

6o. In attempting to implement the proposed reserve policy, the
Administration was confronted by the following formidable problems:

(i) Many Natives had fonned the impression that, as the German
regime had corne to an end, Respondent would confiscate the farms
which the German Govemment had sold or allotted to Whites, and
that .they would accordingly recover land which they or their
ancestors might at some stage have occupied or used for grazing.

Various groups thus asked fo2 the allotment of what they claimed
to be their old tribal areas •It was, however, not easy to establish
to what extent large areas found more or less vacant by Respondent
had at any given time been occupied by Natives or by which par
ticular Native groups, since, as has already been pointed out 3,
continua! warfare between the Hottentots and the Herero had made
it difficult to detennine what were the recognized limits of Herero

or Hottentot grazing. Moreover,.vested rights of ownership, mort
gage, servitude and the like had meanwhile accrued in many areas
to which daims were laid by indigenous groups, and, in the absence
of sound and equitable grounds for confiscation, such rights could
not be interfered with. Many of the daims thus made could there
fore not be acceded to.
{ii)Due to historical reasons it was, in the early years, difficult to
4
secure the confidence and co-operation ofsome of the Native groups •
{iii)The areas proposed to be set aside as reserves were soon put to a
searching test. A prolonged and unprecedented drought affected the
underground water supplies of the country to such an extent that
springs and wells, which previously had never given out, failed.
Europeans and Natives had to trek, losing large numbers of their

stock. It soon became manifest that not all the areas reserved would
satisfy requirements, and fresh investigations were necessary 5•
61. For practically ten years (1924-1934) the Administration's acti
vities were directed to building up the reserves and making them habit-

1 U.G. 21-1923, pp. 13, 15.
2 Ibid.,p. IJ.
' Vide para. 38,supra.
4 Vida U.G. 49-1947, para. 54, p. 13.
~ Vide U.G. 21-1923, p. 13. COUNTER·MEMORIAL OF SOUTH AFRICA 249

able by fencing, sinking boreholes and providing dams 1• It was only
in the last five years before the outbreak of the Second World War that
the material fruits of the reserve policy began to appear z.
62. The areas recommended for Native settlement by the enlarged
Commission were soon found to be inadequate, and from time to tune
more land has been rese,:ved for the sole use and occupation of Natives.
The following is a list of the reserves in the Territo:ry which have been
set aside to date. The areas given are approximate.

Reserve Legislation Areas

RESERVES IN WHICH HERERO PREPONDERATE
Aminuis G.N. No. 122 of 1923J5WA~......• 230,000 Ha.
G.N. No. 109 of 1925 SWA tubstitution) 543,000 Ha.
G.N. No. 87 of 1935 { WA) addition) •• 5,191 Ha.
G.N. No. 2II of 1942JSWA} addition) .. 31 Ha.
According to a reèalc ation the area is . . 555,795 Ha.

Epuki,o G.N. No. 122 of 1923 tWA) ....... 178,000 Ha.
G.N. No. 109 of 1925 SWA~tsubstitution) 284,000 Ha.
G.N. No. 154 of 1934 SWA addition) .. 743,000 Ha.
According to a recalculation the area is • . 1,221,402 Ha.

Ovitoto G.N. No. 122 of 1923 rWA} ...... 47,7~1 Ha.
G.N. No. 173 of 1935 SWA tddition) . 7,8 6 Ha.
G.N. No. 182 of 1937 SWA addition) . 3,829 Ha.
G.N. No. 46 of 1938 (SWA) addition) • 774 Ha.
Total according to a recalculation . . . 61,122 Ha.
Waterberg
East G.N. No. 27 of 1924 (SWA) ....••. 3u,ooo Ha.
343,000 Ha.
G.N. No. 1112 of 1940 SWAÎ additionf •.o) 24,414 Ha.
G.N. No. 374 of 194i SWA addition .. 50,000 Ha.
G.N. No. 179 of I~ SWA) addition) .. 5,022 Ha.
Ord. No. 4 of 195 JSW A) addition) . . II,683 Ha.
According to arec culatton the area is • • 479,651 Ha.

Otfituo G.N. No. 122 oh923 t5WAl....... 105,768 Ha.
G.N. No. n9 of 1929 SWA !addit .i.o,1 89,841 Ha.
G.N. No. 19 of 1931 (SWA) addition •. 10,415 Ha.
G.N. No. 127 of 1936 f5WA~ addition •. 166,000 Ha.
G.N. No. 37~ of 1947 SWA addition) .. 39,000 Ha.
Total according to a recalculation . . • . 430,961 Ha.

Otfoho-
yongo G.N. No. 108 of 1925 (SWA)..••..• 330,000 Ha.
According to a recalculation the area is now 365,177 Ha.
Grand total for reserves in which Hererpre-
ponderate. . . . . 3,II4,1o8 Ha.

1
1 Viù U.G. 49-1947,/p. 13.250 SOUTH WEST AFRICA

Reserve Legislation Areas

RESERVES IN WHICH DAMA PREPONDERATE
Okombahe G.N. No. 122 of 1923 ,SWA), ...... l
G.N. No. 237 of 1930 SWA}. . . . . . . ) 172,780 Ha.
G.N. No. 374 of 1947 SWA) (addition) . . u6,ooo Ha.
G.N. No. 215 of 1950 SWA) (addition) as
amended by G.N. No. 1916 of 1959 (SA) . 133,000 Ha.
Ord. No. 26 of 1958 (SWA) (addition) . . 12,860 Ha.
According to a recalculation the total is. . 434,587 Ha.

RESERVES IN WHICH NAMA PREPONDERATE

Berseba G.N. No. 122 of 1923 (SWA)....... ( 575,000 Ha.
G.N. No. 237 of 1930 (SWA)....... ~
According to arecalculationof the area itis 586,874 Ha.
Bondels G.N. No. 122'of 1923 (SWA). . . • . . j
G.N. No. 237 of 1930 (SWA). . . . . . ~ 174,505 Ha.
Total according to a recalculation . . . 174,560 Ha.
Soromas G.N. No. 122 of 1923 (SWA)... : . . j
G.N. No. 237 of 1930 (SWA). . . . . . ' 8,212 Ha.
G.N. No. 8 of 1928 (SWA) (addition) 8,618 Ha.
G.N. No. 485 of 1951 (SWA) (addition) 6,743 Ha.
Total according to a recalculation 25,899 Ha.

Warmbad G.N. No. 122 of 1951 (SWA}. . . 14,500 Ha.

Grand total for Reservesinwhich Nama pre
ponderate ... , ........• 801,833 Ha.
RESERVE OCCUPIED BY OVAMBO

Ovambo Proc. No. 40 of 1920 (SWAl . . . . · · · ~4,200, 34 H a.
land Proc. No. 27 o 1929 (SWA . . . . . . . .

RESERVE OCCUPIED BY OKAVANGO NATIVES AND ADJOINING RESERVE
Okavango Proc. No. 32 of 1937 (SWA}. 3,234,855 Ha.
Native Act No. 56 of 1954. . . . . . . . . . . 32,000 Ha.
Territory

Unnamed G.N. No. 193 of 1952 (SWA)... 356,400 Ha.
Reserve Total according to a recalculation 3,623,255 Ha.

RESERVE OCCUPIED BY NATIVES IN THE EASTERN CAPRIVI ZIPFEL
Eastern
Caprivi
ZiPfel Proc. No. 147 of 1939 (SA) , . , , . . . 1,153,287 Ha.

RESERVE OCCUPIED BY KAOKOVELD HERERO

Kackoveld G.N. No. 374 of 1947 (SWA)... · · · ·} 6o H
G.N. No. 156 of 1948 (SWA).. , . . . . 5,5 ,ooo a.
Amended by G.N. No. 201 of1953 (SWA) • C01.JNTER-MEMORIAL OF SOUTH AFRlCA 25I

Reserve Legislation A:reas
G.N: No. 262 of 1954 {SWA) {addition) II,413· Ha.
According to a recalculation the total area is
5,514,617 Ha.

MIXEO RESERVES
Otfim- G.N. No. 21 of 1926 (SWA) .. 83,053 Ha.
bingwe G.N. No. go of 1929 (SWA) tddition) . 308 Ha.
G.N. No. 162 of I930 }SWA} addition} . 6,594 Ha.
G.N. No. 163 of 1935 SWA) addition) . 3 Ha.
G.N. No. 92 of 1939 (SWA) ~ddition) . II2 Ha.
According to a recalculation t e area is . 91,165 Ha.

Neuhof G.N. No. 1.22of 1923 (SWA)... 20,500 Ha.
Area according to a recalculation.
19,942 Ha.

Tses G.N. No. 122 of 1923 {SWA). . . . . 229,925 Ha.
G.N. No. 61 of 1935 (SWA) {addition) 24,661 Ha.
Total according to a recalcula tion . . 254,588 Ha.

Eastern G.N. No. 374 of 1947 (SWA)..... r,26o,ooo Ha.
Proc. No. 287 of 1956 (SA}(deduction) . II,683 Ha.
According to a recalculation the area is . I,279,156 Ha.

Franz- G.N. No. 122 of 1923 (SWA)....•
fonte-in G.N. No. 237 of 1930 (SWA)..... : } 36,188 Ha.
G.N. No. 62 of 1938 (SWA) (addition) 21,000 Ha.
Total according to a recalculation 57,755 Ha.

Gibeonor G.N. No. 44 of 1924 (SWA) . 38,782 Ha.
Kranz-
platz According to a l"l:!calculationthe area measures 39,108 Ha.

Zess- G.N. No. 122 of 1923 ~SWA)..... 31,416 Ha.
fontein G.N. No. 237 of 1930 SWA). . . . . :{
G.N. No. 42 of 1941 (SWA) (addition) 2,000 sq.
meters.
Grand total for mixed reserves. 1,775,130 Ha.

The total area now set aside for the sole use and occupation of Natives
is approximately 20,617,651 hectares.
63. An important factor in the provision of Native reserves has been
the development of water supplies, for which purposes large sums of
money had to be spent. The following extracts from the annual reports
on the Terri tory for the years 1923, 1924 and 1930 are in point:
(i) "... it has been the policy of the Administration not to pro:
claim any area as a reserve until adequate water has been pro
vided-a very large undertaking, for 1t must be borne in mind
that there is practically no permanent open water in the Terri
tory, and the task of boring sufficient boles, and constructing SOUTH WEST AFRICA

reservoirs for large numbers of natives with their stock is a
heavy and expensive one 1".
(ü) "The chief difficulty militating against and delaying the settle
ment of natives in the varions reserves is the water question 2."
(ili)"Hitherto the activities in the native reserves have been directed
principally towards developing sufficient water. In some reserves

the boring has been continued for over seven years and in many
places it was only at very great expense that sufficient water
could be provided 3."
The process of developing the water resources of the Territory, and
of preserving them, is a continuons one and will have to be carried on
in perpetuity.

(d) The Bushmen Reserve

64. Because of their nomadic habits it has not as yet been practicable
to set aside a separate area for the use and occupation of the Bushmen,
but it is anticipated that this will happen in the near future. In 1950 a
Commission was appointed under the chairmanship of Dr. P. J. Schoe
man to investigate this matter, and it recommended, inter alia, that a
reserve be established for the !Khung Bushmen 4, who total approxi

mately 8,000.
65. The Executive Committee of South West Africa has approved of
the principle of establishing a reserve for the Bushmen, and effect will
be given thereto as soon as it is considered practicable. In the proposed
reserve the Bushmen will enjoy exclusive rights, and the protection of
this group will in essence be the same as that afforded to the Native
groups in their reserves.

(e) The RehobothBaste, Gebiet

66. The Rehoboth Baster Gebiet is a large area, comprising some
1,380,000 hectares, situated in the centre of the Police ZQne. Under the
German regime the Basters were allowed to retain their Gebiet, and their
rights were subsequently recognized by Respondent in terms of the

Rehoboth Agreement of 1923. Paragraph 15 of this Agreement reads as
follows:
"No persan other than a lawful resident of the Gebiet at the date
of the taking effect of this Agreement shall be permitted to reside
therein or to acquire therein any interest in immovable property
whether leasehold or freehold save with the written consent of the
Raad of the Rehoboth Community which consent shall be subject to

the approval of the Magistrate of the District; provided that in the
case of a European the sanction of the Administrator of South West
Africa shall be a condition precedent to such residence in the Ge'biet
or acquisition or lease of immovable property or any interest there
in; provided further that nothing in this paragraph contaitied shall

1 U.G. 21-1924, p. 13.
2 U.G. 33-1925, para. 84, p.24.
' U.G. 21-1931, para.589, p. 82.
• Vide Book Ill, Cbap. Il, para. 53, of thisCounter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA 253

affect any existing rights lawfully acquired before or at the date of
the taking effect of this Agreement 1.''

67. In terms of section 6 (z) of Proclamation No. 9 of 1928 (S.W.A.),
no person other than a member of the Rehoboth Corrimunity may
acquire any interest in immovable property situated in the Gebiet with
out the written consent of the Raad of the Commwiity and of the Ad
ministrator 2•

68. In 1925 a commission 3 enquired into the question of land tenure
in the Gebiet and recommended that individual rights of the Basters
to separate pieces of land should be recognized. As a result of tli.is re
commendation a large area of the Gebiet has been subdivided into farms,
and titles to these farms have been issued. The reserve is consequently
owned by the Rehoboth community·partly under individual tenure and
partly communally.

In the result the protection afforded to this group in the Gebiet is as
complete as that afforded to the Native groups in their reserves.

(f)The Area Inhabited by the White PofJulation

69. This area comprises the Police Zone exclusive of-

(i) the Native reserves and the Rehoboth Baster Gebiet in that Zone;
(ii)two large proclaimed Diamond Areas, stretching to a width which
varies from about 50 to about 100 miles along the coast from the
Orange River in the south to a line over 300 miles north thereof,
and virtually uninhabited except for the mining town of Oranje
mund and the harbour town of Luderitz; and

(üi} large tracts of unallocated land, mostly in the northern and north
eastern parts, but including also a large portion of the Namib
desert north of the Diamond Areas.
70. The area has undergone considerable fluctuation under Respon
dent's administration, expanding with allocations of new farms and

decreasing with the creation of additional Native reserves. Whilst the
limit of expansion appears, by and lar~e, to have been reached, Res
pondent is at present, as previously ind1cated, engaged upon investiga
tions which will probably result in further reduction through the pro
vision of larger areas for the various non-White groups.
As has already been pointed out 4,the effect of Respondent's reserve
policy, and of a number of its laws, is that members of the White group

enjoy certain priority rights in this area. It is against some of these
laws that the main attack of the Applicants regarding rights of residence
in the Territory is directed, and they will therefore be dealt with in
detail in the reply to the allegations contained in the Memorials 5•

1 U.G. 41-1926, para. 15,p, 103. The Agreement fonns the Schedule to Proc.
No. 28 of 1923 (S.W.A.), by which it was ratified and confirmed. (Laws of Soulh
West Africa,Vol. Il (1923-1927), pp. 145-148.)
1 Proc.No. 9 of 1928 (S.W.A.}, sec. 6 (2)in TM Laws of Sawh West Africa I9a8,
p. 46. For the reasons forthe enactment of this sub-section-which a.ccording to
its proviso did not affecany existing rights lawfully acquirebefore thecommence
ment of the Proclamation, vicù para.5.2,sup,,a.
3 Vide para. 52,supra.
4 Vide para. 10,supra.
s Vide para. n3 et seq.in/ra.254 SOUTH WEST AFRlCA

IV. THE ATTITUDE OF THE PERMANENT MANDATES COMMISSION

71. As carly as 1919 Respondent intimated an intention to adopt in
respect of the Natives in South West Africa a policy basically similar
to that followed in the Union. In the Administrator's report for 1919
it was inclicated that the Governor-General had stressed the need for
such a policy during his visit to the Territory 1• During the discussion

of the report, M. Rappard, then Director of the mandates section of
the League of Nations, in a statement to the Permanent Mandates
Commission, said:
"The Report contained various passages of interest; in particuJar,
it was stated that the treatment of the natives would have to be in
conformity with the policy adopted in South Africa 2."

72. In the course of the ensuing years Respondent's reserve policy
was repeatcdly explained to the Permanent Mandates Commission by
South African delegates. On various occasions the Commission approved
of this policy, and it is clear that from the outset it favoured a system
under which the identity and customs of the various groups would be
maintained.

73. During the tenth meeting of the Second Session on 7 August 1922,
Mr. Ormsby-Gore, a membcr of the Commission, proposed that the
following be added to the Commission's observations on Respondent's
report regarding the Territory: "... The Commission expresses the hope
that the primitive organization in tribes may be maintained unaltered
wherever it still exists." This proposal was adopted.

74. In the course of the exarnination of the annual report for 1922,
M. van Rees, a member of the Commission, asked the two South African
representatives, Sir Edgar Walton and Major Herbst, to explain the
whole position of the Native reserves, including the questions: what was
the reason for establishing reserves, and how should they be adminis
tered? The following answer was recorded:

"Major Herbst said that a European Power on entering a territory
usually foundnatives living in what hadcome to be termed 'reserves,
i.e., land occupied by the natives from time immemorial. The term
'reserve' implied that these lands were reserved for the occupation of
that particular tribe by the incoming Govemment. The rights of the
natives in those reserves had always been respected by the South
African Government. There were, however, cases in the past where

the natives had rebelled and where the Parliament had taken away
the rights in that particular reserve. In the original native reserves
the native chiefs exercised full authority over their own tribes in
that particular area, except that certain practices, i.e., the killing of
their subjects or interference with adjoining tribes, had been re
stricted. Their own headmen, in the name of the chiefs, allotted land
to newly married couples, and native law was administered by the
chief or his headman.
In South-West Africa there were two such original native reserves,

where the natives lived according to their tribal customs and where

1 Vide U.G. 40-1920, p. 4.
2 P.M.C., Min., I,p.33.
' Ibid., Ilp. 49. COUNTER-MEMORIAL OF SOUTH AFRICA 255

the administration had not applied its own domestic laws or levied

any taxation. These were the Ovambo and the Beerseba reserves.
These lands existed as when the South African Government took
up the ~dministration. No passes were required within these re
serves. Ali the land was regarded as belonging to the chief, who
allotted lands to married couples according to necessity J."
Replying to a question from the chairman of the Commission as to

the policy of the South African Government in regard to reserves, Sir
Edgar Walton gave the following explanation:
"Where ... the natives cultivated land for themselves, it was the
policy of the Govemrnent to reserve for them lands which they were
not allowed to alienate and which white men were not allowed ta
enter ... it was entirely in the interests of the natives. The natives,

if allowed to live with the white people, eventually parted with
their land and became vagrants and a source of danger. The only
way to preserve the native was to bring him gradually under the
influence of civilization, as was done in South Africa ... The policy
of the South African Govemment was one of segregatîon, but the
extent to which it would be applied in South West Africa must
depend on circumstances 2."

75. During the Fourth Session of the Commission in 1924, Mr. Hof-
-meyr, the South African representative, is reported to have said:
" ... the policy, which, after a long experience in the Union, now
seemed to be best was one which would constitute what was known
as white areas and black areas. This policy would also be followed
in South-West Africa 3."

The following extract from the Minutes of the Fourth Session of the
Permanent Mandates Commission indicates that the Commission was
fully aware of Respondent's policy and intentions regarding Native re~
serves:

"On the proposai of M. Orts, the Commission decided to add, after
the fourth paragraph [of its special observations on the Adminis
tration of South West Africa], the following sentence:
'The Permanent Mandates Commission is of opinion that the
soundness of the views whkh have prompted the Administration
to adopt a system of segregation of natives in reserves will be
corne increasingly apparent if there is no doubt that, in the future,

the Administration will have at its disposal sufficient fertile land
for the growing needs of the native population, and that the re
serves will be enlarged in proportion to the progressive increase
in the population' ~."
During the same Session, one of the members of the Commission,
M. Beau, said that-

"it was very praiseworthy that not only the reserves already prom
ised by the Germans had been given to the Natives, but new. and
much more important ones. It appeared also that the system in

1 P.M.C., Min., III,pp. ro3-104.
' I/nd., pp. ro4-ro5.
J Ibid., IV,p. 61.
4 Ibid.,p. I54. SOUTH WEST AFRICA

force in all the reserves was comparatively liberal, the Natives

having the right to leave them and the Wh1tes not being allowed to
enter them nor to acquire land there ."
76. Mr. Courtney Clarke, representing South Africa, made the follow
ing remarks during the 18th Session of the Permanent Mandates Com
mission in 1930:

"... It must be remembered that, in the old days, the natives used
to wander all over the territory. That was now an impossible situa
tion. Undcr the German rcgime, therc had been a series of wars
which had left the native population a broken and scattered people.
The centre of the territory was occupied by European farmers and,
accordingly, the Administration had been obliged to make provision
elsewhere for land for the natives. The basis of any native policy

must necessarily be native reserves, where the native population
could have its home and develop its own life. That being so, the
first thing to do was to makc the reserves habitable, since this was
the only means of tuming a nomadic people into a settled population.
The Commission would see from the native section of the report that
the Administration was principally pre-occupied with the water
supplies of the reserves. As more water and more money became
available, it would be possible to obtain settled native communities,
and, when that was done, the Administration could take up ques

tions Hke that of education ....
As regards the reserves, the Administration had a native reserve
superintendent in each reserve, and it hoped, by means of these
officers, the example of the farmers, the teaching of the missionaries,
and by means of education, to bring the native population into a
state of settled communities; but, as the Commission itself had
observed, the populàtion was a very backward one, and it would
take many years before it reached the stage of development attained
by native communities in other parts of South Africa 2.''

This explanation was apparently accepted by the Commission, since
no further discussion on this point is recorded.
77. At the 20th Session of the Commission in 1931, Count de
Penha Garcia, a member of the Commission, paid a tribute to the work
done by the Administration in the reserves-

"... to combat the shortage of water and to select varieties of
stock, by means of which the possibilities of production, both as
regards number and value, had been greatly increased 3".
78. During the 23rd Session of the Permanent Mandates Commission
in 1933, Lord Lugard-

"... conwatulated the Mandatory Power on the steps it had taken
with a v1ewto holding general meetings of the residents in Native
reserves and hoped this movement would be extended ... Appar
ently, these meetings were limited to reserves in respect of which a
fund had been established. He hoped a fund would be created in ail
reserves •."

1 P.M.C., Min., IV, p. 62.
2 Ibid,, XVIII, pp. 145-1.(6.
1 Ibid., XX, p. 56.
• Ibid., XXIII, p. 91. COUNTER-MEM.ORIAL OF SOUTH AFRICA
257

79. At the 29th Session of the Permanent Mandates Commission in
1936, Lord Lugard-

"... noted that the Administrator and the Chief Commissioner for
NativeAffairs had visited the native reserves with excellent results .
. . . Itas very satisfactory that the Bonde.ls tribe haJ. been set on
its feet again.
lt was also a matter for congratulation that the system of govern
ing ,the various tribes through tribal councils continued to prove
satisfactory and was being extended ... 1"

80. Referring to Native administration in general during the 34th
Session of the Commission in 1938, Lord Hailey said that most members
of the Commission would agree that the Union Government had given
proof of its concern for Native interests in South West Africa •
Lord Hailey, referring to paragraph 288 of the report for 1937, also
said-
"... that the practice of Natives squatting on European land, was
clearly a potential source of great injury to the natives, many of
whom had, as the report showed, no lands to whlch to retum when
3
turned out in times of depression" •
Ile thought that thîs seerned to be "... an add.itional ground for pressing
on with the development of the reserves" 3•
During the same Session Mr. te Water, the South African represen
tative, explained why it was of the utmost importance that the Natives
should have separate reserves, and said that nothing was healthier and
more hopeful than the retum of the Native peoples to their original

tribal lives, subject, of course, to proper and sympathetic control. He
said that the policy of the Administration was to encourage the Natives
to live in their reserves, to restore and repair their tribal system and to
maintain their customs, so long as these did not conflict with the recog
nized morals of modern civilization. M. Palacios replied by saying that
he was sure that the Administration was handling the situation with
great tact, and personally agreed with Mr.. te Water regarding "the
desirability of a return by the Hereros to their old national feelings"·\

81. It therefore appears from the aforegoing that the Permanent
Mandates Commission was fully aware of, and approved, Respondent's
reserve policy.

C. Reserves in Other Parts of the World

J. lNTR0DUCT0RY

82. The task of promoting the material and moral well-being and
social progress of nations and groups who are in a relatively backward
stage of development, is undoubtedly a difficult one, and has given rise
to many and divergent problems ail over the world. This is especially

l P.M.C., Min., XXIX, p. 133.
i Ibid.., XXXIV, p.78.
' Ibid., p. 8-2.
4 Ibid., p.92. SC'UTH WEST AFRICA

true of countries populated by groups with different social, econom1c
and cultural backgrounds.
83. To meet such problems, there developed in many countries of
the world a system of reserving land for occupation by different com

munities or population groups, the underlying consideration generally
being the protection of such people against encroachment by others.
In some cases protectfon took the form of prohibiting or linùting the
acquisition of land by all persans other than the indigenous peoples of
the country concerned; in other cases, again, reservations were made of
defined areas within a country for particular population groups.

In the succeeding paragraphs examples are given of arrangements
made in the past in a few countries, in some of which conditions were
broadly similar ta those prevailing in South West Africa.

Il. BASUTOLAND

84- In 1956 Basutoland had a total African population of 638,857 as
compared with only 1,926 Europeans, 247 Asiatîcs and 644 persans of
mixed blood 1•

85. Section IO of Proclamation No. 46 of 1907 provides:
"No persan, other than a native, shall be permitted ta reside
within the Territory except upon the Reserves set aside for use by

the Govemment, upon sites speciaUy set aside for trading pwposes
and upon sites set aside for missionary purposes, without the author
ity of the Resident Commissioner 2."
In terrns of the Regulations of 14 March 1941, applicable to Govem·
ment reserves 3, no person who has been granted land in a Government

Reserve ''shall lend, lease or dispose of such land to any other persan"
unless he has first obtained permission from the District or assistant
District Oflicer.
86. The policy of the authorities is not to allow any non-Native to

settle in the country 4, and Basutoland is thus truly a Native "reserve".
As in South West Africa, land is apportioned among Natives on the
communal principle, and consequently there are no individual owners,
although rights to gardens in rural areas are inheritable, as are rights
to residential and garden sites in villages 5•

III, BECHUANALAND

87. Bechuanaland Protectorate has an area of about 275,000 sq.
miles and a total population of approximately 300,000, including, ac-

1
2 Annual Report on Basutoland for the year i957 (1959), pp. 26. 28.
Proc. No. 46 of 1907 (Basutoland}, asamended, sec. 10, in Revised Edition of
lhe Laws of Basutoland in f01'ceon the ist Day of january, I949 (1950), Vol. I,
Title III, Chap. 35, p. 447-
, Ibid.,Vol. III,Title III,Chap. 31. Part VI, sec. 3, p. 234.
4 Vide Year Book and Guide to SoulMrn Africa I96I, ed. by A. Gordon-Brown,
p.204.
5 Duncan, P., Solho Laws and Customs: A Handbook based on Decided Cases in
Basutoland together with The Laws of Lerotholi (1900), pp. 98-99. COUNTER-MEMORIAL OF SOUTH AFRICA

cording to the r956 census, 3,r73 Europcans, 676 Coloureds and 248
Asiatics.
Land is classified into ftve distinct catcgories, viz., (i) Crown lands,

with an approximate area of r65,r75 sq. miles; (ii) tribal territories,
comprising about ro8,ooo sq. miles: (iii) farming areas; (iv) the Tati
district, owned by the Tati company, and (v) game reserves ~-·Inside
the tribal territories or reserves 2 the old Tswana system of communal
land tenure prevails, and no attempt has been made by the Administra
tion to alter it. The reserves are legally inalicnable. No European may

own land, or carry on business of any description in them, without first
havingobtained the consent of the Chief and the tribe. Further, no con
cession made by any Chief for mining or other purposes is valid until
sanctioned and approved by the Crown 3•

88. Althoufh control over land and its resources is vested in the
Chief, none o the land-except those portions rescrved for him and his
family-is his property; nor can he dispose of the use of it except gra
tuitously, and then only to members of his own tribe 4•

IV. SWAZILAND

89. Swaziland offers a classical illustration of what tends to happen
when control is not exercised over the alienation of land by indigenous

chiefs and land acquisition in private ownership is freely permitted.
90. Durin~ the last century Chief Mbandini had given to Europeans
concessions m the nature of land, forestry and minerai rights, which
nearly exhausted the resources of the country. As a result of unrestricted

concession-hunting, the southern and western portions of Swaziland
amounting to about two-thirds of the whole territory-were parcelled
out by way of concessions to Europeans 5•

9I. This process was partly reversed during the period 1900-1910,
following upon the Territory bccoming a British Protectorate. In 1907 a
Proclamation 6 provided for the laying out of rescrves for occupation by
the Swazis, with due regard to their existing and future needs. The
lands available for this purpose included Crown lands and land resumed
from concessionaires.

92. Since 1907 fairly substantial areas have been purchased by the
Swazi Nation, and some small farms by individual Afrkans. !n addition,
land bas been purchased under the Native Land Settlement Scheme
inaugurated in 1946 by the Administration for the purpose of estab
7
lishing Swazi familles on settlements under permanent lease -to which

1 Vidd Btchuanaland Protectcwate: Report for the Year 1957 (1958), pp. 34-35,
and Bechuanaland Protectcwate: Report for the Year 1959 (1960),pp. 34-35.
z As defined in various chapters of the laws ofBechuanaland Protectorate.
' Schapera, I., A Handbook of Tswana Law and Custom (1938),pp. 195-196.
• Ibid., p.196.
5 Sheet 6 of Jeppe's Map of the Transvaal or South African Republic and Sur
rounding Territories.
6 Proc. No. 28 of 1907 (Swaziland), in Official Gazette of the High Commissitmer
/cw South A/rica, Vol. XXI, No. 312 (25 Oct. 1907), pp. 7-10.
7 Hailey, An Afri&an Suf'Vty (1957}, p. 779.26o SOUTH WEST AFRICA

has been added certain Crown Land. By the end of r957 more than hall
of Swaziland was available for Native occupation 1•
Native Areas set aside for the sole use and occupation of the Swazi
people by Proclamation No. 39 of 1910 2, are vested in the High Com

missioner in trust for the Swazi Nation, while land purchased from
European owners by the Swazi Nation is vested in the Paramount Chief
in trust for the Nation. Land set aside for the Native Land Settlement
Scheme is vested in the Swaziland Govemment, and its use is controlled
3
by the provisions of Proclamation No. 2 of 1946 , in tenns of which
six acres per family unit may be allocated to Swazis on permanent
lease 4•

V. SOUTHERN RHODESIA

93. Section 2 of the Southern Rhodesia Ortler in Council, r920, pro
vided:
"The lands known as native reserves assigned by the Company for
the occupation of natives ... are hereby vested in the High Com
missioner and set apart for the sole and exclusive use and occupation
5
of the Native inhabitants of Southern Rhodesia ... " (îtalics
added.)
It was further provided that no person other than a Native would be

entitled to---
", •. occupy any portion of a Native Reserve except by special per
mission given in accordance with such regulations as may be issued
6
by the Administrator, with the approval ofthe High Commissioner ".
In terms of the 1923 constitution the said Ortler in Council was to
continue in full force and effect as if it formed part of the constitution 1•

94. Under the Land Apportionment Act of 1941 8 all land in the
Colony, Save that comprised in the reserves and the areas set aside for
the sole use and occupation of Natives, was classified as (i) the European

Area; (ii) the Native Area; (ili) the Undetermined Area; (iv) the Forest
Area, and (v) the Unassigned Area 9• It was further provided that
"... no persan other than an indigenous Native may acquire, lease or
occupy land in the Native Area" 10•
In tenns of section 18 (1) of the Act a European landowner in the

1
Vide Swaziland: Report for the Year 1958 (1959), pp. 68-69.
1 In Revised Edition of the Laws of Swaziland in Force on the rst Day of April,
I949 (1951), Vol. I,Chap. 62,pp. 575-576.
' Ibid., Chap. 63,pp. 578-585.
• Vide Swaziland: Report for the Year 1958 (1959), p. 16; vida also Hailey, An
_ÂfricanSl4roey (1957), p. 779.
s SoulMrn Rlr.odesiaOrder in Co14ncil,r9zo, sec. 2,in Tlr.eStalu/4 Law of Soutlsem
Rhodesia, from rst Janua,y to JISI December, r9ao (1921),p. 2561.
G Ibid.,sec. 4,p. 2562.
1
Vide The Southern Rhodesia Co,istitvtion Letters Patent, r9z3, sec. 42, in Tlw
Stalula Lau, of Southern Rhodesia, From rst Janua,y to Jist December, I9z3 (1924),
p. 25.
1 Act No. n of 19.p, in The Statute Law of Southern Rhodesia I94I (1942), pp.
50-90.
t Ibid., sec. 5(1),p. 53.
10 Ibid., sec. 6, p. 53. COUNTER•MEMORIAL OF SOUTH AFRICA 261

Undetermined Area could dispose of such land to any person, provided.
that no person could dispose of land in the said Area to a Native unless
such Native, and the terms and conditions of such disposai, were spe
cially approved of 1•
95. Owing to the intricate problems created by land apportionment
in a plural society, there were 165 changes in the Land Apportionment

Amendment Act of 1941-many of them major ones--in a period of
17 years. ln its basic form the Act laid down separate areas for Euro
peans and Africans in which to live and conduct business and agriculture.
In 1961, however, came a change of policy when the Land Apportion-·
ment Amendment Act of that year 2 permitted Natives to purcliase and
live on land formerly reserved for Europeans, and to conduct business
in competition with Europeans in former non-African areas.

VI. NORTHERN RHODESIA

96. Until :rg62 a.Illand in Northern Rhodesia proper could be divided
into three categories, viz., Crown Land, Native Reserves and Native
Trust Land, the last two categories comprising all except approximately
6 per cent. of the total area.
97. In regard to Native reserves, the following provisions applied:

(i) AU reserves were vested in the Secretary of State and set apart in
perpetuity for the sole and exclusive use and occupation of the
Natives of Northein Rhodesia.
{ii)No portion of any reserve could be granted to any non-Native save
under lease for a period not exceeding five years.
(iü) No person other than a Native could occupy any portion of a reserve
save by special permission given in accordance with regulations
prescribed by the Govemor "·
98. Ail Native Trust Land was vested in the Secretary of State and

was, subject to his directions, administered by the Governor for the use
and common benefit of the Natives. No titles claimed by non-Natives
to the use and occupation of any such land were valid unless they had
been confirmed by the Govemor, who could also, when it appeared to
him to be in the general interests of the community as a whole, grant
rights of occupancy to non-Natives•.
99. ln :rg62 the Native Reserves and Native Trust Land Orders in
Council were amended by allowing the Govemor to make grants or
dispositions of land in Reserves and Native Trust Land to individual
Natives. Thereby the Secretary of State agreed to relax lùs ri~hts as
Trustee in favour of those individual Natives to whom grants rmght be
made by the Governor s.

LAct No. u of 19,p, in ThtJStatultJ of Law of Soulhern Rhodesia x94.r (1942),
sec. 18 (1), p. 55.
1 ActNo. 37 of 1961 (Southern Rhodesia), in TM Sta/utd Law of Southwn Rhodtlsia
I96x (1962), pp235-285.
' Nonlwm Rhoderia (C,.oum Lands an4 Native Rese71U!sOJ ,dns in Cwncii, .r928
IOx960, sec. 6, in Laws of Norllltlm RhodtJsia, 1962 Edition, Vol, VIII, App. 5, p. 7.
4Norlllem Rhodtlria (Na#vtJ Trust Land) Orders in Council, x947 to x96secs.
5-6, in LawsofNo,thnn Rholt.sia, 1962 Edition, Vol. VIII, App.pp. 34-37.
5 Nrwlhern Rhotùsia (Croum uinds and NativtJ Restlf'IJes)Orders in Covncil, x9a8
"1x96a, sec.6 and Norlllem Rlwdesia (Nalivd T,ust Land) o,ders in Covncil, r947 SOUTH WEST AFRlCA

100. Within the Protectorate of Northern Rhodesia the Barotseland
Protectorate enjoys a special place. Treaties between Paramount Chief
Lewanika and the British South Africa -ComF,Y still govern rel;ltions

between the Government of Northem Rhodes1a, the British Government
and the Barotse Native Government. These treaties restrict immigration
into Barotseland, and enshrine the rights of the Barotse Native Govem
ment and Paramount Chief to control all tribal matters within the Pro

tectorate 1•No persan may alienate any portion of the territory without
the consent of the Chief of the Barotse and the Secretary of State 2•

VU. KENYA

101. European settlement in the Highlands of Kenya, encouraged by
the British Government, led to a policy of reservation of separate areas

for Natives and Europeans. In the Kenya Crown Lands Ordinance of
1915 3 provision was made for the setting aside of areas for Native
reserves, temporary Native reserves ~. Native Ieasehold areas 5 and
6
Native settlement areas • On the other side of the picture, and in con
formity with guarantees given by the British Government that the
Highlands would be exclusively reserved for White settlement, it was
provided:

(i) that no persan could, except with the written consent of the Governor,
sell, lease, sub-lease, assign or part with the rossession of any land
situate in the Highlands to any other persan ;

(ii) that no European lessee could, without the consent of the Governor
in Council, appoint or allow a non-European to be manager of, or
otherwise to occupy or be in contrai of, the land leased 8•

102. In 1952, however, the British Government appointed the East
African Royal Commission which, in its report published in 1955 9,
among other sweeping changes recommended systematic grants of
10
registered titles to Africans in rural areas •Subsequently the policy of
the Government was stated-

"... to aim at the progressive abolition of racial and tribal land bar
riers, and, in order to assist this process, to ensure that the basis of
tenure and management of agricultural land is similar throughout
Kenya, regardless of race and tribe as far as local economic and
11
ecological factors permit ".

to r962, sec. 5, in Laws of Northern Rhodesia, 1963 Edition, Vol. VIII, App. 5, pp.
7-8, 34-37.
1 Vide Year Book and Guide to Southern Africa r96r, p. 294.
2
Vide Norlhern Rhodesia Orders in Council, r924 to r960, sec. 41 (1), in Laws of
Northern Rhodesia, 1961 Edition, Vol. VIII, App. 2,p. 15.
3 Ord. No. 12of l9I5 {Kenya), as amended, in The Laws of Kenya in fora on the
2ISI Day of September, r948, Revised Edition, Vol. II, Chap. 155, pp. 2015-2108.
4 Ibid., sec. 55, pp. 2030-2031.
5 Ibid., sec. 63, p.2032.
6 Ibid., sec. 57,p. 203 I.
7
Ibid., sec. SS, p. 2040.
8 Ibid., sec.36, p.2026.
9 Cmd. 9475.
10 Ibid.,para. 72,p. 222.
11 Colonial Office Report on the Colony and Protec:to,ate of Kenya fM the year I959
{196o), p. 34. COUNTER-MEMORIAL OF SOUTH AFRICA

VIII. LIBERIA

lOJ. The following extract from Hailey refers to Liberia:

"The land on which the American Colonization Society planted
its first settlement in Liberia was obtained by treaty from local
Chiefs. The President of the Liberian Republic in his inaugural
address in 1904 stated that these agreements included either ex
press or implied reservations to Native use of land which was in
actual occupation. Later in the same year, however, a number of
Chiefs presented an address to him complaining that they had been
'deprived of all their lands and now practically possessed none'.
While this statement may have involved some exaggeration, there

is evidence that in the coastal lands aboriginal tribes were frequently
dispossessed of land in the interests of American Liberians. There
has on various occasions been much trouble caused owing to corn
plaints by the Kru tribe and in the Maryland County that Native
lands have been alienated for the benefi.t of tlûs class. It will be
recalled that persans who are not citizens of Liberia are excluded
by the Constitution from the possession of land.
It was apparently the intention at one time to demarcate tribal
Reserves for the protection of the lands of aboriginal tribes, but no
effective steps appear to have been taken with this purpose. There
is a procedure by which so-called 'tribal Reserves' are created by

the grant of deeds to Native villages; land is then allocated to them
at the rate of 25 acres per family. This appears to lie within the
competence of the Land Commissioners, of whom there is one in
each of the five Counties. They may lease or sell land to Liberian
citizens, and make free 'Bounty grants' to soldiers of the Liberian
militia. It has, however, been alleged that the Commissioners have
no regular system of records of these grants of 'Reserves'.
The Firestone Concession of I925, extending in the first instance
to an area of I million acres, involved the dispossession of a large
number of indigenous occupiers, though in theory 'tribal Reserves'
were excluded from the Concession area. The Firestone Company

announced, however, that it was prepared to allow the Chiefs, as an
act of grace, to select land for the occupation of their people.
It would appear that a number of Concessions of land have been
given since I950, and there has been some indication of the intention
of the Liberian Government to enact a new land law, on the ground
that the existing legislation is now out of date ."

IX. CANADA

rn4. In order to control the process of penetration by White settlers
into the interior of Canada, the Dominion Government, after its acquisi

tion of the future prairie provinces {Manitoba, Assiniboia, Saskatchewan,
Alberta and Athabasca) in 1870, and the addition of British Columbia
to the confederation in 1871, established a special Department of Indian
Aff airs.It also resorted to a policy of placing the Indians in territorial
reservations, already introduced in the older provinces at an earlier date 2•

l Hailey, An A/ritan Survey (1957),pp. 758-759.
2 Yitù E1IC)lclopaediaBritanni,;(9th Ed.), Vol. IV. pp. 767-768. SOUTH WEST AFRICA

105. In the Indian Act of 1886 Indian "reserves" received statutory
recognition. They were defined as tracts of land set apart by treaty or
otherwise for the use or benefit of a particular band of lndians, :\Ild it
was specifically provided that only Indians of the particular band might
settle, reside and hunt upon the reserve of such a band 1•
106. Writing on Canada's Indian problem in 1961, W:alter Gray

stated, inter alia:
"Three years ago the Govemment decided to take a searching
look at the prob]ems facing Canada's 175,000 Indians, and estab
lished a Parliamentary committee to tackle the job....
Canada's Indian reservations are as old as the country's history.
As the White man graduallytook over the vast expanse of what was
once Indian territory, the natives were given huge tracts of land for
their own use. Responsibility for their welfare was assumed by the
Federal Govemment. Over the years many Indians have drifted
away from the reservations, but the majority have chosen to remain
together in their closely.knit society, eaming small incomes on the
reservations, more or Jessas wards of the Govemment ....

The Indians are demanding a greater voice in the running of
their affairs through a transfer of responsibility to their band coun·
cils and a lessening of Govemment control. They want their reserves
built up into healthy communities through careful development ....
At least another full year of study isto be carried out before the
joint committee sets out its recommendations to Parliament. It is
generally assumed that the reservation system willnot be abandoned,
for the Indians themselves cherish what land is theirs. They have
the right to leave the reserves of their own accord, but when they
do they lose their special rights, such as a share ofthe band funds and
special Govemment allowances. Only Government legislation would
protect those rights 2."

X. THE UNlTED STATES OF AMERICA

107. A policy of reservations for Indians in the United States bas
been applied for a very long time, although there was in the early days
much vacillation due to pressure by White pioneers moving ever further
westwards.
108. By 1880 virtually ail the Indians in the United States not
absorbed into the general body of the population had been removed
either to Indian Territory-lands west of the Mississippi-controlled by
the Government, or to federal reservations within the borders of the
various states 3• Shortly afterwards the ideal of a specifically lndian Ter·
ritory was crippled with the disintegration of the then existing area of
70,000 sq. miles bearing that name, in order to establish the state of
Oklahoma 4• Nevertheless, Indian reservations have been retained, and

1 Vide The Revised Statutes of Canada, :c927,Vol. II, Chap. 98, s2c(i) and :zr,
pp.12 and 7.
3GGannett, H., "M;odem History and Present DistributionMailof North American
Indians", in Encyclopaedia Britannica (9th Ed.), Vol. XH, p. 830.
4 Beard, C.A. and M. R., Tlu Rise of Atnerican Civilization {1944) [one volume
editionJ, Vol. II, pp. 143-144. COUN'fER-MEMORIAL OF SOUTH AFRICA

whèn a new period in Indian Affairs started about 1928 with the ap
pearance of Lewis Meriam's report 1, there were some 200 tribes num

bering over 350,000 souls on about 200 separate reservations in 26 states,
mainly in the northern, central and western states, with the biggest
number in Oklahoma, Arizona and South Dakota.
109. The Meriam Report gave rise to the Indian Reorganization Act
of 18 June 1934, which has been analysed as follows:

"... as to those tribes which adopted the act by format vote of their
members, it prohibited the individual allotting of tribal lands and it
authorized the Secretary of the Interior to retum to tribal ownership
lands 'which had been withdrawn for homestead entry but had not
been pre-empted. The Act also authorized an annual appropriation

of $2 inillion to purchase land and add itto the diminished resources
of the tribes, and established a revolving credit fund of ho million
(later increased to S12 million) to enable Indians to improve their
land holdings and supply tbemselves with necessary equipment.
But the real heart and core of the Indian Reorganization Act was
the recognition of the inherent right of Indian tribes to operate
through govemments of their own creation, whether customary or

fonnalized bY.written documents, and thro~h business corporations
which the tr1bes could create and manage 2• •
no. Since the enactment of the Indian Reorganization Act there
have again been vacillations of policy, and also an unexplained cessation
of a development programme which appeared to be achieving consider
3
able success • Nevertheless the Indians themselves are still strongly
opposed to any ideas of ending the reservation system. The Choctaw
Nation, the Apache Council, the Oglala Sioux Tribe, the Chippewas, the
Umatilla and the WallaWalla are only a few of the W'oupsthat have sent
their protests to Washington over the so-called 'tennination" policy.
In the words of William Stafford:

"... the Indians have declared that tennination without Indian
consent is a violation of the treaties which promised Govemment
obligations in return for the vast tracts of valuable land the Indians
ceded to the Govemment.
The tribal councils will no doubt seek to hait the Govemment's
action through legal measures. For abandonment of the teservations

may well mean the end of the Indian community and its dispersal
into the rest of America-one more ingredient for the melting-pot •."

XL CONCLUSION

III. The above exposition shows that policies of land reservation

are being, or have in the past been, applied in various countries of the

1 Meriam, L., TIN Problem of Iftàian Administration (1928) (underta.ken at the
request of Secretary Herbert Work of the U.S. Department of the Interior], referred
to in Decla,.°'ion o/ lndian Pu,.pose, AppI,p. :1;(Report of the American Indian
Chicago Conference, held at the University of Chicago from 13-20 June 1961).
2 Declaf'ation olndian Puf'pose,App. i.pp. 21-22.
3 Ibid., pp.26-27.
+ Stafford, W., "The Walla Walla tight for their lands", in The Natal Daily News,
10 Nov. 1954, p. 9. Vide also"Why no integration for the American Indiàn", in
U.S. News é- Wcwld Rtpot'I,Vo\. LV. No. 10 ('JSep. 1g63), pp. 62-66.266 SOUTH WEST AFRICA

world. It also demonstrates the importance not only of protecting less
developed groups, but also of providing fair opportunities for all.
II2. It is true that some countries which have in the past applied poli
cies of the kind aforestated, have already adopted, or are now adopting,

new policies of which the general effect is to abolish differentiation in
rights of land occupation and ownership. As already indicated, Respon
dent sees the matter, as far as South West Africa is concerned, as one
of achieving and maintaining a balance between the legitimate aspira
tions of various groups, each of which has a contribution to make to
wards, and a daim to share in, the general welJ-being and development

of the Territory, and Respondent believes that in the circumstances of
South West Africa this can best be accomplished by setting aside, as far
as practicable, an area for the exclusive use and occupation of each group.
While Respondent also recognizes the need of making adjustments
from time to time in the light of altered circumstances, it considers that
it should not in the process abandon the fundarnentals of a policy which

has stood the test of time in its operation for the benefit of alJ the in
habitants of the Territory, and which can, with necessary and suitable
adaptation, bring about the establishment of a system of creating home
lands for the varions population groups of the Territory.

D. Reply to the Applicants' Allegations

I. GENERAL

n3. As already indicated 1, the provisions to which the Applicants
refer in paragraphs I38 to I45 of Chapter V of the Memorials 2 can con
veniently be classified as those relating to rights of residence in (i) the
Native reserves, (ü) the Police Zone generally, and (iiiurban areas in the

Police Zone.
u4. Although it is admitted that the rights of residence of Natives
are to a certain extent restricted by the provisions fo question, Respon
dent wishes to point out that the Applicants fail to make any reference

to limitations imposed on the residence of the White group in Native
reserves and Native urban residential areas. Since, however, the provi
sions imposing these limitations are in the first instance directed to the
entry of members of the White group into such reserves and residential
areas, they will be dealt with in Respondent's reply to the Applicants'
allegations concerning freedom of movement 3•

II. RIGHTS OF RESIDENCE IN THE NATIVE RESERVES

(a) The Powers to Set Aside Native Reserves

115. In paragraph 138 of Chapter V of the Memorials 4 reference is
made to section 16 of the Native Administration Proclamation of 1922 5,

• Vide para. r,supra.
2I, pp. 146-z48.
3 Vide Chap. IV, paras. 40-44 and 50, in/1'a,
• I,p. 146.
5 Proc. No. rI of 1922 (S.W.A.), sec. 16. in The Laws of South West AfrscaI9I5-
I922, p. 753, COUNT:E:R-MEMORIAL OF SOUTH AFRICA 267

in terms of which the Administrator is empowered to set aside areas as
Native reserves for the sole use and occupation of Natives generally,
or of any race or tribe of Natives in particular, and to prescribe regula
tions governing the inhabitants of such reserves.
n6. lt may be that this provision is referred to only by way of in

troduction; it seems hardly likely that the Applicants should wish to
object to the conferment of such power or to the fact that reserves
have been set aside for the sole use and occupation of Natives.
On the other hand, the provision refers to "such restrictions and to
such regulations as ... [the Administrator] . . . may prescribe", and
it may thus be that paragraph 138 was intended to be read together
1
with paragraph 154 (3) of Chapter V of the Memorials in which it is
alleged that Natives are confined within sharply defined areas and places
under prescribed conditions, and that "the pattern of restrictions" upon
the residence of Natives is "uniformly arbitrary and discriminatory".
u7. Respondent bas dealt above z with the grounds upon which it

was considered desirable, in the interest of the different groups, in the
Territory, to apply a policy of setting aside, as far as practicable, areas
as reserves for the various groups, the basic idea being to provide per
manent homes for such groups. By so rescrving the rights of a group in a
particular area, the corresponding rights of other groups in that area
must of necessity be limited or excluded.

u8. Respondent has also shown that at the inception of the Man
date it was within the contemplation of all parties concerned that such
a policy was likely to be applied to South West Africa 3 ;that the basic
principles thereof had been evolved in the light of experience of a similar
problem in South Africa over a period of more than a century •; that it
was known to and approved of by the Permanent Mandates Commission 5;
and that similar policies have been applied in many parts of the world in

countries where different groups in different stages of development live
together 6• The allegations that the said policy is "arbitrary" and "dis
crinùnatory" 7are consequently devoid of substance.
n9. ln so far as this policy differentiates between grou{>s,confines
groups to defined areas for residential purposes, and thus imposes re

strictions as to their potential places of residence, it does so reciprocally
and not to the detriment of the Natives, as alleged by the Applicants.
Although the area occupied by the White population group is larger
than that of any of the Native reserves, it in fact provides residential
facilities for large portions of the Native population engaged in remuner
ative employment therein-whereas the exclusion of residence by White

persans in the Native reserves is absolute (save for a few officiais and
others who assist the Natives concerned) 8•
120. While it is true that in terms of section 16 of the Proclamation

1 I, p. 151.
1 Vide para. 35 el seq.• supra.
J Vide para. 23, supra,
Vide para.12 et seq., supra.
Vide para. 71 et seq., supra.
6 Vide para. 84 et seq. supra.
1 I, para. 154 (3), p. 151.
B Vide Chap. IV, paras. 40-44, infra.268 SOUTH WEST AFRICA

the inhabitants of the reserves a1e subject to such restrictions and regu
lations as the Adnùnistrator may impose, the White population is in
its area obviously also subfect to statutory provisions and restrictions.
For reasons already explamed, the system commenced with the Ad
ministrator being the legislator as regards regulations and restrictions
applicable to the reserves, but it envisages a progressive measure of self•
govemment for the Natives in their contemplated homelands.

(b) The Power to Presfflle and Develop Native Areas

121. In paragraph 139, and also in paragraphs u6, u7 and 124 of
Chapter V of the Memorials 2, reference is made to some of the powers
conferred upon the Administrator (now the State President) 3in terms
of section lof Proclamation No. 15 of 1928 (S.W.A.).The relevant para
graphs of tlris section read as follows:
(c) he ma.y defme the boundaries of the area of any tribe or of a
location and ma.y from time to time alter the same and ma.y
divide existing tribes into two or more parts or amalgamate

tribes or parts of tribes into one tribe or constitute a new tribe
as necess1tyor the good government of the Natives may in his
opinion require;
(d) he may, whenever he deems it expedient in the general public
interest, order the removal of any tribe or portion thereof or
any Native from any place to any other place within the man
dated Territory upon such terms and conditions and arrange
ments as he may determine;
(g) he may generally exercise a.Ilpolitical power and authority
which according to the laws, customs and usages of Natives,
are held and enjoyed by any supreme or paramount native
chief4."

122. These powers were conferred upon the Administrator in order
to enable Respondent to carry out its policy of setting aside land for
the settlement and rehabilitation of Native groups and of developing
and conserving the land, the grazing and the water for their exclusive
use.
123. As previously stated 5, one of the main considerations of Re
spondent's reserve policy was to reunite scattered remnants of the
varions Native tribes and to settle them in their natural envirorunent,
under the supervision of experienced officiais who would, with due re
gard to their tribal organization and customs, guide them in reorganizing

their disrupted sodal and economiclife. In the 1:925 annual report it was
stated:
"Simultaneously with the demarcating of the reserves it was
necessary to get the natives moved into them, and this has proved

1 Now the State President (Act No. 56 of 1954).
2 I, pp. 139-141, 146-147.
3 The powers conferred on the Administrator by the Proclamation were from I
April 1955 vested in the Governor-General (now the State President};Act No. 56
of 1954,sec. 3 (1), iStatutes of IM Union of South Africa I954,pp. 559-591.
• Pf'ocNo. 15 of 1928 (S.W.A.),sec.1, in Th11Laws of South West Afrier, I9:18,
p.6o.
5 Yik paras. 41-,43,sup,,a. COUNTER-MEMORIAL OF SOUTH AFRICA 269

a very difficult undertaking. Native familles which had been broken
up under the German regime were endeavouring to unite from
opposite ends of the country in order to proceed to the same reserve.
Cattle had to be collected, native ownership questions settled,
transport of old and infirm dependants arranged so that the move
ment has been slow and is still in progress. Until the various com
munities were definitely settled in the reserves it was of course very

difficult to secure any real development work. Competent and ex
perienced Superintendents were, however, appointed in most of the
Reserves ... 1"
I24. Respondent's major task, after having brought the Natives on
to the land, was to teach them how to develop and preserve their areas

in order to increase their carrying capacity. To these Natives scientific
methods of soil conservation and protection and preservation of grazing
and water, etc., -were unknown. As was to be expected, therefore, pro
gress was slow and much damage was done over the years to the soil,
grazing and water conserves.
125. Section 1 (c) of the Proclamation, which confers the powers to

define the boundaries of areas set apart for the use and occupation of1
Natives generally or of any race or tribe of Natives in particular , is
concerned only with the establishment of geographical boundaries of
areas set apart for the use and occupation of Natives. The powers con
ferred by the words "and may <livide existing tribes into two or more
parts or amalgamate tribes or parts of tribes into one tribe or constitute
a new tribe" were intended to be used for the purpose of assigning
particular geographic entities to particular tribes or portions of tribes,
and for this purpose rendered it possible for the Administrator, should

circumstances so require, to ignore tribal affinities, to divide a tribe
geographically, and to establish more than one area for the occupation
of that tribe, or to establish one area for the use and occupation of more
than one tribe. These powers were not intended for any other purpose,
nor is Respondent aware of any use or attempted use of the powers for
any other purpose.

126. Section I (c) of the Proclamation must be read in conjunction
with the provisions of section 4 (3) of Act No. 49 of 1919, which fro
hibits the alienation of land in the Territory set apart as a reserve for
Natives or Coloured persans save under the authority of Parliament,
and with section 5 (1) of Act No. 56 of 1954, which provides:

"Notwithstanding anything to the contrary in any law contained
the Governor-General ~ may, by proclamation in the Gazette and in
the OfficialGazdte of the territory, with the approval by resolution
of both Houses of Parliament, rescind any reservation or setting
apart of any land or area referred to in sub-section (1) of section
four, or of any portion of such land or area, subject to land of at
least an equivalent pastoral or agricultural value being reserved or

1 U.G. 26--1926, p. I<>g.
2 Vide the comprehensive definition of "location" in sec. 25 of the Proclamation
(Laws of South West Africa r928, p.78).
3 Act No. 49 of 1919, in The Laws of South West Africa r9r5-r9u, pp. 10-12.
+ Now the State President.270 SOUTH WEST AFRICA

set apart, in terms of any law in force in the territory, for the sole
use and occupation of natives 1."

127. The powers conferred on the Administrator are necessary for
the good government of the Territory. That this is the purpose of sec
tion I (c) of the Proclamation is clear from the words "as necessity or
the good governmtnt of the Natives may in his opinion require". It is
not always possible to accommodate all the members of one tribe in the
same reserve, even though this may be desirable. The rcserve may become
so overcrowded that it is necessary to provide other areas for a portion

of the tribe.
128. The Memorials seem to imply that an order issued under para
graph (c) per se restricts the rights of residence of the tribe or tribes
concerned. It is respectfully submitted that this is not the case. The

Proclamation does not require any Native to live in an area of which
the Administrator has determined the boundaries. The effect of such
determination is principally to exclude other groups from acquiring
rights of residence in such defined areas.

129. Paragraph (d) of section 1 of the Proclamation authorizes the
Administrator to order the removal of any tribe or portion thereof, or of
any Native from any place to any other place within the Territory if he
deems it expedient in the general public interest.
A number of situations may be envisaged in which the general public
interest requires the removal of a tribe or a portion thereof or of an indi
vidual Native. To mention only a few:

(i) Land may be so neglected over a period of time that it may become
necessary, in the interests of the inhabitants, to remove them to
another place 2. . •
(ii) The continued occupation by a tribal group of land in the catch

ment area or at the source of a river may be so detrimental to the
preservation of the water sources of a particular area as to necessitate
the removal of the group concerned.
(ili)Peace and good order in a particular area may be so seriously
threatened by the activities of one or more IIllschief-makers, or
by the existence of bad blood between tribes or factions, as to
render necessary the removal of individuals or groups.

130. That the existence of the powers conferred by paragraph (d)
of section ris essential, is well demonstrated by the only four occasions
as far as can be ascertained--on which it was foÎlnd necessary to invoke
these powers:

(i) The first occasion is referred to in the annual report for 1932 3•
An Ovambo Chief, Ipumbu, was deposed for endeavouring to stir
up trouble against the authorities of his tribal area and he was
banished to the Okavango. The removal order was made at the re

quest of and with the approval of the majority of the members of
the tribe, and only after careful investigation and consideration.

1 Act No. 56 of I954, sec. 5 (I),in Statutesofthe Union of South Africa r954.
p. 563.
2 Viik para. x24. supra.

' U.G. 16--x933, para. 320, pp. 52-57. COUNTER-MEMORIAL OF SOUTH AFRICA 271

After Ipumbu's removal his son, Silas, became one of the senior
headmen 1•
(ii) The 1936 annual report mentioned that the desirability of deposing
Chief Andara of the Okavango Native Territoi:y was under con

sideration, since he was "reported ... to be incapable of effi.ciently
controlling his tribe" 2• Subsequent to his being deposed, he and his
chief wife, who proved to be disturbing elcments in the tribal area,
were required to remove to Runtu in the same Territory.
(iii) The inctdents that led to the third removal order under the Pro
clamation were dealt with fully in the annual report for 1939 3•
Four Herero agitators belonging to an organization known as the

"Truppenspielers" had led a movement against Hosea Kutako,
the senior Headman of the Herero in the Aminuis reserve, and the
Reserve Board. To prevent bloodshed the four troublemakers were
removed to other places and peace was restored in the reserve.
(iv) In 1954 a tribesman in one of the tribal areas of Ovamboland caused
trouble in that area and headed a movement against some of the
tribal leaders. At the request of the tribal leaders, and after a full

enquiry, at which he was present, the tribesman was removed to
another tribal area in Ovamboland. After a few years he was per
mitted to return.
The above instances show that the powers under paragraph (d) o[
section 1 of the Proclamation have been exercised only in exceptional

circumstances. Moreover, the Administrator in each instance acted only
after consultation with the tribal authorities concemed.
131. In terms of section 1 (g) of the Proclamation the Administrator
is empowered to exercise ail political power and authority which, ac
cording to Native law and custom, are held by any supreme or para

mount chief.
132. The position of a Native chief has been described as follows:

"The Chief is the executive head of the tribe. Nothing of any im
portance can be clone without his knowledge and authority. But in
administering tribal affairs he must always consult with his councils,
both private and public; and it is one of his main duties to summon
and preside over meetings of these coundls as occasion arises. With
them he must decide upon questions of peace and war, and see to
the protection or relief of his people in case of war, pestilence, fa

mine, or some other great calamity. He must see that the local
divisions of the tribe are effectively governed by their sub-Chiefs
or headmen, and take any action that may be necessary to ensure
this.He controls the distribution and use of the tribal land, of which
he is often figuratively termed the owner ...
The Chief is further responsible for maintaining law and order
throughout the tribe 4."

133. lt was consequently necessary for any system of Native adminis
tration based on traditional forms of Native government to give due

1 lputnbu was eventually allowed to retum to Ovambola.nd.
z U.G. 31-1937, para. 341,p. 50.
! U.G. 30-1940, para. 744 et seq.p. 132.
+ Schapera, I.,The Bantu-Speakitig Tribes of South Africa: An Etbnographkal
Survey (1946), p. 178.272 SOUTH WEST AFRICA

recoç-nition to the position held by the chief. As each independent chief
was m fact supreme or paramount in the exercise of bis powers in relation
to bis own tribe, it was also necessary for the system of tribal govern
ment under the control of a modern Administrator or head of State to
recognize a supreme or paramount chief as being in charge of all chiefs
and headmen and to confer upon him the powers ex:ercisedunder Native

law and custom by a chief in relation to headmen and tribesmen su~
servient to him.
134. In South Africa this was done by means of section 1 1 of the
Native Administration Act of 1927 2,which provided as follows:
"The Governor-General shall be Supreme Chief of ail Natives in

the Union and shall in respect of aU Natives in any part of the
Union be vested with allsuch rights, immunities, powers and au
thorities as are or may be from time to time vested in him in respect
of Natives in the Province of Natal 3."
135. In Natal the Govemor was created Supreme Chief of the Natives
by section 13 of Law No. 26 of 1875, subsequently replaced by section 7
of Law No. 44 of 1887 4•The powers of the Supreme Chiefwere set out in
5
Chapter II of the Natal Codeof Native Law ,which provided, inter alia:
"32. The Supreme Chief for the tune being exercises in and over
ail Natives in the Colony of Natal, ail political power and authority,
subject to the provisions of section 7 of Law 44 of 1887.
33. The Supreme Chief appoints all Chiefs to preside over tribes
or sections of tribes; and also divides existing tribes into two or more

parts, or amalgamates tribes or parts of tribes into one tribe, as
necessity or the good government of the Natives, may in bis opinion
require.
34. The Supreme Chief in Council may remove any Chief found
guilty of any political offence, or for incompetency, or other just
cause, from his position as such Chief, and may also order his
removalwithhisfamilyandproperty, toanotherpartoftheColony ....

37. The Supreme Chief, acting in conjunction with the Natal
Native Trust, may, when deemed expedient in the general public
good, remove any tribe, or tribes, or portion thereof, or any Natives,
from any part of the Colony or Location, to any other part of the
Colony or Location, upon such terms and conditions and arrange
ments as he may determine 6."
r36. At the time of Union the special powers of the heads of the con

stituent Coloniesin regard to Natives were retained by section 147 of the
South Africa Act of 1909 and vested in the Goyernor-General • In the

1
2 As substituted by sec. 2 of Act No. 42 of 1956.
Act No. 38 of x927, in Stali,tes of the Union of Soi,th Africa r9a7, Vol. I, pp.
31!-Act No. 42 of 1956, sec.2, in Statutes of th11Union of Soi,lh A/T~a. Part I
(Nos. 1-47),p. 855.
4 In The Laws of Natal, Vol. III (1879-1889) [1890], p. 1759.
s Contained in the Schedule to Law No. 19 of 1891 (Natal).
t Vide The Natal Govtrnmenl Ga~ette, Vol. XLIII, No. 2506 (u Aug. 1891),
p. u8o.
7 g Edw. Vil. C. 9,sec.147, inSlati,tes of the Union of South Africa r9xo and I9II,
p. 76. COUNTER-MEMORlAL OF SOUTH AFRlCA
273

Transvaal and Orange Free State the powers of the Supreme Chief were.
however, not defined by law as in Natal 1,with the result that whenever
reliance was placed on such powers, the particular Native law or custom
relied on had to be proved in Court 1. ln order to meet this hiatus, and
also because of the need for consolidated and uniform prc:.·,risionisn the
varions provinces, the Native Administration Act of 1927 was enacted.

137. Provisions similar to paragraphs (a) and (d) of section lof Pro
clamation No. 15 of 1928 (S.W.A.) l were contained in the original
section 5 (1) (a) and (b) of Act No. 38 of 1927 \ and it is therefore ap
parent that the Proclamation was based on the said Act.
138. In the 1928 annual report the followingreference was made to the
Proclamation:

"During the year under review there was placed upon the Statute
Book a Proclamation {No. 15 of 1928) which dealt comprehen
sively with the whole question of Native Administration. This
measure, wlùch was based on, and which closely follows similar
recent legislation in the Union of South Africa, gives to the Ad
ministrator certain powers wlùch are essential in dealing with a
native population living under tribal conditions such as still exist
to-day in Ovamboland, in the Kaokoveld, and on the Okavango.
There was no existing enactment which conferred those powers,
and though they are such as inhere aceording to native custom in any
Sup,eme. Chief, which is the relationship which the Administrator

bears to native Chiefsand headmen, it was desirable that they should
be constitutionally conferred on the Head of the Administration,
and be clearly stated and made known s." (Italics added.)
139. From what has been stated above, the following appear:
(i) The powers conferred by section I (c) and (d) of the Proclamation
correspond to those enjoyed by any Native chief in South Africa

or South West Africa by virtue of Native law and custom in relation
to headmen and tribesmen subservient to him.
{ii) Similar powers vested in the heads of state in Natal. Transvaal
and the Orange Free State before Union. and since 1910 in the
Governor-General, and the conferment of such powers was therefore
part of the established South African Native polie;' which, as con
templated, would be applied to South West Africa .
140. In paragraph 139 of Chapter V of the Memorials Applicants also
state that-

". . . in the exercise of these immense powers, the Administrator
(the Governor-General) is expressly declared to be above and beyond
the contrai or restraint of any court of law 7".
They refer in this regard to section 2 of the Proclamation which pro
vides:

1Rogers, op. cil., pp. 2-3.
3 Vide Mokhalle and Olllei,s vUnion Government (Minister of Native A0afrs),
1926 A.D. 71.
3 Vide para. 121, supra.
4 Vide Stalwùs of JheUnion of South Africa 1927, Vol. 1, pp.31G-318.
' U.G. 22-1929, para. 399, p. 54-
, Vidl para. 23, supra.
7 1, p.147.274 SOUTH WEST AFRICA

"The Administrator shall not be subject to any court of law for
or by reason of any order, notice, rule or regulation professed to be·
issued or made or of any other act whatsoever professed to be com

mitted, ordered, permitted or done in the exercise of the powers and
authority conferred by this Proclamation 1."
141. A similar provision was incorporated in Chapter II of the Natal
2
Code of Native Law , section 40 of which reads:
"The Supreme Chief is not subject to the Supreme Court, or to
any other Court of Law in the Colony of Natal, for, or by reason of,

any order or proclamation, or of any other act or matter whatsoever,
committed, ordered, permitted, or done either personally or in
Council 3."

This section, however, did not completely oust the jurisdiction of the
courts. As far back as 1894 the Natal Supreme Court ruled that the
section did not exclude the power of the Court to enquire into the validity
of orders made by the Supreme Chief, and that his actions were immune
from interferencc by the Court only when they fell, or were believed

bona /ide by him to fall, within his powers •.
142. In Union Government v. Fakir the Appellate Division of the
Supreme Court of South Africa considered the meaning of section 3 (r)

of Act No. 22 of 1913 which provides:
"No court of law in the Union shall, except upon a question of
law reserved by a board as in this section provided, have any juris

diction to review, quash, reverse, interdict or otherwise interfere
with any proceeding, act, order, or warrant of the Minister, a board,
an immigration officer or a master, had, done, or issued under this
Act, and relating to the restriction or detention, or to the removal
from the Union or any Province, of a persan who is being dealt with

as a prohibited immigrant 5."
In the course of his judgment in the said case Chief Justice Innes said:

"I do not propose here to discuss the policy of such a provision.
We are bound to give effect to the clear directions of the statutes.
But wide though the language may be, it does not exclude the juris
the courts under every circumstance. Cases may be con
diction of
ceived in which int,erference would be justified. If there were a mani~
fest absence of jurisdiction or if any order were made or obtained
fraudulent!y, a competent court would be entitled to interfere and
would interfere 6."

143. It is respectfully submitted that, wide though the language of
section 2 of the Proclamation may be, it does not have the effect of

1 Proc. No. 15 of 1928 (S.W.A.), sec.2, in The Laws of South West Africa z928,
p. 6o.
t Vide para. 135,supra.
3 Vide The Natal Government Gazette, Vol. XLIII, No. 2506 (u Aug. 1891),
p. II8o.
4 Siûba's Guardian v. Mesud, 1948 N.L.R. 237.
~ Act No. 22of 19r3,sec. 3(I),Statutes of the Union of South Africa z9z3, p. 220.
6 Union Government v. Fakir, r923 A,D. +66, at p. 469. Vide also Narainsamy v.
Principal Immigration Officer, 1923 A.&. 673; Mhlengwa v. Secretary for Native

Agairs and Anotlrer, 1952 (r)S.A.L.R. ;112. COUNTER-MEMORIAL OF SOUTH AFRICA 275

placing the Administrator 1 "above and beyond the control or restraint
of any court of law" 2• The court will intervene where it is shown that
the action takcn is manifestly outside the jurisdiction conferred, or
where fraud or a similar element is present.

144. lt may be pointed out that section 2, as also section r, of the
Proclamation merely confirm principles of Native law. ln Mokhatle and.
Others v. Uni·onGovernment (Minister of Nati·ve Affairs) the Appellate
Division of the South African Supreme Court held:

(i) that a paramount chief can, accordin~ to Native law and ~tom,
remove a recalcitrant or rebellious Native from bis tribe or the tribal
property; and
(ii)that bis power can be exercised without an investigation or trial of
the Native or Natives rellJoved 3•

145. It is further submitted that the limitation imposed on the juris
diction of the courts by section 2 is necessary in the general public
interest. It may be necessary, for instance, to act expeditiously in re
moving a deposed chief or a rebellious tribesman. In South Africa delay,
occasioned by an interclict, in effectitig a removal, has in fact resulted in
the murder of a chief by a recalcitraut group in a tribe 4.Protracted liti
gation could nullify efforts to maintain or restore law and order, and
thus frustrate the purpose and aim of the Proclamation: hence the pro
visions of section 2.

146. The fact that decisions undt:r section r of the Proclamation are
taken at the highest level, and only after careful investigation, consul
tation and consideration, affords substantial protection against arbitrary
action and abuse of the powers conferrcd by the Proclamation. In this
connection attention is respectfully drawu to the failure of the Applicants
to refer to a single case of arbitrary action under the section or of abuse
of the powers conferred. ·

147. The Permanent Mandates Commission, although fully aware of

the relevant provisions of the Proclamation 5, did not object to them.,
and it is respectfully submitted that there is again no substance in the
suggestion of "arbitrary and discriminatory" restrictions as far as the
said provisions are concerned. They apply specifically to Natives, not
because of any discriminatory intent, but because they relate to matters
peculiarly concerned with the government of Natives living in their
traditional tribal societies. This will become even more apparent as the
Native groups progressively achieve st:!f-government in their own areas,
when the powers conferred by sectit,n I of the Proclamation can be
delegated to their own authorities.

1 Now the State President; llitù footnote 3 on p.268, supra.
i Vide 1,para. 139,p. 147.
3 Mokhalle and Others v, Union Gouernmenl (Minisler of Native Afjairs), 1926
J\.D. 71.
• Vide U. o/ S.A., Pari. Deb., Ho-useof Assemb1y, Vol. 77 t1952), Co\s. 552, 562-
563, and h36-h37.
' Vi,ù para. 138, s-up,a. SOUTH WEST AFRICA

Ill. RICHTS OF RESIDENCE IN THE POLICE ZoNE

148. In paragraph 140 of Chapter V of the Memorials reference is
made to section 6 (4) of Proclamation No. 29 of 1935 (S.W.A.) 2, as
amended, in tenns of which Natives recruited from the northem areas
for labour within the Police Zone may remain within the Zone only for
the period of employment provided for in the contract, and in no case
exceeding two and a half years.
In the last sentence of the said paragraph the Applicants also rely
on section 9 of the Proclamation, but since the requirements of the Pro
clamation relating to passes are again referred to by Applicants under
the heading "Freedom of Movement", Respondent willdeal with section 9
in its reply to that part of the Memorials 3•

149. The practical effect of the Proclamation is that labourers re
cruited outside the Police Zone return to their tribal areas after a fixed
period of employment in the Zone. Provision therefor was made at the
specific request of the tribal authorities in the northem areas who wish
to protect their tribes from disintegration and to maintain tribal relations.
r50. In this regard reference may be made to the following remarks
of the late Major C. H. L. Hahn in 1945 while he was Native Commis
sioner of Ovamboland:

"Most of the labour requirements for South West Africa are met
by recruits from Ovamboland. In order that these natives do not
become detribalized their chiefs and headmen have specifically re
quested that they are employed or contracted for not longer than
two years at a time. After the expiration of their contracts they are
repatriated home, as required by the Administration, and are not re
contracted before they have spent at least three months with their
own people. No male native under the age of r8 is accepted for con
tract work ~."

151. Prior to the enactment of the Proclamation it was the experience
of the tribal authorities that, once having left the reserve and taken
up'employment in the Police Zone, many of the younger contract la
bourers failed to retum to their homes. This resulted not only in a
drainage of manpower from the reserves, but also in families being left
destitute. As Silas Fikameni Ipumbu, a senior headman of the Kuambi
tribe, put it:
"... many of the ... [labourers] ... became detribalized or had
children by women in the Police Zone and their own familles in
Ovamboland were being neglected 5".

152. The Administration was consequently asked by the tribal au
thorities concerned to take steps to ensure the retum of these labourers.

"'Proc. No. 29of 1935 (S.W.A.),sec. 6 (4), in Thi1Lawso/S0utk WulA/ricaI935,
Vol. XIV. p.152, as amended, inter alia, by Proc. No. 38 o1949 (S.W.A.),sec.2, in
The Laws of South West Africa r949. Vol. XXVIII, p. 76o.
3 Vide Chap. IV, paras. 85-90, infra.
4 Hahn, C. H. L., Natiue Policy in South West A/rica: System of Indirect Rule in
Ovamboland and the Kaokoveld (unpublished memorandum dated 27 Sep. 1945),
p.9.
' In a statement confirming the request referred to below.

... COUNTER-MEMORIAL OF SOUTH AFRICA 277

The most effective way this could be done was by limiting their sojoum
in the Police Zone to their initial contract period, or to any extended
period, but not exceeding two and a half years in ail.

:i:53.The initial contract pe;riod of one yt:ar was increased in 1949,
with the approval of the Clùefs and Headmen of Ovamboland and the
Okavango Native Territory, to 18 months • Pursuant to requests made,
inter alia, by the said Headman Silas Fikameni lpumbu, Chief Ushona
Shimi of the Ngandjera tribe, and Headman Angula Shilongo of the
Ndonga tribe on behalf of their respective tribes, this period was, as
from r July 196r, again reduced to the original one year 2•
154. The Proclamation was also conceived to protect the Native
residents of the Police Zone from an influx of Natives from the north,
which would result in unemployment for many of them. That this pro

tection is justified, becomes apparent when it is kept in mind tha.t while
the northern Natives are in a position to make a living from agriculture,
many of the Natives in the Police Zone are dependent entirely upon
what they earn from employmi::nt. The fact that there is virtually no
unemployment in the Police Zone ca.n thus be attributed chiefty to the
control exercised under the Proclamation.
r55. It is significant that the Permanent Mandates Commission, al
though fully aware of the provisions of the Proclamation, never objected
toit.

The object of the measure was explained in the r935 annual report as
follows:
"The principal object of this measure is to prevent northem and
foreign natives from flocking into the urban locations where they
become detribalized and fail to support their familles left behind in
the reserves or locations from which they corne. In tunes of re
stricted employment they corne into competition with local natives
and the Administration was put to considerable expense during the

recent depression in repatriating such natives from Windhoek and
other centres ... 3"
156. In Respondent's submission the charge of arbitrary and dis
criminatory restrictions in relation to the provisions of section 6 (4) of
the Proclamation is unfounded. Toese provisions were conceived solely
in order to promote the interests of the inhabitants of South West
Africa, both outside and within the Police Zone.

IV. RIGHTS OF RESIDENCE IN URBAN AREAS

{a) The Background to the Influx Control Provisions of the Natives
(Urban Areas) Proclamation

157. In paragraphs 14r to 144 of Chapter V of the Memorials the 4
Applicants object to the influx control machinery created by sections :ro,

1 Vide P?'oc.No. 59 oi 1949 (S.W.A.), in The Laws oj South West Af,ica .1949,
Vol. XXVIII, p. 78:t.
2Ord. No. 11 of 1954 (S.W.A.), in Tha Laws of South West Africa .1954, Vol.
XXXIII, pp. 655-657 read with G.N. No. 66 of 196I (S.A.), in Gouernment GazeUt'
(S.A.), Vol. I, No13 (I6June 196I),p. 19.
3 U.G. 25-1936, para. 243,p. 42.
• l,pp. 147-148. SOUTH WEST AFRICA

I3, 22 and 25 of the Natives (Urban Areas) Proclamation of 1951 1,
which replaced earlier provisions controlling the entry of Natives into
urban and proclaimed areas.

158. As early as 1924 Respondent decided to pass legislation in an
effort to overcome the problems created by the influx of Natives into

urban areas in the Terntory. This was done by means of Proclamation
No. 34 of 1924 (S.W.A.), to which the following reference was made in
the 1924 annual report:

"The most important measure promulgated during the year was
the Natives {Urban Areas) Proclamation No. 34 of 1924. This
Proclamation adopts ail the main provisions of the Union Natives
(Urban Areas) Act of 1923, and omits only those wlùch are not ap

plicable to the conditions obtaining in the territory.
It was felt absolutely necessary to make provision for the better
control of natives in urban areas in the interests of the natives as
weU as Europeans. Experience has shown that there is a strong
tendency, for natives, both men and women, to drift into urban
locations where in many cases they neither want nor seek employ

ment. As they simply loaf and do not earn money honestly they
resort to illicit liquor selling, prostitution, gambling and other means
to obtain it and generaUy degenerate. Under the new law a proper
system of registration is provided for, and the Administration will
be able to exercise effective control and keep urban locations clear
of loafers. But tlùs is not the sole abject of the Proclamation which

makes for improved conditions of residence for natives in urban
areas, while the service contract js in fact a protection to the native.
Not an uncommon complaint is that Europeans withhold wages or
pay less than the amount agreed upon, etc. The service contract
will form proof of the conditions of employment 2."

159. Section II of the Proclamation made provision for the decla
ration as a "proclaimed area" of any urban area in which an area had

been reserved and accommodation provided for Native occupation in
terrns of the Proclamation, or of any area in which Natives were con
gregated in large numbers for mining and industrial purposes. In respect
of an area so declared the 1\dministrator was empowered to impose,
inter alia, the following requirements:

(i) ail contracts of service between White employers and male Natives
to be registered 3;
(ii) all male Natives to report their presence on arrivai in the area and
4
to obtain a certi:6.cate to be produced on demand ;
(iii)all male Natives ceasing to be employed te report and obtain cer
tificates to be produced on demand 5 ;

1 Proc. Xo. 56 of r95r (S.W.A.), secs. 10, r3, 22 and 25, in The Laws of South
West Africa z95z, Vol. XXX, pp. 108-no, n2-n4, 130-136, 140-142.
2
3 U.G. 33-1925, para. 98, p. 27.
Proc. No. 34 of 1924 (S.W.A.), sec.11 (1) (a),in The Laws of South West Africa
z924, p. r83.
• Ibid., sec. 11 (r) (b), p. 183.
5 Ibid sec. 11 (1) (c),p.183. COUNTER-MEMORIAL OF SOUTH AFRICA
279

{iv) Natives under the age of 18 years to be refused permission to enter
or reside in the area, with certain exceptions 1;
(v) Natives in the area not in employment to reside at a prescribed place
2
until employed or exempted ;
(vi) Natives failing to find employment within a prescribed period to
depart from the area and not to retum within a specifted period 3•
16o. Natives exempted from the above provisions comprised: chiefa

and headmen; Native police; employees of the Administration; ministers
of religion who were marriage officers, teachers in state-aided schools and
members of approved professions 4•
16!. Subsequent to 1924 it was found that the provisions of the above

legislation were inadequate to prevent Natives from coming into the
urban areas in excess of the labour requirements of those areas. This
was due to the fact that the relevant provisions of Proclamation No. 34
of 1924 (S.W.A.) were directed only at requiring male Natives in pro
claimed urban areas to register their contracts, and at effecting the
removal of those who were not employed. Thls measure did not prevent

the entry into such areas of male Natives for whom there was no work
available. By Proclamation No. 4 of 1932 (S.W.A.) there was accordingly
inserted in section 6 of the original Proclamation a sub-section (6) which
provided that the Administrator could declare that no Native might
enter any specified urban area for the purpose of seeking or undertaking

employment or of residing therein except in accordance with prescribed
conditions 5.
The 1932 Proclamation also added provisions to section Il of the
original Proclamation relating to proclaimed areas. These provisions
authorized the Administrator to prohibit the entry of female Natives
w:ithout certain certificates of approval, and required every male Native

not under contract of service to register with a prescribed officer.
162. As time went on the need for more comprehensive provisions to
control the entry of Natives into White urban areas became apparent,
resulting in the enactment of the Natives {Urban Areas) Proclamation

of 1951.

(b) The Basi'cConsiderati'ons of Infiux Control

163. The main consideration underlying Respondent's policy of in

flux control has been the necessity of preventing urban areas from be
coming overcrowded with unemployed Natives.
Experience in South Africa-and elsewhere-has shown the serions
social and economic problems that arise when there is an undue accu
mulation of Natives in urban areas without any regard to actual labour
requirements and existing housing facilities. Successive commissions in

South Africa revealed the consequences flowing from the lack of proper

1 Proc. No. 34 of 1924 (S.W.A.), sec.11 (1(d),in The Laws of South West Af,ica
z9z4, p. 183.
2 Ibid., sec. II (1) (g)p. 184.
3 Ibid., sec.u (1) (h),p. 184.
4 Ibid., sec. 11 (2)p. 184.
5 Proc. No. 4 of 1932 (S.W.A.), sec. 3, inThe Laws of South West A/rica I9Jil, p.
56. Reference to the insertionof the new sub-section was made in U.G. 16--1933,
para. 2,p. 1. SOUTH WEST AFRtCA

regulation of Native influx into, and of accommodation in, urban areas.

For example, the reports of the Native Affairs Commission of 1903-
1905 1, the Assaults on Women Commission of 1913 2,and the :ruber
culosis Commission of 1914 3,ail revealed a most deplorable situation
in Native locations as a whole, where primitive conditions prevailed
and where, in the early years, scant attention was paid to sanitation and
housing, with the result that the health of the non-White communities
was adversely affected.

164. As early as 1921 the Transvaal Local Government Commission
(Stallard Commission), appointed, inter alia, to investigate this very
matter, recommended influx control in the following terms:
"In order that the problem should be reduced to dimensions
which the financial and other resources of the municipality can
overtake, it is in our opinion necessary that there should be secured

to the municipality-
(i} control of the ingress of natives;
(ii) continuai removal of masterless natives.

ln both these matters we consider the desired ends may be achieved
by close co-operation between the municipal and Native Affairs
Department officiais, and also those of the Department of Justice\"
165. The permanent Native Affairs Commission in its report for the
years 1937-1938 stated:

"Prior to Union there was no general legal restriction upon the
acquisition of Jand by natives in the three States of the Transvaal,
the Cape and Natal, either in rural or urban areas. There was, how
ever, a limitation in certain areas of the Transvaal proclaimed under
the Gold Law. In the Orange Free State the acquisition of land by
Natives outside the area of Thaba 'Nchu was prohibited. Elsewhere,

there were no legal impediments. At this time, too, the influx of
Natives into urban areas had not reached serious proportions, and
municipalities had not assumed the responsibility for the welfare
of the people living within their borders which they discharge today.
Under the laissez-/ai"re conditions prevailing, industrial workers,
whether European or Native, sought their own accommodation
where they could find it. In the case of Natives, employers, including
the Government and local authorities, provided accommodation for

their employees only at their own convenience.
Where land was readily available near a town a location grew by
the p.atural segregation of the Natives themselves. In such cases
a hut or a simple house was erected by a Native on land he acquired
in leasehold or other tenure, which he rented to others. Asiatics or
Europeans found it profitable to build a èlock or iron hutments
for which Natives were always waiting-without regard to the health
or sanitation of the area. In this way the larger towns and their

environs, especially on the Witwatersrand, became dotted with
small agglomerations of Native dwellings which were leased to any
Natives and their families who were able to pay the rent. In such

1 Vide para. t7,supra.
2 U.G. 39-19i3.
3 U.G. 3f-19I4.
4 T.P. 1-1922, para.271, p.48. COUNTER-MEMORIAL OF SOUTH AFRJCA 281:

manner the siums of our cities came into being and continued until
the evils wlûch they encouraged forced themselves upon the notice
of the Press and the public, and compelled legislative action 1."

166. The Native Laws Commission (1946-r948), commonly known
as the Fagan Commission, reported as follows:
", .. the influx of Natives into many urban areas throughout the
Union, but especially into the large industrial centres, continued to
outstrip the capacity of public bodies to provide honsing and other
amenities. The lag was accentuated dunng the War years (1939-

1945), when building activity was practically frozen, while industries
that served the war effort expanded rapidly and kept crying out
for labour. Most municipalities in industrial areas were ~nable to
prevent overcrowding in their locations or in Native townships
within their jurisdiction. They naturally attempted to do so bv
restricting entry. The result again was terrifie overcrowding, with
consequent deterioration in conditions, in Native townships which.
like Alexandra outside Johannesburg, are close to a big industrial
town but outside the jurisdiction of its municipality; and the shanty

towns of squatters around the cities grew to unmanageable pro
portions. Indeed, in many cases it would not be wrong to say that,
to the extent to which a municipality succeeded by stringent con
trol, in preventing overcrowding of its own area, the squatting
settlements around it grew in size and congestion. Pretoria, where
the municipality told us it turns away about one thousand would 4
be Native entrants a month as being in excess of its calculated labour
turnover, is hemmed in on every side by squatters' villages that
exist illegally on the neighbouring farms.... Johannesburg is still
grappling desperately with its problem of peri-urban squatters of

whom over 50,000 have already been collected in the controlled
squatters' camps of Moroka and Jabavu. Durban has its Cato
Manor, and Ca\>eTown its Windermere and the shanty towns on
the Cape Flats ."
16]. Following on the report of the Stallard Commission , the initial
influx control legislation in South Africa, viz.,the Natives (Urban Areas)
Act of r923 4. aimed at making provision for the accommodation of

urban Natives in separate areas, and at the same time at limiting the
numbers resident therein. The Act was subsequently amended and
consolidated in Act No. 25 of 1945 5•
168. In South West Africa there was a development of conditions
similar to those in South Africa. During the last years of German rule
in the Territory the Native urban population increased rapidly, parti
cularly because of the influx into the towns of Natives who had lost

almost all they had during and a.fter the rebellion of 1904-1907. If this
trend-likely to be accentuated at times by conditions of drought and
the like, and in general likely to become stronger with the growth of
towns and economic activity- had been left unchecked, a situation

1 U.G. 54-1939, pp. 2I·22.
2 U.G. 28-1948, para. 3, p. 5.
3 Vide para.164, supra.
4 Act No. u of 1923, in Statuus of the Union of Sou#h Afrieo I9app. 140-"197.
' In Statllles of the Union of South Africa Ipp.,108-207.

• SOUTH WEST AFRICA

would have arisen in the towns of the Territory which would have been
.extremely detrimental to the welfare of the Native inhabitants. Respon
dent already had before it the example of the conditions that had arisen
in South Africa as the result of the uncontrolled congregation of Natives
in the vicinity of industrial towns, and which necessitated legislation to
improve and control the position. In order, therefore, to prevent a similar
development in South West Africa, Proclamation No. 34 of 1924 1 was
2
enacted. As has already been pointed out , the Proclamation was sub
sequently superseded by the Natives (Urban Areas) Proclamation of
I95I, the purpose of which, according toits preamble, was-
"... to amend and consolidate the laws in force in the Territory
whlch provide for imProved conditions of residence for natives in
urban areas and the better administration of native affairs in such
areas; for the registration and better contrai of contracts of service

with natives in certain areas and the regulation of the in~ress of
natives inta, and their residence in, such areas; for the restriction and
regulation of the possession and use of kaffir beer and other in
toxicating liquor by natives in such areas and for other incidental
matters 3." (ltalics added.)
169. Respondent bas already shown that the Permanent Mandates
Commission was kept informed of its policy to contrai the influx of

:r-iativesinto the urban areas of the Territory. fn this regard reference
may also be made to the following extract from the 1937 annual report:
"It is the policy of the Administration to restrict as far as possible
the congregation of large bodies of natives in the vicinity of Euro
pean areas which results, if uncontrolled, in the contamination of
the European as well as the native; miscegenation; lower wage rates
where there is a surplus labour supply; drunkenness through the

consumption of illicitly brewed intoxicants and the spread of
venereal disease and tuberculosis through overcrowded and in
sanitary dwellings are the usual consequences of overcrowded urban
locations. Unfortunately before this law was applied some of the
locations were already overcrowded by natives detribalized during
the German wars or who fiocked into the towns after the occupation.
It is the policy of the Administration gradually to remove this
surplus population and settle it in the larger reserves •."

170. The serious problems created by the influx of Natives into urban
areas are not peculiar to South Africa and South West Africa. In 1953,
after a thorough investigation of ail aspects of urban Native adminis
tration in tropical and southem Africa, J.L. L. Comhaire, then Assistant
Professor of Social Studies at Seton Hall University in the United States,
-came to the following conclusion:
"Housing appears, ftom all available evidence, to be the main

problem of urban native administration in Tropical Africa. Housing
conditions today are inadequate in ail towns. Reports of over
crowding, of dilapidation of existing houses, of loweriqg of ail

1 Vide para. 158,supra.
2 Vide para. 162,sufwa.
3 p,.ocNo. 56 of 1951 (S.W.A.), Preamble,inThe Laws of South West A.f,.ica r95r,
Vol. XXX, p. 90.
• U.G. 25-1938, para. 291,p. 47. COUNTER-MEMORIAL OF SOUTH AFRICA

standards, corne in from every side. The consequences of such a
situation are as far-reaching as can be; if nothing is done aboutit,
medical, moral, and economic conditions may sink below the original
native standards. Why do so many Africans cling to their urban
dwellings in these circumstances? Sorne at least must have no other
reasons than the opportunities provided for drinking and prostitu~
tion, and the hopes engendered by the better life which a privileged
few enjoy ."

171. The following excerpts from the report of the East Africa Royal
Commission of 1953-1955 are also in point:
"... We have been led by what we have seen during our tours of
East Africa and by the evidence submitted to us to emphasize the

importance of finding an answer to the problems which have been
created by the rapidity with which urban areas have developed...•
A study of official reports and the evidence of witnesses with
knowledge of urban matters convinces us that conditions of life for
the poorer Asian and the majority of the Africans in the towns have
been deteriorating over a considerable period. The unsatisfactory
nature of these conditions is indeed well known. Moreover their
deterioration has not yet been arrested. An attempt must therefore
be made to ascertain the precise nature of the causes which underlie
them.

Whilst, as the foregoîng discussion clearly indicates, many of the
problems are due to poverty and bad housing, physical conditions
are not the only causez."
172. A United Nations Committee on Housing and Urban Develop
ment reported as follows in 1962:

"The process of urbanization is not a new phenomenon, but its
rate has greatly increased since the Second World WaI. In large
parts of the world there is a considerable excess of manpower,
without corresponding means of employment. Furthermore, urban
attraction is combined with rural deficiencies, while industrial
development attracts more people to cities than are able to earn
their livelihood there. Most rural migrants expect to find in the city
not only a job, better housing and physical amenities, but also a
richer social and human experience and access to national and
universal culture 3."

173. In 1959 a United Nations survey pointed out that this migration
had developed into a vicious cirde:
"Many under-developed countries have recognized that measures
taken in the cities to improve the levels of living of the urban poor

will tend to increase the attractive power of cities and encourage
more rapid migration unless efforts are made at the same time to
improve conditions of living and productivity in rural areas.
The prospect of increased citywaid migration is especially trouble
sorne in countries where most of the migrants are young men and

1 Comhaire, J.L. L., Aspects of Urban Administration in Tropical and Southern
.Africa, Communications from the School of African Studies (New Series No. 27)
[July 1953),p. 67.
2 Cm.d. 9475, pp. 200,209.
3 U.N. Do,;. STJSOA/50, E/CN. 5/367/Rev. 1,para. 2,p. 1. SOUTH WEST AFRICA

former cultivators of food crops, as in much of Africa and the
Middle East, particularly if the women and old people who are left in

the villages find it hard to grow enough food for their own consump
tion and cannot supply a surplus to feed the towns. Even the coun·
tries with rural over-population, however, may prefer that the rural
surplus should remain at home, or resettle in less-crowded rural
areas, since in these countries there is usually also urban over
population, and the unemployed or under-employed present more
1
problems in the cities ."
174. The following quotations from reports of international organi
zations give a general impression of the social problems created by the
migration of Natives to urban areas:

(i) "One of the many consequences of the introduction of the
western economic system to Africa has been the growth of large
towns. The existence of these large agglomerations of the
population, where previously there had been none, has brought
m its train a host of social and administrative problems. Sorne
of these problems are associated with city life ail over the world;
some of them are due to the fact that many thousands of

Africans are being thrown into a situation for which there is
no set of prescribed behaviour in their traditions; others derive
from a conftict of political dogma and economic necessity 2.''
(ü) "The social effects of these developments fall into two broad
groups: those resulting from the creation of a heterogeneous,
largely unskilled, partly illiterate wage-earning population in

towns, and those resulting from the temporary or permanent
absence of young men and women from tribal areas. These two
aspects are, of course, part of the same problem 3."
(iii)"The migration of labour-that is the voluntary movement of a
considerable number of workers within the boundaries of their
own countries or from their own countries to other countries
may, in the absence of any protective measure, lead to social

evils such as:
l~ destitution and vagrancy;
{2 the spread of disease;
3 the break-up of family and communal life and a reduction
in the normal birth-rate;

{4) the wasteful dissipation of man-power;
5) unsatisfactory conditions of employment;
6) damage to the economy and development of the migrants'
own country and of the country to which they migrate 4."
(iv) "Other 'evils of the city' represent a failure of adaptation-of

the individual in his habits of work, hygiene, consumption,
etc., and of the urban community as a whole in its institutions
and services. Lack of education and of skills and a wide cultural
gap between the city and the countryside make adjustment

1 U.N. Doc. EJCN. 51332, ST/SOA/39, p. l70.
aSocial Implications of Industrializatioand Urbanization in Africa S01'thof tha
SahaJ'a (1956),p. 693.
5Ibid.,p. 53.
4Afncan Labou,-Conference, IIth Session, July r950, Final Reporl, p.111. COUNTER-MEMORIAL OF SOUTH AFRICA

difficult for the rural migrant and his family. Rural customs and
practices that were useful or only mildly harmful in their original

context are continued into city life, where they are inappropriate
and can lead to various maladies of urban society. New in
stitutions and services required by the nature of the urban en
vironment-for example, in connection with various problems
of social security-are not developed or are developed but
slowly, to take the place of the old ones that disintegrate in the
modem city 1."

175. In addition to the serious housing and social problems created
by the unrestricted migration of Natives to urban areas, lack of influx
control can also lead to grave unemployment conditions, as appears
from the following extract from a United Nations report of 1962:

"In 1957 unemployment, particularly on the Copperbelt, became
a problem of steadily increasing gravity. In Northem Rhodesia and
Nyasaland the attractions of the mining towns, consisting of sub
stantial wages, bonuses and welfare amenities, are well known to
European and African workseekers who are prepared to travel long
distances with nothing more substantial than the hope of obtaining
employment on arrivai. During 1957, the fallin the price of copper
forced the mining companies to effect economies which were re

flected not only in the numbers of their own employees but also in
the number employed by the contractors directly or indirectly
dependent on the mines. Most Europeans affected found it possible
to move elsewhere; on leaving empfoyment they were usually a.ble
to draw on sufficient savings to help them to travel to their next
employment. Thus the number of unemployed Europeans was not
especially noticeable. By the end of 1957 the pool of unemployed

Africans had become very noticeable: there were at least 10,000
in the Copperbelt towns. During 1958, unemployment continued to
be a grave social problem. The price of copper continued to fall
during the early part of the year and this, together with production
problems, resulted in the decision to cease production at Bancroft
Mine at the end of March, 1958. Efforts were made to place employees
at other mines but most of the Africa.n workers accepted the com
pany's offer of free repatriation to their home villages, and in this

operation about 3,300 men, 2,100 women and 3,400 children were
transported to the rural areas 2."
176. It is consequently not surprising to find that other countries
have also.applied a policy of influx control. ln Sçiuthem Rhodesia the
Registration of Natives Act of 1936 3 provided for control of the entry
of Natives into urban areas in tenns which closely resembled those of

contemporary legislation in South Africa and South West Africa. In
1951 there was enacted the Native (Urban Areas) Accommodation and
Registration Act 4 which provided for the regulation and control by

1 U.N. Doc. E/CN. 5/324/Rev. I, ST/SOA/33 (Apr. 1957), pp. u2-n3.
1 U.N. Doc. ST/TR1/SER.A/18, pp. 28-29.
·' Act No. 14 of 1936 (Southern Rhodesia), in The Statute Law of Southern Rhoàesia
i11farce on,he xst Day of January, r939. Revised Edition. Vol. II, Chap. 76, pp.
275-285.
4 Act No. 20 of 1951 (Southern Rhodesia), in The Stal1m Law of Soutllern Rhoàesio.
r95r (1952}, pp. 285-320. 286 SOUTH WEST AFRICA

local authorities of Natives seeking employment within the areas of
such authorities.
177. In Kenya, Natives not in employment are prohibited from re
siding in urban areas for more than 36 hours without a permit 1•

i78. Reference may also be made to regulation 135 (1) of the North
em Rhodcsian Townships Rcgulations, which reads as follows:
"Any native who desires to reside in a location without erecting
a hut or dwelling-house shall, if he satisfies the superintendent that
he follows or intends to follow a lawiul occupation, receive from the
superintendent a permit allowing him to search for a registered

occupier with whom to reside. If, at the expiration of one week
from the receipt of such permit, such native fails to find a registered
occupier as aforesaid, the superintendent may order him to remove
from the location, and, if such native fails to comply with such order,
be shall be guilty of an offence. If such native satisfies the super
intendent that there is room available for him in any hut or dwelli~g
house and that the registered occupier thereof consents, the super
intcndent shall cause such native to be entered in the register ~f

natives to whom permis2ion has been granted to reside with a
registered occupier ." , :
179. Reference may further be made to the following extract from a
study by M.]. B. Molohan, published in 1959:

"In an attempt to control immi$fation into the towns the Belgian
Congo, Kenya, Northem Rhodes1a and Southern Rhodesia have
had for some years pass systems, whereby Africans coming into
the towns in search of employment have to report their presence
to the local authorities for permission to stay in the African loca
tions and to seek and obtain employment within a given period.
In some ·towns an elaborate system of registration has been
evolved to keep a check on all the inhabitants of the locations, but

the general impression I have fonned is that even in those towns
such as Elizabethville, where control is exercised and where there
has now been introduced a modern system of identification by
means of photographs and fingerprint classification, no methods
yet adopted are entirely effective and a considerable degree of
evasion continues to take place. Round-ups of the locations always
reveal the presence of newcomers who have not reported their
arriva! to the authorities 3."

180. It is significant that in 1950 the African Labour Conference
recommended that legislation should be passed to control the migra
tion of Natives to urban areas. The Conference stated:
"I t is ... desirable, in the interest of the migrants and of the coun
tries from which, within which, and into which tbis migration takes

1 Vide Hailey, An African Survey (1957), p. 579. It would seem, however, that
thls measure bas not been fully applied in practice.
11Regulation 135 (r) in The Laws of Not1hern R4odesia, 1963 Edition, Vol. VI.
Cbap. 120, p. 1u.
' Molohan, M. J.B., Detribali.rancm:A Studyof the Areas ofTanganyika wbere
Detribalized Persons Are Living with Recommendations As to the Administrative
and Other Measures Required to Meet the Problems Arising therein {1959), para.
94, p. 38. COUNTER-MEMORIAL OF SOUïH AFRlCA

place that these countries should make provisions, individually by

law, or together by agreement, or by both these means combined,
or otherwise for the protection of the migrants.
Toese provisions should be dîrected to the following objects so
far as may be practicable:
... To prevent any migration not likely to lead to the employ
ment of the migrants; ...

. . • To ensure that any migrant worker and his family may
return, on the completion of a period of service, to his
home 1."

181. In 1963 the President of Guinea issued a decree. "concerning
:limitation of the rural exodus", articles I and 2 of which read as follows:
"Article I.The categories of workers without speciality, labourers,
caretakers, employees paid by piece-work, etc., constituting the

salaried fl.oating population shall in future be subjected to a rigorous
regimentation in matters of situations vacant and employment
wanted;
(a) No person shall apply for any employment in the public sector

(administration, State enterprises or societies) if he cannot give
proof of residence of at least five (5)years in the place in which
he applies for employment. Any persan wishing to find employ
ment not necessitating any specialisation shall join to his appli
cation a certificate of residence drawn up by the regional author
ities, signed by the Commissioner of Police and countersigned
by the Commander of the Region concemed.

Article 2. Any person effecting a displacement of long duration
from the rural zones to the towns shall inform, beforehand, the
offi.cerof Police responsible for the security in the locality concemed,
who shall be competent to issue in his name a permit, indicating the
motives for and the duration of the absence 2." (Translated from
the French.)

182. In the result it is submitted that the control of the influx of
·Natives into urban areas in South West Africa is neither an arbitrary
measure nor one which discriminates to the detriment of the Natives,
but that it is, on the contrary, based on a consideration of the interests
of the Natives.

x83. It may then be asked why influx control is not applicable to
Europea:p.s. The answer is that the circumstances which gave rise to
such control apply peculiarly to the Natives, and not to the White
population group or, for that matter, to any other group, e.g., the
Coloured group or the Rehoboth Basters. The urban and proclaimed

areas, to whlch the relevant legislation applies, are all situated in the
area occupied by the White group and were from the outset developed
by members of tbis group for tlie purposes of their communal living.
There has never been any widue mflux into these areas by \Vhites,
Coloureds or Basters.

1
2 Afriean La.boui'Con/el'enceIIthSession,J-ly r950, Final Reparl. pP, HI-II:&.
Decree No. 43 of I8January 1963. in Journal 0/ficiel de la Rlpubl,ùtGuinie,
No. I8 (1er février1963). p. 18.288 SOUTH WEST AFRICA

184. The allegations in paragraph 141 of Chapter V of the Memorials 1
are based on section 25 (r) and (2) of Proclamation No. 56 of 1951
(S.W.A.). Sub-section {1) reads as follows:
"(1) The Administrator 2 may by notice in the Gazette declare any

urban area to be an area in respect of which he may, on being satis
fied that the number of Natives within that area is in excess of the
reasonable labour requirements of that area, exercise the following
powers:
(a) require the urban local authority within a specified period to
lodge with him a list of the narnes of the natives who, in its
opinion, ought to be removed from the urban area;

(b) determine which of the natives specified in that list shall be
removed from the urban area;
(c) make provision for the accommodation of the natives so
removed who are lawfully domiciled in the Territory;
(d) notify the urban local authority of the names of the natives to
be so removed and of the arrangements made for the accommo.
dation of those of them who are lawfully domiciled in the Terri
3
tory ."
185. In terms of section 25 (2) of the Proclamation an urban local
authority must, upon receiving notification from the Administrator (now
the State President) in terms of sub-section (I) (d), make arrangements
for the removal of the Natives concemed according to such notification,

and must furthermore offer to pay to such Natives the reasonable costs
of their removal •.
186. Section 25 further provides that if any Native on whom a notice
has been served under sub-section {2) desires to remove with his family
to any place within the Territory, other than the place at which provision
for his accommodation has been made under sub-section 1 (c), the

Administrator may, if he is satisfied that suitable accommodation
exists for that Native and his family at that other place, authorize him
to remove thereto with his family 5•
187. This section was designed to give effect to Respondent's influx
control policy by providing for the removal of unemployed Natives who

had entered urban areas before efficient machinery to control their
influx was created. In practice, however, section 25 has never been
invoked as it has been found that adequate action can be taken under
section 10 of the Proclamation and regulation 2 of the regulations for
Proclaimed Areas 6, issued under section 22 of the Proclamation.

1I, p. 147.
iLater the Governor-General and currently the State President; llide Act No. 56
of 1954, sec.3, in Statuus of tM Unitm of South A/Yica z954, pp. 559-561.
5Pn)C. No. 56 of 1951 (S.W.A.), sec. 25 (1),in The Laws of South West Ajrica
z95z, Vol. XXX, p. 140.
• Ibid., pp.140-142.
5 Ibid., sec25 (3), p142. It lllay also bpointed out that in terms ofsec. 25 (8)
[p. 142), Natives who are not lawiully domiciled in the Tenitory must be removed
from urban a.reas before Natives who a.re lawfully so dom.iciled, in so far ait is
practicable to do so.
6G.N. No. 65 of 1955 (S.W.A.), in TM L4ws of South West Africa :c955, Vol
XXXIV, p. 754. COUNTER-MEMOR(AL OF SOUTH AFRICA

r88. In the event of section 25 ever being invoked, it would only be
done after careful investigation and consideration at the highest official
level. A Native lawfully domiciled in the Territory will not be unduly
prejudiced by his removal under the section, since alternative accom

modation will have to be provided and the reasonable costs 0f his removal
paid by the State •
189. ln paragraph 143 of Chapter V of the Memorials 2 reference is

made to section IO of the Proclamation as it was originally enacted.
A new section has, however, been substituted 3, and section 10 now
provides that no unexempted Native may remain for more than 72
hours in an urbàn area unless permission to remain has been granted
to him by a dcsignated person.

The effect of this section is that a Native who cornes from outside
an urban area, and who does not fa.11 within one of the exemptions, has
72 hours 4 within which to secure permission to visit that area, or to
look for employment therein. In terms of section ro (2) be may then
obtain permiss10n to seek work for a further period of 14 days, which

does not, however, mean that he must actually assume duty within that
period 5•
In terms of section ro (3) a Native who has obtained employment
in an urban area and who is then refuscd permission to remain in that
area, has a right of appeal to the Chief Native Commissioner 6•
In terms of section ro (6) the Administrator 7 may, at the request of

an urban local authority, declare the whole of section ro to be inappli
cable in respect of the urban area concerned 8•
190. ln paragraph 144 of Chapter V of the Memorials 2 referenŒ is
9
made to regulation 2 of the regulations for Proclaimed Areas , which
is one of the regulations providing for the registration and control of
Natives in a "proclaimed area", so declared in tenns of section 22 of
the Proclamation. The regulation lays down, inter alia, the powers, func
tions and duties of the persons authorized to act on behalf of urban

local authorities, and the duties and obligations of Natives entering a
proclaimed area.
In brief, all unexempted male Natives entcring a proclaimed area
must report within 72 hours and, if seeking employment, they can be
issued with permits valid for not less than seven and not more then 14

days. If employment is not found within the period of validity of the

1 Proc. No. 56 of 1951 (S.W.A.), sec. 25 (2), inThe Laws of South West Afrita
.195.1,Vol. XXX, PP· 140-1.r2,
2 I,p. 148.
3 By 0'f'd. No. 25 of 1954 (S.W.A.), secs.3 and 4, in The Laws oj South West
Afnca .1954, Vot XXXIII, pp. 736-741.
• It is submitted that this period is ample for the purposes of obtaininthe said
permission.
5 Vide Laws o/ So,uthWestAfrica z954,Vol. XXXIII, p. 739. The period of validity
of permits given to persons entering forpurposes other than to seek work, is not

Umited to the same extent. Such permits are issued for periods whichwillenable the
holders thereof to complete the purpose of their visits.
6 Laws of South West Africa .1954,Vol. XXXIII, p.739.
1 Now the Minister of Bantu Administration. and Development.
1 Laws oj South West Africa r954, Vol. XXXIII. p. 741.
' Vide para. 187,supra.290 SOUTH WEST AFRICA

permit, an order to depart from the proclaimed area within a period
of not less than two days may be issued.
191. There is a certain measure of overlapping between the provisions
1
of the regulation and those of section IO of the Proclamation ,in that
a Native who has obtained permission to remain in a proclaimed area
in terms of the regulation, has automatically complied with the require
ments of section IO, should this section be applicable to the particular
prodaimed area 2• The regulation, which was designed to enable the
authoritics to keep a complete record of the arrivai of aU unexempted

male Natives in proclaimed areas and of Natives employed therein, goes
further than sec.:tion IO, however, since such Natives must report their
arriva] and not merely obtain permission to remain in an urban area
for longer than 72 hours, as required by section IO.

192. The Applicants allege that in terms of regulation 2 a Native
who cnters a proclaimed urban area must register and upon registration
pay a fee of a shi1ling and remain within a reception depot until he
obtains employment, or is required by order to leave 3• These allegations
are not correct, since:

(i) Only a male Native who is not exempt /rom the provisions of the
regulation 4 has to report his arriva! in a proclaimed area to the
registering officer, who then grants him permission to remain in such
area •

(ii) Only a Native not born and permanently residing in a proclaimed
area, who has entered such area for the purpose of seeking or taking
up employment therein, may be directed to a reception depot,
"should such have been provided in the area and should accommo
dation be available therein". If the registering officer is satisfied

that such a Native has obtained other accommodation approved
by the urban local authority, he may exempt him from residing in
the depot 6•
{iii) No reception depots have as yet been established in the Territory.
{iv) Only male Natives who are not exempted, and who are under
contracts of service, require certificates of registration if they wish to

remain in a p,oclaimed area for a period longer than r4 days. For
such a certificate a fee of one slùlling is payable 7, but in practice
no fees have ever been charged.

193. The Applicants also refer to regulation 6 (1), which provides:
"There shall be payable by every employer in respect ofevery con
tract of service registered in his name in terms of the preceding
regu!ation a fee of two shillings (2/-) for every month or portion
thereof during the continuance of the employment of the native

1 Vide para. 189, supra.
2 Sec. ro applies only to urban areas and such areas are not necessarily pro
claimed areas. Vide Fl'oc. No. 56 of 1951 (S.W.A.), sec.22 (I),in T/ie Laws of Srnit/i
West Africa r95I, Vol. XXX, pp. 130-134.
J 1, para. 144, p. 148.
4 The categories of Natives so exempt are those contained in Froc. No. 56 of I95I
(S.W.A.), sec. 22 (2),in T/ie Laws of South West Africa i:95r, Vol. XXX, p. 136.
3 G.N. No. 65 of 1955 (S.W.A.), reg. 2 (r) {a), in The Laws of Soulh West Ajrica
i:955. Vol. XXXIV, p. 754.
6 Ibid.,reg. 2 (r)(b), p. 754·
1 Ibid., reg.4 (1)and (2), p. 758. COUNTER-MEMORIAL 01'"SOUTH AFRICA

under such contract. The fee shall be paid on the registration of the
contract and' thereafter within seven days of the commencement
of every month 1." ,

The revenue derived from the registration of contracts is paid into a
special fund known as the Urban Areas Pass Fees Fund. The moneys
so obtained are utilized for capital works and special services in loca
tions and Native villages in urban areas for the direct benefit of Natives •

194. The system requiring Native workseekers entering urban and
proclaimed areas to report to a designated officer in terms of section
10 (1) of Proclamation No. 56 of 1951 (S.W.A.) and to a registering
officer in terms of ref{Ulation 2 of the regulations for Proclaimed Areas 3,

enures for the benent of such Natives. The designated officer invariably
has a list of prospective employers and is thus able to bring workseekers
into contact with such employers.
1.95. In order to give full effect to the above legislation, it was found

necessary to require all newcomers-and not only workseekers-to
urban and proclaimed areas to report to the designatccl officer within
a certain time. In the absence of such provisions it would be impossible
to control the influx of Natives into such areas.

196. It bas moreover been found necessary to extend influx control to
peri-urban areas. In paragraph 142 of Chapter V of the Mcmorials •
reference is made to section 13 (1) of the Natives (Urban Areas) Proc
lamation, which reads as follows:
5
"Except with the written approval of the Administrator given
alter consultation with the local authority concerned and conveyed
in writing under the hand of the Chief Native Commissioner, no
owner, lessee or occupier of Land situated outside an urban area
within ftve miles of the boundary thereof shall allow natives to
congregate upon, or any native who is not bona fide in his employ to

reside upon, or to occupy any dwelling on, that land; and except
in accordance with the approval of the Administrator so conveyed,
natives shall not congregate upon, and no native who is not bona
fide in the employ of the owner, lessee or occupier of such land shall
reside upon or occupy any dwelling on, the land •''

197. Attention is respectfully drawn to the Applicants' failure to
make any reference to section 13 (5) of the Proclamation, in terms of
which the other provisions of the section do not apply to:

(i} any Native who is the owncr of such land as is rcferred to in sub
section (1);

1 G.N. No. 65 of 1955 (S.W.A.}, op. cit.reg. 6 {1}p. 762.
2 Proc. No. 56 of 1951 (S.W.A.), sec. 18, in The Laws of South West Africa r95r,
Vol. XXX, p. 122 as amended by Ord. No. 21 of 1953 (S.W.A.), sec. 3, iThe Laws
of South West Africa z953, Vol. XXXII, p. ~03.
3 The regulations apply to the following proclaimed areas: Mariental, Omaruru,
Wa.rmbad. Usakos, Otjiwarongo. Walvis Bay, Windhoek, Outjo, Luderit:z, Ka.ribib,
Keetmanshoop, Tsumeb, Aus, Grootfontein, Karasburg, Gobabis, Swakopmund.
Okahandja, Otavi, Malta.hôhe, Bethanie, and Leona.rdville.
• I, pp. 147-148.
5 Now the Minister ofBantu Administration and Developmeot.
6 P,-oc. No. 56 of 1951 (S.W.A.), sec. 13 (1),in The Laws of South West AfFit4

z95r, Vol. XXX, p. u2. SOUTH WEST AFRJCA

(ii)any Native who is the head of a kraal, the inhabitants of which
are in the bona fide employment of the owner, 'lessee or occupier
of such land;
(üi) the wife, minor child, unmarried daughter or bona fide dependant
of any Native entitled to reside on such land; and
(iv) Natives residing in any Native reserve lawfully established, or in

any township especially exempted by the Adri:ünistrator (now the
Minister) 1•
r98. These provisions are an indispensable part of an effective influx

control system. It will be recalled that the report of the Fagan Commis
sion, to which reference was made above 2,stated, inter alia, as follows:
"... in many cases it would not be wrong to say that, to the extent

to which a municipality succeeded by stringent control, in preventing
overcrowding of its own area, the squatting settlements around
it grew in size and congestion" 3.

Experience has shown that Natives who are not permitted to reside
in urban areas tend to congregate in squatters' camps just beyond the
boundaries thereof. From there they go into the urban areas to compete
for work and so create a real danger of unemployment for the Native
residents of such areas. Furthermore, because these squatters' camps

fall outside the jurisdiction of urban local authorities, no control can be
exercised over them. They are usually shanty towns and tend to become
hotbeds of disease, vice and crime, creating a serious threat to the
health and safety of the inhabitants of urban areas and of surrounding
fanns. And, as for the squatters. living under such appalling conditions
holds no future for them.

199. In the result it is evident that Respondent's influx control policy
is designed to prornote the well-being of the inhabitants of the Territory,
including, in particular, that of the Natives. The Applicants' allegations

that the policy, or particular measures involved therein, are "arbitrary"
and "discrimmatory" towards the Natives\ that the Mandatory has
thèreby "given consideration solely to the convenience or advantage of
the Mandatory government and of the 'European' citizens and residents
of the Territory" 5, and has thereby "followed a systematic course of

positive action which thwarts the well~being, inhibits the social. pro
gress and frustrates the development" of the Natives 6, are consequently
without substance.

(d) The Establishment of Native Urban Residential Areas

7
200. In paragraph 145 of Chapter V of the Memorials the Appli
cants refer to section 2 (r) of Proclamation No. 56 of r95r (S.W.A.) in
terms of which nrban local authorities may, with the approval of the

1 P.-oc.No. 56 of 1951 (S.W.A.), sec. 13 (5), The Laws of South West Africa z95I,
Vol. XXX, p. 1u.
1 Vide para. 166, supra.
J U.G. 28-1948, para. 3, p. 5.
4 I,para. 154 (3),p. 151.
' Ibid., para. 154 (5), p.151.
6 Ibid., p.152.
? Ibid., p. 148. COUNTER-MEMORIAL OF SOUTH AFRICA
293

Administrator (now the Minister of Bantu Administration and Develop
ment), inter alia:
(a) define, set aparl and lay out one or more areas of land for the
occupation, residence and other reasonable requirements of Natives;

{b) define, set apart and lay out any portion of a location or any other
area of land as an area or areas wherein Natives shall be permitted
to acquire the lease of lots for the erection thereon of bouses or huts
for their own occupation;
{c) provide buildings or huts within a location or Native village for
the accommodation of Natives not living under conditions of
family life;
(d) provide buildings or huts within a location or Native village for
the accommodation of Native families 1•

201. In terms of section 2 {2) of the Proclamation, the approval of
the Administrator under sub-section (r) may be withheld until he is
satisfied in regard to the suitability of the area and the situation of the
land set apart and the title thereto; the general plan and lay-out of the
location or Native village; the situation, nature and dimensions of
any building, and the provision made for water, lighting, sanitary and
other necessary services for the location, Native village or hostel, as the
case may be 2.

202. Reference bas previously been made l to the serious conditions
that arase in South Africa as a result of the uncontrolled convergence
of Natives in the towns. As long as a laissez-faireattitude was adopted
to Native urbanization, there was no prospect of the Natives in urban
areas ever being properly housed, since the economic position of the
vast majority was not such that the:y could make provision for them
selves. It became clear that in the mterests of the Natives the local
authorities had to assume responsibility •for the proper accommodation
of Natives in their respective urban areas, and the necessary powers

were accordingly given to local authorities by law.
203. Section 2 {r) of the Native (Urban Areas) Proclamation of 1951
merely empowers urban local authorities to take certain steps to accom
modate Natives in their respective areas. Section 3 goes further, however,
in providing that whenever it appears to the Administrator ~. after a
local enquiry, that the facilities provided br. any urban local authority
in its area for the needs of Natives ordinar1ly ernployed therein are in
adequate or unsuitable, he may require that local authority to take ail

or any of the measures mentioned in section 2. The section further pro
vides that no location, Native village or Native hostel shall be removed,
curtailed or abolished without the consent of the Adrninistrator and then
only upon such terms and conditions as to compensation or otherwise
as he, after consultation with the urban local authority, may direct.
204. It isconsequently clear that the above provisions were conceived
with the positive abject of providing suitable accommodation for Natives
in urban areas. Respondent respectfully fails to appreciate how exception

1 Pf'oçNo. 56 of1951 (S.W.A.), sec. 2(1)in The Laws of South West Africar95r,
p.9 •.
zIbid., sec.2 (2}, p. 94.
' Vide pa.:ra. 16sup,,a.
4 Now the Minister of Bantu Administration and Development. 294 SOUTH WEST AFRICA

can be taken to provisions which are so obviously intended to promote
the interests of Natives. It must therefore be assumed that the Appli
cants' objection is directed at the fact that separate residential areas may
be, and have in fact been, set aside for Natives.

205. By reason of the ultimate objectives of Respondent's policy
regarding reserves and separate development, Natives are not entitled
to obtain permanent residential rights or ownership in the urban areas
in the Police Zone. Since Natives are, however, allowed to enter these
areas in order to obtain employment, it has been necessary to provîde
proper accommodation for them for the purpose of such employment.
Such provision has thus proceeded on an entirely different basis fr~m
that applicable to the White residents of the towns who, in turn, are
not entit]ed to reside in Native reserves.

206. An important consideration has been the practical requirement
that the necessary accommodation for Natives was to be provided at
reasonably cheap rates. The rental charged for the occupation of any
lot, bouse, hut or building let for residential purposes in a location or
Native village, or the amount charged for accommodation in a Native
hostel. must be such as the Administrator considers fair and reason
able 1.However, section rg (4) of the Proclamation empowers an urban
local authority to remit in respect of any resident in such a location,
Native village or Native hostel, the whole or portion of any fees and
charges for rent, water, sanitar7, health, medical and other services,
payable by him or his employer .

207. In terms of section 6 (1) of Proclamation No. 56 of r951, the
right of residence in Native residential areas is exclusively reserved to
Natives, for no White person (save a police officer, an official or an
approved religious or social worker) may reside in such areas 3,nor may
members of the White group acquire any site or premises situated in a
Native village or location 4•Similarly, in terms of section 3r of the Pro
clamation, only a Native may hire a site for trading or business, and
conduct a trade or business in a Native residential area.
208. In view of the customs and way of life of the Native peoples, it
has in practice been found to be to their advantage to enable them to

reside in their own separate residential areas, in an atmosphere not al
together different from that of their homes in the reserves. Although
individual exceptions naturally exist, the majority are strangers to the
White man's way of life; to his moral code and customs and to the re
quirements of a European community and the European tradition and
views relating to the exercise and discharge of civilrights. The Native's
approach and concepts in these respects are generall;v moulded on a
different pattern and derive from other conditions, institutions, customs
and traditions.
209. It is not surprising, therefore, to find that other countries in
which conditions basically similar to those in South West Africa pre-

1 Proc. No. 56 of t95I (S.W.A.), sec. 19 (1). in ThLaws of South West At,,ica
I95I, Vol. XXX, p. 124.
2 Ibid., sect9 (4), p. 124.
3 Ibid., sec. 9 (7), p. 108.
• Ibid.• sec6,pp. 98-100. COUNTER-MEMOR[AL OF SOUTH AFRlCA 295

vail, have in the past also established separate Native townships and
residential areas.

210. In Southern Rhodesia, the Native Urban Locations Ordinance
of 1906 empowered the Administration to establish Native Locations and
to introduce in them a registration and pass system 1• The Private
Locations Ordinance of 1908 authorized the grant to owners of licences
to lease land to Natives for residential purposes, and it also enabled
a number of urban employers to erect barracks for the housing of their
1
employees on their property • But the result of these measures was
considered unsatisfactory, and the Land Apportionment Act of 1930,
as amended, provided for two alternatives: one was the creation by the
Government of Native Village Settlements outside municipal bounda
ries, the other the establishment of "Native Urban Areas" by local
Town Authorities 3• In 1946 there was enacted the comprehensive

Native (Urban Areas) Accommodation and Registration Act No. 6 of
1946 4• The large statutory undertakings, such as the Railways and Iron
and Steel Commissions, now bouse their own employees. In the case
of other undertakings the majority of Native em.ployeesare in practice
required to be accommodated in Native Urban Locations provided by
5
the local town authorities •
2II. The position that prevailed in Kenya in 1956 is stated as follows
by Hailey:

"The existing legislation makes provision for the establishment of
a Location in which only Africans may reside; except in the case of
those who are housed by their employers, they may live outside
the location only if they obtain a special permit. Africans may build

their own bouses, in conformity with municipal regulations, on plots
rented from the municipality, or they may rent single-roomed or
two-roomed quarters erected by it. Provision exists for eviction in
case of failure to pay rent, or of more than one conviction under
the Liquor Licensing Laws 6."

2I2. Sections 21, 23 (1) and 23A. of the Northern Rhodesian Urban
African Housing Ordinance of 1948, as amended, read as follows:

"2:t. Every local authority shall establish one or more African Hous
ing Areas for the accommodation of Africans employed within
the boundaries of the area under its control.
23. (1) A local authority shall provide or cause to be provided
suitable accommodation for the housing of every African
employed witWn the boundaries of the area under 1ts control

for whom accommodation is not provided in licensed private
prernises ...

1
Ord. No. 4 of 1906 (Southern Rhodesia), in Tü Statule Law o/ Sovlhern Rhodesia
(1239), Vol. Il, Title IX, Chap. 84, pp. 315-320.
Ord. No. 14 of 1908 (Southern Rhodesia), in Th, Statut, Law of Southern
Rhodesia (1939), Vol. II, Title IX, Chap. 83, pp. 311-314.
1 Act No. 30 of 1930 (Southern Rhodesia), as amended. secs. 29 and 32, in Tba
S'41uleLaw o/ Southern Rhodesia (1939),Vol. V,Title XXIV, Chap. 240, pp. 120-1u.
• Act No. 6 of 1946 (Southern Rhodesia), in The Statuu Law of Soulhern Rhodesia
z946 (1947). pp.6-30.
1 Hailey, An African Swn1ey (1957), pp. 572-514.
6 Ibid., p. 578. SOUTH WEST AFRICA

23A. A local authority with the consent of the Minister may au
thorise non-Africans to reside in an African Housing Area, in
premises to be provided for the purpose where the nature of
the services provided or the duties performed by such persons
in the African Housing Area make it desirable that they should
reside in the Area 1."

Regulation 130 of the Northern Rhodesian Townships Regulations
provides:
"(r) The local Authority may fix the boundaries of a native location
(hereinafter called a 'location'),alter the site thereofand define
the streets therein. In case of any such alteration of site, the
local Authority shall pay reasonable compensation to the owner
of any hut or dwelling-house that may req.uire to be removed.
(2) The local Authority may erect and maintam huts and dwelling
houses in the location, and may let such huts and dwelling
houses to natives 2:•
213. In South West Africa Respondent makes, as far as is practicable,
separate provision for each of the different Native groups, since the
majority of Natives prefer to live in ethnically grouped communities.
In an ethnie survey of the district of Windhoek, Günter Wagner remarks:

"The vast majority of Natives, however, live and prefer to live,
among their own people. As among the rural population, kinship
counts for more than friendship. In the comparatively few cases
where, e.g., a Coloured lives in the Bergdama section, he usually
does so because he has married a Bergdama woman and maintains
doser contacts with his wife'sthan his own kin 3."
Apart from the fact that the Natives are in favour of ethnie grouping,
there are a number of positive advantages to tlûs system:
(i) Schools can be sited so that they are within easy reach of the
children of the same ethnie group. Thus education of children in
their mother tangue is simplified and improved and the benefit
which they derive from education is enhanced accordingly.
(ii} The inhabitants choose as their leaders men who derive their in
fluence from their status in the group or tribe of the area of their
origin. Such leaders are recognized by the officiais and perform a
very useful function by maintaining discipline and insisting upon
law and order similar to that in their home environment. They also
enable better contact to be kept with the traditionally organized
groups in the homeland.
(iü) Opportunities exist for sheltered economic and social advancement
of individual Natives, who do not have to fear competition from
members of the White or Coloured groups.as far as the conducting
of businesses, the practising of trades, and the appointment to
officialpositions such as those of postmasters, police officers,school

1 Ord. No. 32 of 1948 (Norlhern Rhode$ia), as amended, secs. 21, 23 (1) and 23A.,
in The Laws o/ Northern Rhodesia, 1959 Edition, Vol. VII, Chap. 234, p. 6 (sec. 23A.
wa2sinsertedby Ord. No. 9 of 196o).
120,p.gIIO.. 130, in The Laws of Northen,Rhodesia,1963 Edition, Vol. IV, Chap.
J Wagner, G., Ethnie Svrvay of South West Afrit.o [unpublished), Part I, District
of Windhoek, para. 300, p. 104. COUNTER-MEMORIAL OF SOUTH AFRICA

principals, municipal officiais, etc., in Native residential areas are
concerned.
(iv) Control by local authorities issimplified and improved by the fac
tors mentioned in sub-raragraph (ii) above, since the system of
selecting persons in positions of authority from the group itself in
preference to members ofother groups, tends to promote hannonious
co-opera.tion and to reduce friction.
(v) Opportwiities exist for sheltered and progressive development of
the various ethnie groups in the administration of their own muni
cipal affairs.

E. Conclusion

214. The Applicants have, in their com\>laints regarding tights of
residence, singled out certain statutory proVJSionsinvolving restrictions

on Natives, without paying regard to the compensatory and reciprocity
aspects of the whole policy of which they fonn part, and without en
quiring whether that policy, on the whole, genuinely strives at the at
tainment of an equitable state of balance. The Applicants' approach is
apparently that there should be no restrictions applicable to any popula
tion group. Respondent has demonstrated that such an approach is
misguided and not in accord with the principles and purpose of the
mandate system.
2I5. The Applicants have further alleged that the restrictions con
cerned are "arbitrary" and "discriminatory" towards the Natives 1;
that in imposing them Respondent "has given consideration solely to the
convenience or advantage of the Mandatory government and of the
'European' citizens and residents of the Temtory" , and that Respon
dent-

"... h.as followedasystematic courseofpositive action whichthwarts
the well-being,inhib1tsthe socialprogress and frustra tes the develop
ment of the great majority of the population of the Territory in vital
and fund.amental aspects of their lives ".
These are allegations of fact, of which Applicants have offered no proof
other than inferences sought to be drawn from the statutory provisions
themselves, singled out as aforestated and isolated from the context of
the total policy of which they fonn part. Respondent submits that the
above survey of its policy, and of the context and reasons for the pro
visions in question, amply demonstrates that the Applicants' allegatlons
are unfounaed and without substance.

2 l, pua. 154 (3);p. 151.
! Ibitl., para154 (5),,p. 1.52. CHAPTER IV

FREEDOMOF MOVEMENT

A. Introductory

I. The allegations in paragraphs 146 to 153 of Chapter V of the Memo
rials1 are thus summarized by the Applicants:
"Liberty of movement ha.sbeen effectively and almost completely
denied to the 'Native' population of the Territory in a large number
and variety of ways hereinabove more particularly described.

The U.N. Committee on South West Africa, in rendenng its report
to the Fourteenth Session of the General Assembly în 1959, summed
up the situation by stressing the 'intricate system by which the
free movement of the "Non-European" population and the "Native"
population in particular is restricted and controlled in the Territory
of South West Africa'. The Committee emphasized that there had
been no indication of any relaxation in the system of control during
r959. The Committee went on to express 'its grave concern over the
unwarranted restrictions, ba.sed on race or colour, placed on the
freedom of movement of the "Native" population of South West

Africa, who form the overwhelming majority of the total population'
of the Territory 2."
2. The Applicants further allege:
"... in the entire complex of ... tight restrictions upon ... (the) ...

movement (of Natives), the Mandatory ha.s given consideration
solely tothe convenience or advantage of the Mandatory government
and of the 'European' citizens and residents of the Territory. The
Mandatory ha.s uniformly failed to promote the material and moral
well-being, the social yrogress and the development of overwhelm
ingly the larger part o the inhabitants of the Territory ... in terms
of ... their freedom of movement. On the contrary, by Iaw and by
practice, the Mandatory has followed a sr.stematic course of positive
action which thwarts the well-being, inhibits the social progress and
frustrates the development of the great majority of the population
3
of the Territory in vital and fundamental aspects of their lives ."
3. While it is conceded that the freedom of movement of Natives in
South West Africa is in certain respects restricted by laws-generally
described as pass laws-Respondent denies that such freedom ha.s been
"almost completely denied to the 'Native' population of the Territory";
that the system controUing the movement of Natives is "intricate", or
that the restrictions are "unwarranted" and "based on race or colour".

Respondent also denies that in enacting the said laws it gave considera
tion only to the convenience or advantage of "the Mandatory Govern
ment and of the 'European' citizens and residents of the Temtory".

1 I,pp. 148-151.
2 Ibid., para.154 (4)p. 151.
5 Ibid., para.154 (5)pp. 151-152. COl)NTER·MEMORIAL OF SOUTH AFRICA

4. As will be demonstrated, the Applicants' summary of the position
is misleading, in that it creates the impression that statutory limitations
on freedom of movement are applicable to Natives only. On the contrary,
and for reasons that will become apparent, limitations have also .been
imposed upon the movement of \Vhite and Coloured persans.
5. By reason of the fact that the Native groups have not yet succeeded
in creating important points of economic growth in their own areas
which offer opportunities of employment to themselves and to members
of other groups, there has been no need to limit and regulate in detail

the movement of other groups in Native reserves. On the other hand,
the area occupied by the White group has, since the assumption of the
Mandate, offered such extensive opportunities of emp1oyment to mem
bers ofother groups that even extra-territorial Natives have been flocking
to this area. This has made it necessary to create machinery for the control
ofentry into, and movement in, this area in order to protect the interests
ofthe settled \Vhite and non-White cornmunities.
6. If the movement of members of other groups in the area occupied
by the White group were not controlled, it would necessarily lead to a

concentration in and around the towns and villages of tbis area of a large
number of Natives, for many of whom there would be no employment,
no adequate housing, and no other necessary facilities. This would in
turn lead to the creation of sium areas and ail their attendant evils 1•
. 7. In what follows, Respondent will demonstrate that when the restric
tions imposed on the freedom of movement of the inhabitants of South
West Africa are judged against the background of socio-economic con
ditions in the Territory, it can not be said that the obligations imposed
by the Mandate have been violated.

8. Since the pass or permit system as applied in the particular circum
stances of South West Africa has been influenced by experience gained
in South Africa, it will be necessary to trace briefly the history of the
system in South Africa.

B. The Pass System in South Africa

I.GENERAL

9. The system of control of the movement of Natives in the White
areas of South Africa by means of passes or permits has undergone a
long process of development from the various different systems pre
viously in operation ta a relatively simple and unifonn system for the
whole of the Republic.
10. During a period of more than a century this problem of control
has received the attention of several commissions of enquiry and of many
experienced administrators ail over the country and it has, furthermore,
since Union been under constant consideration by the Department of
Native Affairs (now Bantu Administration and Development). Questions

repeatedly considered were, on the one hand, the possibility of abolishing
the system altogether, and, on the other hand, the retention of the system
but with elimination of cumbersome controls, duplication, and un
necessary restrictions.
1
Vide Chap. III, paras. 163 et seq., supra.300 SOUTH WEST AFRICA

These enquiries and experience over a long period have convinced
Respondent that à system of control is inevitable in a multi-group coun

try like South Africa with so many conflicting group interests, that it is
to the advantage of ail the groups, and that it is essential for good and
healthy relations.

II. The system which is in the process of being applied in the Republic
is based on the issue to every adult of an identification card. Movement
of members of one group into and in the area of another group will, as
envisaged in this system, be controlled by the endorsement of such iden

tification cards.

Il. THE DEVELOPMENT OF THE PASS SYSTEM BEFORE UNION

r2. It is unnecessary to trace in <letailthe development of the d.ifferent

pass systems in South Africa before Union. A brief acconnt will indicate
that it was considered necessary in ail parts of South Africa to exercise
some control over the movement of Natives.

13. In Natal provisfon was made in 1884 for inward and outward
passes 1, and from 1901 identification passes had to be carried by Native
servants, while employers had to keep a pass register and to enter a copy
of each pass therein 2•

14. In the South African Republic (Transvaal) Article 37 of a resolu
tion of the Volksraad of 17 September 1858 3 provided that no non
European • could travel without a pass signed by a field-cornet. This

provision was subsequently relaxed 5. but in 1895 both a general pass
law 6 and a law to control entry into, and egress from·,certain proclaimed
gold areas 7 were passed. In terms of the first of these measures a Native
required a pass from his employer when moving about in his district of

residence, and from a state official when moving beyond that district,
15. In the Orange Free State provision was made for a greater variety
of documents in the nature of passes than anywhere else in South Africa.
8
So, for instance, there were inward and outward passes , travelling

1 Handbook on Race Relations in South Africa, ed. by E. Hellmann (1949), p. 277.
2
Vide Act No. ,49of 1901 (Natal). secs. 5, 6 and 12, inActs of the Parlia,runt of
the Colony of Natal, passed in the Fi/th Session of the Second Colonial Parliament,
·I90I, pp. 169-170 and Act No. 3 o{ 1904 (Natal), in Acts of the Colony of Natal,
passed in Second Session of the Fourth Colonial Par{iament, r904, pp. 6-7.
1 Vide Eybers, G. W. (ed.), Select Constitutfonal Docununts Jl{ustrating South
African History. I795-I9IO (1918), p. ,413.
+ lt is true that the word "Kleurling" (Coloured) appears in the Article, but from
the context it is clear thatthword must be construed to includll "Naturel" {Native).
' Law No. 6 of 1880 (South African Republic), in De Locale Wetten der Zuid

A/rikaansche Republiek I849-r885 (l887), pp. 748-751.
~ Law No. 22 of 1895 (South African Republic), in_De Locale Wett,m e• Volks
J"aadsbesluitender Zuid-A/r. Republ~k. benevens de Proclamaties van ZHEd. den
Staatspresident en de belangrijke Gouvernements-Kennisgevingen. gedurende het
jaar 1895 (1896), pp. 228-231.
7 Law No. 23 of 1895 (South African Republic). in De Locale Wetten en Volks
f'aadsbesluiten der Zuid-Aj,-. Republiek (1896), pp. 232-244.
8 Vide Handbook on R4Ce Relations in South Af,-ica (1949), p. 280. COUNTER-MEMORJAL OF SOUTH AFRICA JOI

passes for all non-Europeans 1, urban residential passes 2,and rural resi
3
dential passes •
I6. In the Cape Province there was much vacillation of policy from
I809, when a Proclamation of that year required every Hottentot to
4
obtain a certificate when leaving his fixed place of abode , to approxi
mately I887, when most of the pass laws fell into disuse 5• It may be
Pointed out, however, that Act No. 40 of 1902 (Cape of Good Hope)
made provision for passes for Natives leaving and entering urban loca
tions 6, and that Act No. 30 of 1895 (Cape of Good Hope} empowered

local authorities to make regulations prohibiting the presence without
a pass of unexempted Natives in public places between 9 p.m. and 4 a.m. 7
17. M(?stof the efforts of administrations and of commissions which

have since I900 enquired into the operation of the pass laws, have been
directed towards the simplification of existing systems, rather than their
abolition. Thus Lord Milner, when High Commissioner for South Africa
after the Anglo-Boer War (1899-1902), in reply to representations by

the Aborigines Protection Society for the abolition of pass laws, said:
"The root idea of the old Pass Law was not a wrong one, If aborig
inal natives are to corne and go in large numbers in search of labour,
and to reside for considerable periods in the midst of a white com

munity, there must be some passport system, else the place will be a
pandemonium. Alike for the protection of the natives and for the
protection of the whites, it is absolutely essentia.lto have some rea
sonablearrangements by which the incoming native can be identified,
8
and his movements traced ."
It is si~nificant that Lord Milner found it necessary to retain nearly all
the restnctions on movement of Natives imposed by the old Transvaal

legislature, at least as far as labour districts were concerned.
I8. Lord Milner, seeking to introduce a comprehensive Native policy
for South Africa as a whole, in I903 appointed the South African Native

Affairs Commission. This Commission was under the chairmanship of
Sir Godfrey Lagden, Commissioner of Native Affairs, who had previously
dealt with the pass and labour problems in the Transvaal, and who 1s
recorded to have said:

"I am convinced of the necessity of ail natives being compelled to
carry passes as much for the security and protection of themselves
as for the white people 9."

1 Vide Handbock on Race Relations in South Africa (1949), p. 280.
2 Ibid.; videalso Law No. 8 of 1893 (Orange Free State), sec. 2, in The Statute
Law of the Orange River Colony (1907), p. 220,
3 Vide Handbook on Race Relations in 5011thAfrica (1949), p. 280 and Law No. 8

of 1899 (Orange Free State), sec. 1, in The Statute Law of theO,-ange Rive,-Colony
(1907), p. 265.
• Vide Egerton, H. E., A Short Histo;y of British Colonial Policy(6th ed.), p.271.
~ Vide Handbook on Race Relations in South Africa (1949), pp. 276-277.
6 Act No. 40 of 1902 (Cape of Good Hope), sec. II (13), in Stat141esof the Colony
of the Cape of Good Hope passed by Parliament during the Sessions r9oz-r906, Vol. V
(1906), pp. 4515-4516.
7 Act No. 30 of i895 (Cape of Good Hope}, sec. 2, in Statutesof tM Capeo/Good
Hope 165a.z895, Vol. IU, z887·z895 (1895), p. 3531.
e Cd. 904, pp. 23-24.
9
Ibid,, p.20.302 SOUTH WEST AFRICA

The Commission was specifically instructed to compare the situation
in the Cape and Natal with that in the two former Republics of the

Transvaal and the Orange Free State. The Commission considered that
a pass system was necessary in most of the areas covered, though it
recommended, inter alia, that there should be less hindrance to Natives
by local regulations, less irritating and needless delay at border stations
and other points .

III. THE DEVELOPMENT OF THE PASS SYSTEM AFTER UNION 2

19. In 1923 the Natives (Urban Areas) Act 3 repealed some of the
earlier pass laws and regulations in force in the Cape, Transvaal and
the Orange Free State, and provided for a considerable measure of
uniformity in the pass regulations of the various provinces applicable
to labour districts and proclaimed urban areas. In its original form,
section 12 of the Act, inter alia, required every Native entering an urban:
area to report his arrivai and to obtain written permission to remain in

such area, and furthermore required any Native not finding work within
a prescribed period to leave the area. Natives holding letters of exemp
tion, registered parliamentary voters in the Cape, landowners, chiefs,
headmen, and certain teachers, clergymen· and interpreters were
exempted 4•
20. The report of the Native Economie Commission, published in

1932, contained the following comments in a section dealing with Pass
Laws and Exemption:
"72+ Reasons generally given for the enforcement of the system
are:

(1) It affords a protection to the rural Native who cornes into sur
roundings which are entirely new and strange to hlm;
(2) in so far as the pass represents a service contract it affords a
further means of protection to the Native;
(3) the pass is necessary as a means of identification;
(.) it assists the employer in preventing strange Natives from living
or sleeping on bis property ;

6) it prevents absconding from farms or other forms of employment;
{ ) in general it prevents crime;
7) it affords some means of stopping wholesale entry of Natives into
towns, where, ifnot required to carry passes, a large number wilI
deliberately refrain from being employed and will loaf and
ultimately live on their wits.

725. These are reasons of practical convenience affecting the good
order and well-being of the community, but many people question
whether they are suffi.dent to justify the imposition of such drastic
restrictions on liberty of movement as the pass laws require. In
our opinion the reason and justification for them must be looked

1 Vide South African Native AOairs Commission x903.5 (1904·1905),Vol. 1, Report
oftlu Commission, paras. 264-268,pp. 50.51.
_:It is not Respondent's intention to deafully with thls development, but oniy
to touch on sorne of its moreimportant facets.
' Act No. 21 of 1923, in Statutes of tUHion of South Africa z9z3, pp. 140-197.
4 Ibid., sec12, pp. 158·164. COUNTER-MEMORIAL OF SOUTH AFRICA
303

forin the fact of the contact between the lùgher European civilization
and the primitive indigenous society of the Native ...
726. As regards the town problem anyone who has had the

opportunity wlùch the Commission had, of inspecting siums of the
larger towns of the Union, might hesitate to assent to a statement
that no control of entrance to and residence in the towns by Natives
is necessary 1."
21. In 1934 a Proclamation applying to the Orange Free State and

the Transvaal, relaxed some of the old pass laws by making it easier for
Natives to obtain certificates of exemption 2• In 1945 the various pass
provisions relating to urban areas were consolidated in the Natives
(Urban Areas) Consolidation Act 3, which, as regards Natives in urban
areas, replaced Act No. 21 of 1923 as .the basic control measure.

22. 1'he report of a Commission, under the chairmanship of Mr.
Justice Fagan, which had been appointed to "investigate the Native
pass laws, to examine the operation of the Natives (Urban Areas) Act
and if necessary to draft a new Bill", was published in 1948 4.The Com
mission reaffirmed the basic principles of the said Act, but recommended
simplification of the then existing pass laws. The main proposais of the

Commission with reference to influx control and freedom of movement
have been summarized as follows:
"The Commission felt that control of the iarge-scale movement
of Natives and regulation to maintain racial separation were neces

sary. It advised the establishment of a system of country-wide
but centrally-organized labour bureaux. With the object of gradually
doing away with passes, the Commission recommended that identity
cards be issued to voluntary applicants (men and women over the
age of 18 years), which would allow a central record to be kept of
the whereabouts of the bearers. A standing committee of represent

atives of the Departments of Native Affairs arid of Justice should
consider from time to time how far the identity card system, the sta
bilization and improvement of the Natives' position, and the elimina
tion of criminal elements would permit the removal of varions
pass laws.
The Commission also devised a plan whereby the non-production
of a document would not be an offence; a police officer, if not satis

fied that a particular pass law had been complied with and if in
reasonable doubt as to whether a summons could be served on a
Native and whether the Native would appear in answer toit, could
arrest a Native, on whom the onus would be to prove he had com
plied with the pass laws.
In the Commission's view, the registration of service contracts

1 U.G. 22-1932, pp. 105-1o6.
2 P,oc. No. 150 of 1934 (S.A.),in The Union ofSouth Africa Government Gazette,
Vol. XCVII, No. 2216 (17 Aug. 1934), pp. 383-386. This Proclamation was pro
mulgated by virtue ofthe provisionsof Act No. 38 of 1927 (inStatutes othe Union
of South A/rica 1:927,Vol. I,pp. 314-351} which empowered the Central Govera
ment to amend or repeal pass laws and to make fegulations relating to passes and
pass areas.
3 Vide Act No. 25 of 1945, secs.23, 31and 38, in Statutesof the Union of South
Africa r945, pp. 154-163, 174-176, 1go-200.
4 U.G. 28-1948.304 SOUTH WEST AFRICA

had many advantages, and indeed might be extended to ail races
for workers whose cash wages did not exceed [4 per week. Those
eaming over f 4 per week did not need protection. The system should
be extended to the rural areas.
Were its recommendations to be accepted, the Commission felt
that possession of an identity card could be added to the list of

exemptions-save that service contract registration should apply
to ail Natives earning up to [4 per week. The identitY. card system
would provide better machinery for tracing and identtfying Natives
than any of the existing passes 1."
23. A much simplified "pass system" was introduced in I952 with the
enactment of the Natives (Abolition of Passes and Co-ordination of
Documents) Act, the purpose of whlch was: "To repeal the laws relating
to the carrying of passes by natives; to provide for the issue of reference
books to natives ... 2_''
In terms of this Act every Native who has attained the age of 16

years is required to be in possession of a reference book incorporating
an identity card and particulars of tax payments, pennits and exemp
tions. The Act also makes it compulsory for ail employers to report the
engagement or discharge of Native employees, and establishes a Native
Affairs Central Reference Bureau which keeps a record of ail Natives to
whom reference books have been issued. A reference book relieves the
holder from carrying other documents, including passes, as provided
for in earlier pass laws.
Section 16 of the Act specifically provides that the Govemor-General
(now the State President) may, by proclamation in the Gazette, and
subject to such conditions, modifications and exceptions as may be
prescribed, apply the provisions of the Act to South West Africa 3•

24. An official memorandum issued by the Department of Native
Affairs shortly after Act No. 67 of I952 was passed, described the main
advantages of the new system as follows:
'The object of this Act is to repeal the various Pass Laws which
have not effectively controlled the movement of Natives in South
Africa, and to provide each Native over 16 years of age with a Ref

erence Book in which will be incorporated the identity card with
photograph prescribed by the Population Registration Act, 1950 ...
The advantage to the Native of the new system, apart from the
freedom of movement that it confers, is that he is not required to
carry a number of separate documents which he cannot readily
prove are actually his own, and instead in one compact booklet
there will be contained his name, identity number, photograph,
name and address of employer, particulars of tax payments, and
any other authorities or concessions that might have been granted
to him.
The advantage to the employer is that by comparing the photo
graph with the holder of the reference book, he will bereasonably sure
that there has been no impersonation and, should he later wish

to contact the Native for any purpose, the Department of Native

1 Handbook on Race Relations in South Afric(1949),footnote :z,p.291.
~ Act No. 67 of r952, Title, in Statutes of the Union of South Africa r952, p. 1or3.
3 Act No. 67 of 1952op. cil., sec. p.1025. COUNTER-MEMORIAL OF SOUTH AFRICA 305

Affairs will in most cases be able to supply his latest address. The
employer must, however, keep a note of the Native's identity
number. The employer will also be certain that he is not engaging
someone who is a deserter, or that his own employees may unlawfully
leave his service ...
In conclusion it should be noted that the Reference Book is not
a 'Pass' book as the pass laws do not apply to the holder thereof.
It proves who the holder is and what rights and privileges h~
enjoys, particularly in European areas 1.''

25. Most of the provisions of the Act have stood the test of practice
and are still in force. Apart from its primary purposes, the present
system of identiftcation and control of movement has been found to
have many practical advantages for the majority of Natives. Sorne of
these advantages are:
(a) Impersonation and fraud, not infrequent in the past, in regard to
post office and other savings accounts held by Natives, have now
become virtually impossible.
(b) The administration of deceased estates of Natives, which formerly
often gave rise to grave problems, owing, for example, to the diffi

culty of tracing illiterate heirs and relatives, has been made easier.
(c) The daims of Natives entitled to payment of pensions, disability
allowances, etc., can now be more easily established and recorded.
(d) The present uniform system of identification has rendered it possible
to make the registration of Native births and deaths compulsory.
Before the introduction of the present system such registration was
hardly practicable.
(e) Reference books provide a positive means of determining age,
often a subject of dispute in the courts.
(/} Natives who are entitled to Workmen's Compensation now have
less difficulty in proving theirdaims, and delays in payment can be
reduced to a minimum.
(g) The same applies to compensation payments for sufferers from

miner's phtlùsis. Long delays were frequent in the past, as such
Natives often returned to their homes in the Native territories
before their cases could be disposed of, making it difficult to trace
them through imperfect district records.
(h) Identification has been made much easier in the case of deaths or
serious accidents. Relatives can also now be traced and notified
with far less trouble than in the past.
26. Considering the simplicity of the system as applied in South Africa
today, it would hardly be possible to go further in the direction of
freedom of movement wlùle retaining, at the same time, essential and

effective measures of control over the influx by Natives into European
and Native urban residential areas.
27. If regard be had to the long history of the pass system in South
Africa, and if it is further taken into account that one of the grounds on
which Respondent founded its daim to South West Africa at the Peace
Conference was that it would be to the advantage of the indigenous
population if Respondent applied its Native policy to South West

l Memo,oandum on lm Natives (Abolition of P/.i3suAtl, x952 (unpublishetl),
pp. I-2.306 SOUTH WEST AFRICA

Africa 1, it must be assumed that when the Mandate was conferred it

was within the contemplation of ail parties concerned that Resp<?ndent
was likely to apply to the Territory a pass po1icyin accordance with local
conditions.

C. The Development of the Pass or Permit System in South West Africa

I. THE GERMAN PASS SYSTEM

28. A German Imperia! Ordinance, dated 10 April 1898, made
provision for establishment of reserves for the indigenous groups 2• In
terms of tlùs Ordinance persans who were not members of the group for
whom a particular reserve was established, were not allowed, without
the consent of the Chief Magistrate, to enter such a reserve or to reside

or carry on business therein.
An Ordinance of the Governor of the Territory, dated 25 January
1906, prohibited ail persans, save missionaries and inhabitants of Ovam
boland, from entering that area save with the consent of the Imperia!
Govemor. Entry into the Caprivi ZipfeJ without a permit was also

strictly forbidden 3.
29. After the rebellion of 1904-1907 the German authorities imposed
a rigid pass or permit system for the Natives of the Territory. An Ordi

nance of the Governor, dated 18 August 1907 4, compeUed al1 Natives
in the Police Zone-with the exception of children under the age of
seven-to carry passes in the form of metal registration badges. Natives
were required to have these badges with them at all times, and to pro
duce them whenever requested to do so by any White person. If a Native

wished to leave the district in which he resided, he had to obtain a
travelling pass from a police station 5•
Natives were also subject to curfew regulations. By virtue of section 8
of the above Ordinance, which required all local authorities to create
the necessary maclùnery for the purpose, regulations were made for

bidding Natives to leave their locations between 9 o'clock in the evening
and 4 o'clock in the morning 6•
30. It should be noted that Europeans-and the Rehoboth Basters,

while they resided in the Rehoboth district-were not subject to these
regulations, but other restrictions were placed on their freedom of move-

1 Vide Book IV, Chap. IV, para, 36, of this Counter·Memorial.
i Hesse, H., Die Land/rage und die Frage der Rechtsgültigkûl der Ko>izessionen in
Südwestafrika: Ein Bcitrag zur wirtschaftlichen und finanziellen Entwickelung des
Schutzgebietes (1906),Il. Teil, pp. 94-95.
3 Vide Die deutsche Kolo,iial-Gesetzgebung, Samrnlung der auf die deutschen
Schutzgebiete bezüglichen Gesetze, Verordnungen, Erlasse und internationalen

Vercinbarungen mit Anmerkungen, Sachregister, Zehnter Band (Jahrgang 1906),
pp. 25-27.
• Ibid., Elfter Band (Jahrgang 1907), pp. 347-349.
5 Secs. 1, 2,3 and 10 of the Ordinance.
6 Vide, e.g., the Notice dated 30 Nov. 1907 in respect of Swakopmund, in Die
deutsche Kolonial-Gesetzgebung, Elfter Band (Jahrgang 1907), para. 290, p. 421 and
the Notice dated 3 Dec. 1910 in respect of Grootfontein,in Amtsblatt für dasSchut~
gebi~t Deulsch-Südwestalrika, I. Jahrgang, No. 20 (15. Januar 19u), p. 26o.- ---- --- ---------------

COUNTER-MEMORIAL OF SOUTH AFRICA 307

ment. So, for instance, Europeans were barred from entering Native
locations at night-in the case of Karibib, Grootfontein and Tsumeb,
from entering at all-without written permission from the Police 1•

II. THE PASS SYSTEM DURING THE PERIOD 1916-1920

31. When the South African forces occupied South West Africa many
Natives in the Police Zone were unemployed, and were roaming
over the Territory as vagrants. In many cases familles had been
broken up and there was an almost entîre absence of any form of tribal
control 2.

32. In the circumstances which prevailed the authorities were com
pelled to introduce control measures for the purpose of restoring law
and order in the Police Zone. A memorandum signed by the Deputy
Secretary, Windhoek, on 3 August 1916, retained the main featurc of the

German system, viz., that Natives should carry passes, but made it
applicable only to males above the age of 14, and, in urban areas, also
to females over 14 years.
The memorandum envisaged three kinds of passes:

(a) Passes for Natives in employment, which were to serve also as
contracts of service.
(b) Certificates of exemption, intended mainly for Natives having
visible means of support.
(c) Passes to seek work, intended for Natives who did not possess

certificates of exemption and were not in employment 3.
It was also provided that a Native in employment had to obtain a
travelling pass from the Police when travelling for his own purposes, and

from his employer when proceeding in the latter's service.
33. The above provisions applied only to the Police Zone. In regard
to Ovamboland, the provisions of Martial Law Regulation No. 30 pro- •

hibited the movement of persons, other than government officers and
Native residents of Ovamboland, into and from that territory without
special pennits 4- Persons other than government offi.cers also required
a special permit to enter the Caprivi Zipfel.

34. No legislation was passed to enforce this system, with the result
that it was not strictly or uniformly applied 5 •

l Vide the Police Ordinance dated 14 Nov. 1907 in Die deutsche Kolonial·Gesetz.
1ebung, Zwôlfter Band (Jahrgang 1908), pp. 26-27 and the Local Ordinance dated
3 Dec. 1910. in A mstblatifiirdas Schtdzgebiet Deutsch-Südwestafrika, l. Jahrgang,
No. 20 (15.Januar 19u), p. 259.
2 Vide Chap. II, para. 13,supa.
1
Pfoucwau of South·Wut Africa, Native Affairs: Mono,oand«m c:oncerning (a)
the Laws affecting the Native population in the Protectorate of South·West A frica;
(b) the practice followed by the present Administration in carrying out the pro11isions
of thest Laws; and (c} the Native pol-icy generally of the Protectora.teAdministration
(1916), paras. 1-14,pp. 6-7.
• Vide G.N. No. 16 of 1916 (S.W.A.), in Official Gazette of the Protectorate of
Soi«h West Africain Milita,-y Occupation atu Union For~s. No. 7 (15 Mar. 1916),
p. 3.
f Vide para. 48, infra.308 SOUTH WEST AFIUCA

III. THE SYSTEM INTRODUCED AFTER 1920

(a) Introductory

35. To appreciate the necessity for introducing a system of control
by means of passes or permits, regard must be had to the socio-economic
effect of the abovc-mentioned disintegration of tribal life in the Police
Zone.
In the life of the indigenous peoples all activities centred primarily
around the existence and well-being of the tribal group. Within the
group there was assigned to each individual hls appropriate role, deter
mined according to sex, age, position and kinship relations. In such a
society people are primarily responsible to a social code, which provides
its own sanctions controlling the behaviour of individuals.

36. The destruction of tribalism, and the end of their traditional
form of communal living, forced the Natives concerned to fend for them
selves in circumstances foreign to their customs and background. The
sanctions controlling the behaviour of individuals were greatly impaired,
and substitutes not yet properly appreciated. The discipline of regular
labour, which involves observance of obligations towards an employer,
not by reason of any traditional authority vested in him, but on account
of a relationship govemed by contract, was unfamiliar to the Natives.
For their subsistence economy had not called for regular work, but merely
forthe performance of tasks necessary to provide for a living from day
to day.

37. Another relevant characteristic of the Natives concemed was their
nomadic habits. Basically, the Dama, the Herero and the Nama were
nomads who had by no means settled down at the tirne of inception
ofthe Mandate 1.
38. By reason of the above, many Natives, in their detribalized state,
were inclined to drift from one place to another, taking up employment
for only Jimited periods, and moving on again when their immediate
needs had been satisfied. Many existed merely on what they could take
from others. A situation thus arose which thrcatened the safety and
peaceful existence of ail law-abiding inhabitants of the Police Zone.

39. To protect Natives living in the reserves against encroachment
by others, it was found necessary to introduce measures controlling
entry into, and movement in, such reserves.
As regards the area occupied by the White group, where opportunities
of employment in a modem economy and the attractions of town life
would naturally be conducive to an influx of Natives, it was particularly
necessary to create a system of control regulating entry into, and move
ment in, such area.

(b} Control of Movement into and in Native Reserves

40. Regulation II (r) of the regulations applicable to the Berseba
and Bondels Reserves provides:
"No person shall encamp, reside or be within, or enter the Reserve
without a written permit so to do, signed by the Superintendent

l Vide Book III, Chap. II, of tbis Counter-Memorial. COUNTER·MEMORIAL OF SOUTH AFRICA

thereof or the Native Commissione1 and any person not being the
lawful holder of such a permit then in force who shall encamp,
reside or be within, or enter the Reserve shall except as hereinafter
provided, be guilty of an offence 1.''
41. In terms of regulation n (3) any Native may enter these reserves

for the purpose of obtaining from the superintendent a written permit
to encamp, reside or be within the reserves, provided that he proceeds
to the superintendent's office to obtain such permit within 48 hours
of havin~ entered the reserve. It is further provided that no building
of any kind whatsoever may be erected in these reserves by any person
other than a Native 2•
Almost identical regulations apply to the other Native reserves in
3
the Police Zone.
42. Section 2 (r) of the Prohlbited Areas Proclamation of 1928
provides:

"No person, not being a person employed by the Administration
or the Union Government, and travelling on public service, or a
native inhabitant of the District of Ovambola.nd as created and
defined by Proclamation of the Administrator dated the second
day of September, 1920 (Proclamation No. 40 of 19:20),as altered

from time to time, shall enter or reside or be in the said Dis
trict, as altered from time to time, unless he is in possession of a
permit issued to him either by or on behalf of the Secretary for
South West Africa or by the Officerin Charge of Native Affairs at
Ondongua 5'."

Section 3 of the Proclamation, which applies to the Okavango Native
Territory, the Kaokoveld, the Eastern Caprivi Zipfel and the Bushman
area beyond the Police Zone, contains similar provisions, except that
permits may be issued only by or on behalf of the Secretary for South
West Africa 6.

43. It will be observed from the above provisions that entry into,
and movement in, every Native reserve are strictly controlled. As regards
the reserves in the Police Zone, there is a measure of differentiation
between White and Coloured persons on the one hand, and Natives
on the other, in that the latter may enter a reserve for the purpose of
obtaining permits, while the former must first obtain permits before

entering any reserve.
44. These measures of control were not only designed to protect the

1 G.N. No. JJO of 1938 (S.W.A.), reg. 11 (1), in The Laws of South West Ajrica
r938. Vol. XVII, p. 344.
2G.N. No. 239 of 1930 (S.W.A.), reg. I5, in The Laws of South West Af>'itaI9JO,
p. -464.
3 Vide G.N. No. 68 of 1924 (S.W.A.), in The Laws of South West Africa r924,
pp. 57--63.
4 Now the Secretary for Bantu Administration and Development, vide Ord.
No. 4 of 1955 (S.W ..A.)sec. 3(1) (a), inThe Laws ofSouth West AJ,ica r955, Vol.
XXXIV, p. 530.
5 P,oc. No. 26 of 1928 (S.W.A.), sec. 2 (1).The Laws ofSouth West Ajrica r928,
p. 106, as amended by sec. 2 and item 4 of the First Schedule of Ord. No. 2 of 1955
(S.W.A.), inThe Laws of South West Africa r955, Vol. XXXIV, p.530.
6 Ibid., sec3,pp. 1o6-w8.310 SOUTH WEST AFRICA

inhabitants of reserves against encroachments by others 1,but they in
fact serve that purpose, and thus promote the interests of the inhabitants
concerned.

45. Paragraph 14 of the Schedule to Proclamation No. 28 of 1923

(S.W.A.) provides: .
"No person other than a 1awful resident of the Gehiet or a person
bona fi.detravelling through the Gehiet shall be pennitted to enter
the Gebiet save with the written consent of the Magistrate of the

District of Rehoboth who shall in every case prior to according
or refusing such permission as the case may be consult with the
Raad of the Rehoboth Community. An appeal from the decision
of the Magistrate shall lie to the Administrator. Any person who
unlawfully enters the Gebiet without the required permission shall
be liable to be punished and to be removed therefrom by warrant
2
under the hand of the Magistrate of the District of Rehoboth ."
46. By virtue of section S of Proclamation No. 9 of 1928 (S.W.A.) the
above provisions are not applicable to:

"(a) ... any officer of the Administration of the Territory or the
Railways and Harbours Administration for the purpose of
carrying out his official duties, or of any memher of the house
hold of any such officer accompanying him; or
(b) ... any person bona fide searching for stock suspected to have

strayed or been stolen; or
(c) ... any person for the purpose bona fi.de of transacting any
business with any officer of the Administration of the Territory
or the South African Railways and Harbours Administration
connected with the official duties of such officer 3."

47. In terms of Proclamation No. 36 of 1936 {S.W.A.) the provisions of
Proclamation No. II of 1922 (S.W.A.)-which will be dealt with herein
after -were, with certain modifications, extended to the Rehoboth
Gebiet 5•The effect of these modifications is, inter alia, that a member of
the Rehoboth Baster community has the same authority to issue a pass

to his Native employee for travelling in the Gebietas has a White employer
in respect of his Native employee in the Police Zone 6•

(d) Control of Movement into and in the Area occupied by the White Croup

48. A Commission appointed by the Administrator during 1920 to
enquire into the matter of Native locations, reserves and labour, made
the following observations:

1 Vide para. 39, supra.
2 Proc. No. 28 of 1923 (S.W.A.), Schedule, para. 14, in The Laws of South West
Ajrica I92J, p. 56. Vide also U.G. 41-I926, p. 102.
3 Proc. No. 9 of 1928 (S.W.A.), sec. 5, The Laws ofSouth West Africa 1928, p. 46.
4 Vide paras. 62 et seq., infra.
5 Froc. No. 11 of 1922 (S.W.A.), in The Laws of South West Africa 1915-192:1,
pp. 749-754 and Proc. No. 36 of 1936 (S.W.A.), sec.2 and Schedule I, in The Laws of
South West Africa 1936, Vol. XV, p. 104.
6 Proc. No. 36 of 1936 (S.W.A.), Scheduie I (2), inThe Laws of South West Africo
1936, Vol. XV, p. 104. COUNTER-MEMORIAL OF SOUTH AFRICA JII

"Until about a year a.gothe administration of native affairs was
to a great extent regulated by the provisions of a memorandum,
and we feel sure that had these been observed in spirit as well as
letter the question of native control would have been on a much
better footing than it is today. The absence of a pass law and the
promulgation of the Master and Servant Proclamation of 1920 have
rendered its provisions nugatory, and created a position under

which it is practically impossible to exercise any satisfactory control.
The written contract the visiting passas well as the pass to seek for
employment have been dispensed with and it cannot now be readily
ascertained [whether a Native] found travelling along a road or
across country is a vagrant or not ...
To ensure ... control the enactment of a pass law will be neces

sary, but unless its provisions are strictly enforced and unifonnly
carried out and unless the public render reasonable assistance, there
can be little hope of satisfactory results being obtained 1."
The Commission recommended that I?rovision be made for the follow

ing passes: employers' passes for Natives travelling on their masters'
business; official travelling passes for Natives proceeding to places of
employment or going out in search of work; visiting passes, and residen
tial passes applicable to Native reserves 2•
49. It is against this background that there was passed in 1922 a

Proclamation requiring Natives to obtain or carry passes under certain
circumstances 3.During the ensuing years it was also found necessary to
require Natives from the northern territories to carry identification
passes while in the Police Zone, and to enact specificprovisions controlling
the entry of Natives into urban and proclaimed areas.
Ali these provisions are referred to in paragraphs 146 to 153 of Chapter

V of the Memorials 4, and they will be dealt with below in the specific
replies to be furnished to the allegations of the Applicants s.

(e) Contral of Movement into and in Native Urban Residential Areas

50. Experience has shown that in order to avoid group friction, slum

conditions and crime, it is necessary to control the entry of non-residents
into Native urban residential areas. Provision for such control has conse
quently been made in the regulations of local authorities, as the following
examples will illustrate:

(i)Regulation 31 (II) of the Native Location Regulations for Walvis
Bay provides:
"Any persan desiring temporarily to enter, be or remain within
the location, shall obtain a permit, hereinafter called a visitor's
permit, from the Superintendent or from another person duly au

thorised by the Superintendent to issue such pennits during the

1
Report of Native Reserves Commission (S.W.A.), 8 June 1921 (unpublished),
pp. 14-17.
2Ibid., pp. I6·17.
3 Proc. No. IIof 1922 (S.W.A.). Vith para.62, infra.
4 1,pp. 148-151.
5 Vide paras.62 et seq., infra.312 SOUTH WEST AFRICA

absence of the Superintendent. Any :r.erson found in the location
without a visitor's pernût, shall be guilty of an offence 1.''

Persans exempted from the provisions of the sub-regulatfon· are
clergymen, medical practitioners and officials 1•
(ü) Regulation 32 of the Okahandja Location regulations provides

that no Europeans, save medical practitioners, clergymen and offi
cials, may enter the location without written permission from the
local authority concerned 2•
(iü) Regulation 8 (4)of the Tsumeb Location regulations reads as follows:

"No persan other than a native shall be within a Location at any
time, unless he is in possession of a written pernût signed by the
Magistrate or the superintendent ... 3"

In tenns of its proriso, however, the sub-regulation does not apply
to medical practitioners, rninisters of religion and officiais.
51. In practice, permits are granted to Europeans to enter Native

urban residential areas only for very good and lawful reasons, and at
night only in cases of emergency. During the period 1951 to 1960 ap
proximately 10,000 such pennits were issued to Europeans in 12 of the
major urban areas in the Territory, averaging approximately 83 permits

per year per urban area 4. ·

(f) The AUilude of the Permanent Mandat.es Commission

52. The Permanent Mandates Commission was fully aware of the
varions measures relating to the control of the movement of the different

groups in the Territory since the relevant legislation was referred to in
the annual reports to the League of Nations.
53. The following is a suromary of some of the statements in the
annual reports:

The r922 report 5 : Particulars were given of the provisions of Procla
mation No. II of 1922 (S.W.A.) {the orifnal Pass Law) 6 and of the
Curfew Regulations Proclamation of 1922 •
8
The r924 report : Details were given of the provisions of Proclamation
No. 34 of 1924 (S.W.A.) 9regulating, inter alia, the entry of Natives into
urban areas 10,and of the application of these provisions to Windhoek.
Reference was also made to the Regulations for Native reserves pub
11
lished under Govemment Notice No. 68 of 1g24 (S.W.A.) .

t G.N. No. 243 of 1960 (S.W.A.), in Official Giuette Enraordinary of South West
Ajrica, No. 2287 (14 Dec. 196o), p. n96.
2 G.N. No. 170 of 1933 (S.W.A.), in Official Gazette of South West Africa, No.
536 (1 Nov. 1933), p.8677.
3
G.N. No. 325 of 1952 (S.W.A.), in Official Gazette of South West Africa, No.
1726 (1 Nov. 1952), p. 3570.
• Departmental information.
• U.G. 21-1923, pp. 3, 18.
6 Viiù para. 62. infra.
1 Vide para. 108, infra.
' U.G. 33-1925, pp. 4, 22, 27.
9 Proc. No. 34 of 1924 (S.W.A.}, in The Laws of South West Africa z9:14, PP•
178-190. .
10 Vide para. 92, infra.
u Vide footnote 3 to para. 41, supra. COUNTEll-MEMORlAL 01' SOUTH AFRlCA. 313

1
The 1933 repori :Reference was made to Proclamation No. 17 of 1933
(S.W.A.) 2 which amended Proclamation No. II of 1922 (S.W.A.) in
respect of the issue of permits to persons other than Europeans entering
the Territory 3•
The 1935 report 4 : Attention was drawn to Proclamation No. 29 of
1935 (S.W.A.) 5 which provides for the control of the movement of
northem and extra-territorial Natives in the Police Zone 6•
7
The 1936 reporl : Reference was made to Proclamation No. 36 of
1936 (S.W.A.) which extended the provisions of Proclamation No. II
of 1922 (S.W.A.) to the Rehoboth Gebiet 6•
The 1937 report A:ummary was given of the principal laws affecting
Natives, including the pass laws.
54. During the Third Session of the Permanent Mandates Commission

in 1923, after Major Herbst, the South African re?.resentative, had dealt
with the requirement of passes for Natives, M. d Andrade, a member of
the Commission, said:
"... that the pass system was used in many of the coloniesof South
Africa and the territories of the Union. It was analogous to the pass

port system in Europe. The passes indicated the origin of the na10ve,
whb was bis chief, etc. It was no burden on the native ."
55. During the Fourth Session of the Commission in 1924, Sir Fred
erick Lugard asked Mr. Hofmeyr, the South African representative,
whether the pass system ".•. was absolutely necessary, together with
the obligation to obtain pennits to enter or leave the country or to
11
travel" • Mr. Hofmeyr replied by saying that "... it was absolutely
necessary, under present conditions, if for no other reason than for the
safety of the native" 11.
Replying to another question of Sir Frederick Lugard conceming
curfew regulations, Mr. Hofmeyr observed that-
"... regulations of this kind were necessary in towns. Natives living

in the municipalities might not be abroad in the streets between
nine in the evening and four in the morning. During this time they
went to their location, wbich the white man was not allowed to
enter between sunset and sunrise and where the natives might do as
they pleased 12."

No further discussion followed this reply.
56. During the same session M. Beau, another member of the Com
mission, expressed the opinion-
"... that the system in force in all the reserves was comparatively

1 U.G. 27-1934, p. 2.
2 Proc. No. 17 of 1933 (S.W.A.), in Tha Laws of South West A/rica I9J3, p. 128.
3
Vide para. 80, infYa.
' Froc. No.9329 ofp193s, {S.W.A.), in The Laws of Soulh Wed Africa r935, Vol.

XI6, pp. 148-158.
Vide para. 85, infra.
' V.G. 31-1937. p. 3-
9 Vide para. 47,sup,-a.
U.G. 2s-1938, pp. 48-49.
11P,M,C .• Min., III, p.1o6,
Ibid., IV, p. 64.
u Ibid., p. 79. · SOUTH WEST AFRICA
31-4

liberal, the natives having the right to leave them and the whites
not being allowed to enter them nor to acquire Landthere 1".
57. In 1937, during the 31st Session of the Commission, Mr.Courtney
Clarke, the South African representative, in reply to questions by Lord

Hailey, said that-
"... natives required a pass to go from one reserve to another. Any
native entering an urban area had to procure a pass, and to be
registered as soon as he obtained employment. The Native Affairs
Branch had powers to close any urban area against fresh natives
coming in to seek work there. The policy was to restrict the presence
of natives in urban areas to the bare requirements of urban em
2
ployers .''
58. In view of the fact that the Permanent Mandates Commission
never commented adversely on Respondent's pass or permit system, it
is clear that the Commission did not regard the pass Iaws or the steps
taken in connection therewith as violations of the duties imposed by the
Mandate, or, indeed, as being in any way objectionable.

D. Reply to the Applicants' Allegations o,.

I. GENERAL

59. The statutory provisions on which the Applicants rely in para
3
graphs 146 to 152 of Chapter V of the Memonals can conveniently
be dealt with under the following heads:
(a) The movement of Natives in the areas inhabited by the White group.
(b) Egress from the Territory.
(c) Entry into the Territory.
(d) The movement of northern Natives into and in the Police Zone.
(e) The entry of Natives into proclaimed areas.
(!) Curfew restrictions.

60. As already ind.icated f,the Applicants object on1y to those pro
visions which restrict the movement of Natives, while no mention is
made of the control exercised over the movement of White and Coloured
persons 5•In this way the Applicants create an entirely misleading im
pression of Respondent's pass or permit policy.
6r. In replying to the Applicants' allegations, Respondent will

demonstrate that their conclusion that "liberty of movement has been
effectively and almost completely denied to the 'Native' population of
the Territory" 6,is unwarranted since:
(a) Natives enjoy complete freedom of movement in their own areas:
and
(b) the control exerdsed in the areas inhabited by the White group
does not unduly restrict the movement of Natives.

1 P.M.C., Min. IV, p. 6z.
z Ibid., XXXI, p. 139.
5 1,pp. 148-149.
4 Vide para. 1,supra.
5 Vide paras. 40-42 and 50, supra.
' I,para. 154 (4),p. 151.

• COUNTER-MEMORIAL aF SOUTH AFRICA 3I5

II. THE MOVEMENT OF NATIVES IN THE AREAS JNHABITED BY THE
WHITE GROUP

62. ln paragraph 146 of Chapter V of the Memorials the Applicants
allege:

"Under Section u: of the Native Administration Proclamation
1922, no 'Native' may travel within the Police Zone except 'upon a
pass issued [ta him] .. .' l"
This is not a correct statement of the legal position.

ln the first place, it is not section II of the Proclamation :zwhich
creates a prohibition against travelling without a pass. This section
merely prescribes the persans by whom passes may be issued to Natives.
The relevant prohibition is contained in section 1:0 , the roaterial part
of which reads as follows:

"Every native found beyond the confines of the location, reserve,
farm or place whereon he resides or where he is employed shall be
bound upon . • . demand ... to produce bis pass or bis certificate
of exemption ... 4"

It is clear from section ro that a,pass is only required when a Native
travels ·outside his location or reserve or away from the farm or place
wher~ he resides, or is employed.
In the second place, section i: of the Proclamation defines "Native"
as "every male over 14 years of age one of whose parents is a member of
5
some aboriginal race or tribe of Africa" • It iollows that section IO does
not apply to Native women and children, who may travel in the Police
Zone without a pass. In this respect it is apposite to note that every
White persan-male or female-requires a pass or a permit to travel in a
Native reserve or to enter an urban Native residential area 6•
In the third place, section 6 of the Proclamation, wbich is not referred

to by the Applicants, exempts the following Natives from the require
ment of obtaining and carrying passes:
"(a) A native policeman or messenger while on the service of the
Govemment provided that he is in possession of a certificate

of employment signed by the head of the department to which
he belongs;
(b) any native to whom a certificate of exemption has been granted
by the Minister of Native Affairs under the hand of tlie Chief
Native Commissioner of South West Africa;

1 I, para. 154 {4>,p. 148.
2 P,oc. No. II of 1922 (S.W.A.), sec. u (1)in The Laws of South West Aff'Îca
r915-r9zz, p. 75:zas amended by P,oc. No. II of 19:z7(S.W.A.), sec. 3, in The Laws
of South West Africa 1927, pp. uo-n2, and P,oc. No. 15 of 1928 (S.W.A.), Schedule,
in The Laws of South West Africa 1928, p. 80.
3 To which reference is made under the head.ing ''Security of the Person"; vide I,
para. 133, p. 145.
• P,oc. No. II of 1922 (S.W.A.), sec. 10, in The Laws of South West Africa 191s-

19:aa,pp. 751-752, amended by P,oc. No. II of 19:z7 tS.W.A.), sec. 2, in The Laws
of 5outh West Af,ica 1927, p. no.
PJ'OCN. o.II of 192:z (S.W.A.), sec.I, in The Laws of South West Africa 1915-
19zz, p. 750.
6 Vide paras. 40-43 and 50, sup,a.
7 As construed in terms of Act No. 56 of 1954, in Silduies of the Union of S01&Ut316 SOUTH WEST AFRICA

(c) any native missionary or teacher;
(d) any native in the emplol of a European master while ac
companying such master ."
63. The number of exemptions granted under section 6 (b) during

the years 1951 to 1g6o was 676 out of a total of 918 applications (i.e.,
73.6percent.), while350out of 363 applications forrenewal ofexemptions
(i.e.,96.4 percent.) were approved during the sameperiod. Factorsgener
ally considered in applications for exemption are the applicant's general
intelligence, educational qualifications, character, age, etc.
The numbet of Natives automatically exempted-including headmen,
councillors, members of Advisory Boards, teachers, police officers,
messengers, clergymen, etc.-is approximate]y 1,000 1•

64. To sum up, the Applicants' allegation that "no 'Native' mal travel
within the Police Zone except upon a pass issued" (italics added) to him
by an authorized person, is incorrect in that the relevant section of the
Proclamation does not apply to:
(i) Native females:
(ii) Native males of the age of 14 years and under;
(iii) any Native travelling within his reserve or residential area;
(iv) exempted Natives.

65. The essence of the provisions of section 10, read with sections r
and n, of the Proclamation is consequently that, for reasons already
explained 4,an unexempted male Native over the age of 14 years is not
permitted to travel beyond his place of residence or employment in the
Police Zone unless he 1sin possession of a pass issued by an authorized
persan.
The practice today is that passes are issued almost as a matter of
course to Natives who wish to travel in the Police Zone.

66. The various categories of persons who may issue passes in tenns
of section n-employers, magistrates, officersin charge of Native affairs,
Native commissioners, superintendents of reserves, police officers,etc.
show that Respondent has endeavoured to make it as easy as possible
for Natives to obtain passes.
A number of Native officiaisin reserves have been empowered to issue
passes when, for instance, the superintendent is absent. Headmen have
been appointed in reserves where there are no resident superintendents.

67. For a person in employment application for a pass is ordina.rily
a simple matter. And if his employer refuses to issue a pass, he is free to
approach a prescribed officialfor one 5•
68. In paragraph 133 of Chapter V of the Memorials 6, under the

A/rica r954, pp. 559-565 and Pt-oc.No. u9 of 1958 (S.A.), inThe Laws of SOfllh
West A/rica r958, Vol. XXXVII, pp. 133-141.
l Proc. No. zl of 1922 (S.W.A.}, sec. 6,i.n The Laws of South WesJ Af,i+a r9r5-
I9Zll, p75I.
z Departmental information.
3 I, para. 146, p. 148.
• Vide paras. 35 el seq., supra,
5 Proc. No. II of 1922 (S.W.A.). sec. 11 (1) in The Laws of South West Africo
r9r5-r9za, p. 750, as amended by P,oc. No. II of 1927 (S.W.A.), sec. 3in The I,.aws
of Sowh West Africa r927, p.112.
6 1, p. 145. COUNTER-MEMORJAL OF SOUTH AFRlCA

heading "Security of the Person". reference is made to section roof the,
Proclamation, some of the provisions of which have been dealt with
above 1. The Applicants apparently object to the fact that a Native who,
in certain circumstances, has no pass or neglects or refuses to produce
the same, may be summarily arrested by an authorized person.

69. In order to enforce the pass system properly, it was, and is,
necessary to confer on authorized persans the power to demand the pro
duction of a pass and to arrest a Native 2who fails to comply with such
demand. The whole system would be rendered nugatory if there were no
persans authorized to demand the production of passes in order to
establish whether Natives travelling beyond their reserves or areas of

residence or employment have in fact permission to do so.
70. Respondent has already explained why provision is made for the
arrest of vagrants without warrant by certain designated persans 3. For
the same reasons the power to arrest Natives offending against the pro
visions of section 10 of the Proclamation bas been conferred on author

ized persons. If any such person exercises the power of arrest in an
arbitrary manner, the arrested Native can avail himself of the ordinary
civil remedy-viz., a claim for damages-available to ail persons who
have been unlawfully arrested.
71. Varions provisions of the Proclamation serve to avoid hardship

and to prevent an abuse of the pass system, viz.:
(a) Section 8 makes it an offence for any person maliciously to deprive
a Native of a pass, or maliciously to withhold it from him 4•
(b) Section II (S) permits a Native to approach an authorized person
for a pass if he is unable to obtain a pass because of the absence of
ltis employer, or for other sufficient cause 5•

(c} Section II (6)makes it an offence for an employer to neglect to give
a pass to a Native travelling in his service 5•
(d} Section 12 (2) gives the Chief Native Commissioner the power to
issue a pass when an authorized persan refuses to do so 6•
(e} Section 12 (3) authorizes the Administrator 7 to order the issue of a
pass to any Native 8•

72. Reference bas already been made 9 to the report of the South
African Native Economie Commission of 1930-1932, in whichit was con
cluded that enforcernent of the pass system "affords a protection to the

1 Vid11para..6'1;suP,,a.
a Vide para. 64, sufwa,
' Vitk Chap. II, para, 44 1upra.
• P,-«;,No. 11 of 1922 (S.W.A.), sec. 8 in The Lawso/Soulh West Af,'ûa x9x5-x9aa,
p. 751.
5P'Toc.No, u of 1922 (S.W.A.), sec. II, as amended by P,.0t;No. 11 of 1927
(S.W.A.), sec. 3, in ThlJLaws o/ South West A/'Tica x927, p. 112.
1P,-o,. No. II of 1922 (S.W.A.), sec. 12 (2). as amended by P'Toc.No. 15 of 1928
(S.W.A.J, Schedule, in The Laws of South Wast A/rica. x928, pp. Bo-8-z. Vide para.
79, infra.
7Now the Minister of Bantu Administration •nd Development; uideAct No. 56
of 1954, in Statutes of the Union of South Aj'Tir;ax.954, pp. 559-565 and P'Tor.o.I 19
of 1958 (S.A.), in The Laws of $()UthWest A/rica z958, Vol. XXXVII, pp. 133-141.
1 Proe No. II of 1922 (S.W.A.), sec. 12 (3), in Tu lArŒ of 5-lh West Afrie4
z9z5-x9aa, p. 752,
9 Vide para. 20, sup,-a.318 SOUTH WEST AFRICA

rural Native who cornes into surroun<lings wlùch are entirely new and
strange to him". The system is also useful in removing difficulties for
many Natives-so, for instance, when a Native desires to travel to an
urban area, an official finds out in advance whether accommodation and
employment are available in such an area.
73. It may be pointed out that other countries in which conditions
basically similar to those in South West Africa prevail or have prevailed,

have also found it necessary to apply a pass or permit system. The
following are examples:
(a) Sections 7, 8, 9 and ro of Chapter 77 of the Laws of Southern
Rhodesia read as follows:
"7. Every male native within the Colony over the apparent age of
14 years shall register himself at the proper pass officeof the district
in which he resides, or with a pass officer appointed for the purpose.

Provided that this section shall not apply to any native registered
under the laws heretofore in force.
8. At the time of being so registered, a certificate in the prescribed
form shall be delivered to him.
9. Every male native within the Colony and being under the age of
14 years shall immediately on attaining such age register himself
as in sectionseven of this Act provided, and obtain a certificate in the
prescribed form.
ro. Any native desiring to leave his district in search of work may
obtain free of charge from the pass officer.of the district in which be
resides, or from the nearest pass officer in the direction in which he
intends to proceed, a 'pass to seek work' in the prescribed form,
1
which shall be in force for a period not exceeding 30 days .''
In terms of section 20 no person may employ or take into his service
for a period longer than four days any Native who is not in possession
of a certificate2•
The following general information regarding the application of the
Southern Rhodesian pass system shortly after the establishment of the
Central African Federation, is furnished by Hailey:

"In Southern Rhodesia every male African over 16 must obtain
a registration certificate, which is both a document of identity and a
record of contracts of service. Within towns proclaimed under the
Native Registration Act and under the Native (Urban Areas)
Accommodation and Registration Act, every unemployed African
male and every unemployed African female and child not accompa
nied by a husband or parent must carry a pass authorizin~ him or
her to seek employment or to visit the town; those residing m towns
must possess a certifi.cate that they are earning their living by em
ployment within the town area. Non-indigenous Africans on :first
entering the terri tory must obtain a registra tiancertificate and pass.
In certain proclaimed towns every African in employment must
possess a certificate of service (town pass) renewable every six

months. It is a special (eature of the Southern Rhodesian system
that the registration certificate shows the rate of wages paid to the

1 TM Statule Law of Southern Rhodtsia in force on the xst Day of January, x939,
Revised Edition, Vol. II, Chap. 77, pp. 287-288.
z Ibid., sec. 2p. 289. COUNTER-MEMOR1AL OF SOUTH AFRlCA 319

African by his employer, and that a medical examination is required
before an African enters into a contract of service in a proclaimed
municipality or town. Though the pass system in Southern Rhodesia
appears complicated, its practical operation is mainly confined to
the larger towns and the system is not in fact greatly in evidence
in the smaller towns and rural areas .''

(b) In Northern Rhodesia every male Native of ta..xable age must
register and, if he resides in or visits certain proclaimed districts,
be in possession of a registration certificate. ln the townships
Natives not in employment must carry both a registration certificate
and a visitor's or resident's pass. Mumcipal and township regulations
further provide that Natives must carry passes if they are outside
their compounds between 10 p.m, and 5 a.m. 2

(c} The main features of the pass system existing in Kenya in 1956,
have been summarized as follows by Hailey:
"In Kenya the Registration Ordinance of 1915 introduced a
procedure under which all Natives were registered and had to carry
a certifi.cate ofregistration (kipande). This was subscquently brought

into use as a record of employment and discharge. A Native was not
called upon to carry his kipande in his Reserve, but it came to be
treated as a pass when he left it, and more particularly when he
visited an urban area. As has been shown in a previous chapter,
the necessity for carrying the kipande has of late years become a
political issue, and recent legislation has extended registration to
ail communities in the territory, but the certificate of registration
2
now records identity only, not the tcrms of employment .''
74. At the present stage of development of the indigenous groups of
South West Africa, the abolition of the system controlling the movement
of Natives would, in Respondent's opinion, be ill-advised.
Although Respondent denies that the system at present in operation

can be described as "intricate" as the United Nations Committee on
South West Africa has done 3,it may be pointed out that a simplifica
tion of the system is under consideration.
In view of the fact that the new system in operation in South Africa 4
is proving a success, Respondent contemplates applying a simîlar system
in South West Africa as soon as practical difficulties have been overcome.

III. EGRESS FROM THE TERRITORY

75. In paragraph 147 of Chapter V of the Memorials the Applicants
allege that in tenns of sections II and 12 of Proclamation No. II of1922-
"... no 'Native' may leave the Territory of South West Africa
except upon a pass which may be issued to him only by a magistrate
or by the Administrator 5".

76. Section II (2) of the Proclamation reads:
"A pass to leave the Territory shall only be issued by a magistrate,

1 Lord Hailey, An African St.miey: Revised 1956 (1957), pp.1422-1423.
2Ibid., p.1423.
3 1,para. 154 (4),p. 151.
+ Vide para. 23, suP,a.
5 1, p.148.320 SOUTH WEST AFRICA

native commissioner, assistant native commissioner or officer in
charge of native affairs 1."

This sub-section should be read with section 5, which provides that
no unexempted Native may leave the Territory unless he is in possession
of a pass duly issued for that purpose by an authorized person 2, and
with section I which defines "Native" as "... every male over 14 years

of age one of whose parents is a member of some aboriginal tribe or race
of Africa" 3• It is consequently clear that the following Natives do not
require a pass to leave the Territory:
(a) Native females;

(b) Native males of the age of 14 years and under;
(c) exempted Natives 4•
77. The pass required by sections 5 and II (2) of the Proclamation

in the case of a Native who wishes to leave the Territory, is really in
the nature of a passport, which must also be obtained by a White or
Coloured person who intends to leave South West Africa. The only
difference m this respect between Natives and White or Coloured persons
is that a Native requires permission to leave the Territory for any other

country, including South Africa, while a White or Coloured persan
requires permission to leave the Territory for any country other than
South Africa 5•
78. The reason for this differential treatment is to ensure that Natives

fo the Territory who are inexperienced, illiterate or in poor financial
circumstances, do not in ignorance embark upon trips to South Africa
without realizing the implications of such ventures. In cases where appli
cants are fully aware of the position and can meet the financial responsi

bilities attaching to such visits, or if they wish to go to the Republic for
educational or other like p~ses or to visit relatives there, passes are
obtainable without difficulty .
During the period 1951 to 1g60 nearly 3,000 passes were issued to
Natives to leave the Territory.

79. In paragraph 147 of Chapter V of the Memorials 7 the Applicants
further allege that any person authorized to issue a pass under section
12 of the Proclamation, has a discretion to refuse to do so. The Applicants
fail, however, to mention the provisions of section 12 (2)of the Procla

mation, in tenns of which there is an automatic review in every case
where a pass is refused. This sub-section reads:
"If any authorized person other than a native commissioner,

1 Proc. No. II of 1922 (S.W.A.), sec. II (2), as amended by Pt-oc.No. II of 1927
(S.W.A.), sec. 3,in The Laws of South Wesl Africa I9a7, p. Il2 and Proc. No. 15
of 19:28 (S.W.A.), Schedule. in The Laws of South West A/f'ica I9a8, p. 80.
z Proc. No. tI of 19:22(S.W.A.j, sec. 5,in The Laws o/ Squth Wast Africo z9z5-
z922, pp. 750-751.
' Ibid., sec.1,p. 750.
• Vide para. 62, supra.
' Vide Act No. 34 of 1955, in Statvtes o/the Union of South Africa I955, Part I
(Nos. 1-55), pp. 238-245.
6 l'he maximum penalty for travelling within or leaving the Territory without a

pass is, in the case oa tirst o:ffenca,fi.nenot exceeding one pound (b) or in defa.ult
of payment imprisonment for a period not exceeding 14 days. (Pt'oc. No. li of
1922 (S.W.A.), sec. 5. inThe Laws of South Wesl Africa I9I5-z9aa, pp. 750-751.)
7 I, p. 148. COUNTER-MEMORIAL OF SOUTH AFRICA 321

assistant native commissioner or magistrate refuses to issue a pass
to leave the Territory or travel therein, he shall immediately report
such refusal to the native commissioner or assistant native commis
sioner within whose area of jurisdiction the refusai takes place, and

if there is no such native commissioner or assisbnt native com
missioner, to the magistrate of the district; and the officer to
whom the report is made shall issue or refuse to issue the pass,
as he deems fit. If the authorized person refusîng to issue such

pass is a native commissioner, assistant native commissioner or
magistrate, he shaH immediately report such refusal to thè Secre
tary for South West Africa, who shall issue or refuse to issue the
pass, as he thinks fit ."

Moreover, in terms of section 12 (3) of the Proclamation the Ad
ministra tor 2 has authority to order that a pass be issued to any Native
notwithstanding any prohibition or other provision in the Proclamation 3•

There are consequeJ!-tly ample safeguards to ensure that a pass will only
be refused for suffi.c1entreasons.

IV. ENTRY INTO THE TERRITORY

80. In paragraph 148 of Chapter Vof the Memorials 4 reference is made

to section 4 (1) of Proclamation No. II of 1922 (S.W.A.) in its original
form 5• The sub-section has been amended by Proclamations No. 17 of
1933 (S.W.A.) and No. 24 of 1935 (S.W.A.), and now reads:
"No person other than a European shall enter the Territory, and

no employer shall bring into the Territory as an employee any such
person as aforesaid, without a permit from the Administrator 6 or
some officer deputed by him 7."

81. In terms of section 4 (4) of the Proclamation the Administrator
may, upon the conviction of any persan for a contravention of the pro
visions of sub-section (r), direct the Secretary for South West Africa to
serve an order.on such person to leave the Territory 8• ~t is c~msequently

clear that section 4 (r) was never intended to appl)~ to mhabitants of the
Territory. and, in conformance with the principle of municipal and
internat10nal law that a State cannot expel its own nationals 1>the section
has been enforced against foreigners only.

l PYoc. No. 1 r of1922 (S.\V.A.), sec.12 (2),as amended by Proc. No. 15 of 1928
(S.W.A.), Schedule, in The Laws of South West Africa r928, pp. 80-82.
2 Now the Minister of Bantu Administration and Development.
3 Proc. No. rI of 1922 (S.W.A.), sec. 12 (J),in The Laws of South West Africa
r9IS-I922, p. 752.
• I,p. 149.
' Proc. No. II of 1922 (S.W.A.), sec. 4, in The Laws of South West Africa r9r5-
r9aa, p. 750.
6 In the case of a Native, the Minister of Bantu Administration and Development.

(V1de Act No. 56 of 1954 and Proc. No. 1r9 of 1958 (S.A.).)
Proc. No. 11 of 192.2 (S.W.A.), sec. 4 (1), as amended by Proc. No. 24 of 1935
(S.W.A.), sec. 1, in The Laws of South West Africa r935, Vol. XIV, p. 140.
• PYoc. No. JI of 1922 (S.W.A.), sec. 4 (4). in The Laws of South West Africa
r9r5-r92z, p. 750. If the convicted is a Native, "Administrator" and "Secretary
for South West Africa'' are to be construed as "Minister of Bantu Administration
and Development" and "Chief Native Commissioner of South West Africa" res
pectively. (Vide Act No. 56 of 1954 and PYoc. No. II9 of 1958 (S.A.).)
9 Vide Weis, P., Naticmality and Statelessness in International Law (1956), p. 50.

0322 SOUTH WEST AFRICA

82. The purpose of section 4 (1) is to control the entry of foreign

non-Whites into the Territory. This measure is necessary for the pro
tection of the non-White employees of the Territory, and ensures that
they are not replaced by non-Whites from the Republic and other
countries. The subsection also prevents foreign Natives from becoming
stranded in the Territory and having to be repatriated at government

expense. Furthermore, it serves as a check on the entry of undesirable
persons.
83. Permits to enter South West Africa are readily granted to bona

/ide visitors and also to skilled and semi-skilled labourers who have been
offered positions which cannot readily be filled by inhabitants of the
Tcrritory. Availab]e information shows that more than 5,000 such permits
were issued to Natives during the period 1951 to 1960.

84. Since members of the White group are easily absorbed in the
economy of the country, there has been no need to introduce measures
to regulate their entry by means of permits or passes-indeed, their
settlement has, in the interest of the development of the country, been

encouraged.

V. THE ENTRY OF i\'ORTHERN NATIVES INTO THE POLICE ZONE

85. In paragraph 149 of Chapter V of the Memorials 1 the Applicants
refer to the provisions of sections 3 and 9 of the extra-territorial and
2
Northern Natives Control Proclamation of 1935 . Section 3, read with
sections r and 2, provides, inter alia, that every Native whose domicile of
origin is outside the Police Zone must be in possession of an identification
pass when in that Zone 3, and in terms of section g such a Native must
ha.ve his pass with him at all times and produce it on the demand of any

authorized person, any police officer and any persan to whom he engages
or offers to engage himself as a servant ...
86. The purpose of the Proclamation, as stated in its preamble, is

"... to make prdvision for the contrai of natives recruited beyond
the boundaries of the territory or beyond the limits of the Police
Zone, for labour within the said Zone 5, and for the contrai of such
natives as aforesaid who have voluntarily entered the said Zone 6 ".

1J, p. 149.
~ Proc. No. 29 of 1935 (S.W.A.), in The Laws of South West Africa I935, Vol.
XlV, pp. 148-158.
3
ln tcrms of the proviso to sec. 3-inserted by Proc. No. 133 of 1961 (S.A.),
sec. 2,in The Laws of South West A frica I96I, Vol. XL, p. 548-every such Native
who i~in p0S$Cssion of acurrcnt duplicate service con tract, as described in regulation
5 of G.N. "'"· 65 of 1955 (S.W.A.) [Laws of South West Africa 1955, Vol. XXXIV,
pp. 760-762], in his name, shall be deemed to comply with the requirement of being
in possession oi an identificationpass.
• Proc. No. 29 of 1935 (S.W.A.), sec. 9, in The Laws of South West Africa I935,
Val. XIV, p. 154.
~ In terms of sec. 5 of the Proclamation (pp. 150-152) the recruiting or labour
organization by which an extra-territorial or narthern Native has been recruited,
is obliged to band to such Native an identification pass.

" Proc. No. 29 of 1935 (S.W.A.), Preamble, in The Laws of Soulh We~I Africa r935,
Vol. XIV, p.148. COUNTER-MEMORIAL OF SOUTH AFRlCA 323

1
87. In another context Respondent has already dcalt with section 6
(4)of the Proclamation, which provides that Native labourers recruited
from areas outside the Police Zone may remain within the Zone only for
the period of employrnent provided for in the contract, and in no case
exceeding two and a half years 2•lt was pointed out that this limitation
on the sojourn of labourers from the northern territories was i_mposed

at the specific request of the tribal authorities of those areas who wish
to protect their people against detribalization.

88. In order to ensure the exercise of proper contrai over the influx of
extra-territorial and northern Native labourcrs into the Police Zone,
jt was necessary to requirc that all Natives outside the Police Zone must
be in possession of identification passes when in the said Zone. In the
absence of such a provision it would be impossible to distinguish betwceÎi
labourers and visitors, and impossible to ensure the return of migrant

workers after the expiration of their contracts.
89. Identification passes are issued on a generous scale, as appcars

from the following list of such passes granted during the period 1950 to
1960 3:
1950 19,497
1951 20,108
1952 21,880

1953 19,5u
1954 20,131
1955 23,199
1956 20,361
1957 2},4II
1958 23,009

1959 23,303
1960 24,187

Total 238,597

90. In view of the drcumstances dealt with abovc and in vicw of the

requirement that White or Coloured persans must have permits to enter
the northem territories, which are inhabited exdusively by Natives,
Respondent respectfully submits that there is no substance in the alle
gation that the relevant provisions of the Proclamation <liscriminate
against Natives on the ground of race or colour.

1 Vide Chap. III, paras. r48-r56,supra.
2 Proc. No. 29 ol 1935 (S.W.A.), sec, 6 (4), in The Laws of South West Africa
r935, Vol. XIV, p. 152, as amended by Proc.No. 37 of 1940 (S.W.A.), sec. 3, in
The Laws of South West Africa r940,Vol. XIX, pp. 288,290; by Proc. No. 38 of r949
(S.W.A.), sec.2, în The Laws of South West Africa r949, Vol. XXVIII, p.76o, by
Pmc. No. 59 of r949 (S.W.A.), sec.1,in The Laws of South West Africa 1949, Vol.
XXVIll, p. 78-z, byP1"oc.No. 33 of 1951 (S.W .A.}, sec.2, inThe Laws of South
West Africa r951, Vol. XXX. p. 64; and by Ord. No. 3 of r955 (S.W.A.}, sec. r,
in The Laws of South West Ajrica 1955, Vol. XXXIV, p. 5'.<8,
3 Departmental information.324 SOUTH WEST AFRICA

VI. THE ENTRY OF NATIVES INTO PROCLAIMED AREAS

91. In paragrnphs 150 and 151 of Chapter V of the Memorials 1 refer
ence is made to some of the powers conferred on the Administrator 2
by section 22 (1) of the Natives (Urban Areas) Proclamation 3.

In paragraph 144 of Chapter V of the Memorials \ under the heading
"Rights of Uesidence", the Applicants refer to regulation 2 of the
Regubtions for Proclaimed Areas 5 by virtue of which the Adminis
trator exercised the powers mentioned in paragraph 150 of the same
Chapter of the Memorials. In the present context the attack of the Appli

cants is apparently directed at the power of the Administrator (now
the State President) to require Natives entering proclaimed areas to
obtain permission to be in such areas.

92. Respondent has pointed out that section 22 is one of a number of
sections of the Natives (Urban Areas) Proclamation designed to control
the influx of Natives into urban and proclaimed areas. It was shown
that provision for such control had been made as early as 1924 by means
6
of Proclamation No. 34 of that year ; that Proclamation No. 4 of 1932
(S.W.A.) amended section 6 of the original Proclamation by empowering
the Administrator to declare that no Native might enter any spe~ified
urban area for the purpose of seeking or undertaking employment or of
residing therein, except in accordance with prescribed condJtions 7, and

that it added provisions to section II of the original Proclamation which
authorized the prohibition of the entry of female Natives into such
areas without certificatcs of approval 8• Respondent also dealt with the
basic considerations of its influx control policy 9 ,and demonstrated that
a similar policy has been applied in other countries 10• Itremains to dea1

with the requirements of section 22 relating to the obtaining of permits
or certificates u.
93. The portions of section 22 of the Proclamation on which the
12
Applicants rely, provide that the Administrator may require every
male Native entering a proclaimed area, uniess exempted by regulation,
to report his arrivai within a prescribed period; to obtain ,vritten per
mission to remain in such area, and to produce such document on demand
to an authorized officer. Permission to be in a proclaimed area may be

refused if there is a surplus of Native labour available in such area;

1
1,p. r49.
2 Now the State President; videAct No. 56 of 1954.
3 Froc. No. 56 of 1951 (S.W.A.), in The Laws of South West Africa r95r, Vol.
XXX, pp. 90-171.
4 I.p. 148.
' G.N. No. 65 of r955 (S.W.A.), in The Laws of South West Africa r955, Vol.
XXXIV, p. 754. Vide Chap. 111,para. 190, supra.
• Proc. No. 34 of 1924 (S.W.A.), in The Laws of South West Ajrica 1924, pp. 178-
190. Vide Chap. III, para. 158, supra. ·
7 Froc. No. 4 of 1932 (S.\V.A.), sec. 3, in The Laws of South West Africa r932,
pp. 54-56 Vide Chap. III, para. r6r, supra.

9 Ibid., sec. 4, p. 58. Vide Chap. Ill,para. 161, supra.
Vide Chap. III, paras. 163-175, supra.
10 Ibid., paras. 176-181.
11 Proc. No. 56 of 1951 (S.W.A.}, sec.2:z,in The Laws o/ Souin West A/rica I9SI,
Vol. XXX, pp. 130-137.
u Now the State President; 1Jidfootnote 2 to para. 91,supra. COUNTER-MEMORIAL OF SOUTH AFRlCA

if the Native concemed has failed to comply with the requirements of the
pass law 1,or if he is under the age of 18 years unless he is accomeanied
by, is coming to, or is residing with, his parent or guardian m the
said area.

94. The. Administrator may also prohibit any Native female from
entering a proclaimed area for the purpose of residing or obtaining
employment therein, unless she is in possession of certain certificates.
The provisions relating to such certificates are correctly set out in para
graph 151 of Chapter V of the Memorials 2•

95. The Applicants fail to mention the provisions of section 22 (2) of
the Proclamation, in terms of which the following Natives are exempt
from the aforestated requirements:
"(a) chiefs and headmen approved in such manner as may be

prescribed;
(b) native ministers of religion who are marriage officers or who
carry and produce on demand to an authorized officer a certifi
cate under the hand of the European minister, priest or mis
sionary in charge of their church in the Territory to the effect
that they are wholetime officers of such church; teachers at

state-aided educational institutions, members of a police force
established by law and members of any profession approved by
the Administrator 3by regulation;
(c) members of the South African Police or Criminal Investigation
Department;
(d) prison warders, messengers, interpreters of the varions courts

of the Territory ... while in actual employment;
(e) any native, to whom a certificate of exemption has been
granted by the Administrator under the provisions of paragraph
(b) of section six of the Native Administration Proclamatio_n,
1922 (Proclamation No. II of 1922) ... 4"

96. The provisions of section 22 (1) of the Prodamation-which do
not substantially differ from those contained in section II of Proclamation
No. 34 of 1924 5-were designed to create effective control over the
influx of Natives into proclaimed areas and are in Respondent's view
necessary for this purpose 6•

In this regard reference may be made to the following extract from
the 1932 annual report;
"With regard to material conditions, as has been made clear earlier
in this report, the depression and consequent difficulty of obtaining
employment has affected the urban natives more seriously than

others. The position was relieved by the repatriation of considerable
numbers of unemployed natives who had corne from areas outside
the Police Zone. Practically ail of them were Ovambos. No objection
to this course could be perceived as the food supply in Ovamboland

t Prot. No. Jr of1922 (S.W.A.).
:ll, p.149.
' Now the Minister of Ban tu Administration and Development.
4 P,oc. No. 56 of 1951 (S.\V.A.), sec.22 (2), in The Laws of South W,st Af,ica
z9.51,Vol. XXX, p. 136. Vide para. 62,s,up,a.
' Vide para. 92, s,upra and Chap. III, para. 158, suP,a.
6 Vide Chap. III, para. 163, s,up,,a.326 SOUTH WEST AFRICA

was adequate and it was felt that it would be much better for them

to mark time where plenty prevailed, than starve in the towns or
use up the resources of other natives. Moreover, many of them,
being idle or short of food, began to resort to crime and, in the case
of women, to prostitution. This action has undoubtedly helped and
those remaining behind can and are being helped through 1."

97. The system for the control of the movement of members of the
Native groups into and in proclaimed areas has in practice worked well
in overcoming the difficulties which it was designed to remedy. Moreover,
this system is simple in its application. The members of the groups con
cerned are fully acquainted with the system, and are in a position to
obtain the prescribed documents without undue hardship or inconven
ience. Thus, a Native residing in a reserve in the Police Zone who desires

to proceed to a proclaimed area, applies to the superintendent of the
reserve for a pass to travel to the proclaimed area. On entering this
area such Native calls at the office of the registering officer where the
necessary permit to look for work, or to be in the area for other purposes,
is issued to him. On termination of his employment or at the end of his
stay for other purposes, he obtains a travelling pass to return to the

reserve.
A rural Native outside a reserve, who desires to proceed to a pro
claimed area, can obtain the necessary pass from his employer, or, if
not in employment, from one of the prescribed officiais, and can then
proceed to the urban area where the procedure is the same as stated
above.
Northem Natives proceed to the officesof the New South West Africa

Native Labour Association {which are well known throughout the Terri
tory) where they are furnished with ail necessary documents. and where
arrangements are made for their conveyance to their respective places
of employment.
98. Respondent bas already pointed out 2 that the Permanent Man

dates Commission was kept infonned of the policy to control the influx
of Natives into the urban areas of the Territory. Full details of the
provisions of Proclamation No. 34 of 1924 (S.W.A.) 3 were given in the
1924 annual report 4. while Proclamation 1'o. 4 of 1932 (S.W.A.) 5,
which empowered the Administrator to prohibit Native females from
entering proclaimed areas without certificates of approval. was reforred

to in the 1932 annual report 6.
99. In the 1922 annual report the Administrator stated that he con
sidered it extremelÎ undesirable to encourage Natives to crowd into
municipal locations , and in the 1937 annual report the Commission was
informed that "It is the policy of the Administration to restrict as far

as possible the congrertion of large bodies of natives in the vicinity
of European areas . . . "

1 U.G. 16-1933, para. 327, p. 69.
2 Vide Chap. Ill, paras. 158 and 169,supra.
' Vide para. 92,supra.
4 U.G. 33 of 1925, pp. 4, 22, 27. Vide para. 5supra.
s Vide Chap. III, para. 161,sup,a.
6 U.G. 16-1933, p. r.
7 U.G. 21-1923, p. 13.
8 U.G. 25-1938, para. 291, p. 47. COUNTER-MEMORIAL OF SOUTH AFRlCA 327

rno. The Permanent Mandates Commission did not object to the
provisions of Proclamations Nos. 34 of 1924 (S.W.A.) and 4 of 1932
(S.W.A.), or to the policy as outlined in the above statements, and it
seems clear that the Commission did not regard influx control as a
violation of the obligations imposed by the Mandate, or as being ob
jectionable in any other way.

rnr. The provisions of section 22 of Proclamation No. 56 of 1951
(S.W.A.) are not materially different from the influx control provisions
of the above Proclamations, and only provide more efficient machinery
for the control of the influx of Natives into proclaimed areas. The permit
system created by section 22 is, in fact, the most effective and the most

reasonable method of controlling the movement of Natives into and in
proclaimed areas. It is consequently submitted that if the restrictions
placed on the influx of Natives into such areas are justified-as ResponJ
dent contends they are-it follows that the permit system cannot be
objected to.

102.1 Itis to be observed that section 22 merely enables the AdminisJ
trator to exercise the powers to which the Applicants refer in paragraphs
150 and 151 of Chapter V of the Memorials 2.To date the power to pro
hibit Native females from entering proclairned areas has not been invoked.

VII. CuRFEw RESTRICTIONS

rn3. In paragraph 152 of Chapter V of the Memorials the Applicants
allege, with reference to section 27 (r) of Proclamation No. 56 of 1951
3
(S.W.A.) , that-
"The Administrator may at the request of any urban local
authority prescribe a curfew, under which no 'Native' 'shall be in
any public place within the area controlled by such authority during
such hours of the night as are specified .. .' 2"

ro4. The omission on the part of the Applicants to mention all the
provisions of sub-section (r), or any of the provisions of sub-section (4)
of section 27, tends to create a distorted impression of the extent of the
powers conferred by the section.
Sub-section (1) reads ~ follows:

"The Administrator 1may, by notice in the Gazette at the request
of any urban local authority, declare that no native, male or female,
shall be in any public place within the area controlled by such
authority during such hours of the night as are specified in such
notice unless such native be in possession of a written permit ... 4"
(Italics added.)

The permit required by the sub-section may be issued by an employer
or his representative, an officer in charge of a police station, or a designa
ted official.

105. In terms of sub-section (4) of section 27 any notice under sub
section (1) shall not apply:

1Now the State President.
1 I, p.149.
3Proc. No. 56of 195r (S.W.A.), sec. 27 (1),The Laws of South West Africa I9JI,
Vol. X:XX, p. r46. ·
• The Laws of South West Africa I95I.Vol. XXX, p.146. SOUTH WEST AFRICA

(i) in any location or Native village;
(ii)to any Native exempted in terms of paragraphs (a) to (d) of section
22 of the Proclamation 1, or to any female who is a dependant of

such a Native.
106. It will be observed that the following features have not been
mentioned by the Applicants:

(i) any Native may be in a public place during curfew hours if in
possession of a permlt ;
(ii) curfew restrictions do not apply to ex:empted Natives 1, or in any
Native residential area.

107. The curfew restrictions were conceived to prevent large numbers
of Natives loitering at night in White urban areas, since it has been the
Respondent's experience in South Africa and South West Africa that
the congregation of Natives in such areas at night is apt to lead to

disturbances. These restrictions have also been devised as a remedy
against crime.
108. Provision for the application of curfew restrictions to South West

Africa was made as early as 1922 by means of Proclamation No. 33 of
that rear 2• The curfew provisions of this Proclamation, which are not
materially different from those under consideration, were referred to in
the 1922 annual report 3, and in the 1928 annual report• reference was
made to Proclamation No. 19 of 1928 (S.W.A.), which amended the

1922 Proclamation by providing for the publication in the Official Gazette
of the Territory of all curfew regulations made by local authorities 5•
The Permanent Mandates Commission was consequently fully aware of
the provision that had been made for the imposition of curfew restric
tions, and in the absence of any adverse comment, it must be assumed

that the Commission appreciated the necessity for such legislation.
rn9. In this regard it may be pointed out that in other countries it
was also found necessary to impose curfew restrictions. So, for instance,

regulation 31 of the Northem Rhodesian Townships Regulations pro
vided:
"Between the hours of IO p.m. and 5 a.m. no native shall be out
side a compound or location used for the housing of natives, or bis

employer's close or native compound unless he is in possession of,
and carries a pass from the District Officer, his employer, his em
ployer's agent, or a member of his employer's family, or a quarterly
pass issued to him in accordance with the provisions hereinafter
contained ."

uo. In South West Africa curfew notices have been issued in respect
of 14 urban areas 7• The usual curfew hours are between 9 p.m. and

1 Vide para. 62,supra.
1 Proc. No. 33 of 1922 (S.W.A.), in The Laws oj South West Africa r9r5-:c9zz,
pp. 863-865.
3
U.G. 21-1923, p. 3.
• U.G. 22-1929, p. 2.
~ Proc. No. 19 of 1928 (S.W.A.), sec. 1 (2), in The Laws ofSouth West Africa
i9z8. p. 88.
6 Ord. No. 53 of i929 (Northem Rhodesia), as amended, sec. 27, Part VI, reg.
31, in Laws of Norlhern Rhodesia r96z Edition, Vol. IV, Chap. 120, p. 98.
7 These are Aus, Bethanie, Goba bis, Crootfontein, Karasburg, Karibib, Mariental,
Otavi, Otjiwarongo, Outjo, Stampriet, Tsumeb, Usakos and Warmbad. COUNTER-MEMORIAL OF SOUTH AFRICA

4 a.m., and the restrictions consequently cause very little hardship.
As has already been stated, a curfew notice restricts the movement
of unexempted Natives only in public places in the White areas of towns
and cities during curfew hours. If Natives desire to be within such
areas during these hours, they can obtain the necessary permits from
their employers with whom they are usually in daily contact, or from

authorized persons. In practice numbers of Natives are present in public
places in White urban areas during ail hours of the night.
111. When reasons are alleged to exist for the issuing of a curfew
notice-for example, crime committed by Natives, or continuai distur
bance of the public peace at night within White urban areas-the local
authority concerned consults' the Native Advisory Board, _and the local
authority's application, together with the views of the Board, is then

transmitted to the Bantu Affairs commissioner or magistrate, who also
obtains the views of the Police. The said commissioner or magistrate
then submits the application and the reasons therefor, the views of the
Native Advisory Board and of the Police, together with his own recom
mendation, to the Department of Bantu Administration and Develop
ment, which in tum submits its recommendation to the State President.
A curfew notice is consequently not lightly issued. It is only done if
the State President is satisfied that a curfew is necessary to establish or
mairitain peace and order in a particular urban area.

n2. With further advancement in the general educational level of
the Native populations in thecities and towns, and their fuller adaptation
to the urban environment and living conditions, it is hoped that it will be
possible gradually to relax curfew restrictions and that they will ulti
mately disappear. In the interest of good group relations, however, a
too sudden repeal is in Respondent's view not desirable.

113. In conclusion, it may be pointed out that the type of restrictions
involved in a curfew is entirely reciprocal. The location regulations, to
which reference has already been made 1,control the movement of mem
bers 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 their superintendents whether by day or by night.

VIII. REPLY TO PARAGRAPH 153 OF ClIAPTER V OF THE MEMORlALS

(a) Introductory

114. In the said paragraph of the Memorials the Applicants allege
that in their cumulative effect-
"... the multiple restraints upon the movement of 'Natives' and
the vulnerability of the 'Natives' to arbitrary arrest press upûn the
individual 'Native' with an almost suflocatmg weight 2".

Relyin~ on a nurnber of provisions to which reference is made under
the headmgs "Security of the Person", "Rights of Residence", and
"Freedom of Movement", the Applicants then purport to portray "the
situation from the angle of vision of any individual 'Native'" 2•

1 Vide para. 50, supra.
2 I, p.150.330 SOUTH WEST AFRICA

The situation which the Applicants attempt to depict in this para
graph is a false one. As will be shown, there can, in practice, never be
such a concurrence of circumstances and restraints in respect of any
"individual 'Native' " as is alleged by the Applicants.

n5. The provisions on which the Applicants rely are those relating to:
(i) Undesirable persons in reserves.
(ii)The removal of Natives within reserves.

(iii) The movernent of northem Natives into and in the Police Zone.
(iv) Entry into the Territory. :
(v) The entry of Natives into proclaimed areas.
(vi) Curfew restrictions. ,
(vii) The removal of Natives from urban areas.
(viii) Vagrancy.

(ix) The movement of Natives in the area inhabited l;>ythe White group.
(x) Idle persons in prodaimed areas.
(xi) The deportation of undesirable persons from the Territory.
Before considering the applicability of these provisions, it will be
convenient, wîth a view to proper perspective, to restate briefly certain

of Respondent's replies to the relevant paragraphs of the Memorials.

(b) Undesirable Persons in Reserves
1
n6. In its reply to paragraph 132 of Chapter V of the Memorials
Respondent pointed out 2 that the regulation providing for the removal
of undesirable persons from Native reserves was introduced to promote
order and good government in certain reserves in which there would
initially be little social cohesion and discipline. It was also pointed out 3
that as a result of the 1mprovement of tribal discipline, it has for a con
siderable period not been necessary to invoke this measure.

n7. The Applicants allege that the regulation applies to any Native
who is a resident of a reserve "whether within or outside the Police
Zone"\ As has already been pointed out, this is not correct, since the
regulation does not apply to reserves outside the Police Zone, nor to the
Berseba and Bondels Reserves within the Police Zone.

lt is consequently clear that the regulation, which at any rate was
invoked in the past only in very exceptional circumstances, applies only
in limited areas, and does not affect the vast majority of Natives in the
Terri tory.

n8. In replying to paragraph 139 of Chapter V of the Memorials 5,
Respondent demc,nstrated 6that the powers conferred upon the Admin
istrator (now the State President) under section 1 (d) of Proclamation
7
No. 15 of 1928 (S.W.A.) -which includes the power to remove a Native
1
1,p. 145.
2 Vid~ Chap. II, paras. 97-tor, supra.
3 Ibid., para.107.
• ], para. r53,p. 150.
5 Ibid., pp. r46-r47.
6 Vide Chap. III, paras. 129-130, supra.
1 Proc. No. 15 of r928 (S.W.A.), sec. I (d), inThe Laws of South West Africa
r9z8, p. 6o. COUNTER-MEMORIAL OF SOUTH AFRICA 331

resident in a reserve to some other place within it-are necessary to
implement Respondent's reserve policy, which was designed primarily
to promote the interests of the residents of the Native reserves.

n9. The power to order the removal of a Native in a reserve can
obviously not be invoked in respect of Natives in urban or rural areas of
the Police Zone, and it is also evident that no Native will be ordered to
leave a reserve in terms of the regulation referred to in paragraph JI6
above, and at the same time also be removed to some other place within it.

120. The provisions of section 1 (d) of the Proclamation are not only
very limited in their scope, but they corne jnto operation only when the
Native concerned is himself to blame for it according to the judgment of

his own group, as is demonstrated by the only four occasions-as far
as can be ascertained-on which the powers conferred have been in
voked 1.

(d) The Movement of Northern Natives into and in the Police Zone

2
121. As has been shown in the replies to paragraphs 140 and 149
of Chapter V of the Memorials 3,the provisions of Proclamation No. 29
of 1935 (S.W.A.), which require northern Natives to be in possession of
identification passes when in the Police Zone, and which restrict the
period of employment of such Natives in that Zone to a maximum of two

and a half years ~,were designed ;
(i) to protect the Natives in the Police Zone-who are more dependent
upon wage employment than northern Natives-against unfair

competition from the latter; and
(ii) to protect and preserve the social life and tribal organization of
the northern Natives, whose tribal authorities requested that these
measures be introduced.

122. In paragraph 153 of Chapter V of the Memorials the Applicants
create the impression that these provisions~which obviously do not
apply to Natives resident in the Police Zone~require a northern Native
to be in possession of one pass for the purpose of entering the Police
Zone, and, if employed in that Zone, of another pass or other proof
5
''showing his right to hold the job" • This is not the case, since an
identification pass issued under section 9 of the Proclamation confers
upon a Native employee from the northern terrîtories the right to enter
the Police Zone and to remain in it for the period of his employment •

(e) Entry into the Te1rito1y

123. ln paragraph 153 of Chapter V of the Memorials the Applicants
allege that-

1 Vide Chap. III, para. 130,supni.
2 Vide paras. 85-90,sup~a. and Chap. III, paras. 149-154, supra.
3 1, pp. 147, 149.
• Proc. No. 29 of 193:5 (S.W.A.), secs. 3 and 6 (4), as aroended,vide footnote 2
to para, 87,s1epra.
5 I, p.150.
6 Proc. No. 29 of t935 (S.W.A._l, sec. 9, inThe Laws of South West A/rica I935,
Vo\. XIV, p. 154.332 SOUTH WEST AFRICA

"... whereyer ... (a northem Native) ... may be, whether inside
or outside the Police Zone, he may be required at any time to produce
a pass showing that he has a nght to be within the Territory 1".
2
In its reply to paragraph 148 of Chapter V of the Memorials , Re
spondent has shown 3 that section 4 of Proclamation No. :rr of 1922
(S.W.A.), which provides that no Native may enter South West Africa
without a préscribed pass 4, does not apply to Native inhabitants of the
Territory.

(f) The Entry of Natives into Proclaimed Areas

124. In replying to paragraph 150 of Chapter V of the Memorials 2,
Respondent has :,hown 5 that the provisions of section 22 (1) of Procla
6
mation No. 56 of 1951 (S.W.A.) were designed to control the influx of
Natives into urban areas in order to prevent such areas from being
overcrowded with unemployed Natives.
These provisions do not apply to Natives resident in proclaimed areas,
and affect only newcomers to such areas. Moreover, in terms of section

22 (2) of the Proclamation, certain classes of Natives are expressly ex
empted from the influx control provisions of sub-section (1) of that sec
tion 7•

(g) Curfew Restrictions

125. By alleging in paragraph 153 of Chapter V of the Memorials
that a Native "must take care lest he find himself within a public place
(in an urban area) after curfew" 1, the Applicants create the misleading
impression that curfew restrictions apply to:

(i) aII urban areas;
(ii) ail public places in such areas;
{iii) ail Natives.
8
As has been pointed out in the reply ta paragraph 152 of Chapter V
of the Memoriah. 9, this is not the case, since curfew notices have been
issued in respect of only 14 urban areas in the Territory and in these
areas the restrictions do not apply to exempted Natives, or in any
Native residential area.

The scope of the existing curfew restrictions-which curtail freedom
of movement only during certain hours of the night-is consequently
limited.

1 1,p. 150.
2 Ibid.,p. r49.
3 Vide para. 81, supra.

• P,-oc.No. 11 of r922 (S.W.A.), sec. 4, iThe Lawso/ S014thWest Africa r9r5-r9:n,
p.75o.
' Vide para. 92, sl4pra.
6 P,-oc.No. 56 of 1951 (S.W.A.), sec. 22 (1) inThe Laws of South Wesl Africa I95I,
Vol. XXX, p. r30.
1 Ibid.,sec. 22 (2),p. 136.
8 Vide paras. 106 and no, supra.
• I,p. r49. COUNTER-MEMORIAL OF SOUTH AFRICA 333

(h) The Removal of Natives /rom Urban Areas

126. In alleging in paragraph 153 of Chapter V of the Memorials that
"... even if ... [a Native) ... succeeds in establishing his right to
reside and be employed witlùn an urban area, he may be removed
at any tirne as 'redundant' 1",

the Applicants rely on section '25 of Proclamation No. 56 of 1951
(S.W.A.) 2•
As indicated 3 in the reply to paragraph 141 of Chapter V of the

Memorials 4. the provisions of this section, which were designed to
prevent urban areas from being overcrowded by unemployed Natives,
are not enforced in practice, since the influx control provisions of sections
10 and 22 of the Proclamation are adequate to serve this purpose 5.

(i) Vagrancy

127. In paragraph 153 of Chapter V of the Memorials the Applicants
further allege:

"Even though lawfully employed, ... [a Native] ... must be
constantly on guard during his moments of Jeisure. If he should
simply take a walk, he may be challenged to prove that he is not
'an idle and disorderly person' ... If he should happen to be upon

any road crossing a farm, or near a dwelling house or shop or store,
he may be challenged as a Joiterer and arrested without a warrant by
any police officer or any owner or occupier of land on which he
may happen to be ... 6"

As was pointed out 7 in the reply to paragraph 130 of Chapter V of
the Memorials 8,the Applicants create the impression that the provisions
of the Vagrancy Proclamation 9 apply to Natives only. This is not the
case---it applies to all persons.
10
As has also been stated , the Vagrancy Proclamation is not enforced
in the northem territories and is seldom, if ever, applied in the Native
reserves within the Police Zone.
128. There is no substance in the allegation that a Native-or for

that matter any person-who "simply take[s] a walk", or "happen[s) to
be upon any road crossing a farm, or near a dwelling house or shop or
store", may be arrested without a warrant n. Section 1 of the Proclama-

1l, p. 149.
2 Proc. No. 56 of 19.~1 (S.W.A.), sec. 25, inThe Laws of South West A/rica I95I,
Vol. XXX, pp. 140·143.
3 Vide Chap. 111, para. 187. supra.
• I, p. 147.
, Proc. No. 56 of 1951 (S.W.A.), secs. io and 22, in The Laws ofSouth West Africa

I96I, Vol. XXX, pp. JO!l·110, 130-137.
1, p. 150.
7 VidtChap. Il, para. 10,supra.
8 1, p. 144.
9 Proc. No. 25 of 1920 (S.W.A.), in The Laws of South West Africa r9z5-I9z2,
pp. 280-286, as amended by Froc. No. 32 of 1927 (S.W.A.), în The Laws of South
West Africa r927. pp. 244-246.
• Vide Chap. II, para. 22, and footnote 3 to para. 23, sup;,,:i,.
111, para. 153, p. 150. SOUTH WEST AFRICA
334

tion applics to "Any pcrson found wandering abroad and having no
visible lawful means, or insufficient lawful means of support ... " 1•

Possession of a pass, for example, indicating cmploymcnt or permission
to look for employmcnt, would by itself take a persan out of this category.
Section 3 agai11applics to any pcrson found without the permission of
the mcmer"wandering" ovcr a farm, or "loitering" near a dwclling house,
shop, etc. 2

129. lt is not disputed that the danger exists that an inhabitant of
the Tcrritory ma.y be unlawfully arrested by a persan purporting to act
under the Vagrancy Proclamation-but thcn the danger of unlawful
arrcst exists whencver a power of arrcst is conferred by law. And, as has
been shown 3, section 15 of the Proclamation makes it an offence for any
person-

"... who shall, under colour of this Proclamation, wrongfully and
maliciously, or without probable cause, arrest, or cause to be
arrcsted, any person ... i"

(j) The Movemc11t of Natives in the Area lnhabited by the White Croup

130. The allegation in paragraph 153 of Chapter V of the Memorials

that "if ... ra Native] leaves the confines of his place of residence or
place of cmployrncnt, he does so at his peril, for he may be challenged
at any moment to produce a pass ... " 5,is not correct, since, as has been
shown 6 in the rcply to paragraphs 133 and 146 of Chapter V of the
Memorials 7, the relevant provisions of Proclamation No. II of 1922
(S.W.A.) do not app1y to:

(i) Native females, and males of the age of 14 or less;
(ii) exempted Natives;
(iii) any Native when in a Native reserve or Native residential area.

131. It îs consequently clear that the relevant provisions of the Pro
clamation by no means affect al! Natives, and in any event, do not
affect any Native while carrying on his normal activities in the Police
Zone. It is only when a Native travels in the Police Zone beyond the
confines of his place of residence or employment, that these provisions
corne into play, and, as the required passes or permits are easily obtain
ahle, the system does not cause any undue inconvenience.

It may be pointed out that on administrative instructions the Police
make summary arrests for contraventions of the pass laws only in ex
ceptional circumé,tances.

(k) !die Persons in Proclaimed Areas

r3z. Although the aUegation in paragraph r53 of Chapter V of the
Memorials that-·

1Proc. No. 25 of 1920 (S.W.A.), sec.1,inThe Laws of South Wesl Africa r9r5-r922,
p. 280.
i Ibid., sec. 3 (1)p. 280. Vide Chap. II, para. 8, supra.

l Vide Chap. Il, para. 51,supra.
• Proc. No. 25 of 1920 (S.W.A.), sec. 15, in The Laws of South West A/rica r9r5-
z922, p. 2!,4.
6 I, para. 153, p. i50.
Vide para. 62 el seq.supra.
1 I, pp. 145, 148, GOUNTER-MEMORIAL OF SOUTH AFRICA
335

"... [a Native] ... may find himself arrested without a warrant at
any time within a proclaimed area by any officer who suspects that

he may lack a sufficient means of livelihood ... 1.''
is substantially correct, it is to be observed:

(i) that such an officer must have reason to suspect that a Native whom
he intends arresting is an idle person; and
(ü) that a Native is an idle person only if he has no sufficient honest
means of livelihood and is habitually unemployed 2•

The further allegation that such a Native may also be arrested if an
authorized officer has reason to believe that "he has absented hirnself
during working hours from his employ~r's premises", is not correct 3•

133. As was pointed out• in the reply to paragraph 134 of Chapter V
of the Memorials 1, the provisions of section 26 of the Natives (Urban
Areas) Proclamation 5 are complementary to those of the Vagrancy

Proclamation, and were designed to combat a similar evil. These pro
visions, which apply only to towns in the Police Zone, were, moreover,
designed to promote the interests of the Native residents of proclaimed
areas by preventing such areas from becorning overcrowded by un
ernployed Natives. For this reason an idle Native who is not prepared
6
to work and so mend his ways, may be removed from such an area •

(1) The Deportation of Undesirable Persans /rom the Territory

134. In the concluding sentence of paragraph 153 of Chapter V of
the Mernorials the Applicants allege:
''... any interchange with any other person rnay subject ... [a

Native] to arrest and expulsion from the Territory, if the Minister
of Bantu Administration and Development in his uncontrolled dis
cretion should choose to interpret the interchange as faUing into
any one of several extremely vague categories 7".

This allegation does not correctly reflect the powers conferred by
section I of the Undesirables Removal Proclamation 8, since, as was
pointed out 9 in the reply to paragraphs 136 and 137 of Chapter V of
the Memorials 10, the provisions of this section-

(i) apply to all persans falling within their ambit; but
(ii) do not apply to any inhabitant of tl!"Territory.

As these provisions relate to foreigners only, it is respectfully sub
mitted that they are irrelevant to the present proceedings.

1I, p. 150.
2 Vide Chap. II, paras. 65-66, supra.
1 Ibid.,para. 68.
• Ibid., para. 70.
' Proc. No. 56 of 1951 (S.W.A.).
6 Vide Chap. II,para. 73, supra.
7 1, pp. 150-151.
8 P~ot. No. 50 ai 1920 (S.W.A.), sec. I, in The Laws of South West Af,..ica r9r5-
I922, PP· 424-425.
9 Vide Chap. II, paras. u1-112, supra.
10 I, p. r46.336 SOUTH WEST AFRICA

(m) Summary: The Position of Natives in Reserves in the Police Zone

135. Of the provisions cnumcratcd in paragraph n5 above, only (i)
or (ii}and (viii} could possibly apply to Natives resident in reservcs m

the Police Zone. 1t is cvidcnt that any one Native would not be required
to removc from a rescrvc, and to move to anothcr place in the reserve 1•
lt is rnorcovcr inconceivablc that action under the Vagrancy Procla
mation 2 wouk\ be takcn against a Native in a reserve if it were decided

to ordcr him to remove from the reserve or to move to another place
in it.
The othcr provisions could not apply sincc:

Re (iii): Proclamation No. 29 of 1935 (S.W.A.} applies only to Natives
residcnt in the northcrn territorics 3•
Re (iv): Only for-eign Natives require a permit to enter the Terri tory*.

Re (v}: Section 25 of Proclamation No. 56 of 1951 (S.W.A.} applies onlf
to proclaimcd areas within the arca inhabited by the White group ;
Re (vi}: Curfew n:strictions do not apply to any place in a Native reserve 6•
Re (vii): The urban arcas from which unemployed Natives may be
1
removed arc ail situated in the area inhabited by the White group •
Re (ix): In tcrms of Proclamation No. II of 1922 (S.W.A.) Natives have
to be in possession of passes, ù1teralia, only when they travel beyond
the confines of their rcscrvcs 8•
9
Re (x): There are no proclaimed areas in Native reserves •
Re {xi): Only foreigners may be deported from the Terri tory. 10

(n) Summary: The Position of Natives in the Northern Territorie.s

136. The only provision of those enumerated în .paragraph n5 above
which is applicable to Natives of the northern territorres while resident
in their reserves, is that rrientioned in (ii),in terms of which a Native

living in a reserve may be _required to remove to so~~ other r.lace in _it.
· For the reasons set out m paragraph 135 above, (m) to (vu) and (1x)
to (xi) could not apply to such Natives. Furthermore, (i) and (viii) could
not apply since:

Re (i): Only Natives resident in reserves in the Police Zone may be
required to remove to another place in the Territory 11•

Re (viii): The Vagrancy Proclamation is not enforced in the northern
territories 12•
It is only when such Natives wish to enter the Police Zone that (iii)

cornes into play and that identification passes have to be obtained 3•

1 V ideparas. II 6-I 20supra.
2 Froc. No. 25 of 1920 (S.W.A.). Vide paras. 127-129, supr4.
3 Vide para. 121, supra.
• Vide para. r23, supra.
5 Vide para. 124, supra.
6 Vide para. 125, supra.
7 Vide para. 126, supra.
8
Vide para. r30, supra.
~ Vide para. 133, supra.
10 Vide para. 134, supra.
11 Vide para. u7, supra.
n Vide para. r27, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 337

(o) Summary: The Position of Natives in the Rural Areas of the Police Zone

137. The following provisions of those enumeratcd in paragraph rr5
above apply to a Native in the rural areas of the Police Zone (exclusive
of the Native reserves): (viii), (ix) and, should he enter ;_,1urban or a

proclaimed area, (v), (vi},'(vii) and (x). As regards (ix). such a Native
requires a pass only ifhe Icaves the place of his employment or residcnce 1,
and the possession of such pass would ensure that no action is ta.ken
against him in terms of the Vagrancy Proclamation {viii) 2 .
The following provisions could not apply to such a Native as long as he

remains in a rural area:
(i} and (ii), which apply only to Natives in reserves J;
{iii), which apphes only to northem Natives 4 ;
5
(iv) and (xi). which apply only to foreigncrs ;
(v}, (vi), (vii) and (x), w_hichapply only to urban and proclaimed arcas 6•
q
(p) Summary: The Posi"tion of Natives in Urban and Proclaimed Areas

138. Of the provisions set out in paragraph II5 above, only the follow
ini;, apply to Natives resident in urban or proclaimed areas: (vi), (vii},

(v1ii), (ix) and (x).
The other provisions could not apply since:
Re (i) and (ii): These provisions arc applicable to Natives in reservcs 3.

Re (iii): Only northern Natives require an identification pass •.
Re (iv) and (xi): These provisions apply only to forcigners 6•
Re (v): Section 22 of Proclamation No. 56 of 1951 (S.W.A.) applics only
to newcomers to proclaimed areas 7•

139. It is to be observed that ifa Native is in possession of an exemp
tion certificate tt,action can not be taken against him under any of the
provisions applicable to Natives living in urban or proclaimed areas.
Moreover, ernployed Natives in such areas would never be proceeded
against under (vii), (viii) or (x), since these provisions are dircctcd

against habitually idle Natives.

E. Conclusion

140. In their complaints regarding freedom of movement the Appli
cants have stressed certain statutory restrictions on Natives, without
taking into consideration the provisions limiting the movement of Wlùte

and Coloured persons, and without paying any regard to Respondent's
pass or permit policy as a whole. Their allegations that Respondent-
"... has given consideration solely to the convenience or advantage

of the Mandatory govemment and of the 'European' citizens and
residents of the Territory 9",

1 Vide para. 13r, supra.
2 Vide para. 1:18,supra.
3 Vide paras. u7 and n9, supra.
4 Vide para. 121, supra.
' Vide paras. 11.3and 134, suP,,a.
' Vide paras. 124-126 and 133, supra.
7 Vide para. 124, supra.
1 Vide para. 95, supra.
9 I, para. 154 (5),p. 151.338 SOUTH WEST AFRICA

and that Respondent-
"... has followed a systematic course of positive action which

thwarts the well-being. inhibits the social progress and frustrates
the development of the great majority of the population of the
Territory in vital and fondamental aspects of their lives 1",
are consequently based on a one-sided approach directed only to certain

facets of the said policy, and are unfounded.
141. The Applicants have further alleged that Respondent has by an
"intricate system" almost completely denied liberty of movement to the
Natives 2•No factual proof of this allegation has been furnished by the

Applicants, and Respondent submits that the above survey of the con
text and reasons for the provisions applicable to Natives demonstrates
that the allegation is without substance.

1 1,para. 154 (5), p.157.
2 Ibid .• 15x. CHAPTER V

CONCLUSION

1. In paragraph 190 of Chapter V of the Mcmorials 1,under the head
ing "Legal Conclusions", the Applicants allegc that Respondent "has
violated, and continues to violate its obligations as stated in the second
paragraph of Articfo 2 of the Mandat& and Article 22 of the Couenmit"

m a number of respects. As regards ''security of the pcrson", "rights of
residence" and "freedom of movement", the Applicants enumerate 2
almost verbatim the charges contained in paragraph 154 of Chaptcr V
of the Memorials 3.

2. Respondent has dealt with these charges in the prcccding chapters,
and it is consequently unnecessary to deal with the relevant "lcgal con
clusions". Suffice it to reiterate that the said charges, and thcrefore also
the said conclusions, are unfounded and without substance.

1 1,pp. 162 ff.
2 lbid.,para. 190 (iii), pp164-165.
3 Ibid., pp.151-t52. BOOK VII

CHAPTER I

INTRODUCTION TOBOOKVII

1. At pages 152 to 161 of the Memorials, Applicants deal very briefly

with the system of education, educational policies and various aspects of
administration of education in South West Africa. On their description
of the policies applied in education and the facilities offered to the
different population groups, Applicants charge Respondent with unfair
discrimination against the Native population of the Territory. The
respects in which they allege that there is such discrimination are
summarized by Applicants as follows:
"In sum, the Manda tory bas failed to use thepossibilitiesofeduca
tion to rromote the wellabeing, the social progress and the develop

ment o the overwhelming maiority of the people of South West
Africa. To the contrary, through deliberate and systematic control
of the processes of education, the Mandatory has taken positive
action which drastically restricts opportunities for education for
'Native' children and 'Native' young men and women, and which
curtails the opportunities, restricts the rewards and depreciates the
status of 'Natives' who do manage to acquire some vocational
education (e.g.,teachers, nurses, engineering assistants). ln this way,
the Mandatory bas removed opportunities for any significant
improvement in the well-being. social progress and development of
the preponderantly 'Native' population of the Territory ." (Italics
added.)

It isupon the basis of these charges that Applicants advance the conten
tion in their "Legal Conclusions" 2that with regard to education Res
pondent has in several respects violated its duty under the Mandate in so
farastheNati'Ue population o/ theTerritoryis concerned.
2. In their introduction to Chapter V of the Memorials 3, which deals
also with the subject of education, Applicants make the general allegation

that Respondent-
..... has ... failed to promote ... [the) material and moral well
being and social progress [of the people of South West Africa] in
any significant degree whatever".
3. Respondent denies that in its administration of education in South
West Africa it has unfairly, or with improper motives, discriminated

against any section of the inhabitants of tlie TeiTitory, or that it has
faîled in itsduty to promote the well-being and progress of the inhabi
tants.
4. To understand and to appreciate the reasons and objectives under
lying Respondent's educational policies and administrative measures, it

1 1,pp. 100-161.
2 Ibid., pp.165-166.
' Ibid.,p. 108.342 SOUTH WEST AFRICA

is necessary to view and consider the matter in the wider picture of the
history of South West Africa, the geographic and economic circum
stances of the Territory, and the differences in the languages, cultures
and aspirations of the various population groups in the Territory and
their varying stages of advancement.

lt would be entirely unrealistic simply to draw superficial comparisons
between conditions and facilities in education as they exist for, on the one
band, the European population group, and, on the other hand, the various
Native groups, without due consideration of all relevant circumstances
and factors which either directly or indirectly bear upon the formulation
of sound policies of administration. And likewise, in considering whether
Respondent has, or has not, failed in its duty to promote the well-being
and progress of the inhabitants in the sphere of education, itis necessary,
inter alia, to compare conditions in education as they exist in the Terri

tory today, with conditions as they werc when the Mandate was conferred
upon Respondent, and with conditions in comparable States.
5. The subject of education wiUaccordingly be dealt with hereinafter
against the background of relevant historical facts and in the light of the
particular circumstances of South West Africa and of its peoples, and an
account will be given of progress made since the inception of the Mandate,
with a comparison of conditions in other Territories in Africa where
there are more or less comparable communities or groups with the same

basic·educational problems.
6. At the outset it is, however, necessary to draw attention, in explan
ation of Respondent's treatment of the subject, to the following matters:
(a) Aithough it is Respondent's contention that the Mandate has
lapsed 1, Respondent wilI nevertheless, in dealing with Applicants'
charges, assume, for the purposes of argument, as it has clone in the

other parts of its reply ta Chapter V of the Memorials, that the
Mandate is still in force.
(b) Inasmuch as Applicants' case is, as in the whole of Chapter V of the
Memorials, confined to alleged unfair discrimination against the
Natives of South West Africa, and as no complaint is made with
regard to the education of Coloured persons 2,a full account of edu
cation of the Iast-mentioned group does not appear to be necessary.
In the premises. and to avoid unnecessary burdening of what is
already an extremely lengthy pleading, Respondent will deal with

the education of Coloured persans only in so far as certain aspects of
the education of that group are touched upon by Applicants in their
"Statement of Facts", or in so far as it may otherwise be necessary
for the purpose of explaining Respondent's policies, or for purposes
of clarity,or the like.
(c) Where reference is made by Respondent to educational policies
applied, or conditions prevailing, in other States, it is, as is the
position throughout this Counter-Memorial, not done with the
object of disparaging or criticizing such States. It is done for the
sole purpose of demonstrating that particular circumstances and
conditions create elsewhere in Africa, as they do in South West

1 Vide Book Il, Chap. V, of this Counter-Memorial.
~ Vide summary of complaints at pp. 159 and 161 of the Memorials and legal
conclusions at pp.1f,5-166. COUNTER-MEMORIAL OF SOUTH AFRICA 343

Africa, difficulties and problems which hamper or retard educational
advancement, or compel the adoption of particular policies in
education. Only by comparing conditions and standards in South
West Africa with those in other States where there are more or less

comparable communities with comparable educational problems, can
there be a fair evaluation of Respondent's achievements in South
West Africa. CHAPTER II

THE HISTORYOF EDUCATIONIN SOUTHWESTAFRICABEFORE

THE MANDATEWASCONFERRED

A. Establishment of Mission Schools for Natives

1. The history of education in South West Africa dates back to the
early years of the nineteenth century, when European missionaries
started mission work amongst the Natives in the southern part of the
Territory. Until then no education in the western sense had existed
among the Natives. During the period 1805 of 1842 missionaries of the

London and Wesleyan Missionary Societies established themselves in
the Territory, but they had to cope with immense difficulties and did
not make much progress. They finally left the field in 1842, when mis
sionaries of the Rhenish Missionary Society started work in Damaland
and Namaland 1. This Mission carried a lone burden in the Territory

until 1870, when missionaries of the Finnish Missionary Society came
to Ovamboland 2• Thereafter, in 1888, the Catholic Church sent mis
sionaries to Namaland, and in 1896 also to Damaland. At about the turn
of the nineteenth century the Rhenish Mission started work also in
Ovamboland 3.

2. The first mission school in the Territory was established by the
London Missionary Society at Warmbad in the south in 1805, but it was
almost 40 years bcfore the next school came into being i. Progress was
made after the advent of the Rhenish missionaries, although conditions

were by no means conducive to peaceful development. As described
elsewhere in thi:; Counter-Memorial 5,the Native groups were often at
war with each other, and furthermore, their nomadic habits made it
extremely difficult to establish schools which had any permanency 6•

3. After the e.5tablishment of the German Protectorate over the Ter
ritory in 1884, the various missions were left free to carry on their
relig1ous activities and to establish schools. The education of the Native
population was for all practical purposes left completely in their hands.
The Territorial Government reserved to itself the right to inspect mis
7
sion schools, but there is no evidence that this rîght was ever exercised •
The Govemment's own efforts to provide education for Natives were
confined to Windhoek, where a European teacher was appointed in 1894
to instruct young Native boys in German and arithmetic, and young

1Lernmer, C. J.C., Onderwys in Suidwes-Afrika (Unpublished Thesis, University
of South Africa, 1934), pp. 3-4. Darnaland was the name of the area occupied by

the2Hereros, who were also referred to as the Dama[ra] of the Plains.
Ibid.p. 33.
3 Ibid., pp. 33·3·•· Vide also U.22-I929, p. 68.
4Lemrner, op. dl., pp.3, 33-31·
' Vide Respondent's genera\ account of history in Book III of this Counter
Memorial.
6Lernmer, op. cit.p. 31.
' Ibid., p. 37. COUNTER-MEMORIAL OF SOUTH AFRICA
345

Native girls in housework. In 1895 courses in German and arithmetic
were instituted for Natives who were in the employ of the Government •
Ali the mission societies made it their task to establish schools in con

junction with their religious activities, and by the end of the German
regime in 1915 there were, as far as can be determined, about n5 mis
sion schools, wfrh approximately 5,490 pupils, in the whole of the Ter
ritory 1• This number included pupils of all ages-<:hildren and adults
who attended school and Sunday-school classes. In Ovamboland,larti

cularly, much of the instruction given was of a purely religious kin .

B. Subjects Taught in Native Mission Schools

4. The subjects taught in the different Native mission schools varied,
and the work done was not of a uniform standard. At the Rhenish
Mission schools the curricula and syllabuses were largely determined
in the light of local circumstances and according to the ability of the

teachers. In most schools instruction was given in religion, German,
reading, writing and arithmetic, and in some also in history, geography
and a few practical subjects 3• In the Catholic schools attention was
largely devoted to religion and to practical subjects such as woodwork,
building, brickmaking and gardening, while girls were taught ironing,
4
needlework and cooking • In Ovamboland, where conditions were more
primitive than in the Police Zone, the Finnish Mission schools con
centrated largely on religious instruction. In these schools there were no
separate classes, and the sa.me course was offered to ail pupils. The older
and more intelligent pupils usually completed the course in two or three
5
years, while others sometimes took as long as six or seven years •

C. Teachers in Native Mission Schools

5. Initially the only teachers at mission schools were the missionaries
themselves, but with the passage of time they trained the more intelli
gent of their pupils to assist them in their work 6• The first training

school for teachers in the Territory, called the Augustineum, was estab
lished by the Rhenish Mission at Otjimbingwe in 1866. This school was
la.ter transferred to Okahandja 6• In about 1go5 the Catholic Church
established a training school at Doebra near Windhoek 7, and in 1913
the Finnish Mission established a similar school at Oniipa in Ovambo
8
land •These institutions gave instruction of a very elementary kind, and
were very little, if anything, more than present-day lower primary
schools.

• Lemmer, op. cit., pp37, 39·
2 Ibid.,p. 36.
3 Ibid.,pp. 39, ,p.
• Ibid.,p. 42.
' Ibid.,p. 40.
6 Ibid.,p. 43.
1 Ibid., p. 44.
a Departmental information. SOUTH WEST AFRICA

D. Financing of Native Mission Schools

6. The mission schools received no financial assistance from the
German Govemment until 1902. As from that year subsidies were
granted to those schools which could satisfy district boards that they had
given proper attention to the teaching of the German language and that

their pupils had made satisfactory progress in learning that language.
The subsidies were granted under a budget item styled "Zur Verbreitung
der deutschen Sprache". In 1902 the total subsidy was 5,000 RM; in
1903 it was 7,000 RM; and as from 1909 it was 9,000 RM per year 1•
Save for such subsidy provided by the Govemment, the miss10n schools
were financed entirely by the respective missions.

E. Schools for Coloured Persons

7. Both befoni and during the German regime Coloured children, the
off-spring of European fathers and Native mothers of the Territory,

usually attended the same schools as Native children. These Coloured
children, called "Half-Whites" by the Gerrnans, were not accepted in
European society and, in many instances, also not in Native society,
and it was felt intime that their interests would best be served in separate
institutions. There is evidence that as early as the 1870s the presence
of such ''Half-White" children caused friction at mission schools where
2
the majority of pupils were Native children •Their numbers were very
small, however, and as they were scattered over a vast terri tory, there was
never a sufficient supply of teachers to allow of any general scheme of
separate schools for all such children. A few separate institutions for
them were, how,~ver, established. In about 1890 the Rhenish Mission

established such an institution at Okahandja, and shortly thereafter
also at Keetmanshoop 3• In 1903 the Roman Catholic Church also
established a separate institution for Coloured children ~.
The Rehoboth Basters, as already mentioned 5, were a more-or-less
homogeneous grcmp who fohabited their own Gebiet at Rehoboth as
from about 1870. A school was established for them in their area soon

thereafter, and although some Native children also attended this school,
the Basters at all times looked upon themselves as a separate and distinct
group, and preferred to have separate schools for their children.

F. Schools for the White Group

8. The first school in the Territory for European children was estab
Hshed by the Rhenish Mission at Otjimbingwe in 1876, and, except for
a short interruption during the years 1891 to 1894, thls school remained
in existence until 1901, when the mission station at Otjimbingwe was
closed down 6.

1
Lemrner, op. cilp. 37.
i Schutte,C. H. J.,Kleurlingonderwys in Suidwes-Afrika (Unpublished Thesis,
Un3versityof South Africa, 1924),p. 14.
Ibid., pp. I7-18.
~ Ibid., pp20-21.
~ Vade Book III, Chap. III, paras. 34, 37, 88 and 89, of this Counter-Memorial.
~ Lemrner, op. cil.pp. 72, 73 and 73bis. COUNTER-MEMORIAL OF SOUTH AFRICA 347

The second school was established at Windhoek in 1894 for the children
of German settlers in the vicinity. This school was, however, closed down
after four years as a result of disagreement between the parents, some
contending that the school offered too little, while others maintained
1
that much of what was taught was not needed in a pioneer community •
From about 1900 concerted efforts we1e made by the authorities to
establish schools for the children of European settlers, who were by
then no longer confined to Windhoek and its vicinity. By 1904 there were
six government schools in various parts of the country. Thereafter the

wars with the Herero and Nama 2retarded development for some time,
but between 1906 and 1913 four additional schools were established in
the northern part of the Police Zone, four in the central area, and seven
in the south 3•

9. Two secondary schools, one for boys and one for girls, were estab
lished by the Catholic Church at Windhoek in 1906. The boys' school
was closed shortly after the establishment of the "Kaiserliche Realschule"
in Windhoek in 1909, but the girls' school was still in existence at the

time when South Africa assumed the Mandate over the Terri tory 4.
The "Realschule" at Windhoek was modelled on a German "Real
schule", except that English was initially taught as first foreign language
instead of French 5•A similar "Realschule" was established at Swakop
mund in 1909 6,and a third at Luderitzbucht in 1911. The last-mentioned

school was, however, closed down after some months because the German
Government refused to provide it with financial aid 7•
At the end of the German regime there were 17 primary schools for
European children in the Territory, two secondary "Realschulen" and
one private Catholic secondary school for girls.

G. Factors in Development of European Education

10. A feature of the development of education of the Europeans during
the German regime was the active part played by the "Schulvereine",

associations of parents who interested themselves in the education of
their children 8•
Another important factor was the introduction, in 1906, of a measure
which made attendance at school compulsory for all European children

living within 4 kilometres of a school. In 19n attendance was made
compulsory also for children living more than 4 kilometres from a school,
save that they were not required to attend school for more than four
years. Children living within the 4-kilometre Jimit were obliged to attend
school for eight years 9• Circumstances made it impossible. however, for

ail children to attend school, despite the Govemment's policy of pro
viding hostel facilities at schools in towns and in the more denselypopu-

1 Lemmer. op. cil.,pp. 74-76.
i Vide Book Ill, Chap. III, paras. 76-81, of this Counter-Metnorial.
3 Lemmer, op. cit.p. 78.
• Ibid., pp.114-115.
~ Repo~t of the Education Commission I958 (S.W.A.), para. 13,p. 12.
6 Lemmer, op. cit.pp. 120-121.
1 Ibid.,pp. 121-123.
• Ibid.,p. Bo.
9
Ibid., pp. So, 99-100. SOUTH WEST AFRlCA

lated cowltry anas. The sparse population, spread over a vast territory,
made it impossible to bring schools within a reasonable distance of ail
children of school-going age. A further consideration was that Afrikaans
speaking settlers from South Africa were averse to sending their
children to German schools, where an avowed policy of Germanization
was followed throughout the whole period of the German regime.

Farmers from South Africa had been among the very first settlers in
South West Africa, and by the time the German Protectorate was
established in 1884 there was already a fair number of them in the vicinity
of Grootfontein. Later, especially during and after the Anglo-Boer War
(1899-1902), many more came to the Terri tory. By the end of the century

settlers from South Africa constituted about 22 per cent. of the entire
European population of South West Africa 1• The German authorities
encouraged the immigration of farmers from South Africa, and they were
allowed to establish priva te schools for their children. From 1902onwards,
however, South African parents were required to send their children,
when between the ages of IO and 15, to government schools for a period

of at least two years, and durin 1 that time they were obliged to stay in
hostels attached to such schools .

H. Financing by the German Govemment of European Education

II, The exact amounts spent on Europèan education by the Govern
ment during the German regime cannot be determined. All that is known
are the amounts reflected in the budgets from year to year. The total

recurring expenses budgeted for rose from r,700 Mk in the financial year
1896-1897 to 329,6oo RM for the year 1914-1915 3•
By the end of the German regime the White section of the community
was served by a well-developed primary and secondary school system,
which provided education for about 800 primary and secondary pupils
4
in 20 schools, all of which, save 4, had hostel facilities •

1.The First World War

12. The First World War disrupted the work of the missionaries
in South West Africa, and many Native mission schools were closed for
5
the duration of the war, and even for some time thereafter •
The war also forced the European schools in the Territory to close
down, but this was not for very long. After the surrender of the Territory
to the South African military forces 6,the military authorities allowed
the German schools to remain under the control of the Germans in the
Territory, and these schools were then conducted as private schools by
7
the German "Schulvereine" •

• Lemmer, op. cir.pp. 1,86-89.
z Ibid., pp. 87-88.
l Ibid., p. 108.
• Departmental information. •
5 It was only in r923, for example, that the Rhenish Mission reopened the Augus
tineum training scbool for teachersat Okahandja, and it was not until 1924 that
the Roman Catholic training school at Doebra was reopened; vide Chap. V, para.

23,5infra.
On 9 July 1915.
7 Lemmer, op. cit.pp. 129-130. COUNTER-l,ŒMORIAL OF SOUTH AFRICA. 349

J. The Period of Military Occupation, 191:5-1920

13. Towards the end of 1915 the families of civil servants, railway
personnel and military oflicers and men started to corne to the Territory
from South Africa, and within a short time considerable numbers of
South Africans found themselves in all parts of the country. These
people, whose presence was necessary for proper administration of the
Territory, required educational facihties for their children, and as the

only schools then in existence were German-medium private schools,
the provision of more schools soon became a pressing necessity.
The first school for South African children was established at Wind
hoek in November 1915. In 1916 the South African Government ap
pointed an organizing inspector of education for the Territory, whose
task it was, inter alia, to build upa school system based on that of the
Cape Province in South Africa and to provide for the educational needs
of the children of South Africans in the Territory 1•
Rapid development followed, and by the time South Africa was

entrusted with the Mandate, there were in the Territory, in addition to
German-medium private schools 2, 23 govemment schools accommo
dating 975 European pupils, 215 of whom were housed in 9 hostels,
with 55 teachers in employment 3•
During the period of military occupation numbers of Cape Coloured
people came from South Africa, mainly to work on the railways in South
West Africa. The South African authorities imported Coloured teachers
from the Cape Province to teach the children of these people in separate

classes which were instituted at the mission schools.

K. The Position at the Time when the Mandate was Conferred

14. The aforegoing historical survey shows that at the time when
the Mandate was assumed, Native education was in the hands of certain
missionary societies, which had established and were conducting mission
schools for some of the Native grnups. There were separate facilities,

although limited, for the Colou.red grou:p, including the Rehoboth
Basters, and separate government and pnvate schools for the White
group.
While Native education was still in an infant stage, the White group
was served by an established and well-developed system of primary
and secondary education.
At no time in the history of the Territory, either before or during the
Gennan regime, had European and non-European children attended
the same schools.

1 Lemmer, op.cit.pp. 157-158.
2 Vide para. u, supra.
3 Departmenta.1 information. CHAPTER III

THE CONTROLAND ADMINISTRATION OF EDUCATIONIN soum

WESTAFRICAAFTERCONFERMENT OFTHE MANDATE

A. Legislative and Administrative Powers

I. Pursuant to the powers conferred upon him by the Treaty of
1
Peace and South West Africa Mandate Act, 1919 (Act No. 49 of 1919) ,
the Governor-General of South Africa, by Proclamation No. 1 of 1921,
delegated his power to legislate by proclamation to Respondent's
representative in the Territory, the Administrator of South West Africa 2•
This power to legislate for the Territory, inter alia, also in respect of
education, remained vested in the Administrator until 1949.

Ey the South West Africa Constitution Act, 1925 (Act No. 42 of 1925),
the power to legislate in relation to, inter alia, "primary or secondary
education in schools supported or aided from the revenues of the terr1-
tory" 3, was conJerred also on the Legislative Assembly of South West
Africa. This power could in terras of the said Act, however, be exercised

within the first three years only with the consent of the Governor
General previously obtained, and alter the said period only ifthe Gover
nor-General by proclamation declared the Assembly competent to
legislate in respect of education 4.

2. The position remained as stated above until 1949, when the Legis
lative Assembly of South West Africa became entitled by the South
West Africa Affairs Amendment Act, 1949 (Act No. 23 of 1949), to
legislate, inter aHa, in relation to education, without the consent of the
Governor-General. This is still the position today 5•
The legislative powers of the Assembly are, however, subject to con

trol in that the Administrator bas the right to reserve any Ordinance
for the signification of the pleasure of the Governor-General (now the
State President) of South Africa 6•
Furthermore, full legislative powers over the Territory have been re
tained by the Parliament of South Africa, which may by Act override
7
any Ordmance of the Legislative Assembly of South West Africa •
3. Full administrative powers relating to, inter alia, education in the
Territory, have at all times been vested, and are still vested, in the
Administrator of South West Africa. Until 1949 such powers were

1
2Act No. 49 of c919, sec. 2(c),in The Laws of South West Afric4 I9I5-I9zz, p. II.
Proc.No. 1of rgzr (S.A.), 2 Jan. 1921, inThe Laws of South West Africa r9I5-
I9zz. p. 46.
3Act No. ,p of 1925, sec. 27 (1)(c),in Statutes oj the Union of South Africa 1925,
p. 754.
• Ibid., sec27, pp. 754-756.
' Sec. 27 of Act No. 42 of 1925 was repealed by sec. 17 of Act No. 23 of 1949;
vide The Laws of South West Africa I949, Vol. XXVIII, p. 178.
6 Act No. 42 of 1925, sec. 32, iStatutes of the Union of South Africa I925p. 758.
7 Ibid.,sec.44, pp. 764, 766, as amended by sec. 22 of Act No. 23 of 1949; vûh
The Laws of South West Africa 1949, Vol. XXVIII, p. 180. COUNTER-MEMORIAL OF SOUTH AFRICA 351

exercised by the Administrator with the assistance of an advisory

council, and since 1949 by the administrator-in-executive-committee.
4. What is stated in the aforegoing paragraphs does not apply to
that part of the Territory known as the Eastern Caprivi Zipfel, whlch
is at present not administered through the South West Africa Adminis
1
tration •

B. Administration of Education

5. The ftrst law passed in relation to education in South West Africa

after the Mandate was assurned, was Proclamation No. 55 of 1921
(S.W.A.), whlch came into, operation on 1 January 1922. This Pro
clamation was, with the exception of certain provisions thereof, re
pealed by Proclamation No. 16 of 1926 (S.W.A.), which, as amended
from time to time, is still in force.

Proclamation No. 16 of 1926 (S.W.A.) will be superseded by Education
Ordinance No. 27 of 1962 (S.W.A.) 2•
The said Education Ordinance will corne into operation on a date
to be notified by proclamation. As yet such date has not been proclairned.
In terms of Proclamation No. 16 of 1926 (S.W.A.), as amended, as

was the position under Proclamation No. 55 of 1921 {S.W.A.), the general
control, supervision and direction of education are vested in the Ad
ministrator 3•
The Department of Education, in charge of which is the Director of
Education 4, is the central educational authority and is responsible, inter

alia, for the performance of all work necessary for, or incidental to, the
control of education, including the establishment, maintenance and
general control of schools, the framing and application of syllabuses of
instruction, the instituting and conducting of examinations and the
inspection of schools, teachers and pupils 5•

The Administrator is empowered to appoint inspectors of schools
and other special officers to assist in the work of the Education Depart
ment 6, while the Director may appoint departmental organizers to
assist in organizing and superv1sing the teaching of special subjects 7•

6. In the exercise of the powers aforestated, appointments h~ve been
made from time to time of an increasing number of officers employed
as assistants to the Director, inspectors, supervisors and organizers.
The growth of such staff over the years is reflected in the following
table:

1 Vide Chap. V, para. S2, infra.
2 Promulgated under G.N. No. u6 (S.W.A.), 4 Ju!y 1962, in Official Gazette
Extraordinary of South West Africa, No. 2413 (4 July x962),pp. 878-919.
3 Proc. No. 16 of 1926 (S.W.A.), 15 Sep. 1926, sec.2, in Laws oj South West
A/rica, Vol. II (x923-1927), p. 228, Froc. No. 55 of r921 (S.W.A.), 19 Nov. 1921,
sec. 2(a), in The Laws of South West Africa r9r5-r9zz, p. 633. Vide para. 4, supra,
as to the position in the Eastern Caprivi Zipfel.
• Proc. No. x6 of 1926 (S.W.A.), sec. 4 (1),in Laws of South West Africa, Vol. Il,

(1923-1927), p. 230.
6 Ibid., sec. 4(2),p. 230.
Ibid., sec. 5, p230.
7 Ibid., sec. 5bis (1), p. 230. SOUTH WEST AFRICA
352

1921 1951 1961 1963
(a) Dir~tor (a) Director (a) Director (a) Director
ofEducation of Education of Education of Education
(b) t Inspector (b) 5 lnspectors (b) Deputy Director (b) Dcputy Director
of Schools of Schools of Education of Education
(1 medical) (c) Professional (c) Professional
(c) 2 Organizcrs Assistant Assistant

(d) 7 lnspcctors (d) 8 Inspectors
of Schoo1s of Schools
(e) 6 Organizers (e) 6 Organizers
(/) 4 Guidance (I) 2 Professional
Officers Assistants to
Native Inspectors
of Schools
(g) 3 Supervisors
(h) 4 Guidance
Officers
(i) Chief of
Language Bureau

In addition to the staff aforementioned and the members of the

teaching staff employed in the various educational establishments, par
ticulars of which will be given in Chapters V and VII hereinafter, the
Department of Education employs an administrative staff at head
officein Windhoek, the complement of which increased from 3 in r9zr to
r2 in r951, to 4z in 1961, and to 46 in 1963.

• CHAPTER IV

GENERALPOLIC Y

I. Before dealing with the education of the respective population

groups of South West Africa, Res:pondent devotes this chapter to à.
treatment.of circumstances and cons1derations which respectivcly:
A. govern the application in the Territory of a system of education
which makes provision for separate facilities for the various groups;
B. affect expcnditure on, and the provision of particular facilitics for,

the education of the varions groups;
C. govem the question of compulsory education in the Tcrritory.

· A. Separate Facilities for the Various Groups

l. ÙRCUMSTANCES AND CONSIDERATIONS GOVERNlNG THE SYSTEM OF

5EPARATE FACILITIES

2. Elsewhere in this Counter-Mcmorial l Respondent dcalt gcncrally
with the application in South West Africa, by reason of the particular
circumstances of the Territory and o[ its peoples, of a policy of differ
entiation which aims at and allows for the separate development of the

various population groups.
That policy is applied also in the educational system of the Territory,
which makes provision, as far as is practicablc, for separate educational
facilities for the different groups.

3. The first educationa2 law passed for South West Africa after the
Mandate was assumed ,gave legislative recognition and sanction to a
practice which had become establishcd in the history of the Tcrritory
before the Mandate, viz., the provision of separate educational facilities
for, on the one hand, the European group, and, on the other hand, the
non- European groups 3.
This position was maintained in Proclamation No. 16of 1926 (S.W.A.)~,

under which the educational system is organized in three main divisions,
in the sense that, as far as is practicable, separate schools are provided
and maintained for the childrcn of the Native, the Coloured and the
European or White groups. Under each of these threc sections there are
also subdivisions which will be referrecl to hereinafter.

4. At no time since the inceptîon of the Mandate has there been cause
for effecting a change in the pre-Mandate system of providing separate
facilities for the different groups. On the contrary, that there were, and
still are, sound and compelllng reasons for continuing with and cxtending
that system, will be shown in the following paragraphs, where the matter

is dealt with in the light of the particular circumstances of South West

1 Vide Book IV of this Counter-Memorial.
1 Proc. No, 55 of 1921 (S.W.A.), in TM Laws of 5014th West Africa r9r5-r922.
pp. 632-683.
' Vitù Chap. II, supra.
4 Vide Chap. Ill, para. 5, supra. SOUTH WEST AFRICA
354

Africa and of its peoples, and with reference to Respondent's experience
gained not only in the Territory itself, but also in the administration of
education over a.long period in a plural or multi-group society in South
Africa. The reasons aforementioned all centre around the differences
between the population groups which, in the field of education, give rise
to particular implications and problems. These will be dealt with herein
after under the folJowing headmgs:

(a) Varying stages of advancemcnt of the different groups.
{b) Different languages.
(c) Different syllabuses.
{d) Different soda! entities and parent comrnunities.

(a) Varying Stages ofAdvancementoftheDifferentCroups

5. The population of South West Africa is composed of the following
main groups:
the Nama (Khoi, or Hottentots);
the Herero; ·
the Ovambo (collective name for the various trfües living in Ovambo
land);

the Okavango (collective name for the various tribes living in the
Okavango);
the Dama (or Bergdama(ra). or Klipkaffers);
the Bushmen;
the tribes in the Eastern Caprivi;
the Rehoboth Basters;
the other Coloureds; and
the White group.
Each of these groups had its own identity, its own culture, customs
and language (save that the Basters and other Coloureds spokc one of

the European la.nguages, and the Dama the Nama language, as they
still do}. There were in these respects differences not only between the
White, Coloured and Native groups, but also between the various
Native groups inter se.There were, furthermore, as there still are, vast
differences in the levels and stages of development of the various groups,
particularly as gauged by standards of what is generally known as
Western civilization.
6. The members of the White group were derived entirely from peoples
and communities regarded as bearers of Western civilization. At the

inception of the Mandate they were already served by 23 government
schools for South African children in the Territory, and an almost equal
number of private schools for German children 1.Both these sections of
the White population were displaying an active interest in the promotion
of education. There was, therefore, as far as the education of White
children was concerned, a sound foundation on which to base further
development after the pattern of the school systems of the Western world.
As far as the indigenous groups of the Territory were concerned,
however, conditions were vastly different. Considenng the traditional
systems, custom:; and circumstances under which they had been living
before contact with members of the White group, and the limited extent

1 VidaChap. Il, para. I3, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 355

and brief span of such contact-in &"eneralJess than half a ccntury-it
was inevitable that the standards, sk1lls and values of the White group s
Jiterary, monetary and technological civilization should have been
wholly or largely unknown, and indeed strange and foreign, to the

indigenous peoples. The result was that in thesc respects the diffcrence
in the level of development-as between the White group and the in
digenous peoples on the whole-could probably be mcasurc<l in tcnns
of centuries. If therc are added the influences of witchcraft and super
stition, and the effccts of an unfortunate clash of arms betwecn someof
the indigenous peoplcs and the first European regime, it will be apparent
that a certain measure of suspicion and distrust of the strangc new
things introduced by the White group was also inevitable.
In such circumstances, education of the Natives would necessarily
be a slow process and one which could, for some time at least, best be
promoted, as it had been donc in the period before the Mandate, by
missionaries in conjunction with their primary task of teaching religion
1
to and civilizing the Native communities arnong whom they worked •
That progress would, in ailthe circumstances, be slow, was appreciated
by the Permanent Mandates Commission. This appears particularly
from a statement in r930 by M. van Rees, a member of the Commission,
who is recorded to have said, inter aUa-

" ... that the natives in South West Africa were for the most part ina
very low state of civilization. That being so, he did not think it wise
for the Commission to show too great impatience or to be too exact
ing in sofar as the education of natives in the reserves was concerned.
Such education inevitably took a long time, and was at the moment
in the bands of the Missions ."

Furthermore, as has already been stated 3• among the Native groups
themselves different stages of development had been attained; and diîf
erences in this respect persist even today.
In ail these circumstances, the interests of the Native groups could be

served only by providin~ them with educational facilities which took
account not only of the1r languages, traditions and cultures, but also
of their varying stages of development.
7. Mixed schools would not have served the best intercsts of the Native
children, and would, moreover, have hampercd the pro~ess of the children
of the White group. For the latter the special adaptations requisite in the
case of education of Native children would have been unnecessary and,
indeed, wasteful as regards rates and standards of progress in education.
This could in due course have resulted in a "levelling down" of the educa

tional standards of the White group, without comparable and compen
satory benefits for Native children, to the detriment of the country as a
whole.
The same considerations, though to a lesser degree, applied in the
case of the Coloured group. Though standing generally nearer to the

1
Africa, Mr. Hofmeyr, before the Permanent Mandates Commission in l924 (P.M.C.,t
Min., IV, p. 44).
z P.M.C., Min., XVIII, p. 138.
1 Vid1 Book III, Chap. Il, of this Counter-Memorial. SOUTlt WEST AFRICA

level of civilization and development of the White group than the Native
groups, they were nevertheless much less advanced than the White
group. Whereas in the history of the Territory before the Mandate 1
the missionaries generally admitted Coloured children to the Native

mission schools, there were, by the time the Mandate was conferred,
separate schools for some of the so-called "Half-White" children, and
separate facilities for the Rehoboth Basters; and, for the Cape Coloureds
that had cornefrom South Africa during the period of militaryoccupation,
separate classes were conducted in some mission schools by Coloured
teachers imported from South Africa 2•

(b) Di{jerent Languages
3
8. Mention h~ aJready been made of the number of different lan
guages spokcn in South West Africa. Among the White group provision
had to be made for instruction in bath the official languages, Afrikaans
and English, and, in accordance with the policy of home-language
instruction followed in the Territory 4,also for instruction in German,
at least up to a certain stage. ln practice this entailed the creation of
different Iangu.age medium schoo1s or, at least, separate Afrikaans,

English and German divisions at the same school.
Whilc the vast majority of the Coloured population spoke either
Afrikaans or English, the members of the indigenous population spoke
one or more of a number of Native languages, depending on the particular
group to which they belonged. The principal Native languages spoken
we~e. and still are:

. Kuangali and Diriku (among the Natives of the Okavango); Ndonga,
Kuanyama and Kuambi (among the Natives of Ovamboland); Herero,
Nama. Bushman, Tswana (in the case of a small section) and Sik.ololo,
also known as Silosi (among the Natives of the Eastern Caprivi).

9. The multiplkity of languages spoken called for, and indeed necessi
tated, the estabfr,hment and maintenance of separate schools and the
application of a policy of differentiation not only as between the White,
Colourcd and Native groups, but, as far as practicable, also as between
the various Native groups.
From a practical point of view, it would hardly have been feasible
to provide for education in the Native languages in schools where pro-.

vision had already to be made for three European languages. Further
more, quite apart from such practical considerations, sound educational
policy required that separate schools be provided for the children of
the various Native groups in which they could be taught in the verna
cular by teachers of their own group within their own social and domestic
milieu.
It is Respondent's experience, in South West Africa as well as in

South Africa, that such policy, founded upon mother-tongue instruction
and its attendant implications, is necessary to ensure sound progress.

1 Vide Cbap. IJ, para. 7, supra.
2 Ibid., para13.
s Vide Book Ill, Cbap. II, paras.I6,28. 42, 58, 68, 75 and 88, of this Counter
Memorial.
4 Vide paras. 15-2;:, infra. COUNTER-MEMORIAL OF SOUTH AFRlCA 357

Mother-TongueEducationin SouthAfrica

10. In South Africa the principle of mother-tongue education, in so
far as the White group of the population was concerned, found proper
application only after the recognition of Afrikaans 1as one of the official

languages of South Africa.
At the establishment of the Union of South Africa in 1910, Dutch
and English were rnade official languages, to be treated on an equal
footing and to enjoy equal rights in Parliament and elsewhere.
By l~slation in 1925 Afrikaans wàs recognized as an official lang
uage ana from then on in practke replaced Dutch in the educational
as well as in other spheres. Since 1925 the principle of mother-tongue
instruction has prevailed in South Africa and, consequently, separate
educational facilities have been established for the Afrikaans and English
speaking sections of the community 2•

n. The languages spoken by the Coloured people in South Africa
are Afrikaans and English, but preponderantly the former. In the case
of the Coloured people, às in the case of the Europeans, the principle
of mother-tongue education finds application in the establishment as
far as is practicable of separate facilities for the different language
groups.

12. As regards the various Bantu groups in South Africa, it was only
natural that in the beginning most of them should have been taught
through the medium of European tongues, especially English, since
most of the missionaries were from Europe and taught the subjects
they knew in their own languages. Experience showed, however, that
few of their pupils stayed at school long enough to acquire an adequate
grounding in English, and that they consequently failed ta absorb a
great deal of the instruction given in that language.
The possibility of effectively employing the Bantu vernaculars for
educational purposes had been realized at a very early stage by certain

of the missionary bodies, for example by some of the English mission
aries in the Transkei (from 183r) and m Zululand, as well as by the
Berlin Mission in the Transvaal.
13. As Bantu teachers in South Africa increased in numbers and
capacity, mother-tongue instruction became practicable, although many
of these teachers had been educated in English and Afrikaans them
selves and were at first inclined ta be prejudiced against teachirig through
the medium of a Bantu tongue. The Native Education Commission of

1949-195I, under the chairmanship of Dr. W. W. M. Eiselen, whose
report laid the foundation for the South African Bantu Education Act
of 1953, recommended very strongly that the mother ton~e of the
different Bantu groups "should be used as the medium of instruction
for at Jeast the duration of the primary school", not only on purely
educational grounds, but also because of the "positive contribution
which the schools can make in the development of the Bantu languages

l Afrikaans couldbe described as a sister-language of modern Dutch and Flemish.
It developed from the seventeenth-centuryDutch in vogue at the time ofthe first
coloniz.a.tionthe Cape along lines somewhat, tbough not entiTely, divergent from
modem Dutch and Flemish. .
2 Being either entirely separate schools, or separate divisions of the same school
depending on practical circumstaqces. SOUTH WEST AFRlCA

both for their own use and for o1her institutions of Bantu life, e.g.,
Bantu Courts and Councils" •
This policy of promoting mother-tongue education, with its coro_llary
of using Bantu teaching personnel to the maXllllum possible extent,
has been more vigorously implemented in South Africa since r954 by
the Department of Bantu Education. While English and Afrikaans are
bein{;;t"aught from an early age, the policy is that the medium of instruc
tion m the primary standards should be the vernacular. A Bantu language

board has been constituted to develop the recognized languages as school
and teaching languages, and experts in various fields serve on this board
and its several language committees.
14. Initially a shortage of suitable text-books, and the lack of an
adequate educational vocabulary and terminology in the various Native
languages, presented serious difficulties, but the Department actively

encouraged experts to prepare the necessary books, and today there are
approved graded class-books in nearly all the major Bantu languages
spoken in South Africa for ail the subjects taught in the primary schools 2•
Referring to the use of the mother tongue as medium of instruction
and to the development of the Bantu languages in South Africa, Paul
Giniewski, a French author who visited South Africa recently, says the
following:

"The principle is certainly valid in the primary and secondary
schools.
Transformation of the fluctuating, oral tribal culture into a
written culture, the elevation of little-known literatures to literatures
taught and analysed in class; the changing of dialects which are not
rich in vocabuJary into teaching languages, must eventually enrich
these culture;, these literatures, and these languages for the benefi.tof

the people who possess them ... The Bantu languages are being en·
dowed with the scientific terminology required by modern education
in all fields; the writing of textbooks will allow Bantu writers who
wish to renovate their language to enter the domain of disciplined
and methodical creation. With regard to the Bantu community,
encouraging the use of the mother tongue certainly represents a
positive mea1mre 3."

Mother-TongueEducationin South West A/rica

15. In regard to South West Africa, the 1958 Commission of Inquiry
into Non-European Education in South West Africa, after fully con
sidering local conditions as well as the experience gaincd from years
of Bantu educafrm in South Africa, recommended the use of the ver
nacular as medium of instruction in the substandards (i.e., the first
two years' schooling), and as far as possible also in Standards I and II\

i U.G. 53-1951, p. 131.
2 This was no mean achievement, considering that at least seven major Bantu
languages are spoken in South Africa.
3 Giniewski, P, Bantustans: A Trek towards the Future (1961).p. 103.This work
was originaily published in French under the title Un /aux Problème Colonial:
l'Afrique du Sud (r9•S1).
• Report of the Commission of Inquiry into Non-European Education in South
West Africa(1958), Part I, Native Education,pai-a.. B124, pu6. COUNTER-MEMORIAL OF SOUTH AFRICA 359

In Respondent's opinion, these courses are by far the most important
ones as far as the Native groups are concerned, since the majority of
Native pupils leave school after the first few years of schooling. These
courses therefore aim 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.
The Commission also recommended that the " . . . home language as
a subject should be taught with Afrikaans and English up to Standard VI
1
and also for the Junior Certificate " •
The recommendation as to mother-tongue instruction did not con
stitute an innovation of principle as far as Native education in the
Territory was concerned, but endorsed a policy and aim which had for
a long time been pursued by the Administration, namely that instruc
tion in the lower standards should, as far as possible, be in the pupil's
home language.
Thus in 1924 the Director of Education for South West Africa, in a

memorandum which was placed before the Permanent Mandates Com
mission, said, inter alia:
"The chief native Ianguages in the country number four: Nama,
Herero, Ovambo and Sechuana [Tswana]. In accordance with the
principle of mother-tongue instruction, ail these languages are taught
2
in our schools ."
Experience has shown that pupils absorb much more when instruction
is given them in their home language, than when itis done in a language
not their own, and, also, that children who are first taught to read and
write in their own language generally learn a foreign language more
easily and quickly than others.

16. That Respondent's policy in this regard was in accord with the
views held by the Permanent Mandates Commission, appears clearly
from reports by individual members of the Commission and from dis
cussions in the Commission.
Thus in a report submitted by Mme Wicksell to the Commission
at its 12th Session, in 1927, there appeared, inter alia, the following:

"The African schools have one ~eat handicap---the number of
different languages, which inakes 1t necessary to teach a foreign
Ianguage and, in some territories, even to carry on instruction in a
foreign Janguage ...
The African schools are, or ought to be, independent of European
school grades; their curricula can be and ought ta be founded upon
African conditions and African mentality ...

. . . the educational problems of Africa are distinctly African. The
success of the whole 'dual policy' depends, among other things, on
the African system of education; the establishment of schools capable
of teaching the Africans themselves to take over the agricultural
production of these rich tropical countries is a necessary condition of
the fulfilment of the sacred trust of civilisation 3."

Lord Lugard is reported to have congratulated Mme Wicksell on the

1 Report of the Commission of lnquiry into Non-European Eduçation in South
West Africa (1958}, PartI, Native Education,para. BJ22 (c),p. 113.
z P.M.C., Min., IV, p. 176 (Anne,c 4).
3 Ibid..XII, p. 186 (Annex 6). SOUTH WEST AFRlCA

report, which was printed as an Annexure to the Minutes of the 12th
Session. ,··
In the Minutes of the Twentieth Session of the Commission, in :r..g3r,

the following is recorded:
"Mlle. Dannevig thanked the mandatory Power for the very
detai1edand valuableinfonnation on the education of native children.
As regards the statement in paragraph 312 she observed that it had
obviously never been the idea of the Mandates Commission that the
aim of education should be to Europeanise the natives but, on the
1
contrary, to convert them into better natives ."
And in 1934, during the Twenty-sixth Session of the Commission,
Respondent was ,:ommended for its efforts in mother-tongue education.
The following is an extract from the Minutes of the Commission:

"Mlle. Dannevig ... further referred to the statement in paragraph
172 that 'the new syllabus provides for more systematic instruction
in the mother tongue'. What was meant by the 'mother tongue'?
Mr. Louw replied that, in the case of some Coloured children, the
mother tongue would be Afrikaans or English, while, in the case of
natives, it would be the vernacular.
Lord Lugard congratulated the Administration on this encourage
ment of the mother tongue. Was not that a new policy? 2"

17. A difficulty in making progress with mother-tongue education
among the Natives was that in the earlier stages the staffs of the schools for
Natives in South West Africa were composed of teachers of whom many
did not have an adequate knowledge of the Native languages. Gradually,
however, the position changed. Encouraged by the Administration,
many European teachers became fluent Native linguists, and a large

number of Natives were trained to teach in the vernacular.
In 1930 it was reported to the Permanent Mandates Commission that
"The policy is to train selected men in each race and appoint them to do
the educahonal work among their own people " 3•Despite Respondent's
efforts there has always been a scarcity in South West Africa of teachers
with an adequate knowledge of the varions Native languages spoken in
the Territory, and a difficult position has been made more difficult by the
fact that some of the Native groups have produced only a limited number

of teachers to take care of the teaching of pupils of their language groups.
The Herero, in particu1ar, show very little interest in the teaching
profession, with the result that there is an acute shortage of Herero
teachers. Substantial progress has nevertheless been made, as is illus
trated by the statistics relative to Native teachers givcn in Chapter V•
below.

18. The problem of giving pupils their initial ?chooling in their home
language is further complicated by the fact that some areas are occupied
by members of more than one Ianguage group. This is especially so in
certain parts of the Police Zone. ln the northern territories, where large
areas are inhabited by more or less homogeneous groups, the position
ismuch easier.

t P.M.C., Min., XX, p. 66.
a Ibid., XXVI, p. 59.
3 U.G. 2r-1931, para.314, p.51.
• Vida Chap. V, J•aras. 43 and 55infra. COUNTER-MEMORIAL OF SOUTH AFRICA 361

Despite ail the difficulties, however, every possible effort is made by
the Administration to ensure that as many pupils as possible are taught
through the medium of their own language by teachers of the same
language group. Wherever circumstances allow it to be done, the ver
nacular is used as the sole medium of instruction in the substandards,
and as the most important medium in Standards I and IL During the

third and fourth years (i.e., Standards I and Il), an official language is
gradually introduced as medium. In the lùgher primary standards (i.e.,
Standards III-VI} an official language is at present the sole medium of
instruction, and this is also the position in the secondary standards.
It is the ultimate aim that the vernacular be used as the medium of
instruction in ail standards. But this will take time, and will only become
possible when the various Native languages have been sufficiently
developed to be used as teaching langttages in ail the standards, and when

suffi.dent Native teachers with post-matriculation qualifications become
available for the teaching of secondary classes.
19. In order to promote the principle of "introdudng the home
language as medium of instruction throughout the lower and higher
primary schools" 1,the above-mentioned 1958 Commission also recom
mended the establishment of an official Bureau for Native Languages 2

to develop Ndonga and Kuanyama (for Ovamboland), Kuangali (for
théOkavango group), Nama and Herero as written and ;;choollanguages
and to provide the necessary primers, text-books, etc. This Bureau has
been established and specifi.ctasks which have been assigned to it are the
following:
(i) The composing of a grammar for each of these languages where

there is none in existence or published.
(ii)The composing of school readers and graded school text-books.
(iiiThe production of wholesome general reading matter for persons
at varions stages of development.
(iv)The encouragement of Native as well as European teachers to write
and to collect unwritten folklore.
{v) The development of subject terminology for school use.
(vi) The editing of a regular newsletter in the Native languages.

20. The Bureau officially came into operation on I January 1962,
but subcommittees thereof were established earlier in Ovamboland
and in the Police Zone to commence the task of adding to school literature
which had gradually over the years been built up by the Missions and the
Education Department. The Bureau is headed by a European Bantu
phllologist, and posts have been created on the staff for ftve Native

assistants.
The establishment of such a Bureau, and the objectives pertaining
thereto, are in striking accord with ideals and methods that have been
advocated at recent educational conferences dealing with the problems
of education in Africa generally. So, for example, at the meeting of
Ministers of Education of African countries participating in the imple
mentation of the Addis Ababa plan, held in Paris in March 1962, the

1 RçP,,,,t othç Commission of Inquiry into Non-European Education in South
West Africa (1958), Part Ipara. B124, p. 115.
2 Ibid., paraB127, pp. n8-r20.
3 Ibid.,para. Br27 (d) (i)(ii) and(iiipP, n9-r20. SOUTH WEST AFRICA

teaching of African langua'1eswas stressed as beinç-of basic importance
for a number of reasons, inter alia, "as a factor 1n the rediscovery of
African traditiom, and a consciousness of African identity" 1• In regard
to the study of vernacular languages, it was pointed out that "the

desirability of Unesco aid for the creation of an African Ianguages study
institute has actually been mooted" 2•
21. In the particular circumstances of South West Africa, with its
multiplicity of languages, the policy of home-language instruction
obviouslyrequire~. that pupilsofdifferent languagegroups should betaught
in separate schools, or at least in separate classes. Wherever it is possible

to do so, pupils of the same language group are, up to the Standard II
stage, accommodated in a school of their own. Where the numbers of a
minority group at any particular school, or in any particular area, are
not sufficient to justify the establishment of a separate school, every
possible effort is made to institute separate classes for such minority
group at existing schools. The policy at present is to institute a separate
class for a minority group at any school as soon as they number 20 in ail
classes from Substandard A to Standard II. Separate schools for the
higher primary classes are as yet not justified because of the relatively
small numbers involved at the various schools, but where the numbers do

warrant it, separate classes in the same school are established.
There are certain areas where the pupils of a minority language group
are so few in number that even the establishment of separate classes lS
not practicable. In most of these cases, however, the different language
groups live in the same area and understand each other's language, and
often the teacheI"s, too, have a sufficient knowledge of the languages
involved to be able to explain lessons to all the pupils in a class. Only
very rarely does it happen that so many language groups are represented
in the same clasi: that no Native language at all can be used as the

medium of instruction, but when such a situation does arise, the Adminis
tration allows one of the officiallanguages to beused as medium.
22. The langua.ge medium position in the Native schools in South
West Africa may be summed rlp as follows:
(i) Of the 102 schools in the PoliceZone at present, I offers instruction

in 3 languages, and 20 in two languages. Herero. is the medium
of instruction in II schools, and 10 of these are attended almost
exclusively by Herero pupils, Nama is the medium in 68 schools: in
6 of these lessons are also explained in Herero, and in the others
Nama-speaking pupils form the overwhelming majority. Tswana is
the medium of instrnction in 2 schools, at both of which Tswana
speaking pupils form the vast majority 3•
(ii)Outside the Police Zone, in Ovamboland, the Okavango, and the
Kaokoveld, the language most commonly used by the group con

cerned is taught in the schools, and the problem is not as intricate as
in the south where, for reasons dealt with elsewhere in this Counter
Memorial, intermingling of the ~oups bas taken place. Respondent
bas, however, every hope that m the not too distant future ail the
children in the Territory will be given the opportunity of receiving

1 Unesco/ED/191, para. 73, p. 17.
2 Ibid., para. 76, p. 18.
s Departmental information. COUNTER-.MEMORIAL OF SOUTH AFRICA

instruction in their home language, at first only in the lower stand
ards, but in due course also in the more advanced classes.

{c) Difjerent Syllabuses

23. As education for the children of a particular community must
preferably, and as far as is practicable, be provided in their immediate

environment and in accordance with the needs, stage of development,
economic, cultural and social background of that community, it follows
that where population groups differ as widely as they do in South West
Africa, sound educational policy requires different syllabuses for the
children of the various groups.
For the White group of South West Africa, which had the advantage
of the educational tradition of Western civilization extending over cen
turies, there was little difficulty in devising a syllabus suitable to its

needs.
Provision of suitable curricula for the Native groups in the Territory
was, however, in view of their particular circumstances, a matter beset
with various problems which have taken years to overcome.
During the German regime the missions prescribed their own curricula
for the Natives in the various mission schools. Those prescribed by the
Rhenish Mission (in the Police Zone) were based on the curricula for

German primary schools:
" ... with the necessary adjustments to allow for conditions amongst
the Natives in South West Africa. The standard of work ... was
lowered and adapted to the actual mental development of the
pupils 1.''

Outside the Police Zone each mission had its own approach, but the
object of education there was mainly to teach the pupils to read the
Bible. The educational needs of the Natives outside the Police Zone
were different from those of the groups in the Police Zone, particularly
because of the fact that the traditional life of the former, with their
subsistence economy, had not been affected by the impact of the Western

economy of the White group.
24. After assumption of the Mandate by Respondent, and upon the
promulgation of the Education Proclamation of 1921 2,education for
ail groups was reorganized. In order to lay a foundation for future
uniformity in education in Native schools in the Police Zone, the Direc
tor of Education convened a conference in October 1923 and at that

conference suitable curricula were considered 3.
There were, however, problems which left the authorities no choice
but to employ syllabuses for the Native groups drawn up against the
cultural and traditional background of the White group.
The major difficulties were:
(i) the lack of teachers qualified to teach through the medium of

Native languages;

1 Reporl of the Commission of Inquify into Non-European Education in South

West A/rica (1958), Part1, para.B43 (e), p36.
3 Proc. No. 55 of1921 (S.W.A.).
Report of the Commission of lnquiry into Non-European Education in South
Wtsl Af,ica (1958), Part 1, paras. B47 and 48, pp. 40-41. SOUTH WEST AFRICA

(ii)the lack of witable readers, text-books, manuals and other teaching
aids in the Native languages: in many cases the existing schoolbooks

in English or Afrikaans had to be used.
The provisions of the Education Proclamation of 1921, were, however,
not applied to schools outside the Police Zone: at that stage, because of
the undeveloped state of education in that part of the Territory, it

would not have been reasonable to expect the Finnish Mission to assume
the greater educational duties involved 1•
Nor were the provisions of the Education Proclamation of 1926 en
forced outside the Police Zone. The Finnish Mission, therefore, continued
to provide its o·.vnadaptable syllabuses, and the other missions which
started educational work there at a later stage were allowed to do the

same.
25. From 193.3to 1951 revised syllabuses, prescribed by the Education
Department, were introduced into many of the mission schools. Never
theless, despite the efforts of the Organizer of Native Education 2,a lack

of uniformity in courses persisted until 1952, when uniform syllabuses
for Native schools were introduced throughout the Territory.
The aforesaid 1958 Commission recommended that the syllabuses in
use in Bantu schools in South Africa for, inter alia, the lower primary,
higher primary, junior certificate and lower prirnary teachers' courses,
should, with suitable adaptations to meet local conditions, be introduced
3
in the Native schools of South West Africa •

Special Syllabusas in Bantu Schools in South Africa

26. By 1958 good progress had been made with the special srllabuses
in Bantu schoo1s in South Africa, particu1arly as a result o putting
into practice the findings and recommendations of the South African
Native Education Commission of 1949-1951. In its report this Corn~
mission referred to recommendations in regard to the need for differenti
ated syllabuses made over the years by other commissions and com

mittees of inquiry ~.and stated that these earlier recommendations had
largely been ignored in practice, due mainly to-
" ... insuffident attention being devoted to the social, economic and .
administrative structure which determines very largely the role

of the schools and their success in fulfilling it ~".
The Commission held the view that the content and methods of Bantu
education must to a very large extent be dictated by the fact that it

has ta deal with.-

1 Vide Chap. V. paras. 49 and 63, inf,.-a.
2 Vide Chap. III.para. 6, $Uj»'a,and Chap. V, paras. 41-.42, in/t'a.
3 Report of thC,,mmission of lnqufry into Non-European Education in 6outh Wesi
Ajrica (1958), Part 1, para. B121 (b), pp. 1II-II2.
• The South African Native Affairs Commission of 1903-1905, the Select Com
mittee on Native and Coloured Education (Cape) of 1908, the Native Economie
Commission of 1930-1932, and the lnter-Departroental Committee on ~ative
Education. 1935-1936.
$ U.G. 53-195i. p. 8. COUNTER-MEMORIAL OF SOUTH AFRICA

a child trained and conditioned in Bantu culture, endowed

with a knowledge of a Bantu language, and imbued with values,
interests and behaviour patterns learned from a Bantu mother 1".
Consequently, the Commission recommended, inter alia, that the
syllabuses in South Africa for Ban tu schools should be revised to provide
for the special needs and conditions of the Bantu groups, with particular

emphasis on literacy in the mother tongue and the cultivation of a
proper pride in the groups' own national eustoms and traditions, without,
however, neglecting the study of the two officiallanguages (Afrikaans and
English):
" ... as a means of commwücation with Europeans, as a help in
economic matters, and as a means of securing contact with the
2
knowledge of the wider world ''.
27. On the basis of the aforementioned recommendation, the Depart
ment of Bantu Education in South Africa secured the services of ex
perienced educationists for the purpose of drafting a serîes of special
syllabuses for Bantu schools, and appointed specialist organizers for a

number of subjects to ensure that teaching in those fields would be of
maximum benefit to the pupils following those courses, as well as to
the Bantu communities to which they belonged and which they would
eventually serve.
The standard of these syllabuses is in no way inferior to that of the
syllabuses used in European schools, but they do, to a certain extent,
involve a difference of approach, content and method, determined in

the light of the pupil's environment and cultural background.
28. The introduction of special syllabuses in Bantu schools in South
Africa has been acclaîmed by educationists and others.
Thus Mr. P. A. Moore, an Opposition Member of Parliament and
former Inspector of Schools, is reported to the effect-

" ... that there is nothing 'inferior'aboutit (the primary curriculum
for Bantu children] compared with the syllabus of White children in
the same classes 3".

The Rev. Dr. J. B. Webb, eminent churchman and President of the
South African Methodist Conference, said in a broadcast over the B.B.C.:
". . . we educationists regard the new syllabuses as an improvernent
on the old ones" 4• (Translation.) Another educationist, Mrs. Whyte,
Adult Education Officerof the.South African lnstitute of Race Relations,
said: "In theory at least, the Government's Bantu education programme
was a good one, and the syllabuses among the four best in the world."
Paul Giniewski 5 wrote the following in regard to some of the subjects

in the Bantu primary school syllabus in South Africa:
"As for the four practical subjects in which people have seen proof
of the 'degradation' of Bantu education-manual work, Bantu
craftsmanship, gardening and that extraordinary course in 'tree
planting and soil conservation'-these should be made compulsory

1
2 U.G. 53-1951, p. 131
3 Ibid.•p. 132.
The Star, 1Dec. 1954. p. 9.
5 Die Tt'ansvaler, 19 Aug. 1955, p7.
Vide para. I4,sup,,a.366 SOUTH WEST AFRICA

throughout Africa and Asia. Are not trees and soil the basic problems
in this new black-yellow world taking shape on these continents? 1"
And:
"I t seems to me excellent that history, geography and ethics are

being taught as a single subject, 'socialstudies', and it would be a
good idea to extend this principle to White schools. lt is, after all,
normal that the emphasis should be put on the Bantu environment
rather than on the heritage of Western civilization and at a given
moment one must stop talking about 'our ancestors, the Normans',
to the descendants of Chaka and Dingaan ."

Special Syllabus,is in Native Schools in South West A/rica
29. The recommendation of the 1958 Commission of Inquiry into
Non-European Education in South West Africa concerning special syl
labuses 3 was adopted by the South West African Administration.
Suitably amend1!d lower and higher primary syllabuses were introduced
in the areas outsidc the Police Zone in 1961. Their introduction in schools

within the Police Zone was postponed for one year in order to give
teachers and other interested persons an opportunity of making proposals
for their further amendment, if necessary.
The junior certificate syllabus of the Bantu Education Department has
been introduced at all teacher training schools which prepare students for
the junior certificate examination, while the lower primary teachers'
syllabus has thus far been introduced at the tcacher training schools in
Ovamboland.

30. It is not at this stage intended to givc full particulars of the
various syilabuses. Respondent merely wishes to stress the fact that the
syllabuses in use in the lower and higher primary schools since 1961 (in
the northern territories) ·and since 1962 (in the Police Zone) have been
specially designed to meet the needs of pupils of the varions Native groups
in the Territory. Base:l on the syllabuses used in South Africa's Bantu
schools, and amended in the light of conditions in South West Africa,

they are, as compared with the syllabuses previously used in the Terri
tory, much better suited to relate the subject-matter taught to the
pupil's cultural background and experience, and to the problems of his
own environment.
The subjects taught are the same for all language groups, but regard
is had to the fact that the various groups speak different languages, that
they have different traditions and cultures, that they live, to a large
extent, in different areas, and that the education of the young has to be
carried on in a particular social and domestic milieu. The syllabuses
are accordingly of an elastic nature, and allow of differentiation and

adaptation to meet the needs of a particular community or group living
in a particular area. This is particularly true in regard to the study of the
pupil's home language, and the subjects environment study, social
studies, nature study, health education, and some of the practical courses.
Without entering into details, the approach to the syllabuses can
be illustrated by a reference to the teaching methods employed in a few
courses. In env1ronment study and in social studies (which is a continu-

1 Giniewski, op. citp. 102.
z Ibid., p106.
3 Vide para. 25,siipra. COUNTER-MEMORJAL OF SOUTH AFRJCA

ation of environment study, and which includes history and geography),

the starting point is the pupil's own home, village and group, and from
there the course progresses in ever-widening circles until the history and
geography of South West Africa, Africa and the rest of the world are
included. In health education the conditions under which pupils grow up
form the starting point, and wherever necessary pupils are informed of
group peculiarities and customs which may be detrimental to health,
and acquainted with more salutary forms of living. In general, it may
be said, the syllabuses stress the importance of making the child's own

environment the starting point of all further education, and of leading
the child from what he knows and understands to that which is unknown.
31. Upon the basis of recommendations in that regard by the 1958
Commission, the educational authorities are aiming also at a certain
measure of differentiation of syllabuses in secondary courses for Coloured
students so as to adapt their education to the special needs of thcir group.

The small number of pupils involved, however, creates practical diffi
culties.

(d) Di'flerentSocial Enti"tiesand ParentCommimities

32. Continuation of the system of separate schools, which operated
before the inception of the Mandate, was in accordance with the pre
vailing social order in the Territory. There had been no social integra
tion between Europeans and non-Europeans either before or during the
German regime, nor had there been any such relationship during the
period of the country:s military occupation. The introduction .o!a mix~d

school system would have run directly counter to the prevatlmg social
order, and would, for that very reason, have failed.
33. The provision of separate educational facilities was also, to a
large ex.tent, in accordance with the prevailing relationship between
Natives and Coloureds. As already stated 1, the Rehoboth Basters were
a more or less homogeneous group who occupied a territory of their own
and had their own schools. For the Cape Coloured group separate

facilities had, as far as was practicable, been provided from an early
date 2,and the so-called "Half-Whites" were not welcome in the Euro
pean society, and, in many instances, not accepted in the Native society 1•
Practical difficulties have, ta this day, prevented the complete imple
mentation of the policy of having separate schools for all Coloured
children, though varions Coloured communities have from time to time
urged the Administration to provide separate facilities for them. In
testifying before the 1958 Commission of lnquiry into Non-European

Education in South West Africa, several Coloured witnesses objected to
the fact that Coloured school children were still at times "forced to
attend schools for Natives" 3, and to the fact that "Bantu teachers
[were] sometimes appointed to Coloured schools" 4•
34. The desire not to integrate socially was, and still is, apparent
also as between varions Native groups. When regard is had to the differ-

1 Vid11Chap. II, para. 7, sup,a.
2 Ibi'd.para. 13.
• Report of the Commission of Inqufry into Non-Eun,pea.n Edu&atfon in S~lh
West Af1'ica (1958), Part II, Colo1md Education, para. Ku5 (k),p. 38.
• Ibid.para. Kn5 (m}, p. 38. Vide also subpara. (n). SOUTH WEST AFRICA

enccs between these groups, it is only natural that the members of any
particular group should prefer to associate with other members of their
own group. This tendency is also apparent as far as the schooling of
children is concerned. A few examples may be cited. The Ovambos,
who have frequcntly indicated their desire for separate schools for their
children, recently made rcpresentations to the Administration to

have a separate school for young Ovambos in the new Native town
ship of Katutura, at Windhoek. In the Okavango it has been the ex
perience of the Finnish Mission that Okavango parents prefer
having their children taught by members of their own group, and that
they encourage Okavango students to become teachers. Recently, when
a second Native school was built in the Katutura township of Windhoek,
Nama-speak.ing parents and teachers urgently requested the Adminis
tration to make this school a school for Nama-speaking pupils only. And,
as a final example: at the end of 1961 there was a vacancy on the teaching
staff at the Herero school at Okakarara in the Waterberg-East Reserve:

Duc to a shortagc of Herero teachers, the Chief Inspector of Native
Education offered the principal of the school a Nama teacher. The
principal refused to have him on his staff, and when asked the reasons
for his refusai, he politely stated that he doubted whether a Nama
teacher would be acceptable to Herero parents and children, and that a
Nama teacher would be unhappy among the Hereros of the Reserve.
The attitude of the respective groups, is as far as possible, respected
by providing separate facilities for them.

35. Closely allied to the considerations aforestated is the desirability,
in Respondent's view, that, as sound educational policy, the parents of
a group or community should take an active part in the control and
management of education and in the determination of the content of
education. Respondent beli_evesthat in this way educâtion can become
a living reality which evolves with the group, It is consequently Respon
dent's aim that the parents of every group should forrn an integral
'part of the school system in the Territory. This being the position, it is
more practical and more conducive to good group relations if separate
schools with separate parent organizations exist for the groups which

fonn different seicîal entities and which have different needs and as
pirations.
36. The White group in South West Africa has always taken an
active part in the education of its children. Provision for European
school committees was made in the first Education Proclamation for
the Territorx 1 and was retained in the subsequent Proclamation, No.
16 of 1926 (S.W.A.)2. Parents serve on these committees and assist in

the promotion of the education of their chlldren.
The Native groups, however, were in this respect, at any rate during
the earlier years, not sufficiently advanced to make any real contribu
tion. It was only after recommendations were made by the 1958 Com
mission that active steps were taken to promote their participation in
the education of their children.

1 P,-oc. No. 55 oi1921 (S.W.A.), secs.9·19,in The Laws of South West Af,-ica
I9r5-r9aa, pp.635·638.
2 Proc. No. 16 of1926 (S.W.A.), secs.10.28,in Laws oj Soulh West Africa,Vol.
II (1923.1927),pp.232.242. COUNTER-MEMORIAL OF SOUTH AFRICA

The evidence given before the Commission in this regard is sum
marized as follows in its report to the Administration:
"Most of the churches and the mission societies have drawn the

parents into rendering service to their schools by establishing school
committees. They have ail corne to the conclusion, howcver, that
suchcommittees would not beable to make any real contribution with
out the guidance of European chairmen. Certain circles exprcssed
the opinion that bodies of parents would be incapable of bearing any
important responsibilities in school matters. Even the Teachcrs
Association fclt that school committees and school boards would be
undesirable for purposes ofcontrol. And yet-it wasremarkable to what

extent the idea of serving on such bodies and exercising authority
over their schools stirred the imagination of Native parents, tribal
councils and chiefs, without exception. Everywhere grcat cnthusiasm
was shown for such a system of control and they were al! quitc con
fident that they would be able to fulfil the duties explaincd to thcm.
They expressed the desire that such opportunities should be crcatcd
as soon as possible 1."

The Commission recommended that the system of community schools
in South Africa should be introduced in the Territory.

The System of Community Schools itiSouth Africa

37. The desirability of the parents of each group playing an active
part in the planning and administration of its own educational services

was recognized in South Africa from a relatively earlf date. Therc
were, however, special reasons why the development o such institu
tions as school boards and school commit tees was a slower process among
the non-White groups than among the Europeans. There was no e<lu
cational tradition in the Western sense among the non-White groups,
and it was thus inevitable that they could not provide the necessary
basis of educated adults until several generations had passed through
the schools.
ln the case of the White group in South Africa, provision for parti

cipation by parents in the education of their children has been in exis
·tence for many years in the form of school boards and school committees.
Sirnilar provision was made later also in regard to some Coloured schools,
and current legislation contemplates the extension thereof to all Coloured
schools.
38. In the case of the Bantu groups, however, it was not until the

passing of the Bantu Education Act in 1953 that a similar system was
mtroduced. This was done on the basis of a recommendation by the
Commissîon on Native Education 1949-1951, which pointed out in its
report that "Bantu parents should as far as practicable have a share
in the control and life of the schools'', since it is "only in this way that
children will realise that their parents and the schools are not competitors
but that they are complementary", and that "the schools will educate the
parents in certain social values" 2•As a means of bringing into existence

1RepOYt of the Commission of Jnquiry into Non-European Education in South
West Africa (1958), Part 1, para. BI0(b), p.80.
2 U.G. 53-1951, para. 766 (i),p. 131.370 SOUTH WEST AFRlCA

an "educational system (which] should have educative results not merely
on the dùJdren but on the whole community" 1,the Commission stressed
"the importance of giving the Bantu a real share in the responsibility for

their education", and regarded it as "fundamentally important that the
Bantu should ha\"e a share in the financing of schools, in the formulation
of policy, in the shaping of syllabi, in the management of Bantu schools
and in the examination of the professional work of these schools" 2•
In implementation of the aforesaid recommendations, the Bantu
Education Act, 1953 (Act No. 47 of 1953), and regulatîons thereunder,
made provision for the establishment of Bantu community schools in
South Africa. ·

39. The system of community schools offers Bantu parent communi
ties the opportunity of playing an active part in the control of the edu
cation of their children, and at the same time affords them an excellent
training ground in self-management and citizenship.
Community schools, while subsidized by the State, fall under the
local control of Bantu school committees, each consisting of seven

members, elected by and from amongst the parent community con
cerned. Bantu school boards, again, exercise control over ail community
schools in given areas, determined on the basis of language groups and
community inteffsts. Sorne of the members of a school board are elected
by the parent communities concerned, while others are appointed by
the Department and by the local authority concemed to represent
religious and local interests.
There have befm established, throughout South Africa, school com

mittees for more than 4,700 schools and also more than 500 school
boards, each consisting of at least ten members. This means that more
than 33,000 Bantu men and women are now taking an active part in
the control and promotion of their children's education-and, at the
same time, gainirig valuable experience in managin~ their own affairs.
Bantu communities have shown an ever-increasmg interest in the
education of their children since the introduction of community schools
and the system of Bantu school committees and school boards, and

this has in no small way contributed to the big increase in the number
of children at school during the past few years. In 1955 it was estimated
that 40 percent. of ail Bantu children in South Africa between the ages
of 7 and 16 attended school, and by 1g60 the percentage had risen to 60.
40. Paul Giniewski 3 deals with the system of community schools,
school committee:; and school boards in the following tenns:

"These figures are important: they represent 4,500 meeting
places where 30,000 Bantu persons can have a controlling interest in
their own affairs and a training ground for their active participation
in the mana~:ement of their destiny. Through the education of the
children the whole community is being educated, through the con
crete problems of running a school, populations which have been
spoonfed for generations are taught that a book, a pencil, a school

bench, a teacher, mean money and that they are not manna coming
from the omnipotent and far-off government in the town but the

1
2 U.G. 53-1951, para. 962,p. 152.
Ibid.para. 963,p. 152.
l Vide para.14, mf,ra. COUNTER-MEMORIAL OF SOUTH AFRICA 371

fruits of an effort that the community which benefits from them
must make. The system as a whole is thus ccrtainly on this levcl, a
positive contribution to the development of the body civic of the

Bantu and fits in very well with the guiding thought which theoreti~
cally underlies the whole edifice of apartheid: apprenticeship of
national indepcndence ~." .
The community school system, with its school boards and school
committees, has been generally wekomed by Bantu communities in
South Africa. ln the Ban tu newspaper Jlanga Lase Natal of 19 November

1955, M..H. S. Makhanya, Supervisor of Bantu Schools, is reported ta
have said at a meeting of the Natal African School Supervisors' Society:
"We are grateful ... ta the Department" of Bantu Education for
this fine gesture in giving us Africans a bigger share in the responsi
bilityof African education. This will mean a greater gain cvcntually
to Bantu education and we would like to assure the powcrs-that-be

that theywill havenothingto regret in the fine stcp thcy have taken ..
The thinking Bantu is hailing, with much appredation, this giving
them of a large share in the responsibi\ity of African development\ t"

Community Schools in South West A frica

41. The recommendation of the 1958 Commission concerning com
munity schools 3was adopted by the Administration.
Implementation of the new system commenced in 1961, when the
Administration took over the lower primary schools, 85 in number, of

· the Finnish Mission in Ovamboland. A school committee was estahlished
for each of the schools, and Ovamboland was furthcrmore divided into
six school board districts•. The implementation of the system in the
Police Zone began in 1962 5•
After its experience thus far of community schools in Ovamboland,
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 offtcials, are doing good work, and

itis hoped that all Native parent communities will in time utilize ta the
full the opportunity which has been given them of promoting education
through their own efforts. ·
42. With regard to the Coloureds, Ordinance No. 27 of 1962 (S.W.A.) 6
makes provision for the election of school committees, composed of
Coloured parents, for government Coloured schools.

43. The system of community schools does not only afford the parents
of each group an opportunity of participating in the planning and
administration of its own educational services, but it also serves as a
step in a process of development which has as its aira the eventual
assumption by each group of contrai of its education-that is, when
the groups can shoulder the necessary administrative and financial

responsibili ty.

1 Giniewski, op.cit., p104.
2 llanga La,e Natal,19 Nov. 1955, p. 15,
' Vide para. 36, supra.
• Vide Chap. V, para. 35, in/ra.
' Vide further Chap. V, para. 36, infra.
~ Vide Chap. III, para. 5, supra.372 SOUTH WEST Al'RICA

In this regard the 1958 Commission stated that it had: " ... learned

from Native repl'esentatives and bodies that the idea of greater financial
burdens was acceptable" •
And the Comnussion pointed out that-
"As a matter of fact, the principle has in part been accepted
already, as witness the voluntary help and contributions given by

communities with the erection of mission schools, and further the
raising of voluntary levies for educational purposes and the
appropriation of these levies from the tribal funds 2."

IJ. THE ATTITUDE OF THE LEAGUE OF NATIONS TOWARDS RESPONDENT's
Pouey OF DIFFERENTIATION

44. The policy of having separate schools in South West Africa for
European, Coloured and Native children was one of which the Penna

nent Mandates Commission, and therefore also the Council of the League,
was at all times fully aware. Not only were the Education Proclamations
of 1921 and 1926 brought to the notice of the League, but in Respondent's
annual reports to the League the education of European, Coloured and
Native children was dealt with separately. A few references should
suffice as illustration. In Respondent's annual report to the League of

Nations in 1921 it was stated:
''An Education Proclamation on the lines of the Cape Consolidated
Ordinance was issued in November, 1921, and came into force on rst
January, 1922. It contains important provisions for educational
administration and school management by committees, on the

grading, emohunents, and pensions of teachers, on native education,
on private schools, and on the medical inspection of schools, as well
as other important matters 3." (ltalics added.)
In r922 it was reported that-

"Since the arrivai of the rnissionaries, from the earliest times, the
teaching of the native children has been entirely in the hands of the
Missionaries who were subsidised by the late Government ~."
(Italics added.)

In 1923 it was stated:
"Ali the native schools are Denominational Mission Schools at
present. They cannot do without the constant guidance of the
local missiona ry 5• ' Italics added.)

In the same year Major Herbst, Respondent's representative, is re-
corded as having informed the Permanent Mandates Commission that-
" ... the establishment of State schools for natives was contemplated.
This idea has, however, been abandoned for the present as the recent

missionary conference to which reference has been made, proved
entirely satisfactory, under the arrangements which now exist the
Director of Education has a say in the syllabus and the right of

1Report of the C,,mmission of Inquiry into Non-European Education in South
West Africa (1958), Part I, para. B146, p. 138.
2 Ibid.pp. 138-139.
3 U.G. 32-1922, p. 15.
4 U.G. 21-1923, p.20.
5 U.G. 21-1924, p.33. COUNTER-MEMORit..L OF SOUTH AFRICA 373

inspection of mission schools, and the missions are working in close
co-operation with the Administration. A change, therefore, seems
unnecessary.
I think it is generally the policy to leave the Pioneer work in con
necti'on wi"th native education to missionaries, the Government ren
1
dering financial assistance ." (Italics added.)
45, In 1924 Mr. Hofmeyr, the then Administrator of South West
Africa, furnished the Permanent Mandates Commission with particulars
of Native schools in the Police Zone and in the northern territories,
2
as well as of estimated expenditure on Native education •He also gave
the Commission a summary of what had been accomplished during his
tenn of office,and in that regard he stated, inter alia:
"An Education Law, making provision for the recognition of

mission schools, details of which have been supplied, was promul
gated. According to the terms of this law, coloured and native schools
are under the direct control of the various Missions ... 3" (Italics
added.)

He also said:
"In order to work out a·common plan and promote co-operation in
native and coloured education, I instructed the Director of Education
last year to call a conference to which all churches and missionary

organisations interested in educa.tional work were invited. A common
understanding was reached as to the syllabus to be drawn up for
mission schools, and later on a vacation course /or nati"ve teachers
was held. We have in course of preparation elementary reading
books in the native languages for the use of these mission schools 4."
(Italics added.)

Respondent's 1926 annual report contained the following:
"Proclamation No. 16 of 1926. The new Education Proclamation
provides, inter alia, for improved salary scales for teachers in the
5
coloured and Native schools,... " (Italics added.)
46. In 1930 the South African representative, Mr. Courtney Clarke,
in addressing the Permanent Mandates Commission, said that Native
education: " ... was beîng conducted through the Missions, and, in the
6
case of backward races, that was the best possible method ." In its
report for that year Respondent outiined briefly its policy with regard
to the education of the Native population in the following terms:
"The aim is defmitely not to europeanize the natives. They must

retain their language and their customs as far as the latter do not
clash with the great general principles on which civilization rests.
Hereros must develop into better Hereros, the Hottentots into better
Hottentots, etc. 7"

Count de Penha Garcia, a member of the Commission, is reported to
have said:

1 U.G, 21-1924. p. 35.
2 P.M.C .. Min., IV, p.5r.
3 Ibid.,p. 54.
• Ibid.,pp. 51-52.
5 U.G, 22-1927, p. 56.
6 P.M.C., Min., XVIII, p. 137.
1 U.G. 21-1931, para. 312, p. 51.374 SOUTH WEST AFRlCA

The editcation of the African native was a difficult problem. In
many parts of Africa, when natives were given the same education as
white men, the result was often the opposite of what was inte!lded.
A class of haif-educated natives, if he rnight so use the term, was
created, which only too often exercised a hannful influence over the
primitive native ...
The native had not the sarne mentality as the white. Educational
methods mus! be açiopted which were suited to his mentality and to

his process o.f evolution towards a civilisation which was not always
that of the whiteman himself 1." (ltalics added).

In 1936 it is recorded that the Commission noted "with satisfaction":
" ... the efforts made by the mandatory Power in the educational
sphere, and in particular the opening of a first Government native
school in a native reserve. It hopes that it may be found possible to
open similar schools in other native reserves, .. 2" {Italics added.)

47. The policy of having separate schools, which was applied in South
West Africa when South Africa assumed the Mandate, was the policy
which was followed during ail the years of the existence of the League
of Nations. While fully aware of the application of this policy, neither
the Permanent Mandates Commission nor the Council of the League

at any time suggested that the policy was not in keeping with the terms
of the Mandate, and at no time was Respondent requested to adopt a
different policy. On the contrary, a reference to the proceedings of the
Permanent Mandates Commission shows that the members of the Com
mission were at all tirne aware of the vast differences between the various
groups in their respective levels of civilization, their traditions and
cultural backgrounds, and it is submitted that they appreciated and did

not oppose Respondent's view that the interests of the various groups
could best be served in separate schools. Of particular significance in this
regard is the attitude adopted by the Commission towards Respondent's
policy of mother-tongue education 3•

Ill. SEPARATE EnuCATIONAL FACILlTIES IN ÛTHER MANDATED
TERRITORIES

48. That separate educational facilities for different population groups
also existed in other mandated territories during the lifetime of the
League, appears from the Minutes of the Permanent Mandates Com
mission. The following extracts from these Minutes are cited as examples.

(a) The Pacifie lslands-under Japanese Mandate

In a note read by the Japanese representél.tive to the Commission
during the fourteenth meeting of the Third Session, in I923, it was
stated, inter alia:
" ... an improvement has been made in the system of education with
a view to dea.ling more adequately with the present situation in the

1P.M.C., Min., X.VIII. pp. 138-139.
2Ibid.,XXIX, p. 212.
3 Vide para.16, sup~a. COVNTER-MEMORIAL OF SOUTH AFRICA 37.S

islands. There are two kinds of schools-primary schools for non
natives anù public schools for the natives 1".

(b} New Guinea-under Australian Mandate

At the fourth meeting of the Thirteenth Session in I928, in reply to
a question by Lord Lugard concerning "the facilities for the education
of white, Chineseand half-caste children", the Australian representative,
Sir Glanville Ryrie, isrecorded as having stated:
".. . that there was a good school at Raboul staffed by white

teachers ... the number of pupils attending the school at Raboul
was 22, and the numbers of pupils attending the Chinese schools
were 43, 57 and II respectively. There was also the school for
Europeans at Kieta 2.''
And at the seventeenth meeting of the Thirty-sixth Session, in 1939, the
Australian representative, Mr. Halligan, is recorded as having said:
"European, Chinese and native schools were maintained during the
year .. .3"

The following statement is recorded in the Minutes of the seventeenth

meeting of the Thirteenth Session, in 1928:
"Additional funds had also been voted for opening a girls'schoolin
Tabora, the first effort ofthe Government to undertake the education
of girls, and for setting up a central school for lndian children in
Dar-es-Salaam. Monîeshad also been voted for the instruction of the
chîldren of Europeans in some of the main centres 4."
And at the third meeting of the Eighteenth Session, in 1930, the Man

datory's representative is recorded as having stated that-
" .•. the Advisoty Committee advised the Government solely on
matters relating to native education. The two Advisoty Boards (on
Indian and European Education) would be confined respectively to
lndian and European Education. They would be three quite separate
organisations s."

IV. RETENTION OF THE SYSTEM OF SEPARATE EDUCATION

49. The circumstances which brought about a system of separate
education in South West Africa still exist today.
The difference between the levels of civilization and development of

the European and Native peoples of the Territory in 1920 was such that
it could not be eliminated in a generation or two. Steady progress has
been made in the education of the Native groups during the last 40
years, but, on the whole, the gap is still a wide one. Moreover, the
customs, cultures and traditions of the Native groups have remained

1 P.M.C., Min., III, p. So.
2 Ibid., XIII, p. 31.
J Ibid., XXXVI, p. 141.
• Ibid., XIII, p141.
' Ibid., XVIII, p. 37.

6 SOUTH WEST AFRICA

vastly different from those of the Europeans, and, in addition, still vary
from group to ~oup. The languages spoken by the several Native
groups are ail d1fferent from those spoken by the Europeans and the
other non-White groups. Geographically, the majority of the Native
population are domiciled in separate, demarcated areas, where they
have their own communal interests. .

50. The policy of separate education as applied in the past is also in
accordance with the wishes of the vast majority of the population of
the Territory.
In the case of the Natives, each group wishes to retain its own identity
and culture. Th,~ Coloured people prefer that their children be tau~ht
in schools of their own. On the side of the White population differentiation
exists even amongst the three language groups. The White group, like
the other groups, prefers that its children be taught in separate schools.
In the circumstances Respondent sces no way of meeting the needs

and desires of the various groups, and of preserving harrnonious relations
between them, without retaining a system which makes provision for
separate schools for them.
51. It is Respondent's belief, furthermore, that the/olicy of having
separate schools for the children of the White, Coloure and the various
Native groups Î5, in the circumstances which prevail in South West
Africa, educationally sound. It is the considered opinion of education
ists of standing throughout the world that the interests of any particular

community, which is clearly distinct from other communities, can
best be served by providing education for its children in their irnmediate
environment and in accordance with their specific needs, their stage of
development, and their cultural background.
52. In regard to Native, or "African". education in particular, modern
educationists agree that such education calls for an approach which is
different from that followed in the case of Europeans.
Thus D. G. Scanlon, Assistant Professor of Education at the State

Teachers College, Newark, New Jersey, U.S.A., and former member of
the Unesco Fondamental Education Project, in 1954 wrote in an article,
"Education and Social Change in West Africa":
"Format ,:ducation must be carried on within the soàal and domestic
milieu of tht young African. Village schools where the child remains
in his own home while receiving his early education are imperative.''

And:
"The curriculum of the village schools should be designed ta meet
the needs of the community . .. Each area should be studied before
constructing a curriculum for the school. Too often, curricula are
copied from countries whose needs and cultures are vastly different
from those of Africa. Such a curriculum, usuaUy of an academic
nature, contributes little towards helping the child in his culture.

Teaching mate.rials shou1d beproduced which will be meaningful to
the children -inthe village."
P. P. Tempels, a rnissionary in the Belgian Congo for many years,
wrote:

1 Scanlon, D. G., "Education and Social Change in West Africa",Teachers
College Record, Vol56, No. 3 (Dec. 1954),p. 134. COUNTER·MEMORIAL OF SOUTH AFRICA
377

''Weexperience more and more that our civilisation, our ù:leas,at
least in their Western /orm, do not appeal to the Bantu; their"souls
are not touched thereby. .
... Who amongst those responsible for their education and evolu
tion build upon a sound, real Bantu foundation?
The result is on the whole miserable. We have at present to deal
with a mass of 'évolués' who look down with disdain on members of

their race, but who are t1emselves at sea with lifebecause they have
lost the meaning of it ." (Translated f:romDutch.) (Italics added.)
Clement Odunukwe, lecturer with the Emergency Training Scheme,
Lagos, has stated:
''Americaneducation isdifferent from British education. American
education isgood for America because it is what the people want and
are willingto pay for. Itmust be presumed that British education is

good for Britain. Neither as such isgood for Nigeria. Education is a
social function which must fit the environment for which it is de
signed ." (Italics added.)
Million Neqniq, Director of Research and Curriculum Development
in the Ethiopean Ministry of Education, has written:
''Thecurriculum of the schools must be adapted to the peculiarities
of the cultural, social and environmental characteristics of Ethiopia.

It cannot be sufficiently stressed that our needs and problems are
different and cannot be solved by adapting other nations' educa
tional systems 3." {ltalics added.}
Jan Eigenhuis quotes Albert Schweitzer as saying:
"l grow steadily more convinced that the Europeans, who are
being sent out by the missions to educate the natives can only do a
part of the work. The real educator of the negroes is the negro him

self.There can be no real progress4until the negroes feel the call to serve
as the educators of their people ." (Italics added.)
P. B. Ballard, a British educationist, bas written:
" ... training in the use ofthe mother tongue-the tongue in which a
child thinks and dreams-becomes the first essential ofschoolingand
the finest instrument of human culture 5".

In a "Study of Discrimination in Education", issued by the United
Nations Economie and Social Council in 1956, it is stated:
"They [the experts] accept as axiomatic, on psychological, so
ciological and educational grounds, that the best medium for
teaching a childis bismother tongue. Consequently, they recommend
that every effort should be made to provide education in the mother
tangue to as late a stage of education as possible 6."

1 Tempels, P. P., Bantoe-Filosofie (1946), p. 108.
z Odunukwe, C., "Education in a Dynamic Society", West AfYi&an Joun1al of
Education, Vol. 2, No. 3 (Oct. 1958), p. 93.
J Neqniq, M., "The Most Urgent Needs in the Expansion of Ethiopian Ed11~tion",
Ethiopia Obsen,e,., Vol. Il, No. 4 (MM. 1958), pp. 138-139.
4 Eigenhuis, J., Alb,wt Sch11Jeiteer(1929p. 97.
' Ballard, P. B., Thouglil and Langttagi, {1934)p. 17.
6 Vide U.N. Docs. EJCN. 4/Sub. 2/181, 7 Nov. 1956, para. 527, pp. 168~169
and E/CN. 4/Sub. 2/181/Rev. I, p. 109. SOUTH WEST AFRlCA

53. There can be no doubt that in the view of the educa tionists referred
to above the education provided for the children of any of the Native
groups in South West Africa must, in certain major respects at Jeast, be
different ftom th.at provided for White children in the Territory. It is

also clear that the successful a:1;>plicationof the various princip]es men
tioned above demands that Native children should receive their education
in their own schools, where full effect can be given to the principles
involved.
These principles furthermore entail that there should be differentiation
even in the education of various Native groups when they have different
languages, cultures and traditions.

54. In addition to the views of the educationists referred to above,
attention is drawn to the educational programmes which have been
adopted by a large number of African countries, including the Applicants,
in recent years. Available information shows that African countries have
generally decided that existing patterns and systems of education for
Africans should be discarded as being ''European" and foreign to the
African background and cultural heritage; that educafion should be
"Africanized"; that educational curricula and teaching materials should
be adapted to African conditions and interests and that they should,
particularly at the primary and lower secondary level, be adapted to
rural and village life; that education at all levels should rest on a foun

dation of specifically African culture, and that education should serve to
revive African dvilizations.
Respondent refers in this regard to the report on the proceedings of
the "Conference of African States on the Development of Education in
Africa", held at Addis Ababa from 15 to 25 May 1961. In Chapter I (I)
(b) of the report it is stated:
"The leaders of education speaking of their countries' needs, have
stressed a second major aspect-the desire to accelerate the reorien

tation of the education patterns and systems to the economic and
social needs of their individual areas. They wish togive proper stressin
education al all levels and by aU possible means to their own culture.
As the students of Africa are exposed to the scientific and cultural
aspects of the outside world, they need to be thoroughly grounded in
a finn knowledge of their own cultural heritage. The education for
the future citizen of Africa must be a modem African education 1."
{Italics added.}
The following is said in regard to text-books:

"The problem of the production of textbooks adapted to new
curricula requirements and African conditions is crncial. On the side
of content, scientific and technoJogical books in many cases produced
for non-African consumers, must beadapted to African teaching condi
tions. For history, literary and social studies subjects, there is an
urgent need for adaptation of textbooks more relevant to African li/e
and culture 1." (ltaJics added.)

55. In regard to rural education, the said report contains the following:
"There is interest in adapting educational curricula, particularly
at the prima.ry and lower secondary level, to rural and village life.

l Unesco/ED/181, para. 6, p. 3.
~ Ibid.para. 12,p. 5. COUNTER-MEMORIAL OF SOUTH AFRICA
379

Efforts are being made to bring the school to the countryside physi
cally and in terms of a programme more in line with rural needs
and interests. This new direction will be an important factor in
raisingthe productivity of the agricultural economy, in enriching the
community lifein the villages, and in increasing employment opportu
nities in rural areas. It will help diminish the number of school
leavers who flock to the towns and cities for employment which, in
certain areas often is almost non-existent. Concem was expressed

over the problems pased by the uprooting ofyoung people too abruptly
from their rural and family surroundings, producing individuals
'suspended between two worlds'. In the effort to adapt educational
programmes to rural conditions, consideration was given to experi
ments in rural school curricula combined with rural community
programmes, to the potential role of agricultural extension services in
1mproving rural education and to the importance of developinga
new sense of the crucial role.of agricultural activity and rural living in
the productive life of Africa1." (Italics added.)

The report also deals with "The Need of Development of African
Culture" in the following terms:
"Against this description of urgent needs and plans for the expan
sion and modernization of education in Africa and the progressive
Africanization of teaching personnel, there is major concern that cur
ricula and teaching materials be adapted to A/rican conditions and
interests. This can only be brought about throu~h the development

for all levels of education of textbooks and teachmg materials wlûch
illuminate the /amitiar envfronment of the pupi!s and refiecttheir cut
tural history. In adult education programmes as well, materials of
instruction can be more thoughtfully adapted to local cultural needs.
At the higher levels of instruction, there is need for the training of
specialists in African history, languages, culture and art.
\Vhether in the field of adult and civic education, in formal educa
tion, or in the broad and important area of the creative arts, th4.
growth of a wider consciousness and understanding of African cul
tural values, will only be effectîvely developed by a greater study and
knowled~e of the sources of African culture and by an expansion in

each nation of programmes of research on the traditions, the ways of
thought and living particular to each country. From this will grow a
larger conception and appreciation of African culture as a whole and
of its contribution to the common cultural heritage of mankind 2.''
(Italics added.)
56. In Chapter V of the report the following is said, inter alia, in
regard to "The reform of the content of education":

"The Commission discussed at length the problem of reforming the
content of education in the African countries, and heard a most in
formative statement on the subject from the Unesco consultant, Mr.
Joseph Ki Zerbo of Upper Volta (see Annex IV).
The need for such adaptation is generally recognized. The educa
tional systems in force were modelled, by ·and large, on those of the
former metropolitan countries. Moreover, even in the latter they fre-

1 Unesco/ED/171, para. 18, pp.5-6.
2 Ibid., paras. 24-25, p. 7. SOUTH WEST AFRJCA
380

quently require overhauling, as they had been worked out long
since. They are in line neither with existing African conditions, nor
with the postulate of political independence, nor yet with the
dominant foatures of an essentially technological age or of the
imperatives of balanced economic development involving rapid

industrialization. Based as they are on a non-African background,
they alJow no room for the African child's intelligence, powers of
observation and creative imagination to develop freely, nor do they
help him to find his bearings in the world. For the African personality
to assert itself, it is necessartorediscover the African cultural heritage
to which an important place should beallotted in education. Stress must
be laid on the cultural and social features common to the African
countries, thus strengthening African unity and helping the countries
of the continent ta get ta know each other better. An understanding

of African customs, languages, psychology and sociology cannot but
facilitate the work of medical personnel, demographic experts,
statisticians and other specialists.
. . . curricula should be correspondingly re/ormed by allotting less
time ta the teaching of dead languages and ending the preferential
treatmentgiven by the former metropolitan powers to the teaching of
history and geography little related to Africa or African needs 1."
(Italics added.)

57. Mr. Joseph Ki Zerbo, referred ta in the above-mentioned report.
said in a "Background Paper", entitled "The Content of Education in
Africa", that if education was to fulfil its many functions satisfactorily,
it would have to be "African", that is, "it must rest on a foundation of
specifically African culture and be based on the special requirements of
African progress in ail fields" 2•

58. The said Conference adopted what is called an3"Outline of a
Plan for African Educational Development" • In this "Outline" the
importance of a reforrn of teaching materials is stressed in the following
terms:
"There ex1:stsa persistent need for the re/orm of teaching materials
at all levels. School experiences should contribute to the learner's
greater understanding and appreciation bath of his cultural heritage

and that of ail other nations and of ail aspects of bis nation's present
and probable future. His basic and supplementary matenals for
study should be barn of African conditions and interests. Throughout
the textbooks the African child studies should run the /abric of African
li/e and culture. Production of such material will require considerable
research, writing, and publication, but its importance to the develop
ment of proper concepts and of leaming experiences appropriate to
the African child makes it a need of crucial urgency \" (Italics
added.)

The Conference expressed the view that "the present content of educa
tion in Africa" was "not in line with ... African conditions", but.was-
" ... based on a non-African background, allowing no room for the

21Unesco/ED/r81, paras.23-24, 26,pp. 38-39.
Ibid.,Annex IV, p. 55.
s Unesco/ED/180.
• Ibid.,para. (h), p. 8. COUNTER-MEMORIAL OF SOUTH AFRICA
381

African child's intelligence, powers of observation and creative
imagination to develop freely and help him find his bearings in the
world ... 1",

and accordingly recommended, inter alia, that-
" ... African educational authorities should revise and reform the
content of education in the areas of the cu"icula, textbooks, and methods,
so as to take account of African environment, child development,

cultural heritage and the demands of technologic1l progress and economic
development, especially i'ndustrialization. . . ." (ltalics added.)
59. In this regard, reference may be made also to two statements by
leading African personalities. On 10 December 1962, according to a
press report, Dr. Julius Nyerere, the President of the new Tanganyika
Republic, told Parliament that traditional Tanganyika music and <lances

would be revived to foster pride in the country's indigenous culture,
and that a Ministry of National Culture and Youth had been set up to
carry out the task. While warning his listeners that to revive one's own
culture did not mean that one should refuse to learn from foreign cultures
he is reported to have said:
"Of all the crimes of colonialism, there is none worse than the

attempt to make us believe we had no indigenous culture of our own.
Sorne of us, particularly those who acquired a European type of
education set ourselves to prove to our colonial rulers that we had
become 'civilised', and by that we meant that we had abandoned
everything connected with our own past and had learnt to imitate
only European ways.
Our young men's ambition was not to become well-educated Afri
2
cans, but black Europeans .''
And in November 1962, according to a press report, the Director of
the Ghana lnstitute of Art and Culture, Chief Kobina Nketia IV:
" ... advocated that the people of Africa shouldrewrite their history,

abolish European customs and practices and revive their indigenous
tradition al institutions",
.and told members of the Soviet Association for Friendship with Peoples
-0fAfrica that ''... the European association had made an evil impact
on African culture and civilisation" 3•

60. From the preceding paragraphs it appears clearly that educational
authorities in many African countries (including the Applicant States,
Ethiopia and Liberia) subscribe to the view that the content and methods
of "African education"-education for the indigenous peoples of Africa
must rest on a foundation of African culture; that it must, therefore, in
part at least, be different from European education, and that a European,

or Western, orientated education cannot possibly serve the best interests
of children who have an African cultural heritage.
These views are readily appreciated by Respondent. As indicated
.above, they have been recogmzed and applied for a number of years in
Bantu education in South Africa, and are also put into practice with
regard to the Natives of South West Africa.

1Unesco/ED/180. para. (1),p. z3.
2The Star, 11 Dec. 1962, p. 7.
3 Ibid., 15Nov. 1962, p. z1. SOUTH WEST AFRICA

61. Just as Europcan, or Western orientated education cannot do
justice to the African cultural heritage, it will be appreciated that the
converse must be equally true: an education based on true African
fundamentals cannot do justice to a European, or Western cultural
heritage.
lt seems clear that there can be no system or pattern of education
which can rest on a foundation of specifically African culture and at
the same tirne on a foundation of specifically European, or Western,
culture; that there can be no tcxt-book throughout which there can run
1
"the fabric of African lifc and culture" and, at the same time, the
fabric of European, or Western, life and culture. This being so, it ne
cessarily follows that no single, or joint system of education can serve the
bcst intercsts of both White, or European, and African children; that
no teacher with a European background and a European cultural
heritage can be a true educator of children with an African background
and an African cultural heritage, and vice versa; and that no single, or
so-called "integrated" school or dass can properly serve the interests of
bath European and African children. ln this respect the following
statement by W. C. Taylor with regard to education in Liberia is of
particular significance:

"Teaching of American and European children in the same schools
and classes as the Liberian children is impracticable, owing to the
language banier and to the very large differences in the children's
ages, curricula, and cultural backgrounds. For example, the average
age in the first grade of the Liberian schools is 14, as compared with
6 in the American and European school. For this reason alone, the
classes could not be integrated. A school building is provided for
educating the children of the American and European staff ."

(Italics addecl.)
62. In the light of the above considerations and Respondent's ex
tensive experienc,~ of multi-group interests and needs, both in South
Africa and in South West Africa, it is Respondent's firm belief that it
would be failing in its duty under the Mandate ifit were to abolish its
present system of separate schoois for the respective groups and to
substitute for it schools which willbe open to all the groups. Not only
would such a system lead to dissatisfaction and group friction, but 1t

would also result in the neglect of the needs of all the groups and in
irreparable harm to the Territory as a whole.

B. Circumstances and Considerations affecting the Question of Expenditure
on, and the Provision of Particular Educational Facilities for, the Varions
PopulationGroups

63. Particulars of expenditure on the education of the Native and
White population groups of South West Africa are given in Chapters V
and VII hereinafti~r. lt will be observed from such particulars that ever·

increasing amounts have over the years been spent on the education of
each of the groups, and that expenditure per pupil in each group has

2 Taylor, W. C., The Firestone Operations in Liberia (1959), p. 76. COUNTER-MEMORIAL OF SOUTH AFRICA

also risen steadily. It will further be observed that, on a relative basis
of comparison, more has been spent on European education than on
Native education, and that more has been spent on Native education
in the Police Zone than in the areas beyond that Zone.
Various factors relating to the question of expenditure on, and the

provision of particular educational facfüties for, the different population
woups, will be dealt with in Chapters V and VII. In this Chapter it is
mtended to deal with only one basic aspect of the problem, namely
the question of educational expenditure as seen against the background
of development of the Territory as a whole, and of the economic status
and level of advancement of each of the population groups.
64. The differences in the social and economic levels of development
of the various population groups in South West Africa have at all times

had a governing influence on the educational requirements of the re
spective groups, and consequently also on the expenditure involved in
providing therefor.
In the case of the White group, with its long tradition of education,
it was only natural that there should from the outset have been an
almost universal demand for education for its children, and that the
demand should over the years have increased with regard both to the
quantity and the quality of educational facilities. Moreover, with its
dynamic and progressive economy, the White group was able not only
to generate more wealth than the traditional economies of the indigen
ous groups, but also to provide better opportunities for employment
and other wealth-earning potentialities, which in turn served as an in
centive for the advancement of its children in education.
In the circumstances it was natural, and almost inevitable, that the
demand for education on the part of the White group should, not only
in the interests of that group, but also with a view to the development
of the Terri tory as a whole, have been acceded to by Respondent. .
· In the case of the indigenous groups, however, the situation was
vastly different. There was, on their part, not only an absence of an
educational tradition, but, also, because of their background and tradi

tion-bound economies, also of those qualities and incentives which
characterize a modern economy and which make for the creation of
economic opportunities and potentialities. It was for these reasons, inter
alia, that the education of the indigenous groups could initially best be
left mainly in the hands of missionaries who could, in conjunction with
their primary task of teaching religion, best inculcate in the children of
these groups the desire for education.
Ithas only been in recent years that it has been possible for Respon
dent to assume a major share of responsibility in thls sphere, especially
as regards the northern parts of the Terri tory.
65. Respondent was virtually compelled to adopt the course ,afore
stated by the facts of the situation as it tound them on ta.king over

control of South West Africa; and such course in tùrn regulated the
application of funds in providing educational facilities for the different
population groups. Any other approach based, for example, on the sup
pasition that all groups should at all points of time be treated equally
m the allocation of funds-also in the educational field-would have
been completely artificial inthe circumstances of the Territory. It would
not only have operated in disregard of the needs of the different popu- SOUTH WEST AFRICA

lation groups, but would have prevented any real progress on the part
of any of them.

66. Although the efforts of the missions in educating the indigenous
peoples, and Respondent's own efforts in that regard particularly in
more reccnt years, have brought about considerable advancement of
these peoples, the differences between the various groups, for example
in economic outJook, still exist, a1though to a lesser degree. One of
the greatest problems in promoting pro~ess among the non-Wlùte
groups arises from the ditliculty of altering their traditional attitude
towards organized and regular work. Realizing that the educational
advancement of these groups, as in the case of the White group, must

io hand in hand with their economic and social progress, Respondent
1sactively engaged in what might well be called the economic education
of the non-White groups-i.e., encouraging them to make use of the
opportunities which are brn~ht about in the development and im
provement of their economic bfe, which in turn will stimulate a desire
for more advanced education and, at the same time, increase their
capacity to contribute towards the education of their children.

67. The planning of educational fadlities for a community against
the social and economic conditions of its members appears to be in
accord generally with modern thinking on the subject. Thus, in a paper
prepared for the guidance of the Confcrence of African States on the
Development of Education in Africa (Addis Ababa, May I96I), Pro
fessor W. Brand, Professor of Economies at the University of Leyden,
said, inter alia:

"It should be appreciated that in planning the expansion of educa
tion, various alternative routes may be fo11oweddependin9. upon the
political, economic and social climate and other factors 1• •
After surveying various factors which may influence expenditure on
education, he said:

"This list of factors which needs to be weighed in costing an edu
cational plan is not meant to be exhaustive, but isgiven to emphasize
that different choices exist in attaining certain educational goals.
What means will be most feasible will depend to a large extent upon
the circumstances prevailing in a particular country 2."
And development by stages in any society. and especially in under
developed societies, has been stressed in the following terms in a recent

United Nations report on the World Social Situation:
"As a rule, economic and social factors complement or support
each other in the objective process of development. With certam ex
ceptions, and in varying degrees, progress in any one field (industry,
transportation, education, labour, welfare, health, etc.) tends to be
held back bv failure to advance in other fields 3."
"The General Assembly of the United Nations, as well as the

Economie and Social Council and its Social Commission, have
adopted a number of resolutions in recent years emphasizing the
importance of 'balanced' and 'integrated' social and economic develo,P-

1 Unesco/ED/181, Annex IV, p. 32.
1 Ibid., p. 33.
3 U.N. Doc. EJCN.5/346/Rev. 1,ST/SOA/42, p. 96, COUNTER-MEMORIAL OF SOUTH AFRlCA

ment and urging thal action ,·nlhese two fields go 'band in hand' 1."
(ltalics added.)
While the idea of balanced development stresses the complementary
aspect of the relationship between social and economic advancement
at different stages of general development, it also lays cmphasis on
balance in respect of available resources-it allows for the competitive
aspect in allocating resources. So, for example, it is pointed out in the
report that-
" ... there is also competition among sectors and [betwcen economic

and social objectives] for the expenditure of available resources
competition for money and manpower, particularly skilled manpower
-so that in this respect progress in one fieldcan hamper progress in
other fields . . . Similarly,in the caseof publicexpenditures, there are
limits to investment in a given fieldbeyond which further investment
will appear to have, broadly considered, anegative net effect 2."
Looking at the same problem mainly from the educational point of
view, another body of United Nations experts recently formulated their
tindings with regard to progress in Non-Self-Governing Territories in
the followingterrns:

"It may be noted that the less developed the Territory is, the
greater the need for concentrating resources on the basic economic
structure (communications, agriculture, etc.), so thal progress in
educational services is likely to be slowest in areas where the need is
greatest3." (Italics added.)
68. Colour and racial origin per se do not determine the distribution
of educational facilities or differential expenditures on education in
South West Africa. In other countries in Africa particular local cir
cumstances, economic conditions and historical developments have
brought about similar differences in the education of African population
groups.
This is well illustrated in an article by Phillip J. Foster published in
the October 1:962issue of the Comparative Education Review.
The author states, inter alia:

''... it will be indicated that regional inequalities in provision of
schools are virt11allyinevitablein areas where there has been a difjer
ential internal rate of economic and social change. This has been the
case in virtually every African territory ... 4" (1talics added.)
After a survey of the historical development of certain of the ethnie
groups in Ghana, the author describes the position of education in that
country by 1:948 as follows:

"By r948 the geographical pattern of inequality was very clear.
The proportion of the population with six years of education or more
stoodat5,8percent. in the Colony, 3.9 percent. in Ashanti, but only
o.2r PE:rcent. in the Northetn Territories. The continuing close
association between education and urbanization processes stood

1 U.N. Doc. E/CN. 5/346/Rev. I,ST/SOA/42, p. 23.
1 Ibid., p. 96.
1 U.N. Doc. ST/TRl/SER.A/15,Vol. 4, p. 37.
4 Foster. P. J.."Ethnicity and the Schools in Ghana", Companllir,• Eà""°'iMt
Rni.t!W,Vol. 6, No.2 (Oct. 1962),p. 128.386 SOUTH WEST AFRICA

out very clearly; average education levels in the larger towns were
between two and three times that for the population as a whole.

This kind of Picture is common enough in most Parts of Africa and
is inevitable i:olong as local rates of social and economic change diUer
so markedly 1."(Italics added.)
The author states further:

"During the colonial period, low levels of education among parti
cular ethnie ~:roupsdid not necessarily militate to their disadvantage,
but there is now a belated recoçnition by some of these groups, par
ticularly in the north, that ethmc demands for educational parity in
the schools must be asserted if they are to achieve their share of the
'commandin1~heights' in the new polity. Consequently, the present
government ha.s had to /ace the criticism that it has discrimina.ted
against certain ethnie minorities in the provision of education. That

such criticisms are largely unjustified in view of the historical evolu
tion of Ghana is beside the point. lnequalities do exist and provide
powerful weapons in the bands of separatist or regionalist political
leaders 2." (Italics added.)
And after analysing certain statutes, he states:

"Though space precludes fuller analysis of the data, there is little
doubt that apparent ethnie inequalities are almost entirely explain
able in terms of these other variations in student background. This
type of evidence accords well with out general hypothesis that
ethnie inequalities stem largely from differential internai rates of
social and economic change and are nota ttributable to the operations
of ethnie factors per se 3."

And later, in conclusion:
"It may be possible to indicate very rational causes for such in
equality but such explanations do not satisfy ethnie minorities who
perceive the issue as one of discrimination ...

Perhaps the greatest tragedy is that the immediate requirements
for maximal-economic growth sometimes suggest that inequalities in
educational provision are not disastrous and are themselves a
necessary, if temporary, corollary of development. However, such
judgments do not determine the nature of educational expansion
and run counter to the political aspirations of the masses. For them
parity of access and the universal diffusion of formai education is the
point at issue. lndeed, political demands so frequently run counter
3
to actual development requirements ."
69. The "tragedy" referred to by this author in the quotation above
results inevitably from differences in the tempo of development between
groups with a dynamic progressive economy and outlook, and other
groups which, forreasons often beyond the control of any administration,
are still tradition-orientated and live in a relatively static economy.

In South West Aftica, during the entire period before the SecondWor~d
War, when the economic situation of the Territory was such that avail-

1 Foster, P.J., ''Ethnicity and the Schools in Ghana", Comparative Educatian
Re2iew. VoL 6, No. 2 (Oct. 1962), p. 129.
Ibid., p130.
3 Ibid., p134. COUNTER-MEMORIAL OF SOUTH AFRICA

able funds were severely limited, it was essential for Respondent to bear
this fact and the foregoing considerations constantly in mind when
detennining the amounts that could with advantage be invested in the
education of the various population groups.

In the main the problem as at that phase can be said to have con
cerned the awakenmg amongst the greater portion of the indigenous
population of a desire to receive even elementary education, in contrast
with an almost universal demand and need for relatively advanced
educational facilities on the part of the White population group. Since
the war the fmancial position has improved considerably, and there
bas been ·a general increase in the interest shown in education by the
members of the Native groups. Nevertheless,. aspects of the above
considerations have still, and perhaps now particularly, to be borne Î.Îl
mind. Of special importance at this stage of development are the con
siderations of "limits .. , beyond which further investment ... have ...
1
a' negative net effect" , and of co-ordination between educational and
economic advancement, with a view to rendering available suitable
employment opportunities for members of the non-White groups at
varions stages of educational progress i.These considerations require
to be taken into account not only in detennining the total amount that
can be expended on education in competition with other phases of the
development programme, but also in allocating amounts to varions
aspects of the educational programme itself.

70. The need for maintaining "baJanced" socio-economic development,
is illustrated by the contemporary problem in many underdeveloped
countries of ftnding employment for the growing number of the "edu
cated'', and of adapting educational policy to domestic needs. In this
connection a group of well-known scholars has recently, in a publication
entitled The Emerging Nations, stressed the point that-
''The dangers of training men inappropriately are as great as the

dangers of not training them at all. Ifeducational goals, curricula,
and procedures based on ·the practices of developed societies are
applied ha.stily to underdeveloped areas, the result is likely to be a
class of educated unemployables who may be the most disruptive ele
ment in a transitional socùty. To be effective in developing the kinds
of hwnan capital most needed, technical assistance experts in ail
fields must have a deep understanding not only of the economic but also
of the socialand cultural needsof the people in the countries to which
they are assigned 3," (Italics added.)

71. In this context also Professor W. Arthur Lewis, Principal of the
University College of the West Indies, has made the following observa
tions:
"Apart from its cost, universal primary education, ifattained with
speed, raises problems of absorption. In a cornmunity where only
20 percent. of children enter pnmary school, and only rn percent.
fimsh the course, the demand for primary school graduates Î;>such

1 Vide U.N. Doc. E/CN. 5/346/Rev, r. ST/SOA/42, p. 96, quoted in para. 67.
supra.
2 Vide para. 66, supra.
3 Millikan, M. F. and,Blackmer, D. L. M. (eds.),The Emerging Nations: Their
Growth and United States Policy (1961),p. r17. SOUTH WEST AFRJCA

that they command considerable salaries in white collar jobs. If the
number entering primary school is pushed up from 20 to 80 per cent.
of the age group within ten years, as has happene<l in some West
African countries, the result is frustration. The children pouring out
of the primary schools look to the town for clerical jobs, and are
disappointed when they do not find ernployrnent. The towns fil1up

with discontented youths, faster than bouses, jobs, water supplies,
or other amenities can be provided, and urban slums and delinquents
multiply while the countryside is starved of young talent 1."
And later:
"The limited absorptive capacity of rnost West African economies

today-especially the backwardness of agriculture-rnakes frus
tration and dislocation inevitable if more than 50 per cent. of children
enter school. Tlùs, coupled with the high cost due to the high ratio of
teachers' salaries to average national incarne, and with the time it
takes to train large numbers of teachers properly, has taught some
African countries to proceed with caution-to set the goal of universal
schooling twenty years ahead or more ratlur than the ten years ahead
or lesswMch was associated wi'ththe first 'flush of independence move
ments. This decision is highly controversial to those for whom
Iiteracy is a universal human nght irrespective of cost. to those who

feelthat it is better to be taught by untrained teachers than not to be
tau~ht at all, and also to those who see in the frustrations generated
by mcapacity of the current social fabric to absorb the very stuff
which will promote needed change raeidly. On the other band,
considering that in rnost African territones less than 25 percent. of
children aged 6 to I4 are in school, a goal of 50 percent. within ten
years may be held to constitute revolutionary progress 1." (Italics
added.)

72. In South West Africa the position is, generally, that the demand
for educated non-Whites in certain professions and vocations has not
yet been satisfied, There is still a serious shortage of, inter alia, qualified
teachers, nurses, policemen and civil servants arnong all the non-White
groups. This shortage is largely due to the slow response of these groups
to education, owing, no doubt, to the absence of a keen feeling for the
need for such services at their present stage of social evolution.
To overcome the problem to some extent, Respondent has been
obliged to accept lower qualifications for such posts than those pre
scribed for corresponding posts in the case of the White group. So, for
example, despite ail efforts made and encouragement given in the past

to raise the qualifications of Native teachers, the Native groups are at
present to a large extent still served, as far as the education of children
m primary schools is concemed, by teachers who have only passed
Standard VI plru: a teachers' training course, while the White group is
served by teacher3 who have passed Standard X plus a teachers' training
course, or who are in possession of a university degree. And, because
the Native teacher is not so well qualified as the Coloured or White
teacher, he naturally commands a lower salary than those whose educa
tion has cost more.

1 Lewis, W. A., ''Education and Economie Development", Oversea (}uarinly,
Vol. 2.No. 8 (Dec. 1961),p. 233. COUNTER-MEMORIAL OF SOUTH AFRICA

Another consideration to which weight bas had to be given is that a
teacher's salary should bear a relationship to the normal income of
other members of his group so as to ensure that he does not become
separated, or estranged, from them as a result of an artificial financial
barrier. When this happens, the teacher ceases to be able to exercise
the required influence over his own people, and accordinglfailsto be
an effective instrument in advancing their spiritual and material pro
gress. As the socio-economic structureswithin the Native groups are
still at much lower levels of development than those within the Wlùte
group, it isinevitable that their teachers should at present command
lower remuneration than the teachers of the Whitegroup. In thisregard
the Coloured groups occupy an intermediate position, in accordance
with their socio-economiclevels of development.
73. European Powers administering other African Territories en
countered problems similar to those experiencedy Respondent regard
ing scales for government servants, and, more particularly, for White
and non-White teachers and civil servants.
The Commission which conductetl an investigation into the structure,
remuneration and superannuation arrangements of the civil services of
Kenya, Tanganyika, Uganda and Zanzibar in 1947-1948, reported,inter
alia, that, in formulating scales of salary, govemments cannot ignore
the law of supply and demand, that they cannot, because of some
ideology, disrupt the economies of their countriesby paying salaries
which are out of all proportion to those paid for similar work in out
side employment, that regard should be had to relevant local circum
stances, such as, e.g., the ruling income levels amongst those classes
from which public servants are recruited,nd that at least some of the
differences in salaries paid to Europeans and Asians, on the one band,
and to Africans, on the other hand, rested not on racial but on other
1
and more fundamental grounds •
Sorne idea of the differential scales recommended by the Commission
may be gained from the following table of grades and salary scales
proposed by the Commission for the suggested general and cle2ical
divisions of thciviservice in Kenya, Tanganyika and Uganda :
SalaYy Scale

Grade European Asian African
f, f.. l
IV 48 X 3-00•X 3·72

III 75 X 3•90• X 3.108

11 295 X 2'2•5-565 180 X 10-240* X 100 6-17236X
15-315•X 15-375
580 X 20-720 390 X 15·450 154 X 6-178 X
9-223•X 9-268

~ ~ 740 X 20-800 450 X 20-550 276 X 12-348
*Effeciency Bar

l Vsde Report of the Commission on The Civil Services of Kenya, Tanganyika,
llganda and Zanribar r947-1948, Colonia'2.2paras. ,77-S7, z4-26.
z Ibid., parIOOpp. 29-30. SOUTH WEST AFRICA

7+ A policy of promoting balanced growth for the respective popu
lation groups of South West Africa-the only policy which can, m the
light of Respondent's experience, really produce lasting results--must,
in the particular circumstances of the Territory and of its people, in
evitably bring about differences in the amounts spent on the education
of the various groups and in the facilities provided for them. This is the
natural and inevitable result of the many differences between these

groups, differences in stages of development, in social, economic and
educational needs, and in their desire for education for their children.
General progress and advancement of the various groups will gradu
ally and progre:;sively bring about increased and better educational
facilities for the non-White groups. with resultant increases of educa tional
expenditure on such groups, thereby reducing the margin of difference
presently existing.

C. Compulsory Education

I. CoMPULSORY EDUCATION IN SouTH WEST AFRICA

75. Education in South West Africa is free for all children who
attend school-European, Coloured and Native-and is also compul

sory for all European children in the Territory.
Although it is Respondent's desire and aim to make education com
pulsory for all clùldren in the Territory, it has as yet not been advisable
or practicable to do so in respect of the children of the Coloured and
Native groups.
In Respondent's experience it is only when a group or community
has reached a stage where it feels the need for education, when it realizes

that its youth needs to be educated to equip it for the role which it has
to play in the life of the group, and when it is prepared to make education
part of its Iife, that compulsory education can usefu!Iy be introduced for
such a group. Premature measures of compulsion can only cause hardship
and resentment, and thus retard progress.
76. At the inception of the Mandate the three sections of the White

group-Afrikaans, English and German-were at a stage of educational
development which rendered them eager and active in the promotion of
education for their children. Even during the German regime there
existed a form of compulsion for the education of European children 1•
And for the White South Africans who came to the Territory during and
after the First World War, the system of compulsory education was
nothing new.
2
In the South West Africa Education Proclamation of I921 (and
also in the Proclamation of 1926 3, which superseded it}, provision was
made for compulsory education for ail European children between
the ages of 7 and 16, save that exemption could be granted to children
who had passed Standard VI before their sixteenth birthday and who
were engaged in regular employment. It was, however, realized at the

1 Vide Chap. II. para. 10,supra.
2 Proc. No. 55 of 1921 (S.W.A.), sec. 6g(a), in TM Laws of South West Africa
:t9I5·I922,p.655.
' P.-oc.No. 16 of 1926 (S.W.A.), sec. 87, iLaws of South West Africa, Vol. II
(1923-1927),p. 286. COUNTER-MEMORIAL OF SOUTH AFRICA 391

time that it would be difficult to apply the law strictly, and provision
was accordingly also made for exemptions in cases where parents could
not afford to send their children to distant schools, or .to pay for their
boarding. Subsequent events proved that for sorne years to corne it would
not be possible to acbieve in full the purpose of the law. During the
difficult years after the First World War, many parents could not afford

to send their children to !\(:hool,and in 1923, for example, between 1,600
and 1,700 European children of school-going age were not at school.
With the development of the Territory this number gradually decreased,
but during the severe economic depression of the 1930s the number
again increased. In 1932, there were 682 European children of school
going age not at school, and it was only in the late 1930s, after conditions
in the Territory had greatly improved, that it became possible to achieve

the ultimate purpose of the compulsory education law, namely to have
ail European chifdren of school-going age at school 1.
77. The aforementioned statutory provisions remained in force until
1955, when the minimum scholastic attainment for exemption from
compulsory attendance was raised from Standard VI to Standard VIII 2•

Development over the years had made this change not only possible,
but also necessary in the interests of the country as a whole. For a long
tîme a Standard VI certificate had given Europeans access to various
fairly remunerative fieldsof employment, but this situation gradually
changed, especially after the Second World War, an!l in tizne there
remained hardi y any worthwhile employment open to those who possessed
no more than a Standard VI certificate. The raising in 1955 of the scho

lastic attainment for exemption from compulsory school attendance was
to enable young men and women better to hold theîr. own in a modem
post-war society which provided increased opportunities of employment
for Europeans with higher educational qualifications. The White group
welcomed the new provision. 1t bas caused no real hardship and criminal
proceedings to enforce it occur only by way of rare exception.

78. In the case of the Coloured group, more than 80 per cent. of all
children of school-going age at present attend school, and the numbers
are increasing every year. There is, however, still a large measure of
early school-leaving. According to the report of the 1958 Commission
of Inquiry into Non-European Education, this is due, inter alia, to lack

of interest and ambition on the part of pupils and poor parental control
and lack of encouragement 3. .
The Commission was requested by the South West African Coloured
Teachers Association to recommend the introduction of compulsory
education for Coloured children, save for those who attend mission
schools 4•The Commission suggested that the initiative in the matter
be left to Coloured school boards, the establishment of which it recom-
mended 5• ·

1 Lemmer, op. cil., p. 159.
1 Proc. No. 16 of 1926 (S.W.A.), sec. 87 (t) (c) as substituteby Ord. No. 23 ot
1955 (S.W.A.); vid6 Laws of South West Africa, Vol. II (1923-1927), p. 286.
' Vid, Repo,-tof the Commission of InquiYy into Non-Eu,-op,an Education in South
W,st A/rica (1958), Part II, para. K125, p.42.
• Ibid., para. Kn5 (i), p. 38.
5 Ibid., para. K236, p. 81.392 SOUTH WEST AFRICA

The new Education Or<linance of 1g62 1 gives the Administrator

the power to introduce, on the recommendation of the Department,
compulsory edui:ation at any state school for Coloured children i ..
Having regard to their present rate of advancement and with the
growing dema.nds of economic life in the Territory, it seems reasonable
to expect that the Coloured people will before long show themselves
sufficiently convinced of the value of education to allow of the success
ful introduction of compulsory education for àll Coloured children.

79. For the Native groups of South West Africa there is no system
of compulsory education, and at no time in the past has it been possible
to introduce such a system.
The position as it exists at present must be viewed against the back
ground of the level of civilization and developinent of the indigenous

groupsatthetime when Respondent became responsible for the adminis
tration of South West Africa. and in the light of the historical develop
ment of education amongst the various Native groups 3•
For reasons which have largely been indicated, the extension of educa
tion to the varions indigenous groups was a slow and difficult process.
There were numerous obstacles in the path of progress, some of wh.ich
have even now not been entirely overcome. The varions difficulties

encountered by the missions, and in tÎine also by the Administration,
as it began to establish government schools for Native children, are
dealt with in Chapter V below 4•
80. When the 1958 Commission of Inquiry into Non-European
Education in South West Africa conducted its hearings, none of the
Native groups requested it to recommend the introduction of com

pulsory education. The Commission considered that Native parent
communities had reached a stage of development where they could,
with assistance from the Education Department, be entrusted with the
local control of their own schools, and that the initiative in the matter
of compulsory education should be left to Native school boards, the
establishment of which it recommended. The Commission's recommen
dations in regard to compulsory education read as follows:

" (a) that the Education Department should not take the initiative in
introducing compulsory attendance at Native schools;
(b) that it nhould be left to every school board to decide whether it
wants to introduce compulsory attendance at the schools
within its province with due regard to the facilities available;

(c) that the co-operation of school boards should be obtained to
ensure regular attendance by children once enrolled 5".
Br. With regard to the northern territories outside the Police Zone,
no one has ever seriously suggested that education could at any time
in the past have been made compulsory. In reply to an enquiry by the
Admimstration in 1961 as to whether compulsory education could

possibly be introduced in the northern territories, the Finnish Mission

1 O,-d.No. 27 of 1962 (S.W.A.);vide Chap. Ill,para. 5, supra.
z Ord. No. 27 of 1962 (S.W.A.), sec. 97 (2), inOfficial Gazette E,draot'dinat'y of
South West Africa, No. 24c3 (4 July 1962),p. 911.
3 Vide para. 6,s.ip,a.
4 Vide Chap. V, paras. 2-30,infra.
5 Rep01't of the Commission of Inquiry into Non-Europea» Education in South
West Aj,-i,{1958), Part I, para. Bl36, pp. 132-133. COUNTER-MEMORIAL OF SOUTH AFRICA 393

repliai: "Not yet in the Okavango. Before the community reaches a
certain stage of development it is not possible or advisable." Regarding
the position in Ovaroboland, the Finnish Mission said:
"Compulsory education is not yet practicable because the support
ofa majority of the po,Pulationisnecessary forsuch a step.As forthe
future, and with a v1ewto its possible eventual introduction, an
experiment could perhaps be made in respect of certain schoolboard
districts to test the practicability thereofl." (Translated from
Afrikaans.)
In the Police Zone, too, circumstances have in the past never been
such that any system of compulsory education could successfully have
been introduced. There is, to this day, a large body of parents who do
not send their child.rento school, even when schoolsare available nearby,
for no other reason than that they do not want to do so and see no good
in schools. Likewise there are many who allow their children to go to
school, but take them out again as often as they need their services at
home, or as soon as they consider thern old enough to go out to work.
It may be suggested that this is the very reason whyeducation should be
made compulsory, but experience bas taught the Administration that
the Native groups in the Territory are generally of a conservative nature,
and that they resent being forced into anything they do not know. In the
light of its experience, the Administration has no doubt that any system
of compulsory education, unless it can be introduced with the consent of
the Native group concerned and with full appreciation on its part of
what it will entail, willinevitably lead to dissatisfaction and probably
also destroy much of the goodwork that has been done in the past.
82. Re9uests for com:pulsoryeducation have occasionally in the past
been rece1ved.from Native parents. But alro.ost invariably it appeared
that the parents concerned failed to appreciate that compulsory educa
tion would place on themselves the burden of seeing to it that their
children attended school regularly. and that their failure in that regard
would make them subject to penalties at law. As an illustration may
be cited a request for compulsory education which was putto the Chief
Inspector of Schools and the Chief Bantu Affairs Commissioner at a
Herero tribal meeting in the Waterberg Reserve during October 1960.
The Natives present were taken aback at the idea that compulsory
education entailed the punishment of parents who failed to send their
children to school without lawful excuse. The Chief Inspector then
suggested that the Reserve Board indicate centres in the Waterberg
East area where a number of small schools could be built which would
be within easy reach of ailchild.ren in the a.rea.and that by way of
experiment a system then be introduced whereunder parents who failed
to send their children to school regularly would be fined by the Board.
The Reserve Board was asked to consider the suggestions made and to
inform the authorities oftheir decision. No reply has as yet been reŒived.
The Administration is prepared to introduce compulsory education
wherever and whenevei practicable, but until such tirne as it is satisfied
that parent commwlities in any particular area desire the introduction
of such a scherne and fully appreciate what it entails, its introduction can
only create hardship and cause resentrnent.

1 Departmental information.394 SOUTH WEST AFRICA

0
83. Quite apart from all that has been said above, there has at all
times been, and there still is, an insunnountable obstacle to universal com
pulsory education. This is the scarcity of teachers, which has at ailtimes
hampered the extension of Native education 1• The position in 1960 in
the Territory, excluding the Eastern Caprivi Zipfel, may be taken as an

example. In that year, on the asswnption that children of school age
constitute 23 percent. of the total population 2, there would have been
94,929 Native children of school age. In the same year there were 1,074
full and part-time teachers, and 37,801 children actually at school. If it
is assumed that 1,074 teachers could cope with 37,801 pupüs 3, itfollows
that 2,698 teachers would have been required to teach the whole school

going population of 94,929 pupils: i.e., an additional 1,624 teachers would
have had to be found. The supply of teachers at present available is
barely able to cope with the pupils enroJled, and this in itself renders
unrealistic any S'Jggestion that there should, or can, be universal com
pulsory education. There cannot be any virtue in having a provision for
compulsory education on the statute book when it cannot possibly be

implernented.
S+ The Administration is nevertheless anxious to introduce some
form of compulsory education for Native children on a regional basis at
the earliest possible moment. It is hoped that it will be possible to do so

in selected areas as the position in regard to teachers might permit,
and as the Nati\"e school committees and school boards become firmly
established in their areas of jurisdiction, when their members can, by
virtue of their leading positions and the active role which they play in
the promotion of education, create such a favourable attitude towards

schools and education in general as will ensure the successful introduction
of compulsory schooling in their areas.
The new Education Ordinance of 1962 • contains no provisions in
regard to compulsory education for Native children. The attitude of
the authorities is that it will be time enough, and an easy matter, to
amplify the law when the Native groups show themselves ready for

the introduction of a system of compulsory education.
85. Despite ail the difficulties encountered, steady progress has been
made in the field of Native education. During the last ten years especially
progress has been substantial, and in 1961 approximately 44 percent.

of the school-age Native children in the Territory were enrolled at
school 5. Serious diffi.culties still remain, but the foundations for sound
and more rapid development in future have now been firmly laid, as has
been indicated above. Of particular importance in this regard are: the
development project of the major Native languages as teaching languages,
so that more pupils will be taught in their home language by teachers of
6
their own group ;the introduction of syllabuses adapted to the needs
and backgrounds of the various groups 7; and the opportunity for Native
parents to serve on the school committees and boards which control

1 Vide Chap. V. paras. 2Z·JO, infra.
2 Ibid .para. 57.
3 An assumption which involves an average of about 35 pupils per teacher.
• o~d. No. 2 7 of 1962 (S.W.A.); vide Chap. III, para. 5,supt-a.
5 Vide Chap. V, para. 58, infra.
6 Vide para. r9, ,;upra.
7 Ibid.,paras. 29-30. COUNTER-MEMORIAL OF SOUTH AFRICA 395

community schools, and thereby to be trained to take an active part in the
education of their children 1• Respondent firmly believes that the Native
groups will henceforth progress rapidly towards the stage where they
themselves will feel the need to introduce a system of compulsory
education in their own schools.

Il. COMPULSORY EDUCATION IN ÜTHER STATES IN AFRICA

(a}South Africa

86. In South Africa it took two and a half centuries of educational

development before school attendance was, after the turn of the nine
teenth century, made compulsory for European children. Previously
the widely scattered White settlements, and an insufficiently strong
public opmion in favour thereof, had made attempts to promote the
principle of compulsory education abortive. Today the principle applies
to its fullest extent to the White group in South Africa, and prosecutions
of l?arents for failing to send their children to school are almost unknown.
This can, in Respondent's view, be ascribed largely to the fact that the
system was not introduced rmtil social and economic conditions, as well
as a sufficient measure of favourable public opinion, made it practicable
to doso.

87. The conditions whlch made it practicable to introduce com
pulsory education for the White group in South Africa do not yet ex.ist
to a sufficient extent in the case of the Coloured people to justify the
introduction of universal compulsory education for them.
Many Coloured parents are not yet converted to the idea of compulsory
education. And for some there are also financial difficulties involved.
However, schooling has been made compulsory for Coloured children
in certain areas where there is a demand for it and where circumstances
permit. A steady increase in the number of Coloured pupils, especially
over the last ten years, indicates that the system can gradually be ex
tended also to other areas until it can eventually wîth advantage be

made of application to all Coloured children in South Africa.
88. For the Bantu groups in South Africa there is as yet no provision
for compulsory education. The same basic factors which govern and
retard Native education in South West Africa have been evident in their
case. Although greater progress has been made by them in overcoming
the difficulties involved, their stage of development, social and economic,
still renders compulsory school attendance premature as a general
measure, and consequently no provision was made therefor in the Bantu
Education Act of 1953.

As regards progress made towards the achievement of the ideal, it
may briefly be noted that the number of Bantu pupils in state and
state-aided schools in South Africa increased from 56,845 in 1917 to
747,026 in 1950, and to 1,500,000 in 196!. In addition, there are at
present approxima tely 90.000 pupils in unaided church schools. The Bantu
literacy rate in South Africa, which was 21.8 per cent. in 1952 rose to
approximately 33 percent. by 1960, when more than 3,500,000 Bantu
in the Republic were able to read and write. The present South

1 Vid~ paras. 41 and 43.396 SOUTH WEST AFRICA

African Bantu literacy rate is the highest in Africa 1• It is expected

that the rate will rise to 90 per cent. within the next Jeneration and
that at the close of the century fractically all the Bantu m South Africa
will be able to read and write . 1n 1960, as was pointed out above 3,
about 60 percent. of all Bantu children between the ages of 7 and 16
attended school.
In at least certain areas in South Africa the goal of compulsory edu
cation for the Bantu bas almost been attained. So, for example, in
dealing with the Transkei, the most advanced Bantu horneland in South
Africa, where the territorial authority is about to assume responsibility
for control of educational policy and services, Mr. F. J. de Villiers, a
former Secretary for Bantu Education in South Africa, after quoting
statistics of enrolment, said:
"If the Transkeian Territorial Authority, therefore, should assume
control of prirnary school education in the near future, as it well
might under govemment policy, itwill be in a faitposition to enforce

compulsory attendance for the age-group f 14years, at least in those
school board areas that are asking for it ."

(b) OtherA/rican States
(i) Generally

89. In general, the factors which have hitherto impeded the imple
mentation of a policy of compulsory education for the children of the
Native groups in South West Africa and for the ch.ildren of the Bantu
groups in South Africa are basically similar to those experienced by
educational authorities in other parts of Africa.
As regards the immediate post-war period, Lord Hailey says, inJer
alia:
"Sorne te:rritoriesare now coming in sight of a system of universal
education. It has been made cornpulsory for Asian boys in Nairobi,
Mombasa, a.ndKisumu. In Nyasaland and Tanganyika enrolment is

optional, but the attendance of children once enrolled is compulsory.
Northem Rhodesia in 1943 introduced compulsory education in the
Broken Hill, Choma and Livingstone areas for children from 12 to
16 living within three miles of a school. It will, however, be realized
that the efficacyof any such regulation depends on the maintenance
of an efficient body of School Attendance officers, a dass that is not
readily secured in present conditions in Africa 5.''
After dealing with certain territories where educational fees are charged,
the author says:

"It has to be remembered that, except in the form of experiments
1State of South Af,ica: Economie, Financial and Statîstical Year-Book for the
Republic of South Africa, 1962, pp. 89-90;vuù also U.N. Doc. E/CN. 5/324/Rev. 1,
ST/SOA/33 (Apr. 1957), pp. 79-81.
z Vide Statf. of South A/,ica:op. cil., p90.
3 Vide para. 39,supra.
• de Villiers, J., Banlu Education: Where the MoneyConies from-and Where it
G~s (An Address on the Financing of Bantu Education delivered at the Annual
Council Meeting of the S.A. Institute of Race Relations at Cape Town on 18 Jan.
1961), p. 10.
5 Lord Hailey, An Af,ican Survey: Revised 1956 (1957), p. u6g. COUNTER·ME:MORlAL OF SOUTH AFRICA
397

in limited areas, compulsory education of Africans does not really
exist, and that as children assist their parents in the house and
'garden' they are not willingly spared for long periods ."
90. In discussing the difliculties encountered by various administra
tions in their efforts to attain the ideal of universal and compulsory

education, the compilers of Progressof the Non-Self-GoverningTerritories
under the Charter, Volume 4, Educational Conditions, make the following
observations:
"Apart from financial aspects, a broader range of economic factors
tended to impede progress towards universal primary schooling. The
child's place in the family economy is wellrecognized in agricultural
areas and many Territories reported the difficulty of ensuring regular

attendance during harvest seasons or (where boys herd cattle)
throughout the year. Moreover, schooling may mean more than
losing a useful hand in the home-it involves direct and indirect
costs to the parents-tuition fees in one case, clothing and general
maintenance in the other.
The attitude of parents to schooling was a factor of great import
ance. In some cases the demand for schools exceeded existing faci
lities, while in others parental resistanceto sending clûldren to scbool
was reported. Reasons for this are social as well as economic: an
appreciation of the advantages of schooling, especially where girls are
concerned, requires a certain level of educational attainment on the

parents' part. When family conditions are unsettled through mig_rant
labour, or where the entire family moves with a pattern of sh1fting
cultivation or nomadism, it is no easy matter to develop a stable
school system. In parts of Africa the population is scattered over a
wide area with few centres of even village importance. The problem
here is one of siting a school and of the distance over difficult terrain
which pupils must cover to corne to schooL Communications and
weather are obstacles to regular attendance in most Territories.
Under such circumstances, the need for parents to be fully convinced
of the usefulness of schooling becomes the greater. Wastage in the
school system and a high rate of absenteeism indicate, among other

things, a public dissatisfaction with the school system, or a lack of
interest which produces the same results. During the past decade
education authorities in the Territories increasingly tumed their at
tention to measures such as local participation in control, improve
ment of the curriculum and of teaching methods, and parent-teacher
groups, all designed to make the primary school a recognized part
of.the community z."
Most of the factors referreci to in the quotation above are only too

well known to Respond3nt from experience both in South Africa and
- in South West Africa , and in both countries these factors have served
to retard the educational advancement of the indigenous population
groups.
gr. Further indication of"the extent to which Respondent's experi
ences have been paralleled in other parts of the African continent, is

1 Lord Hailey, op.tit., pr229.
z U.N. Doc. ST/TRI/SER. A/15/Vol. 4,p. 38.
1 Vide Chap. V, paras.2-30, infra, SOUTH WEST AFRICA

afforded by the following extract from the publication quoted in the
previous paragra ph :

"From available statistics, it appears that in the rapidly growing
school systems, particularly those of African and Asian Territories,
there wasa characteristic distribution of pupils in the primary grades:
the great bulk were found in the two lowest grades, and thereafter
numbers dwindled fast. A previous study of this question by
UNESCO drew attention to thefroblem and provided a statistical
approach to the measurement o wastage in the school system. In
brief, wastage results from two factors: dropping out, where children
leave school before progressing far up the ladder, and failure, where
pupils are not promoted to the next grade but are kept back to
repeat the year's work one or more times. The effect of these two
practices isa school system where most of the pupils are found in the

lowest gradf'S...
From studies reported by territorial authorities, such as those of
British Honduras, Northern Rhodesia, Puerto Rico, and Zanzibar, it
is evident that wastage in the broad sense was connected with a num
ber of educational questions. In regard to premature school-leaving a
Zanzibar study showed that African boys dropped out of primary
school classes for a variety of reasons: movement of family (26 per
cent. of case:;); parents uninterested (24percent.); truancy (13 per
cent.); empfoyment (22 per cent.); and marnage, illness, decease,
over-age, distance from school (together 15 percent.). These figures
revealed that 'the attitude of parents to the school and their control
of their children are major factors in the occurrence of wastage'. In
turn, lack of interest by parents and children may stem from educa
tional as well as social or economic causes. When the school curricu
lum is unrela.ted to life, the quality of teaching is poor, or the pupil
fails repeatedly to be promoted, public neg1ect of the schoo1 is

inevitable. Many of the reform measures reported by Territories
were in fact des1gned to bring the school doser to the cornrnunity,
and thereby deal with the wastage problem at its roots ."
The publication notes that the principle of universal compulsory edu
cation "was generally recognized in Non-Self-Governing Territories",
and that-
" ... delay in putting the principle into practice depended more upon

the resources available (funds, teachers, buildings) than up2n the
unwillingness of the authorities to accept the principle ".
92. Primary education for girls, as in many parts of South West
Africa, presents special problems in the Non-Self-Governing Territories,
some of which are dealt with in the said publication as follows:
"While co-education was generally accepted, the fact remains that
in a conside:rable number of Temtories it was found difficult to
attract girls to school. The reasons were social, economic and educa
tional in tum. The status of women in society was one determining

factor. Where girls traditionally remained in the home, married
early and perfonned economically necessary tasks in the family, it
was not easy to persuade parents to send them to school. More

1U.N. Doc. ST/TRI/SER. A/15/Vol. 4, pp. 41-4:z.
2Ibid., p42.

\ COUNTER-MEMORIAL OF SOUTH AFRICA 399

especially, and W1diversifiedeconomy provides few opportunities for
girls with education to find employment, so that incentives to the
family are lacking. Since education, whether fees are charged or not,
represents a cost to parents, preference is usually given to main

taming the boys at schooL Among educational factors, the shortageof
women teachers appeared to have great importance. Where educa~
tion of girls lagged behind that of boys, it was relatively more
difficult to recruit women teachers, yet it was among women
teachers that the turnover was greatest, because of marriage; and
the absence of women on primary-school staffs in turn inhibited the
enrolment of girls. The process was thus a vicious circle 1."

(ii) ParticularTmitories
93. In a United Nations Special Study on Educational Conditions in
Non-Self-Governin~ Territories, published in New York during 1960 2,

there appeared a s1gnificant tabulation of officialstatements and remarks
in regard to compulsory education in African territories. The following
are statements and remarks conceming the situation in particular
territories3 :
I. Central A/rican Territories

Stalus of Compulsory Education Problems and Policy Trends

Belgian Congo

"The colonial authorities do not "The Government is doing
yet feel that the time has corne to everything possible to increase the
make school attendance in the number of primary schools so that
Belgian Congo compulsory. There allchildren may be accommodated.
must first be enough non-fee-pay Only later when the Government
ing schools to accommodate aU
has successfully transformed the
children of school age. (WSE '56.) native mentality in the more back
Education for Europeans is wards regions will it be possible to
neither free nor compulsory. consider the introduction of com
(NSGT '56.)" pulsory education. At present the
main obstacles are undoubtedly the
shortage of schools and teachers,
and, in different regions,he disper
sion of the population over very
large areas, the low birth rate, poly
gamy, and the attitude of the

natives, who are not always con
vinced of the benefits to be derived
from education, especially where
girls are concerned. (WSE '56.)"

French Equatorial Africa

"Education is cornpulsory in so "When there are suffi.dent
far as the accommodation and schools and teachers, the provisions

1 U.N. Doc. STJTRl(SER. A/15,Vol. 4, p. 49.
2 U.N. Doc. STfTRl(SER. A(16.
~ Ibid., pp. 41-43. SOUTH WEST AFRICA

nwnbers of teachers . available
regarding compulsory attendance
allow of it ... in force in France will be made
Children corne to school of their generally aP.plicable. The only
own accord and no recourse to factor impeding the extension of
compulsion is needed to get them primary schooling to the whole
there. (WSE '57.)" child J>Opulation is finance-lack
of funds for the building of ele
mentary primary schools and of
specialised establishments for
teacher training. {WSE '57.)"
N orthem Rhodesia
"Compulsory education for Afri "Compulsory education is in
cans is not practical in Northem sight for African children in towns.
Rhodesia owm~ to the shortage of (WSE '58.)"
staff and buildings and the heavy
cost involved. Compulsory attend
ance regulations were at one tixne
applied in the urban areas but, be
cause of shortage of accommoda
tion, are not being enforced at
present except in Livingstone. A
number of Native Authorities have
applied compulsory education for
the four yea:rs lower primary
course in their areas and the ma
jority of Native Authorities have
made orders for enforcing the regu
lar attendance of voluntarily en
rolled pupilsuntil they have com
pleted their course(N orthem Rho
tlesia:A/rican Education,T,iennial

Suroey, 1955-19.57.)"
Nyasaland

"In Nyasaland schoolattendance
isnot compulsory. (WSE '58.)
Sorne Native: Authorities have
introduced rules goveming compul
sor rttendanŒ of children volun
tarily enrolled at assisted schools.
(NSGT '55.)"

z. East A/rican Territories
British Somaliland

"Education is not compulsory at "Up to 1957 even the existing
any stage for any race within the elementary schools were quite
Protectorate'. (Somaliland: Educa inadequate and could not accept
tion Deparlmeni,T,iennial Survey, more than a proportion of the boys
1955-1957.)" seeking admission. (Somaliland:
Education Department, T,iennial
Suntey, r955-r957.)" COUNTER-MEMORIAL OF SOUTH AFRICA .401

French Somaliland

"Attendance at school is not "Education is still at the 'pene
compulsory in this Territory. tration' stage.In order to promote
(WSE '57.)'' its expansion, the Administration
and setting upururalsschools wher
ever the population islarge enough.
(WSE '57.)"

Kenya

"There is no compulsory educa "Efforts are being made to pro
tion for African children. (WSE vide enough schools to accommo
'58.) date all (African) children living in
Compulsory education applies urban areas. (WSE '58.)''
only to Asian boys between the
ages of 7 and 15 living in Nairobi,
Kisumu and Mombasa.
There is no compulsory educa
tion for Arab children ... There is
compulsory educatîon for Euro
pean children between 7 and IS
rears of age. (Kenya: Education
Deparlment, Triennial Survey,
1955-1957.)"

Uganda

"Education isneither free. nor "The ultimate aim ofthe Govern
compulsory for the children of any ment is to provide primary educa
race. (NSGT '55.)" tion for ail children; the more im
mediate policy is to ensure a mini
mum of four years schooling with
inwalking distance of the home of
every child, and to build up pro
gressively the four grade schools to
full six-grade primary schools.
{WSE '58.)"

Zanzibar and Pemba

"Education is not compulsor)'. "The objectives of the 1955-59
since itisimpossible for reasons of period, as regards primary educa
finance to provide enough schools tion, are as follows: to start schools
for all school age children. (WSE to accommoda teailboys of primary
'57.)" school age in urban areas and hall
in rural areas; to develop girls'
primary education; to extend as
many schools as possible to Stand
ard 8, .. (WSE '57.)" ----------

402 SOUTH WEST AFRICA

3. Southern Af,ican Territories

Basutoland

"Primary education isnot com "Provision ismade in the Educa
pulsory. (NSGT '55.)" tion Proclamation for the making
of rules to order the compulsory
attendance of African children at
any school, to fix the ages and
levels of attainment for such
compulsory attendance . . . How
ever,the large percentage of child
ren in schoo}and the absence of
any large centres of population
have not yet made it necessary to
enforce attendance in any area.
(WSE '57.)"
Becbuanaland

"There is as yet no question of "The main goals of the Depart
co~pulsory ed~c~tion [for African ment may be summed upas being
children].(WS1:!.57.) to bring primary education within
European education is nat com the reach of a much larger propor
pulsory but neady all children of tion of children of school age.
school age attend school. (Bechu (WSE '57.)"
analand: A nnual Report of the
Edi1eation Department, 1956,
Mafeking.)"
Swaziland

"Education is not compulsory "Apart from the financial prob
for African children ... Education lems involved in such a step [com
is compulsory for all Europeans pulsory education for African
from 7 years of age until the com children], there are serious social
pletion of the sixteenth year or the and geographical obstacles. The
prior completion of the eighth Swazi do not live in villages but
standard ... The small Eurafrican infamily kraals scattered through
community is servecl by Govern out the Territory. Children still
ment-aided mission schools ... play an important part in the
Education is not compulsory by economiclifeofthe kraal (the boys'
law [for EurafricansJ but prach duties as herdsmen often make for
cally the same result has been irregular attendance), and until
achieved on a voluntary basis. considerable social changes occur
(WSE '56.)" compulsory education except in a
few urban areas 1• (WSE '56.)"

1This sentence is incomplete. COUNTER-MEMOR[AL OF SOUTH AFR[CA

4. West A/rican Territories

French West Africa

"School attendance is cornpul "Efforts have been concentrated
sory until the full quota of pupils on the quantitative development
for the preparatory stage of pri of primary education. (NSGT
mary schools has been reached ... '55.)"
Parents and guardians of children
of primary school age who are cer
tified as truants are liable to im
prisonment not exceeding fivedays
and/or fine not exceeding 1,200
francs. (WSE '57)
Primary educat10n iscompulsory
to the extent that the available
accommodation pennits. (NSGT
'55.)"

Gambia

"Education is not compulsory, "Apathy has to be overcorne;
though great progress has been there is considerable wastage, the
made in providing increased faci migratory nature of the popula
lities for primary education espe tion causing children to leave
cially in the Protectorate. (WSE school before they have acquired
'57.)'' basic skills. (WSE '57.)"

Federation of Nigeria

"[The introduction of free pri
mary education in the Western
Reg1on] is regarded as the first
step towards achievingcompulsory
education . . . ln the Northern
Region there are no irnmediate
plans for introducing compulsory
education. (WSE '58.)"

Sierra Leone

"Education is not compulsory as
yet in eitherolony or Protectorate
becau!:e of the expenditure in
volved. (WSE '57.)"

~- In regard to some African territories not mentioned in the afore
srud publication, the following quotations illustrate that similar practi
cal difficulties in regard to the introduction of compulsory education
also have their parallels in these territories: SOUTH WEST AFRICA

I. Tanganyika

The following citation jsfrom an officialreport:
"675. There is no provision for compulsory education in respect of
the non-African population. As regards the African population pro
vision exists under the Townships Compulsory Education Rules,
I947, and compulsory attendance Orders made under the Native
Authority Ordinance, Cap. 72. The general introduction of compul

sorY.education will not be practicable until adequate educational
fac1litiesareavailable forallchildren ofschool age. At the present stage
of development compulsory attendance orders are confined to
certain townships where conditions are particularly favourable and
school accommodation is adequate. A considerable expansion of
prirnary schools for Africans within the Dar es Salaam municipality
istaking place,and it is expected that the position should be reached
in the fairly near future, provided that the necessary staff can be
trained, when consideration can be given to the introduction of
compulsory educatfon in this important area.

678. There is no restriction nnder local laws upon facilities for the
education of girls. Although in some parts of the territory there was
in the past considerable opposition on the part of the people and
native authorities to African girls' education, this attitude has in
general changed in recent years, and there is now wide-spread and
keen enthusiasm for such education ...
688. The regular:ityofattendanceat African primaryschools varies
considerably in different parts of the territory and may be largely
affected by local and seasonal conditions. The conditions experienced

in Sorne areas during the rainy season are not conducive to regular
attendance, particularly where children have some distance to go to
school, and seasonal agricultural activities are often an important
factor. Much depends not only on the general attitude of the local
community towards education but also on the individual energy and
enthusiasm of teachers and native authorities in maintaining attend
ances at a high average figure. The same considerations apply to the
question of 'educational wastage' but speaking generally this is be
coming progressively less of a problem. Provision exists for the en
forcement of the regular attendance of enrolled pupils in compulsory
attendance orders made under the Native Authority Ordinance. Non
attendance and wastage do not present problems in non-African
primary education 1."

2. Etkiopia

Ernest W. Luther, who did research work in EthioJ?fa from z950 to
1956, makes the following comments on the Ethiop1an primary and
secondary school situation at about the time when a new education
programme was beginning to take effect:

1 Tanganyika und~r United Kingdom Administration: Report by Her Majesty's
Government in the United Kingdom of Great Britain and Northem Ireland to the
General Assembly c,f the United Nations for the year r958, Colonial No. 342, pp.
168-169, 171-172. COUNTER-MEMORIAL OF SOUTH AFRICA

''Ethiopian education is still in its elementary stages. Before the
1 talian occupation not more than a dozen government schools existed
in the whole of Ethiopia. In addition there were some privately run
foreign mission schools, plus th.e centers of lay and religious instruc~
tion which the Ethiopian Church had maintained for centuries. A

few score students had been sent abroad to study at government
expense. Since the restoration a great deal has been done tobroaden the
educational base, but dearly this is o-nly a beginning and a far cry
/rom the Emperor's announced ideal o/ compulsory mass education
for his people. In 1956 there were approximately 70,000 Ethiopian
children attending government schools, with perhaps an equal num
ber receiving private and religious instruction, the whole comprising
only avery small fraction-certainly under 5 per cent .-of the school
~e pol?ulation. Most of the 500-odd existing schools are elementary
giving mstroction up to the eighth grade only. Only a few are secon

dary; in 1956 the total number of students at secondary schools was
Jess than 2,500. There is also one college, the University College in
Addis Ababa, offering a four-year preparatory course leading to
professional or university studies abroad 1." (Italics added.)
In 1960, according to United Nations Social Statistics, only 2 percent.
of the total Ethiopian population of school-going age (5to 19 years) were
enrolled in primary and second~ schools. Three per cent. of the age

group 5 to 14 years were enrolled m primary schools, while only 0.4 per
cent. of the population aged 5 to 19 years were enrolled in secondary
schools 2•

3. Liberia

The difficulty of translating principle into practice is probably no
where more graphically illustrated than in the case of Liberia. A law
prnviding for compulsory education was passed as far back as 1912,

but it has never been possibl_eto implement the provisions of the law.
In 1957, says Dr. G. H. T. Kimble:
''... the nurnber of children enrolled in primary schools was still less
than 15 per cent. of the estimated school-age population, and not
more than 10,000 of those enrolled were expected to go beyond the
third grade. In the same year the number o/ primary school teachers was
still less than per cent. of the number (approximately 25,000) needed
to make it possible to enforce Liberi'a's compulsory education law .. .3."

(Italics added.)
And areport ofan International Atomic Energy Agency MissiontoLiberia,
1961, contains the following:
"At the present time 90% of the population outside of the capital
is illiterate.Even in Monrovia (as of 1956) 8o% of the population

over five years of age was illiterate ... Itis estimated that more than
200,000 children, who are technically required by law to attend, do
not attend school 4."

1 Luther, E. W., Ethiopia Today (1961),p. 27.
2 U.N. Doc. ST/STAT/SER. K/2, p. 323.
l Kiroble, G. H. T., Tropical Africa(196o), Vol.II. Society and Polity, p126.
4 I.A.E.A. Doc. STI /DOC/36, p. 31; videalso Chap. V, para. 59 (a), infra. SOUTH WEST AFRICA

95. From the aforegoing it is clear that virtually all of the countries
in Africa which share Respondent's desire to introduce universal com
pulsory education experience the same difficulties as Respondent in
attempting to translate this ideal into practice. CHAPTER V

NATIVEEDUCATION

A. Introductory

I. In tlus Chapter a detailed account is given of Native education in
South West Africa-other than vocational and technical training,
higher education and adult education, which are dealt with in the next
Chapter.
Inasmuch as the charges made by the Applicants concern the educa
tion of Natives generally, it is not proposed to deal separately with the
education of each of the Native groups, which, in any event, would
entail an excessively lengthy record. Where, however, particular cir
cumstances or conditions are peculiar to certain groups, or affect them
alone, attention will be drawn thereto.
At the end of the Chapter a separate account is given of education in

the Eastern Caprivi Zipfel, which is at p1esent not administered through
the South West Africa Administration •

B. Retarding tircumstances and Factors in the Development of Native
Education in South West Africa

2. The development of Native education in the Territory and the
progress made since the inception of the Mandate, can be considered and
evaluated only against the background of particular circumstances
and factors which have hampered and retarded the educational advance
ment of the Native groups.

The more important of these circwnstances and factors, although
broadly indicated in the previous Chapter, will in the next succeeding
paragraphs be dealt with more specifically in the following order:
I. Attitude of mind towards schools and European influences.
II. Nomadic habits and scattered population.
III. Vastness of the Territory and the low density of population.
IV. Language difficulties.
V. Economie and financial difficulties.
VI. Shortage of teachers and difficulties encountered in teacher

training.

J. ATTITUDE OF MIND TOWARDS SCHOOLS AND EUROPEAN INFLUENCES

3. The extension of education to primitive societies with no tradition
of literacy is inevitabl_y a slow process. Although prior to the assumption
of the Mandate missmnaries had been active in some parts of South
West Africa for many years, that had resulted in little more than making
small sections of the Native population somewhat more amenable to
European influences than others. On the whole, the indigenous peoples

1 Vide para.82, infra. SOUTH WEST AFRICA

still had all the conservatism and aversion to change whichare character
istic of primitive societies.

Moreover, the Native population, in their way of lifeat the time, had
little need of edueation as known to and understood by Europeans. The
primitive pastoralist, who lived offhis cattle as his forbears had done, the
primitive peasant fanner, who knew that there would not be enough to
eat when there wa.sno rain, and the roving hunter who lived off the veld
and its game, could not easily be persuaded that what their chlldren
could be taught in a school could be of any use to them. Until their old

way of life changed, and new demands were made upon them, they could
not imagine what need there was of something wlùch they had not
required before. As they saw it, they had all the education needed for
Iifeas they lived it 1,
By 1920 only an insignificant number of Native parents had been
to school, and there were many thousands who had not even seen a

school. It was onJy natural that such communities would see no need for
schools, and that they would regard them as useless innovations. Thus
in Respondent's ,mnual report to the League of Nations for 1925 it was
stated, inter alia: "The Hereros as a race do not believe in education
for their children 2."
This attitude of mind is also illustrated by an experience of the year
r925. The Rhenish Mission offered to open a school in the Herero Reserve,

Otjituo, and a meeting of the Reserve Board was held to discuss the
question. The magistrate who presided at the meeting reported that not
a single member ,)f the Board had anything to say in favour of schools,
and that, on a vote being taken, the idea of having a school in the Reserve
was rejected unanimously 3•
Another example is recorded in the Minutes of the Permanent Man

dates Commission of the Fourteenth Session, during the year r928. Mlle
Dannevig, having commented on what she described as "a sad picture
of native conditions" in the Territory, said that she-
"... fully realised the difference between the whites, who desired
education for their children, and the natives, who did not, but she

thought it was essential that education should be given to the child
ren of the natives in order to prevent them from becoming as lazy,
improviden t and immoral as their fathers and mothers 4''.
The reply of the South African representative, Mr. Werth, is recorded
as follows:

"... Mlle. Dannevig had made an indictment that was certainly not
deserved by the Administration. She had herself laid her finger on the

1This kind of attitude is paralleled also in other parts of Africa. Soe.g.C. L.
Simpson, former Vice-President of Liberia and Liberian Ambassador in Washington
and London, says, inter alia, in The Symbol of Liberid (1961),p. II7:
"There is perhaps a grain of truth in the suggestion that the Liberian educa•
tional authoritieshave had to contend with difficulties unknown in European
countries. For it is a fact that the native African's approach to education, that
is to Western education, is different from that of a European ...To a Liberian
tribesman in bis own environment Western education does not necessarily
convey the ide:t of these social and economic advantages, unless be envisages
transplanting bimself into an entirely different society."
2 U.G. 26---1926,p. UI.
' U.G. 22-1927, para. 39, p. 33.
• P.M.C., Min., XIV, pp. 108-109. COUNTER-MEMORlAL OF SOUTH AFRICA

real diffi.culty, the fact that the natives did not want education. Mr.

Werth had personally visited Rehoboth with the object of ascertain
ing what schools should be constructed there, but the majority of the
Rehoboths had refused to send their children to the schools subsi
dised by the Goveroment. He was not going to cause a native war in
the attempt to thrust education upon people who did not want it 1."
And the Chairman, the Marquis Theodoli, is recorded to have said that
he-- .

"... knew that Dr. Kastl (a Member of the Commission] could
confinn Mr. Werth's statement from his own experience. He thou~ht
the Mandates Commission would therefore confine itself to ta.king
note of the accredited representative's statement, and to recom
mending that everything possible should be done to remedy the
present state of affairs 1_''

4. Not only was there the attitude that schools could serve no useful
purpose. Schools, and the resultant drawing away of children from
home and the duties nonnally perlormed by them, were regarded by
Native parents as factors wbich were disruptive of normal, traditional
life-as, in a sense, they were. In this regard the Director of Education
said in a Memorandurn submitted to the Permanent Mandates Com
mission in 1924:

"According to the native ideas the man is the head of the home and
should not have to work. His wife is expected to do most of the work
and she makes the children help her. When the children can be spared
they are sent to school, but it very frequently happens that a school
child has to stay at home to carry water, to mind the baby and to
tend the sheep or to work in the fields ."

As long as such ideas prevailed, it was to be expected that schools
would be looked upon with disfavour. In a report which was put before
the Permanent Mandates Commission in 1930, Dr. Vedder, historian
and ethnologist, who was at that time Praeses of the Rhenish Mission
Society and Principal of the teachers' training school at Okahandja,
dealt as follows with this attitude on the part of Native parents and w1th
the efforts of the missionaries to convince them of the value of education
for their children :

"As the possibility is afforded them [Natives in Reserves] to lead_
their lives in the Reserves in the same manner as their forbears 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
bas arisen for the Mission first of all to prepare the soil by their mis
sionaries and itinerant teachers and to impress on the parents
the signifi.canceof the school for their later lives ."

5. The task of "preparing the soil" and of trying to convince parents
of the value of education for their children was further complicated by
a measure of mistrust of European intentions on the part of some of the
Native groups. .

1 PMC., Min., XIV, p. 109.
~ Ibid., IVp. 177 (Annex 4).
' U.G. :21-1931, p.6o. SOUTH WEST AFRICA

Respondent's annual report to the League of Nations in 1930 stated
in this regard :
"The educationist who wishes to achieve success must first gain
the confidence of the natives. After the bitter wars of comparatively
speaking recent years between European and native in this country
this is not an easy matter. The natives, and in particular the Hereros,

are of a suspicious nature. The progress made thus far in this connec
tion may be regarded as sound and satisfactory. Any attempt to
force the paŒ.,however, would defeat its own purpose 1."
To win the confidence of people with such views and attitudes, and
to inculcate in them the correct attitude of mind towards theeducation

which the Europeans tried to bring to them, were matters which required
tact, patience and tune. In 1939 the Organizing lnspector of Native
Schools reported to the Administration that-
"Generally ... parents do not regard their responsibility as pro
ceeding beyond the duty of refraining to prevent their children
2
from attend.ing school ."
And the Administration itself stated:
"... parents were definitely unwilling to allow their children to

attend school for more than two or three years. To the Native the
adolescent child is a source of income, the attendance at school
extending over many years an unnecessary loss of support 3."
6. Although steady progress has been made over the years, there are
·still many parent:; who do not send their children to school for no other

reason than that they see no good in schools. To this day, also, many
parents still look upon their young sons as a source of income, and
keeping them at school for more than four or five years is regarded as an
unwarranted loss of support. Amongst certain groups, again, girls marry
when very young, and sending them to school for any length of time 1s
regarded as an unnecessary sacrifice and loss of services.
That such attitudes of mind still prevail, particularly amongst the

less developed groups, is illustrated by the position in the Okavango,
where missionary activity is of comparatively recent origin as con
trasted with that in Ovamboland, where the Finnish Mission started
work in 1870. In 1961 the Finnish Mission, in answer to a request whether
they were prepared to transfer their schools to the Administration in
·Ortler to be converted into government community schools, replied
that in their view suffi.dent progress had been made in Ovamboland

for such a step to be taken, but that it could not successfully be done in
the Okavango, where their activities had comrnenced only in I926. In
regard to the Okavango they said:
"The parents of children of school-going age in the Okavango are
for the greater part still heathens and they look upon the schools as

their enemy preventing the children from taking over all the work in
and around their homes. The Mission is the only body able ta keep
the schools going by influencing the parents to send their cbildren
to school regularly •."

1 U.G. 2I-I93I, p. 5I.
a U.G. 30-1940, para.550, p. 104.
3 Ibid., para. 547, p103.
" Departmental information; vide also Chap. IV, para. 81,supra, for the view of COUNTER-MEMORIAL OF SOUTH AFRICA

II. NOMADIC HABITS: SCATTERED POPULATION

7. Reference has already been made 1 to the scattered and clisrupted
state of most of the indigenous groups in the Police Zone at the tune
when Respondent assumed the administration of the Territory. Having
no settled homes, small groups of Natives continually moved from
place to place. Others, nomads by nature, were always on the move in
search of veld foods and game. The establishment and maintenance of

fixed schools for such groups were matters of great difficulty, and during
the first years progress was seriously hampered by this factor.
Speaking of the members of such nomadic groups, the Director of
Education, in a memorandum placed before the Permanent Mandates
Commission in 1924, stated, inter alia:
"He is improvident. If he has hunted down and chased ail the

game away from his surroundings, has dug up all the edible roots,
and burnt up ail the fuel, he moves to another place 2."
And, later in the memorandum:

"This nomadic instinct is so strong wîth him that even when he
lives under civilised conditions and the for~oing inducements no
longer apply, it is found that from time to tune he still insists on
making a change for no apparent reason. The 'wanderlust' becomes
so strong that he must move.
As a result of this characteristic, those who work for the advance
ment of the natives, find their influence frequently interrupted, and
the long intervals during which they are away from missionary

centres nullify the good work that has been done. In the schools a
large percentage of the children make little or no progress, and
because of their constant coming and going the classification of
pupils into standards becomes a very difficult matter 3."
8. The aforementioned difficulties were gradually overcome as the

scattered remnants of tribes were settled in Reserves of their own, and
as it became possible ta restore order and to reconstruct social life. To
this day, however, the problem is a very real one in the case of the
Bushmen.

III. V ASTNESS OF THE TERRITORY AND THE Low DENSITY OF POPULATION

9. The extension of education bas at ail times been hampered by

the vastness of the Territory and the low density of the population.
Serions enough in themselves, these are factors which create well-nigh
insuperable difficulties when teachers are in short supply, as has at ail
times been the position in South West Africa.
The difficulties experienced by the Administration will readily be
understood by all who"have had to cope with similar problems elsewhere
in Africa. A recent United Nations publication deals as follows with

education in sparsely populated regions in Tropical Africa:

the Mission regarding the feasibilitof introducing compulsory education in the
Okavango.
t Vilk Book III, Chap. III, paras. 84-89, of this.Counter-Memorial.
1 P.M.C., Min., IV, para. (c},p. 176.
3 Ibid.,paras.(e) and {IJ. SOUTH WEST AFRICA
412

"Education.is still impossible for most young Africans unless they
are ready to travel great distances or quit their homes altogether-a
solution which is accepted at a pinch for boys but rarely for girls.
The situation is particularly serious in sparsely populated r~ons.

In a large part of Ethiopia, in Somalia and in the huge senu-arid
plains which stretch from the Nile to the Atlantic between the Sahara
and the forest zone there are less than five inhabitants per square
kilometre. But it is not even necessary to take these regions, where
development will require especially strenuous efforts: they are not
the only under-populated areas. Three countries-Liberia, Guinea and
Sierra Leone-together caver an area of 432,323 square kilometres
i.e., more than Great Britain or Japan. Their total population is
roughly the same as London's and much less than Tokyo's. It has

been claimed that under-fopulation represents a permanent obstacle
to economic development; certainly it is disastrous in its e[Jecton the
developmenl of an e[Jectiveand complete network of schools. It may
be said that the percentage of African children attending school lS
always related to the density of population. Examples are provided
in Madagascar by the Tananarive region or, on the west coast, by
southern Ghana and the Southern provinces of Nigeria. In the latter
country, the western and eastern regions are the most densely popu
lated and are the richest in towns, roads and transport: more than

70 percent. of the children attend school. Their young Hausa com
patriots are less fortunate; their neighbours of the upper Volta, the
mger and the northem Çameroons stiU less: they are victims of a
geographical accident. The authorities, however inadequate the
funds available, are always ready to provide a school and the
necessary teachers if requested to do so by a town with a population
of ro,ooo but they admit their he1plessness when it is a question of
providing the same facilities for 50 villages of 200 inhabitants 1."
(Italics added.)

And with regard to teachers the report stated: "It is the teacher who
makes the schoC1l,not the building. The real problem is the problem of
teachers 2."
IO. Muchofwhatissaid in the above citation applies with even greater
force to South West Africa. As has been pointed out 3,the Territory bas,

next to Bechuaualand, the lowest population density in Africa south of
the Sahara.
The Territory is almost twice the size of the 432,323 sq. kms. of Liberia,
Guinea and Sierra Leone combined, and îts total population is nowhere
near "roughly the same as London's": it amounts to little more than
6 per cent. of the population of Greater London.
While large parts of Ethiopia, Somalia and the sentl-arid plains referred
to in the above quotation are said to have "less than five inhabitants per
square kilometre", it may be pointed out that in 1960 the density of

population in the Okavango was 0.0077 to the hectare (or 0.77 to the
sq. km.), and, in the Kaokoveld, o.oor8 to the hectare (or 0.18 to fue sq.
km.).

1 Asia, A rabStates, Africa: Education andPro["~$ {rg6z),pp. 51-52,
z Ibid., p. 52.
i Vide Book III, Chap. I, para. 4, of this Counter-Memorial. COUNTER-MEMORIAL OF SOUTH AFRICA 413

In parts of the northern territories of South West Africa people live
in innumerable small scattered kraals, while in the Police Zone one or
two Native families often find themselves on European farms which are

far from schools. And what was said above in regard to the situation
in the countries of Tropical Africa, is also true of Native education in
South West Africa, namely "the real problem is the problem of teachers".
II. As far as the education of European children in the Territory is
concemed, problems presented in thls regard can be solved-as they have
been solved-by a policy of centralization and the establishment of
1
school hostels in various towns • European parents can provide for their
children's travelling expenses and bear the major part of the boarding
expenses of their cbildren at such hostels, and there is a sufficient supply
-0f teachas to make such a policy ·practicable. In the case of Native
education such fadlities have thus far been found practicable only to a
very limited extent. Quite apart from a lack of means on the part of
Native parents, the problem in the case of Native education is inextri
cably bound up with the shortage of teachers. As long as teachers are in
short supply, schools can be provided only where there are suffident
concentrations of Natives to justify their establishment.
At present there are in the Police Zone 31 schools for Native children
with boarding facilities, and 27 in the area outside the Police Zone.
Whereas the establishment of more hostels would enable a larger number

of children to attend school than is the position today, the establishment
of hostels by itself cannot salve the problem to any appreciable extent,
for the main obstacle is the shortage of teachers. The supply of teachers
presentiy available is barely sufficient to cope with the needs of the
children now at school, and even then many of these teachers have ta
teach children in a number of standards combined-a situation which is
not satisfactory, but which cannot at present be avoided. Moreover, a
fair proportion of the teachers employed in Native schools are part-time
teachers who are not properly qualified, but whose services must be
retained in an effort to educate as many Native children as possible.

12. A problem of particular difficulty in the Police Zone is the schooling
of Native children whose parents are employed on European farms. In
this Zone, especially in the arid regions in the south, farms are large, as
1.hey have to be in order to function as economic units. Fann home
steads are often miles apart. The children on any one particular farm are
'Seldom, ifever, enough to warrant the establishment of a separate school,
and, in view of the shortage of teachers, the employment of a teacher or
1.eachers at a place where there is not a substantial concentration of
Natives would not only be unreasonable, but impossible. The children
of two or more farms could not readily attend the same school. unless farm

-schools were built with hostel facilities, or transport toand from school
were provided every school day. In view of the exceedingly high costs
that would be involved, and the relatively small numbers of children that
would benefit, such projects canin view of the teacher shortage hanlly
rank equally with the daims of areas where there is a concentrated
Native population. Nevertheless, a real attempt is being made to cape
with_ the problem in a practical way, as will a:ppear from the next suc~
<:eedingparagraph.

1 Vid.tChap. VII, paras. z.5i.nfni. SOUTH WEST AFRICA

13. The 1958 Commission of lnquiry into Non-European Education
in South West Africa found that about 17 percent. of all Native children
on farms were at school. The Commission advised the establishment of
farm schools, and recommended:
"(i) that the minimum enrolment for a farm school be put at 15
pupils;

(ii) that a small-salaried teacher, even, if need be, unqualifi.ed, be
appointed to such a school;
(ili)that the owner of the farm should take the initiative in establish
ing a school and that he be expected to put up the building him
self and either to manage the school himself or to norninate an
other suitable person as manager;
{iv) that a farm school should be State-aided and the teacher be in
the service of the farmer; the Dcpartment, howevcr, paying the
teacher's salary and providing allowances for equipment, books,
etc.1''

The principle of fann schools as recommended by the Commission,
was approved by the Administration, and under section 102 of the
1962 Education Ordinance grants-in-aid will be available to enable
fanners to build and main tain schools for Native children 2•
Since the principle of having such schools was adopted, three farm
schools have been established at Dabib, Mitgard and Duwisib. All

three are one-teacher schools, with enrolments in 1961 of 19, 40 and 15
children respectively. In all three instances dass rooms have been
provided by the farmers concerned. The Education Department pays
the teachers' salaries, and provides the necessary furniture, equipment
and teachers' text-books, and also paY.s50 per cent. of the pnce of ail
books and stationery supplied to pupiis. The three- teachers are paid on
the same scale as teachers at other schools.
In supplemenfation of the above scheme, steps have now been taken
which will enable the missions to provide hostel faci!ities for farm
children either on farrns or in Native residential areas in towns in the

Police Zone. Th,~ Administrator-in-Executive-Committee has decided
to assist the missions with loans for the erection of hostel buildings,
the loans to be repayabJe free of jnterest, or else at a nominal rate of
interest, over a period of 30 years, and, furthermore, to subsidize such
hostels in accordance with the number of boarders. The same assistance
will be available in respect of mission hostels erected in Native Reserves
in the Police Zone.
The Rhenish Mission has informed the Administration of its desire
to erect hostels for fann children at 22 different places where it has

schools, and the Roman Catholic Church has also indicated its prepared
ness to assist in the scheme.
IV. LANGUAGE DrFFICULTIES

I4- The diversity of Native languages spoken in the Territory 3,
coupled with a lack of suitable teachers with an adequate knowledge of

1 Rep01'tof the Commission of Inquiry into Non-European Education in South
West A/rica (1958). Part J, para. Brzo {8(b),p. rn9.
2 Ord. No. z7 of 1962 (S.W.A.), sec.102, in Official Ga.tette Extraordinary o/
South West Africa, No. 2413 (4 July 1962),p. 912; vide Chap. III, para. 5, supra.
s Vide Chap. IV, paras. 8 and 9, supra. COUNTER-MEMORIAL OF SOUTH AFRICA

those languages, has been a serious retarding factor in the education of
Native children.

In 1924 the Director of Education referred to the language difficulty
in the following tenns :
"Sorne schools are attended simultaneously by children who speak
three different languages, and in practically all the schools there are
children speaking two different languages. In each school one of the
two official languages of the Union of South Africa must be taught,
so that to the list of four languages must be added English and

Dutch. This makes a total of six languages for which we have to
provide 1.
In larger centres where there are two or three schools itwould sim
plify matters if the pupils could be divided into the different schools
according to their home languages. The attachment of the native to
his own particular church is, however, so strong that this scheme for
the present is not feasible on any appreciable scale ."

With regard to the language qualifications of teachers, he said:
"Our native teachers are very poorly qualified. The great war
interrupted ail facilities for training teachers, with the result that
at times teachers have to be appointed whose qualifications do not
extend beyond being able to read, write and speak one of the six
languages mentioned 3_"

To this day it has not been possible to achieve in full the goal of
separate schools for ail children who speak the same language. In some
parts of the Police Zone where members of different language groups
are found in the same area, the limited number of teachers with an
adequate knowledge of the various languages has .to date made a com
plete division on purely language lines impossible.

15. As already stated \ in practice all possible steps are taken to ~ve
young pupil.s their early instruction in their home language, and s1nce
1952 special efforts have been made to give separate instruction to
minority language groups in schools. There have at all times, however,
been serious practical difficulties, and the result has been that young
pupils have often had to receive their initial training in a language
foreign to them-whether another Native language or one of the official

languages.
In view of the fact that the Native peoples in the Territory had no
literary culture, the task of providing for Native languages as school
media and school subjects has been a formidable one. When South Africa
assumed the Mandate, there was nota single suitable reader in any of the
Native languages for use in the schools. There were no :philologists or
trained linguists who could make an expert study of the vanous languages
and prepare suitable reading material, and it was only by the painstaking

efforts of the missionaries over the years that some books could be com
posed for use in the schools.
The Native languages of the Territory are, furthermore, the languages
of nomads, peasants and pastoralists, and although their vocabularies

l The number of Native school languages has since grown; vide para.16, infra,
t P.M.C., Min., IV, pp. 176, 177 (Annex 4).
' Ibid., p. 177.
4 Vide Chap. IV. paras.21-22, supra. SOUTH WEST AFRICA

are rich enough to meet the day to day needs of people living in a sub
sistence environmcnt, they are ail poor vehicles of abstract thought.
Without modification and development they could not be used as
teaching languages. Over the years the missionaries, who, from the
nature of their work and their close contact with the Natives, possessed
a greater knowledge of the varions languages than other Europeans,
did much to bring about the necessary modification and development.

16. lt would have been an impossible task, however, to prepare school
books in each of the various languages or dialects spoken in the Territory,
or to convert each of them into a teaching language, and the policy
consequently was to concentrate on the development of those languages
which are spokcn by most of the Natives. Thus far Ndonga, Kuanyama,
Kuangali, Herero, Nama and Tswana have achieved the status of school
Ianguages, but, because of insufficient development as yet, mother
tongue instruction is generally not yet feasible beyond the Standard II
level in thcse languages. Since the establishment of the Bureau for
Native Languages 1,active steps are 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.
In the final result, however, it will be for the groups themselves to
contribute to the development of their languages to meet a1leducational
needs.

V. EcONOMIC AND FINANCIAL 0IFFICULTIES

17. Reference has already been made to the effects during the 1930s
in South West Africa of the then world-wide economic depression.
Coupled with a severe drought, which lasted till tht:_end of 1933, and

an epidemic of foot-and-mouth disease during 1934-1935, the depression
resulted, inter alia, in the drop of the total national income of South
West Africa from approximately R14 million (f7 million) in 1929 to
R4,200,ooo (f2,:coo,ooo) in 1933, and a decline of about 60 per cent. in
real domestic incarne 2.Naturally this had a detrimental effect on all
development in the Territory, including development in the educational
field.
18. ln spite of these disastrous events a1leducation remained free, as
it had been previously, and the Administration did everything in its

power to increase its expenditure on education.
At a meeting of the Permanent Mandates Commission in 1931, Mlle
Dannevig is reported to have said that sbe was sure-
"... that the Commission appreciated the greatinterest taken by the
Administration, and the progress made in the last three years in
native education, which was ail the more remarkable in view of the
great economic difficulties 3".

ln the financial year 1932-1933 Respondent was, however, obliged
to decrease by 30 per cent. the amount expended on European and
Native Education 4.

1 Chap. IV, paras. 19 and20.
z Vide Book V of thisCounter-Memorial.
, P.M.C., Min., XX, p. 57.
• U.G. 27-1934, para. 150, p. 24. COUNTER-MEMORIAL OF SOUTH AFRICA

In 1933 Mlle Dannevig expressed her appreciation of the efforts of
the Administration "to maintain the standard of education in spite of

financial difficulties",and she noted that while expenditure on education
had been eut clown, the eut had been less in the case of Native education
than in the case of European education 1•
The Permanent Mandates Commission noted increases in expenditure
on Europeari and Native education at its meetings in 1936 and 1937 2•

19. Like other sections of the community, the Native population,
particularly in the Police Zone, was hard pressed by the difficult condi
tions of the time, and many parents kept their children from school to
do chores at home, or else took them out of .school as soon as they

thought them old enough to work or to contribute to the famîly's
support in some other way.
The detrimental effect of these conditions on school attendance of
Native children in the Police Zone during the period 1930-1940 is illus
tra ted by the enrolmen t figures over the said years 3•

20. After the Second World War there was a substantial improvement
in the economic position of the Territory, and from then on sustained
progress in the educational field became possible.
21. The point which it is desired to emphasize is that there were

serious interruptions in the development of Native education at an early
and crucial stage of its development, and that the position would no
doubt have been more favourable than it is today if it had not been for
such interruptions.

VI. SHORTAGE OF TEACHERS AND DIFFICULTIES ENCOl.JNTERED IN
TEACHER TRAINING

(a) South West A/rica

22. As already stated, a shortage of teachers in South West Africa

has in the past retarded progress, and it does so until this day.
The training school for Native teachers at Okahandja (the Augus
tineum) and the training school at Doebra, referred to in Chapter Il
above 4, are still in existence. A third training school was established
by the Roman Catholic Church at Tses in 1927, but it survived for only
5
ten years •
In the northern territories beyond the Police Zone, the first training
school for Native teachers, established at Oniipa, in Ovamboland 6,was
transferred to Onguedira in 1955, and is still in existence. A second
training school in Ovamboland was established by the Anglican Mission
at Odibo in 1936. It remained in existence until 1960, when a shortage of

personnel forced it to close clown. Secondary classes for theological
students of the Mission were later introduced at this institution. In 1948
a training school for women students was established by the Finnish
Mission at Ongandjera, and it is still in existence. A further training

1 P.M.C., Min., XXIII. p. 93.
z Ibid.,XXIX, p. 135; XXXI, p. n8.
3
Vide table, para. 43,infra.
• Para. 5.
' Vide para. 24. infra.
6 Vide Chap. II, para. 5, suf,'l'a. SOUTH WEST AFRICA

school was established at Oshigambo in 1952, but it was converted into
a secondary school in r96o.
1
23. As stated in Chapter II above ,Native education in the Territory
virtually came to a standstill during the First World War, and ail the
training schools, save the one at Oniipa, were closed down. This was
stillthe position when South Africa assumed the Mandate.
In 1923 the Rhenish Mission, with the assistance of a grant-in-aid by
the Administration, reo_penedits training school at Okahandja, and in
1924 the Roman Catholic Church reopened its training school at Doebra.
These training schools had to draw their students from pupils who
had been to the mission primary schools, and the aim was to recroit
as many as possible of those who had passed Standard II and to train

them for three years thereafter.
For some years the teachers produced were, on the whole, of a very
poor quality, but in the circumstances this could not be otherwise.
Great diffi.culties were experienced in finding a sufficient number of
trainees who had passed Standard IL The annual report to the League
of Nations in 1930, after stating Respondent's policy of training selected
men in each race to work amongst their own people 2,continued as
follows:

"Previous reports have repeatedly made mention of the fact that
it is this ~hortage of suitable teachers which makes more rapid
progress impossible.
The conditions of training have been made as easy and as favour
able as possible. Instruction at the Training Schools is free and the
Department pays a grant for the maintenance of the students so
that their course of training costs them nothing. The suècessful
completion of the first four years of the primary school course is
ordinarily required before admission is granted to the Training
School, but to get more students the Department frequently has to
sanction the admission of students who have completed the third
3
year only. On occasions even the second year has been accepted ."
It was not practicable to recruit Native teachers in South Africa
where there wa5,,in any event, also a sbortage-for they had no know
ledge of the varions Native languages spoken in the Territory. The
same position obtained in regard to European teachers in the Territory
and in South Africa. The only solution to the problem was to try to
achieve a graduai improvement in the quality of Native teachers and in

the general standard of education. In all the cu-cumstances progress could
not but be slow and diffi.cult.
24. In 1933 a revised and improved primary school syllabus was
introduced, and the same year saw the establishment of the first school
with classes up to Standard VI. Due to the lack of trained teachers,
however, few schools had classes beyond Standard II. and the raising
of the minimum qualification for admission to the training schools could
not yet be contemplated. The Administration offered bursaries to de

serving students to further their studies in South Africa, but the numbers
of those who availed themselves of this opportunity were small. In 1938

1 Chap. Il, para.12.
2 Vi~ Chap. IV, para.17. supra.
l U.G. 2I-I9JI, pp. 51-52. COUNTER-MEMORIAL OF SOUTH AFRlCA

the training school at Tses was forccd to close down for lack of sufficient
suitable candidates, and generally there was such a disinclination on the
part of Native parents tokeep their children at school for more than three
or four years that the Director of Education, despairing of the situation,
su~gested to the Department of Education in 1939 that an allowance be

paid to those parents who were prcpared to allow thcir chiklren to be
trained at the training schools.
ln the years immediately preccding the Second World War the
Administration considered the fcasibility of taking ovcr the training
schools, an<;!of establishing schools with classes up ta Standard VI in
conjunction therewith, so as ta ensure a steady flow of pupils with a
Standard VI certificate to the training schools. However, financial
considerations, the impossibil.ity of obtaining the services of lecturing
staffs with an adequate knowledge of the various Native languages, and
the virtual certainty that it would have less success than the missionaries
in recroiting suitable candidates from amongst the Natives, caused the
Administration to postpone a decision in the matter. Refercnce to the

difficulties expcrienced at the time was made by Respondent in its
annual report to the League of Nations in 1939 in the following terms:
"Experience has shown that about 40 percent. of the candidates
admitted to the first year of a threc years training course, commen
dng ex-Standard II in mission training schools had to be eliminated
on both mental and moral grounds beforc the completion of that
course. From this it would appear that the enrolment of large classes
from Standard II upwards would be neccssary ta ensure ultimate suc
cess in the training of teachers. The actual position, however, was not

encouragin~. Only few primary schools proceeded beyond Standard
II, finding 1t very difficult to maintain a Standard III class, mainly
because parents were defi.nitely unwilling to allow their children
to attend school for more than two or three years. To the Native the
adolescent child is a source of incarne, but the attendance at school
extcnding over many years· an unnecessary loss of support. As a
result of that attitude of mind taken up by the Natives the recruiting
fieldwas narrowed down considerably and consequently the missions,
in spite of the great influence thcy cxcrcisc over the minds of the
Natives, did not succeed in enrolling the desired number of pupil
teachers for their own institutions. Undoubtedly the Govemment
would probably meet with even greatcr difficulties in its efforts to
sccure the required number of pupils in its preparatory school or

schools to ensure a steady flow of pupil-teachcrs to a Government
training school. In addition to providing free clothes and mainte
nance in hostels the Administration would probably have ta con
sider the matter of granting parents an allowance for permitting
their children to complete thcir training. It is hardly doubtful that
the initial stages would impose a hcavy burden on the State if
success were to be secured regardless of costs 1."
The outbreak of the Second World War delayed the taking of immedi
ate steps on any of the lines mentioned. In 1943, however, the Augusti

neum training school a tOkahand ja was taken over by the Administration.
Tt became a full government training school, and subsequent develop-

1 U.G. 30~1940, para.547, p.103. SOUTH WEST AFRICA

ments at this institution enabled it to make an important contribution
to the advancement of Native education in general.

the minimum n~quirement for admission to the training school at the
Augustineum. Of the 36 applicants for admission to the training course
in 1948, 26 had passed Standard III, three Standard IV, six Standard V,
and one Standard VI. Of the 37 applicants for admission in 1951, 16 had
passed Standard III, fiveStandard IV, seven Standard V, eight Standard
VI, and one Standard VII.

26. A further advance was made in 1952, when the successful com
pletion of Standard VI was made the minimum qualification for ad
mission to the training schools at the Augustineum and at Doebra.
cation in 1952 caused a rather sharp fall in the number of studentsalifi
able to enrol for a teacher training course. In 1954, for example, there
were 39 pupil-teachers in training as against III in 1951. It was felt,
however, that in all the circumstances the step was justffied, as itwould
lead to an improvement in the quality of teachers produced and, eventu
ally, to arise in the general standard of education. By 1g60 the number
of teacher trainees in the Police Zone had increased to 85, and in 1961
the number was 94 with 44 at the Augustineum and 50at Doebra.

27. In Ovamboland the minimum qualification for admission to the
boys' training school at Onguedira was raised to Form 1 {i.e., one year
after Standard VI) in 1961, and, in the sarne year, to Standard VI in the
case of the girls' training school at Ongandjera. Prior to this date the
minimum qualification had been Standard IV.
The number of pupil teachers in Ovamboland in 1960 was 83. In 1g61
the number was 60, the fall in numbers being due to the raising of
entrance qualifications as stated above.
28. Asfrornthe beginning of 1964Forrn I {i.e.,one year after Standard
VI) will be the minimum entrance qualification to bath the training
schools in the Police Zone.
It isthe aim of the Administration to raise the ~ntrance qualification
to the training school at the Augustineum to Form II (Standard VIII)
as soon as such a step should prove to be practicable. At present there
are not enough students with a Standard VIII certificate to justify such
a measure, and its introduction at too early a stage would inevitably lead
to too few teachers being made available to take up teaching posts. The
position is improving, however, and in 196I, for exarnple, four pupil
teachers with a Standard VIII certificate completed a two years' training
course.
29. Every effort has been made to encourage teacher trainees at the
Augustineurn, which is open to students of all the Native groups from
allparts of the country, and to give them as sound a training as pos
sible. They receive free tuition, free books, free board and lodging, free
transport to and frorn their homes, and also a small sum as pocket
money every week. The lecturing staff consists rnainly of Europeans. At
present there are II Europeans on the teaching staff and three Native
teachers, two ofwhom give instruction, inter aliain the Native languages.
All three Native teachers have Standard VIII certificates, and two of
thern have also had two years' professional training. The objective is COUNTER-MEMORIAL OF SOUTH AFRICA 421

to fi.Ilall the posts at the Augustineum with Native teachers as and when
suitably qualifi.ed persons become available.
Despite ail the advantages offered, however, particularly at the
Augustineum, the results are not what might be expected. The numbers
who enrol for teacher training remain disappointing, and of those that
do enrol a large percentage are lost on the way by reason of either moral
instabilityor inability to maintain the sustained effort required to com

plete the prescribed two-year course. The situation is one which requires
syrnpathetic handling.
30. At the beginning of 1957 a scheme was set afoot which, it was
hoped, would enable at least some of the teachers already in service
to improve their qualifications. A course of evening classes was instituted
at Windhoek, beîng initially a Standard VIII class with an enrolment of
14. Teachers who took the course were required to pay a tuition fee of
R2o (fro) each per year, and the Administration provîded European
lecturers. The scheme, however, proved a failure. Due to poor attendance
and Jack of interest the class had to be discontinued at the end of the

year.
A similar scheme was introduced in July r961, when 40 students
were enrolled in five different secondary courses. The tuition fee was
ftxed at RS (f4} per year. Once again the scheme was a fail'ure,and by
the end of the year the number of students had dwindled to nil 1•
There is little reason to believe that similar schemes will at present
meet with an:y greater success, and the main hope for irnprovement in
the qualifications of Native teachers seems to be a gradual raising of
the minimum requirements for admission to the various training schools.

{b) OtherA frieanTe'fritories

31. The many problems encountered by the Administration of South
West Africa in its efforts to produce teachers for Native children, and
to improve the q_uality of such teachers, have been experienced by

Respondent also m the administration of Native educaüon in South
Africa. And these basic problems also have their parallel in many States
in Africa where it has been the task of the authorities to bring modern
education to African communities which have no or little tradition of
such education. In many parts of the continent of Africa advancement
in this field bas been slow and difficult, and serions problems still remain,
even in those countries in which the history of the education of the
communities concerned is very much older than in South West Africa.
In most of these countries the initial burden of teaching children and
training teachers was carried almost wholly by missionaries. Much has
been done by the missions and the varions governments to awaken
under-developed indigenous communities to the benefits of modern
education, and to bring education to them. But a gr:eat deal still remains
to be done, and it seems that, as in South West Africa, prog.ess will be

hampered for years to corne by a shortage of teachers.
The paragra phs below give an indication ofconditions in a fewcountries
in Africa relative to teachersand their training.

' Vida Chap. VI, para. 45, infra.422 SOUTH WEST AFRICA

(i) Southern Rhodesia

32. With regard to teacher-training, the following statement appeared
in an official publication of August 1962: ·

"Until the opening of the first Government Teacher Training
School in Umtali, 1956, all teacher training had been carried on by
the various missionary institutions. To these institutions must be
given most of the credit for the very great advances which have been
made in the training of teachers 1."

As in South West Africa, the minimum qualifications required of
teachers could only be raised by degrees. The minimum qualification
for untrained tea.chers was raised to Standard IV in 1937 (six years'
schooling). to Standard V in 1945, and then to Standard VI in 1951 1•
In the Handbook fo the Federation o/ Rhodesia and Nyasaland, 1960,

the following statistics are given regarding the qualifications of teachers:
"ln 1950-1951, 58.5 per cent. of the country's teachers were
untrained, and the percentage of untrained teachers in aided

primary schools was 70.5 per cent. At the present time the per
centage of uncertificated teachers is 43.8 per cent., whilst the
percentage of untrained teachers in village schools bas been reduced
to47.6percent. 3"

(ii) Nyasa/.and

As in many other countries in Africa, the teacher training schools in
Nyasaland have to draw their material from a small field. According
to an estimate made by the Director of Education in 1957, about 57.7
per cent. of the total number of children of school age do not proceed
beyond Standard I (i.e., three years' schooling), and only about 3 per

cent. receive edui:ation up to Standard VI. Those who receive educatlon
up to Standard VIII amount to 0.25 per cent. of the school-age popula
tion, and those who receive education up to Standard X, 0.07 per cent. 4
Official figures for r96o show that there were 6,974 primary schoo1
teachers in assisted and unassisted mission schools in that year, and
that of that total 3,395 {about 48.7 per cent.) were classified as "Un
5
qualified teachers" •

{iii)Sierra Leone
The position in Sierra Leone in 1962 is stated as follows:

"There is ,.till an acute shortage of qualified teachers at all levels,
with the possible exception of the university Ievel. The primary
pupil-teacher ratio of 35 to 1 and secondary ratio of 20 to l appear
satisfactory, but only 1,181 of the 2,625 pr_imary school teachers

have teaching qualifications. The comparable figures in secondary
schools are 347 out of 436; but of these 347, 82 hold qualifications

1African Educati,m in Southern Rhodesia, Southern Rhodesia Information Sheet,

No2 z5 (19~z), para. 35, p7.
Vick The Progr.iss of A/ricans in Southern Rhodesia (1958). pp. 10-rx.
3 Brelsford,W. V. (ed.), Handbook to the Federalion of Rhodesia and Nyasaland
(196o), p.493- .
4 Report on an Eamomic Suroey of Nyaso.land z958-z959, C. Fed. 13z, p. 174.
' Nyasaland: Report of the year r96o (r96r), p. roo. COUNTER·MEMORIAL OF SOUTH AFRICA

suitable only for primary school teaching, and only 204 are gradua tes.
ln the training colleges, 32 of the 57 members of staff are graduates
and 2 have full technical or specialist qualifications other than
degrees 1."

(îv) Nigeria

The following is a statement in a publication of 1955 relative to the
general position of teachers in Nigeria:

"The need to increase the output of teachers is, of course, obvious
and urgent. The major problem is the securing of candidates and
providing adequate staff for the training colleges 2."

{v) Chad
The shortage of teachers in Chad has been described as follows:

"There is an acute shortage of teachers throughout the cowitry 3."
"Primary education suffers from a serions shorta~e of teachers.
There are 925 teachers for 84,993 pupils, i.e., 91 puplls per teacher.
This theoretical figure produces in reality classes of up to 300pupils
under one teacher 4."

(vi) Cameroon

The following quotations refer to the problem of the shortage of
teachers in the Cameroon:
''The need for teachers has increased at all levels 5Y

"As a result of the rapid increase in school.enrolments, both in
primary schools and in secondary and technical education, the need
for teachers has increased to such an exten t that all levels of education
suffer from a shortage of qualified staff. Overcrowded classes, the
Iack of school premises, the use of unqualified teachers are ail
brakes upon the development of education in the country 6."

(vii) Liberia

In regard to education in the early years of Liberia, Dr. G. H. T.
Kimble writes:
"For the first 80 years or so of its history [from 1847), the Liberian

Republic had the unenviable distinction of being the most illiterate
sovereign state in the world. Even some of the presidents had
difficulty with their reading and writin~. The only education to be
had was provided by the few undernounshed Christian missions ...
and the mitiation schools 7."

The Liberian Government took an increasing interest in educational
matters as from the beginning of this century, and in r~r2 a law pro
viding for compulsory elementary schooling was passed • This law, as

1 International Yea,.book of Education, Vol. XXIV (1962}, p. 320.
z Resou,.ces and Needs for Tf'aining FaciJities f01'A fricans in B,.itish A f,.i,a,
Ethiof,ia and Libef'ia(1955), p.210.
s International Yea,.bookof Education, Vol. XXIV (1962), p. LX,
4 Ibid., p81.
1 Ibid.,p. LIX.
6 Ibid.p. 65.
7 Kimble, op. i:it., 125. SOUTH WEST AFRICA

already stated 1, has remained a dead letter. The main problem has
been one of teachers.

An officialpublication of the year 1959refers to the position of teachers
as follows;
"Eighty five per cent. of our elementary school teachers are not
qualifi.ed to 1:eachin the schools...• We cannot fight in raising the

standards of our schools when we have teachers who are not qualified
and will not avail themselves of the opportwlity to leam 2."

(viii) Ethiapia
The position regarding teachers in Ethiopia was described by Ernest

W. Luther as follows:
"The quality of rnost of the teaching is inferior, often no more than
a case of the blind leading the blind. Fewer than one-fifth of the
teachers are foreign, and some of these are incompetent .... For one

reason or anûther, most Ethiopians who have had a little schooling
quickly conclude that they have learned enough 3.''
In 1954 the Ethiopian Ministry of Education pointed out that of the
2,013 Ethiopian teachers then in service, only four had studied at the

college or university level; ten had completed the secondary school;
and 31 had completed two years of secondary school. A total, therefore,
of 45, or less than 3 percent. of ail Ethiopian teachers, had completed
more than eight years at school •.
Writing in 196:!, G. A. Lipsky gave the following particulars in regard

to teachers:
"The teacher shortage and the inadequate training of teachers are
among the most pressing problems of Ethiopian education. In 1958,

a majority of the country's 3,627 native teachers, 346 of them
wornen, were qualified only to teach the primary grades one through
four. Middle school grades (five through ei~ht) are generally taught
by teachers from India. Secondary and htgher schools are staffed
almost exclusively by teachers from Europe and the United States,
5
atotal of 469 in 1958 .''

C. The Rote of the Missions in Education

1. M1ss10N ScHooLs IN SouTH WEST AFRICA, AND THEIR CONVERSION
INTO GüVERNMENT SCHOOLS

33. In South West Africa the question arose at an early stage whether
the Administration should assume complete control of ail Native educa
tion in the Territory, or whether the various missions should be allowed
to promote the work which they had pioneered -and be granted :financial

aid by the Administration to assist them in their efforts. In 1923, at

1 Vidt. Chap. IV, para. 94 (3), supra.
i Tlt.e Fourtlt. Annual Report of tlie Depanment of Public Instruction R.L. [Liberia}
e<n,e,-ithe period Sep. I, r958-0ct. JI, I959, pp. 53-54.
s Luther, op. cit.,pp. 27-28; vide also Chap. IV, para. 94 (2), supra.
4 Etliiopian Ministry of Educmion Yearbook, 1954, p. 78, as quoted by Shack,
W. A., "Organization and Problel'lll!of Education in Ethiopia", haJoumal of Negro
EàucaJion, Vol. XXVIII, No. 4 (1959),p.416.
, Lipsky, G. A., fühiopia: ils People, its Society, its Culture (1962), p. 96.

; COUNTER-MEMORIAL OF SOUTH AFRICA

the aforementioned conference between representatives of the Adminis
tration and the various mission societies, it was agreed that, having
regard to the state in which most of the Natives still fonnd themselves,
it would be in the best interests of Native education if the missions
were left free to establish schools wherever and whenever they could,

and be granted financial aid by the Administration to assist them in
their efforts.
In 1930 Respondent's annual report to the League of Nations con
tained the following statement by Dr. H. Vedder 1:
"The question may be asked whether it is necessary and wise to
tackle the education of native children from two sides-the Govero

ment and the Mission-in close co-operation. It is reasonable to
demand that the Governm.ent, the sole responsible authority for the
education of the upgrowing youth, should do the work alone....
Even in missionary circles this question has again and again been
discussed and debated, but these discussions invariably led to the
conclusion not to recommend nor to bring about any change for
the present, as this might perhaps lead to irreparable detriment to the
school system which is developing in such a gratifying manner at

present.. . . .
No matter where one looks to discover a way by which the aim of
education may be reached in another manner, one is again and again
brought back to that line which has been followed since a decade 2."
It was in regard to the question whether the Administration should
take over mission schools in the Native Reserves that Dr. Vedder

expressed the view already cited above that it was still necessary for
the missions to "prepare the soil" 1. He added:
"lt may be that in the course of a fewdecades, Government will be
able to take the fi.rst step towards taking over the Mission schools.
Nobody can conscientiously recommend it to take this step at this
juncture 2."

It appears from the Minutes of the eighteenth session of the Perma
nent Mandates Commission in 1930 that the Chairman remarked that
"the education of natives in the reserves ... inevitably took a long time,
and was at the moment in the bands of the Missions" 3•
34- The first government Native school was established at Rietquelle

in the Aminuis Herero Reserve in 1935. A number of government schools
were established thereafter, while a iew schools which the missions
concerned had difficulty in maintaining were taken over by the Adminis
tration.
Development and the passage of time eventuallr. called for a reassess
ment of tne policy of leavin$"the major responsibllity for Native educa
tion in the hands of the missions. In testifying before the 1958 Com
mission of Inquiry into Non-European Education in South West Africa,

the various religious bodies concerned were not agreed on the question
whether the time had arrived for the Administration to take over mission
schools. Headmen and tribal councils were, with few exceptions, in
favour of such a step, and so was the N11tiveTeachers' Association.

1 Vida pa:ra.4,supra.
2 U.G. 21-r931, pp. 61-62.
3 P.M.C., Min., XVIII, p. 138. SOUTH WEST AFRICA

The Commission expressed great admiration for the work which the
various missions had done in the past but nevertheless thought that the
existing system li.ad certain shortcomings which called for a chan~e.
These shortcomings, according to the Commission, were that missionanes
could as a result of pressure of other work not always exercise proper
supervision over all their schools, and that parent communities had no

share in the control, management and financing of schools. This latter
factor, the Commission thought, was not conducive to parents taking a
proper interest in the education of their children 1•
The Commission found a difference of opinion on the question whether
mission schools should be converted into government community schools,
of which the local control and management would be entrusted to Native

school committeei; and school boards. A summary of the evidence given
before the Commission in this regard has already been cited 2•
The Commission recommend~d. in brief, that the missions controlling
Native schools be asked to transfer their schools to the Administration,
and that-

(a) teacher training schools, secondary schools and vocational schools
requiring the employment of European staff be made government
schools under the direct control of the Education Department, and
(b) that all primary schools, as well as schools without European staff,

be made governmentcommunity schools under the local management
and control of Native school committees and school boards 3•
35. The Administration adopted the aforementioned recommenda
tions, and section r6 of Ordinance No. 19 of 1960 (S.W.A.} amended

Proclamation No. 16 of 1926 (S.W.A.) so as to give the Administrator the
power to take over mission schools as "Govemment Native Schools" 4.
Section 15 of the same Ordinance made provision for the institution of
managing bodies for govemment Native schools •.
When implementation of the new policy commenced in 1961, there
were already 15 government schools for Natives in the Territory. The

Administration took over the lower primary schools, 85 in number, of
the Finnish Mission in Ovamboland. School Committees of Native parents
were established for all these schools, and Ovamboland was divided into
six school board districts, each under the jurisdiction of a school board,
whose rnernbers are Native parents. The school boards, each assisted by
a full-time paid secretary, have been in operation since August 1g61,

under the guidance of the Inspector of Schools and the Organisers of.
Education in the northern territories. The school committees and school
boards are statutory bodies and perfonn duties prescribed by regulations
made by the Administrations.

1 Report of lke Commission of Inquiry into Non-European Education in SouJh
West Ajrica (19.58), Part I, paras. Bio6(a},Bio8 (b) and (c),pp. 79, 85-86.
2 Vide Chap. IV. para. 36, supra.
3 Report of the Commission of Inquiry into Non-European Education in South

West Africa (19.58),Part I, para. BI30 (i) and (ii)p. 123.
• Ord. No. 19 of 196o (S.W.A.), sec. 16, in Th~ Laws of South West Ajrica r960,
Vol. XXXIX, p. 681.
' Sec. 130 of Proc. No. i6 of 1926 (S.W.A.}, as amended (in Laws of South West
Africa, Vol. II (1923-1927), pp. 306-308) as snbstituted by sec. 17 of Ord. No. 19
of 1960 (S.W.A) {in The Laws of South West Africa r960, Vol. XXXIX, p. 683) and
sec. 156 {d) (ter)of P~oc. No. r6 of 1926 (S.W.A.) as inserted by sec. 20 of Ord. COUNTER-MEMORIAL OF SOUTH AFRICA

The Finnish Mission agreed to the taking over of their schools in
Ovamboland, but requested the Administration to postpone the taking
over of their schools in the Okavango territory, where the Mission
considered that a suffi.dent stage of development to warrant such a step ·
had not yet been reached 1•The Administration acceded to this request.
The Rhenish, Roman Catholic and African Methodist Episcopal
Missions have agreed to the taking over of their schools by the Adminis
tration. The Anglican Mission is not yet preparcd to do so, and has
chosen to continue on the old basis of being subsidized by the Admini

stration-which it will be allowed to do, the policy at present being
totake over the schools of those missions which are prepared to transfer
them to the Administration.
36. The implementation of the policy of taking over mission schools
and converting them into government community schools was carried
a step further in 1962, when some of the schools of the Rhenish Mission
in the Police Zone were transferred to the Administration and converted

into government community schools. Opposition to such transfer and
conversion was first encountered in the Reserves occupied by members
of the Herero group, and later some of the Damas and Namas in their
respective Reserves also adopted the same attitude. This has caused a
delay in the further implementation of the policy, and thus far only six
schools in the Police Zone have been converted into community schools.
Respondent is firmly under the impression that the attitude of the
~roups which raised objection was brought about by external political
mstigation: the impression is supported by the fact that not one of the
groups concerned has been able to advance reasons of any substance
for its attitude. However, Respondent is continuing its attempts at

securing the co-operation of these groups.
With regard to Native education generally, the stage has been reached
in South West Africa where the Government and the Native parent
communities play a more important part in education than ever before,
and where the Government has assumed the major portion of the burden
which was, in the early years, carried largely by the missions. Whilst
development will in future no doubt take place at a faster rate than
in the past, sight must not be lost of the fact that such accelerated
development will have been rendered possible only by the valuable
pioneering work done by the missions in the past.

Il. MISSION SCHOOLS IN ÛTHER AFRICAN TERRITORIES

37. In many other parts of Africa mission societies played a role
similar to the one they performed in South West Africa, and generally
the development of education followed much the same pattern as in
South West Africa.
The following paragraphs deal briefly with the educational activities
of mission societies in a few African territories.

No. 19 of 1960 (S.W.A.) (p. 683). The prescribed regulations are containG.N.n
No. 8 (S.W.A.),1 Feb. 1961, in TM Laws ofSouth West Africa r96I, Vol. XL,
pp. 1332-1377.
1 Vide para.6, sup,,a. SOUTH WEST AFRICA

(a) Southern Rhodesia

The history of the development of Native education in Southern
Rhodesia, especially during the early years, is to a large extent the

history of the expansion of Christian missionary work. From the very
beginning the va.rious missions regarded the establishment of schools
as an important adjunct to their religious work. The London Missionary
Society established the first mission station in the country in 1859,
and by the end of the nineteenth century there were ten missionary
societies at work in the Territory l.

The first government school-an industrial and agricultural school
-was established in 1920. An official statement relating to the position
in the year 1950 reads as follows:

"The missions are still providing the vast bulle of educational
services; in 1950 between 97 percent. and 98 per cent. of the pupils
were attending mission schools. The missions have played and will
continue to play a most important part in African education,
2
especially in the reserves ."
In 1961 there were 479,565 pupils enrolled in 2,7.58 govemment-aided
mission primary schools as against 45,858 pupils in 56 govemment
primary schools 3 ;3,563 pu pils fo 26 aided mission secondary schools
as against 1,606 in eight govemment secondary schools 4, and 612 pupils

in eight aided mission technical and vocational schools as against 793
pupils in six such government schools 5•

(b) Nyasaland

Christian missions played a major role in the education of African
children in Nyasaland. ln a govemment report relating to the period
1958-1959 the following isstated:

"Until 1949, the Missions provided and staffed practically all
African schools, assistance being given in approved cases in the forrn
of Govemrnent grants-in-aid. Since 1949 the Government has
established its own secondary schools and a number of primary
schools in the main urban centres. A start has also been made in

providing technical training facilities at artisan level, and in supple
menting the Missions'teacher training facilities by the establishment
of Government teacher training centres. A small number of local
authority primary schools has also been established in recent years,
but these do notas yet make any appreciable contribution to the total
educational facilities available to Africans. In spite of the educational

facilities provided by the Govemment, the majority of Africans are
educated in Missionschools 6."
In 1957 there were the following schools in Nyasaland: IO govemment

1 Vide The Prnrress of Africans in Southern Rhodesia (1958),p. 9.
2The African in Southern Rliodesia, No. r, Education, p. 2.
3 Ajrican Education in Southern Rhodesia, Southern Rhodesia Information Sheet
No. 25 (l962}, tableI,p. 4.
4 Ibid., table 4p.5.
3 Ibid., table 5p.6.
6 Report on an Economie Suroey of Nyasaland z958-z959, C. Fed. 132, para. 3,
p. 168. COUNTER-MEMORIAL OF SOUTH AFRICA

schools, 26 local authority schools, 747 government-aided mission
schools and 2,245 unaided mission schools 1•

It has been said of the missionaries in Liberia that they '',.. laid the
foundation for what is being accomplished in bringing the life of the
aborigines of Liberia into accord with civilization" 2• ...
,,
In l944, it is stated in an officialreport of the United States of America,
about three-quarters of ail school chlldren in Liberia were enrolled in
priva te and mission schools 3•
Dr. Kimble says that until the end of the Second World War "... 80
percent. of the educational work was being done by Christian missions"•.

In 1959, according to the annual report of the LiberianDepartment
of Public Instruction, there were, in addition to tribal and private
schools, 366 elementary and secondary govemment schools, and 170
elementary and secondary mission schools 5 •
The Liberian government is appreciative of the good work done by

the missions in the educational field, and encourages their efforts.
R. Earle Anderson writes in this regard:
"The Americo-Liberians themselves are a religious people, and the
Liberian Govemment gives to the missions the fullest co-operation.

ln return, it is required that each mission station operate a school,
thus making of the missions the backbone of the Liberian educational
system. There has resulted a sprinkling of small elementary schools
throughout the hinterland and counties, and the establishment of
schools for the Americo-Liberians, including some o{ high-school
status 6."

"It has been a Government requirement that ail mission stations
throughout the country have elementary schools as a condition to
their franchise 7.''
"Because of the close co-operation that exists among the various
religions, philanthropie, and governmental activities in the educa

tional field, a general pattern is beginning to be evident, the rudi
ments of an integrated educational system 8."

(d) Ethiopia

In Ethiopia, according to W. A. Shack-
"Mass education before 1935 was primarily of ecclesiastical
character with the centres of study in certain monasteries and
churches. In return for fees of food and grain, priests and monks

1 These particulars have been taken !rom Report on an Economie Survey of
Nyasaland I958·r959, C. Fed. J32, table 2,p. 171.
2
Anderson, R. E.• Liberia: America's Ajrican Fritnd (1952), p. 197.
' Foreign Labor Information : Labor in Liberia {May 196o), p. +·
• Kimble, op. cit.• p. 125.
s The Fl)Urlh A nnual Reporl o/ theDeparlment o} Public Instructiqn R.L. [Liberia)
covering the period Sep. r, I958-0c;t. Jr, r959, table Ill, Appendices VI and VII.
6 Anderson, op. cil.,p. 198.
1 Ibid.,,p.208.
• Ibid.,fi·210.430 SOUTH WEST AFRICA

taught children to recite the Psalter, sacred passages in Ge'ez,some
writing of Amharic and simple arithmetic. Others were often
engaged in tutorial work for the families of the rich 1."

The first govemment schools were established during the first decade
of this century 2, but for some time the main burden continued to be
carried by the church and by the missions.
Though the Ethiopian Government has never favoured the educational

activities of foreign missions in the traditionally Christian areas of the
c01mtry, it acknowledges the value of their educational services in other
areas. W. A. Shack points out that "Muslim and pagan areas are open
to proselytizing by missions which are willing to provide medical as well
as educational services 1.''

In r959-rg6o, according to an official report, there were 224,934
pupils m the s,:hools of the Empire (Ethiopia and Eritrea). Of this
total 180,163 were in government schools; 20,497 in mission schools;
14,790 in private schools; 5,095 in community schools; and 4,389 in
Church schoo1s .1. ·

(e) Ruanda-Urundi

In Ruanda-Urundi, while under Beigian controI, m1ss10n schools

qualified for govemmer,t aid when they complied with certain con
ditions. Apparently_ there were no govemment schools before 1954 4•
In 1959, accordmg to official statistics, there were 40 govemment
schools of ail types in Ruanda-Urundi', and 3,002 government-aided
6
mission schools !,.The enrolment in the govemment schools was 6,060 ,
and in the aided mission schools 243,102 7•
Mission schools, aided_by the govemment, played the major role in
education during the Belgian administration of Ruanda-Urundi. In
this regard Dr. Kimble states that the Belgians' African educational

policy was, inter alia, based on the belief "that all education is the better
for being in the :hands of men of faith" 8•

(f) FrenchCameroons

Education in the Cameroons owesa great deal to the Christian missions.
The following was said in a report published by the International

Labour Officein regard to the position in 1953:
"In the French Cameroons the missions have played and still con-

1 Shack, The journal of NegJ-o Education, Vol. XXVIII, No. 4 (1959), p. 405.
i Kimble, op.cil., p.127.
3 Ministry of Education and Fine Ans, Bureau of Educational Research and
Statistics, Government, Mission, Prfoate. Community and Chu,-ch-Schools r959-r960,
p. 6.
4 Vide Kimble, op. cit.pp. II5-116 and Rapport su" l'Administraticm Belge du
Ruanda-Urundi pendaKI l'Annie 1959 {1900), para. 151, pp. 253-254, and para. 153,
p. 257.
3 Vide l?ap.po,tSUI"l'Administration Belge du Ruanda-Urundi pendant /'Annie
1959 (196o), p. 472.
~ Jb,jd.,p. 474.
7 Ibid.,p. 475.
8
Kimble, op.cit.,p. 115. COUNTER-MEMORJAL OF SOUTH AFRICA 431

tinue to play, a major role in the development of educational
facilities; m 1953, in the field of primary education, the enrolment at
1
state schools was 42,770 and at mission schools 113,381 ."

(g) Ghana

ln Ghana, Christian missions laid the fowidations of education, and
they have at ail tunes played an important part in the educational work
of the country. As in other countries, the government encouraged the

missions in their educational work, and granted financial assistance
to the mission schools of which it approved for purposes of financial
assistance. F. M. Bourret says the following in regard to mission schools
in Ghana:
"They take a major part in the educational work of the country. In

1957, for example, of the 4,882 primary and middle schools thf;re
were 2,189 under the larger Protestant Mission bodies (Presbyterian,
Methodist, Anglican) and r,r62 under Catholic auspices [a total of
3,351 Mission schools]. On the secondary and teacher training level,
the same high proportion of missionary-directed schools obtains.

Actually, then, only a small percentage of the country's schools is
under full government control, but the education department grants
substantial suros to all approved schools, and thus bears a good pro
portion of the expense 2."

In 1959 there were 663,439 students in all educational institutions
in the country. Of this total, 618,905 (approximately 93.3 percent.) were
enrolled in "Approved Schools". In government institutions there were
in all 3,924 students (apl?roximately 0.59 per cent.). There were 4,274
students in teacher trainmg colleges, and of these 3,749 (approxîmately
87.7 percent.) were in "approved" institutions 3•

D. Types of Schools for Natives in South West Africa

38. Schools for Native education in the Territory are of the following
kinds;
I. Government schools.

II. Government teacher training schools.
III. Mission schools.
IV. Mission teacher training schools.
V. Private schools.
IV. Farm schools.

Proclamation No. 16 of 1926 (S.W.A.) makes provision for the estab
lishment by the Administrator of govemment schools and government
training schools ~. The highest and lowest standard in any such school,
as well as the subjects of instruction, are subject to the approval of the
Director of Education 5• Govemment schools may be established when

the Director is satisfied that the educational needs of the locality call

1 A/rican Labour Survey (1962), p.37.
2 Bourret, F. M., Ghana--The Road to Independence r9r9-1957 (196o), p. 218.
3 Vide Education Statistic1959, Statistical Reports (Ghana), Sei:. r. No. 6, p. 7.
• Pt'oc. No. 16 of 1926 (S.W.A.) as amended, sec.122 (I), in Laws of Somh West
Africa, Vol.li (1923-1927), p.302.
~ Ibid .sec. 122 (2),p.302.432 SOUTH WEST AFRICA

for such establishment, that a regular attendance of at least 20 pupils can
be maintained, and that the accommodation to be utilized is suitable for
the purpose 1• Similar conditions apply to the establishment of training

schools, savc that no minimum number of students is prescribed.
39. The control and management of government schools and govern
ment training schools vest in the Director of Education or in a manager
appointcd byhim, but the Director may, with the consent of the Adminis

trator, institute managing bodies for such schools 2•
Therc is one government training school in the Territory, the Augus
tineum at Okahandja 3•
Proclamation No. 16 of 1926 (S.W.A.) makes provision for the es
4
tablishment of mission schools and mission trainmg schools , for the
recognition of such schools and training schools, and for government
grants in respect thercof 5.The control and management of recognized
schools and training schools vest in the church or missionary body .or
other person responsible for the establishment of the school concerned,

but the aprointment of the manager of each school is subject to the
approval o the Director of Education, and the manager must perfonn
his duties to the satisfaction of the Director 6•

40. There are at present three mission teacher training schools in
the Terri tory: the Roman Catholic institution at Doebra, near Windhoek,
and two Fmnish training schools at Onguedira and Ongandjera, in
Ovamboland 7• As from 1964 the two last-rnentioned institutions will be

financed by the Administration on the same Hnes as in the case of the
Augustineum, although they will remain under the control of the Finnish
Mission. There are a few private schools in the Territory, conducted
mainly by the African Methodist Episcopal Church. At present there
are three farm scb.oolsin operation in the Temtory 8•
9
The 1962 Education Ordinance empowers the Administrator-
(aJ to establish and maintain "Native schools to be known as State
Native Schc,ols" 0;

(b) to subsidize and assist in the estabHshment or maintenance of Native
community schools 11;
(c) to make grants-in-aid to any "state-aided Native school" 12.This

1 Proc. No. r6 of 1926 (S.W.A.) as amended, sec. 122 (4),in Laws of South Wtd
Africa, Vol. II (1922-1927), p. 302.
2 Froc. No. 16 of 1926 (S.W.A.), sec. 122 (7), as substituted by Ord. 19 of 196o
(S.W.A.), sec. 15; vide The Laws of South West A.frica r960, Vol. XXXIX, p. 6Sl.
Vide also para. 35, supra.
3 Vide para. 24, supra.
• Proc. No. 16 of 1926 (S.W.A.), sec. r23, in Laws of South West A/rica, Vol. II
(1923-1927), p.304.

~ Ibid., secs. r:z5.r:z6and127,pp. 304-3o6. As to the number of schools-Govern
ment and Mission--tiide paras. 43 and 55, infra.
6Proc. No. 16 of 1926 (S.W.A.), sec. 128, in Laws of South West Africa, Vol. II
(1923-1927), p. 3o6.
1 Vide para. 22, supra.
• Vide para. 13, supra.
9 Vide Chap. III, para. 5, supra.
10Ord. No. 27 of 1962 (S.W.A.). sec. 101 (1) {a), in Official Gazelle E~traordina,y
of Sowh West Afrila, No. 2413 (4 July 1962). p. 91:2,
l1 Ibid.,Sei:102 (1), p.912.
12 Ibid., sec103 (1), p. 9r2. COUN1'ER-MEMORIAL OF S0U1'H AFRICA 433

term includes those mission schools or mission training schools
recognized by the Director under the Educational Proclamation
No. 16 of 1926 (S.W.A.).

E. OfficersandFieldStaffforNativeEducation

41. For many years there were no officersof the Education Departmen t
specially detailed to organize or inspect Native schools. Ail the worJc
was done by officers and inspectors who performed their duties in
Tespect of all schools in South West Africa.
ln 1945 an officer, styled organizer, was appointed to organize and
supervise Native schools and teaching in the areas outside the Police
Zone, and in 1953 a second such organizer was appointed. These two
organizers were also responsible for the inspection of schools in those
areas.
In 1952 an organizer of Native Education was appointed for the
Police Zone, but inspections continued to be carried out by the same

inspectors who inspected European and Coloured schools. ,
As a result of recommendations made by the 195S Commission of
Inquiry into Non-European Education, certain changes were brought
about with a view to giving Native schools in the Territory better profes
sional supervision and more specialized attention.
In 1g60 a chief inspector of Native schools was appointed, and also
an inspector of Native schools for the Police Zone. The aforementioned
post of organizer, which had been created in 1952, was then abolished.
In 1961 an administrative organizer was appointed for the Police Zone,
whose function it is, in general, to assist and guide schools and school
board secretaries in their work. Three posts of supervisor of schools have
been crnated for the northern tenitories: two of these posts have already

been fi.liedby Natives, whilst the third is presently filled by a Finnish
missionary pending the appointment of a suitable Native candidate.
Two similar posts have been created for the Police Zone. A supervisor's
fonctions are to assist inspectors in their inspections of schools and other
professional work, to give professional guidance to teachers, and to super
vise instruction given in the mother tongue in the sub-standards and
lower primary classes.
·As already stated 1,it has been decided to appoint five Natives on the
staff of the Bureau for the development of the Native languages in the
Territory. Two of these have already been appointed to assume duty on
I January 1964. Posts have also been offered to two others to assume
duty on the same date, and a suitable candidate is being sought to fill the

fifth post. These men will have a sound knowledge of the following
languages: Herero, Nama, Ndonga, Kuanyama and Kuangali.
42. As far as the areas outside the Police Zone are concemed, the
posts of organizer and second organizer have been done away with,
but the services of the officers holding the positions have been retained
as professional assistants to inspectors of schools. In 1961 two inspectors
of schools were appointed, and a1so an administrative organizer.
In addition to the aforementioned officers, whose duties relate solely
to Native education, there are an organizer of domestic science and

1 Vuu Chap. IV,para. 20,supra. SOUTH WEST AFRICA
434

needlework and an organizer of handwork for boys, who serve European,
Coloured and Native schools in the Police Zone.
The present complement of professional officers, field staff and admin~
istrative staff concemed with Native education in the Territory is

reflected in the following table:
Head Office(serving ail groups in the Territory)
director of education
deputy director of education
professional assistant

administrativ~ staff-46 in number
Field Staff (serving all groups in the Police Zone)
organizer for domestic science and needlework
organizer for handwork for boys
organizer for music

Field Staff (serving only Native groups, both foside and outside the Police
Zone)
chief inspector of schools

Field Staff (serving only Native groups in the Police Zone)
inspector of schools
administrativç organizer
professional a.,sistant
Field Staff (servi:ngNative groups outside the Police Zone)

2 inspectors ofschools
r professional assistant
3 supervisors
2 administrative organizers.

F. Survey of Native Schools, Pupils and Teachers within the Police Zone

43. In the ta"ble below particulars are given of schools, pupils and
teachers in the Police Zone in various years since 1922.
The mission schools refened to are recognized mission schools. Schools

which djd not, or do not, comply with the requirements lrud down by
the Department of Education are not included in the table.
The number of students given for the years 1922 and 1930 include a
comparatively small number of Coloured pupils who were then in
Native schools.

Scho?ls Pupils Teachus
Year 1
1922 Rhenish 26 2,430 47 (including 3 Euro
Roman C. 16 peans)
\Vesleyan

1930 Rhenish 45 4,747 123
Roman C. 18 26 (part-time}
Anglican z
Wesleyan z

67 149 (including 12 Euro
peans} COUNTER-MEMORlAL OF SOUTH AFRICA 435

Yea'r1 Schools Pupils TeaçheFS

1940 Govemment 2 Government 240 146 (including 32 Euro-
Rhe:ll.Îsh 50 peans)
Romane. 24 Mission 4,216 45 (part-time, including
Wesleyan 1 24 Europeans)
Anglican

78 4,456 191

1950 1 Government 6 Government 553 194 lincluding 2S Euro-
Rhenish peans)
Roman C. 26 Mission 6,080 65 (part-time, including
l 25 Europeans)
1 Anglican 1

- -- -
1 79 6,633 259

196o Govemment 13 Government 2,191 1 334 (including 37 Euro-
Rhenish 56 peans)
Roman C. 26 Mission 9,476 107 (part-time, including
A.M.E. J 37 Europeans)
- --·· -
96 11,667 441
•
1962 Govemment 20 Government 4,065 368
Rhenish 50 Mission 10,704 104 (part-time, including
Romane. 27 45 Europeans}
A.M.E. 1
~
- --· ----
98 14,769 47:z

1963 Govemment 22 Government 5,521 ,po
Rhenish 48 Mission u,243 119 (part-time, including
Roman C. 27 49 Europeans)
A.M.E. 5
- -- -
J02 16,764 529

44. The figures in the above table show, regard being had to the vari
ous factors which have served to retard development, that steady pro
gress has been made.

In x922 there were only 44 Native teachers, few of whom had had any
real training. The teacher training school at Okahandja was only reopened
in 1923 1, and three years later 12 students completed their training.
Thereafter-save during the 1.930swhen economic conditions had serious
effects on educational development 2-there was a graduai increase in
the number of teachers, and they were also progressively better trained.

Between 1950 and 1960 the position improved considerably, and the
number of full-time Native teachers increased from 1.66to 297, i.e., by
almost 79 per cent. That there is still a shortage of teachers, however, is
shown by the large number of part-time teachers who have to be em
ployed.

1 Vide pua.. 23, svjwa.
z Vida pa.ras. 17 to 19sup,-a. Sub-standards Standards
Yea, ai Vlll
1 1 A 1 B I 1 Il 1 Ill IV V VI 1 VIII 1 IX X
-- 112
1949 903 2,340 1,035 786 588 274 --- 43 -- 19
1951 2,15,f 1,598 1,136 944 598 340 139 70 2,f
100 27.8 1.1
74•2 52.7 43.8 15.8 6.5 3.3
1954 .. . . 1,979 1.523 1,293 1.033 701 436 196 120 76 li'
100 52.2 22.0 6.1
77.o 65.3 35.4 9.9 --- 3.8 0.9
l955 ....... 2,040 r,563 1,3rr r,126 8t7 472 235 166 93 29 3
100 76.6 40.0 23.1 8.1 0,1
64.3 55.2 11.5 4.6 1.4
196o ....... 3,39i' 2,373 1,765 1,358 1,0'IJ 708 375 225 186 61 24 5 1
100 20.8 11.0 6.6 I.8 0.7 0.15
69.8 51.9 39.9 3o.7 ---- 5.4 0.03
1961 ....... 3,555 2,886 2,147 1,566 1,189 845 278 153 II 3 2
100 81.2 14.04 7.8 I.6 0.3 0.3 0.04
6o.3 44.0 33.4 23.7 4.3
1962 . . . ~ . . . 5,970 3,254 1,938 1,371 882 595 343 206 58 17 4 3
100 22.9 0.9 0.3 0.07 0.05
54.5 32.4 14.7 9.9 5.7 3.4 --- ---
1963 ....... 4,297 4,972 2,987 1,719 1,165 656 459 ,;82 79 20 3
]00 I15,7 40.0 27.1 15.2 10.6 6.5 t.8 0.5 O.l o.o6
69.5

1 Until the end of 1961, a sub-standard "a" preceded sub-standards "A" and "B". As Crom 1962, the first year of schooling has been
sub-standard "A".
2 In this column are included students in Forms I and Il (i.e., one and two years respectively after completion of Standard VI). COUNTER-MEHORIAL OF SOUTH AFRICA 431

Reference has already been made to the detrimental effect which
economic conditions during the 1930s had on school attendance 1•This
is reflected in a comparison between the number of pupils enrolled in
1930 and the number enrolled in 1940. After 1940there was fair progress,
and excellent progress was made during the years 1950to 1960,when the
number of pupils rose from 6,663 to n,667, representing an increase of
almost 76 percent.
45. In the table above are shown the enrolment figures in the various
sub-standards and standards in schools in the Police Zone during the
years i:949, i:951:,i:954, 1955, i:960, Ig6I, 1962 and 1g63, and compari
sons with 100 in the lowest sub-standard as basis. The table does not
include pupils in teacher training schools or in the industrial classes at
the Augustineum 2•

46. Theabove table shows that the vast majority of pupils are in the
lower primary standards, but that the numbers of those in the upper
primary standards are becoming progressively larger. The fact that ail
schools do not have a full range of classes up to Standard VI partially
accounts for the comparatively low enrolment in the upper primary
standards (i.e., Standards III to VI), but it must be borne in mind that
until the end of 1962 the only"condition for instituting a class higher
than Standard II was that there had to be at least ftve pupils for such
a class; and, tbat if the number fell below fi.vein the course of a year,
sucb class nevertheless continued till the end of that year. Since the
beginning of 1963 the position is as follows: if a Standard III class
starts with five pupils, such class continues till the end of Standard IV,
even if the numher fallsbelow five in the course of the Standard III or
Standard IV year: if a Standard IV class starts with five pupils, it con
tinues till the end of the Standard IV year even if the number falls
below five in the course of that year; if a Standard V class starts with
five pupils, it continues till the end of Standard VI, even if the number
falls below five in the course of the Standard V or Standard VI year.
These requirements are dictated by the shortage of teachers.
The fall-off in numbers in the lower primary classes cannot be attri
buted to any lack of facilities, and when regard is had to the decline in
numbers in the Iower standards, it is not surprising to find that so few
of those who go ta school proceed to the upper primary standards.
It is an encouraging .fact, however, that of t~ose pupils who do go
beyond the lower primary standards, progresS1vely more proceed to
Standard VI. In 1949, as the table above shows, there were 19 students
in Standard VI. Eleven years later, in 1960, the number was almost
ten times as great, namely 186. In 196I, for no apparent reason, the
number fell to 153,but it rose again to 206 in 1962,and in 1963it was 282.
47. Secondary education for Natives in South West Africa is of fairly
recent origin. Junior secondary courses (up to Standard VIII) were in
stituted at the Augustineum in 1953, and senior secondary courses {up
to Standard X) in 1958. Junior secondary courses have been offered at
Doebra since 1956.
Enrolments in the secondary courses in 1g63are reflected in the above
table as follows: 79 J?Upilsin Standard VU, -io in Standard VIII, 4
in Standard IX and 3 m Standard X.
iVide para. 19,sup,,a.
2 As to such classes vide Cbap. VI, para. 3, inf"'· SOUTH WEST AFRICA

Not near1y full use js made of the facilities offeredat the Augustineurn
and at Doebra, :md many more students can be accommodated than
are presently taking secondary courses.
The Augustineum provides for three different courses: an academic
course up to Standard X, teacher training, and technical training in
masonry, woodwork and tailoring. It is open to ailNative students in
the Territory, and, as already stated 1.ail students receive free tuition,
free books, free board and lodging, and free transport to and from their
homes as well as pocket money. The Roman Catholic institution at
Doebra is subsidized by the Administration, and tuition and boarding
are free.

48. As stated above 2, the Administration started to take over the
Rhenish Mission!;choolsin the Police Zone in 1962.
As soon as the mission schools in the Reserves within the Police Zone
have been taken over, the Administration intends establishing at least
one higher primary school in each Reserve and of making funds avail
able for the erection of hostels in conjunction therewitli, while lower
primary schools wil1 be established at every so--called "post" in the
Reserves where there is a suffi.dent concentration of inhabitants to war
rant the building of a school.

G. Conditions relating to Education Outside the Police Zone

Ovamboland

49. At the 1923 educationaJ conference, a provisional syllabus for use
in primary classes up to Standard II was agreed upon by the Adminis
tration and the various missions represented at the Conference. As
already stated 3, the Finnish Mission did not see its way clear to adopt
this syllabus. It was felt that, having regard to the stage of development
of the population in the northern areas, it was still in the best interests
of the people to devote more time to religious instruction than the
syllabus would have perrnitted. Another major difficulty was the lack of
teachers who had received sufficient training. Of the 304 teachers in
Ovamboland in 1924, only 6r had received any teacher training, and the
general standard of work was understandably very low. Most of the
schools-there wtire 168 in 1924-were nothing more than mere bush
schools, and the instruction given was mostly of an elementary and
religious kind. It was only gradually, as the quality of teachers improved,
that instruction could be given on somewhat broader lines.
There was only one teacher training school in Ovamboland in 1924•
that at Oniipa-and it was only in that year that the Roman Catholic
and Anglican Missionsstarted work in Ovamboland.

50. Improvement in the standard of the sch:oolswas slow, although
special efforts were made to raise the quality of the main station schools,
to which European principals were appointed, and where hostel facilities
were created. Useful work was done at the Onüpa training school and
at the Onguedira industrial school, established by the Finnish Mis•

1 Vide para.29, suf,Ta.
s Vide Chap. IV, para.24.
• Vide para.23, suf,Ta. COUNTER-MEMORIAL OF SOUTH AFRICA 439

sion in 1928, where a three-years' practical training course was given in
carpentry, agriculture, cattle raising, gardeninf;: and tree-planting. Inas
much as they did not comply with the conditions which would have
qualifted them fot the subsidy paid to recognized schools, the Adminis
tration made annual grants to these institutions.
In 1936 the Director of Education visited Ovamboland to investigate
the possibility of introducing measures to improve conditions at the
mission schools and to find a basis for subsidizing the schools without

their having to comply with the conditions which had been laid down
as a qualification for government aid. In the interim, until steps could
be taken to put education on a sounder footing, it was proposed to
make grants towards meeting the salaries of teachers with the necessary
qualifications.
sr. The Second World War prevented the taking of any positive steps
to improve education in Ovamboland, but in 1945 an organizer of edu

cation was appointed in the northern territories and from then onwards
the fmancial aid granted to schools increased appreciably. Grants were
made in respect of trained teachers in day schools, to industrial schools,
training schools, so-called boys' and girls' schools, and also to district
inspectresses in the service of the missions. From 1952 onwards subsi
dies have been paid to missions not in respect of particular services, but
in the form of a global sum to each mission, to be used at its discretion.
In time the standard of the schools improved, and although a great
deal was still left to the discretion of the mission concerned, the activi
ties of the Organizer of Education and his assistant, appointed in 1953,

did much to achieve greater uniformity amongst the varions schools,
the progressive adoption of more advanced syllabuses, and a graduai'
adaptation to conditions applying in the schools in the Police Zone.
In 1948 the Finnish Mission established a separate training school for
girls . The Mission also imported a few teachers with University degrees
from Finland, who were then·enrolled at a South African university to
take a teacher's course and to learn Afrikaans, and some Native students
were sent to South Africa to be trained as teachers.
Ovamboland students wrote the Standard VI examinations conducted

for pupils in the Police Zone for the first time at the end of 1960, and
the results bear witness to the progress that has been made in recent
years. Of the 130 candidates who entered for the examination no
passed (i.e., 85 percent.). Of the 166 candidates in the Police Zone, 109
passed (i.e., 66 per cent.). A concession was made to the Ovamboland
students. They wrote English on a Standard IV level but, on the other
hand, they offered one subject more than the Police Zone students in
that they also wrote an examination in their home language.

52. Further evidence of progress is the fact that, as from 1961, Form
I (i.e., one year after Standard VI) bas been the minimum requirement
for admission to the training school at Onguedira, and Standard VI
the minimum requirement for admission to the training school at On
gandjera 2• This 1s a step which will henceforth serve to improve the
quality of teachers and of the work done at schools. As stated above 3 •

1 Vidd pa.i:a:a-sup,-a.
i Vide para. 27,supYa.
3 Vidd pa.i:a40,supra. - ·---------------------

SOUTH WEST AFRICA

both the traininH schools will in future be financed by the Administration
on the sa.me lines as the Augustineum.
Another impc,rtant advance in education in Ovamboland was. the
introduction in 196I of secondary courses at the training schools at
Ongandjera and Onguedira 1.
As already stated 2,the lower primary schools of the Finnish Mission

in Ovamboland were converted into government community schools in
1961, and the Roman Catholic Mission has agreed to transfer its schools
in Ovamboland to the Administration. Fifteen higher primary schools
of the Finnish Mission were taken over by the Administration in 19.63.
The Administration has also decided to establish, as soon as p0SS1ble,
lower primary E.choolsat ail so-called "posts" in Ovamboland where
there is a sufficient concentration of inhabitants to warrant the establish~

ment of such schools. The minimum requirement for establishing an
upper-primary dass in Ovamboland is ten pupils; elsewhere in the
northern temtories the minimum is five, as in the Police Zone 3•

The Okavango

53. The Okavango is a vast area with a population, according to the
1960 census, of :28,252 1.

It was only in 19rn that the first missionaries started work in this
area, when a Roman Catholic school was established at Diriko. The
first Finnfah missionaries came to the Okavango in about 1930. At
present there are 46 mission schools in this territory, seven of which
are higher primary schools.
The bulk of uopulation is concentrated along the Okavango River,
where rnost of the schools are, but ahnost the whole of the occupied

portion of the area is served by schools. 2
At the request of the Finnish Mission , the Administration has
decided, at least for the present, not to convert the mission schools in
the Okavango into govemment community schools.

The Kaokoveld

54. The Kaokoveld, about 5,560,000 ha. in extent, has a population,

according to the 196o census, of 10,099, which gives a population density
of about 0.0018 to the hectare.
The inhabitants of the Kaokoveld led a completely secluded existence
as far as missionary activity was concerned until the late 1920s. In
1927 the Finnish Mission started conducting services a few tîmes a year
at Okorosawe, while the Rhenish Mission started doing the same at
Zessfontein as from r930. It was not until r946, however, that a school

was established in the area. In that year the Rhenish Mission started
a school at Zessfontein. The services of a teacher trained at the Augus
tineum were obtained, and the Administration granted an allowance in
respect of his sa1ary. Ail subsequent attempts to obtain a second teacher
failed. Teachers cannot readily be persuaded to go to the Kaokoveld, a

1 Vide para. 68, infra.
2 Vide para. 3S, supra
' Vùk para ..,.sufwa.
• The population density is0.0077 to the hectare; vida para10, sufwa. COUNTER-IIEMORIAL OF SOUTH AFRICA 441

wild and isolated territory, while there is a demand for their services in
more attractive parts of the country.
The enrolment at the aforementioned school rose from 44 in 1947 to
70 in 1955, but in 1900 it was only 50 and in 1g62 it was 65. Experience
has shown that very fewpupils, hardly more than 15per cent. in any year,

stay at school after completing the sub-standards. The pupils at the
school are Nama and Bergdama. Herero parents have consistently
refused to support the school, their professed attitude being that they
are not interested in mission schools.
In view of the attitude of the Hereros, the Administration took steps
to establish a government school in the area. In 1955 a school building
was erected at Okorosawe from South African Native Trust funds, but
the Department of Education could not find a suitable teacher who was
prepared to take up duties there. When the Dutch Reformed Church
entered the field some time thereafter, they declined to make use of this
school building at Okorosawe-being unwilling to encroach on the
land of the Hereros living there-and in 1961started a school at Orumana
instead. Itwas not until 1961 that the Education Department succeeded
in obtaining the services of a teacher for its proposed school at Okorosawe.
This teacher agreed to take up his duties there at the ~ing of 1962,
and in January i:962, the school at Okorosawe was started as a govern
ment school.

H. Survey of Native Schools, Pupils and Teachers in the Northem
Territorles

55. In the table below particulars are gi.ven of schools, pupils and
teachers in the aforementioned areas outside the Police Zone.
It must be pointed out that what were referred to as "schools" in the
early years would not ail be classified as such today. At that time there
were no prescribed syllabuses and most of the education given was

aimed at teaching the Natives to read, with the specific purpose of pre-
paring them for Bible study and religion. And in rnany instances the
pupils attending such "schools" were adults.

Yea,. Scllools Pf.'pils Teade,.s
1924 Finnish 168 4.689 304 (includin10 Europeans)

1932 r Finnish 9,378 293 {including 20 Europeans)
1 RomanC. 179
l Anglican ~

19391 Anglican 1I.f 13,65.5 (Information not available)
Rom.an C.
__1:
1 146
19.50 1 Finnish 16,026 +P (inclnding 19 Europeans)
Romane. 151
Anglican
1 Rhenish !442 SOUTH WEST AFRICA

YeaY r Scbools 1Pw,Pils1 Tead1eYs

196o 1 Finnish 26,1341 633 (including 25 Europeans)
Romane. 161
Anglican
1 Rhenish l

1961 Govemment (community 29,452 669 (încluding 25 Europea.ns)
scbools) 85
Romane. 43
Finnish 33
ARhenish IC)
Dutch Rei. 1
t
1
73
1962 Govemment (community 30,801 766 (including8 Europea.ns)
schools) 110
Finnish 3I
Romane. 4i
Anglican 10
Rbenish 1
Dutcb Ref. J;
1 --
197

1963 Çovemment (community 32,533 765 (including29 Europeans)
schools) 136
Finnish 14
Anglican 45
Rhenish T
Dutch Rel. X
-
206

56. As the figures in the above table show, rapict progress has been
made sînce 1950.
During the period 1950 to 1960 the number of pupils at school in
creased by more than 60 per cent,
The table below contains the enrolment figures in the various classes

in 1960, 1961, 1962and 1963. ·
The decrease in the nwnber of teacher trainees in 196r was due to the
raising of the minimum qualification for admission to the teacher train
ing schools 1.
There isno apparent reason for the comparatively low number (580)
-ofpupils in Standard III in 196r. It cannot be ascribed to any lack of
school facilities, for in 1960 the number of Standard III pupils had
been almost twfo~as large, namely 1,o85.

1 Vide para. 27, supra. COUNTER-MEMOlllAL OF SOUTH AFRlCA 443

Standal'd
I960 I96I I9611 1 I963

Sub. A. 15,819 16,999 15,714 15,232

Sub. B. . . 3,522 5,105 6,340 6,Sg5

Std. I. :1,793 3,378 4,259 4,653

Std. II 2,269 2,663 2,379 2,795

Std. III. . ; J,085 580 1,163 1,445
Std. IV.
270 374 456 745
Std. V 178 250
146 389
Std. VI. 96 "II9 20I
95
!o~ l (St~. VII) . 20 32 28 63

Form II .. - 19 :i:8 13

Form III. . - - 19 17

Form IV. .. . - - - 101
·---
Tea.cher Training 83 6o 56 75

1 Theological students at Odiba; vide para.. 22,sup,-a.

I. School Attendance

1. PERCENTAGE OF NATIVE °CHILDREN ATTENDING 5CHOOL IN
SOUTH WEST AFRICA

57. Because census statistics do not record the ages of persans enumer
ated, it is impossible to determine with absolute precision what per
centage of Native children of school-going age attend schools in South
West Africa,
For the purpose of presenting certain calculations to the Court, it is
assumed that children of school-going age constitute 23 percent. of the
1
total population •
Workmg on the basis of 23 percent., the following calculations can
be made.

1 The perccntage of thetotal population regarded to be of school-going age must
of necessity vary according to what is consideredto be •'schoolage". The Coromittee
on South West Africa, in its report to the General Assembly of the United NatiollS
in 1954, took non-European cbildren of school age"'in the Police Zoneto COI!5titute
20 percent. of the non-European population of that area. (Vilk G.A., O.R., NjnJh
S,ss. s-,p.No. 14 (A/2666), p. 30.) The 1958 Commission .oi Inquiry into Non- ---· ·-·---------------

SOUTH WEST AFRICA

According to the census taken in 1951 the Native population of South
West Africa (excluding the Eastem Caprivi Zipfel, which is dealt with
separately hereinafter) was 351,397. Based on the assumption afore
mentioned, there must in that year have been 80,820 Native children of
school age. The children actually at school numbered 24,527 1, which
means that 30.3 per cent. of ail Native children of school-going age
were at school in that year.

In 1960, according to the census taken in that year, the Native popu
lation of South West Africa numbered 412,735 {exduding the Eastern
Caprivi Zipfel). In that year there were in fact 37,801 Native children
at school, and, calculating in the manner aforestated, it means that
39.8 percent. of all Native children of school-going age were at school
in that year.

58. The aforegoing calculations show that substantial progress was
made during the period 1951 to 196o. And what is of particular signifi
cance, is the fact that the number of children enrollecf rose much more
rapidly than the number of children of school age. The increase in the
number of children of school age was approximately 17.4 per cent.

(from 80,820 to 94,929), and in the case of children enrolled 1t was no
less than 54.1 percent. (from 24,527 to 37,801).
It was particuJarly during the five years 1955 to 1g60 that rapid
progress was made. During that period the number of Native children
enrolled in the Police Zone increased by 47.8 percent. (from 7,893 to
II ,667), and in the northern terri tories by 49.2 per cent. (from 17,515 to
26,134).
The enrolrnent figures for 1961 again show a striking increase over
those of 1960. In the northern territories the increase was 12.7 percent.,

and in the Police Zone it was 13.1 per cent.
Ifit be assumecl that the 1961 population figure was 2 per cent. higher
than the 1960 figure (giving a total population of 420,990 for 1961), and
that 23 per cent. of the population were children of school age, it would
follow that thern were 96,828 Native children of school age in 1g61.
The children actually at school in that year numbered 42,750, which
means that slightly more than 44 per cent. of all Native children of
school age attended school in 1961.

It is confidentl.y expected that under the new system of JOVernment
community scho1>lswhich has been introduced in the Temtory, there
will be an even more rapid increase in the number of children at school
than there has been of recent years. This bas certainly been the experi
ence in South Ahica, where there was an increase of 33 per cent. in the
number of Bantu schools between 1956 and 1960 as compared with an

European Education in South West Africa took the percentage to be 2.5(vûü the
Commission's Report, Part I, para. BII9 (b), p. 99).Respondent considers tha.t
a percentage of 23 is reasonabJe. In 196o, when, itcan be assumed, all,European
children of at least the compulsory schooage (i.e,up to their sixteenthyear)were
at school, the total number of European children actually at school constituted
22.2 per cent. of the total European population.
1 The numbers of children given in the tables in paras. 43 and SS,sufwts,refiect
enrolments at the beginning of the second semester of the ycars concerned: that is,
no account is taken of pupils who enrolled at the beginnîllg of a year and left school
during the firssemester. COUNTER-MEMORIAL OF SOUTH AFRICA
445

increase of 8 per cent. during the preceding five :years,and where the
percentage of Bantu school-age children enrolled m I96o was approxî
mately 60 as compared with approximately 40 in I955.

II. SCHOOL ATTENDANCE IN OTHER AFRICAN TERRITORIES

59. That good progress has been made in South West Africa, and

that the results compare well with what has been achieved in other parts
-0fthe continent of Africa, even where education has had a much longer
history, is shown in the followin~ paragraphs, which are devoted to a
brief survey of school attendance m other territories in Africa.

(a) Liberia

It is illlpossible to determine with any measu.reof exactness the per
centage of children of school-going age in Liberia who actually attend
school, inasmuch as no population census has, as far as is known, ever
been taken.
According to Dr. Kimble, until the end of the Second World War
"only 3 percent. or so of the school-age population was actually attending
school" 1•
A United Nations publication gives the percentage of total population

enrolled in the primary, secondary and technical2schools of the country
as 2 and 3.5 re5l'ectively in 1950and 1955 •
In a publication dealing, inter alia, with educational developments in
Liberia in 1961-1962,it isstated that, according to "the latest figures",
the total enrolment at public, mission, private and tribal schools was
63,989 3• Calculated on the basis that the total fopulation of the country
was 1,250,000 at the time, and that children o school age constitute 23
per cent. of the total population 4,it would mean that about 22.26 per
Œnt. of a school-age population {calculated at 287 ,ooo) were enrolleà at
the time.

(b) Ethiopia

As far as is known, no population census has ever been taken in
Ethiopia, and it is, therefore, impossible to detennine with any exact
ness the percentage of children of school-age who attend school. In 1956,
according to a United Nations' estimate, the total p<yulation was
20 million 5 ;and în 1()60,according to the Ethiopian Mmistry of Infor
mation, it was 22 million 6•
Ernest W. Luther estimated the number of children at school in 1956

as "comprlsingonly a very small 7raction--certainly under 5per cent.-of
the school-age population" • ·

1Kimble, op. cit., p. 125.
1 Yid6 U.N. Doc. E{CN. 5/324/Rev. l.ST/SOA/33 (Apr. r957), p. 8o.
1 Yid11lnte,,natfonaJ Yeaf'booll of EducatfonVol. XXIV (196:a), p. 223.
• Vida para. 57, suf,f'a.
, Vidll U.N. Doc. E/CN. 14/28, p.13.
1 Ethiopia: Facts and Figum (1900), p. 3.
"îLuther, op. cit., p. 27. SOUTH WEST AFRICA

In 1959-1960,according to officialEthiopian sources, the total number

of /upils in the Empire's govemment1 mission, private, community
an church schools was 224,934 • If, for purposes of calculation, the
total population in 1959-1960is taken as 20 million, and if it be further
assumed that the school-age population constituted 23 per cent. of the
total po_Pulation it follows that about 4.9 per cent. of the school-age
population attended school in 1959-1960.
Another United Nations publication gïves the primary school enrol
ment in 196o-196r as about 177,000 3, and the secondary school enrol
ment as about S,500 ~ (a total enrolment figure of 185,500). According
to the same source the official population estirnate for 196! was
19,500,000~.

The position of school enrolment generally in Africa is described as

follows in a United Nations publication of 1961:
"The recent phenomenal expansion of school facilities, however,
has by no means brought educational opportunity for African
cbildren and youth to a desirabJe Jevel.Toda y,for the African States
as a whole, only 16percent. of the children of school age are anrolled
rsic] in school. The situation varies from State to State, ranging
from less than 2 per cent. of the school-age population in school in
several States to nearly 60 per cent. in others. In the majority of
cases, the proportion of children out of school exceeds 80 per cent.6''

60. The following table reflects:
in column (A): the estimated total population of various countries in
Africa in the years indicated :
in column (B) : the total enrohnents in such countries in the said years:
in cotumn (C): the calculated percentage of the total population enrolled
in the various countries in the said years.
The particula1s contained in columns (A) and (B) have been taken

from the International Yearbook of Education, Vol. XXIV {1962),
Educational Statistics, tables I and II.

1Mi11ist,,y of EducatiOt1 a11d Fi11e Arts, Bureau of Educational Research and
Statis#esGovenime,1t,MissiOtl, Private, Community a11dChurch-Schools r959.z960,
p.6.
2 Vide para. 57, supra.
' Vide UNESC01ED/t91, table I, p. 153.
4 Ibid., table II, pI.H•
5 Ibid.,p. 81.
1 Vida Unesco/ED/180, p. .5. COUNTER-MEMORIA.L OF SOUTH AFRICA
447

1
(A) (B} (C)
l 0/aof
Country Population Total population
r enrolments enrolled
2,224,000 103,178
Burundi (1961) . 4.639
Cameroon (1959) . 4,066,000 423,793 1.042

Central African Republic (1961) . 1,227,000 75,386 6.143

Chad (196r} . 2,680,000 96,435 3.598
2,050,000
Dahomey (1961) . 101.;245 4.987
Ethiopia (196o} . 20,000,000 182,146 0.910

Gabon (1961} . 448,000 66,376 14.816

Ghana (1959) . . . . 4,911,000 653,491 13.30
122,801
Guinea (1961}. 3,059,000 4.014
Ivory Coast (196o) . 3,16o,ooo 250,213 7.918
-
Liberia {1961). .. 1,315,000 58,132 4.421

Madagascar (196o} . 5,393,000 475,277 8.813
4,100,000
Mali (1959) . 55,313 1.349
Niger (1961) 2,870,000 25,201 8.781

Nigeria (1961) 35,752,000 2,966,612 8,298

Senegal (1961} 2,980,000 134,713 4.521
Sierra Leone {1961} 100,648
2,450,000 4.1 I
Somalia (196o} 2,010,000 24,589 t.233

Tanganyika (196o) . 9,239,000 465,171 5.035

Togo {1961} . . 1,4So,ooo 122,039 8.246
.
Uganda (196o) 6,677,000 564,203 8-45
U.A.R. (1961). 26,578,000 3,255,075 12.247

Upper Volta (196o). 3,635,000 58,488 1.61

The corresponding position in South West Africa in 1960 was as
follows:

Total Native population •fo of
{excluding the Eastern Caprivi Zipfel) En1'olmenJ population
enrolled

4 12,735 37,801 9.2

6r. It is submitted, with reference to the aforegoing statistics, that
good progress has been made in the education of the Native population
of South West Africa, especially when regard is had to all the diffi.culties

that have been encountered and to the relatively brief history of the
education of the indigenous peopleof the Territory.448 SOUTH WEST AFRICA

J. Courst:s, Syllabuses and Examinations for Native Pupils
62. The curriculum in every government trainin~ school, govemment

Native school, recognized mission school and miss10n training 1chool is
determined and regulated by the Director of Education •
J. PRIMARY SCHOOLS

63. A provisional curriculum was formulated at the education con
ference of 1923 between representatives of the Administration and various
missionary bodies conducting Native schools at that time. Because
of a lack of teachers, it was agreed that the ordinary course in such

schools would at fust caver only classes up to Standard II, and that the
curriculum could later be amended or extended as circumstances de
manded or pennitted. As stated before 2,the Finnish Mission in Ovambo
Jand did not see their way clear to adopt the provisional syllabus, and
held the view that more time had ta be devoted to religions instruction
than the syllabus would have allowed.
The provisional syllabus was:
(a) Religious instruction. ,
(b) Reading and writing of the home Ianguage.

(c) Speaking, reading and writing of one official language.
(d) Elementary arithmetic.
(e) Manual instruction in at least two branches of handwork (Boys:
woodwork, :metal work, gardening, building, etc.; Girls: needlework,
basketmaking, housework, etc).
(!) Hygiene (practical application rather than theory).
(g} Singing.
64. In 1931 the provisional syllabus was extended and thoroughly
revised. The main characteristics of the revised syllabus, which came
into force in 1933, were:

(a) The introduction of a further school year, Standard III. The lack
of adequately trained teachers did not permit of the introduction
of any higher standard at that time. Pupils under the age of 1.7
who had completed Standard III were pennitted to re-enrol in
Standard I[I and to do such further work as could be arranged
for them.
(b) More systematic instruction in the mother tangue, with the help
of better books.
(c) Initial instruction in an officiallanguage through the mother tangue.

(d) Higher demands in arithmetic and hygiene.
(e) The introduction of geography as a subject.
65. The syllabus thus revised was amended and extended from time
to time, and remained in force until the end of 1951.
The 1952 syllabuses made provision for the completion of the primary
course in nine years, and applied to all Native schools in the Tenitory.
The subjects were:
(a) Bible history and ethics as an examination subject.

(b) Hygiene as an examination subject from Standard ItoStandard VI.

1 PYoc. No. 16 of 1926 (S.W.A.) as amended, sec. 129, inLaws of Sov.lhWut
Africa, Vol. II (19z3-1927), p. 3o6.
i Vitk para.49, supya. COUNTER-MEMORIAL OF SOUTH AFRICA 449

(c) Physical training (compulsory).
(d) First language (home language) from Sub (a) to Standard IL
(e) Second language: one of the two official languages, taught as a
second language from Sub ( a) to Standard II.
(f) Third language: the other official langiiage, taught frnm Standard
II.
(g)) Drawing: from Sub (a) to Standard IV.
(h Writing: up to Standard IV.
(i) Arithmetic: from Sub (a) to Standard VI.
(f) History ) .
(k) Geography r Sub (aJ-Sub B.m home I~nguage.
(l) Nature study ) Std. 1-Std. VI man of;fi.c1a llnguage.
(m) Handicrafts for boys: Sub A to Standard VI.
(n) Needlework for girls: Sub A to Standard VI.
(o) Singing: Sub (a) to Standard VI.

These syllabuses remained in force until 1961, when new syllabuses,
)ased on those in use in the Bantu schools in South Africa and adapted
to local conditions, were introduced in the northern territories. In 1962
they were introduced in the schools in the Police Zone.

66. The new courses are divided into a lower and higher p1imary part.

They make provision for eight school years and for the use of the mother
tangue as a medium of instruction in the sub-standards and, as far as
possible, also in Standards I and II.
The subjects in the lower primary course are:

Scripture, Mother Tongue, Afrikaans, English, arithmetic, environment
study, hygiene, writing, sinsîng, drawing, cleaning work, weaving and
claywork, needlework (Girls},scrap work (Boys},gardening.
The subjects in the higher primary course (Standards III-VI) are:
Scripture, Mother Tongue, Afrikaans, English, arithmetic, social studies,
hygiene, nature study, singing, gardening, tree planting and soil
conservation (Boys), wood, leather and scrap work (Boys), needlework
(Girls), handicrafts.

Because so many pupils leave school at an early stage, the lower pri
mary course is intended to be a more-or-less complete course, giving a
grounding in elementary knowledge in several fields.
Standard VI has been retained as the final year of the primary course
in Native schools bccause comparatively few Native students progress
beyond Standard VI, and because a Standard VI certificate entitles
Native students to be enrolled at teacher training sci,ools. 1t furthennore
opens various fieldsofemployment to Native students.
All promotion examinations up to Standard V are conducted by the
schools themselves, subject to the control of the Education Department.
The Standard VI examination is an external examination and is con
ducted by the Examination Committee of the Education Department.

1 As compa.red with a change in 1956 in European and Coloured schools from
Standard VI to Stand3.l'd V; vide Chap. VII, p3.l'a.2infra. SOUTH WEST AFRICA

II. SECONDARS Ycaoots
67. As already stated 1,junior secondary education was firstoffered
at the Augustimium in z953, and at Doebra in 1956. The subjects offered
were:
At the Augustin,ium: Afrikaans, English, history, geography, biology,
physiology and arithmetic, plus non-examination subjects such as
handwork, physical training, singingand Biblehistory.
At Doebra: Afrikaans, English, Arithmetic, Latin, mathematics, history
and biology, plus non-examination subjects such as Bible history,
singing, physical training and handwork.
Both courses prepared pupils for the Junior Certificate examination
of the University of South Africa, which body also conducted the exami
nations until 1960.
As from 1960 the syllabus used for the Junfor Certificate examination
has been that of the Bantu Education Department of South Africa, and
at the end of 19fü candidates wrote the Junior Certificate examination
of that Department. South African Native candidates for the Junior
Certificate exam.ination offerseven subjects instead ofsix as is required
in the case of E.uropean and Coloured pupils, the extra subject being
the pupil's home language. Candidates from South West Africa are
allowed to offer •lnlysix subjects, the Native languages of the Territory
baving not yet been developed to a stage where the teaching of them
isfeasible on the Junior Certificate level.
The examination and non-examination subjects are:

Examination Subfeas Non-examination Subfects
Augustineum
Afrikaans Re~ous instruction
English Singmg
Bio1ogy Physical culture
Socialstudies
Arithmetic
Agriculture
Doebra
Afrikaans Religious instruction
English Singing
Latin Physical culture
Mathematics
Biology
Social studies
Ovamboland

Afrikaans Singing
English Bible history
Mathematics Physical culture and
General science health education
Social studies Mother Tongue
Agriculture/necidlework
The South West African Education Department has a representative
on the Examination Board of the Bantu Education Deparlment.

1 Viil, para. 4suP,,a. COUNTER-MEMORIAL OF SOUTH AFRICA 451

The Junior Certificate course extends over three years, as in the case of
European pupils, but Native pupils spend one more year at the primary
school. The extra year in the case of Native pupils is necessary largely,
because of language difficulties, and in order to bring the standard of
their work on a par with that of European students.

68. Secondary courses were introduced in 1961 at both the fraining
schools, Ongandjera and Onguedira, of the Finnish Mission in Ovambo
land. The syllabus used there is that of the Bantu Education Departineni
of South Africa. ,
69. The course for senior secondary education (Standards IX~X) at
the Augustineum is that of the Joint Matriculation Board of South
Africa, and the subjects are: Afrikaans, English, history, geography,
agriculture and biology. There is no difference between the standard
of work done in the senior secondary course at the Augustineum a~d

that doue in European schools, nor in the standard of the final examina
tions.The only difference is that, because so few Native students enrol
for the course, no subject differentiation has so far been possible. In
r96o, for example, there were in the Territory 275 European candidates
for the Senior Certificate examination as against only l Native candi
date. ln 1962 the relevant figures were: 321 European candidates and
2 Native candidates. -

K. School Buildings, Equipment and Books for Native Pupils

1. GOVERNMENT ScHOOLS

70. ln urban areas schools for Native children are erected and main
tained by the responsible local authority. For this purpose the Adminis
tration grants the local authorities loans at low rates of interest. The
Native inhabita.nts in the area of the local authority concemed contribute
to the cost by way of a small increase in the rent they pay for their
dwellings. ln the new townshlp of Katutura, e.g., the increase is 20 cents
per house per month. Natives do not own property in such areas, and
are not subject to urban taxation. From February 1962 to May 1963 the
sum of the increase was R.4,500, while the total cost of the three new
Native schools in the township was R55,470.
In some Native Reserves in the Police Zone buildings have been
erected by the Department of Bantu Administration and Development,

and the cost defrayed out of tribal funds. The Administration has also
decided to contribute towards the cost of erecting schools and hostels
in conjunction therewith in the Reserves where tribal funds are not
sufficientto bear the expense. For the financial year 1962-1963,Rroo,ooo
(i:50,000) was set aside for this purpose. The Administration intends
making continued provision for such expenditure in future. Money so
set aside is s~nt in providing materials and skilled labour for the erection
of school buildings within the Police Zone and in the norlhern territories.
The contribution by parents is at present limited to unskilled labour,
rendered on a voluntary basis. Such parents receive a small rerouneration
for their services, and also rations where necessary.
In the case of government community schools, the Native communities
cuncerned are responsible for the erection and maintenance of school
t,uildings, the Administration providing the building materials. As in the

case of the schools referred to in the paragraph immediately above.452 SOUTH WEST AFRICA

however, parents who assist in the erection of school buildings are paid
a small reward for their services. School committees are responsible for
providing hostel facilities, and parents are expected to contribute to
the boarding of their children. The Admirustration grants assistance in
the form of subsidies.
Furniture and equipment are provided free by the Administration,
while books and stationery are supplied to students at reduced prices
at present 50 per cent. of the cost. Text and reference books for use by
teachers are sup_pliedfree toailschools.
To encourage the purchase of library books, the Administration sub
sidizes schools for the non~European groups on a R6 {f3)per R2 (!z)
basis. •

Il.MISSION SCHOOLS

71. In the case of mission schools the necessary buildings are provided
by the mission concemed, and must be approved by the Director of
Education for purposes of govemment financ1alassistance. The Adminis
tration grants the missions a subsidy towards the maintenance of their
buildings at approved schools, calculated on the basis of not more than
50 cents. (5s.)per annum per pupil enrolled.
The provision by the Admmistration of furniture, equipment, books
and stationery, and the grant of subsidies for library books, are the same
as for govemment schools.
L. Salaries and Emoluments of Native Teachcrs in South West Mrica

72. Native teachers in South West Africa receive the following
remuneration in respect of their services:

I. A salary, baseci on qualifications, and fi.xed in accordance with
scales laid clownfrom tune to time.
II. A cost-of-living allowance, the amount of which depends on the
salary, sex and marriage status of the individual.
III. A regional allowance, payable to teachers in the Police Zone.
IV. A principal's allowance, where applicable.
Particulars of the aforegoing are given in the paragraphs below.

l. SALARY SCALES

73: The salary scales applicable to Native teachers in South West
Africa, as laid down from time to time, and in force until r961, are
set out in the tables on pages 453 and 454. Ml!N (MARIUBD AND SINGLE): PER ANNUM

Ca.kgMy occording to 1926 1947 1951 1953
qualifications

Bclow Std. VI R<ji X 8-144 Rr20 X 8-168 R144 X 16-228

(i48 X 4-72) (i6o X 4-8-t) (i72 X 8-u4)
1
Equivalent to Std. VI R1H X 12-288 R192 X i::-336 R2I6 X 24-36o
(i72 X 6-144) ([96 X 6-168) (i108 X I2·J8o}

Std. VI plus 1year further training R168 X 12-312 R204 X 12-348 R:228 X 24-372
or schooling (l84 X 6- l56) {.l102X 6-174) (_l114 X 12-J86)

Std. VI plus 2 years further training R120 X 12-200 R192 X 12-336 R216 X 12-36o R:240 X 244-384

or schooling (l6o X 6-100) ([96 X 6-168) (i108 X 6-180) (!120 X 12-192)

Std. VI plus 3 years further training R2r6 X 16-36o R228 X 16-372 R256 X 24-400
or schooling {.lto8X 8-180) (l114 X 8-186) (_l128 X 12-200)

Std. VI plus 4 years further training R240 X 16-384 R240 X 16-384 R272 X 24-416
or schooling (b20 X 8-192) (1;120 X 8-192} (J;t36 X u.-208}

Std. VI plus 5 yea.rs further training R264 X 16-40-4 R264 X 20--404 R:290 X 30-440
or schoolillg · ([132 X 8-202) ([132 X 10-202) (J)-45 X I5-220)

Std. VI plus 6 yea.rs further training R288 X 16--428 R288 X 20-428 R310 X 30-46o
or schooiing (/)-4-4 X 8-214) (J)44 X 10-214} (.!155 X 15-230) WOMRN: PBR ANNUM

Caltgory according to r9a6 r95r
qualifications r947 r953
l
Beiow Std. VI 1 R96 X 8-144 R120 X 8-168 R144 X 16-228
(i48 X ,f-72} (i6o X 4-84) ({,72 X 8-rr4)

Equivalent to Std. VI Ruo x 12-240 R168 X 12-288 R192 X 24-312
([6o X 6-120) ([84 X 6-J 44) ([g6 X 12-156)

Std. VI plus I year further training R144 X 12-264 R180 X 12-300 R204 X 24-324
or schooling (172 X 6-132} (lgo X 6-150) (1,102 X 12-162)

Std; VI plus 2 years further training R166 X 12-288 R192 X 12-312 R216 X 24-336
or schooling (l84 X 6-144) ([96 X 6-156} ([zoS X 12-168)

Std. VI plus 3 years further training R96 X 8-I6o R192 X 16-320 R204 X 16-332 R228 X 24-348
or schooling (l48 X 4-80) ([96 X 8-16o) ([102 X 8-166} (lII3 X 12·174)

Std. VI plus 4 years further training R216 X 16-344 R216 X 16-344 R244 X 24-364
or schooling ([108 X 8-172) (l108 X 8-172) (1,122 X 12-182)

Std. VI plus 5 years further training R240 X 16-368 R240 X 16-368 R26o X 24-380
or scbooling ([120 X 8-184) (i120 X 8-184) ([130_ X I2·I90)

Std. VI plus 6 years further training R264 X 16-392 R264 X 16-392 R276 X 24-396

or schooling ([123 X 8-196) ([132 X 8-196) (i138 X 12-19.8} COUNTER-MEMORIAL OF SOUTH AFRICA 455

74. New scales for prof~ionally qualified Native teachers came into
operation on r April 1961 1•These scales, which are still applicable, are
as follows 2:

Gradd Qualifitatians Scale per annf4m

1. Lower primary Teachers certificate
Men .. R240 X 18-402 (i;I2o X 9-201)
Women ............. . R180 X 12-300 (i;go X 6-150)

2. Higher primary teachers certificate
Men .. R276 X 18-492 (.{138 X 9-246)
Women .......... . R204 X 12-37'.1([102 X 6-186)

3. Matriculation plus professional cer
tificate
Men· ............... . R36o X 24-720 ([180 X 12-36o)
Women ............•. R26o X 16-532 (_€130X 8-266)

4. Four degree courses plus professiona.l
certificate
Men .•..••......•... R396 X 24-756 (J:198 X 12-378)
Women ............. . R284 X 16-556 (_ll42 X 8-278)

5. Eight degree courses plus professional
certificate
Men ..............•. R432 X 24-792 (l~I6 X 12-396)

Women ............. . R308 X 16-580 (/)54 X 8-290)

6. Degree plus professiona.l certificate
Men ............... . R516 X 24-900 (:l258 X 12-450)
Women ............. . R364 X 16--652 (1)82 X 8-326)

All teachers in service at the date of coming into operation of the
above scales who held qualifications lower than the minimum pro
fessional qualification recognized for teachers (viz., the Lower Primary
Teachers Certificate, or Standard VI plus two years teachers' training),
3
are deemed , for salary purposes, to have such minimum qualification.
Persons entering the service after the said date without any teacher's
qualifications are paid a fixed salary, which is lower than the above
mentioned scales for teachers.

1 New salary scales for Native teachers, to operate with retrospective effect as
from a date in 1963, are at present under consideration.
2
These scales apply to ailqualified teachers in the Police Zone, to qualified
tea.chers at govemment comrounity schools in the norther11 territories and to
qualified teachers of those missions in the said territories which have agreed to
their schools being taken over by the Administration. ln the northern territories
male teachers with a Lower or Higher Primary Teachers Certificate teaching in
lower prim.ary schools are paid according to the scales applicable in the case oi
women.
3 By virtue of a resolution of the Administrator-in-Executive Com.utittee, adopted
in January 1961. 456 SOUTH WEST AFRICA

II. (OST-OF-LIVING ALLOWANCE

75. ln addition to their salaries, ail teachers receive a cost--of-living
allowance. The allowances payable per annum in respect of difierent
salaries for qualified teachers 1 are as follows:

Salary g,aup Ma,,,,ied men Sin1l1 men and wom,n

Rl68-180 ([$4-90) R146 (l73) R73 (!36 10$.)

R180-::.:oo(içio-100) R16o ([Bo) R8o ([40)
R200-220 (.!100-no) R176 (!88) R88 (l44)

R220-240 (!110-120) Rt92 (!g6) R96 (.!48)

R240-26o (l120-130) R208 (lro4) RI04 <!52)
R2fio-300 (,l130-150) R25fi (b28) R128 ([64)

R300-400 (,l150-200} R33fi (l168) R168 (l84)

R..too-432 (.l~:00-216) R348 ([r74) Rt+. (.l72)
R..t32-468 (b:16-234) Rt20 (.l6o)
R348 (.lr 74)
8..468-516 (!234-258) R348 (hH) Rzo8 (i54)

R516-720 (J;258-36o) R,t20 (l:210) R1o8 ([54)
R720-780 (.l:,6o-390) R420 (.l210) R72 (.l36)

R78o-840 (!390-420) R,t20 (l:210) R,f8 ([24)

R840-900 ([420-450) R420 (b10) i R24 ([12)
R900 )
(i4.50 R,f68 (iz34) - (-)

Ill. REGIONAL Au.OWANCE

76. Teachers in the Police Zone are paid a re~onal allowance in
addition to their salaries. The allowance is R8o (f40) per annum in
the case of manied teachers, and R.40 (t:20) per annum in the case of
unmarried male and female teachers. This allowance is paid to teachers

in the Police Zone because, firstly, their salaries were already higher
than those applicable in South Africa when it was decided in 1961 to
adopt the scales applicable in South Africa, and, secondly, because
the cost of livm~ is higher in the Police Zone than in the areas beyond
the Police Zone ·,

1 Vide para. 74, supra.
2 As ftom January 1963 Native teachen, at the Augustineum are paid an addi
tional an.nua! allowance of R100 <!50), COUNTER-MEMORIAL OF SOUTH AFRICA 457

IV. PR1Nc1rAL's ALLOwANcE

77. In addition to their basic salaries, principals of schools, including
those called "first teachers" at mission schools, are paid an annual
principal's allowance which is detennined in accordance with the enrol
roent of pupils at their schools. These allowances were increasedas from
Aprilr96r, and are now as follows:

En,olment A Uowance pe'f annum

25- 50 R24 (i12)
51-100 R-48 (.t24)

101-200 R72 (.t36)
201-300 R96 (.t-\8)

301-450 Ruo (i6o)
45t-6oo fü44 (i72)

6oo- fü6S (,l84)

78. At present the commencingincome of a roarried male teacher
in the Police Zone with the lowest recognized qualification-or with
what isdeemed to be its equivalent1is R512 (f256) per annum, cakulated
as follows:

Starling salary • . . .
Cast-of-livingallowance
Regionalallowance . . ~ii ( f~?oi

Total R512 (f256)

As compared with 1926, when the commencing income was R120
(f6o),there has, accorclingly, been an increase of 326.66 pet cent.
The maximum inccnne of a married male teacher in the Police Zone
with the lowest qualifications increased from R200 (:l)oo) in 1926 to
R830 ({415) in 1961 (i.e., saJary of R.402 (f201), plus cost-of-living
allowance of R348 (!174), flus a regional allowance of R8o (f40)).
This represents an increase o 315 per cent.

M. Expenditure by the Administration of South West Afrlca on
Native Education

I. THJ~POLICE ZoNE

79. The table below contains particulars of the expenditure on Native
education in the Police Zone in 192z and certain yea.rsthereafter.
The amounts inthe table do not include moneys spent by the Adminis-

1 Vidapara.74,W{wa.458 SOUTH WEST AFR.J.CA

stration in conmiction with education or training in institutions wlùch
do not fall undt>.rthe jurisdiction of the Education Department (for
example, training of nurses). Nor do the amounts in the table include
moneys spent by the various missions, particulars ofwhich are not known.

Per capita e:rpenditure
Year Amount spent on pupils al school

1922 R862 (!431)

1929/30 R25,810 (i12,905)

1939)40 R27,404 (b3,702) R.5.9.5 (.l2 19s. 6d.)
1949/50 R103,438 ([51,719) RI6.6o (l8 6s.)

1959/6o R299,994 (,!I49,997) R26.43 ([13 4s. 4d.)

1962/63 R405.432 (.!202,716) R27.45 (;tI3 14s. 6d.J

The figures in the above table show that over the years increasingly
larger amounts have been spent on Native education in the Police Zone.

From I939-I940 to 1962-1963 the per ca,Pitaexpenditure on Native
pupils increased by 36I percent. (i.e., from R5.95 to R27.45).

Il. THE NORTHERN TERRITORIES ÛUTSIDE THE POLICE ZONE

80. Until about 1945 only small annual subsidies were granted in
respect of certain mission schools, the reason being that the missions
in the northem territories did not comply with the conditions which
would have entitled them to the payment of subsjdies. After 1945,

although the missions were still not complying with such conditions,
larger subsidies weregranted.
In the table below particulars are pven of the amounts spent by the
Administration in r947-1948 and vanous years thereafter:

Per capita expenditu,-e
Yea,- Amount on pupils at school
1
1947/48 1b8,396 (.[9,198) R1.28 (12s. 1od.)

1949/50 H.21,624 (!rn,812) RI.46 (14s. Sd.}

1954/55 H.53,612 ([26,806) R2.84 ({I8s. 5d.)
1959/00 H.82,590 (l41,295) R3.Bo ({I18s.)

196o/61 U98,876 (!49,438) R3.78 (b 17s. 1od.)

1961/62 Ri69,6g5 (l84,847) R5.76 ({2 17s. 7d.)
RB.17 (i4 IS.8d.)
19fü:/63 1<25r,6Sg ([z2.5,844} COUNTER-MEMORlAL OF SOUTH AFRICA
459

The figures in the above table do not include amounts spent by the
various missions. During 19&> for example, the moneys spent by the
Roman Catholic and Finnish Missions on their schools in the northern
territories amounted to R127,490 (f63,745). No particulars are available
of the amounts spent by the other misslons.

The taking over by the Administration in 1961 of the Finnish Mission
lower primary schools in Ovamboland 1 immediately brought about
increased expenditure. The amount spent by the Administration in
1961-1962 (Rr69,6g5) (f84,847) on education in the northem territories
was 71 percent. higher than the amount spent in 1960, and expenditure
will increase as more mission schools are taken over by the Adminis,..
tration.

III. PER CAPITA ExPENDITURE ON NATIVE EotrCATION IN
SOUTH WEST AFRICA

81. In the aforegoing paragraphs separate expenditure figures were
given for the Police Zone and the northern territories. As an indication
of the percapita expenditure on education in the whole of South West

Africa (excludin~ the Eas·tem Caprivi Zipfel), the 1959-1960 figures
reveai the followmg:
Total population TotaJexpenditure
(r960 Census)
412,735 2 Police Zone: R.229,994 3
Northern terri tories : R 82,590 4

Expenditure per Capita of
Total PopulaJion in r960
Ro.93 5{9s.4d.)

N. Education of Natives in the Eastern Caprivi Zipfel
82. The control and administration of the area known as the Eastern

Caprivi Zipfel was, in terms of Proclamation No. 147 of r939 (S.A.),
vested in the South African Minister of Native Affairs (now designated
Minister of Bantu Administration and Development). Education in the
area is under the control of the Department of Bantu Administration
and Development, which has the benefit of the services of offi.cersof
the South African Department of Bantu Education in so far as education
in the Zipfel is concemed.

83. The history of education in the Eastern Caprivi Zipfel bas been

1 Vide para. 35,su.p,a.
i Vide para.57, su.p,a.
3 Vide para. 79,su.pra.
• Vide para. 80,su.pra.
' Comparative figures in the case of the Applicant States are given in the lntM~
naticmal Yearbooh of Edu.caticm, Vol. XXIV (r962), table· VI, p. 496:
Liberia: expenditure pet inhabitant of the population in 196r :1.6 U.S. dollars=
RI.14.
Ethiopia: expenditure perinha.bitantof the population in r959: o.6 U.S. dollars=
Ro.43. SOUTH WEST AFRICA

very rnuch like that in the most isolated parts in the northem areas of
South West Afrka. At the tune when South Africa assumed the Mandate,
the area was even wilder and less developed than Ovamboland and the
Okavango. The inhabitants made their first real contact with civilization
only in about 1920, when a missionary of the Seventh Day Adventist
Church came to the area. Missionaries were given a free hand in the
educational field,and in time they established afewschoolsin con unction
with their religious work. Most of the instruction given in these schools
as was the position in Ovamboland and the Okavango during the early
years-was, however, of a religious kind.
In 1934, when there were six mission schools in the area, the mission
aries asked for, and were given, pennission to establish 12 schools, but
a serious famine in the followingyear saw the closing down of all schools.
In 1936 there were six schools, viz., at Katima Mulilo, Sikanjakuba,
270epupils. The missionaries, however, had a difficult task in making their
influence felt, and as time went by they seemed to achieve less and less.
ln 1939 there were four schools with a total enrolment of 169 pupils.
By 1942 the enrolment in the four schools ha!i fallen to136, and in 1943,
when there was only one school, the Seventh Day Adventists ceased
their educational activities, and retained only a few Church sites.
The Capuchin Fathers of the Roman Catholic Church then entered
the field, and in the years that followed progress was made. The task
facing the Church-and civilization-in the area has, however, remained
an immense one. Even today the two Churches together have no more
than approximately 900 adherents out of a total population of 15,840 •

three years later four more followed. Inshe1953 ta school with classes up
to Standard V was established-the first schoolin the area with classes
beyond Standard II. The first govemment school, with lower and higher
prunary classes, and conducted on the same lines as the community
schools in South Africa and those recently established in the rest ofthe
Territory, was established in 1960, and it proved an immediate success.
Most of the Native parents concemed welcomed the opportunity of
playing a part in the education of their children, and in 1961 a second
lower primary community school was established.
At present there are 18 schools in the area. Higher primary classes
are offered at the aforementioned higher primary community school and
at both the boys' and girls' sections of the higher primary Catholic
school at Katima Mulilo. A Fonn I (i.e., one year after Standard VI)
class will be instituted at the Catholic School at Katima Mulilo as from
the beginning of z964. Hostel facilitieare provided for both boys and
girls at this schoûl.
85. Particulars of enrolment of pupils, and of teachers employed, are
given below.

1 Census figure in 196o (1mpublished). COUNTER-MEMORIAL OF SOUTH AFRICA

PtJPILS

I96I I96a I963
Sub-A 6oI 810 668

Sub-B 337 387 361
Std. l. . 234 294
345
Std. Il . I39 175 z39
-
Std. III. 85 1IJ IZ6
Std. IV. 70 72 6g
---
Std. V 34 62 65
Std. VI. - 50
3 Z7
1,503 1,940 1,923

Female pupils usually constitute about 25 per cent. of the total enrol
ment.

TBACt!J!:RS

39 Native teachers,2 of whom were women, and 3
European teachers

41 Native teachers,2 of whom were women, and 3
EUiopean teachers

Five additional teachers' post&have been created, and will be filled,
as from 1964.

86. The comparatively small number of female pupils, and teachers,
is due to the fact that girls often marry at an early age, and to send them
to school, or to keep them at school for any length of time, is regarded
as an unnecessary sacrifice by many parents. The women in the area are
required to work either at home or on the lands, and many parents
believe that by attending school their daughters become Jazy, and,
accordingly, less attractive to prospective husbands.
Apart from an unwillingness on the part of parents to keep their

daughters at school for long, many boys are also kept from school because
they have to herd cattle and work in the fields.
87. When due regard is had to the difficulties which have to be coped
with, and, in particular, to the short time which has elapsed since any
real start could be made with education in the area, there can be no
doubt that good progress has been made. The standard of work done in

the schools bas shown substantial improvement since the early __years
when most of the instruction was of a religious kind only. The mission
schools have since 1900 ,t their request, been using syllabuses based on
those prescribed by the ~antu Education Department for its schools in SOUTH WEST AFRICA

South Africa. An indication of a growing interest in cducation is the
fact that each of the two main tribes in the area has shown itself prepared
to grant lmrsarics from tribal funds to students who wish to be trained
as tcachcrs. H.cccntly thesc tribcs granted bursaries of Rroo (f50) a year
to two students 1aking tcachcr training courses in South Africa.
88. In 1960, according to the census taken in that year the Native
population of the Eastern Caprivi Zipfel was 15,840. The total school
enrolmcnt in that ycar was approximately 1,300. If it be assumed that
1
children ofschool age constitute 23 percent. of the total population ,it
follows that the school-age population in 1960 must have been approxi
mately 3,634 and that the percentage of children of school-age who
attendcd school was about 35.7. In 1963, with 1,923 pupils at school
out of an cstimated total population of 17,500, the percentage of schooJ.
age children actually at school is about 47.7.
89. A shortage of teachers has at ail times hampered development in
the area. Because of language difficulties, teachers cannot readily be

obtained from South Africa. Severa! South African Native teachers have
in the past been recruited for service in the area, but not one remained
for more than a. few months. AU found the area too isolated, and con·
<litions gcncrally too strange, to work there rather than in South Africa.
The only rcal field for recmitment has been across the Zambesi from
among the Silozi-spcaking people, who study in Rhodesia.n schools and
teacher-training schools.
At prescnt Re.spondent annually offers two bursaries of Rrno (f50)
a year for three or five years (depending on the duration of the course)
to deserving students who wish to take teacher-training courses at insti
tutions in South Africa and who are prepared to give an undertaking
to serve as teachers in the Eastern Caprivi Zipfel for a period of at least

three years after completing their courses. Students in the Eastern
Caprivi are, however, not keen to go to distant South Africa. Those
who wish to train as teachers, or to further their studies otherwise,
prefer to attend nearer schools across the Zambesi in Rhodesia, where
they find themselves amongst members of related tribes who speak a
language they understand. At present there are four Caprivi teacher
trainees at the Botswana Training School at Mafeking in South Africa,
two on government bursaries, and two on tribal bursaries.
90. The Church schools in the area are under the control of the

Cburch, but there is close co-operation between the ,Mission and the
Ban tu Affairs Commissioner stationed in the area. This officer also main
tains close contaçt with the government community schools and the
Bantu Education Department. An Inspector of the Department of
Bantu Education, stationed in Pretoria, carries out periodic inspections
of all schools in the area, and also conducts vacation courses for teachers.
gr. Ail education in the Eastern Caprivi is free. The Department of
Bantu Administration and Development subsidizes the Church schools
to the full extent of teachers' salaries and allowances on the scales set

out below, and an annual lump-sum payinent (at present R900 (f450))
is made in respect of the salaries of the three European teachers. The
Department also :.mbsidizesthe Church schools in respect of books and
school requisites to the extent of 50 per cent. of the actual cost thereof.

1 Vid~ para.57,sup,,a. '

COUNTER-MEMORIAL OF SOUTH AFRlCA

Each of the two community schools receives an annual grant of R200

{iroo) for this purpose.A Pfffcapita allowance of30 cents (3s.)per year,
based on the average yearly attendance, is paid to Church schools in
respect of school equipment and repairs to buildings, and an annual
subsidy is paid to the Church in respect of a school-feeding scheme at
Katima Mulilo. .
92. The salary scales applicable to teachers, operativeasfrom I April
1961, are set out below.

(a) Men and Women with no Professional Qualifications

{i)Standard IV. Rro8 (f54) per annum.
{ii) Standard V. Rr20 ~60) per annum.
(iii) Standard VI. Rr32 66) per annum.
(iv) Form I (Standard VII). Rr44 72) per annum.
(v) Junior Certificate
(Standard VIII) Rr68 (f84) per annum.
(vi) Senior Certificate
(Standard X).
R234 (fn7) per annum.

{b) Teachers with Professional Qualifications

(i) Std. IV plus2 years'
training. R132 (f66) per annum.
(Ü) Std. V plus 2 years'
training. R144 (f72) per annum.
(iii) Lower Primary Teachers'

Course Il (r year after
Form I). Rr56 X 18-246 (f87 X g--123).
(iv) Elementary Primary
Course (Rhodesian)
(2 years after Std. VI).
(v) Lower Primary Teachers' ·
Course III.
Men R240 X 18-402 (f120X 9-201).
Women R180 X 12-300 (f9oX 6-150).
(vi) Higher Primary
Teachers' Course.
Junior_Certificate plus
2 years Std. VI plus
s years.

Men R276 X 18-492 ({138 X 9-246).
Women R240 X l'.2-372 (!120 X 6-186).
(vii) Matriculation plusPro
fessional Certificate
(i.e., years).
Men R360 X 24--720 (fr8o X 12-360).
Women R260 X 16---532 (fr30 X8-266).
(viii) Four degree courses plus
Professional Certificate.
Men
Women SOUTH WEST AFRICA

(be)Eight degree courses plus
Professional Certificate.
Men R.432X 24--792 {f216 X 12-396).
Women R308 X 16-58o {f154 X 8-290).
(x) Degree plus Professional
Certificate
Men
Women

93. ln addition to their salaries, ail teachers receive a cost-of-living
allowance in accordance with the following scales:

Salary Group Annual Co:d.af-Living AUowance
Marrù:à men Unmarrù:d men

andwomen
R96-R108 R81.6o R.40.80
(MN54) (f40 16s.) (f208s)
R108-R120 R91.20 R45.60
([54-[60) ([45 12S.) ([2216s.)
.R120-R132 R100.8o R50.40
([50 Ss.)
(f6o--f66) {1)545.)
R132-R144 Rrro.40 R.45.20
(f66-f72) ([55 4s.) (f2212s.)
R144-R156 R120.oo R6o.oo
(f72-f78} (f6o) ([Jo)
R156-R168 R129.60 R64.80
(f78--f84) {[64 16s.) (!32 8s.)
R16~R180 R139.20 R69.6o
(f84-f90) ([69 I2S.) (!34 I6s.)
R1&>--.:.R200 R152.oo R76.oo
(f90-f100) ([76) ([38}
R200-R220 R168.oo R84.oo
([100-[1:ro) ([84) (f42)
R220-R240 R184.oo R92.oo
([Ir0-[uo} ({,92) ([46)
R240-R260 R200.oo R100.oo
([120-[130) (f100) ([50)
R260-R300 R240.oo R120.oo
([130-[150) ([120) (f6o)
R300-R400 R320.oo R16o.oo
(15o-f200) {[160) (f8o)
R400-R600 R480.oo R200.oo
(l2oo-f_wo) ([240) (froo)
R6oo-R700 R56o.oo R200.oo
{[300-[350) ([280) (f100)
R700 R640.oo R200.oo
(froo)
([350) <l320)

94. Principals of schools have since 1g61 received a principal's allow
ance. The allowance, determined in accordance with the number of
pupilsat a particular school, is as follows: COUNTER·M.EMORlAL OF SOUTH AFRICA

Number of pupils Allowance
-50 R24 {ln) per annum -

51-roo 8.48 ([24) .. "
101·200 R72 (.l36)
" "
201-300 R96 (.l48) " "
3ot-450 R120 (l6o) ..
"
451·000 R144 (.l72) " "
6oo- Ih68 (.l84) .. ..

95. The following amounts have been spent by Respondent on edu
cation in the Eastern Caprivi since 1944:

R f
1944/45 to 1946/47 . 6,570 3,285

1947/48 ..1949j50 •• . . . . . .. 7,Soo 3,900
1950/51 1952/53 9,700 4,850
"
1953/54 ,. 1955/56 . 12,944 6,472
1956/57 ,. 1958/59 . 15,116 7,558

1959/6o ., 196o/61 17,676 8,838
1961/62 9,632 4,816

196'.2/63 15,282 7,641

The aforementioned amounts of expenditure do not include moneys
spent by the missions or from Trust Funds. CHAPTER VI

VOCATIONAL TRAINING,WGHER EDUCATIONAND ADULT

EDUCATIONFOR NATIVES

A. Vocational Training

I. SCHOOLS

1. The syllabuses used in the primaxy schools in South West Africa
have a1ways made provision for training in manual subjects, such as
needlework, basketmaking, pottery, tinwork, woodwork and gardening.
Included in the curricu1um of lower primary schools at present are
weaving, claywork, needlework, scrapwork and gardening. In the higher
primary course training is given in gardening, treeplanting and soi!
conservation, woodwork, leatherwork, scrapwork and needlework.

Agriculture ii; offered as a subject in the junior secondary course at
the Augustineum and at Onguedira in Ovamboland. In the first year
of the said course, instruction in leatherwork, scrapwork and tinwork is
given to boys, while girlsdo needlework.
In the senior ~econdary course agriculture is offered as a subject.

II. SEPARATE INDUSTIUAL ScHooLs

2. The Rhenish Mission, with the financial assistance of the Adminis
tration, established an industrial school at Otjimbingwe (in the Otjim
bingwe Reserve) in 1924, and another at Krantzplatz (in the Gibeon
Reserve) in 1927. Trained European craftsmen were employed as
instructors, and for sorne time these schools functioned well, but the
ultimate results were disappointing in that students who had completed
their courses were loath to Ieave their own neighbourhood to take up
employment ehewhere. Interest gradually waned, and the school at
Otjimbingwe was closed down for Jack of support in 1940, and the school
at Krantzplatz, for the same reason, some years later.

JI!. INDUSTRIAL COURSES AT THE AUGUSTINEUM

3. In January 1956 separate industrial courses were instituted at the
Augustineum. This school offers a three-year training course in one of
three tractes, carpentry, tailoring and masonry, and is opeto all students
who have passed Standard IV. The instructors are properly qualified
Europeans. In addition to the practice and theory of the three main

subjects, the syllabus includes instruction in practical Afrikaans and
English, practica1 arithmetic, practical hygiene, singing, physical
training and religion. At the end of the course a theoretical and practical
exa1:1inationis conducted by the Education Department. . ..
L1ke the other courses offered at the Augustineum, this trammg
course is entirdy free, and students receive free board and lodging, COUNTER-MEMOR!AL OF SOUTH AFIUCA

free transport to and from their homes, and also a small sum as pocket
money every week 1•
Regard being had to the facilities offercd, the number of pupils that
enrol for the varions courses is disappointing. Many more students can

be accommodated than are taking the course. In rg6r, when there were
61 students in training, not a single student enrolled for the masonry
course. The poor support given the courses generally is shown in the
following table of enrolments in the last quarter of each ycar since 1956.

Nu,nber of pupils enrolled
Course of training 1956 :1957 :1958 :1959 :r960 196r 1962 1963

Carpentry ....... 5 1[ 16 15 (i 15 II 16

Masonry ........ 4 8 14 [3 3 0 0 0

'l'ailoring . . . . • . . . 10 13 18 23 19 28 22 17

IV. TEACHER TRAINING $CH00LS

4. As stated in Chapter V 2, there are four institutions at which

teacher training facilities are provided for Natives in South West Africa.
Two of these, the Augustineum at Okahandja and the training school at
Doebra, are in the Police Zone. The other two are at Onguedira and
Ongandjera in Ovamboland.
The Augustineum is a govemment institution 3,while the other three

institutions are mission training schools.
The course of training followed at the Augustineum and at Doebra
is as follows:

(a) principles and method of teaching;
(b) school organization;
(c J practical teaching ;
(d) black board work and writing;
( eJ Afrikaans ;

(f) English;
(g) Nama and Herero;
( h) history;
(i) geography;
(i) nature study (including soil erosion, gardening, treeplanting);

(k) hygiene and first aid;
(l) religion ;
(m) arithmetic;
(n) singing;

(o) physical training;
(P) practical work (woodwork, leather work, building, needlework).
The syllabuses used in the training schools in Ovamboland are not

1 Vide Chap. V. paras. 29 and 47, supra.
~ Para. 21:.
' Vide Chap. V, para. 24, supra. SOUTH WEST AFRICA

quite the same as in the training schools in the Police Zone, but are
gradually being brought into line therewith. As already stated 1, the
training schools in Ovamboland willbe financed by the Administration
as from r964 on the same lines as the Augustineum, and the intention is
to establish vocational training sections in conjunction with teacher
training, as at the Augustineum.
The final teachers' examinations at the Augustineum and at Doebra
are partly internal and partly extemal. Internai examinations are con
ducted in the followin~subjects: arithmetic, history, geography, nature
study, health educatlon, Bible study and practical work. Question
papers and scripts in these subjects are moderated by the Education
Department. The examinations in the other subjects are external, and are
conducted by th{:Examination Committee of the Education Department.
In Ovamboland the final examinations at the training schools are
conducted interr.ally, but examination questions and scripts are moder
ated by the Inspector of Native Education. As from r964, when the
schools will be fmanced by the Administration, the system will be the
same as in the Police Zone.
The aforementioned schools are at present suffi.dent to cater for
ail Natives who wish to be trained as teachers in the Territory. In fact,
many more stud,mts can be accommodated at these schools than attend
them at present.

V. FACILITIES FOR VOCATION AL AND TECHNICAL TRAINING IN
. SOUTH AFRICA

5. Native students who wish to take technical or vocational courses for
which no provision is made in South West Africa, can obtain financial
assistance in the form of loans and bursaries from the South West
African Administration 2•
Students who have passed Standard VIII, IX or X may enrol at
agricultural schools for Bantu in South Africa, and the Administration
is prepared to grant financial assistance to ail suitable applicants who
wish to receive training at such institutions.

VI. NURSING

(a) Training of Nurses

6. Before r960 there were no facilities for the training of general
nurses (European or non-European) in South West Africa. In that year
a training school for European general nurses was established at the
Windhoek State Hospital.
Prior to r960 steps had been taken to detennine whether it would
be feasible to introduce similar courses for non-European girls with the
necessary qualification (i.e., at least Standard VIII), but the results
showed that the introduction of such a training scheme in South West
Africa would not yet be warranted. There were two Native girls with a
Standard VIII certificate, but they were not interested in nursing. There

l Chap. V, para. 4c.
• Vide paras. 24-25, in/ra. COUNTER-l!4El!40RlAL OF SOUTH AFRICA

were 15 Coloured girls with the necessary qualifications, but most of
them gave preference to teacbing.
The Administration consequently set afoot a scheme for training

non-European girls as auxiliary nurses, and since 1959 training schools
for such nurses have been established by the Administration at the
state hospitals at Windhoek, Grootfontein, Otjiwarongo, Gobabis,
Walvis Bay, Keetmanshoop and Luderitz 1•
In the northern territories outside the Police Zone the Finnish Mission
Hospital at Onandjokwe was approved as a training school for auxiliary
nurses by the Nursing Council in 1961. This hospital had been training
auxiliary nurses for 30 years. At present there are 27 pupil auxilia:ry
nurses in training at this centre. The hospitalat Runtu, in the Okavango,
has also applied for recognition as a traming school for auxiliary nurses.

7. The prescribed course for auxiliary nurses is the same as that
iollowed by the Transvaal Provincial Administration in South Africa for
the training of non-European auxiliary nurses. The course as originally
introduced in South West Africain 1959 took three years to complete,
but the period bas since been reduced to 18 months. Certificates granted
to qualified auxiliary nurses by the South West African Administration
are recognized by the South African Nursing Council.
8. When the scheme for training non-Euro~n auxiliary nurses was
instituted in 1959, the response was poor. In Windhoek, for example,

there were only 29 applicants for 69 posts, and nearly a third of th~
applicants were from South Africa. Facilities and opportunities for the
training of non-European auxiliary nurses in South West Africa are
ample, and even more will be created when the new state hospital at
Okatana in Ovamboland, which is now in the course of construction, is
completed.
The minimum scholastic qualification for non-European girls to
train as awdliary nurses, as originally laid down, was Standard IV. Jt
was soon found, however, that girls with only a Standard IV certificate
could not cope with the theoretical part of their training, and most of
the Standard IV girls have, despite ail possible persona} attention by
the teaching staff, eliminated themselves. As froxn 1961 the minimum

requirement for admission to the course was accordingly raised to
Standard VI. Since the inception of the course, 97 girls have qualified
as auxiliary nurses.
9. The Administration is keen on offering training as gerieral nurses
also to non-European girls, and will do so as soon as there is a sufficient
number of students of the required educational standard • In the mean
time, non-European girls with the necessary scholastic qualifications
are going to South Africa for training as general nurses. Since 1958
approximately a dozen Coloured girls with the necessary minimum
qualifications have proceeded to South Africa for training. Two Herero

girls have already completed their training as general nurses in South
Africa, and at present two others are following a nurses' course in South
Africa.
The Administration's experience is, however, that few of the small

1 All non-Eutopean hospitals in the Police Zoneare state hospitals, and all
mi2sVid6hpara.6, sup,a.tate-aided.470 SOUTH WEST AFRICA

number of Native girls who pass Standard VIII are interested in nursing
as a career, and the experience of the Finnish Mission in Ovamboland
is the same. In 1961, for example, one girl passed Standard VIII in
Ovamboland, but she preferred to take up teaching. In 1962 there were
three girls in Standard VIII, but not one was interested in becoming
a nurse.

m. At present the state hospitals in South West Africa provide
1,540beds for non-Europeans and 182for Europeans.
There are 71 posts in state hospitals for trained non-European general
nurses and 196 for auxiliary nurses. At r.resent there are 64 pupil nurses
from the Territc,ry in training as auxiliary nurses, and also 26 pupil
auxiliary nurses from South Africa. Of the 71 posts for trained non
person from the Territory.9 are filled, and of these only one isfilled by a

to nurses in the Territory has been the shortage or absence of persons
academically qualified for training as nurses. The greater advancement
of the members of the White group in this field arises inevitably and
solely from the differences in educational background-in view of which
the interest thus far displayed by the non-Wlûte groups in the nursing
profession must probably not be regarded as entirely unsatisfactory.
The response to the opportunities offeredhas been slower than was hoped
for, but probabl.y no slower than could really have been expected.
Modern health education in particular is something entirely foreign to
the traditionallifof theindigenous groups, and something to which they
can only be conditioned gradually by a process of social evolution.
However, with the opportunities being offered, and to be offered in
future, these groups will continue to be encouraged towards providing
a suffi.dent forceof properly trained nurses to cater for the needs of their
respective communities.

{b) Registrai.ionof Nurses

II. Inasmuch as Applicants deal in their Memorials 1 with certain
provisions of the South African Nursing Act, 1957 (Act No. 69 of 1957),
which is applicable in South West Africa, Respondent pro:posesto give
a brief account in this section of the reasons for differenbation in the
Act between the different population groups in the nursing profession.
12. As in South West Africa, the non-White groups of South Africa
originallyhad an entirely different attitude from that of the White group
towards modern knowledge of disease, medicine and health services.
The scientific approach of the White group, in common with that of
other developed nations, was absent in their case and for a long time
they could not be interested in health matters as understood by the
White group. This was particu]arly true of the Bantu groups. In these
circumstances it was inevitable that the medical profession and its
auxiliary services in South Africa and South West Africa should initially
have been organized and controlled entirely by members of the White
group, and that organized nursing and health services developed mainlyin

1 1, pp. 155-156. COUNTER·MEMOR[AL OF SOUTH AFRICA 4JI

the area of the White group and in accordance with the views and idea.ls
of that group.
13. As in the case of education, the mission churches were the first to
take active steps to influence the non-White groups to change their

traditional attitudes to medicine and health services. Thereafter the
State began to play its part, and, with the assistance of the schools,
vigorous efforts have been made to educate these groups to accept
modern scientific views about health and health services.
At present there are 27 training centres for Bantu nurses in South
Africa, 10 training schools for midwives, 1 for mental nurses, and u
training centres where Provincial Nursing Certificates can be obtained.
These institutions are of a modern type and of a high standard 1•

14. In regard to the Coloured group in South Africa, equally remark
able progress has been achieved in recent years.
At present there are in the Cape Province a number of well-equipped
Coloured hospitals, nursing homes, clinics, etc., where almost the entire
staff consists of Coloured doctors, matrons, sisters and nurses.

15. Over the years increasingly large numbers of non-Europeans
have joined the nursing profession in South Africa. In 1933 only 2 per
cent. of the entries for the final examination for general nurses were
non-Europeans. In 1938 the percentage was 18; in 1948, 36; and in 1960,
43.
In 1960 and 1962 the numbers of persons on the South African registers

for nurses were as follows:

W/1.ites Coloureds Natives Total

1960 · 1 17,947 I,002 5,147 24,096

1962 · 1 19,24-4 1,240 6,944 27,428

16. In view of the. considerable differences in the 'social background,
habits and customs of the varions population groups, it has always been
Respondent's pollcy to provide separate hospitalization and health
services for the respective groups, and to make provision for each of
the groups to be served as far as possible by its own members. At first,
as may readily be imagined, the White group provided such services for

ail the groups. But as the other groups advance in this sphere, their
members are given preference in the service of their own groups. Many
members of the non-White groups are still working under the guidance
of better·qualified members of the White group, but Respondent's policy
envisages that when they have gained sufficient experience and a mature
sense of responsibility, complete control of their own health services will
be handed over to the respective groups themselves.

17. Although the courses for non-White nurses have always been the
same as those for members of the White group, it has been found
necessary to provide separate training facilities for them.
The reasons for providing separate training facilities for the different

1
Vide The Prog,ess of the Bantu Peoples tawards Nationhood (S.A. Department
of Information),p. 52.472 SOUTH WEST AFRICA

groups are basically those which have been dealt with in Chapter IV
above relative to education generally, coupled with the additional fact,
as faras nursing isconcerned, that provision, in accordance with Respond
ent's policy of :,eparate hospitalization and health services for the
different population groups, virtually makes separate training inevitable.
From füe point of view of the nursing profession there are also parti

cular considerations motivating separate training of nurses. In memor
anda submitted to, and evidènce heard by, the Parliamentary Select
Committee on the Nursing Amendment Bill, later passed as the Nursing
Act, 1957 {Act N,J. 69 of 1957) 1,the following considerations were, inter
alia, raised:
(i)That by reason of the differences in the social, educational and
cultural background and development of the various groups, the
average Native nurse takes longer than the average European
nurse to complete the same course, and it would be doing an in

justice to the Native nurse if she were treated on a par with the
European nurse as far as her training is concerned.
Although the training, syllabuses and examinations are the same
for all sections, the period of training for the Native nurse is six
months longer than that for the European and Coloured nurse.
Experience has shown that the Native students need more time
to adapt themselves, and the first (additional) six months is devoted
largely to tha t purpose.
(ii) That in the training of nurses consideration must be given not only
to the physical, but also-and particularly-to the psycholo{pcaland
socialneeds ofthe patient. Whereas the psychological and social needs
of patients differ from group to group, it is impossible to do justice

to the tuition of nurses from different groups-having entirely
different social, educational and cultural backgrounds-if they are
put into and trained in one class.
(iii) That in the case of the non-European, and particularly Bantu,
nurses, more detailed attention is necessary in respect of certain
aspects of tratning, e.g., control and guidance in fostering responsi
bility in their professional work.
18. With regard to control and registration of nurses, each province
of the Union of South Africa had, prior to 1928, its own medical council

in which the control of the Nursing and Midwifery professions vested.
In 1928 the control of nursing and midwifery in the Union was placed
under the South African Medical and Dental Council by the Medical,
Dental and Phannacy Act, 1928 (Act No. 13 of 1928). At that time the
number of nurses and midwives, overwhelmingly members of the White
group, did not justify the establishment of a separate council for these
services. With the ever-increasing demand for. nursing and midwifery
services, however, control by a separate body became desirable. The
result was the enactment of the Nursing Act, 1944 (Act No. 45 of 1944).
This Act set up a Nursing Council, which was intended to serve the
interests of the public as a whole, and a Nursing Association, which was
to look after the interests of nurses and midwives.

Under the Nursing Act of 1944 no distinction was made between

1 Vide S.C. 6-r955 and Act No. 6g of ·1957, in Statuùs of the Union of South
Aj~ica I957,Part li,Nos. 45·83,'pp. 1086-1133. COUNTER-MEMORIAL OF SOUTH Af'RICA 473

Europe.an and non-European nurses in any respect whatever. There was

only one register, and ail members of the Nursing Association were
entitled to vote in the election of members of the Nursing Council and
of the Board of the Nursing Association.
The aforementioned Act had not been in operation for very long
before certain problems arose which indicated that differentiation be
tween the groups was desirable. These problems were dealt with in
testimony before the Select Cornmittee referred to in paragraph 17
above. Sorne of them can be briefly indicated as follows.
(i) ln practice it appeared that non-European rnembe.s of the Nmsing
Association were diflident about expressing their views in joint
meetings witb their European colleagues, and nursing branches in

fact proceeded to form separate European and non-European
sections, which held separate meetings. lt was found that in their
separate meetings the non-European nurses discussed their problems
much more freely and satisfactonly than when they met as a rnînor
ity group amongst a large nurnber of Europeans.
(ii)Experienced members of the profession expressed the view that
separation in the training of the groups naturally made for separation
in registration of nurses of the different groups, and that the ultimate
aim therefore should be separate and self-controlled nursing pro
fessions for the various groups. At the same time, however, these
rnembe.s considered that membe:rs of the non~European sections
had on the whole not yet reached a stage of sufficient maturity and
responsibility in the profe55ion to control autonomous professional
organizations of their own. For some time the non-European sections

would require the assistance, guidance and supervision of the
European section, not only in their training as nurses but also in the
control of the profession through its organizations. This should be
temporary and transitional only, and steps should be taken for the
further advancement of the non-Europeans to ultirnate self-control of
their merobers in the profession.
(iliFor the reasons roentioned in sub-paragraph (ii)above, it was
considered inadvisable that rnembers of the non-European sections
should be eligible for election to the Nursing Council, a body which
not only controls the profession but sha~ itseducational policies,
and through its Committees takes disc1plinary action in cases of
transgressions. It was felt that in the transitional stage the interests
of the non-European nurses would be best served if they were
represented on the Council by more experienced members of the

White group, and that such an arrangement would also avoid
possible friction inthe profession.
19. To overcome the difficulties referred to above, and to provide
for a system which will operate until the non-European groups have
reached a stage of development where they can exercise the control and
mana~ment of their own professional organizations, the Nursing Act,
r957 (Act No. 69 of r957), makes provision for. inter alia:

(i)the keeping of separate registers and rolls "in respect of white
persons, coloured persans and natives"·l;

1 Act No. 6g of 1957, sec12 (4),in Slatutes otheUni011of South Africa -1:957,
Part II, p. uo4.474 SOUTH WEST AFIUCA

(ü) the appointment or election of White persans only as members
of the South African Nursing Council 1, or as members of the
Board of the South African Nursing Association 2;
{üi) the establishment of an advisory board for Natives and an advisorr.
board for Coloured persons, which boards may advise the council

on such matters relating to nurses or midwives who are Coloured
persons or Natives, as may be referred to such boards by th~ Council,
or upon such matters as any board may wish to report to the
Council3;
(iv) the division of membership of the South African Nursing Asso
ciation into three separate categories. viz., "white persons", "col
oured persons" and "natives", and the holding of separate meetings
4
for these cakgories •
20. The numbt~r of trained nurses in South West Africa is too small
to warrant the establishment of a separate nursing control organization
for the Territory. ·
In the whole of South West Africa there is, at present, only one trained
non-European general nurse (a Sister) who hails from the Territory.

Otherwise the onJy South West African non-European nurses affected by
the Nursîng Act c,f1957 are those who are in training or have qualified as
auxiliary nurses.
Under the provisions of the said Act, nurses of the Territory, both
European and no:n-European, are benefited in that, inter alia:

(i)they may avail themselves of the facilities and the organization
of the Nursing Cormeiland the Nursing Association;
(ü) they receive the benefit of the Nursing Council's training regu
lations and e1.:aminationfacilities; and
(üi) they can, by registering with the South African Nursing Council,
extend their possible field of employment to the Republic .of South
Africa and to those other countries with which the Nursing Council
bas reciprocal registration agreements.

B. Higher Education

J. FACILITIES FOR HIGHER EDUCATION

21. There are no facilities in South West Africa for higher education.

The number of students who qualify for a university education is not
sufficient to warrant the establishment at thls stage of any institution
for such education in the Territory.
Over the years 1960 to 1962 the number of students who attained
the necessary qualifications for admission to a university was as follows:

1g60 1g61 1g62
Native 2 2
l
Coloured 7 5 3
Europeau 157 1 99 156

165 206 161
--
' Act No. 6gof 1957, op.cit., sec. (1)(c), p. 1092.
1 Ibid.,sec.35 (4),p. 1120.
3 Ibid., sec. I6, ppI108-1IIO,
4 Ibid .• sec. (1),p. III8. COUNTER·MEMORIAL OF SOUTH AFRICA 47$

And, naturally, not ail who attained the necessary qualifications were
desirous of taking a university education.

22. The establishment of a University or university college is not a
matter that can be undertaken lightly. A certain stage of development
bas first to be reached, and there must be a sufficient number of students
with the necessary school education, ability and desire for further study
before such a step can be contemplated. In other words, in circurnstances
such as have-erevailed, and still prevail in South West Africa, and to a
large extent in many parts of Africa, universities can only corne after a
long process of development.
The problem of financing a university in underdeveloped countries is
one which has presented itself in many parts of Africa. In this regard
Kimblesays:

"Thereasonsthatmay beadvanced for the slowprogress of second
ary education apply even more strongly to college and university
education. It is at once the costliest and most demanding of all
scholastic enterprises. It is also, from the standpoint of priorities, the
least urgent. For many years the number of Africans. capable of
taking advantage of such education was so srnall that governments
and mission boards found it much cheaper to send those who did
measure up to the required standards to foreign universities than
to attempt to provide local facilities. Those colleges that did offer
post-secondary courses of instruction, for example Achimota
College in Ghana, were habitually hard-pressed for funds and
faculty 1."

Professer W. A. Lewis, Principal of the University College of the
West Indies, in a paper entitled "Education and Economie Develop
ment'' which he prepared for the Conference of African States on the
Development of Education, held at Addis Ababa from I5 to 25 May I961,
included the following comment on this subject: ,
"Absence of a university in the territory is not fatal to a small
country, since it is cheaper to send students to universities in Europe
than it istotrain them in small universities at home. To be econom1c,
a Iiberal arts school of the American type needs 500 students.

while a British type combination of Faculties of Arts, Science and
Social Science needs about I200 students. Medicine to be economic
needs 300 students and agriculture and engineering need 200 each.
Most of the new universities founded in Africa since the war have
costtheir countries two to three times as much per studen t per annum
as it costs to maîntain a university in Europe. The larger African
cowüries need universities of their own, but the smaller African
countries would be wiser to share university facilities on a regional
basis, where this is feasible. (As a rough guide,in an African country
of I,Ooo,ooo inhabitants, the number of persons aged 2I is about
20,000. If 0.5 percent. of these go to a university, the university will
have only about 400 students.) The most important economic
advantage of having a university on the spot is that one assembles

in the teaching staff a group of scientists and scholars who do
research on local problems, and play a part in the life of the commu
nity. This justifies spending more than it would cost to send the

1Kimble, op.cit., ppl'H-122.476 SOUTH WEST AFRICA

students to foreign countries; but these same advantages can be
achieved by èstablishing universities on a regional basis, at least in
the beginning while the number of students involved is still small 1,"
23. Native students of South West Africa who desire post-matricula
tion education can, like Europeans and Coloured students, proceed to
institutions for higher education in South Africa.

Higher education facilities for Native students are available at several
institutions in South Africa. They are:
(a) the Univernity College of Fort Hare, at Fort Hare, Cape Province;
(b) the University College of the North, Turfloop, Pietersburg, Trans-
vaal;
(c) the Univenity College of Zululand, Ngoye, Natal;

(d) the Medical School for non-Europeans of the University of Natal.
AUfour institutions are residential institutions.
The standard of work done at the university colleges is in no way
inferior to that at European universities. The members of the various
lecturing staffs are well-qualified European and non-European pro
fessors and lecturers. Many of the European members of the staffs
previously held positions at European universities in South Africa.

Native students, like Europeans and Coloureds, can also enrol at the
University of South Africa, which is not a residential university, but
conducts ail its teaching-save for vacation courses-by means of
correspondence.
Subject to Œrtain conditions, Native students may also, with the
written consent of the Minister of Bantu Education, enter European
universities in South Africa 2•
The facilities for higher education in South Africa-both for its own

Bantu population and the Native population of South West Africa
compare very favourably with the facilities for higher education in other
African territories. A reference to the position in regard to universities
and nniversity colleges in the Non-Self-Goveming Territories of Africa
south of the Sahara shows that in 1958 there were ten universities,
university colleges or institutions of an equivalent status to serve a total
population of approximately roo million 3•
In South Afr.ica a population of about IO million Bantu is served by

five institutions for higher education, and all these facilities are also
available to the Native population of South West Africa.

Il, FINANCIAL ASSISTANCE FOR HIGHER EDUCATION

24. Native students, like Europeans and Coloureds, can apply to the
Administration for loans to enable them to study at institutions m South
Africa. There i.En .o limit to the number of loans that may be granted,
and the Administration would welcome more applications than there
have been in the past.
Few Natives have matriculated in the Territory. In 1962 only two

applications for assistance were received. Both applications were wanted.
One of the students is now busy on further studies, but the second one

1Unesco/ED/181, Annex IV, p. 78.
2 Vide Act No. 45 of 1959, sec31,in Statutes of the Union of South A/f'ica I959,
Part I, Nos. 1-6o.p. 5o6.
3 Vide U.N. Doc. ST/TRI/SER. A/16, p. 66. COUNTER•ME:MORIAL OF SOUTH AFRICA 477

bas not made use of the assistance offered. This was the second occasion

on which the latter bad applied for, and was granted, a loan without
making use of it.Since 1962 one further application was received from,
and granted to, a Native student presently studying at the University
College of the North, Pietersburg, South Africa. Because so few appli~
cations are received, no real regard is at present had to merit, and loans
are consequently made to applicants who would on merit have been
rejected if they had been Europeans.
The loans are usually for an amount of R150 ([75) per year for each
year of the course proposed to be followed, but there is no fixed limit
to the amount. Loans are similarly available to students who have not
matriculated but wish to take a course for which no fadlities are avail·
able in the Territory, for example, a teacher in service who wishes to
follow a special course at an institution in South Africa.

25. The Administration annually awards a maximum of six bursaries
(grants) of I4oo·S00·600 (l200.250.300) to students who wish to take
a secondary teacher training course, and a similar number of bursaries
of the same amount in respect of courses other than teacher training.
These bursaries are open to ailstudents in the Territory, and are awarded
on merit. In practice all applications for loans from non·European
students are carefully scrutinized to see whether the applicants cannot
qualify for any of these bursaries, but thus far no Native student has in
any way merited such an award.

From the beginning of 1963, bursaries of R.to per annum have been
made available specially for Native students who take post-matricula·
tion teacher training courses in South Africa. At present there are three
such students studying in South Africa on loans granted them by the
Department of Education, and in each case R.40 of the loan will now
be regarded as a free grant.
As from January 1964, a bursary of Riso-175-175-200 {f75-87.5-87.5-
100), or for the normal duration of the particular course followed, will
annually be made available specially to a deserving Native student who
proposes to follow a post-matriculation course in South Africa.
The children of all persons in the service of the South African Railways
who are full.time students at any university or other educational instÎ·
tution in South Africa are entitled to free rail transport to and from
such institutions at the beginning and end of each quarter. To all other

scholars and students who are the children of residents in South \Vest
Africa rail transport to and from South Africa is provided at reduced
rates.

III. SEPARATE UNIVERSITIES FOR THE DIFFERENT PoPUU,TION
GROUPS IN SOUTH AFRICA

26. Inasmuch as the Applicants draw attention in their Memorials 1
to Respondent's policy of providing separate universities for the different
population groups in South Africa, Respondent proposes to give a
bnef historical account of the development of separate university facili
ties in South Africa.

27. Higher education in South Africa developed from very small

i I, p. 157. SOUTH WEST AFRICA

beginnings during the period of colonial rule in the old Cape Colony,
now the Cape Province of the I<epublic of South Africa. As was only
natural, regard being had to the respective levels of development of the
European and non-Europcan population groups at the time, the first
facilities for education ona higher Jevel than was nonnally oflered by

schools in the Colony were crcatcd by Europeans for European students
who desired such education.
The actual bcginning of a systern of higher education may be traced
to the year 1829, when the South African College was established at
Cape Town. This was nota univcrsity in the modern sense of the word,
although some post-secondary school courses were offered. and it was
not really until the establishment of the University of the Cape ofGood
Hope in pursuance of the University Act of 1873 that any real advance
towa.rds the provision of adequate facilities for higher education was
made.
The aforementioned Universit? was succeeded by the University of
South Africa as from 2 April 1918. and at the same time the University
of Cape Town (whic:hhad meanwhile grown out of the institution referred

to in the paragraph abovc) and the University of Stellenbosch (which
succeeded the Victoria College, established in r88r) became separate and
independent universities in terms of Acts of Parliament passed in 1916.
The University of South Africa was originally intended to group
together as constituent c:ollegesa number of institutions of semi-univer
sity status, and to assist in their development into universities of full
status which would serve different parts of the country. As a result of
this policy, the Transvaal University College in Pretoria became the
University of Pretoria as from 1930, and the South African School of
Mines and Technology in Johannesburg became the University of the
Witwatersrand in 1922. By a similar process of development elsewhere
there came into being the independent University of the Orange Free
State, the Rhodes University at Graharnstown, the University of Natal,

and the University of Potchefstroom.
The University of South Africa, which no longer has constituent
colleges, has continucd to existas an examining body and for the purpose
of conducting correspondence courses ofmiiversity standard for students
(amongst whom there are many non-Whites at the present time) who
are unable to make use of facilities offered at residential institutions.
zS.AH the universities mentioned above are autonornous institutions,
and, although subsîdized hy the State, conduct their own affairs through
theîr governing Councils and Senates.

The University of South Africa has a mixed student body, but at
the _other eight universitics the vast majority of students are ·Whites.
The Universities of Pretoria, Potchefstroom, the Orange Free State and
Stellenbosch are attended mainly by Afrikaans-speaking students, and
those of Cape Town, the Witwatersrand, Natal and Grahamstown,
mainly by Englfoh-speaking students.
It will be seen from the foregoing paragraphs that the development
of higher education for the two main W"hitegroups in South Africa has
been a process of gradual growth ~rom -..:erymodest beginnin&s to. t~e
elaborate and modem system wh1ch ex1sts today, where umversities
afford education in the arts and sciences, and professional training in
medicine, dentistry, agriculture, engineering, economics, law, etc. COUNTER·MEMORIAL OF SOUTH AFRICA 479

29. The fust step towards providing Natives with education of a
higher level than that offered at the ordinary schools was taken in 1841,
when Lovedale Institution was opened as a so-called "seminary of
higher learning", and a "College Department" was established 1• This
Institution, it should be pointed out, was nota university in the modern

sense of the word. There was, at that iune, no demand for a university
for the Native population of South Africa. Lovedale Institution was, in
fact, a state-controlled high school, and it was graded as a first-class
school by the Cape Education Department 2• The College Department,
however, offered a course which was more advanced than the courses

nonnally provided for at schools. In 1872 this course of study included
history, English literature, mathematics, philosophy, political econo
my, Latin and Greek 1• This course was taken by Europeans as well as
by a few Natives, but history records that few Natives completed it 1 •
In fact, it seems clear that the Institution as a whole faiii:(1to achieve
the goal which it had been intended to achieve in regar J to Native

students. The Principal of the Institution declared in r908 that-
"... the present situation was one of miserable failure at Lovedale.
Out of sixty or seventy young men who had joined the school higher
classes that year, not so many as l'ivewould ever reach even matricu
lation, and of course matriculation was only the beginning of a

University course; not one of them could hope to reach the true
goal 3."
The failure of the Institution has been ascribed to the fact that the
,courses were designed for Europeans, and not for pupils who came from

a completely different cultural and social background. In this regard
an educationist, C.T. Loram, says:
"... the state of affairs ... is due to the imposition of a hard-and
fast curriculum, designed for European pu-pils, upon the children of

another race differing in environment, institutions, mental develop
ment, and future occupations ."
Loram also points out that the Native students entering the College
were so deficient in English that they could not understand the matter
5
of the text-books •
30. The ne:.:t landmark in the history of hlgher education for Natives
was the publication in r905 of the report of the South African Native
Affairs Commission of 1903-1905. The members of this Commission
represented all the colonies in South Africa, Rhodesia and Basutoland,

and, chiefly because of the general shortage and poor quality of Native
teachers, they recommended the establishment of-
"... some central institution or Native college which m1ght have the
advantage of the financial support of the different Colonies and

Possessions, and which would receive Native students from them
all6".

1 Loram, C. T.,The Education of t~ Soulh A/rican Natiue (1917),p. 296.
2 lbià.,p. 129.
3
Ibid.,p.297.
•5 Ibid.,footnote 2.
Ibid.,p.130.
6South African Nati.1JeA(jairs Commission r903-5 {190-4-1905},Vol. l,Report
of the Commissi01t,para. 347, p. 74. SOUTH WEST AFRICA

The immediate advantages of such a scheme, the Commission stated,

appeared to be--
"... the creation of adequate means for the efficient and unifonn
training of an increased number of Native teachers, and the provision
of a course c,fstudy in this country for such Native students as may

desire to present themselves for the Higher School and University
Examinations 1".
A scheme w~ thereupon launched to establish such an institution,
and, to test the opinion of the Natives of South Africa, a convention

was held at Lovedale in December 1905, at which 15:2Natives, repre
senting "65 districts and countries" were present 2•The convention was
unanimous in supporting the scheme, and promises of substantial finan
cial aid came from various sources. At a second convention, held at
Lovedale in 1908, it was decided to establish the proposed College at
Fort Hare, about a mile from Lovedale. It later appeared, however,

that much of the financial aid previously promised would not be forth
coming, and after some delay the College, called the South African
Native College, was opened at Fort Rare in July 1915, with a class pre
paring for the Cape Matriculation, a class in agriculture, and a class in
theology 3•
This college, established as a result of co-operation between certain

individuals, the South African Govemment, the Native Councils of the
Transkeian Territories and Basutoland, and certain mission societies,
was primarily intended to serve the Bantu of South Afrlca and neigh
bouring territories. At that time, itmay be pointed out, there were also
teacher training ~nd industrial schools to cater for the needs of the
Native population 4.

Educationists at the time, having learned from the experience of
Lovedale, expressed the view that too great emphasis should not be
placed on purely academic subjects, and that the College should aim at
practical education.

31. Although primarily intended to serve the Bantu, the College at
Fort Hare also admitted, until fairly recently, a certain nurnber of
Coloured and Inclian students. Their numbers had always been small,
however; so, for example, there were 23 Indian and 36 Coloured students
in I949, as against 284 Bantu students 5• Separate provision has sînce
been made for Coloured and Indian students at Cape Town and Durban
6
respectively •
The Hlgher Education Act, 19:23 (Act No. 30 of 1923) placed the
Colle~e of Fort Rare under the control of the Department of Education,
and, m terms of the provisions of Act No. 15 of 1?49, it was temporarily
affiliated to Rhodes University at Grahamstown . As was stated by the

Council of Rhode; University:
"The affiliation is considered to be a temporary measure which

1South African Nalive AQairs Commission z903-5 (1904-1905),Vol I,Rtporl of
the Commission, para. 347, p. 74.
z ·Loram, op. cit.,p. 298.
' Ibid.,p. 300.
4 Ibid.,pp. 132, I51.
' Vide U.G. 53-1951, table LXXIII, para. 380, p.6g.
1 Vidi,para. 38,infra.
1 Act No. 15 of 1949,sec. 33,in Statutes oftheUniClflof South Africa z949,p. 126. COUNTER-MEMORIAL OF SOUTH AFRICA

brings the Native College academic standards under the control of
the proposed Rhodes University until such time as the Native

College can be established as a completely independent institution
for non-Europeans 1."
During the early years, when the numbers of Bantu, Coloured and

lndian rnatriculants who desired a University education were small, it
was found necessary, purely as a temporary measure, to admit those
students who did not wish to go to Fort Hare, or who wished to take
courses for which no provision was made at Fort Hare, to certain Euro
pean Universities, i.e., those of Cape Town and the Witwatersrand,

where non-White students attended lectures with European students,
and also that of Natal, where separate lectures were arranged for 1ndian
and Bantu students.

32. The position in regard to higher educational facilities for Bantu
students in South Africa before the passing of the Extension of Univer
sity Education Act of 1959 was described as follows by the Commission
on Native Education 1949-1951:

"... Bantu students are admitted to one University institution con
ducted chieflyfor Bantu students, with direct State aid; ta two recently
founded priva te institutions (Kolege ya Bana ba Afrika, at Pretoria,
and the Pope Pius XU University CoUegeat Roma, Basutoland); to

two South African Universities chiefly providing for European
students (Cape Town and Witwatersrand); to one university which
provides separate facilities for non-Europeans (University of Natal);
to correspondence courses of the Division of Extemal Studies of the

University of South Africa; and to correspondence courses conducted
by private correspondence colleges preparing students for the
external examinations of the University of South Africa 2."

The number of Bantu University students admitted to various insti
tutions in the year I948 was as follows 3 :

Number of
Institution Bantu stitdents

Fort Hare . . . . . . . . . . . . . . . . ....... . 226
Kolege ya Bana ba Afrika . . . . . . . . . . . . . . . . . . . 37•
Pope Pius XII ............... , , ........ . 26
University of Cape Town ................... . 18
University of Witwatersrand ................. . 65
University of Natal ...................... . 56
University of S.A. (E:x.ternal Studies) ...... , ..... . 317
Strydom Training School, Bloemfontein ........... . 4
Private Correspondence Colleges . . . . . . . . . • . . . . . . ?

Total ... 749

33. The Native Education Commission of 1949-J:951 investigated the
whole field of Native education in South Africa, mcluding university

1 U.G. 53-1951, para. 376, p.69.
1 Ibid., para.391, p. 71.
J Ibid., table LXXX, para. 391, p. 71.
4
For the year 1949. SOUTH WEST AFRlCA

education. With regard to the latter the Commission, after remarking
on the small munber of Bantu students attending universities and em

phasizing the importance of university education for the Bantu, ex
pressed itself as follows:
"Your Commission is of the opinion that the following three
principles are important in connection with the provision of the
necessary facilities for university education for the Bantu, viz.:

(a) that adequate facilities should be provided by the State with a
view to the eventual founding of an independent Bantu univer
sity;
(b) that Bantu students who wish to study subjects for which their
own institutions do not yet makc provision should temporarily
be provided with the nccessary training facilities in conjunction
with European institutions within the Union of South Africa;
(c) that future devclopment of university education must largely
depend on the Development Plan and the employment possibil
1
ities which evolve from it ."
34. The underlying reasons for the introduction of the Extension of
University Education Bill in 1959 appear from statements made by
Members of the Government during the relevant debates in Parliament.
During the debate in Parliament on 26 February 1959, and subsequent
days, on the introduction of the Bill, the Deputy Minister of Education,
Arts and Science pointed out, inter alia, that in· I9IO, foUowing on an

offer by two prominent public men (Messrs. Wernher and Beit) to provide
funds for the establishment of a university at Cape Town to provide
"equal opportunities to all who require university teaching", General
Smuts, then Ministcr of the Interior, had stated as follows:
"In regard to the stipulation of 'equal opportunities for all', there
can be no possible difficulty as regards the ·white people of South

Africa.... lt will probably be found desirabie at some later date
to make separate provision at a suitable centre for the higher educa
tion of Natives ... it would be a mistake to lay down today that
as a matter of public policy higher education for Whites and Natives
should for all time be conducted at the same institution 2."
The Deputy Minister continued:

"Here we have a principle which is as old as the Union of South
Africa itseU ... The universities established in South Africa, and
particularly the University of Cape Town, were established with the
money made available by Messrs. Wernher and Beit, and it was
distinct!y understood between those gentlemen and the Govemment
of those days, as expressed by General Smuts ... that the university
would provisionally be allowed to have non-Whites as students, but
that in the course of time separate facilities should be created for the
3
non-Whites, as this Bill aims at doing ."
Speaking during the same debate, the Minister of Bantu Administra
tion and Development said that the vast majority of non-Whites in
South Africa were in favour of separate universities for their sections
of the community and had in fact for a long time pleaded for it. Having

1 U.G. 5.3-1951, para. 959, p. 151.
a U. of S.A., Parl. Deb., House of As_çembVol. 99 (1959), Col. 154-4.
' Ibid., Col1545. COUNTER-MEMORIAL OF SOUTH AFRICA

stated that the non-White population considered the White universities
too expensive for them, that certain White universities allowed only a
certain quota of non-Whites, and that non-Whites could not aspire to
teach.ing posts in White unîversities, the M.inistersaid:

"lt bas been said here that we are interfering with academic free
dom. But this whole system will result in the non-White universities
being developed as fast as possible and to the highest possible degree.
In addition we have the fa.et that these people say that they do not
have the opportunity of ever becoming professors or lecturers in the
White universities. There is a ceiling beyond which they cannot pass.
In these universities they will be encouraged even to become pro
fessors and Lecturers in the course of time. Care will be taken to
ensure a high standard of academic qualifications and education.

The opportunities are being cre.ated and the way is being opened to
the Bantu to serve hîs own people in the academic sphere and to
bring his own universities to the highest possible levcl, and to utilize
those universities in the service of their own people. . . . Every
section of the population has a duty towards itself, and the Bantu
also have that duty. Just as the White man is entitled to the best
university training, so the Bantu and the other non-Whlte groups
are also entitledtoit; and it is the duty of this House to see that this
is done 1."

35. Later the i\Iinister of Bantu Education, in the same debate, ex~
plained the four fundamental considerations on which the Bill was
based.
The following is a summary of the Minister's speech:
(a) The /irst fundamental consideration was the need for university

training for non-Europeans in general, and for the Bantu in partic
ular. The Government's policy of separate development required
that non-Whites should be given every opportunity to develop as
individuals and for development as separate communities. If there
was to be balanced development, separate development demanded
that every individual national unit should produce, from its own
ranks, the necessary leaders, thinkers, educationists, J?rofessional
and technical people. This would open up new possibilities for in
dividuals in their own communities, and, in the interests of balanced
development, particularly of the Bantu national community, there
emerged the necessity of replacing as soon as possible the White

persons working as teachers, doctors, ministers of religion, agricul~
tural extension officers,etc., in the Bantu areas, with Bantu persons.
Ail this would require large-scale training of the Bantu also at
university level.
After surveying the advancement of the Bantu and the Coloured
people in the field of education, the Minister indicated that the poten~
tiahties and tendencies were such as to justify the establishment of a
nwnber of institutions for the higher education of both the Bantu
and Coloured groups 2•

(b) The second fundamentat consideration was the conviction that

1 U. of S.A., Pa,.l. D~b., House of Assembly, Vol 99, Cols. r548-1549.
i Ibid.Vol. 100 (1959), Cols. 3259-3263. SOUTH WEST AFRICA

higher edu,:ation could best be provided in separate institutions
for thedifftrent groups. In this regard the Minister said:
"Every national group of any consequence, if it wishes to hold its
own should have its own schools and its own university or universi
ties-universities that not only serve as the focal point of its pride
and self esteem, but as a means to educate the community in the
true meaning and value of university training as such. Any system
which is not devised to enable the members of a particular national
unit {volkseenheid) ultimately to constitute the council, the senate,
the student body and other bodies concemed with the financing and
control of a university, any system which does not provide for that,
is a system that witholds from the community the most valuable

opportunity there can be for self-development ...
In the second place itis self-evident that a university which in the
first instance does not serve a particular national comrnunity and
which draw;; its students from heterogeneous national units, willnot
only find it difficult to provide for the special needs of national units,
but more often than not no regard at all is had to the needs of par
ticular national units. That is true, particularly where you have
national groups at different levels of development as in South
Africa ... In the third place there is the consideration, of course,
that if a university institution serves a particular national group,
the students are more easily and better equipped for living in and
serving the cornrnunlty to which they belong ...
When students study at a univers1ty serving a particular national
group, they are not required to go through a difficult and frequently
unnecessary process of adapting thernselves, socially for instance.
Students belonging to a minority group, and moreovet a Iess devel
oped group, are continually in danger of being overwhelmed by the

majority. Then it is extremely difficult, and more often than not
impossible, for such a student to avoid having his own cultural roots
uprooted and destroyed and rendered conternptible to him.
A fourth reason why higher education can best be provided in
separate institutions, 1s the fact that the task of the teachers is
facilitated because the students are drawn frorn one cultural group,
something that undeniably will raise acadernic standards and
accelerate cultural developrnent ...
In the fifth place it is important that the members of the commu
nity as well as the students should have an opportunity to take an
active part in all aspects of university life. If it is impossible for the
community and the students to participate in all aspects of uni
versity life, ast is impossible at the mixed universities, and as it is
impossible at one which, although it is only for non-Whites, such
as Fort Harn, tries to serve a whole lot of groups, then the university
cannot havE:its full share in the developrnent of that comrnunity;
and the consequence for instance of the attendance of Bantu or
non-White persans at mixed universities, as we know them today,

is a complete misconception of the whole nature of a university and
of its task of moulding the individual as well as the community.
That is why I say higher education can best be provided in uni
versitiesinfonded for particular national groups 1."
1
U. ofS.A., Pa,l. Deb., Hoicsof Assembly,Vol. roo (1959), Cols. 3263-3265. COUNTER-MEMORIAL OF SOUTH AFRICA

(c) The third basic consideration was that the State should take the
initiative in establishing and maintaining the non-White universities.
The fundamental approach, said the Minister, was that control of

any university should ultimately vest in the community that is
served by that university and within which it is established. The non
White groups were not yet in a position to take control of the uni
versities provided for them, and the State, as the guardian of the
non-White groups, was the only body that could take control and
later transfer to them, judiciously and in accordance with the rate
of their development, control of their own institutions 1•

(d) The fourth fundamental consideration was the conviction that the
continued admission of non-Whites to the White universities should
be stopped. In this regard the Minister said:
''In the first place it should be remembered that the admission of
non-Whites to certain White universities is a practice that arose not
as a result of a carefully planned policy. It was merely an un

important gesture at a time w!11•:f nacilities for the non-Whites did
not exist or were quite inadequate. But since adequate provision is
now being made for non-White university institutions of a com
parable standard, the continued admission of non-Whites to the so
called open universities-the mixed universities-really has no
other significance than a complete negation of the principle on
which the policy of separate development is based. If it is still to be
permitted, it will create the fatal impression that apartheid is
somethlng which is applied and should be applied only until the

non-White has received his matriculation cerhficate, that is to say,
until he has overcome a certain defect or defi.ciencyin his being, and,
of course, there is no suggestion at all that the policy of separate
development is the result of a defect or deficiency in the non-Whites,
or the result of inferiority. It is a question of separate development
of different racial groups each of which is and ought to be proud of
its own cultural heritage ... But in the second place no university
which, like the mixed universities, is controlled by Whites, where the
personnel consists almost exclusively of Whites, where the over

whelming majority of the students are Whites, universities which
have been established to provide for the needs of a White population
group-today no such un1versity in South Africa can be in a position
to provide the kind of higher education that has regard to the
needs of the non-Whites 2."
36. In regard to the Coloured group, the Deputy Minister of the

Interior, in the course of the said debate, informed Parliament that
tbroughout the preparation of this legislation there had been negotia
tions and the closest possible consultation between the Department of
Education and the Department of Coloured Affairs. He stated that the
interests of the Coloured people had been taken into account throughout,
that the·Deparlment of Coloured Affairs had been consulted, and that
it was the intention to establish a separate Coloured university 3•

37. The Extension of University Education Act, -:r959(Act No. 45 of

lU. ofS.A., Pa~l. D6b., Hous1of A.smnbly, Vol. JOO (1959), Cols. 3265-3267.
1 Ibid., Cols. 3267-3268.
3 Ibid., Col. 3438. SOUTH WEST AFRlCA

1959) authorized the Minister of Bantu Education to establish univer
sity colleges to which only non-Whites were to be admitted, and after
a period of transition-to allow for the provision of alternative faciliti~

for certain courses not then available on a separate basis at Fort Hare
or elsewhere-non-Whites were no longer to be admitted to White uni
versities in South Africa.
38. The particular institutions for higher education in South Africa
serving the Bantu groups have been described in paragraph 23 above.
As regards higher education for the other two main non-White groups
of South Africa's population, viz., the Coloured people and the lndians,

progress has also been made in providing separate university facîlities.
The distribution of the Coloured people, who are mainly concentrated
in the western part of the Cape, and of the Indians, of whom most are
resident in Natal, has made it impracticable at this stage to have more
than one university college for each of these groups. The University
College of the Western Cape for Coloureds was opened at Bellville
near Cape Town in 1960, and the University College for Indians at Dur
ban, in r96z. The University College for Coloureds js controlled by the

Department of Coloured Affairs, and the University College for lndians
by the Department of Education, Arts and Science.
Prior to the establishment of these separate institutions, as bas been
pointed out above 1•some Indian and Coloured students attended the
South African Native College at Fort Hare, while small numbers were
also admîtted to the three so-called "open" universities (Cape Town,
Natal and the Witwatersrand). At the University of Natal classes and
lectures for non-White students were separate from those for 'White
students.

IV. Vmws ON SEPARATE EoucATIONAL FAcILITIEs

39. In Chapter IV above, Respondent referred to the views of educa
tionists who support the policy of providing education to suit the cul
tural background and needs of different communities, and to the present
trend in other States in Africa to "Africanize" education for the African.
Respondent suhmits that its policy of providing separate universities
for the different population groups in South Africa accords with such
views and with the trend of educatfon in the other African States.

In this regard it is only necessary to refer here to views expressed
concerning university education.
40. In 1948 Dr. Kenneth Mellanby, the first principal of the Univer
sity College, Ibadan, said that-

"The standards of the University College must be equal to those
of the best universities of any country, but the college must also
have an African bias, and while not neglecting any branch of leaming
must concentrate on subjects of special interest and importance to
Africa 2."
Mr. Herbert Morrison, former Foreign Secretary in England (now
Lord Morrison of Lambeth), is reported to have said in the House of

Commons on 9 March l959:

1 Vid~ para. 3I,sufwa.
2 Kimhle, op.cit., p122. COUNTER-MEMORIAL OF SOUTH AFRICA

''Will the hon. Gentleman's Department [Commonwealth Re
lations] keep in roind the desirability also of universities in Africa of
an African character and that there is something to be said for the
Africans havinguniversity facilitiesof theirownin theirown countries
rather than that the general run of them should corneto British uni
versities and go back with somewhat un-African ideas? 1''
And Kimble says of the University of Dakar:

''The doors of the University are open to ail qualified students.
However, its curricula are des!gned primarily to serve 'the aspirations
and needs of the African peoples', and to 'give the modern African
an opportunity tore-examine the values of bis own cultural heritage
and to acquire a deeper knowledge of other technical and moral
values from the West' 2."
4r. ln reply to a published lecture by Sir Eric Ashby, Master of Clare
College, Cambridge, entitled "Universities under Siege" 3, which was
critical of South. ;\frica's policy of providing separate universities for
the various groups, Professor Dr. C. H. Rautenbach, Rector of the Uni
versity of Pretoria, Chairman of the Council of the Bantu University
Collegeof the North and Chairman of the National Advisory Education
Council of the Republic of South Africa, made the following points,

among others, in a pamphlet entitled "Open Discussion on Closea Uni
versities";
"Sir Eric ends with a peroration that we only too readily would
quote:
'I am not too familiar with the curricula in Arts faculties in South
African universities, sothat I cannot comment on what happens here,
but when I visit the universities of tropical Africa I find a social
mimicry of European education which is at once touching and de
pressing. Ever,y year Nigerians who are going to administer their
people as district officersleave the university w'ithhonours degrees

concentrated upon Latin and Greek and Ancient History. They have
never studied the political and economic systems of their own people
nor their religious and social traditions and folk-lore, nor their lan
guages. Questions such as how to transfer ideas from Ibo to English:
what kind of ideas there are which cannot be transferred from one
language to the other; what is the impact on an African mind of
European ideas of justice and equity; how systems of social welfare
will replace the obligations of the extended family; what tensions
occur in the African when he becomes urbanised and has to discipline
himself to a routine and work either with Europeans or like Euro
peans; questions such as these are never studied by the majority of
students in tropical African universities, perhaps not in South
African universities either. Yet upon an understanding of such
questions as these the fate of the Continent depends. ls it (for
example) necessary to accept Western ethics and standards of
behaviour along with Western technology? Or will the Africa.n,like

1P11rliamenlt1I')' Debates (Hansal'dHo1'se of Gommons, Fifth Series,Vol. 6oI
(1958-1959), Cols. 885-886.
z Kimble, op.cil.p. 112.
pp. 18-29. E., "Universities under Siege", in Mintrva, Vol: I, N1(Autumn 1962), SOUTH WEST AFRlCA

the Japanese, adopt Western material values while retaining
indigenous spiritual values? Is the new Africa going to _{lroducethe
most vulgar civilisation the world has ever known-a mghtmare of
European gadgets without even the rudimentary European morality
which still survives in our cities?Or will the Africans inthe end do
better than we have, preserving for themselves a relaxed urbanity
and courtesy and rejecting our phrenetic money-making econo-

my?' •..
He indeeclbrings something newin his beautiful 1;1erorationquoted
above, new to him and to his academic ilk,but antiquated tous, the
supporters of apartheid. What he says there about the need for the
Africanization (adjustment or adaptation to African cultural
philosophical patterns) of university institutions in Africa is for us
the very cmx of the matter in our policy of separate development.
Experiencecl British officials of the colonial era in Africa and else
where long ago realized and experienced what Sir Eric now preaches.
We refer to the article in the British Universities Quarterly of
September 1958 on: The Idea of an African University. This îs
however the first time that I have, from the mouth of an eminent
British university man, heard such ringing oratory in complete
accord with this line of thought. We are indeed making progress 1."
The Bulletin of the International Association of Universities, pub
lished in October 1962, contains extracts from a paper read by Sir Eric
Ashby on "Patterns of Universities in Non-European Societies" in which

he said, inter a/.ia,the following with regard to universities in West
Africa:
"However, despite minor adjustments in curricula to suit local
conditions, the curricula in West African universities are drawn up
on the assumption that the African has no indigenous culture worth
studying and no organisation of society worth the attention of
undergraduates. We do not go so far as to advise Africans-as
Indians were brashly advised a hundred years ago--to despise their
culture bec'luse it 1s degrading: we simply discourage them from
paying serious attention toit by the device of excluding it from the
requirements for a degree . . .
The difficulties in the way of incorporating African studies into
the undergraduate curriculum are of course, formidable . . . (But)
if universities are to put down roots in tropical Africa the first step
must surely be to study traditional African societies and the way
they change under the mfluence of the West, as a compulsory sub
ject at the core of the curriculum; not simply as a somewhat un
conventional option, as it is at present in those places where it is
taught at all. For the danger in West Africa is similar to the danger
to which India has succumbed: that the inevitable gap between the
intellectuals and the mass of population will widen until in the end
even kinship ties and tribal loyalty may be unable to bridge it 2."

Of the aforementioned extracts, only a part of which is quoted above,
Professor Rautenbach says that they-
1 Rautenbach, C. H., Open Discussion on Closed Unillersities (tranby M. W
Smuts) (1963),pp.3-5.
2 InternaJional Assodation of Univusities, Bulletin, Vol. X, No. 4 (Nov. 1962).
p. 254. COU?'ITER-MEMORIAL OF SOUTH AFRlCA

"... unwittin~ly drive home the argument in favour of separate
academic facilibes for the Bantu with ... remarkable vigour and
eloquence . . .1."

42. ,At an international seminar on "Inter-University Co-operation in
West Africa", Sir Eric Ashby is reported to have said:
"Toere are no West African universities-yet. There are British
and French universities in West Africa but they are importations;
they are no more indigenous than the motor-cars. They have nùnor
modifications, of course, just as motor-cars have sun hoods. But the

West African universitv is still to be bom ... The West African
university, when itappéars, will be a slow and natural outgrowth ...
Its roots will be in the universities of Europe, acknowledged every
where in the world as part of the international family of universities,
but it will ha,·e its own West African identity. In bnef, West African
universities likeBritish or French or American or Russian universities,
serve their purpose only if they fulfia dual loyalty: a loyalty to their
own society and a loyalty to world standards of higher education z."

Respondent does not know whether Sir Eric is correct in saying that
West African universities do not yet have a West African identity, but
would point out that if Africans of West Africa must have universities
wîth a West African identity, and not British or French "importations",
Southern Africa's Bantu peoples (who are also "Africans") should also
be entitled to their own, specifically Bantu, universities. South Africa's
White universities--which are, with certain adaptations, European "im
portations"-cannot "fulfil a loyalty" to Bantu society, and they cannot
have a Bantu "identity". And the converse is, of course, equally true.

C. Adult Education

43. It is the policy of the South West Africa Adnùnistration to pro
vide facilities for adult education as far as is practicable. Its efforts in
this regard in relation to the Native groups have met with many set
backs, and progress has been slow, for reasons basically the same as
bave been noted in the discussion of other aspects of Native education.
Sometimes apathy was to blame, sometimes lack of real incentive or of
disdplined perseverance. Again this has probably been inevitable, and
can be countered only by patient and syrnpathetic continuation of the

efforts, as part of the steady advancement of education generally.
44. Various attempts have been made by the Administration to pro
vide schooling for adult Natives. A scheme of evening classes was started
at Windhoek in 1948, and thereafter evening classes were also instituted
at various other towns. Instruction was given in English and Afrikaans,
and in ail primary-school subjects, so as to give studentsan opportunity
of obtaining a Standard VI certificate. Qualified European teachers were

appointed to conduct the classes.
There appeared to be a good deal of enthusiasm in the initial stages,

1 Rautenbach, op. cil., p12 {postscript).
2 Ashby, E., "African Higber Education", in Oversea Quarterly, Vol. 3, No.'.%
(June 1'}62}p. 44. (Reprint of an address by Sir Eric Ashby given at an international
seminar on "Inter-University Co-operation in West Africa.", held at the University
College ofSierra Leone in Freetown, Dec. 1961.} SOUTH WEST AFRICA

but students soon lost interest, and seemed to be incapable of the
sustained effort necessary toachieve success. The class whlch began with
45 pupils at Otjiwarongo in 1951 came to an end in the same year for
lack of attendanc1!. The school at Tsumeb opened with 30 pupils in March

1954, but after the June vacation only II returned, and by the end of
the year the school had petered out completely. The school at Omaruru,
which started in September 1956, had 40 pupils at the beginning of
1957, but by August of the same year had to be closed for lack of support.
The school at Wfodhoek was, to some extent, an exception. lt existed
for about seven years before it was closed down for lack of attendance.
During this period a few students who displayed the necessary per~

severance passed Standard VI.
45. At the request of the Organizer of Native Education, the night
school at Windhoek was reopened in 1956. Whereas instruction had
been provided free before, a tuition fee of 20 cents {2/-) per quarter was
levied. 1t was hoped that such payment, smaUas it was, might encourage

those who attended the classes to set greater store by what was provided
for them. The classes commenced in April 1956 with 33 pupils and two
European teachers, but by September of the same year the number had
dwindled to 9, and thereafter the school was dosed.
In 1957 evening classes were again instituted at Windhoek, this time
with a view to enable teachers in service to improve their qualifications.
A junior certjficate dass with :r+students commenced the course at the

beginning of the year, but due to poor attendance the scheme proved a
complete failure, and the class had to be discontinued at the end of the
year 1• .
Evening classe; were again started at Windhoek in July 1g6r, when
courses were offered on both the primary and the secondary level. I t
was decided that tuition in the primary classes would be free, but that
secondary students would be required to pay a fee of RS (f4) per year.
There were 40 students, taking five different secondary courses, when

the classes startecl, but by the end of the year their numbers had dwindled
to 6, who were taking one subject only. The attempt at providing pri~
mary education wasforsome time more successful. and in the last quarter
of the year there were 251 pupils in the various classes. During the first
half of 1962 the numbers in the primary classes increased to 282, while
there was no improvement in respect of the secondary classes. The
number of pupils in the primary classes at present total 93, while the

secondary classes have corne to an end for the lack of support.
46. The 1962 Education Ordinance 2 empowers the Adrninistrator to
"estab1ish and maintain evening or continuation classes with a view to
training and instructing Native pupils or persans" 3•The Administrator
may also, in terms of the Ordinance, prescribe:

"... courses for the instruction and training or further instruction
and training of persans who, under normal circumstances, do not
fall within the limits of the school-going age, with a view to-
(a) combati ngilliteracy in so far as this may exist;

1 VitkChap. V, para. 30, sup,-a.
2 Vide Chap. III, para. 5sufwa.
3 0Yd, No. 27 of 1962 {S.W.A.}, sec. zoz (z} (b)in 0/ficiaJ GazetExtraordinary
of South West Africa, No. 2413 (4 July 1962),p. 912~ COUNTER-MEMORIAL OF SOUTH AFRICA 491

(b) affording persons an op~rtunitx to acquire better equipment
for themselves and for civil llie1 '.

It is hoped that attempts at encouraging adult education for Natives
will in future prove more successful than has been the experience in the
past.

1 O,d. No. :7of 1962 (S.W.A.), sec. 4 (1)(d) (iv), in Official GazetùExtracrdina,y
of South West Afrita, No. 2413 (4 July 1962). p. 882. CHAPTER VII

EUROPEANEDUCATION

A. lntroductory

1. The nature of Applicants' complaints 1makes it necessary to deal
also with the education of the European group in South West Africa.
This Chapter is devoted to a brief account of such education.
Before the patticular educational facilities provided for the sa.id
group are dealt with, mention will be made of certain circumstances
and factors which generally affect the education of European children
in the Territory.

These willbe dealt with under the following heads:
I. Centralization of European education.
II. The different European language groups.
III. Medium of instruction. ·

B. GeneralCircu.mstancea sndFactorsAffectingtheEducationof
EuropeanChildren

1. CENTRALIZATION OF EUROPEAN EDUCATION

2. Before I9I5 the education policy of the German authorities relative
to European children in South West Africa was characterized by a hîgh
measure of centralization, and it was only in the towns and more densely
populated areas that schools were established. The country was thinly
populated, and, because of the vast distances involved, it was impossible
ta bring schools within reach of all children. Children had to be brought
to the schools and housed there, and the result was the development of
an extensive scheme of school hostels 2• Allowances were made by the

German authorities to parents whose children boarded at these hostels.
3. After 19r5 the South African authorities, realizing that it would be
more economical to bring children from far outlying districts ta hostels
at centrally situated schools than to establish a series of small schools

in distant and sparsely populated areas, continued with the policy of
centralization, though not to the same extent as under the German
regime 3•
Difficulties were soon experienced, however, when the number of
school·going children grew apace and the available hostel accommoda
tion proved inadequate. Money was in short supply in the post-war
recession of 192:c-1922, and in 1922 the Administration was forced to
abandon, at least temporarily, its policy of centralization, and to estab

lish more schoolE,on farms in the country districts. The 1921 Education

l Vide Chap. I, para. r, sup-ra.
2 Vide Chap. II. para.II,supra.
) Lemmer, op. cit., p176. COUNTER-MEMORIAL OF SOUTH AFRICA 493

Proclamation made no provision for grants-in-aid oi private schools,
with the result that a number of farm schools wcre established 1•
4. The crippling droughts and economic depression in the late 1920s
and early r93os 2prevented the Administration from providing the fadli

ties which it would havc Iiked to provide, and the result was a consider
able increase in the numbcr of privatc schools, which then received
subsidies from the Administration in tenn,;; of the provisions of the
I926 Education Proclamation. There were 22 priva.te schools in 1926,
and by 1931 the number had risen to 74. The number of thcsc schools
decreasc<l as conditions in the Territory improvcd and farmcrs again
became able to send their children to schools in the towns, and by 1937
3
there wcre only II private schools lcft .
Increased prosperity and the <lcsirc for progress crcated a demand
by the European group for improvcd e<lucational facilities, and because
of the country's thinly scattcrcd population, and for economic rcasons,
such facilitics could, with justification, only be provided in certain
locafüies. This necessitated the building and maintcnane<.:of hostels at
many of the largcr centres.

At present nearly 40 pcr cent. of the European school children in the
Territory are accommodated in hostcls.
5. The 1958 Education Commission found that the average annual
cost of accommodation per European pupil at rural hostcls was Rno.So

(f55 8s. 3d.) and at urban hostels R120.76 ([,607s. 8<l.). and th;tt while
parentspaid 82 percent. of such actual cost in 1948, the percentage was
only 69 in 1957 4• The Administration thereafter decided that hostel
fees should be so determined that parents be rcquired to pay approxi
mately 80 percent. of the actual cost involved.
The ever-increasing demand for better education, and the tendency
on the part of parents to send their chüdren to schools in the bigger

centres to obta1n such education have led to a decline of the smaller
rural schools. It was found by the 1958 Commission that practical and
economic considerations rcquired that primary schools in the thinly
populated southern areas should be about roo miles apart and, in the
more clensely populated northern areas, about 50 to 60 miles apart 5•
The advantage of the policy of centralization, despite the high cost
involved in the hostel system which it necessitates, are undeniable from

an educational point of view. It may be said, in general, that itallows
of fadlities being offered which wouid otherwise have been impossible.
There are at present 67 hostels for European children at government
schools (one being a state-subsidized privatf: hostel) and six hostels at
prîvate schools.

IL THE DIFFERENT EuROPEAN LANGUAGE GnouPs

6. A special problem arises from the need for providing for the educa
tional rcquirements of three language groups-Afrikaans, English and

1 Lemmer, op. cit., p.176.
2 Vide Chap. V, para. 17, supra.
3 Vide Report of the Education Commissi<m 1958 (S.W.A.), para. 35,p. 19,.
• Ibid., para.278,p. 109.
l Ibid., paras. 311.313, pp. 1~3-127. 494 SOUTH WEST Al'IUCA '

Gcrrnan-anCl, in partirnlar, of the two groups which are nurnerically
in the rninority, viz., the English and German groups.
The vast majority of European pupils are Afrikaans-speaking, and
only about Ipercent. of thcm attend private schools, ail the others being

in govcrnment schools in the Territory, except for a small number who
are at boarding schools in South Africa.
In 1961 only about 6.8 per cent. of ail pupils at government schools
were English-speaking. Thcre wcrc then II government schools which
offcrcd English medium classes ta a total of r,023 pupils. ln only two
of these schooh1the English medium groups were fairly large, but in ail
other schools they were very small. The 1958 Education Commission
found that there were three schools with less than 30 English-speaking
pupils in all classes from sub-Standard A to Standard V. ln one school,
the Commission pointcd out, the English medium group, consisting

of 29 pupils, was divided into two classes of r9 and ro pupils each, with
2 teachers, whereas in the samc school I teacher had 48 Afrikaans
speaking pupils under hcr care in Standard I1•
With reganl to German-speaking pupils the position is only slightly
more favourablc. fn H)Gr, r,324 pupils rcceived instruction through the
medium of G1:nnan (i.e., as far as Standard V) in 12 govcrnmcnt schools.
This constituted 8.84 pcr cent. of all pupils at govemrnent schools.
7. Providing education for the minority language groups in such
circumstances requires thorough organization on the part of principals

of schools and of the Education Department. Every effort is made to
ensurc the most economical use of teachers, who are already in short
supply, but great difficulties remain. The lower teacher-pupil quota and
the fact that thcre are fewer pupils to a classroom than in the case of
the majority group, neeessarily rcsult in a higher expcnditure per unit.
A possible answer to the problem may be to make only a limited
nwnber of schools availablc where instmction can be received in English
and Germ:m, or to have separate schools to cater for the needs of the
minority group!i, but both these mcthods will create difficulties, including
hardship for many of the parents and pupils concerned, and there is, in

reality, no easy solution to the problem at hand.
ln 1962, it may be pointed out, circumstances rendered it nccessary
for the Administration to establish an English-medium government
high school in Windhoek.

IIJ. MEDIUM OF INSTRUCTION

8. Of the three European languages spoken in the Territory. Afri-
kaans and English are official languages. ,
In September 1920 General Smuts stated at a public meetmg at
Windhoek that the South African Government had no intention of

suppressing the German language, but that the education of German
children would. 2n their own interest, be made part of the Govemment's
school system •The intention initiaHy was that in government schools

1 Vide Report .,jthe Education Commission r958 (S.W.A.), para. 320, p. 133,
2 Vide Lemmer, op. cit.p.133. COUNTER-MEMORIAL OF SOUTH AFRICA
49.5

German would be permitted as a medium of instruction up to the end of
Standard IV only, but in view of the opposition of the "Landcs-vcrband".
a central association of the German "Schulvereinc" 1, it was finally
decided that German would be a medium o[ instruction up to the cna
of Standard VI, and tlus rcmaincd the position until the end uf 1943.
From the beginning of 1944 German could be uscd as a medium of in
struction only up to the end of Standard lV, whilc in the Standards
above Standard lV one or more subjccts, as <lcterminctl by the Dircctor

of Education, had to be taught in one of the official languages. In 1946-
in the aftermath of the Second Worltl War-it was tlccitlcd that German
could no longer be use<las a medium of instrnctiun in govcrnment schools,
but this restriction was removcd in HJ50.German was thcn again allowed
as a medium of instruction up to the Standard IV stage. As from 1960,
as a result of recommen<lations macleby the 1958 E.ùucation Commission,
German is used as a mc<liwn up to the end of Standard V, with the pro
viso that in Standard IV one, and in Stan<larù V two, subjccts arc taught
in either Afrikaans or English so as to give Gcrman-spcaking pupils some
preparation for their seconùary school work which is, as far as govern
ment schools arc conccrncd, lirnitcd to Engfü;h and Afrikaans as media
of instruction.
In German private schools German is used as medium up to the end

of Standard VIII, and the Education Department conducts its Junior
Certificatc examinations in German as wcll as in English and Afrikaans.
9. As far as Afrikaans and English-spcaking pupils are conccrned,
the policy has a)ways been that instruction should be given in a pupil's
home language, at Ieast as far as bis primary school education is con
cerned. The standard up to which such instruction had to be given in
the home language has, however, not always been the same. Double
medium instruction (English and Afrikaans) was introduced in 1944,
when, after the fourth stan<lard, one or more subjects, as determtned
by the Director of Education in his discrction, had to be taught through

the medium of the official language other than the home language. As
from the beginning of 1949, however, this arrangement became permis
sive.
10. At present the position is as foUows:

(a) Home-language instruction is compulsory for all Afrikaans and
English-speaking pupils up to the end of Standard VIII. with the
proviso that if the parent desires to change the pupil's medium when
he proceeds to the secondary classes {i.e., Standard VI onwards),
this is allowed if the principal of the school concerned and the in
spector of schools are satisfied that the pupil is sufficiently well
versed in the second language to have his instruction in this medium.
(b) Horne-language instruction is compulsory for German-speaking
pupils up to the end of Standard V in all subjects excluding English
and Afrikaans in ail Standards, health education in Standards IV and
V, and geography in Standard V. In the secondary standards one of
the official languages becomes the medium of instruction in all

government schools, but instruction in German as medium may be
obtained in German private schools up to the end of Standard VIII.

1
Vide Chap. II, pararo,supra.496 SOUTH WEST AFRICA

(c) Whcrc a pupil, on coming to school for the first time, knows and
undcrstands two languages equally wcll, his parents arc cntitled to
choose his medium of instruction.
Expcricni;e in South Africa and in South West Africa has con
vinced cducational authorities of the soundness of the policy of
home-language instruction, and the policy is, furtherrnore, approved

of and desired by the vast majority of parents in the Territory.

C. Types of Schools

n. Proclamation No. 16 of 1926 (S.W.A.) makes provis10n for the
establishment ot the following types of schools: primary· schools; farrn

schools; secondary schools; high schools; teacher training schools;
industrial schoob; spccial schoob; private schools 1•
12. Primary s,:hoolscover the lower standards up to a limit approved
by the Director of Education. At prcscnt the general upper limit is
Standard V (i.e., seven years' schooling), as against Standard VI prior

to 1956. For a primary school to be established, the Dircctor must be
satisficd of the need for such school, of a prospective rcgular attendance
of at least 15 pupils and of the suitability of the proposed accommo
dation 2•
In view of the policy of centrafüation 3, and in order to avoid un
economical use of staff, the estahlishment of a primary schoôl is, as a
matter of present polie)\ only considered whcre the enrolment is likely

to remain reasonably constant and justifies at least four teachers where
there is a hostel attached to the school, or at least two in other cases.
13. Farm schools are established for instruction in the lower stand
ards. The proprietor of the farm or land on wlùch the school is situated
is expected to :supply, free of charge, school-rooms and board and
residence for the teachers at such schools. Such a school mav be estab

lished only if there is reasonablc certainty that a minimum average
enrolment of ten pupils can be maintained 4.
14. Secondary schools are for instruction up to Standard VIII (ten
years' schooling). A school may be recognized as a secondary school if
the Director is satisfied of the need thereof in the locality and of the

efficiency of the work donc at the school, and if a minimum average
enrolment of 20 pupils in the fourth and fifth standards combined has
been maintaincd for at least one year 5.
The present policy is to consider the establishment of a secondary
school only if a mimmum enrolment of 50 pupils per language medium
in Standard VI is assured, unless there are no facilities for secondary
education over a large area.

l Vide Froc. No. 16 of r9z6 (S.W.A.) as amended, secs. 29-36, 177-zribis,in
Laws of South Wesi! Africa, Vol. II (1923-1927), pp. 242-248, 300-30.i.
2 Ibid., sec. 32 (2(a) and (b),p. 246.
3 Vide paras. 2-5,supra.

• Vide Proc. No. 16 of 1926 (S.W.A.), sec. 33 (r) and (2) {a)and (b), in Laws
of South Wut Africa,Vol. II (1923-1927), p. 246.
' ibid., sec. 31 (ri and (2) (b) and {c), p. 244. COUNTER-MEMORIAL OF S0U1H AFRICA 497

15. High schools are for instruction up to Standard X (12 years'
schooling). A school may be recognized as a high school if the Director
is satistied of the need of such a school and of the effi.ciencyof the work

done, and ifa minimum average enrolment of 40 pupils in Standards VII
and VIII combined has been maintained for at least one ycar 1•
The present policy is to consider the establishment of a high school
only if the number of pupils will be sufficient to justify adequa.te differ·
entiation in the courses offered.

16. Teacher training schools: although the Education Proclamation
provide5 for the establishment of tcacher training schools, no such
schools are conductcd for the White group in South West Africa. The
facilities for training of European tcachers in South Africa will be dealt
with hereinafter •

17. Jnduslrial schools are for the training of pupils in industrial pur
suits, including agriculture 3•
18. Special schools are schools with special curricula, approved by
the Director, and suited to the peculiar needs of the localities con
4
cerned •
19. Private schools: the Education Proclamation provides for the
establishment. of schools by private initiative, and for grants in aid of
such schools. To ensure proper standards, priva te schools are subject to
inspection by the Department's Inspectors, and appointments of tcachers

are subject to the approval of the Director .s.
The general policy is not to subsidize private schools in centres where
there are ~overnmcnt schools. Some such schools do receive assistance,
but in the1r case the number of students in respect of whom aid is given
has been limited. Othe:rwise the policy is to subsidize privatc schools
which ofler educational facilities not provided by government schools,
for example, schools in Jocalities where there are no govcrnment schools,

or schools which offer secondary education through the medium of a
language not offered as a medium at a govemmcnt school.

D. LocalControlof Schools

20. The local control of every govemment school for European
children is vested in a school committee elected by parents. In general
the duty of a school committee is to intcrest itself in the welfare of the
school and to advise the Director of Education on such matters as
school buildings and grounds, school hours, parents' representations,

misconduct on the part of teachers and purils, and matters referred to
the committee by the Director for its views .

l Vide Pf'oc. No. 16 of 191.6 (S.W.A.), sec. 30, p. 244.
1 Vide paras.38 and 39, fn/rf',
' Vid,r Pf'of.'.No. 16 of 191.6 (S.W.A.), sec. 34, in Laws of South West Af,ica, Vol.
II (191.3-1927)p. 246.
• Ibid .• sec35,p. 248.
' Ibid., secs. n7-urbis, pp. 300-302.
t Ibid., secsro-28, pp. 232-242. SOUTH WEST AFRICA

E. Offi.cersand Field Staff

21. In addition to the Director of Education, the Deputy Director and
the Administrab ve Staff of the Department ofEducation at Windhoek 1,
the White group is served by the following professional and field staff:

4 Inspectors of Schools;
organizer for domcstic science and needlework;
organizer for handwork for boys;
organizer for music;
organizer for German-medium classes;
organizer for infant school method.

The organizers, save the two last mentioned, serve ail groups of the
population-European, Coloured and Native. The Organizer for infant
school method is concerned only with schools for Coloured and Euro
pean chi1dren, and the Organizer for Gennan-medfom classes only w.ith
European children.

F. Survey of Schools, Pupils and Teacbers
22. In the table below particulars are given of the number of schools.

pupils and teachers over various years:

Year 1 Sch()(}/s 1 Pupils Teachers
1920 1Govermnent: 23 1 Government : 975 Governmenl :
55
1930 Government: Goveniment : Government :
High 2 Primary 4,225 Certificated l95
Secondary 2 Secondary 232 Uncertificated I
Burgcr i I
Agriculturali I
Primary 51
Farm 15
- -- -
72 1 4,457 196
Privale: - Private: -- Private: -
55 Primary 991 Certificated 6o
Secondary 83 Uncertificated 32
-- -
1,074 92
-- -
1940 Governmen! : Government : Government :
High 2 Primary 5,092 Certificated 208
Secondary 3 Secondary 495 Uncertificated 3
Burger 2 r
Primary 48
- -- -
54 5,587 211
- -- -
Priaace: Private: Priuate:
18 Primary 6t8 Certificated 44
Secondary -12 UnŒrtüicated 7
730 -51
-
1
1 Vide Chap. III, para. 6, supra.
i The "Burger" and "Agricultural" schools are dealt with in para. 36, hereinaftcr. COUNTER-MEMORIAL OF SOUTH AFRICA 499

Pupits TeacMrs
1950 Gavernment : Gavernment : Gavernment :
High 3 Primary 6,965 Certificatcd 276
Secondary 3 Secondary 7 9 Uncertificated 10
Primary 45
- -- -
51 --684 -286
Private: - Private: Privale:
15 Primary 1,047 Certificated 52
Secondary I34 Uncerti.ficated lI
-- -
[, 181 63
-- -
1960 Government : G011el'nent : Gouernment:
High 5 Primary II,174 Certificatcd 559
Secondary 5 Sec(Jndary 3,236 Unccrtificated I2
Primary 43
Special l
54 -14,410 571
- --- -
Private: Private: Private:
9 Primary I,SB Ccrtificated 88
Secondary 314 Uncerlificated - 7
-1,847 95
~- --

1962 Government : Government: Gavernment :
High 9 l'rimary 11,561 Certificated 621
Primaryry 4 Sccondary 3,978 Uncertificated 17
Special 46l
- --- -
60 [5,539 638
Private; - Private: --- Privale: -
Primary 1,594 Certificated
9 Secondary 443 Uncertificated 957
-- -
2,037 !02
-- --
1963 Government : Government ; Government :
High IO Primary II,624 Certificated 650
Secondary 3 Secondary 4,332 Incertificated 20
Primary 47
Special I
- ~-- -
6I 15,956 670
Private: - Private: --- Private: -
13 PrimMy ,/,40 Certiticated lIJ
Secondary 5 5 Uncertificated 10
-- -
2,165 123
-- -500 SOUTH WEST AFRICA

The substantiaJ increase in the number of secondary students in
1g60 as compared with 1950 is to a large extent to be ascribed to the
fact that Standard VI became the first year of the secondary course
as from 1956 1•

G. Enrolment of European Pupils in Government Schools in Different

Standards

23. In the following table particulars are furnished of the enrolment
in the differcnt standards in government schools in varions ycars, and
comparisons with 100 in suh-Standard A.

Un-
Year/ A 1 Il I II IV V I VI IVH IVIII IX X classi-
1 ! III 1 fied
1
1940 625 5941 682 731 709 630 620 4881 237 139 63 52

too 95 1,39. n 7.0Il3.4100.S 99.2 78.1 37.9 22.2 JO.I 8.3

919 88.z 9N 915 969 862 810 622 326 228 79 761 12
19501
100 92.9(,2.0 96.4 102.190.8 85.3 65.5.3,i.,i 24.oj8.3 8.o 1.3
1 1
196o /r.7501,745\1,53611,534!1,621.5121,357,,."891 69 5•4113 ''°• '''
1
I IOO 99.7 a7.81 87.7191..786,4 77.5 62,2! 52.4! 37.4119.,t13.7 7,5
. 1 1
1961 1,684,r,71S r,70511,519 1,576 1,552 1,396h,17961' 762 1 J<lS 298 246

1001102.0llDl,3 90,2 93.6 92,2 82.916<).5, 57.145.3 22,9 I7.7 T4.6

1962 l,ï:1811,685 1,715 1,695•1,511 1,490 1,448 1,2681851082471 3o6 289

""' '" 99.3 .... 87.4 ····\ 63$1,,.. ., .• 49,3 ,,.3 ,,,, ... ,

1963 r,735 1.6811,675 :r,671,70711,451/:r,38411.2r,171 951 518 407 316
100 196.9 96.5 96.5 98.4 83.6j 79.8174.1 67..5. 54.829.')j23.5 18.2
' 1

B. Percentage of European Childrenat School

24. Virtually all European children of school age in South West
Africa attend school. A small number of such children attend schools in
South Africa.

1 Vide para.U',supra. COUNTER-MEMORIAL OF SOUTH AFRICA SOI

1. Courses, Syllabuses and Examinations

l.COURSES AND SYLLABUSES

25. During the German regime the courses and syllabuses which
applied in Germany were, with certain modifications, followed in the
European schools in South West Africa. After the Mandatory Adminis
tration was established the courses offered were bascd on those of the
Cape Province of South Africa.
Up to 1956 provision was made for an eight-year primary course,
namely the two sub-Standards A and B and Standards I to VI. This
was followed by a two-year secondary course for the Junior Ccrti:ficate,
and afurther two-year course for the Senior Certiftcate.
As from 1956 these courses were reorganized to provide for a seven
year prima!}' course up to the end of Standard V, a three-year secondary
course for the Junior Certificate, and a further two-year secondary
course for the Senior Certificate.
The primary course has always been what can be described as a
"fiat course". There is no choice of subjects and all the pupils have

to take the same courses, except that girls and boys are offered different
handwork subjects and that German-speaking pupils study German in
addition to the other subjects. The subjects are: English, Afrikaans,
arithmetic, history, geography, nature study, handwriting, religious
instruction, health education, music and handwork.
As from 1956 the three subjects history, gcography and nature study
have been combined into one subject, called environment study, for
the two sub-standards and Standards I and II.
The syllabuses used have always been those of the Education Depart
ment. of the Cape Province, modified, whcre necessary, to suit local
conditions.

26. The secondary courses, which until quite recently were alrnost
exclusively of an academic nature, at present allow for somc measure
of differentiation. Pupils can now follow:
(a) a strictly academic course;
(b) a general course;
(c) a practical course (with two handwork subjects);
(d) a commercial course.

The handwork subjects referred to are woodwork and metalwork for
boys, and needlework and domestic science for girls. The number of
pupils taking these subjects is, however, very small. Only three schools,
for example, offer metalwork at present, and in order to place the
teaching of these subjects on an economical basis, the Department is
consideringlimiting the number of schools at which such subjects may
be offered.
The commercial subj ects offered are: bookkeeping and typewriting at
high and secondary schools, and shorthand at high schools. The number
of pupils taking commercial subjects is satisfaètory, so that these subjects
can be taught at ail high and secondary schools.

27. Subject differentiation is, howeve'r, limited by the f9llowing
factors:
(a) The nurnber of pupils in each class must be sufficiently large to u,,
P:ER ANNUM 0
t,J

1926 1947 1953 1955 1958
Category 1 1 Primary Primary PYimary and Primary and Primary and
schools schools secondary schools secondary schools secondary schools

A R360 X 30-810 R6oo x 50-1,150 R650 X 50-1,500
\A,::uOA-.at.5-40.JJ\ If..0, \.,, If" "'" -.,..,". ' U.4..1..,.._Z5-uvvI \;t5uv .,...,9vu .,.-..v•I,.,,c.vu1
\.t.lO ,...=5-5i51 U.3-"'.JA "-J-/50/

B }y50 X 30-810 R700 X 50-1,250 R750 X 50-1,700 R970 X 50-1,920 Rz,roo X 100-1,800 x 120-2,640
(i550 X 5()-900 X 6o-1,320)
(_l'.i:25X 15-405) ([350 X 25-625) (l375 X 25-850) {i485 X 25-960)

C R540 X 30-810 R8oo X 50-1,350 R850 X 50-1, 750 Rr,070 X 50-1,970 R1 ,200 X 100-1,800 X 120-2,76o

([270 X 15-405) (i400 X 25-675} (i425 X 25-875} (i535 X 25-985) (i6oo X 50-900 X 6<>-r,380

D R540 X 30-810 R850 X 50-1,400 R950 X 50-1,800 R1,170 X 50-2,020 R1,400 X 100-1,800 X 120-2,880

([270 X 15-405) (.l425 X 25-700) (.l475 X 25-900) (i585 X 25-1,010 ([700 X 50-900 X 6o-1,440)

E R540 X 30-810 Rgoo x 50-1,450 R1,050 X 50-1,850 R1,270 X 50-2,070 R1,6oo X 100-1,800 X 120-3,000

(J:270 X 15-405) ([450 X 25-725) (.l525 X 25-925) (i635 X 25-1,035 ([800 X 50-900 X 60-1,500)

F R1,150 X 50-1,900 R1,370 X 50-2,120 R1,700 X 100-1,800 X 120-3,120

(l575 X 25-950) ([685 X 25-1,06o) (!850 X 50-900 X 60-1,560)

1The categories A to F have at a11times roughly represented from one to six years' successful and recognized training after matriculation
(Standard X). Category G was a special higher category. COUNTER-MEMORIAL OF SOUTH AFRICA 503

allow of a choice of subjects, for if the section of a class taking
any partic~ar subject is too small, it results in an uneconomical
use of staff. It follows that little, jfany, differentiation in subjects
is possibleat the smaller schools.
(b) Ail schools are obliged tô ·offer courses which prepare pupils for

university entrance, and when this requirement has been met, the
choice that remains is limited, especially in the smaller schools.
(c) Lack of suffi.cient qualified staff often prevents the introduction
of certain subjects.

l l. EXAMINATIONS

28. Ail exaininations in the primary standards are taken internally,
and promotions are controlled by the inspectors of schools. In the
secondary courses interna! examinations are also taken in Standards VI,
VII and IX.
Public examinations are written at the end of Standard VIII and X.

The South West African Department of Education conducts its own
Junior Certificate examinations. The Standard X candidates write the
Senior Certifi.cate Examination of the Education Department of the
Cape Province of South Africa.

J.Salaries and Emoluments

29. The remuneration of European teachers in the service o{the Edu
cation Department is at present composed of 1:

I. A salary, determined in accordance with prescribed salary scales,
based on the teacher's qualifications.
Special scales apply in the case of principals and vice-principals
of schools, depending on the grade of the school concerned.
II. A special allowance, payab1e to teachers who hold a teacher's
diploma.

I. SALARIES

30. The salary scales which were applicable in the case of European

male teachers, as detennined in the years 1926, 1947, 1953, 1955 and
1958, are reflected in the table opposite:

1 No particulars are given of the cost-of-living allowance which was payabto
European teachers until 1 October 1958 when increased salary scales came into
operation. Nor are particulars given of the non-pensionable allowance which became
payable to teachers after the said date in lieu of the cost-of-liv:ing allowance, and
wbich no longer applies to teachers entering the service after 1 April 1963, In
respect of teacbers in receipt of such non-pensionable allowance a1 April 1963,
special provisions apply to bring their emoluments into confonnity with tsalary
scales in operation at present. SOUTH WEST AFRICA

SJ!CONDARY SC::HOOIS
1
Cakgory z9a6 I947

A ... . . . .. . ... ... R390 X 30-1,140 R650 X 50-1,300
(J;z95 X 15-570) (!325 X 25-650)

B .....•....•... R.f8o X 30-1,140 R750 X 50-1,400
(!240 X 15-570) ([375 X 25-700)

C ..••••...••..• R570 X 30-1,140 R8oo X 50-1,500

(,6285 X 15-570) (1;400 X 25-750)

D ... . . . .. . ... . . . R66o X 30-1,140 RS50 X 50-1,6oo
([330 X 15-570) (.6425 X 25-800)
--·
E ... ..• ..• • • • + + 1. R750 X 30-r,140 Rgoo X 50-1,700
(.6375 X 15-570) (,!450 X 25-850)

F .... • 1 ... +. . .. R950 X 50-1,800
(.6475 X 25-goo)
-
G ..........•... R1,ooo X 50-1,900
.. (1;500 X 25-950)

1
Tb e categories A to F have at all times roughly represented from one to six
year's successful and recognized training after matriculation (Standard X). Cate
gory G was a special higher category.

Women's salary scales were, as they still are, somewhat lowcr than
those applicable to men, on the principle that male teachers should be
enabled to provide for the needs of themselves and their familles. These
scales, as determined in the years 1926, 1947, 1953, 1955 and 1958, are

not set out here.
31. The salary scales set out in the tables below have been applicable
to European male and female teachers in prirnary and secondary schools

since 1 April 1963.
MEN (P.l!R ANNtllil)

Catego,yl Scale

A R1,2o6 X 102-1,920 X 120-2,76o

B R1,308 X 102-1,920 X 120-2,8So
C Rr,512 X 102-1,920 X 120-3,000

D (i)Without recognized university
degree ............... . R1,7I6 X 102-1,920 X 120-3,36o
(ii)With reco1fnized university degree R1,920 X 120-3,36o

E (i)Without ::ecognized Honours or
Masters degree . . . . . . . . . . R1,9:zo X 1:zo-3,6oo
(ii)ith recognized Honours or
Masters de1~ree• . . . . . . . . . R2,16o X 120-3,6oo

F (i)Without recognized Doctor's degree R2,16o X 120-3,840
(ii) With recognized Doctor's degree R2,400 X 120-3,840

1Ditto. COUNTER-MEMORIAL OF SOUTH AFRICA 505

WOMBN (PBlt ANNUM)

Category 1 Scaù

B. Rl,I40 X 6o-1,440 X 84-2,280 X 120-2,400

C. Rt,320 X 60-I,440 X 84-:2,280X 120-2,520
D (iWithout recognued uni
versity degree . . • . R1,440 X 84-:2.280X 120-2,880

(iiWith recognized university Rt,692 X 84-2,280 X no-2,880
degrec.
E (iWitbout recognized Hon·
ours or Masteni degree. . . R1,692 X 84-2,280 X 120-3,120
(ilWith recognized Honours
or Masters degree . . • . . .
R1,S6o X 84-2,280 X uo-3, 120
F (i) Without recognized Doc· --------
tor's degree . . . . . . . . . R1,86o X 84-2,280 X 120-3,360
(iiWith recognized Doctor's
degree .......•• , ..
R2,02S X 84-2,:zBoX 120-3,36o

1 The catego1ies A to F have at ail times roughly represented from one to si)[
year's successful and recognized training after matriculation (Standard X). Cate
gory G wa.s a special higher category.

32. Special scales, detennined in accordance with the grade of the

school concerned. applY.in the case of principals and vice-principals of
schools. As from 1 April 1963these scales are:

PRINCIPALS

Grade of School Mm (pe,- annum) Women (pe, annum)

Higher special . . . . ~.650 (:lixed) R4,200 (fixed)
Higher or Secondary A . R4,500 (fixed} ~.080 (:lixed)

Higher or Secondary B . ~.350 (fuc.ed) R3,96o (fixed)

Higher or Secondary C. R4,200 (fixed) R3,840 (fi.xed)
Higher or Secondary D .
~.080 (fixed} R3,720 (fixed)
Higher or Secondary E . R3,96o (fixed) R3,6oo (fi.xed)

Lower special . . . . R.t-,35{futed) R3,g6o {fi.xed}

Lower A. ~.200 (fixed) R3,720 (fi.xed)
Lower B. ... R3,960 (fixed) R3,480 (fi.xed)

LowerC .... .... Teacher's salary plus Teacher's salary plus
4 notches to maxi- 4 notches to maxi-
mum R3,720 mum R3,240

Lower D .......... Teacher's salaty pl'1S Teacheî's sa.lary plus
3 notches to maxi- 3 notches to maxi-
mum R3,480 mum R3,ooo

LowerE. , ..... , •.. Teacher's salary plus Teachet's salary plus
2 notches to maxi- 2 notches to maxi-
mum R3,240 mum R2,76o5o6 SOUTH WEST AFRICA

VIClt PR[NCIPALS

Grade of school Men (per annum) Women (per annum)
Higher specia.l . . . ... I4,ioo (fixed) R3,720 (fixed)

Higher A .... . . .' ~ I4,080 (fixed) R3,6oo (fixed)
-
Higher B .... . .. .. R3,96o (fixed) R3,480 (fixed)

Lower special . . . .. .. Teacher's salary plus Teacher's salary plus
4 notches to maxi- 4 notches to maxi-
mum R3,840 murn R3,36o

LowerA ..... , , .... Teacher's salary plus Teacher's salary plus
4 notches to maxi- 4 notches to maxi-
mum R3,7::zo mum R3,240

IL SPECIAL ALLOWANCE

33. In addition to their salaries, all European teachers who hold a
teacher's diploma are paid a special allowance of R200 (frno) per year.
This allowance was introduced in 1952 to attract and encourage teachers
to exercise their profession in South West Africa.

34. As will appear from the aforegoing tables the commencing salary
of a married male teacher in the lowest category increased from R36o
([I8o) in 1926 to Rr,206 ([603), plus a special annual allowance of R200
(froo), i.e., a total of R1,406 (f703), in 1963. This represents an increase

of 291 per cent.
The maximum salary of such teacher increased from R810 (f405) in
z926 to R2,76o ([z,380): _plusa special annual allowance of R200 ([Ioo),
i.e., a total of R2,960 {lI,480), in 1963. This represents an increase of
265 per cent.

K. Expenditure by the South West Africa Administration on
European Education

35. Particulars of expenditure by the Administration on the education
of European children over various years are refl.ected in the following
table:

Gouemment schools: Private schools: Gouernment and privaù
Year total total schools combined :
and per capita 1 a,nd per capita total and per capita

1940 Total:
R19r,126 (,l95,563) R1,926 (.!963) R193,052 (.l96,526)

Pe-rcapit,i:
R34.75 (b7 7s. 6d.) R:z.28 (,lr2S. Jod.) R3r.oo (J:15 IOS.) COUNTER-MEMORIAL OF SOUTH AFRICA

Gove,nmenl schools; P,ivate schools: Govwnment and p,ivale
Year total total · schools combined:
and per capita 1 and per capita total and per capita

1950 Total:
l44S,906 u;224,453) R:t,6o8 (lr,304) R451,5I4 U:225,757)

Pe7 capila:
R61.75 ([30 I7s. 6d.) RI.59 (li 5s. ud.) R54.51 (i:t7 5s. Id.)

196o Total:
Rl,474,930 {L737.465) R.44,638 (L22,3I9} R1,5i9,56S (i:759,784)

Per capita :
R107.11 ([53 IIS.Id,) R:z5.46 ([I2 4s. 7d.)R97.89 ([48 18s. nd.)
-
1963 ToW:
RI,830,125 (l915,o62) R61,478 (t:30,739) RI ,891,6o3 (i:945,802)

Per capit.1;
Rn7.7S (1;5817s. 9d.)R30.1S (txs 1s. 9d.)R107.6:t ([53 16s. 2d.)

The amounts teflected in the above table as per capita expenditure
do not include hostel exeenses, as the major portion thereof is recoverable
from the parents of pup1lsboarding in school hostels 1•

~- Voc~tional and Tecbnical Training

0
I. AGR[CULTURAL SCHOOLS

36. Two early attempts were made by the Administration to provide
for training of European children in agriculture. The first was the

establishment of an agricultural school at Gammams, a farm near
Windhoek, where a practicaJ course of two years was offered to students
who had passed Standard VI. On coropletion of the course, trainees
were placed with progressive farmers for further practical training 2•
The second was the establishment at Stampriet, in 1928, of a "Burger
skool", a country school where the main emphasis was placed on instruc
tion in agricultural and practical subjects. Here boys and girls who had

passed Standard VI could follow a two-years' course in horticulture,
poultry farming, woodwork and metalwork {for boys), and domestic
science (for girls). Cultural subjects, such as religions instruction, lan
guages, history and civics, were also taught 3•
By 1943 both these attempts at providing vocational training for
future fanners had been abandoned for lack of support. Most parents,

it appeared, preferred to let their children take the academic course
offereô.at the seeondary and high schools.

t Yirü para.5, sura,
• Vida Lem.mer, op. tit., p16i.
J Ibid., pp. 163-166. ·'
5o8 SOUTH WEST AFRICA

At present th,~ Agricultural Branch of the Administration offers a
two-year practical training course in agriculture at the Neudamm Agri
cultural Colle~e near Windhoek. European boys in possession of the

Junior or Senior Certificate are enrolled for this course, but preference
is given to those who have obtained the Senior Certificate, The College
can accommodate a maximum number of 32 students.

Il. SCHOOLS

37. In the differentiated secondary courses offercd since 1955, pro
vision is made Jor instruction in certain handwork subjects, such as
woodwork and metalwork for boys, and domestic science and needle
work for girls 1• These courses also provide for the teaching of certain
commercial subjects, bookkeeping, typewriting and shorthand 1•
A system of evening classes for apprentices was introduced at Wind
hoek in 1961. Three lecturers were appointed for the purpose, and in
1962 a total of 47 apprentices attended lectures in motor mechanics

theory, mathematics and machine construction and drawing.
Periodic investigations have shown that the demand for technical
training is not such as to justify the high costs which would be involved
in the creation of such facilities. Students wishing to receive technical
training can proceed to any one of a number of technical schools in
South Africa.
In 1955 there were 33 students from South West Africa at such
institutions in South Africa. Four of thern were girls taking courses in
domestic science, while the 29 boys were taking n different courses at
2
11 different schools • At present there are 76 boys and 17 girls taking
technical courses at institutions in South Africa.

Ill. TEACHER TRAINING

38. Before the Second World War very few matriculants from South
\Vest Africa took up teaching as a profession. There were never more
than threc per year, and in the 15 years from r925 to 1939 an average of
less than two per year. During that period South West Africa depended
almost entirely on South Africa for its suppl y of European teachers.
Since the war there has been a considerable increase in the number of
teacher trainees, both for primary and secondary work. This is probably

to be ascribed largely to increased salary scales for teachers, and to the
financial aid offered since 1950 by the Administration in the form of
bursaries and loans.
Nevertheless there has been, and still is, a considerable shortage of
properly qualified teach~rs. To relieve the situation, many married
women are employed on a temporary basis, and use has to be made of
persons not fully qualified to teach certain classes and/or subjects.
It has as yet not been considered feasible to train European teachers
within the Territory. Student teachers have to attend teacher-training

institutions of the Provincial Departments of Education in South Africa.

1 Vide para. 26,supra.
2 Vide Reporl of the Education Commission I958 (S.W.A.), para. Il4 (b), p. 52. COUNTER-MEMORIAL OF SOUTH AFRICA
509

39. Ail teacher training provided for European students in South
.Africa since 1928 is post-matriculation. Most of the institutions offer
a course of two .years for women, with the option of a third-year's
·specialized course 10 infant school method, needlework, domestic science,
music, art, physical education, or academic subjects. Men usually take

a three-year course, specializing in subjects such as handwork, physical
education, music, art or academic subjects. · ·
Secondary teachers are trained at universities. The Lower Secondary
Teachers' Diploma is obtained after three-years' post-matriculation
,study, the course being partly academic and partly professional. The
lowest post-graduate certificate obtainable is the Secondary Tcachers'
Diploma.
Students at universities can also take degrees in education. · ··•1
....
î•,.
IV. TRAINING OF NURSES .....,,~,

40. As already stated 1,there were no facilities in South We~t 'Africa
for the training of European nurses before 1960. In that year a training
·school for European general nurses was establish~d ·at the Windhoek
State Hospital. '
Trainees must hold a matriculation certificate, althougli a Matron

may adm,it to the training course students who have obtained a first
-class pass in Standard VII l with, inter alia, mathematics and science as
subjects. . · ·
In·-i960there were 47 trainees, in 1961 there were 53, and in 1962, 6~:

M. Higher Education

41. The only post-matriculation education for European children in
2
the Territory is provided by the Neudamm Agricultural College .: '. •.•
The'demand for higher education has never been such. as to warrant
the establishment of a local university, or a col\ege for vocational training.
All students who wish to attend a univcrsity or a collcge for vocatiôn~l
training proceed elsewhere, mainly to institutions in South Africa. ,. ···
42. The Administration grants financial assistance of the following
nature to such students:

(a) A maximum of 50 merit bursaries of Rno (f6o) per annum {plus
Joan of R300 (f150) per annum) are awarded each year to students
who wish to take up teaching as a career. Candidates agree to take
up teaching posts 1n South West Africa after completion of their
studies for as many years as they receive financial assistance, but
in any event for a period of at least two years.

(b) A maximum of six bursaries, each of R400-500-5oo-600 (f200-
250-250-300) are awarded annually to students who wish to
qualify as secondary teachers.
Thcse bursaries-which, like those mentioned under (c) below,
are available to European, Native and Coloured students-are
awarded on merit, and applicants undertake the same obligations
to the Administration as set out in (a} above.

1 Viik Chap. VI, para. 6, swpra.
2 Vide para. 36, supra. SOUTH WEST AFRICA

(c) A maximum of six bursaries, each of R.400--500-500-600 ([.200-
250-250--300), arc awarded annually in respect of courses followed
at a university in South Africa. Awards are made on merit to
encourage lJjgher education in fields in which the Administration

experiences a shortage of man-power.
(d) In addition to the abovementioned bursaries, study loans are, as
in the case of non-Europcan students, available to European
students who proceed to a university in South Africa.

N. Adult Education

43. Provision for adult classes has been made at Windhoek for a
number of years. These classes offer instruction in English, Afrikaans,
and German, some commercial subjects, and some hobby subjects, such
as dressmaking, millinery, spinning and weaving, art, needlework and
cabinet making.
Fees arc charged for courses in these subjects, save in the case of
apprentices, and the lecturers are paid by the Administration.
Therc has always been a demand for such courses at Windhoek, and

during the last few years requests for similar classes have corne from a
few of the Jargcr towns in the Terri tory.
In 1960 the control and organization of adult education was made
the special charge of the Education Department's professional assistant,
and the Administration's policy is to render this service in co-operation
with local bodies. Such bodies are required to appoint local commîttees
whose functions are, inter alia,to ascertain local needs and bring them
ta the attention of the Department, to create interest in the work, to
rnake the necessary arrangements for classes, and to exercise a measure
of control over the work in their respective centres.
It is the view of the Administration that the initiative in promoting
this type of education should proceed from local bodies and that, although
it should, initiaIIy at Ieast, g:we financial assistance, the very usefulness
of the system lies in its being maintained by private individuals or organ
izations. CHAPTER VIII
, .

RESPONDENT'S REPLYTOTHEALLEGATIONI SNTHE ' .
APPLICANTSM ' EMORIALS .j.

I. In Chapters II to VII above Respondent dealt with the history

and developrnent of education in South West Africain the light-of the
particular circumstances of, and the conditions prevailing in, the Terri~
tory. . .
This Chapter deals specifically 1 with the allegations made' by Appli
cants in their Memorials relevant to education-i.e., in Chapter V.
Section B 2, and Chapter V, Section C 3• • ' • ·

2. With regard to Applicants' "Statemcnt of the Law" 4. ~espondent
refers to its submission in Book IV of this Counter-Memoria.l.relative
to Applicants' formulation, with reference to the provisions of Chaptcrs
XI, XII and XIII of the Charter of the United Nations, of so-called
"legal norms". Respondent is, however, in agreement with Applicants to

the extent that its own conception of its duties under Article 2 of the
Mandate includes (to employ the Applicants' words) the "educational
advancement" of the people of the Territory, and their "social develop
ment ... based upon self-respect and civilized recognition of their worth
and dignity as human beings'' 4•
Respondent bas, as indicated in the aforegoing account of the history

and development of education in the Teuitory, conscientiously striven
after attainment of these ideals, and bas corne to a stage where, after
long perseverance, substantial results on an ever-increasîng scale are
being achieved with regard to Native education.

4
3. Paragraphs I55 and z56 •

(a) Subject to what is stated in sub-paragraph (b) below with regard
to the Eastern Caprivi Zipfel, these paragraphs are admitted.
Particulars regarding the control and administration of education
in South West Africa are contained in Chapter III above, from which
it will appear that Respondent exercises control over educa.tion in

the Territory (excluding the Eastero Caprivi Zipfel) through its
representative, the Administra.tor, in whom vests the "general
control, supervision and direction of education" 5•
(b) Education in the Eastern Caprivi Zipfel is also under Respondent's
control, but through the agency of the South African Department
of Bantu Administration and Development 6•

1On the assumption stated in Chap. I, para. 6, supra, namely that the Mandate

is2tiU in force.
1, pp. 152-153.
l Ibid., pp. 165-166.
c Ibid., p.152.
5 Proc. No. 16 of 1926 (S.W.A.), sec. 2,in Laws of South West Afri«&, Vol. Il
(1923-r927), p. 228.
6 Vide Chap. V, para. 82, supra.512 SOUTH WEST AFRICA

4. Paragraph I57 1•

This paragraph is correct in substance. The Commission and its
report have repcatedly been referred to in the aforegoing Chapters. In
regard to Native Education the Commission's suggestion, referred to
by Applicants, in fact read that "consideration should be given to the
desirability of 1:ransferring Native educatfon in South West Africa to
the [South African] Department of Native Affairs (13antu Education)" 2•

It was decided, however, to leave the position as it was-at least
for the time being.

5. Paragraph r58 3•

(a} lt is correct that the educationalsystem of the Territory is organized
in three separate divisions, in the sensc that separate schools are
maintained for Europcan, Native and Coloured children.

At the time when the Mandate was assumed there were separate
facilitics for the children ofthe White group, and forthe Native groups,
and to a lei;ser extent also for the children of the Coloured group 4.
Under the Mandate the education laws of the Territory provided for
separate facilities for the children of the different population groups 5,
a position which is still maintained.
It is denied that the policy of separation as applied by Respond

ent in the Territory consfüuted, or constitutes, the application of
any doctrine, called by whatever name, according to which-
"... the st.atus, rights, duties, opportunities and burdens of the

population of the Territory are detennined and allotted arbitrarily
on the basis of race, color and tribe, without regard either to the
needs or capacities of the individuals or groups affected or to the
duties of [Respondent] under the Mandate 6",

as is alleged by the Applicants. As fully explained in Chapter IV A
above, the policy of continuing with the provision of separate facili
ties does not rcst on any arbitrary basis, or on disregard for the
needs and capacities of the various groups and indîviduals affected
thereby, nor was itin conflict with the duties imposed upon Respond

ent by the Mandate.
On the contrary, Respondent's policy in this regard is based on
what are considered to be sound reasons, concerned solely with the
needs and capacities of the respective groups, including specifically
their "Social development ... based upon self-respect and civilized
recognition of their worth and dignity as human beings" 1• Respond
ent believes that in so far as educahon is concerned, the provision of

separate schools for the varions groups is the best, and most probabl.

1 1,p. 152.
2 Rep(Wt of the Commission of Inqufry inlo Non-European Education in South
West Africa (r958}, Part I, para. B.r57 (c), p. 144.
3 1, pp. I52-153.
• Vide Chap. II, supra.
' Vide Chap. IV, paras, 2-4. supra.
6 l,p. 153. COUNTER-MEMOR[AL 01' SOUTH AFRlCA 513

the only effective method of discharging its obligations under the
Mandate in respect of each of these groups.
(b) The honourable Court is respectfully referrcd to Chapter IV A
abo\;'!à:.-nYh~riet is shown, inter aJia, that differences between the
Whit_e,:!iativ.e and Coloured population groups of the Terri tory in
regardJtOJevels,of development, cultures, languages and needs and
capaciti~!?have at all tirnes called for a policy of differentiation in the
1
schoo!iqg of the children_of the various groups •
The system of having. separatc schools for different population
groups, not only in South West Africa, but also in other mandated
territories, was.well known to the Permanent Manda.tes Commission
and the Council of thé League of Na_tions,and at no tirne during the
existence of t\le League was it suggested that the system was educa

tionally. u2sount;l pr in conflict 'Yith .Respondent's duties under the
Mandate • . •• •
Not only is °the system of separate ·schoÔlingin accordance with
the wishes of the vast majority of the population of the Territory 3,
but it is also in line with the views of educationists of standing 4 and,
in particular, gives effect to those vfows in so far as the Native
population of the Teqitory is concem1::d, and also to the desire,

shared by Africans generally in African territories, that education
for the African should, rest on a foundation of specifically African
cultures and should serve to revive African civilizations 5•
{c) Asystem of mixed schooling in the Territory would prevent Respond
ent from doing justice to ail the population groups, more particu
larly in the following respects:

(i)promoting the development of the different languages spoken
by the various groups, and applying the sound and accepted
policy of mother-tongue education 6;
{ii) provtding suitable srllabuses in accordance with the needs of

the difforent groups ;
(iii) fostering among the different groups, which constitute different
social entities, an interest in the schooling of their cbildren, and
promoting participation by the different parent communities in
such schooling a;
{iv) providing facilities for each group in keeping with its particular

need of education, in step with stages and trends of develop
ment, and in accordance with the opportunities, existing and in
the course of creation, of employment for itseducated youth !>;
and generally in the development of educa.tion with due regard to the
customs, cultures and stages of development of each of the popu

lation groups.

1 Vidl Chap. IV, paras. 2-43, supra.
• Ibid., paras. 44-48.
1 Ibid., para. 50.
• Ibid., paras. 51-52.
1 Ibid., paras. 54-61.

• Ibtd., paras. S-22.
1 Ibid., paras. 23-31.
Ibid., paTas. 32-43.
' Ibid., paras. 63-74. SOUTH WEST AFRICA

6. Paragraph I59 1• .'l
• 1 4 1 • 'I":·j'' '
Applicants statement that a European child lias..to attenq school
"until the age of 16 and completion of Standard VIIÇi (itâJiçs added)
is n?t correct. The true position is.that a child is obliged t<?att~~d school

until completion of the year in which he becomes 16.unless,he has passed
Standard VllI before that time •. Before.1955 the minimum scholastic
attainment required for exemption from; compulsory~âtténda_nce was
Standard VI 3• . .
The comparison of the ed_ucatjon offfred to European children in

South West Africa with that given in the United Kingdom, the United
States and the coritî~ental coùntries of Western Europe is sùbstantially
correct, except for local adaptation.s andhmitations that will, to some
extent, be apparent from t.h~-~~cussion of E1:1fopean.education in
Chapter VII above •.

1 ~:l ~~-}:;+Jll"4.j.;tl rll •,'•
7· ParagraphI6o : , . :·-~:.,,iî rU'·"t·. ..

(a) 1t ïs true that èctucatio~··tci ';tb.lil'tib ii'atise groups and for the
Coloured group has not yet bée'n ·madé compu!sory in South West
Africa, but in so far as it is suggested that this is because of unfair
discrimination against the groups concerned, such suggestion is

denied. Any suggestion that compulsory education for the Coloured
or Native groups should, in the interest of the groups concemed,
have been introduced bcfore now is barn of a failure to appreciate
the facts and the factors involved-factors which are basically
similar to those encountered by governments in many African
terri tories.

Respondent does not wish to repeat what has already been said in
this regard and respectfully refers to Chapter IV above 5•
(o) In regard to compulsory education for Co1oured chi1dren, the
position is that more than 80 per cent. of ail Coloured children of
school-age now attend school, although the wastage factor is still

high, and that a stage has been reached where compulsory education
can be selectively introduced for the Coloured group in particular
areas. The 1958 Commission of Inquiry into Non-European Educa
tion recommended that the initiative in the matter be left to the
Coloured school boards; and the Education Ordinance of 1962
empowers the Administrator to introduce compulsory education at
6
any state school for Coloured children •
(c) In regard to the question of compulsory education for Native children
in South West Africa, reference should be made to Chapters IV and 7
V 8 above, where Respondent dealt with various difficulties which

t I, p. 153.
2
Proc. No. t6 of 1926 (S.W.A.) as amended, sec. 87 (1), in Laws of South West
Africa, Vol. II (1923-19z7), p. 286,
' Vide Chap. IV, paras. 76-77, supra.
+ Inter alia, the particula.rs of courses oflered aset out in paras. 25-27 th~of.
' Vide Chap. IV, paras. 75-95, supra.
• Ibid., para. 78.
7 Ibid., para.$. 79--83.
• Vide Chap. V, Jlaras. 2-30, supra. COUNTER~MEMORIAL OF SOUTH AFRICA

have served to retard the education of Native children in the Terri
tory.

Similar difficulties have becn expcrienced with regard ta the
education of Natives in South Africa I and in other terri tories in
Africa 2•
While it is Respondent's desire and aim to make education· coni 1
pulsory for ail chlldren in South West Africa 3,it is, in view of the

difficulties aforestated, as yet not advisable or practicablc to do so iri
respect of the Native groups, although selectivc application of the
principle in particular areas may Œcome fca.sible in the foreseeable
future i. In other African territories universal compulsory edtièatio!}
lias, for similar reasons, not been feasible as yet 2,or has, where in
5
fact introduced by law, been impossible ta implement •
(d) Respondent's efforts in promoting the education of the Native
groups in South West Africa have resulted in the enrolment as at

196! of approximately 44 percent. of the school·age Native children
in the Territory 6, which compares very favourably with what has
been achieved in other parts of the continent of Africa where
education has had a much longer history, including the Applicant
States 7•

With regard to Applicants' allegation that "segments of the 'Native'
and 'Coloured' population have requested compulsory education" \
Respondent respectfully refers to Chapter lV above 9, wherc it

is indicated that the 1958Commission of lnquiry into Non·European
Education in South West Africa was requested by the Coloured
Teachers Association to recommend the introduction of compulsory
education for Coloured children, but that the Commission made the
more qualified suggestion that the initiative in the matter be left to
9
the Coloured school boards •
None of the Native groups requested the said Commission to
recommend the introduction of compulsory education for Native
children 10• Occasional requests for compulsory education from
Native parents in the past have shown that such parents failed to

arpreciate that failure to send a child to school under a system
o compulsocy education would make its parents liable to penalties at
law 11•
1t is the policy of the Administration to give attention to all
relevant factors before deciding that compulsory education can with

advantage be introduced for some or all of the Native groups of the
Territory, and to determine the timc and manner of the introduction
thereof in consultation with the groups concemed.

1 Vid~ Chap. IV, paras. 86-88, supra.
2 Ibid., paras. 89-94, supra.
s Ibid,, para. 75.

• Ibid.,paras. 84·8.5.
s Ibid.,para. 94 (3).
• Ibid., para. 85, and Chap. V, paras. 57-58, supya,
1 Viiù Chap. V, paras. 59-6o, supt-a.
• I,p. 153.
t Pa.ra. 78.
10 Ibid.,para. 8o.
n Ibid.,para. 82,516 SOUTH WEST AFRlCA

S. Paragraph16I •

This parai;;raph is admitted. For particulars as to the type of schools ·
for Natives m South West Africa, refercnce should be made to Chapter
V above 2• The provision for the recognition of mission schools has
p~o.vcd bcneficial for Native education: it encourages missions to pro

vide bctter facilitics, and serves to ensure a unifonnly good_.standard
of work. 1 t is signilicant that a similar system seems to hav,é"I?eenfol
lowcd in othcr parts of Africa, i.e., of subs1dizing "approved'.', ôr "aided"
schools 3 • . . .

•. t .•'·
g. ParagraphI621. l ·,;

(a) It is correct that comparatively few schools provid.e a course of
instruction beyond Standard VI, but it is incorrect to say that

"Opportunity for education beyond 'Standard VI' for 'Native' and
'Colourcd' düldrcn is almost negligible". There are at present four
schools for children of the Native groups in the Tèrritory which offer
secondary courses, including one high school (the Augustineum •).

AH four of these institutions foi.vehostcl facilities ..At .the Augusti
neum, as pointcd out before 5 ,students receive free board and lodg
ing, free books, and frce transport to and from their homes. Despite
all the facilities offered. the numbcrs of those who are willing to
5
utilize them are disappointingly smaH • There is no objection of
principle or policy to establish.i.ng further govemment high schools
for Natives, but there can be no point in doing so when full use is not
made of the existing facilities at the Augustineum.

As far as Coloured education beyond Standard VI is concerned,
there is at prescnt one high school with hostel facilities. This is just
about sufficient to cope with the present demand, but a new high
school with full hostel facilities is now in the course of construction

at Rehoboth and further schools will be built at Windhoek and
Keetmanshoop in the near future.
(b) As to Applicants' allegation that instruction reaches the Standard
VI level' only when there are sufficient pupils to make the addition
of classes and teachers appear justifiable to the Territorial Adminis

tration", the position is that a class can be established when there
is a minimwn of five.pupils for such class, save in Ovamboland,
where the minimum ïs ten 6 •
The requirements, though minimal, cannot be dispensed with in

view of the shortage of teachers, which necessitates regulation to
ensure that available teachers are utilized in a manner which would
benefit the maximum number of children. Respondent refers in this
regard to Chapter V above 7, where particulars are given of the

i I, p.153.
2 Paras. 38-40.
3 Vide Chap. V, para. 37 (a) (Southern Rhodesia); para. 37 (b} (Nyasaland);
para. 37 (e) (Ruanda-Urundi); para. 37 (g) (Ghana).
4 Vide Chap. V, paras. 47, 5z, 67, 68.
~ Ibid., para. 47.
' Ibid.,paras. 46 and 52.
1 Ibid., paras.22-.Jo. COUNTER-MEMORIAL OF SOUTH AFRICA

efforts which have been made ta train Native teachers and to im
prove their qualifications, and of the difficulties which have been
encountered in that regard. It also appears from the same Chapter that
a shortage of properly qualified teachers has similarly retarded
education in other countries in Africa J.Such shortages inevitably
result in most education being limited to the primary level.
Moreover, the position obtains in European schools also that the

highest standard m the curriculum of any particular school is subject
to the approval of the Director of Education 2•
In 1963, for example, only 13 govemment schools out of a total
of 61 offered classes above Standard V J.
Such regulation of curricula, bath in the case of European and
Native schools, is a practical one designed ta operate in the interests
of education, and nothing sinister attaches toit.

10. Paragraph I63 ~.

Applicants, for the purpose of comparing enrolment at school of
European and Native childrcn in South West Africa, make certain cal
culations which are partially based on estimates.
It would be safer to make calculations on known, rather than on
estimated, figures. According ta the 1960 census the European popula
tion in that year was 73,464. The number of European ch.ild.ren at
govemment and private schools was 16,257, which means that about

22.13 per cent. of the total European population attended school in
South West Africa s.
The Native population of the Territory (excluding the Eastern Caprivi
Zipfel) in 1960 was 412,735, and the number of children of the Native
groups at school was 37,801 5• This means that about 9.16 percent. of the
total Native population attended school. ·
As has been shown in Chapters IV and V above 6, many factors

beyond Respondent's control account for the difference in school attend
ance between the groups-factors which have, to a greater or-lesser
degree, also manifested themselves in a number of otber territories in
Africa where schooi attendance statistics are remarkably similar to,
and in some cases considerably lower than, those of the Native groups
in South West Africa 7•
Perhaps the most important feature, however, is the constant and

steady increase in the percentage of children of the Native gro~s in
South West Africa who attend school. In 1951, as shown above , the
percentage of children of school-age who attended school was about
30.3, and by 1960 it had risen to 39.8. The percentage increase in the

1 Vide Chap. X, paras. 31-32.
z Proc. No. 16 of 1926 (S.W.A.}, sec. 32 (r}in Laws of SQ11.thWest Africa,Vol. Il
(1923-1927), pp. 244-246. '
' Vide Chap. VII, para. 22,supra.
• I,p. 154.
' Vide Chap. V, para. 57, sufwa. . .
6 Vide in particular Chap. IV, paras. 75-85, a.nd Chap. V, paras. 2.30,sup,-a.
1 Vide Chap. IV, paras. 89-94, and Chap. V, paras. 59-6o. . '518 SOUTH WEST AFRICA

Native population between 1951 and 1960 was about 17.4, and during
the same period the school population increased by 54.1 •
In 1961 the percentage of Native children of school-age attending
1
schools in South West Africa was approximately 44 •

II. Paragraph.I64 2•

The system of recognizing mission schools for the purposes of payment

of subsidies is not applied in the northern territories. For a long titne
the generaJ standards of the schools were such that few, if any, could
comply with th~ requirements for recognition as applied in the Police
Zone. In the inü:rests of education the Administration therefore decided
on a policy of paying lump-sum subsidies to the missions concerned, to

be used at their discretion, instead of giving recognition-and, therefore,
financial aid-only to such individual schools as could possîbly be
regarded as complying with the requirements therefore 3•
Itistrue that inthe northern territories most mission schoolsoffercourses

of study up to approximately Standard III only. Unti1 1961, in the
northem territoiies, and until 1962 in the Police Zone, completion of
Standard III represented six years' schooling, viz., three sub-standards
and then three years thereafter. Since the years mentioned relative to
the said areas, completion of Standard III has represented five years'

schooling.
Educational advancement in the northern territories has been slower
than in the Police Zone, where education has had a longer history • and
where the Natives have been in doser contact with the education of
the European and with economic development. The particular condi

tions in the northem territories which have retarded educational de
velopment, and the graduai progress that has been made, were described
in Chapter V 5• A factor which particulariy inhibited progress was the
great shortage of teachers with the necessary qualifications to teach
pupils beyond the lower primary standards 6• For a long time circum

stances were such that the minimum requirement for admission to a
teacher-training •:ourse could not be raised beyond Standard II. Teach
ers with such qualifications could hardly be entrusted with the teaching
of children beyond Standard II or III, and there were no European
teachers who could be employed to do the necessary work. The only

remedy was to try to raise the qualifications of teachers gradually,
and it was not until 1961 that the minimum entrance qualification to
a teacher-training course in the northem areas could be raised to Stand
ard VI in the case of the one training school and to Form I (Standard
VII) in the case of the other one 7• In the Police Zone Standard VI

became the minimum qualification in 1952 8•
In 1g61, as shown in Chapter V above 9, the lower primary schools,

1 Vide Chap. V, t>ara. 58.
2 I, p. r54. •
3 Vide Chap. V, Jlaras. 5I and So, supra.
• Vide Chap. Il, paras. 1-2,supra.
J Vide Cbap. V, paras. 49-54.
6 Ibid., paras.22-.30.
1
8 Ibid., para.27.
9 Ibid.,para. 26.
Ibid., para. 35. COUNTER-MEMORIAL OF SOUTH AFRlCA

85 in munber, of the Finnish Mission in Ovamboland were taken over by
the Administration and converted into govemment community schools.
This was done as part of a policy to take over ail mission schools in the
Territory. There are already indications of more rapid progress under the
new system whereby Native parents play an active part in the promotion

of education.
It is true, as is alleged by Applicants, that the larger part of the Native
population live in the northern territories beyond the Police Zone.
While it is also true that most of the schools in the northern territories
at present offer courses of study up to approximately Standard III
only, it is misleading to suggest that Standard III "represents the limit
1
of education practically available to most of the 'Native' children" •
The establishment of higher classes depends only on the enrohnent of the
requisite number of pupils to constitute a class and, naturally, on the
availability of a teacher. This is a provision which also applies in the
Police Zone 2•As has been indicated 3, there has, in recent years, been
a steady increase in the number of pupils enrolled in the higher primary

standards, and it is confidently expected that the numbers will rise even
more rapidly in future, particularly as more schools are converted into
govemment community schools.

12. ParagraphI65 1•

It is true that there is only one high school for children of the Native
groups (i.e., up to Standard X), but, as has been shown, the facilitîes

offered at this school are not nearly utilized to the full despite free
provision of everything required by pupils, including travelling, board
and lodging, books and pocket money 4. lt is also correct that there is,
at present, only one high school for Coloured children. In this regard
Respondent refers to what has been stated above as to present demand
for and provision of more facilities 5•

In paragraph 165 of the Memorials the impression may be created
that ail European schools have a full range of classes up to Standard X.
This is not so. Only ro of the 61 govemment schools, and 3 of the 13
private schools, are high schools 6•
The facilities provided for the different groups accord with the de
mand for high-school education in each group. The system itself there

fore provides, in the case of each of the population groups, in so far as is
reqmred, a full range from the sub-standards through the primary
standards, the secondary standards and the high-school standard~. to
Standard X.

13. Paragraph I66 1•

(a) It is correct, as the Applicants state, that in 1959 there were 61
hostels for European children in the Territory: of these, 6o were

i I, p. r54.
2 Vide Chap. V, paras. 46 a.nd 52,supra.
' Ibid., paras. 55-6.
• Vide Chap. V, para. 47, supra.
' Vide para. 9 (a}, supra.
d Vide Chap. VII, pa.ra.22, as to governroent schools.520 SOUTH WEST AFRICA

govemment hostels and the other one a state subsidized hostel at
a govemrnent school. There were also live private school hostels. At
present then: are 73 hostels, govemment and private, for European
1
children •
For Native children there are at present 31 schools with hostel
facilities in the Police Zone {including the hostels at the Augustineum
and in the Aminuis and Waterberg East Reserves), and 27 mission
schools which have hostel facilities in the area outside the Police
Zone 2.
(b) One of the n:asons why the provision of hostels for Natives cannot

proceed on the same scale as for Europeans, is that in the case of
the latter th1:parents to a great extent bear the cost of the facilities
provided. The present policy is to fix hostel fees at such a level that
about 80 per cent. of the actual cost of the boarding of White children
is recoverable from the parents • Non-White parents, on the other
hand, are generally not in a position to make such a substantial
contribution in this regard, or any contribution at all.

(c) Even amongst the rural Native groups there are parts in which
Natives live in fairly close proximity to one another, e.g., along the
banks of the northern rivers. In such cases schools can be spaced
within reasonably short distances of the homes of a large proportion
of the childnm, and many of the other school-going children can be,
and frequently are, accommodated either in mission hostels, or else
with relative3 or friends in accordance with the custorilary practice of
mutual help which exists amongst members of Native groups. The

need for hostel accommodation is therefore not such a universal one
in the case of the rural Native population as in the case of the rural
European population, living spread-out over the southern and drier
parts of the Territory, where farming units must necessarily be
large in order to be economically viable. Nevertheless, there are
portions of the Native population that are in this respect similarly
situated to the rural European population, and for whose needs

increasing provision is being made-as bas been indicated in Chapter
V 3,and is summarized again below. ·
(d) The question of increasing hostel facilities for Native children cannot,
however, be considered in isolation from other factors and problems
affecting Native education. There is particularly the problem of a
shortage of 1:eachers. Merely to provide more hostels, and thereby
to focrease the enrolment of Native pupils, cannot, in such circum
stances as prevail, really solve the problem. As Respondent has indi

cated, the p.resently available supply of teachers can barely cope
with Native children who already attend school 4.
(c) With due regard to the above considerations, the task of providing
forthe needs of Natives living in spread-out conditions is proceeding
with as much expedition as is reasonably practicable. The Adminis
tration has :.et 1tself the aim of establishing at least one higher
primary school in each Reserve and ofmaking funds available for the

1 ViM Chap. Vll, para. 5,supra.
a Vid11Chap. V, para. II,supra.
3 Ibid.,paras.12· lJ,su'fwa.
4 Vsd, Chap. IV, para. 83, supra. COUNTER-MEMORIAL OF SOUTH AFRlCA 521

erection of hostels in conjunction with such schools 1• In the case
of community schools, the Administration has undertaken to sul>
sidize school boards for the erection of hostels in their areas 2•
{/) Moreover, as already pointed out, Respondent is endeavouring to
improve the educational facilities for non-Whites who are employed

on European farms by encouraging farmers to establish farm schools
which are subsidized by the Administration, and has already suc
ceeded in doing so to a certain extent 3.As was also pointed out
above 3, the Administration has agreed to grant long-term loans to
mission societies to enable them to erect hostels for farm children,
and, furthermore, to subsidize the missions in respect of the pro
visionsof board and lodging at such hostels. The missions may erect
such hostels on farms, in the Reserves, or in Native residential areas
in towns in the Police Zone. As has also been stated above, the
Rhenish Mission has already indicated its desire and preparedness
to erect hostels at 22 places where it has schools, and it is hoped that

this new system will progressively alleviate the position in regard
to the schoaling of Native children on European fanns.
(g) In regard to the statement by the 1958 Commission of Inquiry into
Non-European Education, as quoted by Applicants in pa:ragraph
166 of the Memorials 4,Respondent adtriits that it was, at the time
when the statement was made, the policy not to allow school hostels
in Native locations in urban areas. The said po!..icywas part of
Respondent's general policy to avoid arrangements, which could
tend or contribute towards an undue increase in the nwnbers of
Native residents in urban areas. Because of the slow progress of the

system of fann schools for Native children, as recommended by the
said Commission, Respondent has since decided to permit the estab
lishment of school hostels in Native residential areas in urban
centres 5•
(h) It will be evident from the above that by merely·comparing figures
without considering any attendant facts and conditions which serve
to present a balanced picture, Applicants must necessarily arrive
at erroneous conclusions.

14. Paragraphr67 6.

The Neudamm Agricultural College is not entirely "above the level
(a)
of the high school", for students who have passed Standard VIII
can be enrolled. Othexwise the paragraph is admitted. This College
provides facilities for 32 European students 7•
It is s~cially designed to cater for the farrning needs of ~heWhite
group which, at present relative stages of development, differ from
those of the Native groups. In view particularly of the small number
of Natives that have thus far reached the Standard VIII educational

1 Vid# Chap. V, para. 48, supra.
2 Ibid., para. 70.
, Ibid.,para. 13.
4 1,pp. 154-155.
J Vttle Chap. V, para. r31supra.
6 I,p. 155.
7 Vide Chap. VII, para. 36, supra.522 SOUTH WEST AFRICA

1
level ,it follows that a similar school in the Territory for those
interested in agriculture would at the present stage be too far
advanced to be practicable 2• Respondent, hawever, realizes fully the
need for the teaching of elementary fanning methods at a more
primary level to rural Native children generally, and particularly ta
those children who are likely to go back to the land and to those

who may, as teachers or otherwise, later be called upon to take an
active part in rural development projects.
It is,inter alia, for these reasons that a more pronounced agricul
tural bias is being given ta primary education in Native areas, and
that agriculture is taught as a subject in secondary classes 3•ln future
it will probably have to be considered whether there should not be

adopted a system such as operates in South Aftica, where each
major Bantu group either already bas, or willsoon be provided with,
its own institutions for more advanced agricultural training--e.g .•at
Fort Cox in the Ciskei, Tsolo in the Transkei, and Arabie in the
Northern Transvaal-and where specific instruction is given in
regard to the types and methods of fanning practiscd .in each

particular area. Native students of South West Africa who have
passed Standards VIII, IX or X may enrol at agricultural schools for
Bantu in South Africa, and the Administration is prepared to grant
financial assistance to aII suitable applicants who wish ta receive
training at such institutions 4.
(b) Although separate industrial schools for Natives were established
5
in the Territory, such schools had to be closed for lack of support •
Industrial courses of a tyPe which are considered necessary for the
development of the Temtory are, however, offered to Native
students at the Augustineum • Since I956 three-year training
courses have been offered at this institution in carpentry, tailoring
and masonry. The training is entirely free, and students receive free
board and Jodging. The numbers of those who enrol for the various

courses are disappointingly small, and since 1961, e.g., not a single
student has enrolled for the masonry course 6.
As has already been stated 7 the Administration intends to insti
tute vocational training sections in conjunction with the teacher
training schools in Ovamboland.
(c) The small number of students in South West Africa, European and

non-European, who are interested in advanced vocational training
does not at present justify the establishment of institutions in the
Territory for such training.
Facilities for such training are, however, readily available in South
Africa, and Europeans and non-Europeans who wish to take courses
in South Afrka are granted financial assistance in the fonn of loans
8
and bursaries •

1 Vi~ Chap. V, paras. 45, 47, 51 and 56, supra.
1 Vûk also sub-para. (b), in/ra, as to the Jack of support for other technical
courses offeredto Natives.
' Vide Chap. VI, para. I, supra.
4 Ibid., para. 5.
s Jbsd.,para. 2,
6 Ibid., para 3.
7 Ibid., para. 4,
• Ibid., paras. 5~a11d24, and Chap.~VII, para. 42, supra. COUNTER-MEMORJAL OF SOUTH AFRlCA

15. Paragraph I68 1.

{a) Applicants' statement that Natives may receive training as teach
ers at only two training schools within the Territory is not correct.

Within the Police Zone there are two institutions for the training
of teachers, namely a govemment institution, the Augustineum at
Okahandja, and a Roman Catholic training school at Doebra. In the
northem territories outside the Police Zone there are also two
training institutions, namely at Onguedira and Ongandjera in
Ovamboland 2•

{b) These training schools are at present sufficient to cater for ail
Native students who wish to be trained as teachers. ln fact many
more students can be accommodated at these institutions than
attend them at present, despite all the special encouragements
offered 3.

No teacher-training schools are provided for the White group in
the Territory. This is so because the numbers involved do not justify
the establishment of such institutions in the Territory ~.Europeans
who wish to become teachers can avail themselves of training
facilities in South Africa.

16. Paragraph I69 1.

(a) In so far as this paragraph may create the impression that nothing
is being done in the Territory to introduce non-European women

-in contrast with European women-into the nursing profession,
it is not correct.
As stated in Chapter VI above 5, there were no facil.ities for the
training of general nurses, European or non-European, in the Terri
tory until 1960, when a training school for European general nurses
was established at the Windhoek State Hospital.

Even before that date a scheme wa.s introduced for the training of
non-European girls as auxiliary nurses in the Police Zone, and since
1959 training schools for such nurses have been established at the
state hospitals of Windhoek, Grootfontein, Otjiwarongo, Gobabis,
Walvis Bay, Keetmanshoop and Luderitz 5•
At present there are 64 non-European student nurses in training
6
as auxiliary nurses in the Police Zone •
(b) In the northern terri tories outside the Police Zone auxili'ary nurses
have been trained at the Finnish Mission Hospital at Onandjokwe
for more than 30 years. This hospital was approved as a training
school for auxiliary nurses by the Nursing Council in 196!, and at
present there are 27 pupil auxiliary nurses in training at this centre.

The hospital at Runtu in the Okavango has also applied for recog
nition as a training school for awdliary nurses 5•

1 1,p. 155.
2 Vide Chap. V, para. 22, and Chap. VI, para. 4, supra.
' Vide e.g., Chap.V, para. 29, swpra,
4 Vide Chap. VII, para. 41, supra.
5 Vide Chap. Vl, para. 6, sufwa.
6 Jmd., para. IO. SOUTH WEST AFRICA

(c) Facilities and opportunities for the training of non~European
auxiliary nurses in the Territory are ample, and even more will be
created when the new state hospital at Okatana in Ovamboland
which is now in the course of construction, is completed 1•
(d) With regard to the training of general nurses, it has already been
stated that the Administration is keen on offering such training
in the Territ-::iryto non-European girls 2•There are, however, as yet
too few non-European girls with the necessary scholastic qualifi
cations (at least Standard VIII) who are interested in nursing to
justify the establishment of such a training scheme 3•
Until such a scheme can beintroduced in the Territory, non-Euro

pean girls from South West Africa who have the necessary qualifica
tions and ar•?desirous of being trained asgeneral nurses can enrol for
training courses in South Africa. Since 1958 approximately I2
Coloured girlsfrom South West Africahave proceeded to South Africa
for training as nurses. Two Herero girls have completed the nurses'
training course in South Africa, and at present two others are follow
ing a nurses' course in South Africa 2•

17. Pa,ag,aph., z70 to z76 •.

{a) Respondent denies the allegation that the facilfües and opportuni
ties available in South Africa to Natives or Coloured persons for
training as nurses are limited.
Facilities and opportunities in South Africa for the training of
nurses, whether Native, Coloured or European, are more than
adequate 5•

,(b} lt is true the Nursing Act, 1957 (Act No. 69 of 1957) contains
provisions, inter alia, as set forth in paragraphs 171 to 176 of the
Memorials, and that the Act is applicable in South West Africa.
Respondent, however, denies Applicants' charges that Natives and
Coloured persons can enter the nursing profession "only on a plane
maintained and stigmatized as inferior' or that there 1sa "scheme
to confine them to a status ofpublicly proclaimed inferiority".
(c) The Act givt:seffect to Respondent's policy of providing, as far as is
practicable, separate hospitalization and health services for the
ôifferent population groups. As natural corollaries, the separate
training of the different groups in the nursing profession 6,and the
enrolment of the groups in separate registers 7,were in pràctice found

to be in the best interests of each of the ~oups concerned.
(d) The training of non-European nurses is1n no way inferior to that 9f
European nurses. The training is the same. AU those in training
study the sa:mesyllabuses and take the same examinations, both for
registration and for enrolment in tenns of the Nursing Act. The only
difference is that the period of training for Native nurses is six
rnonths longer than for European and Coloured nurses 6•

1 Viù Chap. VI, para. 8.
2 Ibid., para9.
s Ibid., paras6 and 9.
• I, pp. 155-156.
s Vide Chap. VI, paras. 13-14, sup,-a.
• Ibid., para. 17.
" Ibid., paras. 18-19. COUNTER-MEMORIAL OF SOUTH AFRICA 525

Experience has shown that Native students need more time to
adapt themselves, and the first six months of their course is devoted
lar$ely to Hus purpose. The extra period of training for Native
tramees was introduced for their benefit, and treatment on a par
with trainees of the other groups would in this respect be to their
detriment 1•
There is no difference in the types of posts which European, and
non-European nurses can hold. Non-Europeans in South· Africa
occupy, e.g., the posts of matrons of hospitals.
(e) 1t is true that, in tcrms of the Nursing Act, non-European nurses
have lesser rights in the control of the nursing profession than
European nurses, but this is no "publicly proclaimed inferiority"
in the sense that non-European nurses are held in less esteem than

European nurses. On the contrary, the purpose of the arrangement
is that it is to be temporary and transitional only, so as to permit
non-Europcan nurses to develop towards self-control of theu- own
professional organizations in due course 2•Such separate professional
organizations are intended to beestablished for the non-White groups
as soon as they have reached the stage where they can assume control
thereof 3•
Meanwhile the non-European groups play an effective part in the
profession by means of their advisory boards and cormmttees, and
under the guidance of experienced European members of the
Council and Board of the Association they are steadily gaining
greater experience and developing a greater sense of responsibility
and independence. These arrangements accordingly provide an
effective training-ground for non-European nurses to take complete
charge of the nursing of their own people, and of the management

and control of their own respective branches of the profession-far
more so trum would have been the case in circumstances of their
participation, as minority groups, in one integrated professional
organization +.

18. Paragraph I77 s.

(a) lt is correct that there are no facilities in the Territory for hlgher
education for any of the population groups. The demand therefor
has never been such as to justify the establishment of such institu~
tions 6,
It ialso correct that the Administration grants financial assistance
in the form of loans and bursaries (grants) to enable students from
the Territory to pursue their studies in South Africa 7•
The particulars given by the Applicants for the years 1953-1954

and 1954-1955 are not correct. In 1953. 44 students received loans
or bursaries (30in respect of education courses, and 14 in respect of

1 Vide Chap. VI, para 17.
z Ibid., paras. 18-19.
s Ibid., paras. 17-19.
• Ibid., para. 18.
) 1, p. 157.
6 Vide Chap. VI, para. ~1, supt'a.
~ Ibid., paras.24-2.5. SOUTH WEST AFRICA

other cours1:s);in 1954. 33 students received such aid (20 in respect of
education courses, and r3 in respect of other courses).
Although most recipients of aid take teaching courses, the position

isthat applicants can take whatever course they wish if it has the
approval of the Administration. Aid is not limited to any particular
course, save where bursaries are made available specially for teaching
courses 1•
(b) It is true that no non-European students have as yet won any of
. the merit bursaries referred to above.
It is only as from 1957 that Coloured students have attained

Standard X certificates in South West Africa, thereby becoming
eligible for such bursaries. Since then study loans have been
granted to 39 Coloured Standard X students to follow teaching
courses in South Africa. One Standard X student was granted a loan
to take a medical course in South Africa. At the end of 1961 five
applications for aid were received by the Administration from
Coloured persans, and four were granted. Two are matriculants
taking a B.Comm. course at the University College of the Western

Cape in South Africa.
(c) As far as Natives are concerned, it was only at the end of 1060 that
the first students wrote the Standard X examination 2. Three
Natives have thus far applied for and been granted loans for further
study 3•There is no limit to the number of loans that may be granted,
and the Administration would welcome more applications by Native
students.
As has been stated 4,provision has now been made for bursaries
specially for Natives.

(à) It is only because of the fairly recent establishment of high-school
courses, and the small number of non-European students that have
completed such courses, that relatively few loans have thus far been
applied for by non-European matriculants. In tune there will no
doubt be more non-White applicants for loans and bursaries.

19. ParagrapM r78 and r79 5•

(a) In South Africa there are separate facilities for hlgher education
for each of the population groups-Bantu, Coloured, Indian and
European.
(h) Higher-education facilities for Natives of South West Africa are
available at the following institutions in South Africa:
(i) The University College of Fort Hare, at Fort Hare, Cape

Provfoce.
(ii) The University College of the North, Turfloop, Pietersburg,
Transvaal.
(iii) The University College of Zululand, Ngoye, Natal.
(iv) The Medical School for non-Europeans of the University of
Natal.

Ail four institutions are residental institutions.

1 Vide Chap. vr, :;iara-25.
2 Vide Chap. V, para. 47,supra.
5 Vide Chap. VI, para. 24,supra.
• Ibid.para. 25.
51, p.157. COUNTER-MEMO]{lAL OF SOUTH AFRlCA

Native students can also enrol at the University of South Africa,
which is nota. rnsidcntal university, but conducts all its tea.ching
save for vacation courses-by mcans of correspondcncc. With the
consent of the Minister of Bantu Education, Natives may also enrol
1
at European universities in South Africa •
(c) There are several universities for Europcans in South Africa, and
a separate university collegc for Coloured students at Bellvillc, near
Cape Town 2•Coloured students can also enrol at the University of
South Africa 1 and at the Medical School for non-Europeans at the
University of Natal 1 .With the permission of the responsihle Minis-

ter, Coloured students may also enrol at European uniyersities.
(d) Respondcnt has dealt with the reason for the legislation in accord
ance with which separate facilities for the hi~her education of
the different population groups are provided m South Africa 3.
Respondent considers that its policy is in the best interests of each
of the po~ulation groups, that it is educationally sound and in

keeping w1th the present trend in other States in Africa to "Afri-
canize" education for the African 4•
(e) The facilitics for higher education for Natives in South Africa
compare favourably with those in other African territories 1. The
standard of work donc at the non-European university colleges is in
no way inferior to that of European universities 1•

(/) With regard to Applicants' allegations, it is not appreciated why
the existence of European universities should reprcscnt a "significant
opportunity" for European students, whilc the existence of similar
institutions for Coloure<land Native students should be styled "a
reminder of opportunitics denied'' to non-European students, even
though non-Europcan studcnts formerly attended somc of the

European universitics. The circumstances in which this practice
arose, and its temporary nature, have bcen fully cxpbined 5 •
Why Applicants speak of "only two limife<lexceptions" in para
graph 178 is not un<lerstocid, whcn the tnic facts arc as set out in
sub-paragraphs (b) and (c) ahove.
The statement regn.rding the University of South Africa in the

last sentence of paragraph 178 is mislearling. All students of the
University of South Africa take their courses by way of correspond
ence. Vacation courses are also held, and the samc lectures arc given
to all students-non-White and White-who attend them.
Finally, it is not undcrstood why the University College at Fort
Hare should be called the "only ... university of any sort" to the

exclusion of the others mentioncd above.

20. Paragraph r8o 6.

(a) The mattcr raised by Applicants in this paragraph of the Memorials
must be viewed agamst the background of South African history of

t Vide Chap. VI, para. 23, supYa.
2 Ibid., para. 38.

4 Ibid., paras. 3•k36.
5 Vidt Cha.p. IV, paras. 54-59, and Chap. VI, paras. 39-42,supra.
6 Ibid.,paras. 29-34.
I, pp. l57-158.528 SOUTH WEST AFRICA

social and economic conditions, past and present, and of certain
basic consiclerations which contribute towards the motivation of
Respondent's policy of the separate deve1oprnent of the European
and Bantu population groups of the country.
In view of the considcration already given to these matters in
earlicr parts of this Counter-Memorial, Respondent does not propose
to deal with thcm in dctaiI again, but will make brief reference
only to certain aspects which are relevant to the issue raised by
Applicants.
(b) It is l{cspondcnt's belicf that the interests of the European and

Native groups can best be served, and that peaceful co-exîstence be
tween them can bcst be secured, by a policy whîch provides for their
scparatc development, the goal aimed at being a situation where the
Hantu groups will have self-government and, eventually, full in
depcndence in their own homelands, and where economic relations
between thesc homelands and the White areas will be such as to
amou11t to a position of economic interdependence.
ln the prncess of advancement towards this goal, measures have
bccn and are constantly being taken to develop the Bantu areas, and
it is Rcspondent's belief that the Bantu themselves should play an
active part in this development. In this process of development
Respondcnt, through its Departments of Bantu Administration and
Bantu Education, cmploys and trains Bantu who can contribute to
the devclopment oftheir areas and to the advancement of their own
people.
(c) A fact of whîch Respondent must, and does, take cognizance, is

that thcre has, throughout South Africa's history, been social separa
tion between the White and Ban tu 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
gi:oups, panicularly in the more intimate spheres, tend to create
friction.
(d) The aforementioned factors, accentuated in all probability jn the
case of the European group by the fact that they have for a long time
occupied a position of guardianship and leadership over the Bantu
groups. also in the economic field, have limited relationships between
Europeans and Bantu largely to those of tutors and employers, on
the one hand, and pupils and employees, on the other, and have,
furthennore, as at the present stages of development of the respec
tive groups, resulted in the factual situation that many Europeans,
in all probability the vast majority, are not prepared to serve in

positions where Bantu are placed in a position of authority over
them.
(e) A further important facet of the aforementioned factors is that a
Bantu who qualifies himself for a profession in which he will, because
of the stage of advancement of his own group, have to depend for
his livelihood onthe services of European employees. or on European
patronage, runs a grave risk of total frustration.
(t) The matters referred to in sub-paragraphs (c), (d} and (e) above
are social phenomena which exist as facts, inderendently of any
govemmental policy, Iegislation or administrative practices-as
indeed they manifest themselves, to a greater or Iesser extent, in
mixed or plural communities throughout the world. Depending upon COUNTER-MEMORIAL OF SOUTH AFRICA 529

the exact circumstances of a particular situation, the phenomena
may partake of the nature of group preferences, group self-protection
group assertiveness, group conceptions of differences in social and
cultural level, or sometimes simply group prejudiccs. Whatcver their
exact nature or causes, and whatever the moral righb or wrongs
pertaining to them in particular situations, therc can be no denial

that such group reactions exist as facts of which duc cognizance must
needs be taken by any rcalistic governmcnt.
(g) ln more recent times policics have bcen dcvised in various parts
of the world with the specific ideal. to which Respondent whole
hcartedly subscribcs, of eradicating, avoiding or reducing toa.mini
mum all undesirable aspects and manifestations of such group reac
tions, such as unfair discrimination, domination of one group by
another, and the Jike. The problcm <locsnot lie with the ideal, but
with practical mcans of adlieving it in the diverse conditions
existing in various plural communities; and frequently an important
aspect of the problcm is to find a just and propcr balance between
legitimate but competing or conflicting aspirations of various groups.
Whereas policies aiming at a solution of the problem are in some
countrics procceding inthe djrcction ofattempts at forccd integration,
with or without qualifications. Respondent is, for r~tsons explained
earlier, Jully convincedthat such policics cannot possibly achievc a
just and fair solution either in South Africa or in South West Africa,

and that a solution is to be sought on the basis of scparatc develop
ment as set out, inter alia, in sub-paragraph (b) above.
(h) An important motivating factor in regard to this policy has always
been the advantage which it involves for educated and more ad
vanced members of the Bantu groups, in that they can step into
higher grades of employment specially intended for them in planned
·and positive programmes for advancement of their own peoples
vis-à-vis the large measure of friction, negation and frustration that
must inevitably arise for them, independently of any government
policy or legislation, from attempts at free competition with mem
bers of the White population group in the higher strata of the eco
nomic, social and professional life of that group.
As a counter-part to the factor just mentioned, the policy of
separate development takes due cognizance of the fact that its
application is at present passing through a stage of transition, and
aims at doing so with a minimum of group friction and the negative
consequences that could result therefrom. The transition is from the
earlier genre, mentioned in sub-paragraph (d) above, of White

guardianship and leadership in every sphere of a partially integrated
economy to equality of opportunity for members of the non-White
groups in the form of leadership in largely separated, though
mutually înterdependent, econom1es of their own groups. With a
view especially to securingthe maximum support from all the groups
for this transition, Respondent has found it best, as 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 oppor
tunities for higher employment of members of the lastmentioned
groups through acceleration, as far as practicable, of the develop
ment of their own homelands ~nd economies.530 SOUTH WEST AFRICA

(i) A realistic approach to the problems of the transitional stage îs,
in Respondent's view, to train Bantu for occupations and professions

which, at the present stage of dcvelopments, offer them avenues of
employmcnt and future advancement, and to avoid creating a
situation where Bantu qualify for professions in which they will
find themsdves depen<lent on White patronage, which might not
be forthcoming, or in wlùch either Respondent or other potential
employers will not be able to make use of their services in a field
where they will,ofneccssity, have to be placed in positions of author
ity over European employees or assistants.
(f) The considerations mentioned above have bccn a subject of con
tinua! and repeated political debate in South Africa over a consider
able number of years, and the speech of the Minister of Bantu Educa
tion in Parliament 1,referred to by Applicants, is to be read with

this factor in mind. The Minister knew that his audience was aware
of the implications of relevant aspects of the policy of separate
development, as explained above.
(k) The Minister referred to applications by Bantu students to follow
engineering courses at European universities, and he pointed out
that Bantu engineers could, in existing circumstances, only expect
to be empk,yed by the Department of Bantu Administration and
Development, but that, since such employment would entail their
being placed in positions of authority over European engineering
assistants, there being no qualified Bantu in the country who could
fi.li the role of such assistants, it was essential, as the initial step,
first to establish a base of Bantu engineering assistants.

(l) The Minister accordingly outlined the steps that would be taken
to create fadlities for the training of Bantu engineering assistants.
He stated that such facilities would be created at Bantu university
colleges and that students could, in the meantime, take a suitable
B.Sc. course, on which the Department would advise them, thereby
avoiding a loss of study time. He said, further, that as assistants
became available, engineering courses would also be introduced at
Ban tu university colleges, and indicated that due recognition would
be accorded to the practical experience and knowledge gained by
engineering assistants if they wished to take such engineering
courses. His statement is this regard is recorded as follows:

"Once they have been trained as assistants and have begun to
gain experience, then we could, as soon as there are sufficient
assistants for us to employ engineers also, also institute a course for
them and then itis a shorter period of training for them thereafter,
having regard to the practical knowledge and background they will
have had 1."
(m) Applicants' formulation tends to create the impression that the
Minister stated that the engineering profession would be completely,
and permanently, closed to the Bantu, and that they should accord

ingly content themselves with becoming assistants to European
engineers. This is not correct. The Minister dealt with what was a
ncw and, in the circumstances, difficult situation where Bantu were
beginning to show an intercst in the engineering profession, and
he spoke of practical steps that would have to be taken before

l Vide U. of S.A.,Parl. Deb., House of Asstmbly,Vol. 105 (1960),Col. 7872. COUNTER-MEMORIAL OF SOUTH AFRICA 5JI

engineering courses could be instituted for Bantu students. Appli
cants limit their remarks to what the Minister said about engineer
ing assistants, and fail to mention that he also said that engineer
ing courses would be introduced for Bantu studcnts, as cited above.
(n) There is no reason to suggest, as Applicants appear to do, that the
Minister's concern about "frustrated people" was not genuine. The
Minister made it clear that he was dealing with what was a new
devel~pment, and said, inter alia:

"... I am not prepared to help to keep people at a university for
six, seven and eight years at a great cost and then let them corne out
of it, without there being a livelihood for thcm. I do not want
frustrated people in our colleges. I want the person who cornes out
of it to be in a position to rcnder service to his own people. That is
why I do not wantus to start building the house from the chimney
downwards as regards this development. We must build up from the
foundations ."

(o) At the beginning of 1961 a three-year course in "drawing and
drafting" was instituted at several Bantu secondary technical
schools. The fi.rst candidates will complete this course, which is at
Junior Certificate levcl, at the end of 1963, and will then be offered
püsts as engineering assistants by the Department of Bantu Admin
istration and Development. They will then rcceive practical in
service training, and will furthennore periodically follow "sandwich''
courses at a technical school until they become fully qualified

engineering assistants.
Steps are also being taken to introduce a Senior Certificate
Technical Course at some of the senior technical schools as from
January I965. Students who complete this course will be fully
qualified engineering assistants, and will, in addition, be granted
matriculation exemption with the necessary subjects to follow a
degree course in engmeering.

ZI. Paragraphr8r (wronglyprintedasI5I) 2•

The Minister's statement, referred to in paragraph 20 above, in no
way supports the alleged complaint of Senior Headman (also referred
to as "Chief") Hosea Kutako. There is, in fact, no relation between the
two things. It is difficult to know what Applicants, or Mr. Kutako,
conceive the "so-called Bantu education system'' to be, but it is sufficient
to say that any allegation that any educational system in South Africa

has as its objective "to teach the non-Europeans from childhood that
they are inferior to the Europeans" is completely unfounded. Similarly
any allegation that any educational system in South Africa or in the
Territory has such an objective is untrue and probably born of motives
which have no relation to education.
What have been introduced in the Native schools in South West
Africa, are syllabuses based on those used in Bantu schools in South
Africa but adapted to local conditions 3.The syllabuses, founded on
sound educational principles, are better adapted to the needs of those

• Vide U. CJS/ .A., Pari. Deb., House of AssemblyVol. 105 (r96o), Col. 7872.
2 1, p. r58,
3 Vid/JChap. IV, paras. 23-30,supra. SOUTH WEST AFRlCA
532

whom it is sought ta teach than those previously used, and the system
of community schools 1offers Native parents the opportunity of playing
an active part in the promotion of the education of their children.

22. Paragraph I82 2•

(a) The allcgations in this parafP:aph are not correct. Particulars of
the salaries and allowances paid ta European teachers as detennined
from timc to time are set out in Chapter VII 3 ,and those paid to
Native tcachers, in Chapter V 4,Respondent admits, however, that

the salaries and allowances for European teachers are higher than
those for non-European teachers.
If Applicants' contention is that all teachers shou1d be paid the
same salaries, it would not be a valid contention. Circumstances and
factors rclating ta the determination of salaries and allowances of
teachcrs in the ctiffercnt groups are dealt with in the following

paragraphs.
(b) ln the first place, the qualifications demanded in the case of Euro
pean teachers are generally higher than in the case of non-European
teachers 5,and it stands to rcason that teachers with higher qualifica
tions should command better salaries.
(c) The range of economic alternatives open to prospective teachers

is also, in conjunction with the qualifications aspect, an important
factor in the detennination of salaries.
For persans with the qualifications of the European teachers there
are many alternative employment opportunities, not only in the
Territory it~elf, but also in South Africa. The salaries of these
teachers mui;t, therefore, always bear a reasonable relationship to
salaries paid in the other spheres of employment which are open to

them.
In South West Africa the position is that the Territory has never
been able to produce the teachers it needs. Salary scales for European
teachers in the Territory are the same as those applicable ta teachers
of equal status in South Africa, but in order to attract teachers from
South Africa to the Territory, it has been found necessary to paya
6
special allowance to them •
The aforementioned considerations do not apply to nearly the
sarne extent in the case of Native teachers in the Territory. For rea
sons previou;ly given 7, the shortage of qualified Native teachers
cannot be alleviated by recruiting teachers from South Africa. The
problem is rather one of inducing a sufncient 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 sucll persons on comparable salary bases, and the determi-

l Vide Chap. IV. -paras. 35-41, 43.
z 1,p. 158. -
3 Vide Chap. VII, paras. 30-33, supra.
• Vide Chap. V, paras. 72.77, supra.
5 Vide Chap. VII, paras. 30-31, 39, supra, compared with Chap. V, paras. 73-74,
sup,a.
6 Vide Chap. VII, para. 33, supra.
7 Vide Chap. V, para. 23, supra. COUNTER-MEMORIAL OF SOUTH AFRICA 533

nation of their salaries has rather been dependent on the considera
tions mentioned below.
(d) A teacher's salary should, in Respondent's view, bear a relationship
to the normal income of other members of his group. otherwîse he
might becorneseparated orestranged from them as a result of an arti
ficial ftnancial barder 1•

The Native groups are in general still much less developed in the
economic sphere than Europeans, and their whole structure of
income and of cost of living is generally lower. In this regard it may
be pointed out that in the payment of regional allowances to Native
teachers in the Police Zone, consideration is given to the fact that
cost of living in the Police Zone is higher than in the northem .
territories 2•
These factors result in a situation that salaries paid to Native
teachers are lower than those paid to European teachers, even where
qualifications may be comparable.

(e) That the above 1s a natural outcome of social and economic con
siderations in African circumstances, appears from the fact that
similar differences are to be fonnd between the salaries of Native and
European teachers also in other African terri tories 3•
(!) The situation is naturally not a static one, and is subject to con
tinuai 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 through progress made in the policy
of separate development, as recounted in other portions of this

Counter-Memorial, coupled with the teacher shortage in regard to
Native education. must naturally tend to increase the basis of
remuneration of Native teachers. With continued social and eco
nomic 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. It could,
however, do incalculable harm to anticipate this process by singling
out Native teachers for paYII:ent to them of salaries which would
produce a complete econom1cimbalance between them and virtually
all other members of their communities.

23. Paragraph I83 s.

It is correct that in South West Africa there was a general increase
of R220 (fno} in the salary scales of European teachers in 1955~1956.
This applied to all European teachers, and not only to those teaching in
Native schools.
The allegation that-

"... there was made available for 'Non-European' teachers only the
possibility of an additional increment of f15 for men ([,12for women)

1 Vide Chap. IV, para. 72, supra.
z Vide Chap. V. para. 76, supra.
3 Vide Chap. IV, para. 73, supra.
• Vide Chap. V, paras. 73-78, supra.
! l, p. 158. SOUTH WEST AFRICA
534

per annum for each of three years making a maximum possible
aggregate increase of f45",

is correct only in so far as Native teachers were concerned-it did not
apply to Coloured teachers 1•The payment of the additional increments
was made subject to recommendation by the Director of Education.
Applicants are apparently unaware of the fact that adjustments of
the salary scales of the various groups are not necessarily made at the
same tune. So, for example, new salary scales for Native teachers came

into operation in 1961 z without any change in the then-existing scales
for European teachers 3• There was no intention to raise the salary
scales for Native:; in 1955-1956, as was the case with European teachers.
The additional increments for Native teachers were merely intended to
augment the salaries of those teachers who had already reached their

maximum salary.

24- Paragraphç I84 and I85 4•

(a) In these paragraphs the Applicants give certain figures of expend
itures in South West Africa on European and Native education

respectively during the years 1953-1954 to 1955-1956, and also make
calculations of p~r capita expenditure for the year 1954-1955. The
alle~ation is made that these figures and calculations show a "fan
tasüc discrepancy", and apparently judging by their swnmary in
paragraph 186 and their "Legal Conclusions" 5, it is the Applicants'
contention that the figures justify an inference of unfair discrimi
nation against the Native population of the Territory.

Respondent denies the correctness of the figures given by the
Applicants, and of the per capita calculations made. It is admitted,
however, that amounts spent on Native education have at all times
been substantially 1ess than the amounts spent on European edu
cation, but it is denied that this fact justifies any inference of unfair
discrimination against the Native population, and Respondent

says that although there has been differentiation, there has in fact
been no unfair discrimination.
(b) Particulars c,famounts spent by the Administration on Native and
European education during various years have already been given,
and in this regard the honourable Courtis referred to the information
contained in Chapters V 6 and VII 7above.

It is Respondent's submission that, in the light of the circum
stanceswhichhave prevailedand stillprevail in the Territory, a com
parison between the two things---expenditure on European educat1on
and expenditure on Native educaüon-cannot per se be indicative
of unfair discrimination against the Native groups.
Conditiom which have governed, and still govern, European and

1 Vide G.N. No. 81 of 1955 (S.W.A.), IApr. 1955, in Laws of Soul!; West Africa

z925,VideChap. V, para. 74,6supra.
3
4 Vide also table~inChap. V, para. 73. and Chap. VII, para. 30. supra.
5 1,p. 159.
6 As in para.190 at p. 162 of the M.emoriab,
Vide Chap. V, paras. 79-Sr, 95 (Caprivi>, supra.
1 Vide Chap. VII, para. 35,supra. COUNTER·MEMORIAL OF SOUTH AFRICA
535

Native education, have been, and are, vastly dissimilar, and all com
parisons based on mere differences in expenditure must inevitably be
invalid in the context of charges as made by the Applicants. The
same considerations apply, though to a lesser extent, to Native
education in the Police Zone as compared with Native education in
the areas beyond it. There is no indication that Applicants have in

any way taken account of the different conditions.
(c) The question of expenditure on education of each of the population
groups must, in the first place, be considered in the light of the
social and economic status and levels of development of each of the
groups, and their respective educational needs.
Respondent refers in tlùs regard to what has already been stated 1
conceming the differences in these respects between the various
group~.
The various factors and conditions which inhibited the intro
duction and development of education in the case of the Native
2
groups ,rendered it almost inevitable that expenditure on education
in the Territory should have begun on a basis of substantial excess
on the side of European education over that of Native education.
With the progressive extension of education to the Native
groups, increasingly larger sums have, however, been spent on
Native education, and with the continued social and economic
advancement of the Native peoples of the Territory, the difference
in expenditure on Native and European education must, in the

course of tirne, of necessity disappear-
At present there are still factors which, as in the past, render the
education of European children relatively more expensive than that
of Native children. These factors are referred to m the paragraphs
below.
(d) As stated in paragraph 22 above, the salary scales of European
teachers are higher, and, being better qualified, European teachers
are therefore placed in higher categories of their salary scaJes.
The average European primary-school teacher employed by the
Administration generally spends about six years more at training

institutions than the average Native primary school teacher.
In the whole of the Police Zone, for example, there are only 29
Native teachers in a category higher than the lowest. The lowest
teacher's certificate obtainable by a Native student is at the end of a
two--year course a{ter Standard VI. Many Native teachers are pa.id
salaries on the basis that they have obtained the minimum qualifi-
cations required when in actual fact they have not done so 3• •
(e) The expenses per pupil in the higher standards are higher than m
the lower standards because of higher qualified and better salaried

teachers, and higher cost of equipment, materials, etc., and there are
many more European pupils in the upper primary and secondary
classes than there are Native pupils. In 1960, for example, there
were 4,597 European pupils in Standards V-X in government schools
{i.e., excluding private schools) as against 795 Native students in the
same standards in the whole of the Territory. In Standards VII-X

1
2 Vide Chap. IV, paras.63-74,supra.
3 Ibid.para. 74.aras. 3-30,supm.536 SOUTH WEST AFRICA

the comparative figures in 1960 were: Europeans 2,151, Natives nr.
(!) The Permanent Mandates Commission, it may be ~inted out, also
compared expenditures on European education with expenditures
on Native education, but it did more than that. It also considered
actions taken by Mandatories in the light of the general problems
with which a.particular territory was faced and of the progress made
in regard to similar problems in other territories similarly situated.

By doing so. it is submitted, the Commission was able to maintain
a more balanced view and a better sense of perspective than would
otherwise ha.ve been possible.
In this regard it may be apposite to quote from the minutes of the
said Commir.sion. In 1933 Mlle Dannevig, the Member entrusted by
the Commission with the study of Native education, was recorded to
have stated that she---

"... appreciated the efforts of the Administration to main tain the
standard of education in spite of financial difficulties. Expenditure
had been eut down, she noted, less than in other fields, and native
education less than European education. She also noted the excellent
work done by teachers in spite of adverse circumstances. She thought
that the av1i:rageexpenditure per scholar-Europeans {,21 6s. 1od.
and natives f2 15s. 7d.... -being comparatively high accounted
1
forthis good result ."
The minutes for the year 1937 contain the following:
"Mlle Dannevig noted from the first statistical table (page 34 of
the report) and the budget estimates (page 13) that there had been a

steady increase in expenditure on education during the past few
years. The amounts spent on the education of native and coloured
people were comparativelr small. only about 10% of the total
({,13,805 out of a total o [127,691) and the estimate for native
education for 1936/37 was reduced, while that for European was
increased. At the same time, the cost of education per pupil was
very high as compared with the expenditure in other territories, and
was said to be {,22os. 10d. per head for Europeans, f4 19s. 3d. for
2
coloured children and f2 13s. ïd. for native children ."
And in 1939 she stated that she "fully appreciated, of course, that
schools for European children must cost considerably more in
proportion 3."
(g) In regard to expenditure on Native education it should be borne
inmind that the swns mentioned in the respective tables 4do not in
clude moneys spent from Native Reserve or tribal fonds, nor amounts

spent by the various missions concemed. This is of particular im
portance in the case of mission schools in the northern territories. In
1959-1960, for example, the Administration's contribution by way of
subsidies to schools in the northern territories was R82,590 (l41,295),
whereas the amounts spent by the Finnish and Roman Catholic
Missions alone totalled Rr27,490 ({,63,745).As already stated, the
taking over of the lower primary schools of the Finnish Mission in

1 P.M.C., Min., XXIll, p.93.
a Ibid.,xxxr. p. r28.
' Ibid.,XXXVI, p. ~8.
4 Vide Chap. V, paras. 79-80, 95 (Caprivisut,ra. COUNTER-MEMORIAL OF SOUTH AFRICA 537

Ovamboland in 1961led to'animmediate and substantial increase in
the Adrninistration's expenditure, and as more schoolsare taken over
increasingly larger amounts will become involved 1•
Furthermore, included in the amounts given as spent on educa
tion 2 are items such as hostel fees, study loans, book moneys,
examination fees, etc., which are either wholly or in part recoverable
frornparents and which are more substantial in the case of European
education. In 1960-1961, for example, the total amount recovered
by the Administration in respect of such items was R365,56:.i
([182,781) in the case of European education as against R13,508
(f6,754) in respect of Native and Coloured education.
(h) Of particular s1gnificanceis the fact that increasingly larger amounts
bave been and are being spent on Native as well as Coloured educa

(i.e• Native and Coloured) education amounted to about u.9 pern
cent. of the total amount spent on education in the Territory. In
1962-1963,taking into account moneys recovered in respect of Items

such asthose mentioned in sub-paragraph (g) above, the ex.penditure
on non-European education amounted to 25.6 per cent. of the total
amThe expenditure on Native education will inevitably increase as

emoluments increase; as more Native schools are established; as
salaries; as the economieslof the Native groups develop and expand;

standards.e students proceed to the higher primary and secondary

25. Paragraph r86 3.
It is denied that the Native population in South West Africa "suffers"

·under a "burden of negation, frustration and unfair discrimination", or
It is likewise denied that there is any policy or practice, deliberate or

otherwise, to "restrict and shape the eâucation of the young so as to
perpetuate the denial of possibilities for self-improvement". There is
no denial of possibilities for self-improvement, and there is no _policyto
relegate the Native population "to a status of imposed inferionty".
On the contrary. as Respondent has shown, the Native groups are
being provided with opportunities for self-development and self-reali
.zation, and despite the many difficultiesinvolved, progress in this fieldis
being made in an ever-increasing measure.
Respondent's task is in essence one of advisin~, encouraging and
assisting the various groups by providing facilities consistent with
their needs and guiding them towards self-help. Whether. and to what
extent, the groups make use of the opportumties offered rests largely
with themselves. They will, however, continue to receive sympathetic
assistance and guidance from Respondent.
The allegations contained in sub-paragraphs (1)to (7) of paragraph
186 are a repetition, in summarized form, of the Applicants' allegations

1 Via Chap. V, pa.i-a..So.
1Ibitl., paras. 79-80, and Chap. VII, para. 35, suP,o.
I. pp.159-161.538 SOUTH WEST AFRICA

in paragraphs 159-185 of the Memorials, and save for what is said below,
Respondent does not wish to repeat its answers to the various allegations.
(a} Sub-paragraph (r), and Applicants' Legat Conclusion (iv) (a) at
pages r65-r66.

While it is admitted that a smaller percentage of Native children
attend school, it is denied that such percentage represents merely "a
small fraction'' compared with the percentage of European children who
attend school. In 1960 about 39.8 percent. of Native children of school
going age attended school and in 1961 the percentage was about 44 1•
lt is unrealistic to compare European with Native attendancc figures,
as will be readily appreciated by ail those whose task it has been to
extend education to underdeveloped communities in Africa. To see the
matter in proper perspective, reference should be made to school attend
ances in other parts of Africa, and to the difficuHies which have con

fronted educational authorities in those [arts in regard to teacher
training. The honourable Court is referre to what has been said in
Chapter V above z.
(b)Sub-paragraph (2), and Applicants' Legal Conclusion (iv) (b) atpage
r66.

The honourabie Court's attention is invited to what has been said
in (a) immediately above. The Applicants' allegations are greatly exag
gerated in so far as they relate to availability of education, as a refer
ence to Chapter V above will show. Without gofog into any detail, it
is stated that, although comparatively few schools have classes beyond
Standard III, the only conditions for establishing an upper primary
class at a school are a minimum of five pupils (ten in Ovamboland), and
the availability of a teacher. Full use is not made of existing facilities
for secondary school education. Ail teacher training is free, and every
effort is made to train as many teachers as possible. In this regard also,
full use isot made of the opportunities offered.

(c) Sub-paragraph (3), and Applicants' Legal Conclusion (iv) (c) atpage
r66.
It is true that there is only one high school (i.e., with classes up to
Standard X). but it is also true, as indicated in paragraph 9 above, that
the facilities provided at that school are more than sufficient to meet the
present demand for high school education for Natives in the Territory,

and are not fully utilized.
{d) Sub-paragraph (4), and Applicants' Legat Conclusion (iv) (d) at page
r66.

Ample facilities are available for the training of Native teachers in
the Territory. There are no such facilities for the training of European
or Coloured teachers. Hîgher education îs not provided for any of the
groups in the Territory because the demand does not justify it. Indus
trial schools that were established for Natives had to be closed for lack
of support. Industrial courses have since 1956 been offered to Native
students at the Augustineum, but these are poorly supported.

1 Vide Cbap. V, paras. 57-58. 88 (Caprivi), supra.
2 Ibid., paras31-,:;2, 59-60. COUNTER-MEMORlAL OF SOUTH AFRICA 539

(e) Sub-paragraph (S), and Applicants' LegalConclusion (iv) (eJat page
r66.

There are ample facilities in South Africa for higher and vocational
"theoretically" available. And it is wholly untrue to say that the pursuity

ofThat the pursuit of education in general by Natives is not discouraged
by Respondent, appears abundantly from the record.
To spend large sums of money on the education of the non-European
groups-as has been and is being done-would indeed be a curious way
of discouraging the pursuit of education. Similarly, efforts which have
resulted in having as at 1961, approximately 44 per cent. of Native
children of school-age at school-a percentage which is higher than
that obtained in either of the Applicant States-surely disprove any
suggestion that the pursuit of education is dîscouraged.
As far as opportunities for higher education in South Africa are
concerned, the facts given above 1 regarding loans and bursaries for
Native students from the Territory again refute the allegation of dis
couragement.

(f) Su!J.paragraph (6),and Applicants' Legal Conclusion (iv) (f) at page
r66.
Applicants' formulation suggests that Natives can be technically or
vocationally trained for no professions save those of teachers, nurses
and engineering assistants. This isnot so. Students of all groups are
generally free to take any hif$her education courses they wish, and
nothing prevents them from domg so.
The allegations made by Applicants in regard to teachers, nurses and
engineering assistants are not correct, as will appear from what has
alread v been said.
Respondent has shown that historical and economic reasons exist for
the fact that Europeans earn more than Natives, and that this is a
matter which is subject to fluctuation and change, also in accordance
with ordinary economic princ~les which willtend to increase Natives'
salaries as progress is made m the ail-round economic and social ad
vancement of the Native groups.
Respondent denies that it imposes "a publîcly procla.imed inferiority
of status" upon Natives who enter the occupations referred to by Appli
cants,or at ail.

{g) r66.paragraph (7), ·nd Applicants' Legal Conclusion (iv) (g) at page

It is admitted that less has been spent on Native education than on
European education, but the Applicants show a complete lack of appre
ciation of the various factors which have played and still play a part
in this regard. Resp~:mdentdoes not wish to repeat here what has already
been said, but wishes to emphasize that it was natural and almost
inevitable that education for the European group in South West Africa
should have started off on an advanced basis, while education for the
Native groups was at the inception of the Mandate at an infant stage;

l Vii:ù Chap. VI, paras. 24-25, supra.540 SOUTH WEST AFRICA

that varions factors, inherent in the sta~es of the relative development
of the varions groups, have ahnost mevitably rendered education
for Enropean children more expensive than for Native children, even on
a proportionate basis; that expendlture on Native education has shown
a marked upward trend in recent years; and that progress has been
made not only in overcoming the 1mpediments and retarding factors
regarding Native education, but also in a broader sense in the ad
vancement of the Native groups on all fronts, rnaterial, moral and social.
The important factor at the present stage of development is therefore

not the existence of a difference of expenditure in a particular year or
years, but the upward trend in expenditure on, and the advancement of,
Native education.
{h) Sub-paragrap% (8).

A reference to what has been said in the preceding chapters will show
that the allegations in this sub-paragraph are without any fowidation
of fact.
It will appear from what has been said that Respondent 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 endea\'ours, as far as possible, to provide for the particular
needs of all the groups. To achieve this object, every endeavour has been
made to enable the children of each of the groups to be educated sepa
_rately intheir ow:nlanguage and by their own teachers. This in itself is
avast undertaking but, in Respondent's view, a necessary one. Syllabuses
have been designed to fit the cultural and historical background of ail the
Native groups, and parent communities in these groups have been given

an active share in the education of their children. Tuese essential foun
dations having now been well laid, the groups themselves are being
afforded every <1pportunity to co-operate in their own development
to the highest 1evel they can attain.
It is therefore not true to say that Respondent has failed to use the
possibilities of education to promote the well-being, the social proç_ress
and the development of the Native population, or that it has dehber
ately restricted opportunities for the education of Native children, or
that it has removed opportunities for any significant advancement of
the Native popuJation 1•On the contrary, the vast and difficult task of
Native education has reached a stage of progress which not only com
pares well with that in comparable Afncan territories, but promises
healthy and accelerated further growth. Opportunities for Native educa

tion are becoming increasingly favourable; and, in conjunction with the
political and economic aspects of Respondent's policies dealt with
earlier in this Counter-Memorial, the system of education is providing
positively, and, in Respondent's view, m the best possible manner, for
substantial and orderly "improvement in the well-being, social progress
and development" of the Native population of the Territory.

1 Re51>0ndent ha;i dealt above with the Applicants' specific allegations regarding
Native teachers and engineering assistants, andistnot intended to repeat what
has been said before.PRINTED IN THE NETHERLANDS

Document Long Title

Books V-VII